' KR. ABDUS SAMAD (MEMBER). - The appellant has made this appeal against Government Order No, S&GAD/P-1/397-457/78, dated 29th June, 1978, under section 4 of the Azad Kashmir Service Tribunals Act, 1975, whereby the appellant has been compulsorily retired from service by the respondent.
' By virtue of this appeal, the appellant prays for setting aside the above-impugned order and restoration on to his original post with full pay and other benefits.
2. Briefly the facts of the case are that the appellant was serving as Deputy Inspector-General of Police under the Respondent-Government on 15th November, 1977, the appellant was sent on forced leave without assigning any reasons. This action against the appellant was announced in a Press Conference by the Chief Executive.
' Two Commission of Inquiry were set up by the Government under section 3 of the Commission of Inquiry Act, 1956, for the purpose of Inquiry and probe into the persistent public allegations of gross misuse, misappropriation, embezzlement, misconduct, nepotism, favouritism committed in respect of grants, funds and departments. The Police Department was also included in perview of Commission of Inquiry No, 2 headed by Brig. Muhammad Arif Khan. Relevant Order issued by the respondent is Annexure "A".
3. The appellant was once summoned by Lt.-Col. Muhammad Safdar Khan (Member of Commission) and asked' him to submit his written reply to certain allegations against him.
Accordingly the appellant put in his reply on 25th February, 1978. He denied the truth of the allegations, saying that these were cooked up by Sardar Said Hassan Khan, D. I.-G. (C) who was offended with the appellant for many reasons. Some of those reasons were mentioned by the appellant. The said D. I.-G. Was taking advantage of his relations with the Chief Executive. He had submitted a false report to the Chief Executive against the appellant vide his letter No, 34/SB/77, dated 10th November, 1977, without the knowledge of the I.-G. P. And the Chief Secretary and had thus succeeded in getting the appellant sent on forced leave. After filing the above-mentioned reply, the appellant never heard anything about the matter. The Commission did not record any evidence in appellant's presence, nor did it give him an opportunity of defending himself.
4. On 27th April, 1978, the Secretary Services and General Administration issued a show-cause notice to the appellant under rule 6 (b) in which it was stated that after considering report of Commission of Enquiry No, 2, the competent authority had decided to serve show-cause notice under rule 6 (b) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, and Annexure "B" is reproduced below for ready reference.
' No : S&GAD/7506/78 ' SERVICES AND GENERAL ADMINISTRATION DEPARTMENT, AZAD GOVERNMENT OF THE STATE OF JAMMU KASHMIR, MUZAFFARABAD ' To Dated 27th April, 1978.
' Mr. Ali Afsar Khan, ' D. I.-G. Police (on leave)
' Upper Plate, ' Muzaffarabad.
' Subject :-Show-cause notice.
' The competent Authority after considering the report submitted by Commission of Enquiry No, II as far as it pertains to you has decided to serve show-cause notice under rule 6 (b) of Azad Jammu and.
' Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 upon you, Mr. Ali Afsar Khan, D. L-G.
Police (on leave) the following charges :- (2)
(3)
(1) That for construction of your house at Muzaffarabad you took away 208 planks and 80 ballas of timber meant for despatch to other under-construction buildings of Police Department, from Police Lines to the Site of your house under construction. That you illegally cut 6/ 7 `RETHA' trees from the house of Mr. Atta-Ullah a clerk of your department. That you utilized skilled as well as unskilled police personnel during construction of your house.
(4) That you allowed sub-standard recruitment of constables in the Police Department inasmuch as you condoned cases of 70 recruits during your tenure as D.
1.-G. From 4/76 to 10/77.
(5) That you gave irregular and against rules promotions to many persons of your family to the rank of Head Constables and A. S. I's. Some of them are : Mr. Zaffar Hussain, Mr. Nasir ' Ahmed, Muhammad Riaz and Sharaf Din of District Muzaffarabad, Poonch and Mirpur.
(6) That you made frequent postings without justification with the result that this action of your brought bad name to the department and it was assumed that you made postings on 'Contract basis'.
(7) That you misused the Government Vehicle for private purposes.
(8) That there was an extraordinary re-appropriation of Rs, 1,75,000 over and above the normal grant of Rs, 33,250 for secret expenditure during the years 1975-1977. Besides, sum of Rs, 30,530 and sum of Rs, 17,091.91 were also spent out of Police Welfare Fund and Imprest Account of the C. P. C , respectively, for secret purposes. No account has been maintained. Failure to maintain a detailed record of expenditure leads to the assumption that the fund might have been misused or embezzled by you.
(9) That you have acted as a party in the misuse of three (at times 4) Police vehicles when you signed for the user i. e. I.-G. P. As the I.-G. P. Was, firstly, not authorised to use more than one vehicle at a time and, secondly, when he happened to be on casual leave or on holidays, he could not use the vehicle.
(10) That you have not only been careless in verifying entries but also signed a certificate for Rs, 94,290 in the capacity of I.-G. P. Is, therefore, not valid and it can be assumed that the expenditure is irregular and might have been embezzled by you.
2. In the light of above charges you appear to be guilty of misconduct under rule 6 (b) of Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 and the competent authority proposes to award the penalty of dismissal from service and as such you are directed to show cause why you should not be dismissed from service as laid down in the aforesaid rules.
