2000 PLP (C (PLC(CS))

A complaint was received against you that you have taken 1,25,000 US Dollers and valuable documents with malacious/fraudulent intention from one Khurshid Ahmed, thereby preliminary enquiry was conducted through Mr. Sultan Ali Khawaja, ASP/City‑I, who in his findings found you guilty of taking/receiving the above money and valuable documents, committed house‑trespass, disregarding the presence o` ladies of said house‑and upon such findings a criminal case F.:.R. No. 310 dated 7‑11‑1996 under sections 409/419/109/384/342/452, P.P.C. and 5/2/47/P.C.A. was registered at Police Station I‑Area. Consequently you were placed under suspension and your involvement in such a criminal case amounts to gross misconduct/inefficient/disobedience. By reasons of the above, you appear to be guilty of misconduct/inefficiency within the meaning of rule 3 of the Punjab Police (E & D) Rules, 1975 entailing one of the minor/major penalties as envisaged in Rule 4(b) of the said Rules as adopted by Islamabad Police. Having considered the facts and circumstances I am satisfied that there is ample proof and record to initiate General Police proceeding under Rule 6(3) of the said Rules against you. You are hereby called upon to show‑cause notice within 7 days of the receipt of this in accordance with Rule 6(3) of the Punjab Police (E & D) Rules, 1975 as adopted by Islamabad Police as to why one of the minor/major penalties including dismissal from Service may not be imposed upon you stating at the time whether you desire to be heard in person. It shall be presumed that you have no explanation to offer and shall be proceeded ex parte. (Sd.) ?? (NASIR NAWAZ), Senior Superintendent of Police, Islamabad. No. 111 /EC, dated 8‑1‑997.

14. The perusal of the show‑cause notice reveals that the allegation so levelled does not appear to have been established. The words underlined by us mentioned in the above show‑cause notice, create doubt. There appear clear contradiction in the two statements the respondents' side did not submit any material to prove that the appellant's guilt is established nor they could submit any statement of appellant's confession to establish allegation against him. Moreover, the respondents have failed to meet the objection that the summary proceeding was conducted without providing unassailable evidence. As such, such enquiry was not in accordance with law and facts. As such the learned counsel's allegation that appellant was mala fidely treated seems to have some basis. This apprehension, also gets the strength from the facts that there was no rebuttal by the respondents to the objections raised by the learned counsel for the appellant.

15. It appears that the inquiry conducted by A.S.P. City (Sultan Ali Khawaja) was of preliminary nature i.e. merely a fact‑finding inquiry and the major penalty of dismissal from service, in our opinion, cannot be imposed on the basis of such enquiry especially when the facts are being disputed by the appellant and no allegation has been proved against him in concrete term. Under these circumstances, full‑fledged inquiry was essential. The appellant should have been afforded opportunity of cross‑examination of the prosecution witnesses and heard personally. In this regard the judgment of the Supreme Court reported in 1997 PLC (C.S.) 873 is very much clear, wherein it has been held: "If an accused civil servant/employee is charged with misconduct of the nature which cannot be proved without holding of regular enquiry, the removal or dismissal from service of a civil servant on the basis of summary enquiry is not sustainable in law." Another judgment of the Supreme Court reported in 1997 PLC (C.S.) 817 is also very much clear on the point, wherein it has been held: "If the allegations against the accused civil servant/employee are of serious nature and if he denies the same, a regular inquiry cannot be dispensed with. In such a case, the initial burden is on the department to prove the charge, which cannot be done without producing evidence. If the witnesses are examined in support of the charge by the department before the Inquiry Officer, the accused civil servant/employee has the right to be present at the time of examining of such witnesses and has also the right to cross‑examine them to demonstrate that they are not telling the truth. He has further right to produce evidence in rebuttal."

16. As such the conduct of summary proceedings seem unwarranted especially when the authority did not come out with any concrete reason to do away with the formal inquiry as required under the Government Servants (Efficiency and Discipline) Rules, 1973. Rule 5 of these Rules empowers authorised officer to direct enquiry against Government servant through an. Enquiry Officer or Enquiry Committee or if he is satisfied, may order that there would be no enquiry in the interest of security of the country. Under Rule 5(1)(iii) an authorised officer has discretion to decide whether a regular inquiry should be held or not, but the discretion should be exercised fairly and reasonable and not arbitrarily or capriciously with the object to deny the civil servant the right of fair defence. So, if the charge is found on admitted documents/facts, no full‑fledged inquiry 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 have no evidentiary value as to warrant imposition of any punishment on the civil servant concerned.

17. Nothing is available on the file to show, if the authorised officer decided that it is not necessary to have an inquiry conducted through an Enquiry Officer or Enquiry Committee, nor the appellant was provided with material record on the ground of which he was awarded major penalty of dismissal from service.

18. The preliminary inquiry was though conducted but on the back of the appellant and he was not allowed to, participate in such an inquiry. Neither he was heard personally to defend himself. All these things hint at something fishy in the conduct of the inquiry.

19. The justice should not only be done but should appear to be done. This is what is lacking in the case of the appellant. All this creates, doubt in one's mind, if there was‑some mala fide intention in punishing the appellant by creating the ground even when unconvincing and thereby imposing such a major penalty.

20. We have gone through the preliminary inquiry report and reproduce the relevant extract to support the above impression: "Fact in issue No.2????????? "After seeing the receipt signed and after the statements of Khurshid and Shahid, I am convinced that 100.000 dollars are actually given to Abdullah." In the last conclusive opinion, we find mentioned as: "S.H.O. being in possession of actual amount might have been misappropriated same amount."

21. From the above, it becomes clear that the Inquiry Officer, even in the preliminary inquiry, could not. come ‑out with concrete proof, if the appellant got money and was actually in its possession. Even in the conclusive opinion, the Inquiry Officer was not sure. It was again apprehended i.e. S.H.O. might have misappropriated same amount. The decision cannot be made on such surmises or conjectures.

22. The appellant stated at the bar that this all was done because of enmity with him of some people in the Force. It seems to have some element of truth, as it is being borne out from the circumstances of the facts as discussed above.

23. We have given our careful thought to the above circumstances, and have come to the conclusion that there appears an element of mala fide intention on the part of respondents. The facts of the circumstances did not deserve to resort on summary trial of the appellant. The summary procedure was not required as no material evidence could be established. The summary procedure was adopted only on whims, conjectures and surmises. There is neither confession on the hart of the appellant nor could the respondent establish an unassailable evidence. The money alleged to have been misappropriated by the appellant loo could not be recovered from him. The allegations levalled by the appellant to the effect that no witness was called and cross‑examined by him. No record on which the allegation was based was provided to him. Nor the report of inquiry was admittedly given to the appellant. There was no rebuttal from the respondents to these objections. These are controversial facts, thus, needed full‑fledged inquiry to arrive at the truth. This has vitiated the whole process or disciplinary proceedings taken against the appellant.

24. For the foregoing reason, we accept the appeal and set the impugned order of the dismissal of the appellant aside and direct the respondents to reinstate him from the date he was dismissed from service with all back benefits. His intervening, period shall be treated as on duty.

25. No order as to costs.

26. Parties be informed. ??????????????????????????????????? (Sd.) ???????????? ?????????????????????????????????? Roshan Ali Mangi, Member. ??????????????????????????????????? (Sd.) ??????????????????????????????????? ?? Noor Muhammad Magsi, Member. H.B.T./223/St/F????????????????????????????????????????????????????????????????????????????????? Appeal accepted.