SARFRAZ HASAN, (MEMBER).--Atta Muhammad, Sub-Inspector No. L/336, Police Post, Shahdara, Lahore has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded Superintendent of Police, Sheikhupura, Senior Superintendent of Police, Lahore and Deputy Inspector-General of Police, Lahore Range as respondents Nos. 1, 2 and 3 respectively.
2. By virtue of this appeal Atta Muhammad has prayed that impugned order, dated 15-11-1983 passed by Superintendent of Police, City Division, Lahore and impugned order, dated 7-1-1986 passed by respondent No. 3 may be set aside.
3. The facts of the case are that on 17-1-1983 respondent No. 1 served the following charge-sheet on the appellant:-- "I, Chaudhry Ali Asghar, Superintendent of Police, Sheikhupura, Charge you, S.I. Atta Muhammad, as under:-- "While posted to P.S. Chuharkana in the month of July, 1982, during the investigation of case F.I.R. No. 176/82 under section 302/34, P.P.C., you indulged in corruption detail of which is given in the statement of allegations".
You are, hereby called upon to submit your written defence within 7 days of the receipt of this charge-sheet as to why regular departmental enquiry under Rule 7 of the Punjab Police (E&D)
Rules, 1975 is not initiated against you on the charge of corruption, for the award of major punishment, stating at the same time if you desire to be heard in person. If your written defence is not received within the given period, proposed enquiry will be conducted ex parte, presuming that you have no reply to offer yr decline to do so.
A copy of statement of allegations is attached."
4. We have heard the learned counsel for the appellant and the learned District Attorney and have also perused the record carefully with their assistance.
5. In addition to points relating to the facts of the case, the learned counsel for the appellant submitted the following points of law:--
(i) The statement of allegations and the charge-sheet were based on the preliminary enquiry conducted by the D.S.P. (Hqrs), Sheikhupura but the enquiry was one sided and the appellant was not given an opportunity to cross-examine the witnesses.
(ii) Although the appellant had been charge-sheeted on the basis of a preliminary enquiry, no copy of the preliminary enquiry was given to the appellant.
(i.e) Although the appellant was charge-sheeted for corruption, no regular enquiry was held and the appellant was denied a reasonable opportunity to defend himself.
6. The learned District Attorney adopted the written objections filed by S.P. City Division, Lahore and respondent No. 3 and submitted that the impugned orders, dated 15-11-1983 and 7-1-1986 were justified and the appeal may be rejected.
7. On careful consideration of the submissions made by both sides and the record produced before us, we have reached the conclusion that the appellant was denied a reasonable opportunity to defend himself properly and in the conduct of proceedings against him the rules of natural justice were ignored. In this connection attention is invited to the following:--
(i) The concluding sentences of the statement of allegations reproduced below clearly show that the charge-sheet statement of allegations was based on the preliminary enquiry conducted by D.S.P. Hqrs. Sheikhupura:-- "D.S.P. Hqrs. Sheikhupura was deputed for enquiry. He found all the allegations correct and made his recommendations against Atta Muhammad, Sub-Inspector. Hence this statement of allegations".
"The D. S. P. /H. Q. Was partial in the enquiry and the respondent had submitted an application before the Superintendent of Police; Sheikhupura to depute, some other officer for the enquiry. The Superintendent of Police, Sheikhupura called the D.S.P./H.Q. In this connection who replied that he had already submitted his finding. "
The respondent requests for to vacate the charge-sheet and exonerate him of the charge. In the alternative the respondent requests for regular enquiry."
(Extract from appellant's reply to the charge-sheet).
"The D.S.P./H..Q. Was partial in the enquiry and the appellant had submitted ---an application to S.P. Sheikhupura to depute some other officer for the enquiry."
(Extract from appellant's appeal before D.I.-G., Lahore Range).
Although the appellant had challenged the preliminary enquiry conducted by D.S.P./H.Q.
