1980 PLP (C (PLC(CS))

M. SALEEM CHAUDHRY (CHAIRMAN).

‑In this appeal, the appellants Ex Constables of Police, are aggrieved by the order of Superintendent of Police, Sadar, Okara dated 26‑3‑1978 dismissing the appellants from service and that of the order of Inspector‑General of Police dated 28‑3‑1979 converting the order of dismissal into that of compulsory retirement. Briefly, the facts of the case are that it was alleged that on 26‑1‑1978 at about 10.00 p. m. when the appellants were posted at Okara Police Station, Sadar, they were found drunk and were abusing the public. A case under section 61/1/14 was registered against them and they were sent for trial before the Assistant Commissioner (with powers of Section 30 Magistrate), Okara, who relying upon the judgment of Mr. Justice K. M. A. Samadani in Criminal Misc. No. 26 of 1975 In re : Saeed Ahmad Mailk v. The State acquitted the appellants on the ground that mere allegation of foul smell coming out of the mouth was not sufficient to justify the conviction. After the orders of the Trial Court, the appellants were proceeded against departmentally. Admittedly, no enquiry was held. The appellants were straightaway served with show‑cause notice and were dismissed from service by the order of S. P. on the ground that they were found drunk and were hauld up by P. I. Okara, Muhammad Abdul Latif and P. S. I. Muhammad Akbar in the presence of a few members of the public. The appellants, ultimately, approached the I. G. who converted the punishment of dismissal into that of compulsory retirement, vide his order as under :‑ "In view, of the fact that their past record is good and clear i. e. F. C. Muhammad Sharif has 35 reward good entries with no punishment in 16 years service and F. C. Abdul Shakoor has 13 good entries and no punishment. Their dismissal is turned into compulsory retirement." Feeling dissatisfied with the departmental action, the appellants filed this appeal before us on 28‑4‑1979 and the learned counsel raised the following grounds :‑ (1) That this was a fit case for holding enquiry as the findings as to the guilt of the appellants depended upon oral testimony alone. (2) That the Criminal Court acquitted the appellants on the ground that there was no scientific data available before the trial Court to return the verdict of guilty. (3) That the enquiry could not be dispensed with by the Department in disregard of the decision of this Tribunal delivered on various occasions wherein it was laid down that in case the entire evidence against the defaulter was oral, the enquiry was necessary so that to enable the appellants to cross‑examine the witnesses against them to provide adequate opportunity of defence to the aggrieved civil servant. (4) That the allegations against the appellants were totally wrong and false. According to the appellants, they have been punished on the basis of mere allegation and there was no legal evidence to justify the punishment imposed upon them. (5) That the acquittal of the appellants by the criminal Court was a bar against the departmental proceedings. The learned Government Pleader controverted the above contention. According to him, the acquittal of the appellants in the criminal case, being on the technical ground, did not operate as a bar. Even otherwise he contends that the object of the criminal proceedings and the departmental proceedings was different ; thus the same could not operate as a bar against Department. In this regard, he relied upon the following observations by a Division Bench of Lahore High Court P L D 1968 Lah. 786 In re : Shafqat Mahmood Lodhi v. The A.‑G., Punjab, West Pakistan, Lahore : "The whole object of initiating disciplinary proceedings against a civil servant is to maintain purity of public servant which indeed, is in the highest public interest. The object is certainly not to punish an erring civil servant in the criminal sense that would require his trial in a Criminal Court. It is because of this that when the facts alleged against a delinquent also constitute a criminal offence, he is separately tried by the Criminal Court and the disciplinary action to adjudicate upon his fitness for further retention in public service can proceed simultaneously or follow the result of the criminal case. No question of "double jeopardy" can arise in such case . . . . : " He also argued that the enquiry in this case has been properly dispensed with as the appellants had been discovered in a drunken state at a public place in the presence of two responsible police officers beside people from public. He also submitted that the acquittal by the trial Court in the criminal case was no bar to departmental proceedings. After hearing both the parties and going through the record we find that the contention of the appellants regarding competency of the departmental proceedings has no force as laid down in the authority from the Lahore High Court cited above. However, as regards the other contention we find considerable merit. It has been repeatedly laid down by this Tribunal that when the liability of the civil servant to suffer departmental punishment depended solely on the oral testimony it was essential to hold the enquiry to provide due opportunity of defence to the delinquent. We are constrained to observe that the Department has failed to keep in view the various decisions of this Tribunal on the point. We are clearly of the view that in this case the appellants had been denied due opportunity to defend themselves. The witnesses on whose version they nave been made to suffer the punishment, were not made available for cross‑examining by the appellants. We accept this appeal and remand the case to the S. P. for proceeding de novo in the light of the observations above. Consequently, the case is remanded. Appeal dismissed.