1984 PLP (C (PLC(CS))

ABDUL JABBAR KHAN (CHAIRMAN). ‑Muhammad Iqbal Noon, Sub‑Inspector Police, Bahawalnagar has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against the orders passed by the Superintendent of Police, Bahawalnagar reducing the appellant from the rank of Sub‑Inspector to Assistant Sub‑Inspector and order, dated 27th March, 1982 passed by the U. I.‑G. Police, Bahawalpur Range, whereby the appeal filed by the appellant was partially dismissed and dually order, dated 5th May, 1983 passed by the Additional Inspector, General of Police, Punjab, by which the Revision Petition filed. by the appellant has been rejected. By virtue of this appeal he has prayed that the impugned order be set aside and the appellant be re‑instated in the rank. of Sub‑Inspector Prom the date of his reversion.

3. Brief facts of the case are that a show‑cause notice was issued on 27th September, 1981 to the appellant by the Superintendent of Police, Bahawalnagar, on the ground that while posted as S. H. O., Police Station Dahranwala, the appellant exhibited lethargy, indifference and carelessness, as a result of which two criminals namely Nazar and Sardara who had escaped from Bahawalpur Jail and came over to Chak No. l I2/Murad and spent two nights there and could not be arrested. The appellant explained that he was fully vigilant and did not show any lethargy, in difference, carelessness and kept an eye over the said escapees. However, the Superintendent of Police, did not consider the explanation satisfactory and visited the appellant with major penalty of reversion from the rank of Sub‑Inspector to the rank of Assistant 'Sub‑Inspector, w. e. f. 19th November, 1981. Aggrieved against this order, he filed an appeal before the Deputy Inspector‑General of Police, Bahawalpur Range, who vide his order, dated 27th May, 1982 modified the impugned order of the Superintendent of Police, Bahawalnagar, and set aside the punishment of unequivocal reversion by restoring the appellant to the rank of officiating Sub‑Inspector after admission of his name to List 'E'. However, he also inflicted minor penalty of forfeiture of one year's service. He filed Revision Petition before the Additional Inspector‑General of Police but the same has been rejected on 5th May, 1983. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.

5. Learned counsel for the appellant has submitted that the entire proceedings taken against the appellant are against the well‑settled principle of natural justice as well as Police Efficiency and Discipline Rules, 1975, as no departmental inquiry was held and appellant has been punished without any substantive ground but only, on conjecture and presumption, which stand fully belied by various documents still on the record with the Department. It has been further argued that the appel lant has established his innocence beyond all doubts by placing on record the affidavits of the witnesses, fully supported by various Jalsa‑e- Aams held at the spot from time to time both by A.S.P./SD.P.O. Chishtian as well as D. I.‑G. Police himself.

6. On the other hand learned District Attorney has adopted the comments so filed by the Department and has submitted that a formal departmental inquiry was not considered necessary because the allegations were so definite and clear and could be proved otherwise without taking recourse to such like enquiries. With regard to Jalsa‑e‑Aam inquiry by the D. I.‑G. Police, it was submitted that it was not held with regard to the verification of the incident and was only arranged to hear the com plaints of general public. According to the learned District Attorney as the appellant had failed to make any concerted efforts for the arrest of the escapees, the punishment so awarded by the D. I.‑G. Police could not be challenged by him. He also submitted that the action against the appellant has been taken under the general proceedings, therefore, he was punished in pursuance of inefficiency and carelessness.

7. We have given our anxious thought to the arguments so advanced by the parties and first of all advert to the main legal objection raised by the learned counsel for the appellant than no proceedings at all, were con ducted as prescribed under the Police E. and D. Rules therefore, the entire exercise was illegal. To examine this point we have gone through carefully the show‑cause notice issued by the S.P. Bahawalnagar, dated 27th Septem ber, 1981. In para. 2 of the show‑cause notice, it has been stated that S. P. was competent to proceed against the appellant under rule 6(3) of the Punjab Police E. and D. Rules, 1975, therefore, he did not consider expedient to hold general departmental proceedings against him. This paragraph itself is self‑contradictory as well as meaningless. Undoubtedly there can be no challenge to the powers of the S. P. i.e. competent autho rity to proceed against the appellant under rule 6(3) of the Police E. and D. Rules, 1975, but it was incumbent upon him to give reasons and to record a formal order that regular inquiry as envisaged under the E. and D. Rules was being disp'6ased with under rule 6(3) of the Police E. and D. Rules. The very omission of this categorical order reduced the meanings of para. 2 of the show‑cause notice to nullity. We have also examined the entire record of this case, which was made available to us at the time of hearing and find that there was no material available with the compe tent authority in the form of documentary evidence, which could pin point the act of omission and commission by the accused official without recording any evidence or holding inquiry for the said purpose. In view of the above we are of the considered opinion that the entire proceedings taken against the appellant are in gross violation of the Police E. and D. Rules and most arbitrary in nature.

