1984 PLP (C (PLC)

A. G. Humayun, District Attorney for Respondents. Muhammad Rafique ex‑Constable No. 284, Vehari District, has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974 wherein he has impleaded the Superintendent of Police, Vehari, the D. I.‑G. Police, Multan Range, Multan and the I.‑G. of Police, Punjab, Lahore as respondents.

2. By virtue of this appeal, the appellant has prayed that the impugn ed order, dated 1st November, 1980 (Annexure `C) and final order, dated 2nd June, 1982 (Annexure `H') be set aside and the appellant be re‑instated in service; w. e. f. 1st November, 1980.

3. Brief facts of the case are that on 4th September, 1982, a raid was conducted by the local police of Police Station City Vehari, under the super vision of Muhammad Sarfraz Khan, P I/HQrs., Vehari in the area of Chak No. 11/W B. As a result, the appellant alongwith constable Bashir Ahmad No. 481, Noor Muhammad No. 488 and Muhammad Idrees No. 364 were. arrested while gambling on a public place. During the raid an amount of Rs. 407 and nine wrist watches were seized as stake money. Accordingly, Case F. I. R. No. 171, dated 4th September, 1980 under section 13/3/67 of Gambling Act was registered. All the accused persons were challaned to Court of law to face judicial verdict. Meanwhile, the appellant was served with a show=cause notice by way of general police proceedings without appointing Enquiry Officer under rule 6 (3) of the Punjab Police Rules, 1975 to which he submitted a written reply, dated 13th September, 1980. The reply submitted by the appellant was considered and he was also heard in person. As the charge was proved, against the appellant, he was dismissed from service w. e. f. 1st November, 1980, vide order dated 1st November, 1980 passed by Superintendent of Police, Vehari. The appellant made an appeal to the Deputy Inspector-General of Police, Multan Range, Multan, wherein the punishment of dismissal was changed by him into compulsory retirement vide his order dated 25th March, 1981. The appellant made a revision petition to the inspector‑General of Police, Punjab, Lahore. The appellant was inform ed vide order, dated 2nd June, 198L that his appeal has been rejected vide Order No. 12013‑14/E‑IV, dated 27th January, 1982. Hence this appeal.

4. I have heard the parties. It has been argued by the learned counsel for the appellant that the appellant was dismissed/compulsory retired from service on account of registration of a case against him and as a result of the police investigation conducted in that case. However as stated in para. 2 of the impugned order, dated 1st November, :980 no regular enquiry was conducted. It has been contended that since the allegations were those of gambling, regular enquiry was necessary. It has further been sub mitted by the learned counsel for the appellant that show‑cause notice as well as the impugned order, dated 1st November, 1980, are clear to ‑ the effect that the only cause of the dismissal /compulsory retirement of the appellant from service are that a criminal case was registered against him in which police investigation was held and judicial action had already been taken up against the defaulter and his cronics. It has, therefore, been argued by the learned counsel for the appellant that if the department intended to proceed against the appellant on the basis of criminal proceedings then the department should have awaited the judicial verdict. Alternatively if the department wanted to take departmental proceedings independently then it could only be done on the basis of an independent enquiry under the rule 6 (4) of the Punjab Police (E & D) Rules, 1975. Since the department has not held any independent enquiry, the proceed ings cannot be sustained ; especially when the Court of Anwar Ali Malik. Magistrate 1st Class, Vehari, has acquitted the appellant of the same charge as a result of full-fledged trial.

5. Controverting the above arguments of the learned counsel for the appellant, the learned District Attorney has relied on the para-wise comments submitted by the respondents and also the detail mentioned in the impugned orders, dated 1st November, 1980 and 25th March, 1981 of res pondents Nos. 1 and 2, respectively. It has been submitted by the learned District Attorney as the appellant was involved in a serious criminal offence, hence the impugned orders of the respondents are well‑considered, valid and lawful orders.

6. I have given my anxious thought to the arguments of the parties and have also consulted the record of this case. The facts of the case are that the appellant has been dismissed from service on the ground of mis conduct due to the fact that the Case F.

1. R. No. 171, dated 4th September, 1980, under section 13 of the Public Gambling Act, 1867 was registered against the appellant at Police Station City Vehari and after investigation the appellant was challaned and his case was under trial in the Court. Thus, the appellant was found guilty of misconduct. If a reliance is made to the judgment of the Trial Court of Magistrate 1st Class, Vehari, Mr. Anwar Ali Malik, dated 17th March, 1981, it is clear that the appellant has been acquitted from the acquisition. In view of the fact that basis on which the appellant was dismissed/compulsorily retired from service has fallen to the ground by the detailed and well reason ed judgment of the Court of competent jurisdiction which still hold the field, and in the absence of regular enquiry which was a must in this case, the impugned orders cannot be sustained. In a similar case of Mr. Anisur Rehman Khan v. D. l.‑G. Police, Lahore and others Appeal No. 729/763 of 1980, announced on 8th July, 1981, this Tribunal has already decided the same issue on the following terms, the operative portion of the judgment is reproduced below : "In view of the facts that the basis on which the appellant was dismiss ed from service has fallen to the ground by the detailed and well reasoned judgment of the Court of competent jurisdiction, which still holds the field, and in the absence of a regular enquiry which was a must in this case, the impugned order cannot be sustained. The result is that we accept the appeal and set aside the impugned order as being of no legal effect and direct that the appellant be re‑instat ed in service from the date of his suspension in the office he was holding at the relevant time, as if he had not been removed from the service at all, with all the back benefits."

7. The result of the above discussion, is that the appeal is accepted. The impugned orders are set aside as being of no legal effect and direct that the appellant be re‑instated in service from the date of his dismissal/compulsory retirement, as if he had not been dismissed/compulsorily retired from I the service at all, with all back benefits. There will be no order as to costs. M. Y. M. Appeal accepted.