1. JUSTICE (RTD) MUNAWARALI KHAN (CHAIRMAN). This judgment will dispose of three appeals: namely, appeal No.84/90 filed by Dost Muhammad Chandio, appeal No:89/90 filed by Ghulam Shabbir Khokhar and appeal No:99/90 filed by Sikandar ali. The appellants were police Constables working in Sheikhupura' Distt when they were served with charge sheet and statement of allegations on 11.2.1990 Mr. Manzoor Ahmed, DSP, Garhi Yasin was nominated by S.P. Sheikhupura, as Enquiry Officer to hold an enquiry against the appellants. After examining some witnesses and recording appellants' statements and making secret enquiry, the said Enquiry Officer submitted his report wherein he held the appellants guilty and recommended one of the major penalties to be awarded to them. On the basis of the enquiry report the appellants were given final show- cause notice to which they submitted their reply. By a detailed order dated 29.5.1990, each appellant was separately removed from service. They preferred departmental appeal to the DIGP from the order of their removal from service. Their said appeals were rejected on different dates:vide DIGP's order dated 26.7.1990, in case of appellant Dost Mohammad communicated to the said appellant on 17.11.1990, DIGP's order dated 30.7.1990 in case of appellant Ghulam Shabbir, communicated to him on 21.11.1990 and DIGP's order dated 19.8.1990 in case of appellant Sikandar ali, communicated to him on 15.12.1990. Having exhausted the departmental remedy, the appellants have filed the aforementioned appeal calling in que stion their removal from service.
2. We heard the arguments of the learned counsel for the appellants and the learned AAG. We also went through the relevant record.
3. A careful perusal of the orders of the appellants, removal from service revealed that the punishing authority namely the S.P. Sheikhupura had based the said orders not only on the charges contained in the statement of allegations, served on the appellants but also on the reports of the S.H.O. Gaheja, Police Station, containing allegations of misconduct, indifference and dereliction of duty against the appellants. It was rightly contended by the appellants learned counsel that the allegations contained in the S.H.O's reports do not form the basis of the appellants punishment, as the were not specified either in the charge-sheet or the statement of allegations served on them.
4. We are of the view that unless the appellants were put on notice with regard the allegations made against them by the S.H.O. Gaheja, they could not be considered much less made basis for their punishment. No doubt the S.H.O's three reports provided serious material on which one more departmental case could be initiated against the appellants. If the authorities concerned so wished, they could proceed against the appellants in respect of the said charge even at this stage.
5. But for the present case, the said charges have to be excluded from consideration. After exclusion of the charges contained in the S.H.O three reports, we arc left with the charges specified in statement of allegations. The said statement reads as under:- "There are General complaints of serious misconduct causing harassment among the General public resided at and arround the Truck Ada including brothel are in that you C/641 Ghulam Shabir in association will other constables namely C/715 Sikander Ali and C/Dost Muhammad haulup the innocent pedestrians passing by the truck Ada and brothel area, robbed them of cash, watches etc. Maltreat them and released them with threats not to cry or report the matters to the concerned authorities.
6. By doing so you are liable to sever disciplinary actions for your aforesaid acts of gross misconduct, mis-use of official powers and causing resentful embarrassment among the innocen law abiding public personnel."
7. It would appear that the above allegations are of general character and vague. The names of the persons who were robbed or bothered in any manner by the appellants were not disclosed in the above statement. Notwithstanding the omission of the names of the persons allegedly harass by the appellants, the Enquiry Officer called several persons obviously of his choice living at and around the "truck ada" including the brothel area and made enquiry from them. As disclosed in the enquiry report, the persons summoned by the enquiry officer were: Muhammad Usman Brohi Jan Muhammad Mehar, Muhammad Hayat Shaikh, Muhammad Ramza Brohi and Muhammad Saleh Behrani. The enquiry report has thrown light on their evidence, as under:- " All of the above named P.Ws in their respective statements did not support or corroborated the allegations, raised against the defaulter. However, they have given a clue to that effect stating that the defaulter alongwith his 2 accomplices named in the charge-sheet of only used to come and visit "truck ada" and go back giving round thereof. In the end they have stated that neither any of the victims had ever complained to them about the harassment/misconduct of the defaulter nor any such complaints had ever been brought to their notice."
