1981 PLP (C (PLC(CS))

MUSHTAK ALI KAZI (CHAIRMAN).‑‑The appellant who was serving as a constable in Karachi Police has been removed from service by Superintendent of Police, Harbour Division by order dated 20‑12‑1978 after issue of a show -cause notice. After moving a departmental appeal before the Deputy Inspector -General of Police, the said Painda Khan has preferred this appeal under section 4 of the Sind Service Tribunal Act, 1973. The facts of f he case in brief are that on 15‑9‑1978 at 7‑30 a. m. the appellant and Head Constable Khudadad Khan were going on a scooter towards Juna Bunder gate K. P. T. when they were intercepted by the Watch & Ward Staff and a bundle containing 5 Kilos of tea leaves, was recovered from the rack of the Scooter. The case was registered by the Police vide F. I. R. No. 117 of 1978 for offence under section 379/411/34, P. P. C. The appellant and Head Constable Khudadad Khan were challaned in the Court of Sub‑Divisional Magistrate, Harbour Karachi. Meanwhile a show‑cause notice dated 23‑9‑1978 was issued by Superintendent of Police, Harbour against appellant Painda Khan of T. P. X. Police Station to show cause why any of the penalties prescribed in rule 4 of the Efficiency and Discipline Rules may not be imposed upon him for gross misconduct on his part. The appellant filed his written statement in reply to the show‑cause notice explaining that on the morning in question he and his companion had gone to see off one Mst. Manzoor Begum proceeding on Hajj by m. v. Shams sailing that morning. That one of the well wishers had brought a quantity of tea leaves in loose bundle but the same were not taken on board because taking of loose tea leaves was prohibited by the Customs. The bundle of tea leaves alongwith the cash memo. under which it had been purchased was given to the appellant for taking back home. The cash memo in question had been produced before the Investigating Officer. The Superintendent of Police Harbour, after considering his explanation, found, that the appellant being a member of Disciplined Force was caught red‑handed and had thus abused his official rank and power. He was guilty of gross misconduct and he was, therefore, to be removed from service from the date of receipt of that order dated 20‑12‑1978. The appellant then filed an appeal before the Deputy Inspector‑General of Police against his removal from service. After waiting for 90 days the appellant preferred the present appeal before this Tribunal. Meanwhile the Sub‑Divisional Magistrate Harbour after recording evidence in the criminal case found that according to evidence theft had accrued of 2 kilos of tea leaves from a tea chest lying in the K. P. T. shades, while the stolen property alleged to have been recovered from the accused weighed 5 kilos. Thus the identity of the stolen property had not been established and there were contradictions in evidence of witnesses regarding recovery of this bundle of tea leaves. He accordingly allowed the benefit of doubt to the accused and acquitted them under section 245, Cr. P. C. by judgment dated 30‑4‑1980. The learned counsel for the appellant has argued that while the appellant had been found not guilty after regular trial and after consideration of evidence, he had been found guilty and punished after a mere show‑cause notice without holding any enquiry. The rule 5 (3) of the Efficiency and Discipline Rules, no doubt gave powers to the Authorized Officer to decide the question regarding necessity of having an enquiry conducted. This discretion had to be exercised on sound legal principles. That in the present case the Authority namely Superintendent of Police Harbour was not justified in dispensing with the enquiry and removing the appellant from service within two weeks of the registration of the F. I. R. against him. It has next been argued that the show‑cause notice was vague and no statement of allegations had been attached to the show‑cause notice and lastly that no specific penalty had been proposed in the show‑cause notice and the appellant was summarily removed when he was not mentally prepared to receive such punishment. It has also been argued that even where the enquiry is dispensed with under rule 5 (3) a proper opportunity has to given to the defaulter to meet the allegations and effectively defend himself. The position in this case, no doubt appears to be anomalous. The show‑cause notice was issued against the appellant on the basis of the F. I. R. of the criminal case. The case has, however, resulted in acquittal of the accused because the property recovered was not of the description and quantity as the property actually stolen. Ordinarily where the charge of misconduct relates entirely to the report of a criminal case, the Department concerned can 'Wait for the judgment and. in case of conviction give show‑cause notice to the accused and remove or dismiss him 'from service in a summary manner. But where this procedure is not adopted a regular enquiry ought to be held in order to give full opportunity to the accused to defend himself. Thus the discretion, not to hold the enquiry but to adopt the summary procedure under rule 5 (3), had not been properly exercised. A case of similar anomaly bas been brought to our notice by the learned Assistant Advocate‑General Mr. Hassan Akbar, in the case of Zarar Khan v. Government of Sind (P L D 1980 S C 310). In that case 12 departmental proceedings were pending against A. S. I. Zarar Khan for corruption, misconduct etc. The matter was then reported to the Additional Chief Secretary who forwarded it to the Chief Minister as the "Authority". A show‑cause notice was issued to the A. S. I. under sub‑rule (3) of rule 5, followed‑by an order for his compulsory retirement. Subsequently the enquiry was completed by the Enquiry Officer and the Authorized Officer exonerated the A. S. I. in all the 12 departmental enquiries. Thus on the one hand the allegations were being enquired into by recording evidence but simultaneously the Chief Minister after a show ‑cause notice had dispensed with an enquiry and summarily passed the orders of compulsory retirement. The Supreme Court held that the order of the Chief Minister was illegal as it was not based on proper construction of the relevant rules. The order was, therefore, set aside. It will not be out of place to mention that in the former Efficiency and Discipline Rules, holding of an enquiry was necessary in every case. The result was that in matter which needed no further proof, a formal enquiry had to be held in compliance with the rules. To provide for such cases the procedure was changed and under rule 5 (2) the Authorized Officer is required in the first instance to decide whether in the light of the facts of the case or the interest of justice an enquiry, should be conducted or not. This discretion has to be exercised in a judicious manner by discussing the facts of the case. The proper course to be adopted by the authorised Officer in all such cases would be to write an speaking