1. ' Being aggrieved by the order, dated 23-94991 passed by the respondent No,3 whereby the appellant has been dismissed from service and subsequent order, dated 16-1-1993 passed by the respondent No,2 (Appellate Authority) rejecting the appeal of the appellant and finally the review application also rejected by respondent No,1 on 3-9-1996, the appellant has approached this Tribunal under section 4 of the Sindh Service Tribunal's Act, 1973, praying therein that these orders may be set aside alongwith order of his reinstatement from the date of dismissal i,e, 23-94991 with all consequential and back benefits to be paid to him. Brief history of the case as contended by the learned counsel for the appellant is as follows:
1. That the appellant initially joined Police Department District, Sukkur on or about 1-5-1986 as Police Constable. The appellant after his appointment successfully completed recruitee course from Police Training School Saeedabad, Karachi. The appellant also underwent Al Course at District Police Headquarters, Shikarpur. According to him he performed his duties in a befitting manner, to the entire satisfaction of the superiors, there has been no disciplinary action against him till 13-4- 1988, when the appellant was deputed for escorting U.T.Ps. To Sukkur Jail. The escort party consisted of himself and Police Constables namely: Abdul Rauf, Shahmir, Saeed Ahmed and Qamar Abbas Shan headed by A.S.I. Mohsin Raza Shah. While it was waiting for train at Railway Station Nawabshah alongwith U.T.Ps. To escort them to Sukkur, one U.P.T. Namely Khamiso son of Eidan Brohi involved in case Crime No,54 of 1987 under section 302, P.P.C. Managed his escape from the direct custody of P.C. No,630 namely Qamar Abbas Shah. Accordingly a criminal case, Crime No,5 of 1988 was registered against A.S.I. Mohsin Raza Shah and P.C. Qamar Abbas Shah, while the appellant as well as other three constables, who were members of the said police party, were not involved in the aforesaid case. However, at the time of submission of challan before the Court for judicial trial, their names were included and also shown in the charge-sheet They were also suspended from Government service on 14-4-1988 on the basis of the allegations of escape of said U.T.P. From their custody. The appellant and other members remained under suspension for about 3/4 months but were reinstated thereafter pending Departmental proceedings against them. Each of them were charge-sheeted separately under Sindh Police (E&D) Rules, 1988. On 10-5-1988 in reply to the aforesaid charge-sheet the appellant submitted his reply on 15-51988 requesting the Superintendent of Police Nawabshah to keep the case of departmental action pending till a judicial verdict in a criminal case of escaping of UTP, filed against him. According to him no further action was taken by the departmental authorities on the reply, nor any inquiry of investigation was carried in respect of the said charge-sheet. However, the appellant received a final show-cause notice on 26th August, 1991 informing him that his reply to the charge-sheet was unsatisfactory and that the DSP Headquarters who was appointed as Inquiry Officer has proved him guilty of the charge and recommended for award of a major penalty to him. Moreover, the respondent No,1 under his Letter No 9518/E-II, dated 26-5-1991 addressed to the D.I.-G., Sukkur had also ordered to discharge all the police men responsible for the escape of U.T.Ps. As such the appellant was called upon through this final show-cause notice as to why a major penalty as defined in Sindh. Police (E&D) Rules, 1988 may not be imposed upon him. It was also mentioned therein that he should inform clearly whether he desired to be heard in person. The appellant replied to this final show-causae notice mentioning therein all facts, circumstances and other relevant factor in respect of the escape of U.T.P. Khamiso on 13-4-1998. The appellant had clearly mentioned therein that U.T.P. Khamiso had escaped from direct custody of Constable No,630 Qamar Abbas Shah who had taken the said escapee to latrine on the direction of A.S.I. Mohsin Raza Shah, Incharge of the Police Party and that the appellant and other members of the Police Party were standing far from the latrine and guarding over the remaining 12 U.T.Ps. As such the appellant in any cage was not concerned with the said escapee. The appellant thus, denied each and every allegation in the charge-sheet, in his reply to the final show-cause notice. The counsel further contended that the DSP Headquarters had not made any inquiry in respect of incident in presence of the appellant or in the presence of any other police constable. According to him the appellant did not receive any inquiry report; thus it was presumed that no inquiry had been conducted in any way. It was further pleaded by the counsel for the appellant that he was not called for any personal hearing but suddenly received dismissal order by the Superintendent of Police Shikarpur, dismissing him from service. The appellant in respect of aforesaid dismissal order filed a departmental appeal, dated 2-10-1991 and once again mentioned all the facts, circumstances factual aspects of the, aforesaid escape, pointing out that Inquiry Officer has given ex parte Endings. Respondent No,2 called for the comments of respondent No, 3 and on the receipt of the same, rejected his reply on 16-1-1993.
2. According to him the appellate authority i,e, D.I.-G. Larkana Range did not apply his mind while rejecting the said appeal. Meanwhile the appellant and his other companions who were facing criminal trial before the Competent Court in respect of the aforesaid incident of escape vide F.I.R.