8. With regard to the merits of the case, we have gone through the first preliminary inquiry held by the A.S.P./S.D.P.O. Chishtian, as a result of which he submitted his report on 30th July, 1981 and find that the entire report as well as the details of the inquiry, completely exonerated the appellant of the charges for which he had been held guilty. It will be useful to produce the concluding para. of the said inquiry as under :‑ "The arrival of the escapees Nazar Hussain and Sardara in the vicinity of P. S. Dharanwala, was not proved."

9. We have also taken into account another inquiry conducted in this behalf by the D.S.P. Headquarters, dated 16th August, 1981. The report of the D.S.P. which is now placed on the record. as A/I, also clearly states that as soon as the S.H.O. got the information about the escapees of the condemned convicts Nazar Hussain and Sardara, he immediately raided the house of their relation in Chak 11.2/Murad but he could not find Nazar Hussain at that place. However, he got hold of Mst Jamilan, daughter of the said condemned convict as well as wife of Muhammad Sharif, Fateh Muhammad son of Kalu and Bashir Muhammad sons in law of Nazar Hussain and brought all of them to Police Station Dharanwala. In this manner the D.S.P. Police confirmed that all legitimate efforts were made by the appellant to put pressure on the escapees to report back in order to get their near and dear out of troubles. Fateh Muhammad was allowed only one night to attend the acrimony of his maternal grand‑daughter and he also came back after spending a night there. This report fully endorsed the averment of the appellant, that all possible efforts were made without any delay to trace out the escapees as well as to put pressure on their relations to effect their arrest. There is positive averment made by the appellant in para. 3 of the Memo of Appeal that the D. I.‑G. Police also visited the locality and held an open ljlas at Dharanwala in order to verify the actual facts of these allegations, but nobody came forward to' make any complaint against the appellant or the D.I.G. had any material with him to come to the conclusion that the appellant has failed to perform his duty in diligent manner. This averment has been met by the respondents in evasive manner that although Jalsa‑e‑Aam was held by the D.I.G. in the said locality but not for the specific verification of this incident, yet it was Ijlas‑e‑Aam to entertain general complaints against local administration, if any. However, this has not been denied by the respondent that D.I‑G. had not visited the place during this period of hectic efforts, being made to arrest the escapees, therefore, it would be fair to presume that when an officer of this rank visited the very locality, which was being considered a place of refuge of the escapees, if there would have been any complaint to that effect, he would have certainly mentioned the same in his impugned order while holding the appellant partially guilty of this negligence.

10. The appellant has produced a large number of affidavits deposed by Messrs Faiz Ahmad son of Sardar Ali Chak No. 178/Murad, Muhammad Akram son of Mansab Ali Chak No. 178/Murad, Muhammad Ramzan son of Khuda Bakhsh Chak No. 113/Murad, Haji Noor Din son of Gulab Din, Chak 112/Murad, Ghulam Nabi son of Muhammad Bakhsh Chak No. 113/Murad, Muhammad Bashir son of Haji Noor Din Chak No. 112/Murad, Abdul Haq son of Rehmat Ullah Chak No. 112/Murad, Manzoor Ahmad son of Haji Shah Muhammad Chak No. 112/Murad Muhammad Sadiq son of Sardar Muhammad Chak No. 112/Murad, Sajawal son of Noor Muhammad Chak No. 113/Murad, Muhammad Shafi son of Pir Bakhsh, Chak No. 1 l3/ M urad, Shabab‑ud Din son of Haji Muhammad Ismail, Abdul Aziz son of Nabi Bakbsh Chak 112/Murad, Muhammad Sadiq son of Suleman, Chak 112iMurad, Muhammad Ishaq son of Fazal Din, Chak 113/Murad and Rehmat Ullah son of Fateh Muhammad Chak 113/Murad, to the effect that all efforts were made by the SHO to keep a strict watch over the movements of escapees, if they were ever seen lurking around, but they were of the unanimous opinion that nothing of this sort happened despite extreme vigilance conducted by the S.H.O. with the assistance of these deponents. The most interesting feature of this case would be that both the A.S.P./ D.S.P. Chishtian had first exonerated the appellant in his report so quoted above in the earlier part of our judgment, but the S.P. was pleased to elicit further inquiry from A.S.P. by referring to some telephonic talk made by him to the S.P. in which he had laid certain information which was in con tradiction of his earlier findings. It is only when this confidential D. O. was received by A.S.P., he for the reasons best known to himself, changed his earlier written stand by submitting a further report in which he has stated that Fateh Muhammad a relative of the escapees had confessed before him, that the escapee visited his abode during this period. We are surprised how this document could be used against the appellant, when he had no chance either to confront the A.S.P. or the source of information Fateh Muhammad as all this happened behind his back. We are of the considered opinion that such like evidence cannot be allowed to be used against a civil servant, particularly when the same is done at hi back without confronting him with the same or affording him any chance to rebut the same as this would be in gross violation of fundamental principle of natural justice i.e. audi alteram partem..

11. In view of the above detailed analysis of the entire legal as well as factual aspects of the case, we proceed to accept the appeal set aside all the three impugned orders, and hold that the appellant be deemed to have been reinstated as Sub‑Inspector from 19th November, 1981 the date on which be was reverted by the S. P. to the rank of A.S.I. without any cogent reasons. However, there will be no order as to costs. A. E. Appeal accepted.