' ROSHAN ALl MANGI (MEMBER).---The background of this case is that the appellant, Muhammad Yasin Kalwar, while he was Inspector, SHO Police Station, Industrial Area, Islamabad in 1996, was alleged to have been made a scapegoat on the basis of a frivolous complaint lodged by one namely Khurshid Ahmad, alleging therein the taking of Dollars 1,25,000. Consequently a criminal case F. I. R. No,310, dated 7-11-1996 was registered against him and others at Police Station, Industrial Area,' Islamabad. The case is presently under judicial process.
2. Prior to the registration of the criminal case, the appellant was. Suspended on 23-10-1996. An inquiry was held by A.S.P. City, Islamabad (Sultan Ali Khawaja). On the basis of that inquiry, the appellant was served with a show-cause notice dated 8-1-1997, which was replied by the appellant pleading not guilty with further request to provide him a copy of inquiry report and other necessary material record on the basis of which he could make a proper defence reply.
3. Without giving due consideration to the appellant's above request, he was imposed major penalty of dismissal from service on 22-2-1997 against which the apellant made a departmental appeal dated '3-3-1997 but the same remained unresponded to even after the mandatory period of 90 days. Hence this appeal.
4. The learned counsel Sheikh Riazul Haq, Advocate, appeared on behalf of the appellant and respondents' side was represented by Mr. Shujaat Hussain Naqvi, PDSP(Legal
5. Pleading the case of the appellant, the learned counsel at the very outset pointed out that the appellant had denied the allegations. He, therefore, argued that where there are disputed question of facts, then the requirement of law is. To hold a normal enquiry to afford the chance to the accused to 'cross-examine the prosecution witnesses, and enable him to defend himself. It is only through the normal enquiry that one would arrive at the truth. In this regard he cited 1997 PLC (C.S.)
817, the relevant extract is reproduced:- "If the allegations against the accused civil servant/employee are Of serious nature and if he denies the same, a regular inquiry cannot be dispensed with. In such a case, the initial burden is on the department to prove the charge, which cannot be done without producing evidence. If the witnesses are examined in support of the charge by the department before the Inquiry Officer, the accused civil servant/employee has the right to be present at the time of examining of such witnesses and has also the right to cross-examine them to demonstrate that they are not telling the truth. He has further right to produce evidence in rebuttal."
6. He further alleged that the appellant was neither provided copy of the inquiry report nor he was associated in the inquiry. He was not given personal hearing either. As such the appellant was deprived of right to put up his defence against the allegations.
7.The respondents instead have adopted a summary procedure as such negated the cannon of justice. The learned counsel stressed that in case the shorter procedure is to be adopted then the material which becomes the-basis of issue of show-cause notice and the material on which a person is penalized must be supplied to the accused. In the instant case, neither he was provided the copy of the inquiry report nor was given the material required to enable him to put up his defence. As such the whole process of inquiry was vitiated. In support, he relied on the judgment of the Supreme Court reported in 1980 SCMR 850 relevant extract of which is reproduced below:-- "Enquiry Committee's Report part of material forming basis of appellant's dismissal--Officials concerned never participating in such inquiry and thus, never confronted with such report--Author of Report being not available for cross-examination, view taken by Tribunal, held, illegal."
8. He pleaded that the appellant did not confess the allegations, neither the respondents have produced any unassailable proof in this regard. These very facts show a hasty action of the respondent to resort on summary proceeding. Since there was no unassailable evidence with the respondents, hence the summary proceeding was not right in the eye of law. In fact there was a need to conduct an inquiry under section 6 to arrive at the truth, by allowing the appellant to participate in such an enquiry. In this regard he cited 1980 SCMR 850. This has made the process of summary proceeding doubtful. In these circumstances, the major penalty imposed on the appellant is unjustified. He also cited number of judgments in his support. It is not only the matter of the career, of the appellant, who has already put up the service 16 years, but also the question of livelihood of his family, who should not suffer for no fault of theirs.
9. Since the whole process of inquiry is vitiated, by the circumstances of the facts, therefore, there is no justification to impose a major penalty of dismissal from service and it will not be correct in the eye of law. Therefore, he prayed that the impugned order be set aside and the appellant be reinstated into service with all back benefits.
10. The respondents' side on the other hand, have also filed their comments, wherein it has been stated that a complaint was received from one Khurshid Ahmed, regarding illegal unwarranted raid on his house by the appellant. It was alleged by the complainant that the appellant raided his house illegally and without due regard to the ladies present in the house. While conducting the search he took away Dollars 1,25,000 with mala fide intention. Accordingly, the Enquiry Officer was appointed, who conducted the inquiry and held the appellant guilty of taking away the abovesaid money, alongwith valuable documents. He was also held responsible for house-trespass and disregarding the ladies of the house..