3.You are required to submit your reply to the undersigned within 7 days of the receipt of this show- cause notice. If your reply is not received within the specified period it will be presumed that you have accepted the charges levelled against you and the case will be decided accordingly. After the issue of show-cause notice you are not required to be heard in person under rules. However, to meet the ends of justice you can be heard in person for any clarification with regard to charges, if you state so clearly in your reply to this notice.
(Sd.)
(Khalil Ahmed Qureshi) Secretary, Services and General Administration Department."
5, The appellant replied the show-cause notice, on 4th May, 1978 and also submitted another reply on 16th May, 1978 denying all the charges levelled against him and demanded proof of these charges. Appellant's replies on Annexures "C and D" are on the file, and will be referred to at the proper state of this judgment.
6. The appellant was granted interview by the Chief Executive, and was compulsorily retired from service vide impugned order Annexure 'E' and reads as follows :- "SERVICES AND GENERAL ADMINISTRATION DEPARTMENT, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR, MUZAFFARABAD ORDER "The President Azad Jammu & Kashmir after considering the report of Commission of Inquiry No, II, show-cause notice given to and reply to the charges contained in the show-cause notice submitted by Mr. Ali Afsar Khan and finding him guilty of misconduct and corruption under rule 6
(b) and (c) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, is pleased to order the compulsory retirement of Mr. Ali Afsar Khan, Deputy Inspector-General of Police, Azad Government of the State of Jammu and Kashmir under rule 4 (b) (ii), with immediate effect.
(Sd.)
S. Muhammad Ibrahim Khan Deputy Secretary, Services and General Administration ' No, S&GAD P4/397/78, dated 29th June, 1978.
Copy to :-
(1) Secretary to the President, A J & K Government,
(2) Principal Secretary to the Chief Executive A J & K Government.
(3) Private Secretary to the Chief Secretary for Information of the Chief Secretary.
(4) All Secretaries to the Government of A J & K.
(5) All Heads of Departments A J & K Government,
(6) Accountant-General of A J & K Government.
(7) Inspector-General of Police A J & K.
(8) Mr. Ali Afsar Khan c/o Inspector-General of Police A J & K Government.
(9) Deputy Secretary Election Cell.
(10)Superintendent, Government Printing Press for publication in the Government Gazette.
(Sd.)
Deputy Secretary Services and General Administration."
7, The appellant submitted a review petition to the respondent vide Annexure 'F' but with no success.
8. The appellant prays for setting aside of the impugned order on many grounds. Mainly the grounds of appeal are that the Commission of Inquiry No, 2 had no authority to deal with the civil disciplinary matters and the order under appeal could not be based on the report of the Commission. These proceedings were ex parte, secret and whimsical. Appellant was never heard and given no chance of cross-examining the witnesses deposing against him. The adverse material on record was not shown to him. The report being in violation of natural justice, has no value. That the Commission of Inquiry No II could not be set up under the Efficiency and Discipline Rules of 1977, and action under these rules can be taken only after following the same.
9. Finally, the appellant has challenged the impugned order on many other grounds as given in the memorandum of appeal.
10. The Additional Advocate-General counsel for the respondent has denied the appellant's grounds of appeal. He has made a specific denial in para. 9, in the following terms. Para. No, 9.-The Government order appealed against was rightly issued as the appellant was found guilty of serious charges. He has prayed for dismissal of the appellant's appeal with costs.
11. Before proceeding further with the judgment we feel inclined to refer to the reply to the allegations against the appellant as Annexure "C". The said reply reads as under :- Subject : Reply to the allegations against Ali Afsar Khan, D. I.-G. Police on lease.
"Kindly refer to your letter No, S & GAD/7506/78, dated 24th April, 1978 and itemwise reply as under :- 1.1. The timber that of the Deodar was purchased during 1974-75 for the use in construction of Police Stations etc. It was then worked and converted into doors and windows in the Police Lines which were later on transported to various Police Stations outside Muzaffarabad. During this whole process Mr. Abdul Hassan Sub-Inspector (quartermaster) of reserve Muzaffarabad Police Lines remained incharge of the project.
1.1. My house was constructed during 1968-69 and extension repairs carried on in 1976 and the timber used was that Kail. The record of Police Lines would reveal that during the period no Balla& and planks were on their charge. As such the allegations levelled against me for taking away 80 Ballas and 208 planks becomes baseless. The record will be shown when heard in person.
1.2. I did not cut the trees from the house of Mr. Atta Ullah. The house of Mr. Atta Ullah is occupied by-S. Zahoor Hussain Shah Superintendent of Police and the fact can be verified from him.
1.3. It is incorrect that I used skilled/unskilled police personnel for construction of my house. Mr. Ali Zaman Malik Deputy Superintendent Police Lines and many other Police Officers from police lines will prove my statement. The relevant record of the police lines can be produced as and when heard in person by the competent authority which will unveil the truth.
1.4. D. I.-G. Police is empowered by the Police Rules para. 12.15 Vol. II to fix a physical standard for initial recruitment as well as empowered to relax.
1.5. It is alleged that many promotions of Head Constables and Assistant Sub-Inspectors police were made against rules benefiting own family. It may be pointed out that the said promotions were made against clear vacancies on merits and by selection in consonance with the Police Rules para.
13. 1 (1) and (2). The copy of the promotion order is enclosed. The very fact that the beneficiaries/ promotees belong to Districts Muzaffarabad, Poonch and Mirpur clarifies that they are neither my relatives nor my family is spread over whole of Azad Kashmir and Pakistan. Similar promotions were made by my predecessors and successors vide Orders No, 24 of 5th May, 1975 and No, 292 of 3rd August, 1976 (Copies enclosed).
