MALIK MUHAMMAD PERVAIZ (CHAIRMAN)---Appellant Muhammad Farooq has assailed the orders dated 29-9-1986, 31-6-1986 and 21-4-1986 passed respectively by respondents 1 to 3 vide which his services were dispensed with as an employee of the Police Force and his appeal/ representation also met the same fate.
2. Appellant was recruited as a foot constable in Police Force Hazara District to be called as Abbottabad District when he received a show-cause notice while posted at Police Lines Abbottabad, summary of allegations and charge-sleet, copies attached as Annexures A, It and C.
He submitted his reply which was not found satisfactory and respondent No.3 appointed an Inquiry Officer who conducted an ex parte inquiry per his allegations and the appellant was dismissed by respondent No.3 on 21-4-1986 per order copy annexed as Annexure E. His appeal and representation were also dismissed by respondents Nos.1 and 2; hence the present appeal on the ground that he was condemned unheard; that no opportunity to produce defence and cross- examine the witnesses was afforded to him and that one of the witnesses i.e. S.H.O. Was on inimical terms with him and the respondent No.2 relied on his statement in order to pass the impugned order dated 21-4-1986.
3. Reply to the appeal was filed by the respondents denying the allegations made in the appeal by asserting that he was given opportunity to defend his case and that all the formalities were observed by the respondents before passing the impugned orders.
4. Original record perused. In the instant case one D .S.P. Rural Abbottabad was appointed as Inquiry Officer who, besides recording the statements of 2 P.Ws. Namely Muzzam Shan Inspector/S110 Police Station Cantt: Abbottabad and Muhammad Safdar A.S.I. Police Station City Abbottabad relied on the previous record of the appellant for recommending the appellant to suffer major punishment. The perusal of the show-cause notice, summary of allegations and charge-sheet would show that lie was charged for dealing in the narcotics at the behest of one Said Rehman's involved in case F.I.R. No.14/86 under section 3/4 Prohibition of Hadd Ordinance, 1979 (Enforcement of Hadd); who during the investigation of that case admitted before the Investigating Officer that he purchased the charas from the appellant. It is in the statement of the said P.Ws. That he did not admit this fact before the Magistrate before whom the said accused was taken for recording his judicial confession. Learned counsel for the appellant argued that the appellant was not given the copy of enquiry report by- the enquiry officer and no final show-cause notice was served upon him. Respondent No.3 while ordering dismissal of the appellant took into consideration the facts, other than those on which the enquiry was initiated against the appellant Further he argued that accused Saeedur Rehman's who had allegedly found the appellant for dealing in narcotics, was not examined by the enquiry officer and the said accused repudiated the allegations of the purchase of charas from the appellant. S.H.O. Muzzam Shah was on bad terms with the appellant and his statement was relied upon by the enquiry officer.
5. On the other hand the Prosecuting Inspector, who represented the respondent half heartedly argued that the enquiry officer and the authority has no enmity with the appellant and the punishment given to him was just and proper.
6. We have given our serious thought to the arguments advanced by both sides and have also gone through the record.
7. The appellant was dismissed from service on 21-4-1986. Summary of allegations, charge-sheet and show-cause notice served upon by Acting S.S.P. Do not bear any date. However, the appellant submitted reply to notice on 20-2-1986. Copy of which is Annexure D. Show-cause notice contains the direction that the appellant may furnish reply within 7 days of its receipt, meaning thereby that it was issued on or before 15-2-1986. Reply to the charge-sheet was however made on 8-4-1986. It can thus be safely presumed that 2nd show-cause notice was not served upon him. Charge sheet is also undated and we are to rely on the reply dated 8-4-1986. The enquiry proceedings on the other hand were conducted during the month of March, 1986 and the report to respondent No.3 was submitted on 30-3-1986 per reference No.428. It is, therefore, abundantly clear that the authority and the enquiry officer, both failed to follow the requisite and mandatory procedure and departure would result in the acquittal of the accused-- official.
8. Besides this, the Authority did not bother to appoint the authorized officer, which under the law, he was bound to do.
9. Another interesting aspect of the case is that the S.S.P. Is the Authority in the case of the appellant, but summary of allegations, charge-sheet and show-cause notice were served upon the appellant, by Acting Superintendent of Police. Respondents failed to prove that he was competent to initiate the proceedings.
10. An act which is not within the competence of an officer, cannot' be legalized by another person, who is otherwise competent to perform it.
11. The conduct of the enquiry officer and the witnesses, who appeared before him was also not above board. P.W. Muzzam Shah in his recommendation dated 14-2-1986, addressed the appellant with the word "Dacoit". He did not investigate the Hadd case in which the appellant was involved, but he preferred to depose as a witness and brought into his statement some other allegations, bearing no relevance with the present case. Towards the end of his statement dated 18-3-1986, not the witness but the appellant was cross-examined by the enquiry officer in his attempt to show that the said witness is an impartial man.
12. The accused in Hadd case, on the basis of which the appellant was proceeded against, was not summoned by the enquiry officer and the presumption would be that had he appeared as a witness, he would not have charged the appellant.
13. Opportunity of personal hearing and supply of enquiry report and other documents is the vested right of an accused official, but the respondents failed to comply with this legal and statutory obligation .
14. On the basis of above, we have come to the conclusion that the appeal must be accepted and we accordingly accept the present appeal, set aside the impugned orders. The appellant stands re-instated alongwith all the back benefits, with no orders as to costs M. Y. H./54-S./Sr. N.