Tauqeer Ahmed Khan, Member. Through the instant appeal under Section 4 of the Service Tribunals Act, 1973, the appellant assails the office order dated 31.05.2021, whereby a major penalty of dismissal from service was imposed upon the appellant. His departmental appeal, preferred against the said penalty, was rejected vide order dated 08.10.2021.
2. Briefly stated the facts of the case, as disclosed in the appeal are that, the appellant was appointed as SI/PO (BPS-14) in National Highways and Motorway Police (NH&MP) in the year 2002.
After completion of requisite training and passing of departmental examination, he was promoted as IP/SPO (BS-16) in August, 2014.
While posted as Admin Officer Beat No. 34, Nooriabad Sector-III, Jamshoro, a show-cause notice dated 19.05.2021 (although mentioned as annexure 'C', but not actually annexed and even no mention is made in the index), containing the allegations reproduced in the appeal memo.
Appellant submitted his reply to the said show cause notice, denying the charges with supporting evidence, but the Respondent No. 2, without bringing any evidence on record in disagreement of the defence of appellant, awarded the impugned penalty. Appellant, after preferring the departmental appeal, approached this Tribunal through this appeal.
2. Comments have been filed on behalf of Respondents Nos. 1 & 2. Whereas, comments have not been filed on behalf of Respondent No. 3 i.e. Additional Estate Officer, Pak. Secretariat, Saddar, Karachi, who was declared exparte vide order dated 17.05.2022 as despite request made by Assistant Director (Estate), Estate Office, Karachi, comments could not be filed.
3. In the comments, the Respondents-1 & 2 stated that on 10.05.2021 at 0158 hours, the appellant was checked and found that he was performing duty as a 2nd duty officer with IP/SPO Shahid Abbas Gilani on Police Patrolling Mobile in the area of Nooriabad, whereas, according to duty roaster C/JPO Haseeb was deployed but not found in Patrol Car. During surprise checking both the officers were found involved in issuing of bogus challans tickets to the Truck Drivers, as mentioned in the comments, who have submitted their written statements and recognized the Appellant and KIP/SPO Shahid Abbas Gillani as challan issuing officer and also collected fine money from them.
During the checking, a fake mobile application was also found in the mobile of IP/SPO Shahid Abbas Gilani through which the appellant along with Shahid Abbas Gilani were issuing fake NHMP challan tickets to the drivers. When probe into the matter, the appellant and his co-officer Shahid Abbas Gilani confessed their guilt and submitted their written statements and in video that he has issued bogus challans and collected challan money with SPO Shahid Abbas Gilani themselves. The written statements of the appellant and his co-worker has been incorporated in the comments. It was stated that being Admin Officer Beat 34, Nooriabad, instead of supervising his team, the appellant was found involved in corruption on 27th of Ramdan and which has been substantiated from original statements of delinquent officer and drivers along with video. Therefore, the appellant was found guilty of Corruption, inefficiency and misconduct on his part. The act of appellant brought bad name of a well reputed department in the eyes of general public. Due to above mentioned -charges, the appellant was served with a show-cause notice dated 17.05.2021, upon receipt of his reply, in order to meet the ends of justice, the appellant was afforded an opportunity of personal hearing on 28.05.2021 by the DIG N-5, South Zone, where his written as well as verbal reply was found implausible and the appellant could not prove his innocence. Therefore, the appellant was awarded punishment of dismissal from service by the DIG N-5 South Zone, vide letter dated 31.05.2021. The appellant filed departmental appeal to Inspector General, NHMP against the said punishment. He was heard in person by the I.G. through video link on 20.09.2021 and was given sufficient opportunity to defend himself but he failed to justify his position, therefore, the appellate authority regretted/dismissed the departmental appeal and upheld the decision of DIG N-5 South Zone vide order dated 08.10.2021.
4. We have heard the learned counsel for the parties at length and carefully perused the record. On 01.09.2022, when the arguments were heard, it was directed that in compliance of this Court's order dated 30.06.2022, inquiry report/proceedings of the inquiry including video recording be placed before the tribunal, but the same have not yet been submitted in order to arrive at a just and proper conclusion in matter under controversy. The learned AAG present along with the departmental representative Ashraf of NHMP was provided three days' time to submit the same, but the same have not yet been placed despite lapse of the given time.
5. In the case in hand it has also been found by us that show-cause notice annexed with the comments and the impugned order of dismissal from service both have been passed by one and the single person/authority i.e. Deputy Inspector General of Police, not warranted by law. Hence, the impugned order is patently illegal and thus liable to be set aside.
