1981 PLP (C (PLC(CS))

MUSHTAK ALI KAZI (CHAIRMAN).‑The appellant has preferred this service appeal against his removal from service as Head Constable, Docks Police Station, Karachi. The appellant has joined the Police Department as a Constable on 1‑7‑1961, Subsequently he was promoted as a Head Constable and posted at Karachi Docks Police Station. On 1‑11‑1977 at about 3‑30 a. m. he alongwith Head Constable Muhammad Ashraf of Police Headquarters, Karachi, were caught by incharge Hawaldars on the back side of Berth No. 12 with two gunny bags containing 320 pairs of White Nylon Socks made in china. Head Constable Muhammad Ashraf succeeded in running away while the appellant was produced before the Traffic Inspector. Appellant was then tried for attempting to smuggle foreign goods under the Customs Act before the Assistant Collector of Customs who found him guilty and inflicted a fine of rupee one besides confiscation of the goods. On appeal the order regarding payment of fine was set aside on the ground that no mashirnama regarding recovery of the articles from the possession of the appellant had been prepared. The information regarding the conduct of the Head Constable was also sent to Inspector, Docks who held a preliminary enquiry and submitted his report to Superintendent of Police, Harbour. The appellant was then served with a show‑cause notice dated 14‑1‑1978. While enumerating the above facts in the show‑cause notice the appellant charged that being an employee of a disciplined force he violated rule 24 of the Port, Karachi Protected Area (Entry and Conduct) a Protection of Ports (Special measures). Act, 1948, amounting gross misconduct. The appellant submitted his explanation that he alongwith Head Constable Muhammad Ashraf had gone to see the second show at Cinema which ended at 10 p. m. Head Constable Muhammad Ashraf had to meet the VIth Officer of ship berthed at Karachi Docks he therefore, asked the appellant to take him there. That while they entered the Karachi Docks through the gate of Berth No. 17 and they were at the back of Berth No. 12 when they heard noise and commotion. They saw some peoples are running away after throwing two bags. They tried to catch the thieves when the K. P. T. Watch and Ward Staff accused them of smuggling the goods. Final order was then passed by Superintendent of Police, Harbour Division, who found the explanation of the appellant to be unsatisfactory. In his opinion the defaulter being a member of the disciplined force had been caught red‑handed in the restricted area at the odd hours of the night. He accordingly found the appellant guilty and inflicted major penalty of removal from service under Sind Civil Servants (Efficiency and Discipline) Rules, 1973. The appellant then prefer reel an appeal to the Deputy Inspector General of Police, Karachi who passed order dated 3‑5‑1979 rejected the appeal. He also found that the appellant had been caught red‑handed at bulk side of `D'. Plot Fast Wharf which was restricted area of K. P. T., Karachi. That the appellant was liable for offence under section 156(3) of the Customs Act. The learned counsel for the appellant has not disputed the fact that the appellant had been caught inside the restricted area of Karachi Port under the above circumstances. He has, therefore, argued the case on the legal issues. It has first been pointed out that the appellant had been tried under the Customs Act and he was absolved to any liability for want of sufficient evidence by the Collector of Customs who had allowed his appeal. That having been tried and found not guilty, he could not be penalised under the Efficiency and Discipline Rules. As already stated above the Collector of Customs remitted the penalty of fine mainly on the ground that no mashir or witness testified regarding the recovery of the goods from the `possession' of the appellant. Possibly the goods were thrown on the ground before the appellant and his companion had been caught. The order of the Deputy Collector was modified to that extent only and the orders regarding confisca tion of goods were left intact. As observed by Muhammad Gul, J in Shafqat Mahmood Lodhi v. The Accountant‑General, West Pakistan, Lahore (P L D 1968 Lah. 786), "the whole object of initiating disciplinary proceedings against a civil servant is to maintain purity of public service 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 delinquent also constitute a criminal offence, he is separately tried by the Criminal Court and the disciplinary action to adjudge his witness 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 and, indeed, Article 177(2)(a) of the Constitution envisages dismissal from service without any formal enquiry, after a delinquent servant has been convicted by a Court. Conversely, a civil servant, not withstanding his conviction, may he retained in service and instances of such cases are enough are not wanting. Therefore, the principle of autre fois acquit or the principle of res juaicata which is perhaps the sole basis upon which the view taken in the Dawarkachand case proceeded can have no application to disciplinary proceedings against a civil servant which are initiated for an object entirely different from dispensing criminal justice or, deciding a civil dispute." Thus the object of taking action against an erring public servant is to maintain purity of service and not to find him guilty of criminal offence and punish him. Both the proceedings are independent of one another and conviction or acquittal of the public servant in a criminal case does not affect the action taken under disciplinary proceedings against him. The principle of double jeopardy has no application in a case of this nature. It has then been argued that since the liability of the appellant depended on existence of certain facts which had to be proved evidence, a regular enquiry under rule 5(3) of the Sind Servants (Efficiency and Discipline) Rules, 1973, should not have been dispensed with. The learned counsel has relied upon the decision in Abdul Ghafoor Junejo v. Pakistan (1980 P L C (C. S.) 344). 1t was held in that case, that the summary procedure laid down in rule 5(3) of the Government Servants (Efficiency and Discipline) Rules; 1973, being a departure from the previous rules, the provision has to be strictly construed and interpreted. That sub‑rule (3) gives the discretion to the Authorized officer to proceed in the prescribed manner if he decides that it is not necessary to have an enquiry conducted through an Enquiry Officer or Enquiry Committee. That the exercise of discretion has to be in a judicious manner honestly and in spirit of the rules, otherwise the act done would not fall within statute, There should be substantial reasons for dispensing with the enquiry as held in P L D 1955 Sind

