' This is an appeal under section 4 of the Punjab Service Tribunals Act, 1974 against orders dated 15- 8-1998 and 12-7-1999 passed by Additional Inspector-General of Police and Inspector-General of Police, Punjab.
2. The facts in brief touching the controversy in this appeal are that appellant while posted as Incharge P.P. Mungi Bungalow received a show-'cause notice No,136(PA) dated 30-1-1996 (Anenxure A) issued by respondent No,3 embodying the following charge:-- "You commenced with the investigation of case F.I.R. No,4 of 1996, under sections 337, A3/337.
F6/337.AI/337, L2/148/149, P.P.C. Police Station Saddar Gojra which was later on transferred to Police Station City Gojra by the undersigned. Despite this, you unlawfully took accused Muhammad Hussain etc., of above case at your police post and subjected them to police torture in violation of my orders. Apparently, you abused your official authority in this case upon which you were placed under suspension w,e,f, 8-1-1996."
' An enquiry into the matter was conducted by A.S.P., Gojra. After giving personal hearing to the appellant and going through the Enquiry Report, respondent No,3, vide order dated 11-2-1996 dismissed the appellant from service with effect from 11-2-1996. The appellant preferred a Departmental appeal before the D.I.-G., Faisalabad Region, Faisalabad against order dated 11-2- 1996. The D.1.-G. Vide order, dated 18-7-1996, keeping in view the length of service of the appellant, converted punishment of dismissal into forfeiture of 2 years' approved service and reinstated the appellant into service. The period for which he remained out of service was to be treated as leave without pay. A copy of the order, dated 18-7-1996 is at Annexure D. On 11-12-1997, the appellant received another show-cause notice No,4642- SO-II-IV from the Deputy Inspector-General Police Establishment in term of Rule 12 of the Punjab Police (Efficiency and Discipline) Rules, 1975 which is at Annexure E. It was observed, therein that the entire enquiry proceedings and relevant record were examined. The nature of evidences rendered it necessary to review the order of the then D.I.- G. Of Police, Faisalabad Region, Faisalabad as the same did not commensurate with the gravity of misconduct attributed to the appellant and particularly when the allegations were proved during Enquiry by A.S.P., Gojra. The appellant submitted his reply which is at Annexure F. Respondent .No,1 (I.-G. Of Police) vide impugned order, dated 15-8-1998 heard the appellant in person on 10-7-1998.
After perusing the record, respondent No,1 concluded that the appellant conducted the investigation of Case F.I.R. No,4 of 1996 under sections 337, A3/337, F6/337 and AI/337.L2/148/149, P.P.C. Police Station Saddar, Gojra in a slipshod and perfunctory manner and with ulterior motives.
Added thereto that the case-was registered against innocent persons, who were kept unwantedly confined for 4 days (3-1-1996 to 6-1-1996) subjected to torture at the night of 7/8-1-1996) and the appellant refused to deliver the case file and the accused to S.H.O., Gojra in compliance with the orders of the transfer of the case by the Superintendent of Police. Respondent No,1 agreed with the Enquiry Officer and the District Superintendent of Police; set aside the order of the Range D.I.-G. And awarded him the punishment of Compulsory Retirement from Service with immediate effect. The appellant moved review-cum-mercy petition before the - Inspector-General of Police which was rejected vide order dated 12-7-1999.
3. The appellant assailed the propriety, legality and correctness 'of the impugned orders, dated 15- 8-1998 and 12-7-1999 on the ground that the respondent No,3 dismissed the appellant vide order, dated 30-1-1996 on the basis of a fact finding enquiry and not a regular enquiry and in this way he was denied reasonable opportunity to defend himself and the Rules of natural justice and orders of the superior Courts were also ignored. The second show-cause notice issued by respondent No,1 was also illegal and the enhancement of penalty was ultra vires. The respondent No,1 awarded the major punishment in shape of Compulsory Retirement without feeling the need for formal enquiry.