1.6. Transfers/postings of police officers are made by the Inspector-General Police himself and the staff officer has just to issue the orders. The table attached will indicate that the pace of postings remained quite stable and slow during the period when I remained the staff officer. This policy was appreciated all over Azad Kashmir, and no Safarish' was encouraged. The allegation that the postings were made on 'contract basis' is in fact a challenge to my known spottess past career. I say with full confidence that no individual of police department or public personnel can witness wherein I ever involved in bribery or money making affairs.
1.1. The Government vehicle was never misused. The log book of the vehicle will speak that the Government interests and the economy has always been kept in view and at no occasion this principle was overlooked.
1.8. The Secret Fund is entirely the privilege of the Inspector-General Police vide Government Order No, 435/50. In this case the amount was inappropriate by the Inspector-General Police with the consent of the Finance Department and by the approval of the Chief Secretary/Home Secretary and after proper Government orders. The secret fund account is maintained for the current financial year only and after the expiry of the financial year, a certificate is furnished by the Inspector-General Police regarding the utilization of the funds to the Prime Minister Azad Kashmir for counter-Signatures. The same procedure was followed by the Inspector-General Police in this case. This certificate is available with the Central Police Office. I do not come in any way regarding the utilization of the funds because the amount is drawn from the bank by the cashier/accountant of the Central Police Office and is disbursed directly by him under the orders of the Inspector- General Police. The amounts of Rs, 30,530 and Rs, 17,091/91 allegedly having been spent out of Police Welfare Fund and the imprest account of Central Police Officer for secret purposes does not hold true as per record held in the Central Police Office. This amount of welfare fund might have been spent by the Chairman, Welfare Funds and can be verified from his records wherein I cannot be held responsible. The relevant record will be produced when heard in person by the competent authority. The certificates of Secret Funds expenditure are directed for 1975-77 as provided by the appellant. Attested true copies on the file page 22 are reproduced below :- "OFFICE OF THE SECRETARY-GENERAL AZAD KASHMIR GOVERNMENT CABINET ORDER NO. 435/50, Dated 5-11-50 ' The Azad Kashmir Government is pleased to order that the Secret Service Grant shall be operated by the Inspector-General of Police who will be competent to draw lump sum amount according to requirement. After utilization he will furnish a certificate that the amount drawn has been disbursed to the concerned person or persons and this certificate shall be countersigned by the Minister for Police Department. The names of payees shall not be required to be disclosed and the expenditure shall not be subject to audit.
(Sd.)
Deputy Secretary-General Cabinet Branch No, 3182-86/Cab/50 Dated 13th November, 1950." {{URDU TEXT}} No : 5483/PMS/76 Dated 29th December, 1976.
' Note : In this year I was D. D.
0. C. P.
0. For 3 months only from 17th March, 1976 to 30th June, 1976.
' The above orders show that the Secret funds were utilized by I.-G. P. And countersigned by the Minister Incharge of Police Department. The appellant got the order countersigned by the Prime Minister when he was not 1. G. P.
1.9. The vehicles were used by the Inspector-General Police for himself and for secret service purposes. Log Books were written by the incharge driver Mr. Mumtaz Sub-Inspector Police and countersigned by me. The Staff Officer is responsible to sign log books as has been the past practice. Log books held in the Central. Police Office can be seen. If the vehicles were ever misused or used for private purposes and the amount was not deposited under rules, the officer using the vehicles should be held responsible. As far as the log books reveal, the vehicles were used in the interest of the Government which can be verified.
1.10. The account to amounting Rs, 94,290 were duly verified by the Inspector-General Police on presenting the same to him by the accountant/cashier of the Central Police Office, and I was asked to sign on his behalf which was also countersigned by the Prime Minister Azad Kashmir. As stated vide item No, (8) above, the transaction/utilization of the secret funds have never been made through me so the assumption of embezzlement is not correct. In the light of the above explanation, the allegations levelled against me are baseless, unfounded and biased, and do not amount to misconduct. It is prayed that accepting my explanation, the case may kindly be filed.
3. It is further prayed that to meet the ends of justice, I may be given an opportunity to be heard in person by the competent authority so that complete record with facts and figures is presented and explained. It is submitted that the allegations be proved lawfully before proceeding further.
4. At the end it will not be out of place to mention that these allegations have adversely affected my hard earned good reputation, principle of honesty, dedication to the mission of serving the country at large and uprightness during the 14 years of police service in Azad Kashmir. Not only all the present districts heads of administrations of districts Azad Kashmir but the serving personnel, common man and notables of the State will witness about my spotless past career. Throughout my service I could construct only one house after getting 45,000 house building advance which is still incomplete and has been time and again mentioned in the above allegations. Hoping for justice. With regards, Yours Sincerely, (Sd.)
Ali Afsar Khan D. I.-G. Police (on leave) Upper Plate, Muzaffarabad.
Dated 4th of May, 1978 End : 9 Copy forwarded :- To ' The Inspector-General of Police Azad Kashmir for favour of confirmation of procedure, in force in the C. P.
0., regarding item No, (8) & (9) above.
(Sd.)
Ali Afsar Khan D. I. G. Police on leave."
12. Annexure "D" is another explanation submitted by the appellant in his defence and is also mentioned for appreciation of the above charges levelled against the appellant.
