1987 PLP (C (PLC(CS))

A.Q. QAZI (MEMBER).‑‑This appeal has been directed against the order passed by the Deputy Inspector‑General of Police, Sukkur on 9‑12‑1985 whereby he has confirmed in departmental appeal the removal of appellant, a permanent police constable; who was inflicted a major penalty of removal under the revised Sind Police Rules of 1979. To state in brief facts, the appellant was a permanent police constable who was posted at Police Lines, Shikarpur in the year 1984 when he was issued a charge‑sheet No. SSC/3162, dated 14‑3‑1984 by the Superintendent of Police, Shikarpur. The charge‑sheet enclosed a statement of allegation in which there was a single charge and which is reproduced as under:‑ "You C/291 Ashique Hussain were transferred from Shikarpur District to Nawabshah District on complaint vide Deputy Inspector‑General of Police Sukkur's No. E‑2/4238‑40, dated 19‑2‑1984. You violated the chain of command and without obtaining prior permission of the competent authority appeared before the Inspector‑General of Police Sind on his recent visit to Khairpur District, you conducted yourself in the most disgraceful manner infront of the public which is unbecoming of a police personnel degrading the name of the force. By reasons of above you have committed gross misconduct and violation of chain of command and, therefore, you are liable for disciplinary action under the Revised Disciplinary Police Rules, 1979. (Sd.) Superintendent of Police, Shikarpur. Dated 5‑3‑1984." It is stated that he refused to receive the charge sheet as reported by the Lines Officer vide his letter No.1862, dated 27‑3‑1984. A show‑cause notice No.4081, dated 1‑4‑1984 signed by the Superintendent of Police, Shikarpur was issued to him for the charge of refusal to receive the charge‑sheet and he was required to reply with in twelve days time to explain his position and surprisingly on the same date that is 1‑4‑1984 he was removed under 16. 19 (4) of the revised Police Rules, 1979. He preferred an appeal to D .I . G. Police‑on 7‑5‑1984 which was rejected vide order No.E‑II/Appl/97067 of 1984 dated 7‑5‑1984. He then appealed to Inspector‑General of Police and requested for a review and subsequent revision. The appeals were rejected on 1‑8‑1984 and 24‑9‑1984 respectively. Appellant now came to Sind Service Tribunal and filed a service Appeal No. 74 of 1984 which was accordingly decided on 19‑3‑1985. The operative portion of the judgment is re‑produced to read as under: "The order of the removal of the appellant from service is accordingly set aside. The nature of the intervening period will be decided after the final orders are passed by the competent authority in the Police Department with reference to the allegations levelled against the appellant. The parties will bear their expenses themselves. " In view of the above orders of the Sind Service Tribunal, the appellant was reinstated in service on 1‑4‑1985. Now that the respondents felt that the judgment had been passed on technical grounds, they re‑initiated the proceedings against the appellant de novo and provided him with the same charge sheet with the same statement of allegations as has been reproduced earlier. This time he received the charge sheet on 4‑4‑1985 as is evident from the record and he replied the charge‑sheet accordingly. He submitted the reply of charge sheet which is a three page document. The only relevant part of his reply to the charge sheet is that he had seen the Inspector‑General of Police on his visit to Shikarpur and had complained to the Inspector‑General regarding the bad condition of the Armour. Rest of the reply states that the officers have treated him with prejudice and malice and he has cited examples of such a treatment which are not relevant to the charge. The reply of the charge sheet was thought as not satisfactory by the Superintendent of Police, who ordered for an enquiry and an enquiry officer was appointed accordingly on 21‑4‑1985. The relevant portion of the nomination paper (as it is known in police dept.) specifies only a single charge. "Violation of the chain of command and appearing before the Inspector-General of Police Sind without obtaining of prior permission from competent authority" In the findings it has been concluded that appellant had admitted that he did appear before the Inspector‑General of Police, Sind on 22‑2‑1984 without prior permission. The Enquiry officer, therefore, found him guilty of the charge. The papers of enquiry put before us appears to be complete. Appellant was then issued a final show‑cause notice on 30‑7‑1985 on the same single charge, wherein it was proposed to impose a major punishment of dismissal from service and he was called upon to show in written as to why a such major penalty should not be inflicted upon him. He submitted his explanation to the final show‑cause notice which was carefully examined and he was also heard in person on 19‑10‑1985. His explanation in the hearing was not found as satisfactory and as such he was removed on 21‑10‑1985. He appealed to Deputy Inspector‑General of Police against the removal which was dismissed on 4‑12‑1985 and the appellant has now come to this Tribunal again for second time for setting aside the fresh orders of his removal. We have carefully examined the documents and heard the appellant in person. We have also heard the learned Assistant Advocate‑General and the Departmental Representatives. From the perusal of the record it would appear that the charge of "violating the chain of command stands proved," and appellant has admitted this fact in this Tribunals also. The main point averred in the memo. of appeal is that he has not been supplied with a new charge sheet but an old one and hence all the proceedings against him are ab initio void. We feel that this averment though technically true could not bar the department from restarting the process of the departmental proceedings against him particularly so when the basis of the earlier judgment is technical and there was held a complete enquiry which was necessary in our view to meet the ends of justice and reassure non‑occurrence of any arbitrary act or excess on the part of authority. The appellant's second post of agitation is that he has been punished for a single charge of violation of chain of command' with a major penalty for which the Inspector‑General of Police had not even censured him on the spot and had on the contrary directed the Superintendent of Police, Shikarpur to send appellant to Rawalpindi in connection with the procurement of the spare parts for the armour. His further contention in this regard is that the Deputy Inspector General of Police who was present has not liked his complaint to Inspector General of Police with regard to the armour. We have examined this argument and we feel that this point must have been examined in his departmental appeal before coming to the Service Tribunal and as such we are inclined to believe that the failure of the departmental appeal at the appellate level of Inspector‑General of Police has confirmed at least the violating of the chain of command. We have also seen the revised Police Rules, 1979 and we specifically asked the learned Assistant Advocate‑General if major penalty of removal was specked for violating the chain of command but the learned A.A.‑G. has not been able to show that the only punishment which could be awarded to such a defaulter was a major penalty of removal. We are of the considered view that for this single charge of "violating of the chain of command" a major penalty of removal was indeed excessive and we feel that this punishment has been awarded seeing the past record of the appellant which has been erratic one and in our opinion the consideration of his past record has affected the award of penalty. Keeping our mind well focussed on the present charge only and its punishment, we are inclined to partly allow the appeal and substitute the punishment of removal with a ban on his promotion for a period of five years from today. Appellant shall be reinstated with the above modification. The period that he has been out of service shall remain as such and not paid but shall count towards service. Ordered accordingly. Given under our hand and the seal of this Tribunal this 20th day of November, 1986 at Karachi. M. Y. H. /103/Lb/S????? Appeal partly accepted.