SARDAR HUSSAIN SHAH JAFRI, MEMBER-I.- The appellant Khadim Hussain AS1 No. 456 was proceeded against under the Punjab Police (E&D) Rules, 1975 on account of the alleged misconduct on his part on the charges spelled out in the charge sheet dated 1.3.1987 (Annexure-C) reproduced below:- "You (I) remained absent from duty for about 14 days on five different occasions (2) for the commission of theft in the house of one Fazal Hussain of Khanpur, hauled up two suspects namely Muhammad Raza and Gulzar, who confessed the commission ol theft., an$l after accepting Rs.
5000 - as illegal gratification, on the recommendation of Jam Abdul Karim. Advocate.-you-also recovered & repatriated some stolen property to the complainant hut no case was registered and
(3) registered a false case due to ulterior motive".
The appellant, of course, submitted his reply to the charge sheet (Annexure D/I) followed by yet another explanatory memo: dated 1.3.7.988 (Annexure D/2). While submitting the above explanation, lie also appended thereto list of defence witnesses in which he mentioned tis manyas 12 defence witnesses, including a police official namely Dildar Ali Alieer. Inspector of Police CIA. A regular enquiry was instituted by the SP. Rahimyar Khan (i.e. Respondent No.1) who appointed the DSP(Legal) as Enquiry Officer to hold the enquiry. As many is 10 prosecution witnesses and 9 defence witnesses appeared before the Enquiry Officer who recorded their statements. The witnesses were cross-examined by the appellant in the course of enquiry. The Enquiry Oliicer vide his detailed enquiry report, dated II-8-P988 (Annex-H) examined the evidence produced before him and came to the conclusion that the charges framed against the appellant stood proved as a result of the aforesaid enquiry. The enquiry report, was considered by the competent authority i.e. SP, Rahimyar Khan. The appellant was also given personal hearing on 24.9.1988 by the aforesaid Authority (i.e. Respondent No. I), finally, vide his order, dated 4.9.1988 3.10.1988 (Annexure-I) the said respondents imposed upon the appellant the penalty of dismissal from service with immediate effect. The appellant Hied the appeal before the DIG Police. Bahawalpur Range on 7.11.1988 (Annexure-J). The said Appellate Authority vide his order, dated 13.2.1990 (Anuexure-K) reinstated the appellant in service with the observations that the penalty of dismissal from service imposed on the appellant by the Authority was too harsh to be sustained. The appellate authority, however, convened the said penalty of dismissal from service to reduction in pay equal to "two years increments" of the appellant. The period during which the appellant had remained out of serv ice was treated as leave without pay. Feeling dissatisfied with the relief granted to him by the Appellate Authority, the appellant filed the instant appeal before this Tribunal on 21.3.1990 on time.
2. The appellant assailed the impugned orders referred to above on the ground that:-
(a) that the order of dismissal was wholly and the appellate order was partly against law and facts of the case;
(b) that the respondent No. I had not applied his mind, had failed to evaluate the evidence and police record and that he bad passed order without any reason while the Appellate Authority had also failed to appreciate this aspect of the case;
(c) that the departmental action was initiated without the prior approval of the District Magistrate as required vide Rule 16.38 of the Punjab Police Rules, 1934. Hence the proceedings were taken without jurisdiction and lawful authority with the result that the punishment passed on such proceedings was void and inoperative:
(d) that the enquiry officer was partial biased and that inspite of a request having been made by the appellant to the Authority for the change of Inquiry Officer. The request was not granted by the Authority;
(e) that the Enquiry Officer was prejudiced inasmuch as he refused to summon such important defence witness as Inspector CIA Dildar who had conducted the investigations of the theft case registered vide FIR No. 122 87 under Section 457/380 RPC at RS Khanpur;
(f) that the respondents had failed to appreciate and appraise the evidence on record;
(g) that no evidence was produced to substantiate the charge of absence. There was not a single report in the Roznamcha about the absence of the appellant whereas the report of absence of the appellant recorded by the SHO through a Goshwara 8/9 months later on only indicated that it was done as a result of an after-thought, just to pressurise the appellant;
(h) that the appellant had actually learned on duty and the allegation that he had absented himself from duty Intel no basis:
(i) that the appellant had recovered the stolen property from the accused Oamar Raza and Gulzar Ahmad in case FIR No. 228 86 and FIR 215/86 and had handed over the requisite articles to the SMG.