The Author of the second show-cause notice i,e, Muhammad Waseem, D.I.G. (Establishment) who signed it for I.-G. Of Police, Punjab, Lahore was not empowered to issue the same in exercise of the powers of revision under Rule 12 against the order of the D.I.G., Faisalabad being of equal rank. It was further contended that no doubt Rule 12 gave the powers of revision to the competent officer but it did not confer unfettered powers 'which were to be exercised judiciously, indiscriminately and in a fair manner, Moreover, the powers under Rule 12 are to be exercised within a reasonable time and not after lapse of considerable long time such as about 1 year and 4 months in the case of the appellant. The matter was decided by the D.I.-G. Which was acceptable to both the parties; the same cannot be revived after one year and 4 months and that too without any rhyme or reason.
Both the impugned orders were passed on the basis of informal material and evidence, and the authority was influenced by extraneous considerations. Hence this appeal.
4. Respondents/Department contested the appeal in the terms that appellant conducted the investigation of case F.I.R. No,4 of 1996 in a partial manner. On 7-1-1996, the investigation was transferred/entrusted to S.H.O., Police Station Gojra City. Despite the transfer, the appellant took accused Muhammad Hussain etc. From Police Station Gojra to P.P. Mungi Banglow in violation of the order and subjected them to police torture. He was served with a show-cause notice. The appellant submitted his reply to prove his innocence. The matter was also got probed through A.S.P., Gojra who found him guilty of the charge. He was heard by the S.P., Toba Tek Singh in Orderly Room on 11-2-1996. The written as well as verbal explanation submitted by the appellant were found unsatisfactory. As his misconduct was established, therefore, he was dismissed from service vide order, dated 11-2-1996 by respondent No,3. Appellant's appeal before the D.I.-G. Was accepted and vide order, dated 18-7-1996, penalty of dismissal from service was converted into forfeiture of 2 years' service. As the punishment was not in consonance with the gravity of the offence, so on 4- 12-1997, the D.I.-G. Of Police (Establishment) on behalf of Inspector-General of Police, Lahore under Rule 12 of the Punjab Police (E & D) Rules, 1975 issued a show-cause notice for enhancement of the, penalty. The appellant was given an opportunity to explain his position in writing and verbally. On 15-8-1998, the order of the D.I.-G. Was set aside and the appellant was awarded punishment of Compulsory Retirement with immediate effect by the A.I.-G. Of Police, Punjab, Lahore. The Mercy Petition was turned down being without substance. Both the impugned orders were passed keeping in view the misconduct of the appellant and after following prescribed procedure. The order's did not bristle with any infirmity.
5. Arguments heard. It was argued by Rana Zulqarnain Advocate, counsel for the appellant that no doubt respondent No,1/I.-G. Police was empowered to enhance the minor penalty awarded by the D.I.G. But it was incumbent upon the I.-G. Police to afford the appellant proper hearing. Vide letter, dated 20-7-1996 (Annex. G), S.S.P., Faisalabad recommended out of turn promotion for the appellant. In absence of any regular enquiry; there was no reason to have decided the issue and that too after lapse of sufficient time. Show-cause Notice was served and impugned order passed when Mr. Hamza Ex.M.N.A. Sent a letter/complaint to the then President Mr. Farooq Leghari against the D.I.-G. With allegations that the D.I.-G., Faisalabad (Mukhtar ul Mulk) reinstated the appellant who was guilty of taking liquor, raised hulla baloo in the public and other indiscretions alike. The then Inspector-General was .Influenced by this complaint and just to appease the above MNA he resorted to reopen a settled matter which had attained finality. The I.-G. Played to the gallery while taking the harsh view. Conversely it was argued by the learned Deputy District Attorney and Muhammad Ashrat, Inspector Legal that the D.I.-G. Was quite oblivious of the gravity of the offence when he converted the major penalty into minor punishment. A regular enquiry was conducted by the A.S.P., Gojra; the appellant actively participated in the proceedings. He was afforded a fair opportunity of hearing and defence. Rules of natural justice were complied with and no deviation therefrom can be ascribed to the respondents. The Inspector-General was competent to enhance the penalty awarded by the D.I.-G. And he did so after fulfilling all the legal requirements. It was further repelled that the appellant's previous service record was not immaculate. It contained 8 bad entries. He himself invited the trouble when he disobeyed the lawful order of his superior and subjected the accused to physical torture. The appellant was rightly taken to task.