78. That in P L D 1964 Lah. 359 it was held that discretion vested in Executive Office for public purposes is to be exercised justly, fairly and reasonably, For the purpose of determining whether the discretion, not to hold enquiry through an Enquiry Officer was properly exercised, the nature of allegation against the appellant have to be considered. In the present case the appellant has not been charged with theft the K. P. T. Godowns nor has he been charged with actual smuggling of goods under the Customs Act. The show‑cause notice clearly mentions the act of misconduct to be his presence in the restricted area at that time being a member of Police force in contravention of the rules and regulations. This fact has not been disputed by the appellant himself and he has admitted throughout that he had gone there to assist his friend Head Constable "Muhammad Ashraf to meet the Vth Officer on a ship berthed there. Admittedly he was helping his friend to contravene regulations in going into the restricted area during night time, apart from the fact that the idea may have been to receive the goods from the C ship for smuggling. Under these circumstances there was hardly any need to hold a regular enquiry to determine the question through evidence. Lastly it has been argued that under rule 5(3)(b) the appellant had to be given a reasonable opportunity of showing cause against any action. That the reasonable opportunity means an effective opportunity to meet the allegations. There could be no effective opportunity unless accused had been allowed to lead his defence evidence to refute, the allegations. Reliance has been placed on Gul Bahar v. Pakistan Railways (1979 P L C 344), it was observed in that case that the reasonable opportunity means the right of the employee to rebut the allegations by leading such evidence as he may find necessary. The words reasonable opportunity do not merely mean show‑cause notice and submission of an explanation. As already stated above the main consideration for removal from service of the appellant was his presence at Berth No. 12 within restricted area at odd hours of the night, his explanation having been found unsatisfactory. The question of proof of the goods smuggled etc. did not arise. Since the facts are admitted there was no need to lead any defence evidence to rebut the facts. In the end Mr. Manzoor Ali Khan has pointed out that in the show -cause notice the words used were "why any of the penalties major/minor prescribed in rule 4 may not be imposed". That under the West Pakistan Government Servants (Efficiency and Discipline) Rules, rule 5(3)(u) the action proposed to be taken had to be specifically mentioned in the notice. Reliance has been placed on the decision in Haque Nawaz v. The Province of Punjab (P L D 1966 Lah. 1013). In that case it was contended that the petitioner having been called upon to show cause against one of the major punishment as prescribed in rule 4 of the Rules without specifying the proposed

penalty the notice was defective and it prejudiced him in his defence. Mr. Manzoor Ali Khan has also moved that just for assisting a friend to pass through the restricted area, the penalty of removal from service is much too severe. We are of the, view that although the appellant had notice that the penalty that might be inflicted could extend to any of the major penalties including the removal from service, the specific penalty ought to have been specified. At the same time we are also of the view that this omission has in no way actually prejudiced the appellant in his defence. However the appellant had 18 years service to his credit and considering his default in assisting his friend to an illegal act, the quantum of punishment would appear to be much too severe. We accordingly alter di4 penalty imposed and reduced it from service to his compulsory retirement with proportionate pension. But for this modification the appeal is otherwise dismissed. Under the circumstances of the case no order is made as to costs. Appeal dismissed.