1. K.B. DODANI (MEMBER).---This appeal is against the removal from service of the appellant Ahmed Ali Solangi. The facts, in brief, as narrated in the memo. Of appeal are that he joined police service as Assistant Sub-Inspector (A.S.I.) on 11-6-1988 and after getting training at Police Training School, Shahdadpur, he remained posted at various police stations in Khairpur District. While he was posted at Police Station, Kotdigi, he was detailed to join anti-dacoit operation conducted by Army with the assistance of Rangers and Police from 4th to 7th November, 1992 in Manghan Wari Forest, District Khairpur. In the said operation cordon was established to apprehend dacoits namely Karimdino alias Karmoo Brohi and his three gang members. The police was also integrated into the said operation and is said to have made concerted efforts for the search and elimination of the gang. In the said operation the dacoits had infected casualties on Army personnel---s and it is alleged that the dacoits managed their escape from the cordon on 6th November, 1992 from the portion of the cordon where the appellant was supposed to be alert and vigilant but the appellant is said to have failed to chase them which showed his cowardice. The appellant was suspended and served with charge-sheet under the Sindh Police (E&D) Rules, 1988 by the S.P. Khairpur vide his letter dated 11-11-1992. He replied by denying the charges made against' him vide letter, dated 22- 11-1992. Subsequently the Commander HQ 16 Division, Pano Aqil Cantonment vide his letter, dated 5-1-1993 reported to the D.I: G. Police Sukkur that the investigation and intelligence reports revealed that the appellant abetted and actively assisted dacoits to manage their escape from the cordon and also guided them to escape through that part of cordon which was established by the police and thus the appellant and his other three colleagues of the police force were mixed up with dacoits and criminals. Again he was served with second charge-- sheet, dated 20-1-1993 which was received by the appellant on 24-1-1993. It seems that second charge-sheet was issued after receiving the above mentioned letter dated 5-1-1993 from HQs 16 Division, Pano Aqil Cantonment.
2. The `statement of allegations made in the second charge-sheet read as under:-- "During the operation conducted by Army in Mangan Wari Forest from 4th to 7th November, 1992 in which the dacoits had infected casualties on Army Personnel cordon was established by the Army alongwith Rangers and Police to apprehend decoits namely Karim Dino alias Karmoo Brohi, Nisar Kalhoro, Hussain Matoo and Ikhtiar Jakhar. The police was also integrated into this operation and concerted efforts were made for the search and elimination of the gang. The dacoits, however, managed their escape though the cordon was fully established and there was chance of the dacoits getting out of the cordon.
3. The Commander Headquarter 16-Div. Pano Aqi1 Cantonment vide his letter No.223/24/IS dated 5-1- 1993 has reported that their investigation and intelligence reports revealed that you abetted and actively assisted dacoit Karmoo Brohi and his three gang members to escape from the cordon by sending a message to the dacoits in the cordon and later guided them to escape through that part of the cordon which was established by the police. Thus, you are mixed up with the dacoits/criminals and liable for severe disciplinary action under Sindh Police (E&D) Rules, 1988."
4. This charge-sheet was not replied by the appellant in stipulated time instead put a request to the S.P., Khairpur vide his letter, dated 1-2-1993 submitting therein that he has been kept in a closed room at Police HQs. Khairpur under verbal order of the S.P. Since 26-1-1993 and was therefore, unable to submit reply to the said charge-sheet and requested for time to submit reply after consultation with legal advisors wherever he was released from confinement. The official respondents in written statement have denied this saying that neither such intimation for extension of time limit for submitting the reply was received from the appellant nor he (the appellant) was confined in a room at Police HQs. Khairpur. Thereafter a major punishment of removal from service was ordered by the police authority vide his order, dated 25-2-1993 and his suspension period from 11-11-1992 to 24-2-1993 was treated as such. He preferred a departmental appeal on the removal order to D.I.-G. On 22-3-1993 and after waiting mandatory period of 90 days, the appellant filed the present service appeal.
5. We heard Mr. M.M. Aqil Awan for the appellant and Mr. Abdul Latif Ansari, AA: G. On behalf of official respondents at length and with their assistance also went through the documents relevant for disposed of the appeal.
6. It will be seen that allegations made against the appellant through 1st charge-sheet dated 11-11- 1992 and through the 2nd charge-sheet dated 20-1-1993 have the same substance. The first charge-sheet dated 11-11-1992 was replied by the appellant categorically denying the charges.
7. Though he did not reply the second charge-sheet, dated 20-1-1993 and requested for time, which has been denied in the written statement by the official respondents, it does not give free hand to the authority to impose penalty without establishing proof of the allegations. His denial to first charge-sheet can be treated reply to the second charge-sheet as there is no material difference between the two charge-sheets. Though by issuing two charge sheets each one alongwith the statement of allegations indicate that enquiry as required by the Sindh Police (Efficiency and Discipline) Rules, 1988 was initiated but neither Enquiry Officer was appointed nor detailed enquiry was conducted, which is an independent method to prove or otherwise the allegations made against the accused official. There is no other material in proof of the allegations. It is therefore, essential to make a reference to the Rule (4) of Rule 6 of the said rules. It is reproduced as under:-- "(4) On receipt of the findings of the Enquiry Officer or where no such officer is appointed, on receipt of the explanation of the accused, if any, the Authority shall determine whether the charge has been proved and in case the charge has been proved, the authority may award one or more punishments."
8. It is crystal clear from the above rule that on receipt of appellant's explanation the authority had to first determine if the charges made against the appellant were proved and in case, the charges had been proved, the Authority would proceed to award one or more punishments to him. But as stated above, there being no other material excepting the denial of the charges by the appellant, the authority could not conclude that the charges against him were proved. Therefore the question of imposing punishment on the appellant would not arise. As such the impugned order by which the appellant was removed from service was not legally sustainable.
9. For the foregoing reason, the appeal is accepted and the order of removal from service is set aside.
10. However, we are of the opinion that the appellant should not be allowed to take benefit of legal lacuna in the case and get away from the serious charges against him. Accordingly we remand the case back to the authority concerned with direction to proceed against the appellant afresh, taking care of strict application of the said rules. In the case of this nature, when the charge made against the accused official are denied by him, the only course left with the authority to prove the charges is to hold a detailed enquiry in accordance with the said rules. Pending the conclusion of the fresh disciplinary proceedings, the appellant shall continue to remain under suspension. The appellant will appear before the said authority within a month from the date of this order.