1. MUNAWAR ALI KHAN (CHAIRMAN). ---The appellant Niaz Hussain was a Head Constable when he was awarded major punishment of forfeiture of to years approved service vide order-dated 6-10- 1993 of S.S.P., Larkana. He filed the departmental appeal against the said order which was rejected by the D. I.-G.P.'s order dated 19-4-1994 Thereafter the appellant approached the I.-G.P. But he to turned down his revision petition by his order dated 29-9-1994. Then he filed the present service appeal before this Tribunal on 13-10-1994.
2. The factual background of the appellant's case is that to begin with he was served with charge- sheet dated 22-9-1992. The allegations accompanying the charge-sheet were as under:-- "On the night between 8th and 9th April, 1992 an incident of attack on Police Station Warah by armed dacoits took place in which C/1878 Ali Asghar was Shaheed and 6 Government Weapons alongwith ammunitions taken away by the dacoits.
3. While your posting at Warah P.S. As W.H.C. You did not react/resist the dacoits at the the of incident and shown your cowardice which helped the decoits who ran away after committing such a heinous offence.
4. The appellant submitted his reply to the charge-sheet denying the allegation made against him. It appears that to Enquiry Officers were appointed to probe into the allegations made against the appellant Agha Mir Alvi, a Sub-Divisional Police Officer, Larkana who was appointed as 1st Enquiry Officer submitted his report recommending that some minor punishment be awarded to the appellant. Somehow the S.S.P., Larkana was not satisfied with his report and therefore he appointed Mr. Allah Dino Khan Mahar, Additional S.P., Larkana to hold the necessary enquiry in the appellant's case. As per report submitted by the said Enquiry Officer he honourably exonerated the appellant from all the charges. Unsatisfied with this report to the S.S.P., Larkana called the appellant in orderly room on 15-10-1993 and gave him personal hearing. As a result of the appellant's personal audience with the S.S.P. The latter vide the impugned order awarded to him to major punishment as mentioned above.
5. We heard Mr. M.L. Shahani for the appellant and Mr. Zawar Hussain Shah, A.A.-G. On behalf of the official respondents. With the assistance of the said learned counsel we also went through all the relevant documents for disposal of the appeal.
6. As pointed out above Mr. Agha Mir Alvi the 1st Enquiry Officer after holding requisite departmental inquiry recorded the following findings in his report:-- "From the above discussion and perusal of the above facts allegations not proved against the defaulter HC/743 Niaz Hussain (now Constable). Because after verifying the facts worthy Inspector- - General of Police, Sind Karachi promoted him in the rank of Assistant Sub-Inspector of Police due to his good performance. But there is some mistake he failed to deposit/put Government Weapons in Record Room instead of Malkhana which were taken away by the dacoits. Therefore, I recommended to award him minor punishment."
7. It would appear from the above findings that -the actual allegations made against the appellant were not proved. However the learned Enquiry Officer punished the appellant on the basis of the mistake he had allegedly made in depositing the Government Weapons in record room instead of Malkhana from where they were taken away by the dacoits. In this connection the contentions raised by the appellant learned counsel was that so-called mistake of depositing the Government Weapons in Record Room instead of Malkhana was not part of allegations made against the appellant. The contention being unexceptionable we are inclined to agree with the learned counsel. Since the issue of mistaken deposit of weapons was not mentioned in the allegations accompanying the charge-sheet the appellant had no opportunity to furnish his explanation for the same. Therefore we are of the view that he could not be condemned unheard. In other words the punishment awarded to the appellant could not be based on something (i.e. Mistaken deposit of the weapons) which was not brought to the notice of the appellant.
8. However the competent Authority namely the S.S.P., Larkana was apparently not satisfied either with the findings of the Enquiry Officer or with his recommendation for awarding minor punishment to the appellant. This was clear from the fact that he entrusted the departmental enquiry to another Police Officer namely Mr. Allah Dino Khan Mahan, Addl. S.P., Larkana. But again this Enquiry Officer to could not satisfy the learned S.S.P. It may be significant to refer to his observations in the enquiry report he had submitted to S.S.P., Larkana vide his letter dated 14-1993. The observations read as under:-- Special promotion of H.C. By I.-G.P., Sind, Karachi vide D.I.-G.P., Larkana No. E.I./56-34-37, dated 26- 4-1992 for gallantry and best performance of W.H.C. It is proved that he deserved to be rewarded.
9. Reward by worthy I.-G.P., Sind, Karachi who is Commander of whole Police Force of Sind Province is sufficient to prove innocence of W.H.C. Special Award and any punishment for the same incident is against the spirit of justice.
