1991 PLP (C (PLC(CS))

Date of hearing: 9th May, 1990. MUNAWAR ALI KHAN (CHAIRMAN).--The appellant, Ghulam Hussain was Police Constable (No. 359), on deputation to the Crime Branch, Hyderabad, when he was dismissed from service vide the order of S.P. Badin, dated 17-8-1988. His dismissal was the result of the departmental action which was initiated against him on two counts: first his involvement in the illicit sale of women from Bangladesh and second, his unauthorized absence from duty from 20-7-1985 to 5-7-1986. Accordingly, he was served with charge-sheet and statement of allegations. As his reply to the charge-sheet was not satisfactory, Mr. Akhtar Muhammad Soomro, D.S.P. Crime Branch, Hyderabad was appointed as Enquiry Officer to hold enquiry into the charges against the appellant. On receipt of the enquiry officer's findings that the appellant was guilty of the allegations made against him, he was given final show-cause notice. After considering his reply to the said notice and giving him personal hearing, the appellant was dismissed by the aforesaid order. His departmental appeal from the said order was rejected by the D.I.-G.P., vide his order dated 15-8-1989. In this appeal, the appellant has called in question the order of his dismissal passed by the S.P. and also the DIGP's order upholding the S.P.'s order. On 9-5-1990 the case was fixed for arguments, but the appellant's counsel did not turn up. The appellant who was present in the Court insisted by his written prayer that his case be proceeded with, notwithstanding his counsel's absence. Accordingly, appellant's personal arguments were heard, besides hearing the arguments of Mr. Salman Ansari, on behalf of the official respondents. We also went through the case file. The two charges which ultimately formed the basis of the appellant's dismissal are contained in the statement of allegations. They are to the following effect:-- "

1. That you were found involved in the illegal criminal act of sale of Bangla Desh women for the purpose of Zina and corruption in the enquiry conducted by L-G.P. Sindh, special squad and as a result of this enquiry case F.I.R. No. 72 of 1985 under sections 10(3), 11/16, Zina Ordinance, 1979 read with 5(2) of Corruption Act was registered against you at Police Station City, Hyderabad, in which you stand challaned.

