Tariq Mehmood Khoso, Member. The instant appeal has been preferred by the appellant against the impugned original order dated 08.01.2022 and the appellate order dated 30.03.2022 passed by Respondent No. 03 and the Addl. IGP, Establishment Sindh, Karachi respectively.
2. Brief facts of the case are that the appellant while being pointed as SHO at Police Station B- Section Dadu, arrested different accused persons upon recovery of raw material of Gutka, Supari, Mawa on 22.09.2020 and 25.11.2020. Such FIRs were registered under crime Non.85 & 112 of 2020 at the same PS. After investigation, both the cases were challaned in the Court and according to pleading the appellant' made entries of the recovered case properties in malkhana register. The recovered properties of both the cases were handed over to WHC namely Ghulam Sarwar Panhwar for safe custody. Subsequently, the 'appellant was suspended on 23.03.2021 by SSP Dadu.
Afterwards, he came to know that some of the recovered properties were missing/misappropriated by the same WHC and others, hence, he after visiting the police station and observing shortage of the recovered properties, immediately narrated such facts to DSP city through his Mobile phone on 08.05.2021. SHO Ghulam Hyder Panhwar and WHC Khuda Bux Panhwar kept entries in Roznamcha register against each other with regard to misappropriate properties. These case properties were not misappropriated during the posting tenure of the appellant at the PS. The appellant also informed SSP Dadu. Thereafter, he filed an application before the Court of Sessions Judge, Dadu for impartial the enquiry into the matter. The Circle Officer, Anti-Corruption Establishment Dadu, in his inquiry report No. CO/AC1/2021/2136 Dadu dated 31.08.2021, recommended for placing the matter before ACC-II, Hyderabad against the SHO and two WHCs for permission to arrest them. The appellant was not found guilty in the said enquiry. The DIGP Hyderabad Range, constituted three members Committee and they in their detailed enquiry report recommended departmental action against the delinquent police officials except the appellant. Despite that the Respondent No. 4 issued show-cause notice to the appellant on 24.06.2021 which was not served upon the appellant but he collected the same unofficially and replied the same and denied the allegations levelled against him. Ultimately, the Respondent No. 3 awarded major penalty of dismissal from service to the appellant vide impugned original order dated 05.01.2022. The appellant assailed the said order in departmental appeal to the Respondent No. 02 which was rejected vide appellate order dated 30.03.2022, by Addl. Inspector General of Police, Establishment Sindh, Karachi, thus, the appellant has filed the instant service appeal.
3. The Respondent No. 03 in his statement has submitted that the appellant while being posted as SHO PS B-Section, Dadu was placed under suspension and was issued show-cause notice dated 24.06.2021, on the allegations of misappropriation/Shortage of the case properties in FIR Nos.85/2020 & 112/2020 of PS B Section Dadu. During his tenure of posting from 15.09.2020 to 22.03.2021, as SHO P.S. B Section, Dadu, various WHCs remained posted at the PS, but none of them took over the charge of the properties. As a result, the quantities of these cases were found less/short, as compared to the recovery memos. Being SHO it was his responsibility to intimate about the incident to the concerned Court as well as his senior officers, which revealed that case properties were taken away with his collusion/he deliberately remained silent. In order to probe the matter, SDPO Drigh Bala at Johi was nominated as an enquiry officer vide order dated 24.06.2021, he returned the papers with remarks that he had submitted his findings vide letter dated 26.06.2021, substantiating the charges against the appellant, but he had no faith over his enquiry Accordingly, Mr. Nazeer Hussain Khoso, DSP Complaint Cell, Dadu was nominated as enquiry officer vide dated 05.07.2021, he furnished his findings vide dated 21.08.2021, wherein he held the appellant guilty of the charges and recommended major punishment. Meanwhile, another enquiry report was received on 22.12.2021 from IAB CPO, Sindh Karachi, conducted by DIGP Traffic Licensing and Training Sindh, Karachi along with recommendations for initiating departmental action against the appellant. The appellant was called in OR on 05.01.2022, he was heard in person and the Respondent No. 03 also Perused the relevant departmental file and related material. The allegations were of very serious nature and were substantiated by different enquiry officers especially by DIGP (L&T) Sindh, Karachi. Being found guilty, the appellant was awarded major punishment of dismissal from service by the Respondent No. 03 vide order dated 05.01.2022. The appellant preferred an appeal to the IGP Sindh Karachi, Respondent No. 02, his appeal was rejected vide order dated 30.03.2022, by Addl. IGP Establishment, Sindh, Karachi.
4 The Respondent Nos.02 & 04 in their parawise comments/statement have taken almost the same stance as of Respondent No. 03. While the parawise comments filed by Respondent No. 02 have been adopted on behalf of Respondent No. 01.
5. The learned counsel for the appellant has mainly contended that the subject case properties were seized in two FIRs which were handed over to the Head Moharar of the PS; such entries were made in the relevant record of malkhana; the appellant was not the custodian of the properties; the enquiries against the appellant were not conducted in accordance with Sindh Police (E&D)
Rules, 1988; neither the appellant was given right of cross-examination of the witnesses examined during the enquiries nor he was afforded an opportunity of defense; the appellant was riot held guilty in the enquiry conducted by the Anti-Corruption Estt: Dadu; no final show-cause notice was issued prior to imposition of major punishment of Dismissal from Service. He has relied upon the case laws reported as 2023 PLC (C.S.) 928 and 2010 SCMR (sic).