6. In show-cause notice dated 30-1-1996, it was allegated "that after transfer of investigation of case F.I.R. No,4 of 1996 to Police Station City Gojra, the appellant took accused of the above case to Police Post (Mongi Banglow) and subjected them to police torture in violation of the orders of S.P." It was nowhere mentioned in SCN that the appellant "had a stinking reputation or he was in the habit of making loud noise in the public and abusing nobels after taking liquor". The impugned order dated 11-2-1996, however, spoke loudly that the appellant was known as a mischievous drunkard.
The S.P., Toba Tek Singh was certainly influenced by the observations made by. A.S.P./Enquiry Officer before whom, a journalist Ghazi Salahuddin, made a complaint that the appellant was in the habit of abusing while in cups. A.S.P. Was not directed to probe into the appellant's habit of taking liquor and his demeanour in public afterwards; he travelled beyond his jurisdiction - probably to strengthen his conclusion. The A.S.P., unlike a wise judge, did not keep his jurisdiction within the limits of his commission. The respondent No,3 (S.P., Toba Tek Singh) treated the above conclusion as gospel truth and put the rope around the neck of the appellant. There was no justification to be influenced by extraneous consideration particularly when the enquiry conducted by A.S.P. Was not a probe in line with prescribed procedure. Procedure to be observed by the Enquiry Officer has been laid down in Rules 7 and 8 of the Punjab Police (Efficiency and Discipline)
Rules, 1975. Not only S.P. Attached sanctity to the report of A.S.P. While passing order dated 11-2- 1996, but Inspector-General of Police also "agreed with the Enquiry Officer and the District Superintendent of Police" while setting aside the orders of Range D.I.-G. Dated 18-7-1996. Report of A.S.P., i,e, the basis of the impugned order was not the outcome of a regular enquiry but the result of a tentative assessm ent which did not suffice for the imposition of major penalty.
7. The Inspector-General of Police, Punjab, Lahore vide letter, dated 2-10-1996, circulated following guidelines for punishing authorities as well as Enquiry Officers:-- .
(i) It has now become an established principle of law that in case where the authority proposes to impose a major penalty it will be in the interest of justice to conduct a regular enquiry through an Enquiry Officer so that the proceedings are not vitiated, subsequently when placed for test before a judicial forum. (Abdul Sattar v. S.P., Faisalabad 1984 PLC p. 639 Service Tribunal Punjab); .(ii) the accused officer can be proceeded against departmentally on account of inefficiency and misconduct or corruption. The charger sheet should therefore clearly lay down the specific allegations on which the police officer is being proceeded against and an ambigious/vague charge is not only superficial but also difficult to prove (1995 SCM R 11) PLD 1986 SC p. 162); .(iii) the accused should be communicated in writing of the action proposed to be taken against him and the grounds of such action;'
(iv) the Enquiry Officer must be senior in rank to the accused officer;
(v) the Punishment Authority under the E&D Rules, 1975 should keep in mind that punishment must correspond to the gravity of misconduct attributed to a police officer. (Ghulam Dastgir v. I.-G.
Prisons 1985 PLC p. 639 Service Tribunal Punjab).
' According to Rule 7 following procedure has been laid down for Enquiry Officer:- "7. Power of Inquiry Officer.----(l) For the purpose of departmental inquiry under these rules, the Inquiry Officer shall have the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908) in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) issuing commission for the examination of witnesses or documents.
(2) The proceedings under these rules shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code (Act XLV of 1860)."
' The Inspector Legal placed the Enquiry Report of A.S.P. During arguments which is in clear violation of L-G.Ps.' letter dated 2-10-1996 and Rule 7 as have been reproduced above. The appellant controverted the allegations embodied in the first and .Second show-cause notices dated 30-1- 1996 and 4-12-1997 issued by S.P. And I.-G., Punjab respectively. In the D.I.-G. Of Police, Lahore and others v. Anis-ur-Rehman Khan PLD 1985 SC 134 it has been pointed out that in what circumstances recourse to the shorter procedure of show cause is justified. It was observed in 1993 SCM R 603 that for resolving controverted questions of fact where evidence has to be recorded an opportunity of cross-examination has to be given, the proper course is always to hold a full-fledged enquiry.
