' ZARIN DAD KHATTAK (MEMBER).---The appellant has filed two appeals under section 4 of the N.- W.F.P. Service Tribunal Act, 1974. Appeal No, 66/93, is against the order dated 26-11-1992 passed by Senior Superintendent of Police, Peshawar (respondent No, 1) by which the appellant was reverted from the rank of Assistant Sub-Inspector to that of Head Constable. The second Appeal No, 190/93 is directed against the order dated 28-3-1993 of S.S.P., Peshawar (respondent No, 3), whereby he was compulsorily retired from service.
2. Brief history of the case as per memo. Of appeal is that the appellant joined Police Department as Foot Constable in the year 1968. He had 24 years of unblemished service record to his credit. He was reverted from the rank of ASI to the rank of Head Constable without process of law and without conducting proper inquiry. The order passed by (respondent No, 1 on 26-12-1992 is reproduced below:- "ASI Muhammad Akbar of Police Station Gulbahar was involved in several illegal activitities. He was found unfit to retain the senior rank of ASI, therefore, he is reverted to his substantive rank of Head Constable with immediate effect. He was been issued charge-sheet and summary of allegations."
3. The appellant filed an appeal against the above order before the D.I.-G. Of Police (Peshawar Range), Peshawar (respondent No, 3) which was pending till filing of the second appeal on 26-6- 1993 in this Tribunal.
4. As regards the second Appeal (190/1993), it has been stated that SSP (respondent No, 3) issued a show-cause notice to the appellant in which it was alleged that on the basis of interrogation report submitted by S.I. Begham Shah of West Cantt. The appellant while posted to P.S. Gulbahar was a party to a notorious car-lifter namely Javed Iqbal resident of Dorra Road, SharifAbad and received Rs,200/300 regularly illegal gratification from him. He was under interrogation in cases of car lifting/snatching, committed by him in Police Station West Cantt. He is a member of car lifting/snatching gang and during interrogation he pointed out that the appellant had received Rs,6,000 as illegal gratification from one Nimatullah R/o Bhana Mari through this accused against a motor-car, which he had seized. Further that the appellant also went to the house of the accused alongwith his wife for collection of illegal gratification. Before 4/5 days of his arrest he had also demanded Rs,2,000 from him. The appellant gave reply to the show-cause notice.
5. A formal departmental enquiry was initiated but nothing was proved against him. However, the findings of the Enquiry Officer were not in favour of the appellant. On receipt of the enquiry report, respondent No, 3 (SSP Peshawar) issued a summary of allegations which was not accompanied by a charge-sheet. Moreover, no proper enquiry was conducted. The appellant approached (respondent No, 3 requesting for a copy of charge-sheet in order to explain his position. However, instead of considering his request, he issued the impugned order on 18-3-1993, retiring the appellant compulsorily from service without affording an opportunity of personal hearing. On 20-3- 1993, the appellant filed a departmental appeal before respondent No, 2 (DIG Peshawar Range) but was rejected vide his order dated 15-6-1993. Hence the second appeal has been filed in this Tribunal.
6. The appellant has prayed that the impugned order dated 16-11-1992, 18-3-1993 and 15-6-1993 may be set aside and the respondents be directed to re-instate the appellant in service with full back benefits on the following grounds:--
(a) The appellant's reversion to the lower rank is without process of law, was illegal and void ab initio.
(b) Under the rules, the authority can resort to the procedure either to serve show-cause notice or charge-sheet on the accused. Since in the case of the appellant the former procedure was adopted, as such the processing of alternate procedure alongwith it was unwarranted in law.
(c) No charge was served on the appellant. The summary of allegations alone does not serve the purpose.
(d) After the service of summary of allegations a regular inquiry was not conducted. Orders were passed without considering the facts of the case and affording an opportunity of defence to the appellant.
(e) The Supreme Court of Pakistan have held in a number of cases that in the case of service of charge-sheet for corruption, holding of a detailed enquiry is must, whereas in this case no proper inquiry was conducted.
(0 The appellant has been condemned unheard at all stages and
(g) The order of 15-6-1993 of DIG of Police, Peshawar Region (respondent No, 2) is a non-speaking defective order. It lacks the ingredients prescribed by the Supreme Court of Pakistan in a case reported as 1991 SCM R 2330.
