1. MUNAWAR ALI KHAN (CHAIRMAN).--By this appeal the appellant has sought revocation of two orders; one of Superintendent, Police Traffic, District South, Karachi dated 2-9-1987 withholding appellant's three annual increments and another of the Deputy Inspector-General of Police, Traffic and Highways, Sind, Karachi dated 3-3-1988, enhancing the penalty imposed by first mentioned order to the appellant's reversion from rank of S.-L to that of A.S.-I.
2. ' Briefly stated the appellant's case is as follows. He joined the Police Department as Assistant Sub- Inspector and was later promoted as Sub-Inspector. He claims to have earned a number of commendatory certificates including some cash rewards in recognition of his performance both as Assistant Sub-Inspector and Sub-Inspector of Police. According to him, his service record of over 13 years was not only free from any blemish but was rather meritorious. On 14th July, 1987 the appellant was performing his duties as Section Officer of Central Traffic Section of Karachi when the Bomb blast occurred in Saddar area. As some dead bodies and some persons injured in the said blast were brought to the Civil Hospital, Karachi there was a lot of unrest in the area. As a result the appellant became vigilant in performance of his duties on the night following the incident. He was informed at about 1 a.m. that the Chief Minister and the Governor on their return from Jinnah Hospital would visit the Civil Hospital to see the injured persons. Since the decision of their visit to the Civil Hospital was sudden, proper planning could not be made. However, the appellant gathered information on wireless from the Advance Pilot of the Motorcade (S.I. Jabbar Hussain) about the route to be taken by the above VIPs. Although the time available at his disposal was very short the appellant promptly detailed the Jawans of Traffic Police on the said route. As an abundant caution he detailed Jawans also at the main gate of the Civil Hospital, on Baba-e-Urdu Road. The appellant once again checked the duty staff and found them alert, at their respective duty points. Since he was incharge of the Central Traffic Section Karachi in which the Civil Hospital is located it was his duty to ensure clear and safe passage to the motorcade of the VIPs along the said route. The appellant did his duty efficiently and with required zeal. Nevertheless following the arrival of the VIPs' some untoward incident took place at the gate of Casualty Department.
3. Consequent upon the said occurrence the appellant was placed under suspension, which was followed by serving of the charge-sheet and the statement of allegations, dated 20-7-1987 on him.
4. He submitted his explanation to the charge-sheet denying all the allegations contained therein.
5. Although it was disclosed in the charge-sheet that holding of enquiry was necessary, yet no enquiry was held against the appellant. Instead the proceedings were finalised by imposing minor penalty of withholding of three annual increments without cumulative effect vide the impugned order dated 2-9-1987. Thereafter in exercise of suo motu revisional powers under rule 16.25 of the revised Police Rules 1979, the Deputy Inspector-General of Police Traffic and Highways, Sind, Karachi passed order dated 3-3-1988 whereby the aforesaid minor penalty was enhanced to major penalty of reduction in rank from the post of Sub-Inspector to that of Assistant Sub-Inspector. The appellant preferred appeal against the order of D.I.G.P. to the Inspector-General of Police on 17-3- 1988. However, his appeal was rejected vide order of the Additional Inspector-General of Police dated 5-7-1988. Thereafter the appellant filed the present appeal as mentioned above.
6. We heard the arguments of Mr. Manzoorali Khan in support of the appeal and the submissions made on behalf of the official respondents. We also went through the record of the case carefully.
7. As stated above the appellant's prayer is that both the orders: one of the S.P. imposing minor penalty of withholding of three annual increments and another of the D.I.G.P. enhancing the said penalty to his reversion from the rank of S.I.P. to that of A.S.I.P., be set aside. Admittedly the first mentioned order was passed on 2-9-1987 whereby the appellant's three annual increments were withheld without cumulative effect. It is also an admitted position that the appellant did not challenge the said order of the S.P. in departmental appeal which was to be filed before the D.I.G.P.
8. He rather silently accepted the same. This is clear from the fact that he became active only after his reversion was made from the post of SIP. to A.S.I.P. by the D.I.-G.P.'s order dated 3-3-1988. Until then the appellant took no action, whatever, in regard to the aforesaid minor penalty imposed on him. Thus he allowed his valuable right of appeal to lapse.