8. Thus it is clear from the enquiry report itself that even the witnesses called by the enquiry officer of his own choice did not support the departmental allegations against the appellants. All what they said was that they had seen the appellants moving about in the locality in question but neither any victim complained against the appellants nor any such complaint came to their notice. As for the appellants' own plea in this regard, the enquiry report is very clear that they have made complete denial of the allegations. Having failed to get the necessary evidence in proof of the allegation made against the appellants, the enquiry officer resorted to making secret enquiry. In this connection he had made the following observations in the enquiry report:- "Since there arc serious allegations of causing harassment among the general public by causing wrongful restraint to them and relieving them of their cash etc, which have been reported through an annonymous/complaint to the higher authorities I have personally verified those allegation at secret level where in the same stood proved. The members of victimized the public dare not to come forward openly to stale a support their grievances before the higher authorities, due to fear from defaulter side.
9. "Not only the above much, it has revealed to me that the defaulter with his to above named accomplices forming a group/gang are moving unchecked in plain clothes indulging in nefarious activities of committing wrongful restraint to the poor public, .Maltreating them and releasing them of after robbing them of their cash/belongings.
10. "This group/gang of the scoundrels has got Govt: quarters in possession at Police Lines Sheikhupura' where they bring women for of ignoble character and commit co-habilitations with them when these immoral activities of the said group/gang came to the notice of Revenue Officers like DC & SDM Sheikhupura, a surprise trape was laid at their quarter by SDM Sheikhupura, but they made those corrupt and ingoble women folk to run away from some back door of adjoining quarter. Thus they escaped the consequences. Having been addicted to such a instances of serious misconduct rather criminal acts, they mostly try and manage their posting at City and Urban area. If they are transferred out and posted at Rural Police Station, they go vagabond not caring for their duty.
11. The defaulter and his associates named above have proved to be the most dissolute criminal persons who instred of being the law custodian of the General Public have proved to be the constant source of public nuisance which has to be eradicated forth-with by smashing out the said group/gange.
12. Hence under the facts and circumstance discussed length above, it is recommended that defaulter C/450 Dost Mohammad Chandio may be awarded any of the deterent major punishment prescribed under the rules."
13. The above observations clearly indicate that the Enquiry Officer's findings of the appellants being guilty of the charges made against them are entirely based on his enquiry. Admittedly the enquiry officer had held the enquiry in accordance with the Sind Police (Efficiency and Discipline) Rules 1988. We have minutely gone through the provisions of these rules. There is no provision in these rules empowering the enquiry icer to make secret enquiry. This was not denied even the learned AAG, Sub-rule (2) of rule 7 of the above rule provides: "The Inquiry Officer shall inquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witness against him."
14. The above provision entitled the appellants to cross-examine such witnesses who had given evidence again then. They could not avail the right of cross- examination unless the enquiry was held openly and in their presence. As such the holding of secret enquiry was ruled out.
15. Consequently the evidence collected by the Enquiry Officer during the secret enquiry could not be made the basis for punishment of the appellants.
16. In view of above discussion the order of punishment which was based cither on secret enquiry made by the Enquiry Officer or on the latter's personal knowledge was not legally sustainable.
17. Accordingly above mentioned appeals are allowed with no order as to costs and the orders by which the appellants are awarded major penalty of removal from service are hereby set aside. As stated above the authorities would be free to take out fresh proceedings against the appellants on the charges contained in three reports of the SHO, Gaheja Police Station.
18. Given under our hands and the Seal of this Tribunal on the is 25th day of March, 1991 at Karachi.