order giving reasons for the decision so taken by him, as otherwise this provision of law is bound to be abused and in almost every case an enquiry would be dispensed with even though the facts may require full consideration of the case on evidence. How, such discretion should be exercised even by an Executive Officer, has been explained in Maxwell's '‑Interpretation of Statutes as quoted in 1980 P L C (C. S.), 344. . "Whereas, in a multitude of acts, something is left to be done according to the discretion of the authority on whom the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of the Statute, otherwise the act done would not fall within the Statute. `According to his discretion' means, it has been said according to the rules of reason and justice, nor private opinion, according to law and not humour; it is to be, not arbitrary, vague and fanciful but legal and regular, to be exercised not capriciouly, but on judicial ground and for substantial reason." This rule was emphasized in the decision of the West Pakistan High Court reported in P L D 1964 Lah. 359 by stating that the discretion vested in an Executive Officer for public purposes is always circumscribed by scope and object of law creating it and must be exercised justly, fairly and reasonably. It is, therefore, clear that the provision with regard to summary procedure should be adopted only in such cases, where it is clear and apparent to the Authorized Officer from documentary or other evidence, that the specific charges are proved against the defaulter regarding which he can take a decision as to the specific penalty to be awarded. The charges, the evidence and the penalty have then to be mentioned in the show‑cause notice to be served on the defaulter under rule (3) (a) and (b). In all other cases the holding of an enquiry cannot be dispensed with and if the summary course is adopted, the final order passed would be vitiated. In the present case the dispensing with the enquiry was obviously erroneous. This resulted in further procedural defects committed by the Authority. The show‑cause notice after mentioning the fact of the registration of an F. I. R. referred to it as a gross misconduct and called upon the appellant to submit an explanation. The allegation in the F. I. R. was one constituting an offence under section 379/411/34, P. P. C. regarding which the appellant was subsequently exonerated by the criminal Court. The Authority, therefore, could not pre judge the matter and hold the appellant liable for a criminal offence, before the case was decided. The learned A. A. G. has, therefore, tried to explain that the charge in the show‑cause notice was not the commission of offence by the fact that the Constable had so conducted himself that an allegation of criminal offence could be made against him. In other words if an allegation is made against anyone in an F. I. R., it should be considered sufficient for summary dismissal of a public servant. This is indeed a very high ideal to be 'kept in view for persons in the Police Department. Like Caesar's' wife they have to be above all suspicion. If this code of conduct for Police Officer had been violated, the charge should have mentioned it in plain words so that the defaulter could have refuted the charge effectively. A charge cannot be drafted `in such a language that it is to be interpreted and inferences have got to be‑ drawn as to what was meant by the language used. Not only should the charge be clear and specific but it should mention the evidence on which it is based in, the she of statements of allegations and the penalty proposed to be imposed should also be specifically mentioned to enable the accused to prepare his defence accordingly. Lastly a reasonable opportunity of showing cause against the action shall be given to the accused. This has been clearly mentioned in sub rule (3) of rule 5 of Efficiency and Discipline Rules. In the present case, however, not only is the‑charge vague and inconclu sive but there is no mention of any evidence on which it has been based and even the penalty proposed to be imposed has not been mentioned and it has been stated 1n the show‑cause notice that he accused should show-cause "why any of the penalties prescribed in Rule 4 of the said rules may not be imposed". Thus the show‑cause notice does not even specify whether the authority contemplates imposing of a minor penalty or major penalty. The omission coupled with the vague allegations have definitely resulted in prejudice to the accused in his defence. It may also be mentioned that the intention gathered from the language of rule 5 (3) (b) is that the accused have to be given an effective opportunity to refute the charges by either cross‑examining the witnesses who have been relied upon, or by producing oral or documentary evidence in their defence. There are number of decisions of superior Courts regarding nature and conditions of show‑cause notice and requirements of reasonable opportunity to show‑cause. There is no dispute regarding these requirements. These requirements will only be satisfied if the show‑cause notice contains: ‑ (i) the particulars of the charge, (ii) the substance of evidence in support of the charge, (iii) a summary of findings in the preliminary enquiry if any, and (iv) the punishment proposed to be imposed. A civil servant has to be given reasonable time to explain and to defend himself by leading evidence, to cross‑examine the witnesses whose evidence ha been relied upon, and to challenge the documents produced and relied upon as proof of the charges. The civil servant should be heard personally, in appropriate cases, and if the requests for any extention of time on the ground of illness etc. it should be freely granted. He should be supplied with copies of all relevant documents and allowed the right to inspect the record. Thus it is necessary to examine the facts of each case, to see whether a reasonable opportunity for showing cause has been afforded to the civil servant concerned or not. This is a substantial right of the civil servant and mere illusory compliance cannot meet the requirements of law. Mere calling for an explanation without affording reasonable opportunity to refute the charges has been held to be insufficient and the order bas been set aside on that ground alone, as observed in Habib Khan v. Pakistan (P L D 1964 Sind 199). In the case of Sher Zaman v. Pakistan (P L D 1958 Kar. 564), it was further observed that the person to be dismissed, must know the punishment proposed and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity to show cause why such punishment should not be imposed. Thus in the present case the order of the Authority `removing' the appellant from service is clearly vitiated for the defect discussed above. The appeal is accordingly allowed and the impugned order of the Superintendent of Police Harbour is set aside. The appellant may be re‑instated in the service with all the consequential benefits. No order is made as to costs. Appeal allowed.