' SARFRAZ HASAN (MEMBER-I).--Abdul Sattar, former A.S.I. No, 9- LHR, now Head Constable No, 225, Lahore District has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Superintendent of Police, Sheikhupura and the Deputy Inspector- General of Police, Lahore Range as respondents.
2. By virtue of this appeal, the appellant has prayed that the impugned orders dated 19-1-1985 and 3-2-1985 of Superintendent of Police, Sheikhupura and final order dated 30-1-1986 passed by the Deputy Inspector-General of Police, Lahore Range may be set aside and he may be reinstated as A.S.I., his pay as A.S.I. Restored and he may be awarded such other relief to which he is found entitled.
3. The facts of the case are that on 2-1-1985, the Superintendent of Police, Sheikhupura issued the following show-cause notice to the appellant:- "You A.S.I. Abdul Sattar No, 9/L while posted to P.S. Mananwala unlawfully detained and lodged one Shahbaz Masih son of Umer Masih in police lock-up for about 21 days. Likewise you without justification detained Muhammad Ashraf son of All Nawaz in the barrack of Constables. This lawlessness on your part was detected by the undersigned during surprise checking on 1-1-1985 for which a D.D. Entry No, 3 of the even date was recorded.
(2) By reason of the above grounds, you appear to have been guilty of misconduct/inefficiency and as such are liable to disciplinary action, under the Rule 6, sub-Rule (3)(i), clauses (a) and (b) of the Punjab Police (E & D) Rules, 1975 (General Police Proceedings without any Enquiry Officer) which may include the imposition of a major penalty including dismissal, as prescribed in Rule 4 of sub-rule (i) clauses (a) and (b).
(3) You are, therefore, called upon to explain within 7 days of the receipt of this show-cause notice as to why disciplinary action as aforesaid, may not be taken against you. In case no reply is received within the stipulated period, it shall be presumed that you have no explanation to offer or have declined to offer the same and ex parte orders will be passed against you. You are also at liberty to appear before the undersigned for personal hearing, if you so desire.
(4) This may also be considered as grounds of action."
' As a result of the abovementioned show-cause notice, Superintendent of Police, Sheikhupura, vide his order dated 19-1-1985 reduced the pay of the appellant by two stages and removed his name from list 'D' w,e,f, 12-1-1985.
' Subsequently, on 19-1-1985, Superintendent of Police, Sheikhupura issued another show-cause notice to the appellant as follows:- "You officiating A.S.I. Abdul Sattar No, 9/L were dealt with departmentally for detaining two persons Shahbaz Masih and Ashraf unlawfully. As a result you were found guilty and awarded major punishment of reduction in pay by two stages.
' In view of the above, you do not deserve to retain your present post of A.S.I. You are, therefore, called upon to explain within 4 days as to why you should not be reverted to substantive rank of H.C. If your explanation is not received within the stipulated period, and you fail to appear in person to explain your conduct, proposed order will be passed ex parte."
' As a result of the second show-cause notice, the Superintendent of Police; Sheikhupura vide his order dated 3-2-1985 reverted the appellant to his substantive rank of Head Constable.
' The appellant filed an appeal before the Deputy Inspector-General of Police, Lahore Range against his reduction in pay by two stages and his reversion to the rank of Head Constable.
However, vide his order dated 30-1-1986, the said D.I.-G. Rejected the appeal of Abdul Sattar. Hence this appeal.
4. We have heard the learned counsel for the appellant and the learned District Attorney/Deputy District Attorney assisted by the representative of the respondents and have also perused the record of this case carefully with their assistance.
5. The learned counsel for the appellant has submitted the following main points:-
(i) That the first show-cause notice containing allegations of unlawful detention of Shahbaz Masih and Muhammad Ashraf was not served upon the appellant and therefore, he was not given a reasonable opportunity to defend his position.
(ii) That the appellant has since filed an affidavit solemnly affirming that no show-cause notice "as a result of which the major penalty of reduction in pay by two stages was inflicted" was never served upon the deponent.
(iii) That the aforesaid show-cause notice was in violation of standing instructions dated 4-3-1984 issued by the Inspector-General of Police himself and according to these instructions a regular enquiry should be held in all departmental proceedings which are likely to entail major punishment.
(iv) That in violation of I.-G.P.'s aforesaid instructions dated 4-3-1984, the appellatit was awarded a major penalty without holding any regular enquiry or even confronting him with the individuals (Shahbaz Masih and Muhammad Ashraf) for whose alleged unlawful detention he had been awarded major penalty.
