1. ' HAMID ALI MIRZA, J.-This appeal by leave of this Court is directed against the order dated 20-2- 1997 of the Federal Service Tribunal at Karachi in Appeal No.79(K) of 1996, partially allowing the appeal of the appellant against the order dated 18-1-1996 of the D.L-G. Pakistan Railways with regard to his removal from service, and modifying the penalty of dismissal from service to that of compulsory retirement.
2. ' The brief facts of the case are that on 26-2-1994 a complaint was made by Shaikh Zaka-ullah and Shaikh Rauf Ahmad stating therein that while they were travelling by 17 UP Abbasen Express on 21- 2-1994 and when the train reached Rohri Station, the appellant Head-Constable and Constable Muhammad Yousaf of Railways Police Rohri searched their luggage on the pretext that the items they were carrying were smuggled from Quetta. The appellant and his accomplice took away 196 yards of cloth valuing Rs.8,000 and then allowed them to leave Rohri Railway Station alongwith their luggage in the same train. Three departmental enquiries were conducted. The appellant was exonerated in the first two enquiries, but as a result of the third enquiry he was dismissed from service on 18-1-1996 by the Superintendent of Police Pakistan Railways, Quetta. The appellant filed a departmental appeal before the D.L-G. Pakistan Railways Police, which too was dismissed as per order, dated 19-6-1996 against which Appeal No.79(K) of 1996 was preferred before the Federal Service Tribunal, which was also dismissed with modification from dismissal to compulsory retirement.
3. ' The learned counsel for the appellant contended that no formal charge was ever framed against the appellant and served on him, consequently, there has been a serious violation of para. 16.24 of Police Rules, 1934. He also contended that the order of compulsory retirement is also a major penalty, which, in the circumstances of the case, could not have been passed and instead the appellant should have been reinstated in service, considering that he was also not afforded an opportunity to cross-examine the witnesses whose statements were recorded by D.S.P. Crimes. The learned counsel has also referred, to rule 7 of the Pakistan Railways Police (Efficiency and Discipline) Rules, 1996, which reads:- "(7) Procedure to be observed by the Inquiry Officer.-(1) Where an Inquiry Officer is appointed, the authority shall:-.
(a) Frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and any other relevant circumstances which are proposed to be taken into consideration;
(b) .. .
(2) .....................
(3) ..........
(4) ..
(5) and(6).................................
4. ' The learned counsel has also referred to para. 16.24 (iv) which runs as under:- "(iv) When the evidence in support of the allegations has been- recorded the Enquiring Officer shall, (a) if he considers that such allegations are not substantiated, either discharge the accused himself, if he is empowered to punish him, or recommend his discharge to the Superintendent, or other officer, who may be so empowered, or (b) proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them. A copy of the charge framed will also be supplied to the accused police officer free of charge."
5. ' The learned counsel for the appellant has placed reliance upon (i) Basharat Ali v. Director Excise and Taxation (1997 PLC (C.S.) 817), (ii) Mukhtar Ali v. Deputy Director (1998 PLC (C.S.) 648) and (iii)
6. Shamimuddin v. Superintendent of Post Office (PLD 1994 SC 275).
7. ' The learned counsel for the respondent has submitted that the impugned order is legal and proper and that the charge was served upon the appellant, and further that the previous record of the appellant was also not satisfactory, hence the impugned order is not liable to be interfered with in the circumstances of the case.
8. As per para. 16.24 (iv) of the Police Rules, 1934 a charge is to be framed in writing and given to the delinquent official calling upon him to answer it. Rules 7 of Pakistan Railways Police (Efficiency and Discipline)
9. Rules, 1996 is not applicable in the instant case because the Inquiry was held under the Police Rules, 1934 as the incident was prior to the corning into force the Rules of 1996, therefore, a formal charge in case the Inquiry was to be held, was mandatory. Rule 18 of Pakistan Railways Police Rules, 1980 also provides that the Punjab Police Rules, 1934 would be followed in the matter of departmental punishment to the members so also in respect of terms and conditions of service of officer and members of Pakistan Railways Police. Consequently, the Police Rules, 1934 would be applicable in the instant case. We have gone through the entire record and it appears to us that the respondents proceeded with Inquiry without framing a charge against the appellants.
10. Consequently, the entire proceedings against the appellants being in violation of the rules therefore, the impugned orders cannot be sustained in law.
11. Paragraph 3 of the order of the Federal Service Tribunal reads as follows:-- "3. In para. 11 of the written objection it was stated that the charge- sheet was duly served on the appellant and it was wrong to say that the charge-sheet was not served but the perusal of the record shows that only the show-cause notice was issued. Although the inquiry report indicates that a charge-sheet was duly served and the appellant was afforded opportunity to participate in the inquiry proceedings and to produce the defence witnesses, but he did not participate and requested for adjournment of the case on each occasion on various pretexts. The alleged charge- sheet that was said to be issued is dated 4-11-1995, whereas even the third Inquiry report was finalised by the- Inquiry Officer on 28-3-1995. Thus, although the said document is stated to be a charge-sheet but practically it was show-cause notice after the holding of inquiry. This is an incurable irregularity. Although it is open for the respondent-department to choose the summary procedure or the regular Inquiry. In summary procedure, the show-cause notice is issued on the basis of facts on record or obtained during preliminary inquiry, wheres in the regular inquiry proceedings; the charge-sheet is served prior to the holding of Inquiry. In this case, the position has been mixed up. Charge-sheet was not served and thus, the appellant suffered prejudice to a great extent. However, we cannot ignore the fact that the appellant belonged to a disciplined force and despite his lack of confidence in the Inquiry Officer, he should have participated in the inquiry proceedings in spite of his protest against the appointment of such a person. His non-participation on the only ground of lack of confidence does not justify the irresponsible artitude of a member of the discipline force."
12. Mere fact that the appellant belongs to a disciplined force, it word not authorize the respondents to violate or ignore the provisions of rules as reproduced above. The Laws and Rules are to be applied even-handedry. The impugned orders having been passed in absence of framing of charge against the appellant, consequently, same are not legally sustainable. In the circumstances, we find merit in the contentions of the learned counsel for the appellant, consequently, the impugned orders are set aside and the appellant is reinstated in service by allowing his appeal. However, the respondents may if desire initiate a fresh enquiry and proceed against him within thereof months in accordance with law.