' S. ABDUL JABBAR KHAN (CHAIRMAN).-Aftab Ahmad Cheema, ex-Assistant Superintendent Jail, Bahawalpur, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, against the order of respondent No, 1, dated 12th March, 1983, communicated vide endorsement No, Prs. 1-7- 8/79 of 29th March, 1983, received at the appellant's address on the 2nd April, 1983, rejecting the appeal against the order of removal from service passed against the appellant by the Inspector- General of Prisons, Punjab dated 28th February, 1982. He has impleaded the Secretary to Government of the Punjab, Home Department, Lahore as well as Inspector-General of Prisons, Punjab, as respondents.
2. By virtue of this appeal he has prayed that both the impugned orders be set aside as unwarranted and illegal and the appellant be reinstated in service with all back benefits.
3. Brief facts of the case are that the appellant was transferred from the Central Jail, Faisalabad, to New Central Jail, Bahawalpur and reported for duty on 31st March, 1981, as Line Officer. He was given charge of condemned prisoners Cells No, 21 and 15, when Zaheer Ahmad, Assistant Superintendent Jail, expressed his inability to control the said prisoners as he was allegedly afraid of his life from them. His application was endorsed by the Deputy Superintendent, Ch. Khurshid Ahmad and the Superintendent Jail on 1st June, 1981, directing the appellant to take charge of the said Cells. The appellant went on 10 days leave with permission to leave the station from 25th June, 1981, and after the expiry of leave he stood transferred by the order of the Deputy Inspector-General of Prisons, dated 5th July, 1981, as a routine transfer to Bahawalpur Borstal Institute and Juvenile Jail, where he joined duty on 7th July, 1981. On the night between llth and 12th of July, 1981, nine condemned prisoners made their escape from the New Central Jail when Mr. Sarwar Lulwan was Superintendent Jail and Sh. Khurshid Ahmad was Deputy Superintendent Jail. The said two Officers were assisted by Ch. Abdul Ghanil, Assistant Superintendent Jail, Incharge of the Condemned Prisoners Cell who was also acting Deputy Superintendent Jail from 1st July, 1981 to the night of escape. After the said escape the appellant was also required by the Police to join the investigation. In the said investigation Mr. Zaheer Ahmad, Assistant Superintendent Jail alongwith some other associated subordinate jail officials were challaned by the Police and the Police report strongly suspected Ch. Abdul Ghani, Assistant Superintendent Jail of complicity in the said escape.
The appellant was relieved by the police on the night of 22nd July, 1981, having been cleared of any complicity in the matter of any escape or any assistance therein. The appellant reported back to his Superintendent Jail on 23rd July, 1981 and the said Superintendent Jail vide his letter No, 1622, dated 23rd July, 1981, addressed to the Inspector-General of Prisons, recommended immediate re- instatement of the appellant but despite recommendations of the Superintendent Jail, the appellant's suspension order remained in the filed. A preliminary inquiry was held by Mr. Shaukat Mahmood, Deputy Inspector-General of Prisons, without associating the appellant and the said Deputy Inspector-General of Police came to the conclusion that the escape took place due to laxity of control over the said condemned prisoners during the time when the appellant was incharge of the said cell. The appellant was served with a charge-sheet on 29th October, 1981, which was accompanied by statement of allegations. The appellant submitted his explanation to the said charge-sheet wherein he denied the allegations and submitted that he had nothing to do with any laxity of duty and all that has been said against him, was against, the record as well as the facts of the case. However, the appellant's explanation was not found satisfactory and Mr. Masood Anwar Qureshi was appointed as Inquiry Officer, who conducted the enquiry against him as well as other officers. The said Inquiry Officer completed his enquiry, whereby he held the appellant guilty of laxity of control over the Condemned Prisoners Cell during his stay in the said Jail but did not recommend any punishment against him, although he mentioned various disciplinary actions regarding other persons, who were also subject of the enquiry. After the said enquiry, a show- cause notice was issued on 28th January, 1982. The appellant replied to the same, was heard in person and was removed from service. He filed appeal before the Secretary, Home, Punjab, who vide his order dated 12th March, 1983, rejected the same. Hence this appeal.