(v) That in order to cover up irregularities committed by him during departmental proceedings, respondent No, 1 recorded an incorrect statement in his order dated 19-1-1985 to the effect that the appellant had admitted that Shahbaz Masih and Muhammad Ashraf had been kept by him in the police station.
(vi) That the abovemcntioned incorrect statement of respondent No, 1 has since been denied by the appellant in an affidavit solemnly affirming and declaring that "he did not admit that he had unlawfully detained Shahbaz Masih and Muhammad Ashraf in Police Station Mananwala and that "the so-called admission referred to in order dated 19-1-1985 was factually incorrect."
(vii) That this was a case of double jeopardy in that on the basis of the same allegations, the appellant was awarded major penalty of reduction in pay by two stages and reverted to his substantive rank of Head Constable after removing his name from list 'D'.
(viii) That Muhammad Ashraf Rajpu[ belonged to clique inimical to the appellant and that this has been previously brought to the notice of the Superintendent of Police, Sheikhupura as well as S.H.O.
P.S. Mananwala and therefore, Muhammad Ashraf's complaint against the appellant should not have been accepted without regular enquiry.
(ix) That respondent No, 1 combined in himself the roles of the complainant, prosecutor and judge in that the departmental proceedings were initiated against the appellant on the basis of a Daily Diary entry No, 3, dated 1-1-1985 recorded by respondent No, 1 at 12.15 a.m. Midnight and therefore, he could not punish the appellant on the basis of Daily Diary entry without ordering a regular enquiry.
6. The learned District Attorney on the other hand, adopted the parawise comments submitted by the respondents and made the following main points:-
(i) That the first show-cause notice for award of major punishment was served on the appellant through S.H.O. Mananwala and the said notice was entered at Sr. No, 13 of Register No, 5 of the police station.
(ii) That the disciplinary action was taken against the appellant in accordance with the General Police Proceedings under Rule 6(3)(a) of the Punjab Police (E & D) Rules, 1975.
(iii) That the appellant had frankly admitted the wrongful detention of Shahbaz Masih and Ashraf during personal hearing before the respondent No, 1.
(iv) That the orders of reversion to the rank of Head Constable were passed ex parte on 3-2-1985 because instead of submitting written reply to show-cause notice within four days as required, the appellant got himself admitted in the Services Hospital, Lahore on 26-1-1985 without getting any letter from English Office which was necessary and submitted a medical certificate issued by Dr. Aurengzeb of Services Hospital according to which the appellant was under his treatment from 26- 1-1985 to 6-2-1985 for renal pain and was advised complete bed rest for two weeks w,e,f, 7-2-1985.
This showed that he was deliberately avoiding reply to the show-cause notice.
(v) That the allegation of enmity of Muhammad Ashraf Rajput had been "tailored" by the appellant "to save his skin".
(vi) That reversion from officiating rank is not punishment under the Rules and therefore this was not a case of double jeopardy.
7. We have given our anxious thought to arguments advanced by both sides and have also perused the record carefully with their assistance.
8. On the basis of arguments advanced by both sides and the record produced before us, we are led to conclude that in the conduct of departmental proceedings against the appellant, not only the Standing Orders of the Inspector-General of Police, Punjab himself have been violated but the basic principles of natural justice which the respondents were under obligation to follow have been ignored. In this connection attention is invited to the following:-
(i) "Vide his circular memo. No, 4504-40/M-IV, dated 4-3-1984, the Inspector-General of Police, Punjab issued inter alia the following directions to all District Superintendents of Police in the Punjab. "It is therefore, directed that in future, in all departmental proceedings, which are likely to entail major punishments or where charge of corruption is involved a regular enquiry should be held through an Enquiry Officer and the matter should only in rare cases be disposed of under rule 6.3 of the Punjab Police (E & D) Rules, 1975 merely by issuing a show-cause notice to the accused officer.
' The above instructions should be complied with in letter and spirit."
' On 12-1-1985 respondent I issued the following show-cause notice to the appellant:- "You A.S.I., Abdul Sattar No, 9/L while posted to P.S. Mananwala unlawfully detained and lodged one Shahbaz Masih son of Umer Masih in police lock up for about 21 days. Likewise you without justification detained Muhammad Ashraf son of Ali Nawaz in the barrack of Constables. This lawlessness on your part was detected by the undersigned during surprise checking on 1-1-1985 for which a D.D. Entry No, 3 of the even date was recorded.