"EXPLANATORY NOTE SHOWING ITEMWISE CLARIFICATION ALLEGATION AGAINST ALI AFSAR KHAN D. I.-G.
P.
Sir, ' With reference to my reply to show-cause notice submitted on 4th May, 1978 ; the Secretary S&GAD was kind to show me the enquiry report file except noting side, against me, it came to my knowledge on the said date that some evidences were produced against me before the Commission. In rebuttal of the above-quoted evidences the applicant submits inter alia the records as follows i. e. Item-wise and preliminary. In the presence of Civil Servants Act, efficiency and discipline rules, K.S.R., Police Rules and other service laws, the Commission of Enquiry No, 2 report/recommendation becomes unlawful and hence untenable. The reasons are quite clear. If at all it is conceded for the sake of arguments that the Commission was empowered, even then the so-called enquiry made by the said commission, is illegal, mala fide, void and of no legal effect as against the rights of the applicant for the reason that the Commission did not afford me the opportunity of being heard or for giving defence evidence. Neither did it allow me to cross-examine the so-called witnesses produced against me. Even they did not attach my reply to the allegations with their report. In view of these facts the enquiry report/recommendations of the Commission become null and void ab initio:- Clarification.-
(1) (i) Police Lines timber, meant for despatch to other under construction buildings of police department was that of "deodar" and kept there in the shape of ready made Doors, Windows and Ventilators. As such my taking away of 208 planks and 80 Ballas becomes absurd. A report from Q.
M. Police Lines Records is attached please. Furthermore, the evidence recorded or attached with the file by the Commission itself refutes this allegation. The evidence says that shuttering (for wood) planks/Ballas was sent to my residence. This allegation is also refuted with the records of the Q. M. Police Lines already attached with my reply, dated 4th May, 1978 which clearly shows that even in this shuttering wood there were no planks on charge but only a few Ballas in the shape of "firewood" and nothing more. They were returned vide Q. M. Receipt attached dated 30th July, 1977 for perusal please. Hence this part of the allegation also becomes untrue.
(2) The allegation on enquiry file against me is that I illegally cut 6/7 Retha trees from the house of Mr. Atta Ullah. The statement of Mr. Atta Ullah on the enquiry file against me itself clarifies that I did not cut the trees. Syed Zahoor Hussain Shah S. S. P. Then was occupying the house, will make the position clear. Neither I cut the trees nor I asked any person to do so. As such I may not be held responsible for an act which was not done by me.
(3) Allegation of using skilled/unskilled men from Lines : One statement in the enquiry file shown to be of one Gul Zaman indicates that he worked at my residence from 29th April, 1977 to 26th May, 1977 alongwith Sarwar Shah. But Daily Diary No, 12 (copy attached) shows that he was sent to I. G.
P's. Official residence on 29th April, 1977 and returned from there on 26th May, 1977 vide Roznamcha No, 11 of 26th May, 1977. These documents prove the statement of Gul Zaman to be false. Further, in the same statement it is further stated that he again worked at my residence from 5th July, 1977 to 21st August, 1977. But Daily Diary No, 15, dated 5th July, 1977 shows he worked in the C.P.
0. From 5th July, 1977 to 21st August, 1977 and sent back to lines vide D. D. No, 13, dated 21st August, 1977 copies attached for perusal please. Vide D. D. No, 14, dated 26th June, 1977 in the enquiry file it is stated that One Luqman was posted at my residence but copy obtained from the police lines indicates that some constables were sent to the C. P.
0. On guard duties. As such the so-called diary attached in the enquiry file proves to be false.
' One Abdul Sattar states that he worked at my residence alongwith Gul Zaman on 21st May, 1977.
But D. D. No, 12 of 29th April, 1977 and D. D. No, 11 of 26th May, 1977 (quoted above) clearly indicate that Gul Zaman was not at my residence on that date and as such statements of these witnesses becomes false and forged. Furthermore, D. D. Nos, 11 and 17 of 21st May, 1977 contradicts his statement further that he worked at my residence for 10 days.
' Ghulam Qadir and Sarwar Shah are shown to be witnesses against me but without any entry in the Roznamcha. Movement of persons from the police lines or police stations without entry in the D.
D. Reports becomes false and forged vide police rules para. 22.48 Vol. III.
' D. No, 28 of 30th October, 1977 shows that Sarwar Shah and Mozam Shah were sent to D. I.-G.
Headquarter for further orders. Coming to D. I. G. Headquarter is normal and official duty. Copy D. D.
No, 19, dated 19th November, 1977 in the enquiry file said Sarwar Shah is shown to have returned from D. I.-G. Headquarter but the copy of actual D. D. No, 19 dated 19th November, 1977 obtained from the police lines shows some transfers. As such their working at my residence is untrue. D. D.
No, 46 of 19th November, 1977 itself contradicts D.D. No, 28, dated 30th October, 1977 about Mozam Shah's return.
' Vide D. D. No, 19 of 19th November, 1977 some persons are shown to have been sent to me but there is no Roznamcha report, that they ever returned to police lines amply proves that the report is untrue.
' In view of the above-mentioned so-called diaries and copies of the actual reports attached by me here, it becomes clear that wrong statements/diaries were given to the Commission by somebody with some ulterior motive. Record will be personally shown to the competent authority against the persons who made these allegations against me with their ulterior motives.
