GHULAM MUJADID ISRAN (MEMBER) .-Appellant Shoukat Ali Shahani, Ex.-S.I. of Sindh Reserve Police
(SRP) has filed this appeal against his dismissal from service. The punishment of dismissal was awarded to him by the Senior Superintendent of Police, Sindh Reserve Police, Sukkur vide order dated 22-1- 1992. By virtue of this appeal he has prayed that the impugned order dated 22-1- 1992 and appellant order dated 1-7-1992 be set aside and he may be reinstated in service with all back benefits.
Briefly the facts of the case are that the appellant while posted as S.I. of S.R.P. Sukkur was given show cause notice dated 30-10-1989 that he was involved in case FIR No. 129/89 under section 302/34 P.P.C., of Police Station Hala, District Hyderabad. He was suspended vide order dated 22-10-
89. During investigation the appellant was named as co-accused and has been challaned in the court of law. Since he was under detention he submitted reply to show-cause notice dated 16-12- 1989 through Superintendent Central Prison Hyderabad but the same was found implausible and ultimately the Senior Superintendent of Police SRP Sukkur issued the impugned order dismissing the appellant from service. Feeling aggrieved by this order the appellant availed the departmental remedy of appeal before the Inspector-General of Police Sindh which was rejected on 1-7-1992.
Having failed to seek departmental relief the appellant hie this appeal.
We heard Mr. Naimatullah Qureshi for the appellant and Mr. Habibur Rasheed for official respondents. We also perused the relevant record with then- assistance.
The main arguments submitted by the learned counsel for the appellant were that no enquiry was conducted in this case and that if it is said that the enquiry was conducted, the appellant was not associated in the enquiry proceedings thus he was not given sufficient opportunity to defend his case. The learned counsel for the appellant further contended that the impugned order passed as a result of such proceeding was bad in law.
2. We have carefully examined the record in this case. The departmental action was initiated against the appellant under Sindh Police (Efficiency and Disciplinary) Rules, 1988 (hereinafter called the said Rules). It is evident from para 4 of the written statement filed by the respondents that the enquiry officer was appointed in this case who conducted departmental proceedings and on his recommendation the appellant was awarded major punishment of dismissal from service. The relevant para of the written statement is reproduced as under: ~ "4. In reply to para 4 it is submitted that involvement in criminal case at any cost is not tolerable specially in Police Department, therefore the appellant was served with Show-Cause Notice to which he submitted his reply through Superintendent, Central Jail, Hyderabad on 16-12- 89 but he could not rebut the charge levelled against him. His reply was found implausible therefore DSP. SRP, Sukkur lat Mr. Saleern Hussain Shah was appointed as Enquiry Officer to hold departmental proceedings. The Enquiry Officer completed the proceedings and recommended for award of major punishment. Accordingly appellant was dismissed from service irrespective of the judicial process as the departmental proceedings is a different subject-matter."
For the sake of thorough appreciation of the matter the relevant provisions of the said Rules in respect of procedure to be observed by the enquiry officer during enquiry proceedings is laid down as under:-- "7. Procedure to be observed by the Enquiry Officer.-
(1) Where an Inquiry Officer is appointed the Authority shall--
(a) frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and any other relevant circumstances which are to be taken into consideration;
(b) require the accused, within seven days from the day the charge has been communicated to him, to put in a written defence and to state at the same time whether he desires to be heard in person.
(2) 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.
(3) The Inquiry Officer shall hear the case from day-to-day and no adjournment shall be given except for reasons to be recorded in writing and where any adjournment is given-
(a) it shall not be for a period of more than a week; and
(b) the reasons therefor shall be reported forthwith to the Authority.
(4) Where the Inquiry Officer is satisfied that the accused is hampering, or attempting to hamper, the progress of the inquiry he shall administer a warning and if, thereafter, he is satisfied that the accused is acting in disregard of this warning he shall record a finding to that effect and proceed to complete the inquiry ex parte.
(5) If the accused absents himself from the inquiry on medical grounds, he shall be deemed to have hampered or attempted to hamper the progress of the inquiry unless medical leave applied for by him is sanctioned on the recommendation of a Medical Officer nominated by the Authority: Provided that the Authority may, in his discretion, sanction medical leave upto seven days without the recommendation of the Medical Officer.
(6) The Inquiry Officer shall within ten days of the conclusion of the proceedings or such longer period as may be allowed by the Authority, submit his findings and grounds thereof to the Authority."
3. We have perused the relevant record produced before us and observed that procedure as laid down in the above rule 7 was not complied with. No formal charge was communicated to the appellant together with statement of allegations. The appellant was not given any opportunity to defend the case during enquiry proceedings. It is also admitted fact that the appellant was not given copy of the enquiry report with a final show-cause notice. The appellant had a right to know as to which charge stood pioved against him and this he could discover only from a final show cause which is in dispensable. . The respondents in para 6 of "Grounds" in their written statement have taken a plea that "After issuing show-cause notice and obtaining reply of the appellant another charge-sheet was not necessary". We do not agree with the aboveMahammad Riaz V. Natkmal Fertilizer Corporation of Pakistan arguments put forth by the respondents for the reasons that once the Authority in this case decided that in the light of facts of the case an enquiry should be conducted through an enquiry of , he was required to ensure .that the procedure prescribed in rule 7 was followed. Rule 7(l)(a) makes it incumbent upon the Authority to frame a charge and communicate the same to the accused alongwith statement of the allegations explaining the charge and any other relevant circumstances which are to be taken into consideration. The enquiry officer was also required to ensure that:
(1) the procedure laid down in Rule 7(2) to (6) was strictly adhered to during the inquiry proceedings.
(2) the enquiry proceedings being of judicial nature in terms of rule 8, he had recorded the statement of witnesses on oath.
(3) the accused officer was allowed cross-examine the witnesses produced against him during the proceedings.
(4) the accused officer was afforded reasonable opportunity to produce his defence.
(5) the findings were recorded after due analysis and appreciation of evidence on record.
We thus feel that while initiating departmental action against the appellant no proper procedure was observed as laid down in the above-said rules.
4. In the circumstances of the case, the impugned order bf dismissal dated 22-1-1992 is not sustainable on the ground of procedural defect and is hence set aside with no order as to costs.
The case is remanded back to the Authority concerned to proceed afresh against the appellant in accordance with the aforesaid rules. Pending the taking of fresh action the appellant will continue to remain under suspension until the competent authority decides otherwise.
Given under our hand and the seal of this Tribunal this 19th day of October, 1992 at Karachi.