(2) By reason of the above grounds, you appear to have been guilty of misconduct/inefficiency and as such are liable to disciplinary action, under the Rule 6, sub-rule (3)(i), clause (a) of the Punjab Police (E & D) Rules, 1975 (General Police proceedings without any Enquiry Officer) which may include the imposition of a major penalty including dismissal, as prescribed in Rule 4, sub-rule (i), clauses (a) and (b).
(3) You are, therefore, called upon to explain within 7 days of the receipt of this show-cause notice as to why disciplinary action, as aforesaid, may not be taken against you. In case no reply is received within the stipulated period, it shall be presumed that you have no explanation to offer or have declined to offer the same and ex parte orders will be passed against you. You are also at liberty to appear before the undersigned for personal hearing, if you so desire.
(4) This may also be considered as grounds of action."
' It is evident that the above quoted show-cause notice contemplated the imposition of major penalty and therefore a regular enquiry through an Enquiry Officer should have been conducted in accordance with the abovequoted Standing Order of the Inspector-General of Police, Punjab.
These orders' of the Inspector-General of Police are based on the principles of natural justice as enunciated by the superior Courts.
(ii) Departmental proceedings against the appellant were initiated as a result of Daily Dairy entry No, 3, dated 1-1-1985 P.S. Mananwala recorded by respondent No, 1 himself when he paid a surprise visit to this Police Station at mid-night.
' The aforementioned Daily Diary entry shows that during the visit of respondent No, 1 at mid-night, except Moharrar Head Constable, no other officer was present at the police station.
' In the absence of all other officers, Shahbaz Masih lodged in the lock-up told respondent that he had been detained in the lock-up for 21 days and A.S.I. Shahzad Tariq had locked him up there.
Similarly, Muhammad Ashraf found in the barrack of Constables told respondent No, 1 that he had been kept there by A.S.I. Abdul Sattar (appellant). No other independent evidence has been brought. The first show-cause notice reproduced at para. 8 above shows that it was based on the statements of Shahbaz Masih and Muhammad Ashraf in the absence of any other independent evidence on record. Under the circumstances, departmental proceedings against the appellant on the basis of these statements only were a clear violation of the rules of natural justice.
' Shahbaz Masih was an accused in case F.I.R. No, 305, dated 20-11-1984 under section 11.7.79 Islamic Law. As regards Muhammad Ashraf, the appellant has alleged previous enmity with him. Therefore, the rules of natural justice demanded that their statements should have been recorded in the presence of the appellant in a regular enquiry so that he could cross examine them if necessary and defend himself properly. It has been reported vide 1983 PLC (C.S.) 80 that where evidence is recorded in absence of accused, the conclusions arrived at cannot be considered reliable.
' Further, since respondent No, 1, was himself a witness as is clear from the Daily Diary entry recorded by him at mid-night, the rules of natural justice demanded that a regular enquiry should be conducted through an Enquiry Officer and during the regular enquiry the appellant is given a reasonable opportunity to cross examine witnesses and defend his position. However, this was not done.
(iii) The second show-cause notice dated 19-1-1985 called upon the appellant to "explain within 4 days" as to why he should not be reverted to the substantive rank of Head Constable in view of major punishment already awarded to him as a result of first show-cause notice.
' In case of Habib Khan v. Federation of Pakistan reported vide PLD 1954 Sind 109 it was 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 opportunity to submit an explanation cannot be considered reasonable opportunity for showing cause."
"Where the plaintiff was asked to submit explanation within 3 days and after he submitted his explanation an order of discharge was passed, the order was set aside as reasonable opportunity to show-cause notice had not been provided."
' In the instant case, the appellant was asked to submit an explanation within 4 days although normally such explanations are obtained within 7 days. Further the paradise comments given by the respondent No, 1 against para. 6 of the appeal do not deny that the appellant was sanctioned 5 days leave from 20-1-1985 to 25-1-1985. The period of show-cause notice therefore, expired on 24- 1-1985 when he was still on leave sanctioned to him.
' Keeping in view the above quoted ruling of the High Court, it is evident that reasonable period of notice was not given to the appellant for submission of his explanation.
9. The above detailed analysis of the case shows that departmental proceedings against the appellant were conducted in violation of basic principles of natural justice and rulings of superior Courts. In this view of the matter, we have no alternative except to set aside the impugned orders dated 19-1-1985, 3-2-1985 and 30-1-1986 and accept the appeal. However, the department is at liberty to conduct a proper regular enquiry into the matter keeping in view the principles of natural justice and rulings of the superior Courts.
' There will be no order as to costs.