1. ' JUSTICE (RETD.) ABDUL GHANI SHEIKH, (CHAIRMAN).---This appeal under section 4 of the Sindh Service Tribunals Act, 1973, has been filed by the appellant Nadeem Ahmed, the former A.S.I. Police challenging his dismissal from service.
2. ' The brief facts of the case are that the appellant while posted as A.S.I. Police, at Police Station 'A'
3. Section, Latifabad, Hyderabad was served with final show-cause notice dated 19-5-1995 issued by the Senior Superintendent of Police, Hyderabad, containing two allegations, reads as under:-- ' "You are reported to have contact with MQM criminals and are leading out information about police raids."
4. ' Your involvement in Case Crime No,195 of 1992 under section 17(3)H, Ordinance of Police Station City and No,29 of ' 1992 under section 302/34,. P.P.C. Of Fort Police Station further strengthen your indulgence in criminal activities."
5. ' The appellant in his reply dated 30-5-1995 vehemently denied the said allegations and pleaded his innocence. He was, however, vide order dated 13-7-1995 awarded major penalty of dismissal from service by respondent No,3. Being dissatisfied, the appellant preferred departmental appeal to the Deputy Inspector-General of Police, Hyderabad Range, which vide order dated 18-6-1996 was rejected. Feeling aggrieved with said two orders, he filed review petition as provided by Police Rules before the Inspector-General of Police, Sindh, which too vide order dated 1-1-2000 was rejected. Hence, the instant appeal.
6. ' The respondent No,3 filed written statement and denied the averments raised in the memo. Of appeal and has further stated that the appeal is barred by time. The respondents Nos.1 and 2 despite sufficient opportunities failed to tile written statements.
7. ' Mr. Shabbir Ahmed Awan, learned counsel for the appellant has submitted that the allegations levelled against the appellant in the final show-cause notice are of very serious nature and type which the appellant vehemently denied and thus it was incumbent on the Department to conduct full-fledged enquiry but the same was dispensed with and the appellant was awarded major penalty of dismissal from service in a haphazard manner and short-cut method, which is not warranted by law. Further, he argued that so far first allegation contained in the final show-cause notice is concerned, the Department has neither produced any report in this behalf nor placed any other material to justify the genuineness of the same, and as regards second allegation it is contended that the appellant had already been discharged in both the said criminal cases by the same police station(s) in the year 1992 for want of evidence, which clearly goes on to show that the respondent No,3 without even touching the file concerned issued final show-cause notice to the appellant which is not warranted by law. In support of his contentions he relied upon, (1) 1995 PLC (C.S.) 134, and (2) 1997 SCMR 1543. So far limitation is concerned, the contended that the respondent No,1 rejected the appellant's review petition by order dated 1-1-2000, which was communicated to the appellant by respondent No,3 through an endorsement dated 14-1-2000 and the present appeal was filed before this Tribunal on 9-2-2000 well within time.
8. ' Mr. Muhammad Qasim Mirjat, learned Assistant Advocate-General appearing on behalf of the official respondents has opposed the appeal and supported the impugned orders. He argued that under rule 6(3)(b) (i) of the Sindh Police (E & D) Rules, 1988, the respondent No,3 in view of the allegations contained in the show-cause notice was very much competent to dispense with the regular enquiry, thus no illegality has been committed by the respondent No,3. As regards limitation he submitted that there is only one departmental appeal provided in the law which the appellant had tiled before the respondent No,2 who considered the same and rejected by order dated 18-6-1996 while the present appeal was tiled on 9-2-2000 as such the same is hopelessly barred by time.
9. ' We have considered the above submissions and have also gone through the material placed before us as well as the case-law referred to above by the learned counsel for the appellant.
10. ' Before dealing with the merits of the appeal, we first deal with the question of limitation raised by the respondents. The appellant was dismissed from service by respondent No,3 by order dated 13- 7-1995 against which he filed departmental appeal to respondent No,2 who rejected the same vide order dated 18-6-1996. The appellant then filed review petition as provided by rule 16.32 of the Police Rules, to the respondent No,1 which was rejected on 1-1-2000. The perusal of the last order reveals that the same was communicated to the appellant through an endorsement of respondent No,3 on 14-1-2000 and it was served upon the appellant on 18-1-2000 while the instant appeal was tiled on 9-2-2000 i,e, much before the expiry of 30 days provided for filing of appeal before this Tribunal under section 4 of the Sindh Service Tribunals Act, 1973. The appeal is thus well within time.
