1. ' Being aggrieved by the impugned final Order bearing No,20489- 99/E.II/L/29/1996, dated 21-10- 1996 of the respondent No,1 stated to have been received by the appellant on 16-1-1997, whereby his review petition has been rejected, the appellant has filed this appeal under section 4 of the Sindh Service Tribunal Act 1973, praying therein that orders of his dismissal and subsequent order passed in the departmental appeal (filed by the appellant), as well as the order passed in review petition may be set aside and the respondent be directed to reinstate the appellant in service with effect from 13-2-1996, with all back benefits.
2. ' The case of the appellant in brief as contended by the learned counsel is that he was appointed as Constable on 9-2-1991 in Police Department in District Larkana, when he served at different Police Stations after completing his trainings.
3. ' It was argued by the counsel for the appellant that while he was posted at Police Station Wagon, as Naib-Moherer, he was falsely involved in Criminal Case No,68 of 1992 and was challaned in the Court of Law. The appellant was released, on bail, by the said Trial Court of S.D.M. Larkana, while the case was in progress, he was suspended on 9-11-1992 and a show-cause notice, dated 29-12-1992 was served upon him by the respondent No,3 for the alleged involvement in the said criminal case of stolen motorcycle in which he had been challaned/arrested and F.I.R. No,68 of 1992 under section 14 of Tazeer was lodged at P-Section of Police Station Larkana on 9-11-1992.
4. ' Appellant replied to the aforesaid show-cause notice rebutting the allegations and took the plea that he was falsely involved on account of enmity with the S.H.O. That he neither stole the motorcycle nor it had been recovered from his possession. According to him the stolen motorcycle had been recovered from one Rustam Brohi, who was the actual culprit and who was left off by the S.H.O. He also requested a regular formal enquiry. According to him, the Mushirnama was prepared on 9-11-1992 in the absence of Mushirs and the Mushirs of the said Mushirnama executed their affidavit before the SDM Shandad Kot on 10-11-1992 i,e, the next day, which also clearly showed that only signatures were taken from them by the A.S.I. And neither the motorcycle was recovered in their presence, nor the appellant Deedar Ali son of Haji Khan Brohi was arrested in their presence.
5. The plea of the appellant has been corroborated by the SDM Larkana, who in his judgment in Case No,1433 of 1993, announced on 11-8-1993, has given benefit of doubt to the accused and has acquitted him. The appellant thereafter was reinstated in service with effect from 17-5-1993. After a lapse of about 3 years, he received dismissal order, dated 19-2-1996 but effective from 13-2-1996 and it was based on the same allegations levelled in the show-cause notice issued on 29-12-1992.
6. The appellant preferred departmental appeal against aforesaid dismissal order before the respondent No,2 mentioning therein his acquittal in the concerned criminal case by the Court of Law. However, according to him the appellate authority rejected the same on 22-5-1996 without giving any reason. The appellant thereafter filed a review application before the respondent No,1 against the order, dated 19-2-1996 of the respondent No,3 as well as appellate order on 22-5-1996 of the respondent No,2, mentioning once again the aforesaid facts with emphasis on his acquittal in the Court of SDM Larkana However, the respondent No,1 after calling comments of respondents Nos,2 and 3 rejected his review petition on 7-11-1996. The said order is stated to have been served on him on 16-1-1997 against which he filed appeal before the Sindh Service Tribunal on 12-2-1997.
7. ' The learned counsel for the appellant further contended that proceedings have never been conducted under the Sindh Police (Efficiency and Discipline) Rules, 1988. Only a show-cause notice was issued and the case decided without going into the merits of the case and consideration of the reply furnished to the accused, who had denied all the allegations. The Competent Authority, therefore, failed in applying his mind judicially as to how he formed such opinion. The counsel for the appellant submitted following citations:-
(i) PLD 1985 SC page 134.
(ii) 1985 SCMR page 1062.
(iii) 1989 SCMR page 333.
(iv) 1991 SCMR page 209.
(v) 1993 PLC (C.S.) pages 714 and 715.
(vi) 1993 PLC (C.S.) page 460.
(vii) 1993 PLC (C.S.) page 1291.
(viii) (viii)1995 PLC (C.S.) page 789.