Sheikhupura, the impugned order, dated 15-11-1983 passed by the Superintendent of Police, City Division, Lahore and impugned order, dated 7-1-1986 passed by the Deputy Inspector-General of Police, Lahore Range (respondent No. 3) was based on this preliminary enquiry as is evident from the following extracts from the impugned orders, dated 15-11-1983 and 7-1-1986:-- "Application of the complainant was marked to D.I.G. Of Police, Lahore Range, Lahore and it was further referred to S.P. Sheikhupura who detailed D.S.P./Headquarters for discrete enquiry into the matter. D.S.P./Headquarters recorded the statements of the aggrieved persons and came to the conclusion that the S.I. Atta Muhammad No. 891/G.L., the then S.H.O. Chuharkana accepted the illegal gratification of Rs.5,000 at his quarter I have gone through the enquiry report of the D.S.P. Headquarters . . . . . . . . . Allegations levelled by the complainant have been corroborated by two or three other persons who have recorded their statements. I find S.I. Guilty of accepting illegal gratification and award him punishment of forfeiture of two years approved service permanently."
(Extract from impugned order, dated 15-11-1983 passed by the Superintendent of Police, City Division, Lahore).
"The representation as well as oral, explanation of the representationist have been considered. The charge against the representationist has been proved in the enquiry."
(Extract from impugned order, dated 7-1-1986 passed by respondent No. 3, D.I.G. Lahore Range).
Although the charge-sheet/statement of allegations was based on the preliminary enquiry challenged by the appellant and the impugned orders, dated 15-11-1983 and 7-1-1986 were based on this preliminary enquiry, no copy of the enquiry report was given to the appellant. Thus, the appellant was denied a reasonable opportunity to defend himself. We are fortified in this view by case reported vide PLD 1978 Lah. 372 where it was held that omission to supply copy of the preliminary enquiry invalidated final order of dismissal from service.
(ii)Neither the impugned order, dated 15-11-1983 passed by the Superintendent of Police, City Division, Lahore nor the impugned order, dated 7-1-1986 passed by the Deputy Inspector-General of Police, Lahore Range (respondent No. 3) shows that the statements of witnesses against the appellant were recorded by D.S.P./H.Q. Sheikhupura in the presence of the appellant and that he was given an opportunity to cross-examine them. In case of Zahoor Ahmad v. Federation of Pakistan reported vide PLD 1959 Kar. 538, the High Court quashed the order of dismissal on the ground that the petitioner had been denied the opportunity to cross-examine a witness whose statement had been used against him.
Again in case of Habib Khan v. Federation of Pakistan reported vide PLD 1954 Sind 109, it was inter alia held that "in a case where calling for explanation has not been preceded by a proper enquiry in the presence of a civil servant mere affording of opportunity to submit an explanation cannot be considered a reasonable opportunity for showing cause. The authority concerned should not only allow an opportunity to the civil servant to meet the charges in writing but should give adequate opportunity to produce evidence to support his contention and refute the charges levelled against him in the usual way by explaining and cross-examining witnesses and by addressing arguments before the authority concerned."
(i.e) The charge-sheet against the appellant clearly shows that it was based on allegations of corruption. However, no regular enquiry was held to establish the truth of these allegations. In case of Saddique Javid Chaudhary v. Government of the Punjab reported vide PLD 1974 SC 393, the Supreme Court of Pakistan held that it was necessary for the competent authority to hold a regular enquiry into the allegations of corruption. The preliminary enquiry held in this case is not a substitute for regular enquiry. Thus, the appellant was denied a reasonable opportunity to defend himself properly.
8. On the basis of the detailed analysis of the case given above, we have reached the conclusion that the appellant was denied a reasonable opportunity to defend himself properly and that in the conduct of proceedings against him, rules of natural justice and the rulings of superior Courts were ignored. We, therefore, accept the appeal and set aside the impugned orders, dated 15-11-1983 and. 7-1-1986. The case is remanded to the competent authority for holding a regular enquiry against the appellant keeping in view the rules of natural justice and the rulings of the ,superior Courts.
There will be no order as to costs. Judgment be communicated to the parties. Announced in the open Court on 21-10-1986.
M.Y.H./92/Lb./S