11. The appellant was suspended. Necessary show-cause notice was issued to the appellant vide letter dated 8-1-1997 which also contained opportunity to the appellant to explain his conduct. The reply of the appellant was received and placed on the record. After going through the relevant record and the show-cause notice reply thereto and the personal hearing in Orderly Room on 22- 2-1997 he was imposed major penalty of removal from service vide order dated 22-2-1997.
12. It has been stated that the inquiry report is evident that the questions were posed to the appellant in the presence of both the parties and as such he was associated with enquiry, and therefore, there was no need to make a separate cross-examination process. So. Far as the supply of copy of the inquiry report is concerned, the appellant had no doubt requested in the reply that he made to the show-cause notice. However, he did not submit his request in the shape of a separate request. The appellat was afforded personal hearing. However, he could not put up any plausible cogent reply in his defence, therefore, having made him guilty of misconduct, he was dismissed from service. As such it has been prayed that this appeal be dismissed being baseless.
13. We have heard the parties and perused the record. The show-cause notice is reproduced below:- "SHOW-CAUSE NOTICE ' You, S.-I. Muhammad Yasin Kalwar, while posted at Police Line, Headquarters, Islamabad failed to perform your official duty in an appropriate manner in that:--- ' A complaint was received against you that yc u have taken 1,25,000 US Dollers and valuable documents with malacious/fraudulent intention from one Khurshid Ahmed, thereby preliminary enquiry was conducted through Mr. Sultan Ali Khawaja, ASP/City-I, who in his findings found you guilty of taking/receiving the above money and valuable documents, committed house-trespass, disregarding the presence of ladies of said house .And upon such findings a criminal case F...R. No, 310 dated 7-11-1996 under sections 409/419/109/384/342/452, P.P.C. And 5/2/47/P.C.A. Was registered at Police Station I-Area. Consequently you were placed under suspension and your involvement in such a criminal case amounts to gross misconduct/inefficient/disobedience.
' By reasons of . The above, you appear to be guilty of misconduct/inefficiency within the meaning of rule 3 of the Pubjab Police (E & D) Rules, 1975 entailing one of the minor/major penalties as envisaged in Rule 4(h) of the said Rules as adopted by Islamabad Police.
' Having considered the facts and circumstances I am satisfied that there is ample proof and record to initiate General Police proceeding under Rule 6(3) of the said Rules against you.
' You are hereby called upon to show-cause notice within 7 days of the receipt of this in accordance with Rule 6(3) of the Punjab Police (E & D) Rules, 1975 as adopted by Islamabad Police as to why one of the minor/major penalties including dismissal from Service may not be imposed upon you stating at the time whether you desire to be heard in person. It shall be presumed that you have no explanation to offer and shall be proceeded ex parte.
(Sd.)
(NASIR NAWAZ), Senior Superintendent of Police, Islamabad.
' No,111 /EC, dated 8-1-997.
14. The perusal of the show-cause notice reveals that the allegation so levelled does not appear to have been established. The words underlined by us mentioned in the above show-cause notice, create doubt. There appear clear contradiction in the two statements The respondents' side did not submit any material to prove that the appellant's guilt is established nor they could submit any statement of appellant's confession to establish allegation against him. Moreover, the respondents have failed to meet the objection that the summary proceeding was conducted without providing unassailable evidence. As such, such enquiry was not in accordance with, law and facts. As such the learned counsel's allegation that appellant was mala fidely treated seems to have some basis.
This apprehension, also gets the strength from the facts that there was no rebuttal by the respondents to the objections raised by the learned counsel for the appellant.
15. It appears that the inquiry conducted by A.S.P. City (Sultan Ali Khawaja) was of preliminary nature i,e, merely a fact-finding inquiry and the major penalty of dismissal from service, in our opinion, cannot be imposed on the basis of such enquiry especially when the facts are being disputed by the appellant and no allegation has been proved against him in concrete term. Under these circumstances, full-fledged inquiry was essential. The appellant should have been afforded opportunity of cross-examination of the prosecution witnesses and heard personally. In this regard the judgment of the Supreme Court reported in 1997 PLC (C.S.) 873 is very much clear, wherein it has been held: "If an accused civil servant/employee is charged with misconduct of the nature which cannot be proved without holding of regular enquiry, the removal or dismissal from service of a civil servant on the basis of summary enquiry is not sustainable in law."