2. That you in order to avoid your arrest in the above case you deserted from duty from 20-7-1985 and remained wilfully absent from duty till 5-7-1986, when you reported from duty in Crime Branch, Hyderabad." Taking up the first charge we find that the appellant's reply was that the case referred to in the charge was not only false and fabricated but also cooked one. His objection was that pending the said criminal case, the departmental proceedings started against him should have been stayed or deferred to avoid the possibility of conflict in decisions of the two forums. In this connection he invited our reference to the judgment of the Vth Additional Sessions Judge, Hyderabad delivered on 24th May, 1989, whereby all the accused including the appellant had been acquitted in the said criminal case, showing thereby that his apprehension had come true inasmuch as that the Court's decision was conflicting with that taken at the departmental level. The appellant's further grievance was that the other two police constables namely Aurangzeb and Sher Muhammad who were co-accused with him in the a1-Favc-mentioned criminal case, were given the benefit of their acquittal, by way of showing leniency in the punishment inflicted on them in the departmental case but no such consideration was shown to him. We have given our utmost consideration to the arguments of the appellant in the light of the material available before us. Apart from the fact that the appellant had been acquitted in the criminal case, we find that even the findings of the Enquiry Officer as regards the appellant's hand in the illicit sale of Bangladeshis women are not based on any positive and cogent evidence. We have perused the enquiry report carefully but have not been able to come across any such material in confirmation of the Enquiry Officer's findings. On the contrary the statements of official witnesses Muhammad Sidiq, S.I.P. and Muhammad Saghir, Police Constable, and those of private witnesses Anis Rahman and Muhammad Asghar recorded in course of the enquiry which are available on record clearly reveal that none of the said witnesses has, in any manner, incriminated the appellant. Therefore, we hold that the first charge of the appellant's involvement in the illicit sale of Bangladeshi women is not proved. Coming to the second charge with regard to the appellant's un authorised absence from duty, we may first refer to his own reply which is as under: "That since I was involved in a false case with mala fide intention, I had suffered mental torture and agony, I had fallen sick, hence I had submitted application for grant of leave which is still on record, thus my absence was neither willful nor deliberate but with the due information to the authorities As is clear from the above reply, the appellant has not denied his absence from the duty for the specified period. He has, however, attempted to justify his staying away from the duty. Although he admits that his absence from duty was on account of his involvement m the criminal case, yet his explanation is that his absence was not to avoid arrest in the said case but because he suffered a mental shock and in consequence fell ill, he submitted applications for grant of leave. He has improved upon the above version and has taken the plea of being on medical leave during the period in question, in para 7 of his memo of appeal. In reply to his such plea, the relevant portion of para 7 of the written statement filed on behalf of the official respondents is to following effect: 11 ..it is submitted that the appellant remained absent from the Crime. Branch. Hyderabad with effect from 20-7-1985 at his own accord without permission intimation of the competent authority, therefore, he was placed under suspension from the date of his desertion from duty .His interim bail was confirmed on 13-4-1986 by the Hon'ble Court of Sessions Judge, Hyderabad he reported back to the Criminal Branch, Hyderabad on 5-7-1986 after remaining willful absent for approximately one year .... . Thus, the official respondents have refuted the appellant's claim that he had made any application for grant of leave on medical grounds or otherwise or that any such leave applied for by him was allowed to him. Of course the appellant has placed on record several applications written in Sindhi for grant of leave on medical grounds but he has not shown us any order of the competent authority sanctioning the leave applied for by him. We have also come cross a medical certificate produced by the appellant. Obviously it was issued on 14-1-1986 by private practitioner of Tando Jam, showing that the appellant was treated from 14-7-1985 to 14-1-1986 as outdoor patient. The certificate of this type deserves no consideration. In the first place the appellant made no attempt to get it endorsed by some authorized medical officer. Secondly it speaks of the illness which lasted upto 14-1-1986, not upto 5-7-1986, the date on which the appellant reported for duty. Again the illness mentioned in the certificate was not of the nature prohibiting the appellant from performing his ordinary pursuits of life. After considering all these factors we have come to the conclusion that the second charge against the appellant stands established. The finding of the Enquiry Officer on this charge is also to the same effect. Having arrived at the above conclusion the only question that engages our attention is about punishment. Obviously the appellant was awarded the extreme punishment of dismissal on finding him guilty of both the charges. As discussed above he has been exonerated from the charge regarding his involvement in the illicit sale of Bangla Deshi women. Besides this, we have been shown two separate orders, one passed by the S.S.P. Hyderabad, dated 29-10-1989 and another passed by S.P. Badin, dated 19-9-1989 having bearing on the question of punishment. By the first mentioned order, Constable Aurangzeb who was co-accused with the appellant in the criminal case referred to above on the strength of the ditto enquiry report as was submitted in the appellant's case, was awarded major punishment of forfeiture of service for increment for one year due on 1-12-1989. By the same order the said Constable was also reinstated in service w.e.f. 2:5-10-1989. By the second order Sher Muhammad, the other co-accused of the appellant in the said criminal case was exonerated from the charge relating to the illicit sale of Bangla Deshi women, though it was left open to take out fresh proceedings against him for the charge of his wilful absence from duty. Keeping in view the above two cases of Constables Aurangzeb and Sher Muhammad, we see no justification to treat the appellant differently for the purpose of imposing penalty upon him. Even otherwise after his exoneration from the main charges, the original punishment of dismissal could not be retained. Accordingly the appellant is awarded the same punishment as was awarded to Constable Aurangzeb, namely the stoppage of one annual increment due to him on 1-12-1989. As a result of the above discussion the appeal is partly allowed with no order as to costs and the present punishment of the dismissal from service awarded to the appellant is substituted by stoppage of one annual increment due to the appellant on 1-12-1989 without cumulative effect. M.Y.M./250/Sr.S Appeal partly allowed.