It is a settled law by now that for imposing major penalty a regular inquiry has to be conducted against the delinquent employee, affording him a proper chance to defend himself. In other words, major penalty cannot be imposed without holding regular inquiry. There is plethora of judgments on this point. In the case reported in 2019 PLC (CS) Note 14. the Hon'ble High Court of Sindh has been pleased to observe that, "No inquiry into allegations levelled by employer company against employees was conducted and required procedure, which included charge sheet, was also not followed, so as to ensure transparently in arriving at decision of imposing major penalty of removal from service upon the employee". Para-16 of the said judgment, being relevant, is reproduced as under:- "16. In Government Servants (Efficiency and Discipline) Rules, 1973 "Misconduct" is defined. Rule 4 contemplates minor and major penalties. Rule 5 empowers authorized officer to direct enquiry against Government servant though an enquiry officer or enquiry committee or if he is satisfied, may order that there would be no enquiry in the interest of security of the country. If it is decided that there should be enquiry either by enquiry officer or enquiry committee, then procedure laid down in Rule 6 is to be followed and the requirement enumerated therein are that charge shall be framed and the Government servant proceeded against would be allowed to reply to the charge after which evidence is to be recorded by examining witnesses in support of the charge allowing opportunity to the affected Government servant to cross-examine the witness he can also produce witnesses in his defence. In the present case no inquiry into the allegations levelled by the Respondent-Company against the petitioner was conducted and the required procedure, which includes charge sheet, was also not followed, so as, to ensure transparency in arriving at a decision of imposing major penalty of removal from service upon the petitioner. Hence, the action is not sustainable in law. The Honorable Supreme Court judgment in the case of Saad Salam Ansari v. Chief Justice High Court of Sindh through Registrar reported in (2007 CMR 1726) and Muhammad Naeem Akhtar v. Managing Water and Sanitation Authority, LDA, Lahore reported in (2017 SCMR 357) support our view.
Emphasis added.
In the case in hand, no charge sheet was issued and the Rule-6 of Government Servants (Efficiency and Discipline) Rules, 1973 have also not been followed.
Inquiry, though in the case in hand, has been dispensed with, there is no reason or justification furnished for such dispensation. In a case reported in 2020 SCM R 1029, the Hon'ble Supreme Court has been pleased to observe that, ".... As stated above, in case the departmental authorities came to the conclusion that there is sufficient documentary evidence available on record which is enough to establish the charge, it can, after recording reasons, which are of course justiciable, dispense with the inquiry in the interest of expeditious conclusion of departmental proceedings. Courts can always re-examine the reasons assigned by the departmental authority for dispensing with the requirement of regular inquiry and if such reasons are not found cogent and legally sustainable, the Court has all requisite powers and is not debarred from sending the matter back to the department to hold a regular inquiry ...."
In the case in hand, we find that no cogent and justiciable reasons has been assigned for dispensing with the regular inquiry. In 2009 SCM R 329, it was observed that, "when allegations required explicit proof, then holding of inquiry could not be dispensed with". It is obligatory upon the respondent to have conducted a regular departmental inquiry, when as per assertions made in the memo. of appeal, allegations have been denied by the appellant, but it has not been done. In the case reported in 2009 PLC (CS) 19 (Supreme Court), it has been held that, "... In case of imposing major penalty principles of natural jus4ce required that a regular inquiry was to be conducted in the matter and opportunity of defence and personal hearing was to be provided to the civil servant proceeded against, otherwise, civil servant would be condemned unheard and major penalty of dismissal from service would be imposed upon him without adopting the required mandatory procedure resulting in manifest injustice". In yet another case as reported in 2008 PLC (CS) 921. it was observed that, "no major penalty could be imposed on a Govt. servant unless his guilt was properly inquired into by appointing inquiry officer or an inquiry committee within the purview of Rule-5 of the Efficiency and Discipline Rules, 1973". In this respect reliance is also placed on the cases as reported in 1993 SCM R 1440, PLD 1994 SC 222, 1996 SCM R 802, 2002 SCM R 57 and 2003 SCM R 207.
Despite our repeated directions, neither the proceedings of the inquiry nor the report, if any conducted/prepared, has been placed before us for our perusal, which goes to show that no regular departmental inquiry was ever conducted; hence, valuable right of the appellant to participate in the inquiry and to defend himself has been jeopardized. Sufficient' time was provided to the respondents to bring the video clippings of the witnesses, who allegedly recorded their statements, but the respondents have failed to show the same to us to the Court to testify such statements, as such, we are unable to agree with the respondents that the witnesses actually came forward and recorded their statements before the authority. Only photocopies of certain statements have been placed on record along with the comments by the Respondents-1 & 2, authenticity/veracity of such statements could only be possible when they were examined during the inquiry, which has not been held in this case, therefore, such statements cannot be relied and made basis for imposing major penalty upon the appellant.
Here, it is also noted by us that the respondents-NH&MP have also failed to bring on record what punishment was imposed upon IP/SPO Shahid Abbas Gilani, who was the main culprit and upon whose alleged instigation, appellant did commit wrong, not proved through inquiry.
6. In view of what has been discussed above, we are of the considered opinion that the appeal merits consideration and it is allowed accordingly with directions to the respondents to reinstate the appellant in service with full back benefits.
7. No order as to costs. Parties be informed accordingly.