Consequently, it was the responsibility of the SHO who had taken over there covered articles to dispose of the articles in accordance with law. The articles were after some time given over to the complainant Fazal Hussain by the SHO. The failure of the SHO for not registering the case against the accused persons could not therefore, be nailed to the door of the appellant. The complainant Fazal Hussain was a notorious person and was habitual of black mailing as staled in the report of Inspector CIA Dildar Hussain who had held that the said Fazal Hussain had demanded Rs. 10,000- from the appellant for dropping the proceedings.
(J&K) that the evidence regarding the allegation that Fazal Hussain was made to pay Rs. 5000 - to the appellant and that these were delivered m the presence of two persons contained contradiction on the point ol the and date; that all the witnesses produced on the prosecution side were interested witnesses and close friends/colleagues of the said complainant Fazal Hussnin.
Consequently, the evidence did not inspire confidence:
(L) that Fazal Hussain Bhatti, Ahmad Hussain and Muhammad Ramzan were supervisors in the Agricultural Development Supplies Corporation Khanpur, were jointly involved in embezzlement of Rs. 15 I.Ac and were facing investigations in case FIR No. 346 88, under Section 409/406 dated 21.12.1988: (M & O) that the Inspector Dildar Hussain CIA had made discrete enquiries which indicated that the complainant had demanded money from the appellant for withdrawing himself from the demand made by them against the appellant:
(p) that the statement made by the complainants in the preliminary enquire and those made by them in the formal enquiry were mutually inconsistent:
(q) that the complainant Fazal Hussain had himself staled that the stolen articles were given to him by the SHO Inspector Muhammad Rafique who neither registered the case himself nor allowed the appellant to do so:
(r) that the said complainant Fazal Hussain had. Alleged that he had paid bribe to the appellant alter 6 months whereas witnesses Muhammad Ehsan and Ahmad Hussain had stated that bribe was given to the appellant after two months. Similarly, Fazal Hussain had mentioned the lime ot payment as 10.11 A.M. While Muhammad Ahsan had mentioned it at 12.00 noon.
(s) That the statement made by the complainant was partially wrong as the theft took place on 12.6.1086: that the appellant arrested the accused Muhammad Raza and Gulzar Ahmad on 22.8.1986 and they were sent to Jail on 5.9.1986. Obviously the appellant could not hate recovered the stolen properly from the accused after 6 months i.e. In December, 1986 while the accused were held in Jail since Sept. I986;
(t) that PW Abdul Majeed Adv: contradicted the story that the bribe had been paid to the appellant:
(u) that Qazi Abdul Majeed, Chief Officer MC Khanpur had stated before the enquiry Officer that Fazal Hussain complainant had admitted before him that he had not paid any bribe to the appellant;
(v) that it was unfair on the part of the inquiry Officer to have dismissed the statements made by the defence witnesses on the ground that they were interested witnesses as they were friendly with the appellant;
(w) that the inquiry Officer gave credence to the Statement of Muhammad Ramzan and Ahmad Hussain although they were colleagues of complainant Fazal Hussain in the ADSC and had joined hands with the complainant while embezzling Rs. 1 lac from the Corporation itself;
(x) that Anti-Corruption establishment. Multan had recommended departmental action against four Police Officials, of course, including the appellant but it was the appellant alone who was made a scape-goat;
(y) that that appellant had correctly registered case under Section 154 Cr.PC against the accused who had cut and stolen away the crops sown by complainant Hayat Muhammad, it was a genuine case which was eventually dropped by the DSP under political pressure/Consequently, the appellant could not have been accused of having registered a false case nor could lie have been accused of inefficiency in conducting investigations of the case.
The Learned counsel for the appellant virtually reiterated the above grounds of appeal in the course of the arguments advanced by him. As regards the alleged absence of the appellant from duty for about 14 days on 5 different occasions, the learned counsel asserted that the appellant- had never over-staved whenever he was deputed for duty. According to him. If there had been any absence or over-stay on the part of the appellant, the SHO would have obviously made an entry to the effect in the daily diary but no such entries were made by him. According to him the entries in the Goshwararegarding absence of the appellant made by the SHO 8/9 months later could not but be attributed to an after thought. As regards the alleged delay in the registration of case against the accused mentioned above, the Learned counsel asserted that responsibility for not registering the case against the said accused persons could not have been reasonably shifted to the appellant who could not have acted independently without the permission of the SHO. As regards the 3rd charge that the appellant had registered a false case with ulterior motives, the Learned counsel asserted that actually it was a genuine case but the DSP concerned had filed the case under extraneous pressure.
4. The Learned counsel also challenged the sanctity of the enquiry proceedings. He asserted that the enquiry Officer had virtually assumed the rule of a prosecutor himself which was refected by the suggestive questions pul forth by him to the witnesses in the course of enquiry proceedings.