' Another judgment of the Supreme Court reported in 1997 PLC (C.S.) 817 is also very much clear on the point, wherein it has been held: "If the allegations against the accused civil servant/employee are of serious nature and if he denies the same, a regular inquiry cannot be dispensed with. In such a case, the initial burden is on the department to prove the charge, which cannot be done without producing evidence. If the witnesses are examined in support of the charge by the department before the Inquiry Officer, the accused civil servant/employee has the right to be present at the time of examining of' such witnesses and has also the right to cross-examine them to demonstrate that they are not telling the truth.He has further right to produce evidence in rebuttal."
16. As such the conduct of summary proceedings seem unwarranted especially when the authority did not come out with any concrete reason to do away with the formal inquiry as required under the Government Servants (Efficiency and Discipline) Rules, 1973. Rule 5 of these Rules empowers authorized officer to direct enquiry against Government servant through an Enquiry Officer or Enquiry Committee or if he is satisfied, may order that there would be no enquiry in the interest of security of the country. Under Rule 5(1)(iii) an authorized officer has discretion to decide whether a regular inquiry should be held or not, but the discretion should be exercised fairly and reasonable and not arbitrarily or capriciously with the object to deny the civil servant the right of fair defence.
So, if the charge is found on admitted documents/facts, no full-fledged inquiry is required but if the charge is based on disputed questions of fact, a civil servant cannot be denied a regular inquiry, as the same cannot be resolved without recording evidence and providing opportunity to the parties to cross-examine the witnesses. In such a matter if findings of fact arc recorded without recording any evidence, the same will be based on surmises and conjectures, which have no evidentiary value as to warrant imposition of any punishment on the civil servant concerned.
17. Nothing is available on the file to show, if the authorized officer decided that it is not necessary to have an inquiry conducted through an Enquiry Officer or Enquiry Committee, nor the appellant was provided with material record on the ground of which he was awarded major penalty of dismissal from service.
18. The preliminary inquiry was though conducted but on the back of the appellant and he was not allowed to participate in such an inquiry. Neither he was heard personally to defend himself. All these things hint at something fishy in the conduct of the inquiry.
19. The justice should not only be done but should appear to be done. This is what is lacking in the case of the appellant. All this creates, doubt in one's mind, if there was some mala fide intention in punishing the appellant by creating the ground even when unconvincing and thereby imposing such a major penalty.
20. We have gone through the preliminary inquiry report and reproduce the relevant extract to support the above impression: "Fact in issue No,2..........
"After seeing the receipt signed and after the statements of Khurshid and Shahid, I am convinced that 100,000 dollars are actually given to Abdullah."
' In the last conclusive opinion, we find mentioned as: "S.H.O. Being in possession of actual amount might have been misappropriated same amount."
21. From the above, it becomes clear that the Inqury Officer, even in the preliminary inquiry, could not come out with concrete proof, if the appellant got money and was actually in its possession.
Even in the conclusive opinion, the Inquiry Officer was not sure. It was again apprehended i,e, S.H.O.
Might have misappropriated same amount. The decision cannot be made on such surmises or conjectures.
22. The appellant stated at the bar that this all was done because of enmity with him of some people in the Force. It seems to have some element of truth, as it is being borne out from the circumstances of the facts as discussed above.
23. We have given our careful thought to the above circumstances, and have come to the conclusion that there appears an element of mala fide intention on the part of respondents. The facts of the circumstances did not deserve to resort on summary trial of the appellant. The summary procedure was not required as no material evidence could be established. The summary procedure was adopted only on whims, conjectures and surmises. There is neither confession on the part of the appellant nor could the respondent establish an unassailable eyidence. The money alleged to have been misappropriated by the appellant too could not be recovered from him. The allegations levalled by the appellant to the effect that no witness was called and cross-examined by him. No record on which the allegation was based was provided to him. Nor the report of inquiry was admittedly given to the appellant. There was no rebuttal from the respondents to these objections. These are controversial facts, thus, needed full-fleged inquiry to arrive at the truth. This has vitiated the whole process of disciplinary proceedings taken against the appellant.
24. For the foregoing reason, we accept the appeal and set the impugned order of the dismissal of the appellant aside and direct the respondents to reinstate him from the date he was dismissed from service with all back benefits. His intervening period shall be treated as on duty.
25. No order as to costs.
26. Parties be informed.
(Sd.)
' Roshan Ali Mangi, Member.
(Sd.)
' Noor Muhammad Magsi, Member.