4. We have beard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have very carefully gone through the record of this case, right from the date when the said escape occurred including the inquiry held by Superintendent Jail against the appellant.
5. Learned counsel for the appellant has submitted that although there is no denial of the fact on the part of the respondents that the appellant was not posted at the time when the said escape took place and had no physical connection whatsoever with the said unfortunate incident yet he has been visited with major penalty of removal from service on the ground that during his stay in the said Jail he had become familiar with the condemned prisoners, enjoyed their hospitality and in this manner, was vicariously responsible for the events which took place after his departure.
Learned counsel for the appellant has laid a great stress on the fact that during 24 days of the said charge of the condemned prisoners who later on escape from their condemned cell, there was not a single complaint recorded against him to show that he was not doing his duty in proper manner.
It has been vehemently argued on behalf of the appellant that reference of previous record in the impugned order was absolutely un-called for as there was no reference of the same in the charge-sheet nor ever such matter was raised against the appellant to hold him guilty. With regard to the observation that the appellant had failed to qualify departmental examination within the prescribed period, it was submitted that the appellant was provided an opportunity to appear in the departmental examination, after more than two years of his entry into service and was allowed two chances to clear the same whereas according to the rules, he was entitled for four chances for the same. The two more chances to which he was entitled, were denied by the respondents due to exigency of service and not to any fault of the appellant. It has been further submitted that he had almost cleared all the papers except the one and though in that too he was short only of a few marks. A grievance has been made of the fact that although the appellant in reply to the charge-sheet, made a prayer for supply of copies of the record in order to find how he was connected with his earlier lapse if any, he was denied the same and the learned Inspector- General of Prisons did not give him full chance to defend himself against imaginary charges. In the end it has been submitted that there was shocking disparity between the treatment given to the officers incharge of the Jail at the time of the escape of the condemned prisoners and the appellant, who was not even posted in the relevant Jail at the time of their escape as none of the officers incharge were dismissed and were let off with minor penalties, whereas the appellant has been visited with major penalty of removal from service although he was not posted at the relevant time. Hence this appeal.
6. On the other hand learned District Attorney has submitted that although the appellant was not posted in the said Jail when the said unfortunate incident took place i. e. Escape of nine condemned prisoners from their cell and conceded that the respondent could not establish the connivance of the appellant in the said escape yet the fact remains that after through probe made by the Grade-18 Officer. It was found that descipline in the condemned prisoners had deteriorated to the lowest ebb simply due to the deliberate acts of omission and commission on the part of the appellant. He has further stated that Rules and Regulations pertaining to the security and safe custody of condemned prisoners were not being enforce by the appellant. The Deputy Inspector- General of Prisons, reached the conclusion that the appellant was not conducting searches of condemned prisoners daily as required under the Rules and some of the escapees used to cook their own private food and were taken out of the Cells for strolling without handcuffs and that too for indefinite period. According to the learned District Attorney, if the appellant would have been vigilant enough in the performance of his duties and should not have created circumstances favourable to the escapees, the escape could not have occurred. He has also referred to the earlier career of the appellant and submitted that he was indifferent and indisciplined person with chequered record of service and simply claim by him that he was not present at the time of occurrence, would be hardly a ground for his re-instatement. He has fully adopted the comments made by the respondents in this case.