8. ' He further argued that the final appellate order by the respondent No,1 is recorded just in two lines with no specific reason while the apex Court has repeatedly held that such orders should be specific and should give reasons after applying their mind judicially. He further cited the judgment 1991 SCMR 2330 and argued that the appellant has been condemned unheard without providing personal hearing any stage and thus, the order was against the principles of natural justice. He contended that retrospective order has no validity and authority has no power to issue a dismissal order retrospectively.
9. ' The learned A.A.-G. In his arguments mainly relied on paras. 1, 3, 4, 5, 6 and 9 of the written statement submitted by the Senior Superintendent of Police, Larkana and adopted by the respondents Nos,1 and 2. He further argued that the reply of the show-cause notice furnished by the appellant was not satisfactory and hence he was called for personal hearing on 13-2-1996 but he failed to appear deliberately to avoid the departmental proceedings, thus, the case was decided on 19-2-1996. According to him the D.I.-G. Also heard him in person on 8-5-1996 but he could not rebut the allegation, and after consideration of the case on merits, the respondent No,2 was pleased to reject the appeal on 22-5-1996. He further argued that the appellant had to file the appeal before the appellate authority argued that the appellant had to within 30 days of the 1st termination order on 19-2-1996 and he had to file an appeal with the Tribunal within 30 days, if the competent Authority did not decide his case within 90 days. As per his statement the appellate authority rejected his appeal on 22-5-1996 while his review petition has been dismissed on 21-10- 1996 while he filed the appeal with the Tribunal on 12-2-1997 which is time-barred. Accordingly to him the fact that he was acquitted from the Court has no bearing on the case, as the Superior Courts have held that proceedings under (E & D) Rules, 1988 can take effect simultaneously, to the proceedings in the Trial Court. According to him, the appellant was acquitted by the Court on account of lack of evidence and he was given the benefit of doubt, while the departmental committee initiated the proceedings under the (E & D) Rules, 1988 and awarded punishment. He further argued that the appellant was appointed in the year 1991 and during the probationary period, he was involved in a theft case in the year 1992. He further argued that second show-cause notice was issued to him on 16-3-1995 and the case was decided as per Police Rules (E & D), 1988.
10. He cited the judgment reported in PLC (C.S.) in 1993 at page 60.
11. ' The counsel for defence in his counter arguments, further contended that the 2nd show-cause notice in the year 1995 was in a different case with unspecified charges and was decided with the punishment of censure. Hence it is not relevant to the present case.
12. We have gone into the merits of the case and following are the findings in the light of judgment of the Superior Courts cited by the counsel for the appellant and A.A.-G.
(a) The order of the dismissal of the service of the appellant has been passed due to his involvement in the theft case of motorcycle, which is stated to have been recovered from him and that he was challenged in the Court of Law accordingly. However, the judgment of the S.D.M.
13. Larkana in Case No,1433 of 1993 given on 11-8-1993, clearly shows that the accused has not been nominated in the F.I.R. Therefore, the sole evidence against the accused to connect him in the case of theft is the recovery of the stolen motorcycle in presence of 2 Mushirs. However, both of the mushirs did not implicate the appellant in the recovery and the charge became groundless. He was accordingly acquitted by the S.D.M. Larkana under section 249-A of Criminal Procedure Code, thus, making dismissal order unmaintainable which was solely heard on this point. In case the department was of the view that the Mushirs had been influenced by the appellant, it was necessary for it to either bring further evidence, or to have appointed an Enquiry Officer to investigate into the matter. This becomes, all the more important, because of the fact, that he was reinstated in the service on 17-5-1993 i,e, before his acquittal by the Trial Court, while he has been dismissed on 19-2-1996 without taking into the consideration the judgment of the Trial Court. Thus, it seems that the department has given no importance, as far as the judgment of the trial Court is concerned.
(b) In clear departure to the procedure laid down under Rule 6 of the Sindh Police (E & D) Rules, 1988, it seems that the competent Authority has not applied its mind while passing the impugned order. There is no justification to take into the consideration charges of the appellant involved in crime, in which the prosecution miserably failed to establish the charges against the appellant, before the trial Court. No final show-cause notice seems to have been issued which was quite mandatory before the imposition of the penalty of the dismissal from service.
14. ' The order of dismissal from service. Passed by the Authority, therefore, suffer from legal infirmity. It is, therefore, set aside with no order as to the costs. The intervening period may be treated leave if due.