(4) The Commission has accepted and police rule para. 12.15 provides a D. I.-G. P. To relax physical standard of recruitments. A D. I. G. P. Is also empowered to fix physical standard of recruitments. This was done because persons of laid down standards were not coming to the S. P. Concerned for recruitment and only course left was to make up deficiency in the already less police strength of Azad Kashmir and that was through relaxation of physical standards. This course was rightly adopted under rules for which deserve encouragement.
(5) Rules with promotions orders (copies) have already been submitted please.
(6) According to the Commissions comments, the allegations has not been proved against me.
The Commission has just made a suggestion for not making frequent postings for good of the name of the department as such this allegation be dropped.
(7) The Commission has not proved this allegation, and as such an allegation without a proof is not allegation/charge.
(8) Regarding reappropriation of funds for secret expenditure, the year-wise position is as under : - {{TABLE TEXT}} 75-76-original grants- Rs, 14,250 through reappropriation - Rs, 85,000 ' I took over the charge of D.I.-G.H.Q. On 17th March, 1976 and by virtue of this apptt. Became D. D.
0. C. P.
0. From this date. Most df the period of this financial year is 1st June, 975 to 16th March, 1976 my predecessor was dealing this funds for about 8 months and I share the responsibility for about 3i months. {{TABLE TEXT}} Year 1976-1977 Original grant ... Rs, 19,000 Through reappropriation ... Rs, 85,000 ' Total reappropriation comes to Rs, 1,65,000 and not 175,000. Copies of the certificates of the above expenditure duly countersigned by the Prime Minister of A J & K Government have already been attached with my reply earlier.
' The record has duly been maintained and is available in the C. P.
0. It has been checked by the Commission and it can be verified now from the C. P. O. If so desired please.
' The expenditure of Rs, 30,530 from the welfare fund has been incurred by the orders of the Chairman, Welfare Funds and not by me. Photostat copies of orders/receipts regarding this expenditure are enclosed which will indicate that I do not come anywhere in this expenditure.
Hence I may be exonerated please.
' As already submitted in my previous reply I submit to be heard in person for making certain clarifications alongwith records available with me please.
(Sd.)
(Ali Afsar Khan D. I.-G. P. On leave) Dated 16th May, 1977 ' Attached the copies on pages 30 to 36, and photostat Exhs. A-22, A/5, A/17, pages 37 to 50 of the file further prove the contention of the appellant in his replies Annexure "C" and "D".
' Besides the above replies, the appellant has produced affidavit, dated 8th April, 1979 and has examined the following witnesses in support of his appeal. The respondent has also examined witnesses and we refer to these witnesses for reference and convenience :
(1) Appellant's witness Abdul Hussain Sub-Inspector Quarter Master Police Lines, Muzaffarabad has deposed that he is performing the duties of Quarter Master w. e. f. 25th December, 1980, previously in 1975 and 1977, he performed these duties. In 1975, 76, 77, there was (sic) enter in the store of police lines. In 1974 timber was purchased from Forest Department for construction of Barrcks of Police Lines. His statement was recorded by Abdul Haye I.-G. P. And also before the Commission.
The appellant did not use the timber of Police Department in his house.
(2) Shandad Accountant C. P.
0. Has deposed that he worked as Accountant in the C. P.
0. From 1st June, 1974 to 9th November, 1981. The account about secret service funds is not regularly maintained in the cash book, as this fund is not Auditable. Receipts of Expenditure are put to I.-G. P.
And he after verifying destroys these receipts. Signs the Certificate and put up the same, performs the functions of D. D.
0. With respect to these Secret Funds. On the orders of I.-G. P. The staff officer is competent to carry out the expenditure and signs the necessary papers. Photostat Exh. A. A. On the file shows that, below the signatures of I. G. P. He initialled the Exh. P. A. As the same was prepared by him. Ali Afsar Khan the D. I.-G. Signed on behalf of the I.-G. P., as he was D. D.
0. Of the C. P.
0. Before the preparation of this certificate the I.-G. P. Sent to him and the appellant signed on the orders of I. G. P. The same has been countersigned by the Prime Minister. During the absence of L-G.
P. From Headquarter, the appellant used to perform the duties of I.-G. P. Secret
(3) service Funds were enquired into by Commission and he was examined there also. The appellant was present there at that time. During his period of service as D.I.-G. Signed such papers on Exh. A. A. The witness has put in affidavit, dated 7th August, 1982 to the effect that no amount of Secret Service Fund has been embezzled. Appellant's witness No, 3 Mr. Sardar Khan has deposed that Exhs. C/1 and C/2 pertain to the promotions of Constables.
(4) Syed Muhammad Kabir Shah Head Constable as witness for the appellant has deposed that he is working as Murharrir in Reserve Police. The Registrar Roznamcha from 21st May, 1977 to 30th October, 1977 is destroyed and he cannot produce the same. Roznamcha 19th November, 1977 is also destroyed. This record has been destroyed by the orders of S. P. Reserve Police. As per rule this record is destroyed every 2 years.
(5) Muhammad Aman S. P. Senior Grade Police deposed that he had not brought Roznamcha 21st May, 1977 to 19th November, 1977. Shafiq Hussain Sub-Inspector, Account Branch C. P. O. Has deposed about the Certificate Exh. A. A. Regarding the amount of Rs, 94,250 of Secret Service Fund.
Besides he has admitted that Ali Afsar was never I.-G. P. Abdul Qudus Head Clerk C. P.
0. Produced the record about the transfers of Sub-Inspectors and Inspectors.
(6) Appellant's witness Muhammad Shafiq Accountant has deposed that according to Log Book brought by him, the vehicle used by the I.-G. P., used to be signed by I.-G. P. After the posting of D. I.- G. As D. D.