7. The respondents Nos. 1 to 4 have in their parawise comments (in Appeal No, 66/93) raised preliminary objection that the appeal is time-barred. On factual side it has been stated that the allegations are incorrect. The appellant was found involved in several illegal activities. He was issued show-cause notice, charge-sheet and summary of allegations and was found unfit to retain the senior rank of ASI. The show-cause notice issued to the appellant contain full details of allegations levelled against him. It is correct to this extent that Niamatullah has not made a proper complaint against the appellant. However, it has been established during the enquiry that the allegation is correct. The statement given by Niamatullah in the defence of the appellant is the result of undue influence of the appellant. Moreover, the statement of Javed Iqbal negates his statement.
8. The appellant alongwith his counsel and representative of the respondent-department with the Government Pleader present. Arguments heard and the record of the case has been perused minutely alongwith their assistance.
9. It is observed that the orders of reversion of the appellant were issued by respondent No, 1 on 26- 11-1992. The appellant filed an appeal against the order before respondent No, 3 on 30-11-1992.
Since no reply was received by the appellant during the statutory period of 90 days, the appeal has been filed on 6-3-1993. Hence the appeal has been filed within time. The objection is accordingly overruled.
10. It has been alleged that the appellant has not been given the mandatory personal hearing. We observe that in para. 2 of the show-cause notice served on the appellant by the Senior Superintendent of Police, Peshawar he has inter alia clearly called upon the appellant to state whether he would desire to be heard in person. In his order dated 18-3-1993 the S.S.P., Peshawar has also stated clearly that the accused was heard in person but he could not offer any defence. If the opportunity of giving his option has not been availed of by the appellant himself, the respondent- department cannot be blamed for the same. It is, therefore, not correct for the appellant to say that he was not given the opportunity of personal hearing. The allegation of the appellant in this regard is accordingly repelled.
11. The counsel for the appellant has raised objection that the S.S.P., Peshawar who conducted the departmental proceedings in his capacity as "Authority" was not competent to do so as under the rules only S.Ps. Have been designated as 'Authority' for the post of A.S.I. We overrule this objection also as we are of the view that there is no contradiction in the post of S.S.P. Vis-a-vis S.P. In the Districts at the Divisional Headquarters there are more than one S.P. For example at Peshawar we have S.P. (Hqrs.) S.P. (Urban) etc. We cannot say that for departmental proceedings each and every one holding the rank of S.P. Could exercise the function of authority. This would lead to result in confusion. We, therefore, reject this objection too.
12. The respondents and the Government Pleader have defended the reversion of the appellant from the rank of officiating A.S.I. on the plea that it does not come under the purview of the punishment. Since the reversion of the appellant was from the officiating position as such service of show-cause notice was not necessary and consequently no inquiry was called for. It is correct that section 12 of the N.-W.F.P. Civil Servants Act, 1973 also provides that a civil servant appointed to a higher post/grade on ad hoc or on temporary or officiating basis shall be liable to reversion to his lower post without notice. Clause 6 of sub-rule (2) of Rule 3 of the Police Rules, 1975 also contain provision to this effect, that reversion from an officiating rank is not a punishment. In support of this contention, reliance is also placed on the Supreme Court Authority reported as Pakistan v. Hikarat Hussain PLD 1959 SC (Pak.)
107. However, we find that the reversion of the appellant from the post of ASI was not a simpliciter. The impugned order clearly shows that the appellant was reverted on the charge of having been involved in several illegal activities. Thus, his reversion was accompanied by blemish. In other words, he was condemned for being involved in several illegal activities without giving him an opportunity of showing cause against such condemnation. Although the impugned order says that he was been (being?) issued charge-sheet and summary of allegation, however, it is clear that the needful had not been done before the order was passed. If there had been simple reversion without the addition of the words " having been involved in several illegal activities" in the impugned order, the competent Authority would have had the power to order such reversion without giving any notice to the appellant but as has been mentioned in the aforesaid order, he lost his higher position of A.S.I. On the ground of abovementioned charge. He was, therefore, entitled to show-cause notice. In other words the prescribed procedure as given in the Police Rules had to be followed. This view finds support not only from the case reported as Ali Muhammad Shahani v. I.-G.P. Sindh and another 1987 PLC (C.S.) 205 but also from the Supreme Court Authority reported as Muhammad Ibrahim v. Government of Pakistan PLD 1972 SC 332, wherein it has been held that:- "Government has the legal authority to terminate an officiating appointment at any time and it may do so for any reason relatable to exigencies of service. No show-cause notice is necessary in such a case. But if it is intended to revert an officer to an inferior post by way of penalty a show- cause notice is necessary notwithstanding that the appointment to the superior post was in an officiating capacity."
13. Viewed in the light of the above authority the reversion of the appellant was made by way of punishment as it was based on charges of involvement in several illegal activities. Such reversion could only be ordered by observing the detailed procedure contained in the aforesaid Police Rules.
