1996 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).‑‑‑The appellant, Sadaruddin Pirzada was working as ASIP in the District Naushahro. Feroze when his services were brought to an end by the short order dated 29‑1‑1994 of the D.I.‑G.P., Sukkur, which is reproduced as under:‑ "Temporary A.S.I. Sadaruddin Pirzada of District Naushahro Feroze, is not suitable for retention in‑service and is, therefore, discharged under P.R. 12.8 with immediate effect." The above order was challenged in departmental appeal dated 6th February, 1994 before the I.‑G.P., Sindh who after calling for the comments from the D.I.‑G.P., passed order which was conveyed to the D.I.‑G.P., Sukkur by his letter dated 14‑9‑1994 in the following words:‑‑ "Please refer to your Letter No.E‑1/6508, dated 15‑3‑1994 on the subject noted above 2 % . The appeal of Exh‑P/ASI Sadaruddin Pirzada has been considered and filed as there lies no appeal against an order of discharge under P.R. 12.8. Appellant may please be informed accordingly." The above order was communicated to the appellant by the letter dated 11‑10‑1994 of the SP, Naushahro Feroze. The present appeal was filed within 30 days of the sail letter, on 3‑11‑1994. The appellant's case as stated in his memo of appeal is that he joined Police Service first as constable on 30‑12‑1991, but after a few days ate was taken up as A.S.I. with effect from 5‑1‑1992. While he was posted at P.S. Korai, District Naushahro Feroze, he was served with charge‑sheet accompanied by statement of allegations, 9‑12‑1993. He submitted his reply to the allegations made against him but neither any Enquiry Officer was named nor any enquiry was held. Instead, the impugned order was passed under Police. Rule 12.8 removing the appellant from service. Hence this appeal. We heard Mr. Muhammad Aqil Awan for the appellant and Mr. Aziz ur‑Rehman on behalf of the official respondents. We have also carefully perused the relevant record. It was contended by the appellant's learned counsel that there was absolutely no justification to invoke police rule 12.8 and base the impugned order there on. According to the learned counsel the reason given for the appellant's discharge that he was not suitable for retention in service, was not enough to fulfil the requirements of the rule under which‑the discharge order was trade. There was‑no further elaboration in the order as to how and why the appellant was considered unsuitable for service. In this connection it would be useful to have a look at the requirements of rule 12.8. It reads as under:‑‑ "12.8. Probationary nature of appointments.‑‑‑Inspectors. Sergeants, sub‑Inspectors and Assistant Sub‑Inspectors who are directly appointed will be considered to be on probation for three years and are liable to be discharged at any time within the period of their probation if they fail to pass the prescribed examinations including the riding test, or are guilty of grave misconduct or deemed for sufficient reason, to be unsuitable for service in the Police. A probationary inspector shall be discharged by the Inspector‑General, Assistant Inspector‑General, Government Railway Police, and Assistant Inspector‑General,. Provincial Additional Police (designated as Commandant, Provincial Additional Police). No appeal lies against an order of discharge. (2) The pay admissible to a probationary Inspector, Sergeant, Sub Inspector or Assistant Sub‑Inspector is shown in Appendix 10.64. " The above rule clearly shows that the discharge of the Police Officials specified ' therein was to be made on three grounds, namely, first they fail to pass the prescribed examination including riding test; second, they are guilty of grave misconduct and third, they are deemed for sufficient reason to be unsuitable for service. Although the appellant's case was seemingly based on the third ground, yet there was no indication of the reasons for the appellant's unsuitability for retention in service, muchless the sufficiency of arty such reasons to draw the conclusion of his such unsuitability. Thus, the impugned order was wanting in essential requirements and as such it was difficult to be upheld. However the appellant's ‑own case is that he was served with charge- sheet which was accompanied by the statement of allegations. We have gone through both these documents. The statement of allegations reads as under:‑‑ "While posted at P.S. Korai you remained wilfully absent from. duty with effect from 31‑10‑1993 as reported by S.H.O., Korai vide his Letter No.1436, dated 6‑11-1993, without any intimation