9. ' The question for our consideration is if the appellant's appeal made to the I.-G.P. bearing no date wherein he challenged not only the D.I.-G.P.'s order of enhancement of the penalty but also the original order of the S.P. imposing minor penalty on him, would serve the purpose of the departmental appeal to be preferred from the original order of the S.P. within the meaning of proviso (a) to section 4 of the Sind Service Tribunals Act, 1973. Our reply to this question is in the negative firstly because the original order was not challenged before the D.I.-G.P. who was only competent to hear the appeal against the said order and secondly because even the appeal filed before the I.-G.P. was clearly barred by limitation. The appeal preferred to the I.-G.P. was materially directed against the D.I.-G.P.'s order of enhancement of the penalty initially imposed on the appellant. We have no doubt in our mind that the original order of the S.P. came under attack in the said appeal only incidentally. While filing appeal before the I.-G.P the appellant seemed to have simply availed the opportunity, by calling in question even the original order passed by the S.P. If he had been serious in challenging the original order, he would have done it at the first available opportunity. That is to say that as soon as the said order was passed, he would have surely assailed it in appeal filed before the D.I.-G.P. within 30 days thereof. His continued silence until enhancement of the penalty was indicative of his intentions that he had accepted the said order in good grace and did not wish to agitate it before higher departmental forum. For the foregoing reasons we would not disturb the original order of the S.P. dated 2-9-1987.
10. The D.I.-G.P.'s order dated 3-3-1988, which is the real target in the appellant's appeal filed before the I.-G.P. reads as under:-- "I have perused the Final Order bearing No, SPT/South/DP/6965-70, dated 2-9-1987, passed by the S.P.Traffic, South Karachi in the departmental case against the S.I. Attaur Rehman (No, K-197). The penalty of withholding of increments awarded to the S.I. is incommensurate with the gravity of the charge proved against him as is clear from para. 2 of the above quoted order in which it has been stated that reply to the charge-sheet is "unsatisfactory."
11. (2)In view of above, the charge warrants a major penalty. I therefore award the punishment of reduction in rank from S.I. to A.S.-I. with effect from 1-3-1988 to the defaulter.
12. (3)On reduction to the rank of A.S.-I. the services of A.S.-I. Attaur Rehman (K-197) are placed at the disposal of Karachi (Parent) Range."
13. The appellant's grievance against the above order is ventilated in para. 13 of the memo. of appeal, as under:-- "It is categorically submitted that before enhancement of the penalty order impugned against, no show-cause notice was served upon the appellant nor the appellant had been afforded the 'reasonable opportunity of showing cause against the action' in any other manner whatsoever."
14. Although there is no direct admission on the part of the official respondents that the appellant's above allegation with regard to show-causenotice was correct, yet the reply given in the .written statement is patently evasive. The reply reads as under:-- "That the contents of para. 13 of the grounds of appeal, it appeal from the D.P. File that on receipt of the reply to the charge-sheet, the inquiry was not found to be necessary as stated above."
15. It is clear from the above reply that before enhancement of the initial penalty awarded to the appellant, he was not afforded any opportunity of showing cause against such enhancement. The order of enhancement was admittedly passed in exercise of suo motu revisional powers vested in the D.I.-G.P. under rule 16.25 of the Police Rules 1979. Proviso to the said rule reads as under -- "Provided that no order of enhancement shall be passed unless the officer concerned is given reasonable opportunity of shown cause against that action."
16. Since the appellant was not given show-cause notice for to enhancement of the penalty imposed upon him, the D.I.-G.P.'s order whereby the penalty was enhanced would be hit by the above proviso. As such the said order was not in consonance with the rules. Even otherwise on the basis of the principle of natural justice the appellant was entitled to show-cause notice before converting minor penalty awarded to him into the major one, as according to the said principle no one can be condemned unheard.
17. For above reasons the D.I.-G.P.'s order dated 3-3-1988 whey, by the appellant was reduced in rank as he was made to revert from post of S.I.P to that of A.S.I.P. cannot be sustained. As such we accept the appeal partly with n order as to costs and set aside only the D.I.-G.P's said order.
