2016 PLP (C (PLC(CS))

KHALID MAHMOOD RAMAY, (MEMBER-V).

Instant appeal was preferred by the appellant against impugned order No.1695/PS dated 02.10.2014 of compulsory retirement from service on the allegations contained in Show Cause Notice No.100/SCN dated 08.07.2014 as reproduced below: "One Anwar Hussain son of Bazar resident of Chak No.510/GB, Tehsil Tandlianwala, District Faisalabad submitted a written application before the undersigned alleging therein that during investigation he received bribe Rs.39,000/- from complainant of case FIR No.217/14 under sections 324/337F3/F5/F6/34, P.P.C. P.S. Mamunkanjan but on his complaint, he returned the said amount to him. The above said act on his part comes under the purview of gross misconduct and corruption. Hence liable for disciplinary action."

2. The appellant submitted reply to the show cause notice and denied the charges leveled therein but without considering reply of the appellant and without holding any regular inquiry the appellant was awarded major penalty of compulsory retirement from service. The appellant filed a departmental appeal to respondent No.1 which could not be decided within stipulated time span as prescribed under the law, hence the instant appeal.

3. Process was issued and in. response the respondents submitted their parawise comments. Record produced by the department was perused as well as arguments on part of both the parties heard.

4. Learned counsel for the appellant argued that there is no direct evidence on record against the appellant and the appellant vehementally denied all the allegations leveled against him in his written reply which was not given due consideration. An affidavit of the complainant in the case F.I.R. mentioned in the charge sheet is present on record, in which the complainant deposed that he had not given any bribe amount to the present appellant and further that he did not want to proceed against the present appellant. The learned counsel maintained that the allegations leveled against the appellant were totally denied and in view of denial made by the appellant, entailed material oral and factual controversy, which earnestly necessitated a regular inquiry.

5. The order has been passed in a slipshod manner which is illegal and unsustainable in the eyes of law. No witnesses have been examined and no chance of cross-examination has been provided to the appellant which is practically not less than denial of justice to the appellant. Bifurcation, learned counsel continued, of the alleged bribe money as Rs.15,000/-, 2900/-, 3200/-, and eatable articles obtained tram a baker' making a total amount of Rs.39,000/- as bribe money seriously required evidence and independent witnesses while providing opportunity of cross-examination to the appellant in the form of a full fledge regular inquiry.

6. He further argued that mentioning 43 previous bad entries on the credit of the appellant in the impugned order, should not have any influence on the present case even at the departmental level. The department has acted on the basis of surmises and conjectures and virtually carried out exploitation of the process of law.

7. The learned counsel further relied on case law as held by the Apex Court in 1993 SCMR 603, 1996 SCMR 234, 2002 SCMR 433 and 1989 Supreme Court 335 whereby it has been held that a regular inquiry having components of independent evidence and cross-examination of the witnesses are essentially required to pass an order of major penalty. He requested to set aside the said order holding that the impugned order is devoid of facts, legitimacy and material worth. He further pointed out that if it was a fit case of receiving bribe on part of the present appellant, why did the departmental authorities not refer the case to the Anti-Corruption Establishment for proceeding against him under relevant law.

8. On the other hand, learned District Attorney forcefully opposed the contention of the counsel for appellant and argued that the appellant had already 43 bad entries on his credit including one dismissal from service in the year 2012. He maintained that although the inquiry has been dispensed with vide show cause notice, however provisions of Punjab Police (E&D) Rules, 1975 have been fully complied with. However, he as well as the Departmental Representative, could not answer, as the record produced is also silent, as to why the case of illegal gratification was not forwarded to the Anti-Corruption Establishment for taking legal action against the appellant especially when the same has been made basis of the impugned order.

9. Due consideration has been given to the record and arguments from both sides. It is held that it was essentially a case of regular inquiry because it involved material controversy of the facts, which could not be removed without recording independent evidence. It is also on record that the affidavit produced by the complainant during investigation of the relevant F.I.R. has not been evaluated rather the same has been termed as maneuvered, without supporting this version with independent evidence. Even in that case the department was duty bound to dig out the facts by challenging the authenticity of the affidavit in the form of a regular inquiry, and by recording independent evidence; which the department failed to do as such.

10. It has also been established on record that the complainant did not give any bribe money to the appellant in person rather it has been alleged to be given to one Talib Hussain and also that the said Talib Hussain did not give that money to the appellant. Matter of non-forwarding of the instant case to initiate proceedings against the appellant under Anti-Corruption Law also makes it somehow questionable. The matter of bad entries as well as once dismissal previously on part of the appellant had hardly any particular concern with the present case because if the appellant was previously dismissed, then he could not have been proceeded against and penalized in the instant matter without being reinstated.

11. Although the department was empowered in dispensing with regular inquiry vide Section 5 of the PEEDA Act, 2006 but the same has been done in violation of mandatory provision of mentioning reasons to dispense with regular inquiry. Allegations are mentioned as. "clear-cut" in nature but no evidence has been incorporated during the departmental proceedings. On the other hand evidence produced by the appellant in his favour has also not been evaluated properly. Previously punishments on part of the appellant cannot be made justification to award him punishment in the present case.

12. In view of what has been discussed above, the instant appeal is accepted and the impugned order stands devoid of merit and justification and is hereby set aside being illegal and unlawful. Consequently, the appellant shall stand reinstated into service from the date when he was compulsorily retired from service. The intervening period shall be treated as leave without pay on the dictum set by the Apex Court in PLJ 2011 Tr.C. (Services)

82. ZC/12/PST Appeal allowed.