7. We have given our anxious thought to the arguments so advanced by the parties before us and it will be useful to give the narrations of the actual escape, which will show as to who was really responsible and to what extent in facilitating the said escape or conniving with the same. The details have been provided in the inquiry conducted by Mr. Shaukat Mahmood, Deputy Inspector- General of Prisons, who visited the Jail on 13th July, 1981 and after examining statements of 37 prisoners, 30 warder and five officers, concluded his inquiry. According to the report of the said Enquiry Officer, nine condemned prisoners were confined in three contiguous cells, 13, 14 and 15 on the night of escape. Warders Muhammad Bashir and Muhammad Sadiq were guarding this cell block comprising 15 cells. Some time at night in between 10 p. m. To 2 a,m. They broke open the common walls of their cells, bricks of which appear to have been loosened earlier, with the help of iron rod commonly used in the factory. Then they assembled in Cell No, 15 from where they made a whole in the side wall and crept into the gallows enclosure adjacent to cell No,
15. Then they scaled over the gallows enclosure and entered the factory by climbing over a slanting tree close to factory wall. Thereafter, they broke open the lock of durree shed' and removed two long bamboos, wooden clubs and about ten feet rope to make an improvised ladder. These articles were used for manufacturing of `durrees in the factory. They improvised a ladder, come out of the factory area, and posted the ladder against the wall at a distance of 330 feet from watch tower No, 2 which was unmanned and 230 feet from watch-tower No, 3 where an armed sentry was present. It was about 1.30 a.m. At that time. They scaled over the main wall from this point by threatening the warders on duty at beat Nos, 2 and 3 by firing some shots in the air. Who did not blow their whistles out of fear and nervousness. The sentry on watch tower did not make use of his rifle 303 on account of his slackness and lack of training in the use of fire-arms. The warders blew their whistles after the prisoners had crossed over the main wall. Enquiry Officer has pointed out that convicts Muhammad Saleem and Muhammad Iqbal went to the block of condemned prisoners to distribute Sehri at about 1,15 as per routine. Convict Muhammad Saleem went into Cell No, 15 but there was no one inside it and the cell was broken. The cells Nos, 13 and 14 presented the same scene. One of the warders on duty was sleeping and the other was slack. Lie appraised the warders of the situation and thereafter they raised the alarm by blowing their whistles. It has been further observed by the Enquiry Officer that the first alarm was raised by the warders in the condemned prisoners cell at 1,15 a.m. While the escapees crossed the main wall at 1.30 a. m. In fifteen minutes the whistles were being blown and nothing was done by the staff on duty to prevent the escape. At 1.35 a.m. The staff began assembling at the main gate and by that time the escapees had gone far away.
8. This complete narration of the entire incident Will clearly show that the escape took place due to negligence of the persons who we Incharge of the Cells at the relevant time and lethargic and coward behavior of the Sentry who did not use the arm although they were provided with the same. It has also been established by the spot inspection that the hardened prisoners had broken their cells by using iron bars and other means at their disposal to free themselves and to make good their escape. In view of the above, it stands fully established that the appellant had nothing to do with physical escape of the condemned prisoners, as he was in no way connected with their supervision as he had been posted outside, much earlier than the incident took place. Similarly there is not an iota of evidence to show that the appellant had any relation or connection with the said escapes or was instrumental in providing them the means of escape. It could not be denied that when the escape took place, the persons Incharge of the said Jail were different persons than the appellant, and the appellant had severed all sort of connections with the said Jail due to his transfer.
9. The charges against the appellant have been narrated in the impugned order of Inspector- General of Prisons, dated 28th February, 1982, in which it has been stated that during his period as Incharge of the condemned cells :-
(1) be failed to enforce rules and regulations, pertaining to the security and safe custody of prisoners, in the condemned prisoners cells ;
(2) he did not effect searches of condemned prisoners as required under the Rules ;
(3) the condemned prisoners were taken out of the cells for strolling without hand-cuffs and for indefinite period against the rules ;
(4) the condemned prisoners used to cook their own private food in the cells against the rules ;
(5) he had developed close relations with the dangerous escapees either due to the fact that he was afraid of them or that he had soft corners for such type of outlaws by his inclination.
(6) he used to enjoy the hospitalities of condemned prisoners by accepting drinks and feasts and as such he ignored his basic duties intentionally and gave a free hand to the escapees.