10. I, therefore, recommend honourable exoneration of W.H.C. With remarks that issue of charge-sheet against such type of subordinate was totally unjustified which has caused mental torture to a good subordinate.
11. I would suggest this type of haphazard and careless action be discouraged and recommend exoneration of PC from the charges.
12. From the above observation of the Addl. S.P., Larkana/Enquiry Officer no doubt was let in our mind that no charge was proved against the appellant who was therefore declared innocent so much so that in respect of the same incident for Which he had been provided against departmentally he was rewarded by the highest Police Authority namely the D. I.-G. P. By way of promotion for his gallantry and best performance. In view of such reward we agree with the views expressed by the Addl. S.P./Enquiry Officer that he could not be simultaneously punished for such incident and if so done it would militate against the spirit of justice. We also agree with him that such type of haphazard and careless action be discouraged. Appellant's learned counsel drew our attention to the appellant's promotion order to the rank of A.S.-I. Appearing at Annexure 'A' in the case file. We have perused the said order which clearly referred to the same incident for which departmental action was initiated against the appellant and he was ultimately punished for the same. The observations of Addl. S.P./Enquiry Officer hereinabove find full support from the aforesaid promotion order.
13. In view of above discussion we are at a loss to understand what, formed the basis of the appellant's punishment. For answer to this we went through the punishment order itself. It may perhaps be useful to reproduce here the relevant portion of the said order:-- "After conducting regular departmental proceeding Enquiry Officer sent his findings in which he was found guilty to deposit/put Government weapons in Record Room instead of Malkhana and recommended for minor punishment. Former S.S.P., Larkana Mr. Muhammad Ramzan Channa disagreed with the quantum of punishment, recommended by Enquiry Officer. Therefore Mr. Allah Dino Khan Mahar, Addl. S.P., Larkana was appointed as Enquiry Officer for conducting regular departmental proceeding afresh. After conducting regular departmental proceeding, Enquiry Officer sent his findings and recommended for exoneration of the incumbent from the charges levelled against him.
14. He was, therefore, called and heard in person in Orderly Room held on 15-10-1993. His oral explanation was found unsatisfactory. The departmental proceeding file and his other service record was also perused. The incumbent would have deposited/kept the Arms in Malkhana instead of keeping the same in Record Room. Hence he is guilty of the misconduct.
15. I also do not agree with the recommendation of Enquiry Officer and award him major punishment of forfeiture of approved service for to years.
16. Due to award of major punishment, he is also removed from list C-1 with effect from 15-10-1993."
17. We are sorry to note that the learned S.S.P. While awarding punishment to the appellant has not given any reason in support of his thinking. Particularly when to Enquiry Officers one after the other had held in their reports that none of the charges accompanying the charge-sheet had been proved against the appellants. Therefore, S.S.P.'s order having no basis could not be legally sustained. It is true that he had called the appellant in the Orderly Room and had provided him personal hearing. But what transpired between the appellant and the S.S.P. In the Orderly Room has not been brought on record. As such we attach no importance to such personal hearing. Like the S.S.P. The learned D.I.-G.P. To has not assigned any reason for rejecting the appellant's departmental appeal.
18. For above reasons we are of the view that impugned order of the appellant's punishment could not be legally upheld.
19. The learned A.A.-G. However, raised his objection that appeal was liable to be dismissed on the ground of limitation. According to him after the dismissal of his departmental appeal by the D.I.- G.P. The appellant approached the I.-G.P. In revision for which the the spent by him could not be condoned. This statement was not disputed by the appellant's learned counsel who however contended that in the circumstances of the case the appellant was perfectly justified in going in revision before the I.-G.P. And as such he had made an application for condonation of the period consumed by him in perusing the matter before the I.-G.P. The contention of the learned counsel was that the S.H.O. Of the Police Station concerned was proceeded against simultaneously with the appellant in respect of the same incident. He, to, was admittedly punished like appellant. As the said S.H.O. Filed the revision petition before the I.-G.P., the appellant who was inferior in rank to him was naturally tempted to follow the suit. He further submitted that the S.H.O.'s move bore fruit as his punishment order was set aside by the I.-G.P. But unfortunately the petition of the appellant whose case was identical in all respects with that of the S.H.O. Was rejected. The appellant's learned counsel, therefore, urged that in the aforementioned peculiar circumstances, the appellant should not be penalised and his appeal which is otherwise bright on merits should not be dismissed on the ground of limitation. We are inclined to agree with the reasoning of the appellant's learned counsel and condone the period that he had taken in pursuing his case before the I.-G.P.
20. As a result of above discussion the appeal is allowed with no order as to costs.