1988 PLP (C (PLC(CS))

CH. A. RAHMAN KHAN (MEMBER).‑‑The appellant, Lt.‑Col. (Retd.) Saadat Ali Sheikh, Ex‑Deputy Inspector General of Police, has come in appeal against his compulsory retirement vide impugned order dated 20th August, 1985. He preferred an appeal/review petition to the President dated 15‑9‑1985 to which he has received no reply so far Hence this appeal before the Tribunal.

2. The facts of the case are that the appellant was inducted in the Police Group in BPS‑19 in the year 1977 as an ex‑Army Officer. He was finally posted in the Bureau of Police Research, Pakistan Narcotics Control Board till 9‑2‑1983 when he was posted as D.I.G. Police, Sargodha Range. While at Sargodha he was also given the additional charge of Faisalabad Range in view of rather extraordinary situation there. He was able to control both the Police Ranges in a commendable manner.

3. However, vide order dated 21‑2‑1984, the Government of Punjab repatriated the appellant to the Federal Government where he was posted as Officer on Special Duty, Establishment Division. It was strongly contended that during this period he was communicated the adverse remarks recorded in his ACR by the then Governor of Punjab. The appellant has preferred an appeal against that which is pending.

4. It was further submitted by the learned counsel for the appellant that while posted as OSD, Estt. Division, he was served a show‑cause notice dated 17‑4‑1985 by Respondent No.2 (Secretary, Establishment Division) wherein certain wholly frivolous and baseless allegations were mentioned regarding appellant's tenure as D.I.G. Sargodha Range. The show‑cause notice was not accompanied by any statement of allegations nor did it indicate the material on which it was found. It was also not mentioned whether this show‑cause notice dated 17‑4‑1985 was issued under rule 5(1)(iii) of the Govt. Servants (E&D) Rules, 1973. The appellant submitted his reply to the show‑cause notice on 2‑5‑1985 and strongly contested the allegations brought against him. He made persistent efforts to find out if there was any enquiry, conducted to ascertain the facts but no documents or copy of enquiry report was ever provided to him. In spite of the request made by the appellant to grant him personal hearing in the body of his reply to the show‑cause notice, he was not personally heard by anyone. It, however, came to the notice of the appellant that the action against him was being taken on the basis of some reports against him by the Intelligence Bureau. It was argued by the learned counsel for the appellant that the appellant was given no access to these reports and that he had no opportunity to defend himself. It would have been only appropriate if a regular enquiry was conducted to establish the bona fides of these reports and the appellant was given a chance to prove his innocence. This was a one sided action which does not stand the test of fairplay and justice. It was also argued that this entire action was against the spirit of the natural and substantive justice as explained in Sub‑para (c) of 'Conduct of the Hearing' Page 203 of the Book titled "Judicial Review of Administrative Action" by Late Professor S.A. DE SMITH, (4th Edition).

5. It was contended that after the submission of the reply to the show‑cause notice, it would have been only appropriate for Respondent No.2 to issue a final show‑cause notice as it was held in P L D 19b"i S C 176 S. Mir Muhammad v. Govt. of N.‑W.F.P and 1985 S C M R. 1747. Since the appellant had in the main body of his reply to the show‑cause notice requested for a personal hearing, it was incumbent upon the respondent‑department to afford him this opportunity of personal hearing as held in P L C 1986 (C.S.)

419. In view of this, it was strongly contended that it would have been only fair that a full-fledged enquiry should have been conducted to enquire into the allegations against the appellant giving him full opportunity to defend himself. Any action taken against him without an enquiry is not in the interest of fairplay and justice. It was further contended that since the allegations against the appellant are very serious, it would have been only appropriate to serve a final show‑cause notice after his detailed reply controverting these allegations. It was, therefore, submitted that the impugned order may be set aside and the appellant re‑instated in service with full back benefits.