Otherwise, the findings recorded, as in this case will be based more on conjectures than on evidence/material available on record properly produced and accepted. Both S.P. And A.S.P. As well violated the procedure prescribed for regular enquiry. It is a settled law that when the very basis is illegal, the superstructure raised thereupon, is bound to crumble down. Material collected at the initial stage was rampant with infirmities, but, the L-G.P., after lapse of considerable time treated it as a valuable piece of 'legal evidence'. This collection was bereft of any sanctity, therefore, it could not be used for awarding major penalty.
8. District Inspector-General converted the punishment of dismissal into forfeiture of two years' approved service vide order, dated 18-7-1996 (Annexure D). After lapse of 1 year and 5 months, second show-cause notice was served upon the appellant vide Annex. E. Respondent No,1 invoked powers of revision conferred upon him by rule 12 of the Punjab Police (E&D) Rules, 1975. Better to reproduce the Rule 12 as under:-- "12 Revision.--(i) The Inspector-General, Additional Inspector-General, a Deputy Inspector-General of Police or a Superintendent of Police may call for the record of awards made by their subordinates and confirm, enhance, modify or annul the same, or make farther investigation or direct such to be made before passing orders.
(ii) If an award of dismissal is annulled, the officer annulling it shall state whether it is to be regarded as suspension followed by reinstatement or not. The order should also state whether service prior to dismissal should count for pension or not (iii.) In all cases in which officers propose to enhance an award they shall before passing final orders, give the defaulter concerned an opportunity showing cause, either personally or in writing, why his punishment should not be enhanced."
' Apparently, there is no time-lag between the order under revision and second show-cause notice but it does not mean that revisional powers should hang in balance like a dormant volcano for an indefinite period. These powers of "reexamination or careful reading over for correction or improvement" must be exercised within reasonable time.. Period for revision, unlike Rule 12, has been prescribed in Rule. 20 of New E &. D Rules, 1999. In cases of employees of disciplinary force, such exercise or action should not be allowed to go in hibernation otherwise abrupt emergence of revisional power may entail complications on administrative side. For the revisional power (under Rule 12) the rule should either be reconciled with Rule 20 (supra) or it should be brought into motion within "reasonable time". Reasonable time as defined in Black's Law Dictionary is 'any time which is not manifestly unreasonable'. It is pertinent to point out that vide letter dated 20-7-1998 (Annexure G), S.S.P., Faisalabad made recommendation for promotion of the appellant.. These developments went into pale of insignificance while passing impugned order, dated 15-8-1998. It rings true that respondent No,1 issued second show-cause notice when Mr. Hamza arrested the attention of the President against 'malpractices of Mukhtar-ul-Mulk (D.I.-General), Faisalabad otherwise exercise of revisional powers under Rule 12 after lapse of considerable period is a rare phenomenon. The I.-G.
Himself apprehended insecurity/accountability and decided to undo what was accomplished long long ago, but, he did so in spite of recommendations contained in letter dated 20-7-1998. The colourful revisional exercise with inordinate delay certainly prejudiced the appellant.
9. As observed earlier, a regular enquiry through an Enquiry Officer is sine qua non for imposition of major penalty. This requirement can't be lost sight of by competent authority even while exercising revisional powers under Rule 12. In absence of a regular enquiry mere service of show-cause notice would not serve the ends of justice. As there was no enquiry, hence impugned order also sizzled from this legal lapse.
10. Consequently this appeal is accepted. The impugned orders are set aside and the appellant is reinstated into service w,e,f, 15-8-1998. The intervening period shall be treated as on leave of the kind due to him. The Department may, if considers necessary, initiate proceedings afresh against the appellant but in accordance with the law and the relevant rules.