0., he used to sign on behalf of the I.-G. P. But to this practice, the predecessors and successor of the appellant used to sign the log books on behalf of. I.-G. P. The record of welfare fund according to the witness founds that big amounts have been drawn and recovered by Police Officer and officers. Said Hassan D. I.-G. And only once Aurang Zeb mainly drawn these amounts and the Account of Secret Funds and welfare funds is different. According to the statement Muhammad Aman Khan appellant witness Exh. A/23 relates to the posting of D. I.-G's. The appellant has personally deposed before this Tribunal and we refer to his evidence dated 3rd August, 1982.
' The appellant deposed that he was appointed as A. S. P. In December, 1964, and in December, 1965, he was deputed for training in Police Academy Sarda East Pakistan. There he passed the examination with distinction and was awarded alround best P. S. P. Probationer cup. After different promotions he was promoted to the rank of D. I.-G. On 9th May, 1975. In 17th March, 1976 to 15th November, 1977 he performed the duties of D. I.-G. Headquarter. He was sent on forced leave, and on the basis of secret enquiry he was compulsorily retired from service on 29th June, 1978. On 22nd December, 1977, the Government appointed Commission of Inquiry No, 2 for probing into the police welfare fund. Annexure 'A' permits the Commission only to probe in the police welfare fund and not Secret Service Fund, Mosque, sports and other funds and D. I. G. Headquarter is the D. D.
0. For this fund. As D. L-G. Crimes he worked for 9th May, 1975 to 16th March, 1976 and by virtue of his post he was chairman of welfare fund. The allegation of police welfare fund against him is baseless. There is no proof of misappropriation or embezzlement against him. The reference to welfare fund as made by Inquiry Commission pertains to Said Hussain D. I.-G. He was not supposed to maintain accounts. All the allegations of police welfare fund against him are baseless, same is the position with secret funds. All the expenses were incurred with the permission of I.-G. P. He is not supposed to divulge into the Secret of State, as the funds of Secret Service were used and utilized for the purposes as devised by the Government, vide Cabinet order of 1950. He signed the certificate on behalf of I.-G. P. And had no ulterior motive to do the same. The Commission of Inquiry never asked for his defence. The appellant in his evidence has denied truth of the allegations against him. He has already submitted his replies to the respondent. He has admitted his signatures on the certificate as D.
1.-G, saying that the necessary certificate was under type and the I.-G. P. Was just about to leave for Islamabad and he signed the certificate on the orders of I.-G. P. Said Hassan D. I.-G. As D. D.
0. C. P.
0. Had already spent a huge amount. The Cabinet order of Azad Government in 1950 is very clear and the I.-G. P. Is authorised to spend this amount. This function is quite secret and we believe this mainly concerns the security of. Our Area and cannot be challenged without any proof.
' He constructed his house in 1968-69 whereas the timber of the police department was purchased in 1974. The allegation taking away the timber of the police department in 1977 is baseless. The Commission of Inquiry expressed personal views. He has produced Exh. A/41 whereby the timber on 10th October, 1976 has been taken in charge by the police office. The allegation of cutting trees and shuttering from the house of Atta Ullah is also unfounded. No proof was demanded by the Commission. The affidavit Exh. A/42 from Constable Muhammad Ismaeel peon of S. S. P. Has been produced by the appellant and the same contradicts the charge against the appellant. Besides Atta Ullah owner of the rented house was examined by the respondent on 5th May, 1983 and he made it clear that the allegation of cutting and selling trees by the appellant is baseless. The appellant has denied the allegation of utilizing the service of police personnel in his house. All the record prepared in this connection by the Government is forged. The original record in spite of orders of the Tribunal has not been produced. Police officers have already deposed that this record is being destroyed after lapse of 2 years. Regarding the recruitment of constables he exercised his power and discretion according to the Police Rules, and thereby no violation was made by him. The A. S. I's appointed are not related to him. Orders of transfer were issued by him and his predecessors, and successors have done the same. The ratio of transfers and appointments made by the appellant is quite clear to that of other officers of his rank. He never sought the service of subordinates for his private purposes. I.-G. P. And other officers use the vehicles of the department for official purposes. As D. D.
0. He has been signing the log books as was done by his predecessors. At present this practice is followed in the police department. Vehicles of the police department are used for Secret Service also. He cannot disclose the nature of these secret duties for the reason that Security of the Area is involved. Moreover it is not fair to ask him for details of secret Service. These Services are essential and have to be honoured. The Commission of Inquiry has acted against terms of reference of Notification No, 133 of 22nd December, 1977. The said Commission was asked to conduct probe in the police welfare funds and not secret service funds. His condemnation by the Commission is without any proof. The evidence against him was recorded in his absence. The question of cross- examining these witnesses does not arise. Out of 10 charges against him he was asked to explain only 2 charges "when called by the Commission." The statement recorded shows that none of the members of the Commission recorded these statements. Somebody else has recorded the statements in his absence. The record of the evidence of witnesses recorded in presence of the appellant has not been attached with the file because that record is in favour of the appellant. The Sub-Inspector Sikander Hayat has recorded the statement of witness appearing against the appellant. The appellant had registered a case under Ani-Corruption against this subordinate. The same subordinate is inimical towards the appellant. All the documentary proof prepared by the Commission against the appellant is based on photostat. No original record was made available to the appellant. S. M. Hahiy Inspector-General also conducted enquiry and Mr. Shehdad Accountant and other officers were examined. Shehdad Khan Accountant produced affidavit Exh.
