2005 PLP (C (PLC(CS))

JUSTICE (RTED.) ABDUL GHANI SHAIKH, CHAIRMAN,

Through the instant appeal, appellant has challenged the legality and propriety of the original impugned order dated 5-7-2001 passed by respondent No.2 awarding him major penalty of dismissal from service.

2. Relevant facts for the purpose of disposal of the appeal are that appellant while posted as Assistant Sub-Inspector Police at Police Station Qasimabad was proceeded with departmentally on account of his alleged involvement in Crime No.46 of 2000 under section 161 P.P.C., read with section 5(2) Act-II of 1947. He was served with a charge-sheet dated 12-1-2001 issued by the Respondent No.2. Mr. Sharjil Karim Kharal, A.S.P/S.D.P.O., Cantonment. Hyderabad was appointed to conduct regular enquiry against the appellant. In his detailed reply, appellant denied the allegations vehemently and explained his position. The Enquiry Officer conducted the enquiry and submitted his report. He found the appellant guilty and recommended for suitable punishment to appellant. On the basis of findings of Enquiry Officer, appellant was awarded major penalty of dismissal from service vide order dated 5-7-2001. Against which he preferred departmental appeal to the Respondents No.1 and on getting no response within the stipulated period of 90 days, appellant filed the instant appeal.

3. In support of the appeal, it was mainly contended that impugned order dismissing appellant from service was passed in utter disregard of the mandatory provisions of the Sindh Police (E&D) Rules, 1988. He submitted that neither the copy of enquiry report was supplied to the appellant nor even a final show-cause notice was issued to him and this infirmity/lacuna alone is sufficient to set aside the impugned order and for reinstatement of appellant in service. In support of his contention, he placed reliance on the case of Muhammad Firdous v. Secretary, Culture and Tourism Deptt. and others in Appeal No.59 of 1996 decided by this Tribunal vide judgment dated 14-5-2002. 3A. On the other hand, learned Asstt. A.-G. fully supported the impugned order. She submitted that a serious charge of receiving bribe was levelled against the appellant and for probing the matter an independent and impartial Enquiry Officer was appointed. She added that all the witnesses were examined in presence of the appellant and that he was provided full opportunity to cross-examine them which opportunity he also availed but failed to shatter their evidence, thus the principles of natural justice were fully complied with and that no illegality or irregularity was committed by the Department while awarding major penalty of dismissed from service to appellant. Next, she submitted that as per impugned order appellant's general reputation was very bad and his further retention in service would be injurious to police force, discipline and public confidence in police.

4. We have considered the above submissions, perused the material placed on the record and the case-law referred to by the learned counsel for the appellant. There is no denial of the fact that although an enquiry was conducted but the copy of the Enquiry report was never supplied to the appellant inasmuch as even the final show-cause notice was not given to the appellant. Besides, before inflicting major punishment, appellant was not afforded personal hearing to explain his defence to the findings recorded against him by the Enquiry Officer. Thus the principle of "audi alteram partem" (no person should be condemned unheard) was glaringly violated. There is a long chain of case-law of Honourable apex Court, that orders imposing major penalty to the civil servant without serving final/second show-cause notice and without supplying the copy of enquiry report are not sustainable. Reference is invited to the case of Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal, Lahore, 1975 SCMR 455, wherein it was observed as under: "In our opinion, therefore, it was necessary and consistent with the principles of natural justice that not only the respondent should have been furnished with a copy of the enquiry report but also he should have been given an opportunity to show cause why the order of dismissal should not be passed against him. Evidently such an opportunity must take the form of written show-cause notice to the respondent. The mere fact that the respondent had a personal audience with his employer when he asserted he was not guilty cannot replace the aforesaid requirement of law." The above view was followed in the case of Islamabad Club v. Punjab Labour Court No.2, PLD 1980 SC 307, in the following words: "After giving our anxious consideration to the submission made by the learned counsel for the parties, we have formed the view that in a case where formal enquiry is held, it seems to be an implicit requirement of the relevant rules that a copy of the enquiry report should be furnished to the accused officer as to enable him to offer his explanation with regard to the adverse findings, if any, recorded against him by the Enquiry Officer or the Enquiry Committee, as the case may be. Such a requirement cannot be brushed aside by saying that it would amount to be a second show-cause notice". Both the above-referred reported judgments were again followed in the case of Mir Muhammad v. Government of N.-W.F.P. PLD 1981 SC

176. Needless to say that judgments of the Honourable Supreme Court are binding on each and every organ of the State by virtue of Articles B 189 and 190 of the Constitution.

5. On merits too, it appears that findings of the Enquiry Officer were imaginary based on whims and conjectures. He believed the words of Complainant Hazoor Bux and his witnesses but failed to consider the defence of the appellant. It is an admitted position that there existed relationship of landlord and tenant between Complainant Hazoor Bux (landlord) and appellant (Tenant). They developed some dispute on account of enhancement/non-payment of rent. The possibility that complaint of demanding bribe made by the landlord against the tenant was the result of differences between the parties cannot be ruled out. In any case, the order impugned herein is not sustainable in the eye of law on the touchstone of the principle of natural justice as the law c laid down by our apex Court in the aforesaid reported cases and many others.

6. In the impugned order, Respondent No.2 has observed that "appellant's general reputation was very bad and he can be rated as decoit in uniform. Bad reputation to the Department comes due to illegal activities of officers like this A.S.-I. Therefore, his further retention in service would be injurious to Police force, discipline and public confidence in police". These observations, it is suffice to say were no where mentioned in the charge-sheet dated 12-1-2001 and the statement of allegations attached thereto. These observations being based on personal whims and conjectures cannot be made the basis of awarding major punishment, in the absence of any solid proof.

7. In view of what has been stated above, the appeal is allowed and the impugned order dated 5-7-2001 passed by Respondent No.2 is set aside. The appellant is directed to be reinstead in service. The intervening period be treated as "leave of kind due". There shall be no order as to costs. S.A.K./40/KST Appeal allowed.