' To look into the intrinsic substance of these charges we have very carefully perused the record to find out as to whether the recorded entries had any connection in support of these lapses on the part of the appellant. The Jail was visited by the D. L-G. (Prisons) and S. P. And we do not find any such observation, which may persuade us to accept that the appellant was conducting the said violation of instructions/rules as mentioned in the impugned order. The S. P. Also visited the said Jail on 31st January, 1981 but there is nothing in his note to show that the appellant was in any way guilty of these allegations. Similarly D. I.-G. Prisons made inspection on 1st July, 1981 i,e, 10 days earlier of this unfortunate occurrence but we do not find anything pointed out by him vis-a-vis the charges, which were made basis for the removal of the appellant from service by the Inspector- General Prisons. We have also carefully perused the statement of Mr. Ghulam Muhammad Lalwani, Superintendent Jail, Bahawalpur, who took charge of the said Jail five days before the said occurrence and find that he has stated, that when he took the charge on 6th July, 1981 nobody informed him about the condition of the Jail affairs by the Incharge staff nor he had any indication from any superior officer that the discipline in the said Jail had deteriorated to the lowest ebb. It was further stated by him that when he took the charge, his predecessor gave him the report (l4.1 {{URDU TEXT}}"all well" thus he became Incharge of the said Jail considering it running smoothly. He completely denied the fact that any Officer Incharge of the said Jail or any officer of the said Jail ever informed him that the prisoners were being allowed to move freely without handcuffs and did not allow the authorities to search them or that they had collected illegal articles. These assertions have been made by the said Superintendent Jail while appearing as witness in the regular enquiry before the Enquiry Officer. This witness further observed that all that he has said, stood fully proved by the record. In para. 4 of his statement it has been further disclosed by him that five days earlier than the said incident, an inspection was conducted and in that inspection note nothing was disclosed in order to make him careful, that the administration of the said Jail had completely deteriorated. This witness has further disclosed that as Deputy Superintendent Jail was absent from the said Jail therefore, his said charge was also an important factor in keeping him in dark of the ugly affairs. He has attributed the factum of this escape due to shortage of warders and by allocating them duties for which they were highly unfit. He has` given pen picture of the relevant staff at the time of escape by observing that Malik Latif Anwar, Assistant Superintendent Jail was absolutely unfit and absolutely weak person, who bad come from clerical side. Ch. Nazir Ahmad was a demoralized person and Ch. Abdul Ghani wbo holding the double charge at the relevant time, could not pay full attention to the discipline of the Jail. With regard to the guard, it has been stated by him that it was an indisciplined guard ; which had outlived its utility and were responsible for bringing illegal articles in Jail and were moving freely at their own will. In the end he has stated that a few days earlier he came to know that all was not well in the Jail and he contacted the Deputy Commissioner to assist him in enforcing law and order and to streamline the administration. Throughout his statement he has nowhere, mentioned that according to his knowledge the appellant was in any manner guilty of the things, for which he was latter on charge- sheeted and the said alleged lapses resulted into his ultimate removal from service.
10. We have purposely ignored to look into the earlier preliminary enquiry conducted by Mr. Shaukat Mehmood D. I.-G. Prisons as the same was conducted in the absence of the appellant because according to the law so settled down by their Lordships of the Supreme Court of Pakistan, that such like enquiry where a civil servant has not been associated, could not be allowed to be taken against him, therefore, we will take into consideration the regular enquiry, which was conducted by the Enquiry Officer, in order to see whether there was anything on the record to show that the allegations against the appellant, so mentioned in the earlier part of our judgment and incorporated in the decision of the 1.-G. Prisons, prove that the appellant was guilty of the same.
The Enquiry Officer has recorded the statement of the following witnesses :-
(1) Muhammad Siddiq son of Piran Ditta condemned prisoner.
(2) Abdul Sattar son of Niaz Muhammad condemned prisoner.
(3) Muhammad Yunas son of Nawab Din condemned prisoner.
(4) Muhammad Akram Shah Warder No, 1942, New Central Jail, Bahawalpur.
(5) Shamshad Ali Warder No, 1914, New Central Jail, Bahawalpur.
(6) Abdul Hameed Warder No, 1368.
(7) Syed Saadat Ali Shah, Superintendent, Borstal Jail, Bahawalpur.
(8) Muhammad Afzal, Warder No, 1996, New Central Jail Bahawalpur.