3. No,5 of 1988 were acquitted by the Joint Civil Judge and FCM, Nawabshah, except the accused P.C.
4. Qamer Abbas Shah. That the appellant thereafter in view of the aforesaid acquittal, filed a review appeal before the Inspector-General of Police i,e, respondent No,1 on 7-12-1994, who rejected the same on 3-9-1996 under a decision in one and half line without mentioning any reason or any other ground.
5. ' The learned counsel for the appellant also cited following judgments:--
(a) PLD 1985 (SC) page 134.
(b) 1985 SCMR page 1062.
(c) 1989 SCMR page 333.
(d) 1991 SCMR page 2C9.
(e) 1993 PLC (C.S.) pages 714 and 517.
(f) 1993 PLC (C.S.) page 460.
(g) 1993 PLC (C.S.) page 1291.
(h) 1995 PLC (C.S.) page 789.
6. ' A.A.-G., in his arguments contained that the appellant had failed to qualify the course 'Al' at District Nawabshah. According to him the criminal case No,5 of 1988 under sections 223, '224 and 225, P.P.C.
7. Was registered against them including the appellant and they were challaned in the Court of Law.
8. The appellant was served charge-sheet No,SSC/91421, dated 10-5-1988 and his reply was found unsatisfactory. DSP Headquarters was nominated as Enquiry Officer on 31-12-1988, who recommended on 14-5-1989 for major penalty to be inflicted upon the appellant. Meanwhile he got himself transferred from Nawabshah to Shikarpur to avoid necessary departmental action. SP Nawabshah transferred the enquiry papers to DSP Shikarpur, who issued said final show-cause notice as his reply was found unsatisfactory. He was called for hearing in the orderly room on 16-9- 1991 to provide him final opportunity of personal hearing but he failed to avail this opportunity which proved his being guilty of the charges. He further contended that the Enquiry Officer has conducted the Enquiry properly and he after finding him guilty of the charge recommended his case for major penalty. He was served with final show-cauase notice on 26-8-1991 and he was also given personal hearing on 16-9-1991. Thus, according to him no irregularity has been committed in the proceedings and they have been conducted according to Sindh Police Rules 1988. Whereby Rules No,6 lays down the procedure and sub-rule 6(a) prescribes the major penalty of dismissal for misconduct. He also produced the service record of the appellant, to support his arguments.
9. ' Counsel for the appellant in his counter-arguments contended that the enquiry was not conducted according to the rules and no witnesses were examined in his presence, nor any copy of enquiry report was supplied to the appellant. He further cited following judgments in support of his arguments:
(1) PLD 1981 SC page 176.
(2) 1996 SCMR page 802.
(3) 1993 SCMR page 1440.
10. ' These citations can be summarized as follows: PLD 1985 (SC) page 134, 1985 SCMR page 1062, 1989 SCMR page 333 and 1991 SCMR page 209 hold that proceedings in criminal and departmental proceedings are. Distinct. The Competent Authority should prove the charges in the departmental proceedings irrespective of acquittal from proceedings in criminal trial. It is further provided that if the removal/dismissal during departmental proceedings is based on conviction in the trial Court, which is subsequently set aside in appeal, the order of dismissal cannot be maintained and has to be set aside. Since in the present case, the appellant was proceeded against simultaneously in departmental proceedings as well as in criminal proceedings, it was necessary that the Enquiry Officer should have carried a detailed inquiry communicating statement of allegations to the accused on the very outset, explaining the charges, then recording the statement of the witnesses under Oath and the Authoriased Officer had to provide a copy of the inquiry report to the accused before taking the final action as provided in Rules 5 and 6 of the Efficiency and Disciplinary Rules and as in the judgment reported in PLD 1981 (SC) page 175. This seems to have not been done.
11. Further, the judgment reported in 1993 SCMR page 1440, 1996 SCMR page 802 provides that there is a marked distinction between Rules 5 and 6 of the Efficiency and Disciplinary Rules inasmuch as under the former rule a regular inquiry can be dispensed with whereas the latter rule envisages conducting of regular inquiry- which would necessitate the examination of witnesses in support of the charges brought against the accused civil servant, his right to cross-examined such witnesses and his right to produce evidence in rebuttal. It further provides that once the department has decided to opt Rule 6 of Government Servant (Efficiency and Disciplinary) Rules, 1973 and to hold a proper inquiry by an Enquiry Officer, it could not have resorted to Rule 5 with any justifiable reason.
12. This seem to have not been done. In the present case after issuance of charge-sheet no proper inquiry seems to have been conducted by the Enquiry Officer. The judgment reported in .1993 PLC (C.S.) page 460 holds that dismissal on registration of criminal case wherein the accused is subsequently discharged or acquitted there existed no valid ground any more for his dismissal. In the same ruling, it has been that final show-cause notice is a must before dismissal. The rules reported in 1993 PLC (C.S.) page 714 and 1993 PLC (C.S.) page 1291 further hold that the entire proceedings against an accused become illegal and invalid on account of non-observance of provisions of Rule 6 of Sindh Police (Efficiency and Disciplinary) Rules, 1988 which clearly laid down the procedure. In the light of the aforesaid judgments, we hereby set aside the impugned Order No,OB/2494, dated 23rd September, 1991 and remand back the case to the department to hold a fresh inquiry against the accused. The intervening period is decided as leave if due. There will be no order as to costs.