A/45. After enquiring the I.-G. P. Exonerated the appellant. The same record was got summoned by him by the Tribunal, but to his bad luck the relevant record has not been produced by the Government. He was granted personal hearing by the Chief Executive, and the submissions made by the appellant were not considered and given any weight. He prayed for defence before the Chief Executive, but the same was not acceded to and he was compulsorily retired against rules.
The Chief Executive relied on the report of the Deputy Secretary and as such this order may be treated as order issued by Deputy Secretary is in contradiction of the report of Commission. None applied mind to his explanation, replies, and submissions made to the authority on different stages of these proceedings. The major penalty against him has been suggested and recommended by the Deputy Secretary. The same was endorsed by the Chief Executive. He prays for setting aside of the retirement order, re-instatement to his original post with all back benefits. In cross-examination the appellant has denied the suggestion that he signed the Certificate Exh. P. A. For personal gain.
Besides he has denied other suggestions of respondent in cross-examination.
' The respondent's counsel examined Raja Atta Ullah retired Sub-Inspector Police, Abdul Sattar of Police department, Gul Zaman Mistri, Rangers police in rebuttal of the appellant's evidence.
' Raja Atta Ullah has deposed that the peon of Syed Zahoor Hussain Shah S. S. P. Had informed him that trees have been cut down. In this connection his relations with appellant were bitter. He had applied to I.-G. P. In this connection who conducted enquiry. The appellant nothing knows about that enquiry. From the post of A. S. P. To the post of D. I.-G. He found the appellant honest and a gentleman.
' Abdul Sattar has deposed that he worked at the private home of the appellant for a period of .4 days. He did not charge any wages. He was provided meals by the appellant. He being illiterate cannot recollect the year when he worked at the house of the appellant. This statement was recorded by Skindar Hayat of Police in the absence of the appellant. Skindar Hayat was in the civil dress.
' Gul Zaman a Mistri, of Rangers police has categorically denied any work done by him in the house of the appellant. The above evidence of the parties is helpful to appreciate the nature of these charges levelled against the appellant. In this respect, the replies Annexures C and D of the appellant and his own deposition are also material for the disposal of this appeal.
' The learned counsel of the parties have argued this appeal. We have gone through the record carefully as requisitioned by the appellant from the respondent. Besides, we have considered all the aspects of this case as a whole. The charges levelled against the appellant deserve attention, and we record our appreciation for the frank admission of the learned Advocate-General, Counsel for the respondent and that charges 1 to 9 against the appellant as given in the show-cause notice are not proved and he has argued that charge No, 10 only, is proved, rather he has laid much stress on the same.
' In view of the above frank discussion of the counsel for respondent we have to deal with the charge No,
10. In order to confirm the statement of the respondent's counsel, we have gone through show-cause notice, the replies of the appellant, the evidence of the parties, and, the arguments as advanced by the appellant's counsel. Our careful study of these factors, brings us to the irresistible conclusion that the charges Nos, 1 to 9 levelled against the appellant are not proved. These charges being baseless fall to the ground. So, the respondent's counsel has rightly conceded and made a statement at the Bar.
' Now, we are left with charge No, 10 only. The said charge has been discussed and argued by the respondent's counsel. He has laid much stress on the same charge as the same according to him concerns money matters. It is alleged by the Additional Advocate-General that the appellant as I.- G. P. Has drawn Rs, 94,290 and embezzled this amount. This charge consists of 3 parts as framed against the appellant. He has referred to. Government Order, 1950 issued by the Cabinet of A I K Government.
' The subject-matter is secret service grant. Only I.-G. P. Is authorised to operate upon these funds.
The appellant according to him posed as I.-G. P. Recommended Rs, 94,290 for this secret service fund and committed misconduct according to Civil Servants (Efficiency and Discipline) Rules, 1977.
He has been punished under section 3 of these Rules and major penalty was properly inflicted upon him for this embezzlement and misappropriation of the above secret funds. The appellant was not authorised by the L-G.P. To sign the certificates and the appellant as D.I.-G. Could not exercise the powers of I. G. P. This action of the appellant justified that order of compulsory retirement. The appellant has acted in clear disregard of departmental practice and departure on his part is unfair. Certificate needs no further enquiry and action under rule 6 of Efficiency and Discipline Rules, 1977 by respondent is justified. The appellant has been properly dealt with by the Government and no discrimination has been shown in his case. Classification in such case as that of the appellant is quite natural and reasonable. The respondent's counsel prays for dismissal of the appeal on the ground that the appellant has posed as D. L-G. And embezzled huge amount of the Secret Service Fund of the Government. In support of his arguments he has cited PLD 1980 SC 211 (213), PLD 1976 SC 538, 342, PLD 1979 SC 711 (722), PLD 1970 SC 435 (459), AIR 1955 SC 166, AIR 1953 SC 404, AIR 1958 SC 538.
' In order to justify the appellant's action with regard to charge No, 10, his counsel has contended that the allegation of embezzlement levelled against his client is without any proof. The authorities concerned from the very start of this enquiry against the appellant entertained doubts and condemned the appellant without any proof, against him. Commission of Inquiry No, 2 has based their opinion on the word assumed regarding charge No, 10, and as such assumption only cannot be a ground of major penalty as awarded to the appellant.