(9) Faqir Hussain son of Qadir Bakhsh, Prisoner New Central Jail, Bahawalpur.
(10) Sh. Noor Said Ahmad, D. S. P. ' and defence witnesses comprising Murtaza A. S. J. And Ghulam Muhammad Lulwani, S. J. The most important witness in this case would be Muhammad Siddiq who was recaptured after his escape on 12th September, 1981. This witness who was certainly facing his execution at any moment made a statement before the Enquiry Officer, but nowhere has stated that in his said escape, the appellant figured anywhere either for assisting him or his other escapees but on the other hand has assigned positive part to those who came in contact with him. With regard to the role of the appellant vis-a-vis performance of his duties earlier, when he was Incharge of his Cell he has categorically stated that he once searched the condemned prisoners and took away lot of things from them. He has nowhere attributed any association of the appellant with him or his compatriots.
We have no reason to disbelieve this witness, who was going to face his Creater_ very soon after making his statement before the Enquiry Officer. Another P. W.-2 Abdul Sattar who was also a condemned prisoner in some other case has stated that the appellant, when he was Incharge of the condemned Cells, used to search them daily and searches of Jagga party were also made by him. However, another witness Muhammad Yunas, who was sentenced to death has stated that the appellant was very friendly with the inmates of the condemned cell because he was afraid of them, but there is nothing on the record to show that such like behaviour of the appellant was ever noticed by his superiors or there was any complaint made by anybody against him to that effect.
Abdul Hamid Warder, has attributed the act of favouritism of the appellant towards the prisoners and has stated that he used to hold their interviews outside their cells. Saadat Ali Shah, Superintendent Jail, one of the accused in this case, also appeared before the Enquiry Officer.
When specifically asked to say positively, whether the alleged activities of the appellant were in his notice or not, he expressed his ignorance of the same. He was cross-examined by the appellant to test his verasity and to one of his question, he replied that he had made a report against him. We have taken lot of pains to search the record so as to find whether any such report existed against the appellant, but nothing was brought forward by the learned District Attorney or his representative of the Department to satisfy us on this score. We have seen the order of Saadat Ali Shah, S. J. B. W. P. Which is, dated 2nd June, 1981 which disclosed that Zaheer ' Ahmad, Assistant Superintendent Jail, took up a row with the appellant in the presence of Muhammad Khan Mughal, M. I. C. And lost his temper also. He was called upon by the Superintendent Jail to explain his said in disciplinary Act.
11. From all this evidence, which has been relied upon by the Enquiry Officer against the appellant, we do not find anything placed on the record to show that there was a positive observation ugly in nature regarding the conduct of the appellant vis-a-vis the condemned prisoners whose charge he held for only 24 days. We have taken lot of pains to dig the record in this case, as we find mention of the same again and again in the impugned order, wherein I.-G., Prisons has observed that it is established on the record that the appellant was indulging in such activities which were uncalled for and against the rules as well as the duties of the appellant but nothing has been found to this effect. If there would have been anything noted down in any of the inspection note or any other observation, either by the Superintendent Jail or any superior of the said Department (who had the occasions to visit the Jail from time to time) against the appellant, then of course, we would have given some credence to the assertion of the 1.-G. Prisons, that the appellant carried a reputation of mixing up with condemned prisoners in a friendly manner. In the absence of any such documentary evidence on the file, we have no hesitation to repel the assertion made by the I.-G.
Prisons in his impugned order, which have been solely made the ground for the removal of the appellant from service. Another interesting feature of this case which has come to light before us, is that the persons who were directly responsible for the safe custody of the condemned prisoners i,e, Superintendent Jail and other Assistant Superintendent Jail, who were posted at the relevant time, have been very leniently treated by the I.-G. Prisons and none of them has been visited with major penalty of removal from service, whereas the appellant, who was not physically present at the relevant time in the said Jail due to incident of his transfer 17 days earlier of the said happening, has been held responsible for the said escape and removed from service. We fail to find any logic behind the impugned order, which is not only conjectural, and whimsical but as well as against the fundamental principle of natural justice. The case of the appellant would be covered by age-old maxim i,e, give the dog bad name and hang him.