Since this was not done, the order of reversion was illegal.
14. Under the Police Rules, 1975 a sequence of a detailed procedure has been laid down for proceeding departmental proceedings of misconduct or acts of omission or commission to be dealt with in general police proceedings as follows:-
(1) In cases where Inquiry Officer is appointed, charge-sheet and statement of allegations, explaining the charge and any other relevant circumstances which are proposed to be taken into consideration is required to be communicated to the appellant by the authority,
(2) The appellant is required to put in written defence within 7 days from the date of communication of charges to him. He is also required to state at the same time whether he desires to be heard in person,
(3) The authority shall appoint an Inquiry Officer.
(4) He shall serve a show-cause notice on the appellant in the light of the findings of the Inquiry Officer; if the authority makes up to its mind to impose a major penalty on the accused and give him a chance of personal hearing if the accused so desires.
(5) On receipt of reply to the show-cause notice and personal hearing if any, to proceed to take a final decision.
15. We find that gross violations of rules have been taken place, while processing the case under the procedure general police proceedings adopted in this case, as explained below:-
(a) No charge-sheet was served on the accused. Only statement of allegations was served on him but not at the appropriate time. The Government Pleader produced before us a copy of charge- sheet but could not establish as to whether it was actually served on the accused.
' It is also abundantly clear from para. No, 3 of the appeal addressed to the D.I.-G. Of Police, Peshawar Range that the charge-sheet had not been served upon him. This allegation has also not been rebutted by the respondent anywhere in his comments.
(b) The authority appointed Mr. M. Manzoor Ch. The then S.P. Headquarters, Peshawar as Inquiry Officer. He initiated the enquiry proceedings and recorded statement of allegations of some of the witnesses. On his transfer and on assumption of charge of S.P. (Hqrs.) by Mr. Imtiaz Ahmad, he conducted the inquiry, examined and recorded the statement of the remaining witnesses. The authority should have either allowed the former S.P. (Hqrs.) to complete the inquiry or ordered afresh the appointment of new S.P. (Hqrs.) as Inquiry Officer and he should have initiated the inquiry proceedings de novo.
(c) The Inquiry Officer while stating that the P.Ws. Failed to prove the allegations levelled against the appellant has given his findings as under:-- "From the above-detailed discussion the allegations against the H.C. Could not be proved.
However, he is corrupt and ill-reputed Police Officer. His general reputation even amongst the general public is too bad and is a black mole on the face of this department. He will damage the image of the force if he further remains in the department. Therefore, it is recommended that he may please be compulsorily retired from service.
(d) The Inquiry Officer has, in his report pointed out that the allegations against the accused (as given in the show-cause notice and summary of allegations) have not been proved. Yet the authority in his final order dated 18-3-1993 has not given detailed reasons for imposition of a major penalty on the appellant in the light of his recommendations based on charges which do not form part of the charges contained in the show-cause notice and summary of allegations.
(e) The summary of allegations and the show-cause notice served upon the appellant do not specify the proposed penalty. These simply refer to "Major punishment as defined in the Police Rules" which is vague and bad in law and prejudiced the appellant in his defence. It has been held in various Superior Courts judgments inter alia the following that the punishment proposed to be imposed on the accused should be specific.
(1) PLD 1976 Lah. 1013,
(2) PLD 1982 Pesh. 165,
(3) 1981 PLC (C.S.) 700.
16. We are of the view that it was not for the Inquiry Officer to have proposed the penalty of "compulsory retirement from service" in his report. He should have restricted himself to the charges as given in the statement of allegations. His findings that the appellant was corrupt and ill-reputed officer etc., were unwarranted, vague and do not have the support of specified instances,
17. We also find that the appellant is also victim of double jeopardy. Article 13 of the Constitution provides that no person shall be prosecuted or punished for the same offence more than once. In the case under consideration the appellant was punished twice. He was once reduced in rank vide SSP order dated 26-11-1992 and thereafter, compulsorily retired from service vide S.S.P., Peshawar order dated 18-3-1993.
18. For the reasons given above, we allow the two appeals. The impugned orders of S.S.P., Peshawar dated 26-11-1992 and 18-3-1993 are set aside. The appellant shall be reinstated with immediate effect into service in the rank of A.S.I. With all back benefits. The respondents may however initiate departmental proceedings against the appellant under the Police Rules, 1975 de novo in accordance with the rules, if they so desire. There is no orders as to costs. Parties are left to bear their own costs. File be consigned to the record.