' The delicate nature of the Secret Service Funds does not authorise the appellant to disclose the details of the expenditure. Security of the State is involved and such agencies operate throughout the world. The Commission of Inquiry No, 2 was competent to coduct a probe of welfare funds of the police and the Secret Service Funds were not part of the terms of reference. The note of the Chief Executive on the file is also based on doubt and he also has relied on the note and recommendations of the Deputy Secretary who according to the Efficiency and Discipline Rules, 1977 was not at all nominated as Authorised Officer or Enquiry Officer in this case. Different authorities on different occasions have dealt with this enquiry and recorded notes without any proof. This method as adopted by the respondent has violated the provisions of Efficiency and Discipline Rules, 1977 and the appellant has been prejudiced. The matter was enquired into by the I.-G. P. Also and same file was not made available to the Tribunal. The Police Rules justify the action of the appellant as he alongwith the I.-G. P. Has concurrent powers. In this respect he has referred to Police Rules, Vol. I, Rule 1.1 to 7, regarding the duties of L-G. P. And D. I.-G. These powers according, to him are concurrent.
' The charge of misconduct against the appellent is baseless. In this connection intention of the appellant is very material for the proof of his allegation. With regard to the charge No, 10, no witness has been produced by the Government. In fact Commission of Inquiry No, 2 was not authorised to challenge the Government Order of 1950 regarding the Scheme of Secret Service Fund, The affidavits of the appellant and Mr, Shehdad Accountant also prove the plea of the appellant. The respondent has not produced any counter-affidavit. The statement of the appellant has not been rebutted by the Government, and in order to sustain the major penalty the condition of positive proof of misconduct cannot be brushed aside.
' The appellant has referred to different citations and we are also inclined to judge the charge of misconduct and corruption against the appellant.
' The appellant's counsel has also argued the discriminatory procedure adopted against the appellant under Rules of Efficiency and Discipline Rules of 1977 and that the provisions of the said rules have been violated by the respondent. These proceedings are null and void and the appellant has been denied right of show cause and defence throughout by the authorities dealing with his enquiry. The Interin Constitution of 1974 guarantees protection before law to the citizens of this area, but the same protection has been denied to the appellant. He has referred to PLD 1957 SC 157, PLD 1956 Lah. 865, PLO 1957 Kar. 1, PLD 1957 Dacca 1, PLD 1968 Kar. 88, AIR(?) SC 75-235, PLD 1979 SC (A J& K). Regarding the allegation of misconduct the appellant's counsel has contended that the appellant cannot be punished without any proof. In this regard he has cited AIR 1960 Bom.
394, AIR 1961 Orissa 113 and AIR 1952 Pb.
191. Besides he has challenged the impugned order on the ground that the authority competent to decide the fate of the appellant have not applied their mind to the present case. Words and phrases used in the retirement order of the appellant do not convey strict application of Efficiency and Discipline Rules, but the whole matter has started in doubt and ended in doubt.
' As discussed above, we proceed to record our opinion about the enquiry conducted against the appellant. In order to arrive at a right conclusion it was incumbent on the respondent-Government to conduct the enquiry against the appellant strictly according to Efficiency and Discipline Rules, A 1977. Since the procedure as allowed by the said Rules has not been followed, the report of Commission No, 2 is of no legal effect, and impugned order cannot be sustained.
The nature of the charges as levelled against the appellant demands thorough enquiry by the respondent Government, and we direct fresh enquiry under section 6/7 of Efficiency and Discipline Rules. The result is we accept the appeal, set aside the impugned orders, and restore the appellant to his substantive post with back benefits under Rules.
' No order as to costs. Parties be informed of this order accordingly.
' SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-I agree with the final conclusion reached by the learned Member of the Tribunal in this case that orders impugned in this appeal being unlawful are liable to be set aside. In the disciplinary proceedings against the appellant both the facts of the case as well as the interests of justice made a clear demand that the charge against him should have been got enquired into either through Inquiry Officer or Inquiry Committee in terms of rule 6
(2) of the Efficiency and Discipline Rules as it was highiy impossible to come to any correct findings on them merely on the basis of show-cause notice served on the appellant and his reply thereto.
The report of the c Commission of Inquiry could not be legally taken into consideration by the competent authority while giving his findings on the charges against the appellant as the same was made before the initiation of the disciplinary proceedings against him. The Commission of Inquiry conducted its proceedings without associating the appellant with it and as such they could only be utilized for the purpose of initiating disciplinary action against the appellant under the Efficiency and Discipline Rules. By relying on the said report in passing the impugned order of the compulsory retirement of the appellant, the authority has committed error because, as said earlier, report could not form the basis for finding the appellant guilty of the charges levelled against him.
In short, the provisions of rule 6 (2) of the Efficiency and Discipline Rules were fully attracted in the case of the appellant with the result that the authorised officer was under legal obligation to appoint Inquiry Committee to enquire into the charge against the appellant. Therefore, the authorised officer by resorting to summary and shorter procedure of show-cause notice instead of appointing Inquiry Officer or Inquiry Committee to look into the charges against the appellant has not acted in accordance with the relevant rules with the result that the impugned order of compulsory retirement of the appellant proceeding on the basis of adoption of unlawful procedure is bad in law and unsustainable. Consequently the impugned orders are set aside and the appellant is restored into service with all back benefits. The competent authority shall take fresh proceedings against him in the light of the above orders in terms of rule 6 (2) of the Efficiency and Discipline Rules.