12. Learned counsel for the appellant has also assailed the maintainability of the impugned order on legal grounds, the omission of which, according to him, has resulted into great injustice to the appellant. It has been submitted that the appellant was to be proceeded against under the Punjab Civil Servants L(E & D) Rules, 1975 rule 1(2) of these rules, provides that "they shall come into force at once and apply to all civil servants except members of such service and holders of such posts, as may be specified by the Government. " Learned counsel for the appellant has submitted that this rule requires that the competent authority in the case of the appellant should have appointed an Authorised Officer to take action against the appellant who by appointing an Enquiry Officer to hold an independent regular enquiry in his case and the said Authorised Officer was under obligation to examine the true inquiry report of the Enquiry Officer and then take action himself, if he was of the opinion that the end of justice would be met by imposing minor penalty upon a civil servant It has been vehemently urged that in the present case no Authorised Officer was appointed and the report of the Enquiry Officer, was straightway examined by the competent authority himself, who visited him with a major penalty of removal from service. Similarly another flaw has been pointed out in the proceedings so taken against the appellant, by submitting that it was a case of joint enquiry, which involved the senior officers of the appellant and therefore, under rule 2(8) of the E & D Rules, the I.-G. Prisons should have acted as Authorised Officer and then should have submitted his recommendations to the authority in the case of other senior officers, whereas in the present case, the case of the appellant was isolated and on the report of the Enquiry Officer against him, the I.-G. Prisons sat in judgment, as a competent authority, and passed the impugned order. This procedure, according to the learned counsel for the appellant has deprived the appellant of the same lenient treatment, which the I.-G. Prisons chose to extend to the senior officers. While examining this proposition, the learned District Attorney came out with this argument that notification dated 19th March, 1974 had been issued by the Government of Punjab, whereby in exercise of the powers under rule 1 of the West Pakistan Civil Servants (E & D) Rules, 1960, the Governor exempted the application of Rules of 1960 to the subordinate officers of Prisons other than the Superintendents, Assistant Medical Officers, Medical Officers and submitted that on the strength of the said notification, the E & D Rules of 1975 were not applicable to the Jail Employees.
We have no hesitation to repel this argument on the ground that rule 1(2) of the E & D Rules, 1975, requires that a specific notification should be issued by the Government exempting such members of service or holders of such posts as may be specified by the Government. Since no such notification has been issued under rule 1(2), ibid exempting the subordinate officers of the Jail Department from the application of E & D Rules, 1975, these rules shall apply to all Jail employees.
Moreover, notification of 19th March, 1974, was issued under Rules of 1960 and as such the said notification expired when the said Rules of 1960, stood repealed.
13. We have also taken note of the fact that the I.-G. Prisons in his impugned order, has also advanced reasons inter alia, in support of the removal of the appellant from service i,e, he had not qualified the 4th paper of his departmental examination. We are of the considered opinion that such like ground, cannot be used against the appellant, as the same was not mentioned in the charge-sheet or show-cause notice, therefore, the appellant could not defend himself against an observation, which would be arbitrary in nature. Moreover, the said reason advanced by the I.G.
Prisons, loses force, when we find that the appellant had only availed two chances to sit in the departmental examination and had cleared all the four papers but could not clear the 5th as firstly, he was not allowed to sit in the examination due to paucity of Jail Officers and later on such examination was not held, therefore, he had two more chances to qualify the remaining 5th paper.
14. In view of the detailed analysis of the entire facts of the case, as well as the point of law involved, we are of the confirmed view that the impugned order is liable to be set aside. There is nothing on the record to prove the allegations which paved the way for his removal by the competent authority and on the other hand there is a positive proof, that he was in no way connected with the said escape. We are also of the considered opinion that the impugned order is in clear violation of mandatory rules of 1975, which were applicable to the appellant, but were not so applied.
15. The result is we accept the appeal, set aside the impugned orders as being without justification as well as of no legal effect and direct the appellant to be re-instated in service with all back benefits. However, there will be no order as to costs.