2008 PLP (C (PLC(CS))

ARSHAD BIN AHMAD (MEMBER-III).

The appellant, Shoukat Ali, ex-driver/constable, Multan Police has assailed the impugned order, dated 6-12-2004 whereby he was dismissed from service by the Superintendent of Police, City Multan/respondent No.1. His departmental appeal/representation was rejected vide impugned order, dated 6-6-2006.

2. Learned counsel for the appellant contended that, the appellant was served with a show-cause notice, dated 28-10-2004 with the following allegations:-- "You indulged in act of moral turpitude for which case F.I.R. No.803 of 2004, dated 26-10-2004 under sections 10(4)/11/7/79, I.L. Police Station New Multan has been registered against you. You are a criminal in disguise of police uniform. You have brought bad name for the department and you are a stigma on the fair name of police force. This warrants stern action against you." It was contended that, no regular inquiry was held in the matter and although he was acquitted in the criminal charges brought up against him by the trial Court, he was dismissed ex parte when he was in jail. He was thus, stated to have been denied the right of self-defence as allowed under the law. It was also contended that, the criminal case against the appellant which was challaned to the Court was sub judice when he was imposed the major penalty of dismissal from service. However, on acquittal by the trial Court vide its judgment, dated 19-4-2006, his departmental appeal instead of being accepted, was rejected on 6-6-2006. Reliance was placed on 2007 SCMR 192, 2001 SCMR 269, PLD 2003 SC 187, 1981 PLC 159 (PST) and the Punjab Service Tribunal judgments No.2314, dated 9-3-2005 and 410 of 2005, dated 9-8-2005 in support of the contentions. It was prayed to set aside the impugned order and reinstate the appellant with all back-benefits.

3. Learned District Attorney relying on the parawise comments of the respondents opposed the contentions raised, saying that, the charges were of very serious nature of moral turpitude and that it was established in the DNA test of the accused/appellant. However, he admitted that, no regular inquiry was held in the matter and that the Court had acquitted the appellant but insisted that, the DNA test report was positive.

4. Heard the parties and perused the record. The acquittal by the Sessions Judge, Multan on the charges levelled against him was based on the evidence recorded in the Court by the prosecution witnesses and other documentary evidence produced before the trial Court. Furthermore, the fact that, no regular inquiry was held in the matter and that, the appellant, who was behind bars obviously could not have the opportunity of self-defence. The action of the respondents thus, negates the very basic principle of natural justice as held in the aforementioned judgments of the apex Court as well as the Tribunal that, no one shall be condemned unheard. The appellant was dismissed at a time when he was helpless. The respondents should have provided full opportunity of self-defence to him. and then proceeded to take action on the basis of the outcome of such regular proceedings/inquiry. In this, I am strengthened by the judgment passed by the Honourable apex Court in 2006 SCMR 104 wherein it was inter alia held that, dispensation of regular inquiry should be made, only in exceptional circumstances and not adopted as a matter of routine.

5. In view of the foregoing, the appeal is partially accepted. Impugned orders are set aside and the appellant is reinstated in service. The respondent-Department may hold fresh proceedings under the law including regular inquiry. The intervening period during which, he remained out of service, is left to be decided by the competent authority after the outcome of the fresh proceedings. No orders as to cost. Consigned to record. H.B.T./57/PST Order accordingly.