1988 PLP (C (PLC(CS))

CHAUDHARY ABDUL RASHID (MEMBER).‑‑This is an appeal under section 4 of Punjab Service Tribunals Act, 1974 filed on 8‑9‑1986 by Mr. Rehmat Ali, A.S.I. No.422 Toba Tek Singh at present A.S.I., Police Station Gulberg, Faisalabad against the orders of D.I.G. Faisalabad Range, dated 18‑1‑1983, 22‑1‑1983 and 24‑1‑1983, of S.P., Toba Tek Singh dated 7‑5‑1983 and of D.I.G. , Faisalabad Range dated 20‑11‑1983 and final order of Additional Inspector‑General of Police dated 3‑6‑1986 which was received by the appellant on 12‑8‑1986. He has impleaded Superintendent of Police, Toba Tek Singh, D.I.G. Faisalabad Range and Inspector General of Police, Punjab as respondents. The appeal was admitted to regular hearing on 28‑7‑1987 and has been contested by the respondents.

2. The facts of the case are that the appellant was promoted on 2 years probation in the rank of A.S.I. with effect from 26‑12‑1982. Subsequently he was promoted as officiating Sub‑Inspector with effect from 1‑1‑1983 and his name was admitted to list‑E. Due to his involvement in corruption case F.I.R. No. 227/82 under section 161, P.P.C. and 5/2/47 P.C.A. of P.S. Gojra, the two orders of promotion as Officiating Sub‑Inspector and admission to 'E' list were cancelled on 18‑1‑1983 by Respondent No. 2.The appellant represented against these orders to the Additional Inspector‑General of Police on 20‑2‑1983.

3. The appellant was placed under suspension and a show‑cause notice dated 22‑9‑1982 for major penalty was issued to which he replied on 27‑9‑1982. He was heard by Superintendent of Police, Toba Tek Singh who decided to hold regular enquiry. He was re‑instated in service with effect from 24‑11‑1982 without prejudice to the outcome of enquiry. A charge‑sheet was served on the appellant. The following were the Carges:‑ "In that you while posted at Police Station Gojra, on 2‑8‑1982 by abusing your position as a public servant and by adopting corrupt and illegal means, illegally entered the house of Muhammad Hussain Khokhar s/o Rahim Bux r/o Chak No.425/GB. assaulted the womenfolk of the house and also gave slight beating to the child and took the buffalo into possession on the false fake plea that a complaint had been received against them through higher officers and thereby extorted Rs.1,000 as bribe. During the preliminary enquiry conducted by DSP/H. Qrs; an application without any endorsement from the senior officers was recovered from you, which resulted in the registration of case F.I.R. No.227, dated 18‑8‑1982 under section 161, C.P.C. and 5/2/47, P.C.A., P.S. Gojra against you." The Enquiry Officer held the enquiry and found him guilty of the charge. The Superintendent of Police, Toba Tek Singh heard the appellant on 2‑5‑1983 and imposed the penalty of reduction in pay equal to three increments in the rank of Head Constable vide order dated 7‑5‑1983. In the same order, the name of the appellant was removed from list 'D' and he was reverted to his substantive rank of Head Constable w.e.f. 2‑5‑1983. He was permanently re‑instated in service and the period of suspension was treated as such in the same order. The appellant submitted an appeal to the respondent No.2 against reversion to Head Constable and removal of his name from list 'D' on 31‑5‑1983. This appeal was rejected on 20‑11‑1983 by respondent No.2. He filed an appeal‑cum‑review to the I.‑G. Police against this order on 22‑12‑1983.

4. The Criminal case against the appellant was decided by the Special Judge, Anti‑Corruption, Sargodha and Faisalabad Division on 6‑3‑1985 and the appellant was acquitted of the charge of corruption.

5. The Additional Inspector‑General of Police considered the representation and heard the appellant on 14‑5‑1986 and vide order dated 3‑6‑1986 re‑promoted the appellant as A.S.I. from the date of his reversion and corrected the penalty of reduction in pay by three stages into that of forfeiture of two years of approved service for the following reasons:‑ "The representationist was punished for certain excesses and acceptance of money which formed part of the same act while he was holding the rank of A . S. I . While a case for corruption was registered and a departmental enquiry was pending against him, the D.I.G. brought his name on list 'E' and promoted him to the rank of officiating Sub‑Inspector w.e.f. 20‑12‑1982. This action was subsequently cancelled by the D.I.G. on 18‑1‑1983. It is fair to presume that the D.I.G. while promoting the officer and bringing his name on promotion list 'E' was probably not aware of the case and the enquiry pending against the officer and later on coming to know about it cancelled his order. The contention of the representationist is that his reversion from the rank of Sub‑Inspector and removal from list 'E' could only be based on something adverse on his part after 26‑12‑1982 and not prior to that. In fact, the order of promotion and entry in list 'E' should not have been issued in the first place if it was to be cancelled later on the basis of something which happened prior to the issuance of orders. As a consequence, the representationist has been subjected to as many as five different actions on account of his involvement in corruption which at that time was sub judice and in which the representationist was finally acquitted. Strictly speaking, only one of these actions constituted real punishment but the representationist did suffer a lot having been reduced from the rank of S.I. to a Head Constable." The present appeal has been filed against this order in which it is also prayed that all the orders impugned in para 1 above be set aside and the appellant be declared to continue as Officiating Sub‑Inspector since 1‑1‑1983.

6. It is argued by the learned counsel for the appellant that: (a) The orders of the Respondent No.2 dated 18‑1‑1983, 22‑1‑1983 and 24‑1‑1983 are illegal and void as these were issued without providing the appellant an opportunity to show‑cause as it was reversion with stigma. Reliance is placed on case of Islamic Republic of Pakistan v. Dr. Safdar Mahmood reported as PLD 1983 S C 100 and P L D 1972 Supreme Court 332. (b) The order dated 7‑5‑1983 of Respondent No.l is illegal on two counts: ‑ (i) copy of enquiry report was not given to the appellant and (ii) the procedure was changed from show‑cause notice to regular enquiry. (c) The appellant has been subjected to undue hardship. He all along took the plea that he was not the A.S.I. who was alleged to have extorted money. It was Malik Bashir Ahmed, A.S.I. in whose illaqa the incident occurred and who was named as the accused by the complainant in his complaint dated 5‑8‑1982 to S.P. Toba Tek Singh. The complainant with ulterior motives had subsequently named him as the accused. The judgment of the Special Judge, Anti‑Corruption has acquitted him of the allegation after going into the matter in detail.

7. The learned District Attorney has argued that reversion from officiating rank of Sub‑Inspector to A.S.I. is not a punishment under the Police Rules. Change of Procedure from show‑cause notice to regular enquiry has not prejudiced the defence of the appellant; rather it has given him better opportunity of defending himself. He has further submitted that the actual punishments in this case were reversion from the rank of A.S.I. to Head Constable which has been set aside by Respondent No.3 and reduction in pay by three stages which has been converted into forfeiture of two years of approved service. He has prayed that the order of Respondent No.3 may, therefore, be upheld.

8. We have perused the paper book and given our anxious consideration to the arguments of both sides. We are of the considered view that the orders dated 18‑1‑1983, 22‑1‑1983 and 24‑1‑1983 of the Respondent No.2 are bad in law as no show cause notice was given to the appellant and he was not provided with an opportunity to clear his position. The orders of his promotion to Officiating rank of S.I. and his admission to 'E' list were issued by the competent authority. The reason for which these were cancelled was his involvement in a corruption case which was the subject‑matter of show‑cause notice issued by Respondent No. l on 22‑9‑1982 much before the Respondent No.2 ordered promotion of the appellant w.e.f, 1‑1‑1983. The presumption, therefore, is that it was in his knowledge and in spite of it he issued promotion orders. We do not subscribe to the presumption raised by the Additional I.‑G. of Police in his order dated 3‑6‑1986 that Respondent No.2 was probably not aware of this. He ought to have checked with Respondent No.l before passing promotion order and it was also the duty of Respondent No.l to inform the Respondent No.2 of the development. The appellant should not suffer for the failings of these respondents. He was at the least entitled to show‑cause.

9. The order of Respondent No.l dated 7‑5‑1983 is also liable to be struck down for the reasons that the appellant was not supplied with a copy of the enquiry report. In holding this view we rely on the judgment of the Supreme Court in case reported as P L D 1981 S.C.

176. The order is also liable to be struck down as procedure from show cause notice to enquiry was changed. In holding this view we rely on the judgment of the Supreme Court reported as P L D 1980 SC 310.

10. Now we come to the allegation on account of which all the penal actions were taken in the present case i.e. the involvement of the appellant in the corruption case registered as F.I.R. No.227/82 u/s. 161 P.P.C. and 5/2/47 PCA of P.S. Gojra, District T.T. Singh. We have perused the judgment dated 6‑3‑1985 of Special Judge, Anti‑Corruption, Sargodha and Faisalabad Divisions. The following material facts have been noted by us:‑ (i) The complainant in his application dated 5‑8‑1982, alleged that Malik Bashir Ahmed A.S.I. and two Constables had forcibly entered his house on 2‑8‑1982 terrorised the womenfolk and manhandled a minor boy and took away a buffalo, Next day they arrested the complainant and released him on receipt of Rs.1,000 as illegal gratification. (ii) The appellant had submitted before the Court the reason for his involvement as follows:‑ "Some body had made a complaint of Zina Biljabr against Muhammad Hussain P.W. Then Muhammad Hussain P.W. met me in the Police Station Gojra and requested me that I may not register Zina case against him. I replied that if the charge is proved then action shall be taken in accordance with law. Thereafter a case under section Zina Ordinance was registered against Muhammad Hussain P.W. Because of that misconception the accused made allegation against me though his grievances were actually against Bashir Ahmed, A.S.I., who was the concerned Police Officer of the Illaqa of Muhammad Hussain P.W. I had no concern with that part of the Illaqa in which Muhammad Hussain, P.W. lived." (iii) The version of the complainant was not believed by the Court for following reasons: (a) The occurrence took place at mid‑night in the thickness of Abadi and no eye‑witness came forth to testify this. (b) The complaint was lodged after three days. There is no explanation for delay. (c) The complainant who is a semi‑literate person states that the D.S.P. informed him that the name of Halqa A.S.I. is Rehmat Ali. Such a vital change in the story cannot remain unnoticed, especially when Malik Bashir A.S.I. is a living person, however serving in the same Thana, was Halqa officer of the very Chak where the complainant resides, and this Police Officer was on duty in the Illaqa on the day of the present occurrence (as is evident from extract of Roznamcha (Exh.DC/1). Rehmat Ali accused was as per extract of Roznamcha (Exh. DD/1) present in the Thana, on the date of occurrence. (d) The bribe money is said to have been received by the accused in public gathering of about sixty villagers. That sounds next to impossible. (e) The names of the two eye‑witnesses were not mentioned in the application. These eye‑witnesses appeared before DSP after 15/20 days. The Court held the appellant not guilty of bribery and criminal misconduct and acquitted him in that case.

11. Now when the very basis on which all the departmental proceedings took place and penalties imposed has been washed away, we see no reason why the appellant should not be in the same position as if this charge had never been levelled against him. His reversion from officiating Sub‑Inspector to A.S.I., removal of his name from 'E' list and forfeiture of two years' approved service are all unjustified in view of the verdict of the Court.

12. In view of the above discussion, we set aside the orders of D.I.‑G. dated 18‑1‑1983, 22‑1‑83 and 24‑1‑

83. The effect will be that he will be treated as Officiating Sub‑Inspector w.e.f. 1‑1‑1983 and his name shall be restored to 'E' list from the date it was first ` entered and he shall get full back benefits. The other impugned orders of respondents Nos. l, 2 & 3 dated 7‑5‑83, 20‑11‑83 and 3‑6‑86 are also set aside. There is no order as to costs. S.Q./182/Sr.P Appeal accepted.