According to the learned counsel, the appellant had sought transfer of enquiry to an other officer but the request was not granted by the Authority. The request for change of enquiry Officer further annoyed him with the result that out of sheer prejudice, he saw to it that all the charges were proved as a result of the enquiry. The learned counsel, therefore, urged that the impugned order whereby the major penalty of reduction in pay equal to his two increments was imposed on. The appellant by the appellate authority was also fit to be set aside.
5. File learned District Attorney appeared on behalf of the respondents. He observed that the inordinate delay on the part of the appellant in registering the case against the accused Qamar Raza and Gulzar Ahmad was by itself sufficient to entail his dismissal from service. According to him the appellant had recovered the stolen property and he was supposed to have ensured registration of case by giving necessary instructions to the Moharrir apart from returning the property to its owner. He stated that the case of theft was ultimately registered after 10 months.
Such a delay on the part of the appellant could not have, therefore, been condoned without appropriately punishing him. As regards the charge of absence from duty, the learned District Attorney maintained that the appellant had failed to produce certificate ol attendance from the office of IGP. And other courts, consequently, the defence plea taken by the appellant that he was on duty during the period of absence could not be admitted as correct. As regards the 3rd charge that the appellant had registered a false case, the learned District Attorney maintained that according to Noor Ahmad accused in the case, the case had falsely been registered against him and that the assertion of the complainants Hayat and Bagh Ali that the case had been genuinely registered and it was got dismissed by the DSP under pressure was not correct. The learned District Attorney, therefore, urged that the appeal was tit to be rejected Its the Appellate Authority had already taken a very lenient view in the matter.
6. I have carefully gone through the record of the case and have heard the learned counsel representing the parties. I have also carefully gone through the order passed by the DIG.
Bahawalpur Range as the Appellate Authority on 19.7.1990 (Annexure K). As regards the charge of absence from duty the Appellate Authority has mentioned specific instances in para 4 of his order as regards the over stay of the appellant while on duly at places outside his headquarters, for example, he referred to the departure of the appellant on 16.7.1986 vide daily diary entry No. 27 in the office of the DSP Headquarters R.Y.Khan, lie remained out of-the Police Station to 20.7.1986. He left for Lahore on 14.10.1986 to produce a file for perusal by the IGP's, office and returned to Police Station five days later i.e. On 19.10.1986. The Appellate Authority also mentioned the departure of the appellant to attend Sessions Court at R.Y.Khan on 17.9.1986 and his return to the Police Station on 19.9.1986. in view of these specific instances, the charge of over-slay on the part of the appellant while on tour duty cannot be brushed aside so easily.
7. As regards the second charge, the Said Appellate Authority partially held the appellant responsible for delay in registration of the case referred to in the preceding paragraphs although the said Authority did observe that the SI 10 loo should have been taken to task as delay in registration of case or the alleged acceptance of illegal gratification on the part of the AS1 could not have been possible without the consent of the then SHO". As regards the 3rd charge, the Appellate Authority felt that the appellant had failed to find out in I 3 days that the FIR No. 332/86 was false. The Appellate Authority observed that had the appellant been honest and efficient in. His profession, the period of 13 days would have been sufficient for him to lind out the truth or otherwise of the case, the Appellate Authority, however, fell that the penalty of dismissal from service was rather harsh and it is how the said Authority converted the penalty of dismissal from service to that of reduction in pay equal to his two years increments".
8. I tend to agree with the Appellate Authority. However, reduction in pay equal to two years increments has not as such been provided as a major penalty under the Punjab Police (B&D) Rules, 1975. According to rule 4 of the aforesaid Rules, stoppage of increments for a period not exceeding three years without cumulative effect lifts been provided as a minor punishment. However, the appellate Authority had imposed the penalty of reduction in pay equal to two increments. The Appellate Authority thus appears to have actually imposed upon the appellant the major penalty of reduction in pay provided under Rule 4(I)(b)(i) of the aforesaid Rules, in the case of a Civil Servant reduction in pay is ordered by "a stage". On that analogy, therefore, I am inclined to take the view that the penalty of reduction in pay by two years increments is fit to be converted to that of the penalty of reduction in pay by a surge in the relevant scale of the appellant. That would indeed make the punishment all the more reasonable and proportionate to the extent of guilt failure on the part of the appellant in the performance of his duties.
9. In view of the foregoing discussion. I allow the appeal, set aside the impugned orders and direct that the penally of reduction in pay equal to two years increments imposed on the appellant by the Appellate authority shall be converted to that of reduction in pay by a stage with effect from the date the aforesaid order was passed i.e. 13.2.1990.
10. The parties are left to bear their own costs.