' JUSTICE (RTD.) ABDUL GHANI SHAIKH, CHAIRMAN.--By our short order dated 13-9-2003 this appeal was allowed for the reasons to be recorded later on. Following are our reasons:
2. Briefly stated, the facts of the appeal are that appellant while posted as Sub Inspector, Police Lines, Sukkur was served with a show-cause notice dated 15-12-1999 issued by the Senior Superintendent of Police, Sukkur, alleging therein that: "Complainant Abdul Khaliq S/o Ali Muhammad Chacher lodged his report at P.S. Pano Akil vide F.I.R.
No,23 of 1999 U/Ss.161, 342 P.P.C. Stating that on 22-10-1999 while you were posted at P.S Pano Akil illegally confined him in his house and released after accepting illegal gratification of Rs,40,000 This act of misconduct, misuse of official powers on your part shows high handedness and corruption. By the reasons of above you have rendered yourself liable for departmental action under Sindh Police (E&D) Rules, 1988.
' In his detailed reply, appellant denied the allegations vehemently and stated that he was implicated falsely in the criminal case on account of tribal dispute between Chachars and Kalwars.
His reply was not found satisfactory and by order dated 8-2-2000 he was awarded major penalty of 'Compulsory Retirement'. Against which, he preferred departmental appeal to the Deputy Inspector General of Police, Sukkur but was rejected vide order dated 22-9-2000. Appellant then as provided by police Rules filed review petition to the Inspector General of Police Sindh, Karachi which too was rejected by order dated 4-9-2001. Meanwhile appellant who was earlier challaned in case Crime No,23 of 1999 was acquitted vide order dated 10-1-2001 by the learned Special Judge, Anti- Corruption, Sukkur. Hence, this appeal.
3. In support of the appeal, learned counsel for the appellant argued that allegation was very serious which the appellant denied vehemently but instead of regular enquiry as short cut method of summary procedure was adopted which is neither legal nor proper and justified. He submitted that no final show-cause notice was given to the appellant, thus the mandatory requirement of law was flouted and on this score also the impugned orders are not sustainable. Lastly, he contended that appellant on the same set of allegation was challaned in the Anti-Corruption Court, Sukkur and vide order dated 10-1-2001 he was acquitted, thus the very, order awarding major penalty to the appellant being ineffective is liable to be set-aside. He stated at bar that during the pendency of appeal, appellant has attained the age of superannuation on 20-7-2002 and if the appeal is allowed he would only be entitled to salary of about two years and some benefits towards pension, gratuity etc.
4. In rebuttal, learned Asstt. A.G vehemently opposed the appeal and argued that appellant by accepting illegal gratification committed gross mis-conduct and is not entitled for any leniency.
5. We have considered the above submissions and perused the record. Charge of accepting illegal gratification admittedly being serious required thorough probe but in the instant case no such exercise was undertaken and instead, a short cut method of summary procedure was adopted which is not sustainable in law. It has been consistently held by our Apex Court that if the charge is based on disputed questions of fact, a civil servant cannot be denied a regular enquiry, as the same cannot be resolved without recording evidence and providing opportunity of the parties to cross-examine the witnesses. In such a matter if findings of act 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. Reference is invited to the case of Jawaid Akhtar v. Secretary, Ministry of Interior and others 1991 SCM R 140. Besides, in the instant case no second /final show-cause notice was issued/given to the appellant. In the case of Noor Muhammad v. Air Chief Martial of Pakistan and 3 others, 1990 PLC (C.S.) 246, an order of removal from service passed without issuing final/second show-cause notice was declared as void. On the same set of allegation the appellant was sent up to stand his trial in the Court of learned Special Judge, Anti-Corruption, Sukkur and by order dated 10-1-2001 he was acquitted from the charge. In a case of Muhammad Sardar Khan v. Senior Member (Establishment), Board of Revenue, Punjab, Lahore, 1985 SCM R 1062, it was observed that: "However, it does not require any elaborate argument to. Show that in case the sentence is set- aside and the accused officer is acquitted, the very basis on which such order of removal from service stands; would disappear. The result of such an event would be that the order of removal itself will be rendered ineffective and liable to be set-aside."
' This case was referred to in the case of Rashid Mehmood v. Addl. Inspector General of Police and others, 2002 SCM R 57, wherein it was observed that: "There in no denial the fact that if departmental authority had held the petitioner guilty as a result of regular enquiry, if had been conducted by them, then the petitioner could not plead that having been exonerated by the criminal Court, the departmental authority was not competent to discharge/remove him from service. However, as pointed out earlier, the departmental, authority failed to conduct any regular enquiry against the appellant, and it had, therefore, no basis to hold the appellant guilty of mis-conduct."
' The dictum laid down in the above two cases of our Apex Court is fully attracted and applicable to the facts and circumstances of the instant appeal.
6. Accordingly, we are inclined to accept this appeal, set aside all the three impugned orders. So far reinstatement and intervening period are concerned, we have been informed that appellant has already attained the age of superannuation on 20-7-2002, therefore, the intervening period from 8-2-2000 to 19-7-2002 be treated as on duty and the department may issue necessary notification of appellant's retirement from the date he reached at the age of superannuation. No order as to costs.
' Above are the reasons of our short order dated 13-8-2003).