' The appellant Khadim Hussain, A.S.I. 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 (1) 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 of theft, and after accepting Rs,5,000 as illegal gratification, on the recommendation of Jam Abdul Karim, Advocate, you also recovered and repatriated some stolen property to the complainant but 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/1) followed by yet another explanatory memo. Dated 13-7-1988 (Annexure D/2). While submitting the above explanation, he also appended thereto list of defence witnesses in which he mentioned as many as 12 defence witnesses, including a police official namely Dildar Ali Aheer, Inspector of Police, C.I.A. A regular enquiry was instituted by the S.P., Rahim Yar Khan (i,e, respondent No, 1) who appointed the D.S.P. (Legal) as Enquiry Officer to hold the enquiry. As many as 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 Officer vide his detailed enquiry report, dated 11-8-1988 (Annexure 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, S.P., Rahimyar Khan. The appellant was also given personal hearing on 24-971988 by the aforesaid Authority (i,e, respondent No, 1). 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 filed the appeal before the D.I.-G. Police, Bahawalpur Range on 7-.11-1988 (Annexure J). The said Appellate Authority vide his order, dated 13-2-1990 (Annexure K) re-instated 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, converted 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 service 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 grounds 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, 1 had not applied his mind, had failed to evaluate the evidence and police record and that he had 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 in spite of a request having been made by the appellant to the Authority for the change of Enquiry 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 F.I.R. No, 122/87 under section 457/380, P.P.C. At P.S. 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 S.H.O. Through a Goshwara 8/9 months later on only indicated that it was done as a result of an afterthought, just to pressurise the appellant;
(h) that the appellant had actually remained on duty and the allegation that he had absented himself from duty had no basis;
(i) that the appellant had recovered the stolen property from the accused Qamar Raza and Gulzar Ahmad in case F.I.R. No, 228/86 and F.I.R. 215/86 and had handed over the requisite articles to the S.H.O. Consequently, it was the responsibility of the S.H.O. Who had taken over the recovered 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 S.H.O. The failure of the S.H.O. 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 blackmailing as stated in the report of Inspector, VIA 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,5,000 to the appellant and that these were delivered in the presence of two persons contained contradiction on the point of time and date; that all the witnesses produced on the prosecution side were interested witnesses and close friends/colleagues of the said complainant Fazal Hussain.
Consequently, the evidence did not inspire confidence; 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 lacs and were facing investigations in case F.I.R. 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 enquiry and those made by them in the formal enquiry were mutually inconsistent;
(q) that the complainant Fazal Hussain had himself stated that the stolen articles were given to him by the S.H.O. 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 after 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 time of payment as 10/11 a.m. While Muhammad Ehsan had mentioned it at 12 noon;
(s) that the statement made by the complainant was partially wrong as the theft took place on 12- 6-1986; 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 have recovered the stolen property from the accused after 6 months i,e, in December, 1986 while the accused were held in jail since September, 1986;
(t) that P.W. Abdul Majeed, Advocate contradicted the story that the bribe had been paid to the appellant;
(u) that Qazi Abdul Majeed, Chief Officer, M.C. 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 Enquiry 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 Enquiry Officer gave credence to the statements of Muhammad Raman and Ahmed Hussain although they were colleagues of complainant Fazal Hussain in the ADSC and had joined hands with the complainant while embezzling Rs,15 lacs 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 scapegoat;
(y) that the appellant had correctly registered case under section 154, Cr.P.C. 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 D.S.P. Under political pressure. Consequently, the appellant could not have been accused of having registered a false case nor could he have been accused of inefficiency in conducting investigations of the case.
3. 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-stayed 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 S.H.O. 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 Goshwara regarding absence of the appellant made by the S.H.O. 8/9 months later on could not but be attributed to an afterthought. 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 S.H.O. 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 D.S.P. 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 role of a prosecutor himself which was reflected by the suggestive questions put 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. The 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 of attendance from the office of I.-G.P. 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 Ahmed 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 D.S.P. Under pressure was not correct. The learned District Attorney, therefore, urged that the appeal was fit to be rejected as 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 D.I.-G., 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 overstay of the appellant while on duty 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 D.S.P., Headquarters, R. Y. Khan. He remained out of the Police Station up to 20-7- 1986. He left for Lahore on 14-10-1986 to produce a file for perusal by the I.-G.P.'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 the specific instances, the charge of overstay 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 S.H.O. Too should havt been taken to task as delay in registration of case or the alleged acceptance of illegal gratification on the part of the A.S.I. Could not have been possible "without the consent of the then S.H.O." As regards the 3rd charge, the Appellate Authority felt that the appellant had failed to find out in 13 days that the. F.I.R. 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 find out the truth or otherwise of the case. The Appellate Authority, however, felt 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 (E & D)
Rules, 1975. According to rule 4 of the aforesaid Rules, stoppage of increments for a period not exceeding three years without cumulative effect has 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 then appears to have actually imposed upon the appellant the major penalty of reduction in pay provided under Rule 4(1)(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 stage 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 penalty 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. accordingly.