11. ' As regards merits of the case, we have gone through the final showcause notice dated 19-5-1995.
12. It is pertinent to point out that respondent No,3 in para. 3 of the grounds in the written statement has stated that it was in fact a show-cause notice but by typing mistake it was shown as final show-cause notice. In any case, the said notice contained two charges/allegations against the appellant. The first of the same is that the appellant reported to have contact with MQM criminals and leaking out information about police raids but surprisingly not a single report of whatsoever nature has either been supplied to the appellant or placed on the record to justify the punitive action taken against the appellant. There is nothing on the record to indicate as to who reported against the appellant that he had links with MQM criminals, who are those criminals and what type of information was leaked out by the appellant about the police raids so also when it was reported and when the information was leaked and how it was leaked. Merely on vague and general type of allegations having no base and legs to stand, the appellant cannot be held guilty. It is by now a well-settled principle of law that if the allegations against the accused civil servant/employee are of serious nature and if he denies the same, a regular enquiry cannot be dispensed with. If any case-law is needed the reference can be made to a case of Basharat Ali v. Director, Excise and Taxation Lahore and another, 1997 SCMR 1543 referred to, by the learned counsel for the appellant.
13. ' So far second charge regarding involvement of appellant in two criminal cases is concerned, it is suffice to say that the respondent No,3 before issuance of the said show-cause notice had neither gone through the personal file of the appellant nor he (SSP) even cared to go through the reply to the show-cause notice submitted by the appellant. Both the above criminal cases pertains to year, 1992 and in both the cases the concerned S.H.Os. Submitted reports on 9-11-1992 and 10-11-1992 to the learned Sessions Judge. Hyderabad that for lack of evidence the appellant had been released under section 169, Cr.P.C. This by itself is sufficient to hold that the appellant was not guilty and was not involved in those cases. The learned Assistant Advocate-General contends that acquittal from criminal case (s) is no bar to conduct departmental proceedings against the employee. We do agree with this contention that acquittal of any civil servant in no way precludes the department concerned to conduct departmental enquiry, but as stated earlier in the instant case no such exercise was undertaken by the Department. The above said two criminal cases were registered against the appellant in the year, 1992 and in the same year the Investigating Officer(s) concerned released the appellant for want of evidence under section 169, Cr.P.C. And such report was also submitted to the learned Sessions Judge, Hyderabad then as to what material was available with the respondent No,3 which pursuades him to issue show-cause notice in the year, 1995 i,e, after, lapse of 3 years and to ultimately dismiss the appellant from service which too by dispensing with the enquiry. Under rule 6(3)(b)(i) of the Sindh Police (Efficiency and Discipline) Rules, 1988, the respondent No,3 being authorized officer no doubt has discretion to dispense with the enquiry but the same is to be exercised fairly and reasonably and not arbitrarily or capriciously. In a case of Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others, PLD 1994 SC 222, it was observed:-- "8. The ratio of the above case seems to be that under rule 5(1)(iii) of the Rules, and authorised officer has discretion to decide whether in a disciplinary proceeding against a civil .Servant in response to his reply to the charge-sheet, a regular enquiry should be held or not. The above discretion is not controlled by any precondition or guideline but nevertheless this discretion like all other discretions is to be exercised fairly and reasonably and not arbitrarily or capriciously with the object to deny the civil servant the right of fair defence. So, if the charge is founded on admitted documents/facts, no full-fledged enquiry 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 are recorded without recording any evidence, the same will be based on surmises and conjectures, which will have no evidentiary value as to warrant imposition of any punishment on the civil servant concerned."
14. The above view was followed in another case of Ghulam Muhammad Khan v. Prime Minister of Pakistan and others, 1996 PLC (C.S.) 868, and it was held that, if the nature of the alleged misconduct is such on which a findings of fact cannot be recorded without examining the witnesses in support of the charge or charges, the regular enquiry could not be dispensed with.
15. ' In the instant case also, the appellant had vehemently denied the charges levelled against him as such it was incumbent upon the respondent No,3 to conduct full-fledged enquiry which exercise was not undertaken and the action of respondent No,3 in dispensing with the enquiry is not warranted by law and was contrary to the law enunciated by our Honourable apex Court.
16. ' For what has been discussed above, we are of the considered view that this appeal must succeed.
17. Accordingly, we allow the appeal, set aside the impugned order and direct that the appellant be reinstated in service. The intervening period be treated as 'leave due'. The parties to bear their own costs.
18. ' Announced in open Court.
19. ' Given under our hands and seal of the Tribunal this 16th day of January, 2002. .