6. The learned Asst. AG Sindh has contended that the appellant was found guilty in four successive departmental enquiries, hence, has rightly been awarded major punishment of Dismissal from Service; the proper procedure was adopted prior to pausing of the original and the appellate orders, hence, the instant appeal merits no consideration.
7. The charge against the appellant was that the case properties seized in FIR Nos. 85/2020 & 117/2020 of PS B Section Dadu were found short (71 bags and one battery of the Truck from the case property of Crime No. 85/2020 and 02 bags from the case property of Crime No.. 112/2020) as compared to their recovery memos. The appellant being SHO of the PS at the relevant time did not inform the trial Court and his high-ups within time regarding the said shortages. Thus, it transpires that either these were taken away with his collusion or he deliberately remained silent. These allegations have been rebutted and denied by the appellant in his reply to the show-cause notice.
The set of allegations, and their denial have given rise to a factual dispute.- In such situation holding of regular enquiry was necessary. It had not been established during any of the enquiry that on what particular date, by whom the case properties were taken away and on that particular date who were posted at PS B section Dadu as SHO and Head Moharar. Without establishing that the appellant was posted as SHO on that particular date when some portion of the properties was taken away from the PS with his connivance, consent or knowledge, the impugned final 'order of imposition of major punishment of Dismissal from Service could not sustain.
8. The main ground as urged by the learned counsel for the appellant is that no regular enquiry was conducted in accordance with Sindh Police (E&D) Rules, 1988 and right of cross-examination was not given to the appellant prior to imposition of the major punishment. We have perused all the four enquiries conducted by (1) DSP, Drigh Bala @ Johi, report dated 26.06.2021, (ii) the committee comprising upon Inspectors Complaint Redressal Cell, Hyderabad Range, and Chairman Committee, Complaint Redressal Cell, Hyderabad Range report dated 29.06.2021, (iii)
DSP Complaint Cell, Dadu report dated 21.08.2021 and (iv) DIGP, Licensing and Training Sindh, Karachi report dated 16.12.2021 which reveal that admittedly, the right of cross-examination and of leading defense was not given to the appellant, hence, it has rightly been pointed out by the learned counsel for the appellant that no regular enquiry was conducted. Apart from these enquiries an enquiry was conducted by ACE, wherein permission was sought to initiate legal action against the delinquent officials named therein but there is nothing on record to show that whether such permission was accorded or otherwise and consequent thereto a criminal case was registered or not.
9. It is settled law that where the disputed facts are involved holding of regular enquiry is necessary. In this regard reliance can be placed in the case of Nawab Khan and another v.
Government of Pakistan through Secretary, Ministry of defence, Rawalpindi and others, 1994 PLC (C.S) 323, the Honourable Supreme Court of Pakistan has held that, "So if the charge is founded on admitted documents/facts, no full-fledged inquiry is required but if the charge is based on disputed questions of fact, a civil servant cannot be denied a regular enquiry, as the same cannot be resolved without recording evidence and providing an opportunity to the parties to cross- examine the witnesses."
10. The perusal of case laws cited by the learned counsel for the appellant shows that in case of Federation of Pakistan through Chairman Federal Board of Revenue FBR House, Islamabad and others v. Zahid Malik, 2023 PLC (C.S.) 928, the honourable Supreme Court of Pakistan has held that: "In a regular enquiry, it is precondition that an evenhanded and fair opportunity should be provided to the accused and if any witness is examined against him then a fair opportunity should also be afforded to cross-examine the witnesses." And in case of Muhammad Abdul Moied v. Government of Pakistan through Secretary, Ministry of Housing and Works and others, 2010 SCMR 1546, the Honourable Supreme Court of Pakistan has held that: "This Court more than once, has reiterated the view that for awarding a major penalty of dismissal from service and in case where documentary evidence was lacking, a regular inquiry is called for."
11. A similar case of misappropriation of property reached the Honourable Apex Court in case of Muhammad Naeem Akhtar v. Managing Director Water And Sanitation Agency LDA, Lahore and others, reported as 2017 SCMR 356, wherein Honourable Supreme Court has been pleased to held as under: "In the circumstances, the appellant was apparently punished for misappropriating property of WASA but without charging him with the same or confronting him with the adverse material sustaining the allegation. To our minds, it would be lawful, appropriate and fair that a regular enquiry is conducted into the extent of responsibility of the appellant for his alleged misconduct and if culpable, the lawful penalty that may be imposed on him:"
12. Since we have concluded that the impugned orders could not sustain even on the sole ground of non-holding of regular enquiry, thus, discussion of rest of the merits of the case are intentionally being refrained here.
13. Therefore, the instant appeal is allowed. The original and appellate orders dated 05.01.2022 and 30.03.2022 are set-aside. The appellant is reinstated in service. The matter is remanded back to the competent authority with the direction to conduct a regular enquiry against the appellant in accordance with the provisions of Sindh Police (E&D) Rules, 1988 and afford him an opportunity to cross-examine the witnesses examined against him and to lead defense, if he desire so and then pass an appropriate order on the basis of the outcome of the said enquiry. The regular enquiry should be conducted and concluded within a period of 60 days from the date of receipt of this judgment. So far the payment of the benefits of out of service period is concerned, same should be decided by the competent authority on the basis of the outcome of the regular enquiry. The office is directed to consign the copy of this judgment to the quarters concerned for compliance.