18. 'DR. A.Q. QAZI (MEMBER).--While I would agree with this decision which is strictly technical in its nature in respect of limitation, I shall not esitate to make few candid observations:
1. The charge-sheet issued by Superintendent of Police (Traffic) date 20th July, 1987 reads as under:-- "Office of the Superintendent of Police, Traffic District South. No, SPT/SOUTH/DPC/5684 Karachi, dated 20-7-1987. CHARGE-SHEET Whereas I am satisfied from the report made against you, S.I. Attaur Rehman (now under suspension) of Central Traffic Section, Karachi, that the nature of allegations is such that a formal enquiry as contemplated by Clause I of Rule 16.19 of Revised Police Rules, 1979 is necessary and expedient. And whereas I am of the view that the allegations if established against you will call for one of the penalties as prescribed under rule 16.1 of the said Rules.
19. Now, therefore, as contemplated by the said Rules, I Falak Khurshid, P.P.M. Superintendent of Police Traffic District South, Karachi, charge you with misconduct on the basis of the statement of allegations appended herewith.
20. And thereby I direct you further under rule 16.19 of the said Rules to submit a written defence within 10 days of the receipt of this charge-sheet as to why the proposed action should not be taken against you and also state at the same time whether you desire to be heard in person.
21. And in case your reply is not received within the prescribed time, it shall be presumed that you have no defence to offer.
22. Sd/- (Falak Khurshid) PPM., Superintendent of Police, Traffic, District South, Karachi.
23. It does not require any mental exercise to see that worthy. S.P. had contemplated a formal inquiry by Clause I of Rule 16.19 of RPR 1979. The appellant Attaur Rehman the then S.I. Traffic who was charge-sheeted, replied the charge-sheet immediately and his reply is very comprehensive in which he denied all allegations. It would appear that formal inquiry, as was envisaged in charge- sheet was suddenly dropped and it was deemed fit by the authority to punish the appellant without giving him even personal hearing at very first .stage. This is beyond my judicial comprehension.
2. We may be able to sec the reason of dropping the inquiry if we read the reply of the appellant in para. 4 of the charge-sheet: This was not duty of traffic Police to which the situation, whether some miscreants/anti-state/anti- regime masses are gathered at the place where a VIP is scheduled to he visited. On the other hand this is the duty of Superintendent of Police, Range Security Branch, to select the route for VIP and direct the Sector and Sub-sector Commanders to clear the area and control the situation as well as to assure the safety of VIPs."
24. We would like to make sure to know if this statement of his carries any force. We shall get the reply if we reproduce the instruction, which was issued by the Acting D.I.-G. of Police T & H Sind. on the subject of allocation of route for VIP/VVIP: "Phone No, 222683. Confidential/Most Immediate.---Office of the Dy. Inspector-General of Police , T & H Sind, Karachi.
25. No, SECTY/T & H/87-563, Karachi, dated the 18th July, 1987.
26. The Superintendent of Police, Security Branch, Karachi.
27. Subject:--Allocation of Route for VIP/VVIP.
28. It has been observed that traffic police is being asked regularly to allocate route for the VIP/VVIP while travelling by road. This is not a correct procedure. The S.P. Security uniforms and S.P. Security Special Branch, are responsible to select the route for VIP/VVIP with the consultation of concerned SSPs and D.Cs. from the security and law and order point of view, which is their sole responsibility.
29. However, the traffic police may be consulted for the road worthiness and the responsibility of this Department is only to regulate traffic and to provide safe and clear passage to the motorcade of the VIP/VVIP. (underlining is mine).
2. This is for your information and further necessary action in future.
30. Sd/- Al-Haj Abdullah Khan Chachar, Acting Dy. Inspector-General of Police, T & H Sind, Karachi."
31. This instruction is self-explanatory and does not need any elaboration. It would appear that the procedure to be adopted for security of VVIP's existed earlier and has been re-iterated again after this incident. We shall now be able to see the reason why formal inquiry was dropped. Some body had to be responsible. I have gone through every word of written statement, it contains nothing. All replies arc totally evasive. Frankly writing, I fail to see any 'moral' sense in catching such a `small fry'.
3. It would be only fair to give a rejoinder to the point raised by learned Advocate for appellant Mr. Manzoor Ali Khan. It has been his contention that with the suo motu application of the revisional power of the D.I.-G. Police, the original order of punishment inflicted upon by the S.P.Traffic has disappeared. I regret, I cannot accept his plea for one simple reason that the order of D.I.-G. Police is not an original order. This order is consequential and substituting and its cause lies in S.P. Traffic's punishment order dated 2nd September, 1987 whereby the appellant was awarded minor punishment of withholding of annual increment for a period of three years with no cumulative effect. D.I.-G.'s suo motu order is in revision. If revision is withdrawn original order is to stay.