or prior permission of the competent Authority. (2) That S.P., Shikarpur has reported vide his Letter No.E/RCR/6543 44, dated 13‑11‑1993, that you armed with Klashonikov and other 7 accused persons kidnapped Nadir Ali s/o Sardar Muhammad Ayoob Khan Mugrani from Village Habib Jakhro in a Suzuki Pick‑up and murdered him and thrown his dead body in Khairthar Canal such case F.I.R. No.73/93 under sections 364, 148, 149, 109, 170, P.P.C., 302, QAD: 13, DAO has been registered at P.S. Garhi Yasin in which case you have been arrested with unlicensed Klashnikov No. 19002145 with 2 magazines and 30 rounds for which a separate case. F.I.R. No.74/93 under section 13, DAO has been registered against you which shows your criminology and misuse of official powers as the complainant Manzoor Hussain Mugrani has reported in his F.I.R. that at the time of commission of above murder case; you were wearing Police uniform." Admittedly neither Enquiry Officer was named nor any enquiry was held to ascertain the truth of above allegations. We are really stunned by the written statement filed on behalf of the official respondents. We are unable to believe that it was prepared by the learned A.A. ‑G. or had at least his blessings before it was filed. Its perusal would show that the appellant's case stated in his memo. of appeal was completely ignored as contrary to legal requirements it was not replied para. by para. Consequently we find no reply in the written statement about the appellant's averments that the charge‑sheet and statement of allegations were served on him but no enquiry was held. One of the allegations made against the appellant was his unauthorized absence from duties. Had it been proved in the enquiry initially contemplated, it may have provided the basis for appellant's punishment under P.R. 12.8 or otherwise. So far second allegation was concerned, it was the subject‑matter of criminal case pending against the appellant. The charges made against him in the said cases were undoubtedly serious ones. But they have got to be proved either in criminal cases or in the departmental enquiry or in both the proceedings and then alone the appellant could be awarded the departmental punishment. His mere involvement in the aforesaid criminal cases was no ground to pass any order of punishment against him. Apart from above the appellant has approached this Tribunal as a civil servant. Therefore besides police rules, he is governed by Sindh Civil Servants Act, 1973. As such section 23(2) of the said Act was applicable to him. According to the said provision of law he was entitled to make a representation to higher authority namely the I.‑G.P. against the order‑of his discharge even though no appeal was provided in the Police Rules. The IGP's reluctance to entertain the appellant's 'representation/appeal against DIGP's order was not in accordance with law. The other legal lacuna that we noticed in the case was that after the service of charge‑sheet/statement of allegations on the appellant further procedure of enquiry was abandoned and instead short cut method was adopted inasmuch as that the appellant was disapproved in the case reported as 1984 PLC (C.S.) 1589 wherein after considering a number of authorities including the authorities of Supreme Court it was held: "There is no cavil about the proposition that where the departmental authorities are not satisfied with the performance of a probationer it is always open to them to put an end to his services without assigning any reason, but then the situation will be different if once 'it is decided to call upon him to show cause in the context of any misconduct. If that course of action is not followed and subsequently the easier mode of putting an end to his services by resorting to notice clause is adopted, it may be patently an outrage on the Rules which cannot be permitted. " The upshot of the above discussion is that the impugned order of the appellant's discharge from service cannot be upheld. Therefore the appeal is accepted with no order as to costs and the impugned order is set aside. But in view of the peculiar circumstances of the case, the appellant cannot be permitted to get away with total exoneration. The case is therefore remanded back to the concerned authority with direction that. it shall be proceeded afresh, taking care to ensure the strict compliance of the relevant rules. The appellant would continue to remain under suspension during the fresh proceedings unless the competent Authority decides otherwise. H:B.T./2/Sr.S Appeal accepted.