MALIK MUHAMMAD PARVEZ (CHAIRMAN).--The appellant Muhammad Younas filed the present appeal against the impugned orders dated 4-11-1986 & 17-7-1986 passed by respondents No.2 and 3 vide which his services in the police department were dispensed away on account of the alleged misconduct and other charges levelled against him by respondent No.3. Accordingly to him, he was recruited as F. C . In the Police Department of the then Hazara District now District Abbottabad on 2-8-1963 and later on his services were transferred to newly created District Kohistan for a period of one year, where he joined in the year 1983 but continued as such till he was dismissed from service on 17-7-1986. He was served with a charge-sheet, summary of allegations and show- cause notice to face the consequences of an incident which occurred on 21-5-1986. Respondent No.3, however, did not convene an enquiry to evaluate the charges levelled against him before passing the dismissal order, which is illegal, void, ultra vires of the rules, against facts and principles of equity and justice.
He was not given an opportunity to cross-examine the, witnesses or to take' part in the enquiry. The respondent No.3 acted as a prosecutor, as a Judge as well as an authority ignoring the golden principles that no one can be the Judge of his own cause.
2. Respondents made their appearance and submitted the written statement denying all the charges contained in the grounds of appeal and submitted that the proper procedure was adopted before passing the impugned order. Appellant was an active member of the gang who rose against respondent No.3 and the Government, took law in his hands and committed misconduct. He was rightly dismissed from service.
3. Original record perused and the arguments heard. In the light of the same we propose to dispose of the appeal as under:-
4. Learned counsel for the appellant argued that two punishments at the same stretch were awarded to the appellant which act was illegal and ultra vires of the rules. No enquiry was conducted through an enquiry officer/enquiry committee per N.-W.F.P. Police Rules, 1975. Charges for which the appellant was dismissed from service require evidence which was not collected in the instant case. The other police officers /officials were issued the same charge-sheet as was in the case of the present appellant meaning thereby that the respondent No.3 did not apply his independent mind to frame the charge-sheet. Respondent No.3 was himself a complainant and it was not proper on his part to pass the impugned order. Appellant was originally at the strength of S.S.P. Abbottabad and being the borrowing authority, respondent No.3 was not legally clothed with 'the powers to pass the dismissal order. No grounds were mentioned by respondent No.3 to initiate summary proceedings against the appellant and no copies were provided to him to move the higher forum.
5. On the other hand, P.S.I. Who represented the respondents argued that appellant was an active member of the group who participated in the strike against the respondents, took law in his hands and physically assaulted respondent No.3. He was found guilty of all the charges mentioned in the summary of allegations. He was not a confirmed A.-S.I. And he was reverted to a substantive post and then dismissed from service.
6. The officials/ officers below the rank of D.S.P. Are to be dealt with under the rules published in N.- W.F.P. Gazette, 27th January, 1976. Misconduct is defined in section 2 clause 3 as conduct, "prejudicial to good order of discipline in the Police Force, or contrary to Government Servant (Conduct) Rules, or unbecoming of a police officer and a gentleman, any commission or omission which violates any of the provisions of law and rule regulating the function and duty of a Police Officer to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government Officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Police Officer". Section 3 deals with the grounds of punishment and Section 4 prescribes the minor and the major punishment. Sections 5 and 6 deal with the punishment proceedings and mode of enquiry while Section 9 deals with the procedure of enquiry against officers lent to other Government or authority. Section 13 is a repealing section and any disciplinary ruleapplicable to police officer to whom these rules apply were repealed with the enactment of the Police Rules, 1975.
In the instant case appellant was serving' as an Officiating A.S.I. And vide impugned order he was reverted to the rank of constable although he was a confirmed Head Constable in the Organization. In the same order he was dismissed from service and pay and allowances from 22- 5-1986 to 17-5-1986 were forfeited to the State meaning thereby that the appellant with the one stroke of pen was awarded three punishments, which no law on the earth allows. If an officer /official is guilty of misconduct, subversion and insubordination, the appointing authority is duty bound to appoint some enquiry officer in order to probe into the allegations and the enquiry officer in his own turn is obliged under the general law of the land to invite evidence pro and contra by giving the opportunity to the accused-official to cross-examine the witnesses, to produce the defence and the enquiry officer in the circumstances is to submit his report to the authority. In the instant case respondent No.3 served the appellant with the charge-sheet, summary of allegations and show-cause notice but at the same time he failed to appoint an enquiry officer to probe into the allegations leveled against the appellant. These allegations require proof and in absence of an enquiry the said allegations could not be substantiated. Besides this, allegation No. 16 contained in the summary of allegations relates to physical assault on the person of respondent No. 3 and in the circumstances he should have avoided the imposition of the penalty upon the appellant. Moreover, section 9 deals with the officers who do not belong to a particular authority but whose services have been lent by another authority to the concerned authority. If an officer /official s guilty of charges, he can be suspended and proceeded against but far the penal action, the borrowing authority is legally bound to submit the case to the lending authority, which in the instant case was not done by respondent No.3. Irony of fate was such that the appellant was sent on forced leave for a month which Was extended for further two months and during this period the impugned order was passed but the copies were not sent to the appellant to file appeal before the proper forum.
The summary of allegations and the charge-sheet as well as the' show-cause notice served upon the appellant when compared with the other such documents, it was found that allegations against the appellant and the other incumbents were the same meaning thereby that no independent mind was applied by respondent No.3 in framing the same. It was stereo-type document and only the names alongwith the designation of the incumbents was written in pen by respondent No.3. Besides this, we were told at the bar that many other officials /officers against whom the same charges were levelled were re-instated by the respondents but not the appellant.
Allegations against them and the appellant were the same so it was equitable on the part of the respondents to treat the appellant at par with the persons re-instated by them.
7. On the foregoing grounds we are constrained to accept the appeal with costs allowing all the back benefits to the appellant who re-instated in service from the date of his dismissal. Copy to the parties concerned and file be consigned to the Record Room.
S.Q./58/Sr.N