1991PLC(C (PLP)

The Appellant's case as stated in the Memo of his appeal is that the appellant was appointed as Police Constable in District South Karachi where he worked at various police stations for about 7 years. The present appeal has arisen from the facts which are briefly narrated in the statement of allegations issued with the charge-sheet bearing No.SP-1/5/DP/85-216, dated 26-1-1986. "On 12-10-1985 at about 1330 hours, Latif, a Taxi Driver known to the complainant Abdur Shakoor came at his residence A/76, Market, Korangi No.6 alongwith `s unknown persons in a Taxi and took the complainant with him for taking tea. He sat in the Taxi with his purse containing Rs.1,300 in presence of Jalil and Abid. The complainant got down from the taxi for the purpose of urine, when it reached near Singer Machine Factory. His purse was laying in the Taxi, In the meanwhile, all the four persons fled away in the Taxi with his purse. You were also found involved in the matter. A case F.I.R. No. 549/85 under section 392/342/34, P.P.C. read with 17(3), E.H.O. was registered at P.S. Korangi and you were also arrested on 19-10-1985." Inspector Khawaja Nisar Ahmed, S.H.O. Jackson was appointed Enquiry Officer to probe into the above charges. The Enquiry Officer submitted his findings on or about 5-2-1987. He found the appellant guilty of misconduct and recommended imposition of major penalty of dismissal. On receipt of such report by the S.P. Addl-I District South, Karachi, the appellant was served with a show-cause notice dated 19-2-1987 to which the appellant submitted his reply. However, S.P. (Addl-1) District South, Karachi with the concurrence of S.S.P. South, Karachi awarded major punishment of dismissal by his order dated 4-5-1987. The appellant then preferred a departmental appeal to the D.I: G. who also rejected the same by his order dated 2-7-1987. Dissatisfied with the D.I. G: s order the appellant made a mercy petition to I.-G. Police in revision, with no consequential relief as the petition was rejected by Addl. I: G. by his order dated 28-6-1988. It is against this order that the appellant has come before this Tribunal. Mr.Mazhar Ali Chohan was heard on behalf of the appellant and Mr. Imdad Hussain Kazi submitted his arguments on behalf of the official respondents. We heard the arguments of the learned counsel, and went through the relevant record. We allowed the appeal by short order dated 10-1-1989 for reasons to be recorded later on. Following are the reasons in support of the short order. At the outset the main charge against the appellant was his alleged involvement in a criminal case bearing F.I.R. No.549/85 under section 392/342/34, P.P.C. read with 17(3) of P.S. Korangi. The brief description of the case is already narrated in the statement of allegation cited above. The case was challaned in the Court of Additional City Magistrate East, Karachi who under his judgment dated 8-11-1986 had acquitted the appellant alongwith others on point of material contradiction and holding the evidence "abnormal and un-believable." It manifestly indicates that the charges shown in the statement of allegations though could not be sustained in the Court of law, proceedings under Efficiency and Discipline, Rules, which were initiated on 26-1-1986, continued and ended in his dismissal on the findings and recommendation of the Enquiry Officer. Now the question arises, as to what was that evidence which proved conclusively the involvement of the appellant at the stage of enquiry in the act of moral turpitude and misconduct as conceived in the aforesaid F.I.R: We minutely examined and gave our anxious thought to the enquiry report. We are highly disappointed to see that the enquiry report has not at all dilated on the charges and to their substantiation. Surprisingly nothing is seen in the enquiry report which could have been made a basis for recommending the major punishment of dismissal. The enquiry was not conducted in conformity of rules so much so that no proceedings were at all held since no witnesses were examined. The charges were such that it necessarily needed the examination of witnesses to prove without doubt the alleged criminal act, in the presence of the appellant. The enquiry report nowhere indicates that enquiry was held in the presence of the appellant and that he was afforded the opportunity of cross-examining the witnesses and to lead his defence. Denial of this statutory right vitiates the entire proceedings of the enquiry which cannot be attached any credibility. It would be relevant to reproduce the relevant paras of the enquiry report which comprise of a single typed page. "On receipt of report from Lines Officers District South Karachi that the respondent .is absent since 16-11-1986 I enquired from Sheet Clerk Police Lines District South office the Addl. Supdt of Police South-I, Karachi about the conduct of the respondent and appointment date It has been reported the respondent was appointed on 24-41982 as Constable in the force. However, no entry was found about punishment in his service sheet. This report is attached herewith. As per circumstances and involvement of a Police Officer in a robbery case shows that he is unlikely to become a good police officer. His service is less than 5 years. If such police officer remained in regular force it becomes a black sheep for the police department. I, therefore, recommend major punishment of dismissal from the service for the respondent." The report is perfunctory since no investigation into the charges was made. Nothing incriminating is seen in the report to conclude the appellant "a black sheep for the police Department". It has been alleged that the appellant deliberately failed to attend the enquiry and un-authorisedly remained absent from duty during the period from 16-11-1986 to 6-2-1987. This cannot be made an excuse for ignoring the statutory procedure of enquiry to meet the ends of natural justice. There is no' record to prove that the appellant absented himself from the enquiry despite due service. Further, nowhere it is transpired that the appellant was proceeded with against unauthorised absence. Whatever be the factual position, the E.O. was not absolved from holding enquiry even ex parte. The omission of the same is an irreparable lapse in the eyes of law, as it negates the doctrine of "inanditius condemnarl delet countumax" This doctrine manifestly provides that no one should be condemned unheard unless he is contumacious. The doctrine further implies that if at an enquiry, the accused does not appear or is otherwise defiant, the enquiry officer or the authority concerned may proceed with the case and take the decision in his absence. The other serious irregularity pointed out by the appellant's counsel was that the appellant was not furnished a copy of the report. This contention finds support from the fact that no copy of the enquiry report was available on the Tribunal record or on the file of the state counsel. The Departmental representative present in the Court, however, produced the enquiry report and furnished a photo copy of the enquiry report on the date of regular hearing. However, this does not cure the breach of natural justice as this has taken away the chance of preparing proper explanation on the basis of the findings by the accused official. The Supreme Court's authority in case of Sayed Mir Muhammad v. N.-W.F.P., Govt. P L D 1981 S C 176 is very clear on this point. The dictum laid down by the Supreme Court in the above reported case would apply with full force in the case of appellant as well. As a consequence, this legal lacuna has also vitiated the proceedings. The upshot of the above discussion leads us to conclude that it appears that some outside factors on motivated criminal complaint, had influenced the mind of the authority in reaching the decision of dismissal of the appellant. In the circumstances the impugned order of dismissal is therefore, set aside and appeal is accepted with no order as to costs. M.Y.H./242/Sr.S Appeal allowed.