6. It was contended by the learned counsel for respondents alongwith the departmental representative that the appellant was posted as D. I. G. Sargodha Range from 9‑2‑1983 to 21‑2‑1984. During his tenure as D. I. G. the Government received reports from various sources about his performance as D. I. G. These reports were unambiguous about his misconduct as D.I.G. and it left no room for the competent authority to order a regular enquiry to establish the allegations against him. The appellant had persistent reputation of being corrupt and there was enough material available before the Authorised Officer to exercise his discretion to take action under rule 5(1)(iii) of the Govt. Servants (E&D) Rules. He was served a show‑cause notice dated 17‑4‑1985 to which the appellant submitted a very detailed reply. The appellant was specifically asked to indicate whether he would desire to be heard in person. It was strongly contended that the appellant in his reply to the show‑cause notice did not ask for personal hearing at all. It is nowhere indicated in his reply even by implication that he intended to request for personal hearing. It was further argued by the learned counsel for respondents that it was entirely the discretion of the competent authority whether to order a regular enquiry or not. This discretion is not challengeable as held in P L D 1985 SC 290 Fazal Raheem v. S.P. Mardan and P L D 1985 S C 136 D.I.G. Police v. Anis‑ur‑Rehman Khan. It was also submitted that the contention of the learned counsel for the appellant regarding the explanation of the "Duty of Adequate Disclosure in the Conduct of Hearing' by Late Professor DE SMITH is not considered applicable in this case because it was entirely the discretion of the competent authority whether to disclose the material based on secret reports or not. Since this discretion is available to the competent authority and has been exercised judiciously, it cannot be made a point of discussion at this stage. It was not at all brought out by the learned counsel for the appellant that the discretion was not exercised judiciously or the competent authority did not apply his mind while taking the decision Of following the procedure under rule 5(1)(iii) of the Government Servants (Efficiency and Discipline) Rules, 1973. As a matter of fact the appellant was fully aware of his misdeeds that even when he was clearly asked to indicate this desire to be heard in person, he omitted to make a request in this direction in his reply to the show‑cause notice. It was, therefore, strongly urged that the impugned order may be upheld being legal and valid.

7. We have carefully read the appropriate chapter of the book titled, "Judicial Review of Administrative Action" by Late Professor S.A. DE SMITH, F.B.A. (4th Edition) referred to by the learned counsel for the appellant. The relevant extract of the book is reproduced below: ‑ "Duty of Adequate Disclosure. If prejudicial allegations are to be made against him, he must normally, as we have seen, be given particulars of them before the hearing so that he can prepare his answers. In order to protect his interests he must also be enabled to controvert, correct or comment on other evidence or information that, may be relevant to the decision. If this material is available before the hearing, the right course will usually be to give him advance notification; but it cannot be said that there is a hard and fast rule on this matter, and sometimes natural justice will be held to be satisfied if the material is divulged at the hearing, which may have to be adjourned if he cannot fairly be expected to make his reply without time for consideration." We have gone through the relevant record of the secret report by the Intelligence Bureau on the activities of the appellant during his tenure as D.I.G. Sargodha Range. We then asked the learned counsel for the State to read out the contents of the secret report by the Intelligence Bureau during the Court proceedings. There was no request by the appellant to adjourn the hearing to have time for consideration to submit his reply in this regard. Also, after the perusal of the record particularly the reply of the appellant to the show‑cause notice, we are convinced that he had failed to make any specific request for personal hearing as required in para 5 of the show‑cause notice. Furthermore, in our view, legally it was not incumbent upon the Respondents to give a final show‑cause notice to the appellant in this case.

8. The upshot of the above discussion is that in our considered view the Authorised Officer acted judiciously and exercised his discretion as required by law to follow the procedure under rule 5(1)(iii) of the Government Servants (Efficiency and Discipline) Rules,' 1973. The impugned orders are held valid both on legal plain as well as on facts and merit. We, therefore, dismiss the appeal and order accordingly.

9. No order as to costs

10. Parties to be informed A. A. /395/Sr.E??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed