2008 PLP (C (PLC(CS))

FAKHAR HAYAT (MEMBER-V).

Brief facts of the case are that the appellant an Ex-A.S.-I. in the Punjab Police was issued a show-cause notice and proceeded departmentally on the following allegations: "(1) Absent from official duty w.e.f. 9-2-2005 till to date i.e. 21-4-2005, without obtaining leave or prior permission. (2) Involved in case F.I.R. No.445, dated 15-8-2004 under section 409, P.P.C. and 156 Police Order, 2002 registered at Police Station Lytton Road, Lahore." As according to the impugned order the appellant did not bother to reply to the show-cause notice, therefore, he was proceeded against ex parte. The punishment of dismissal from service was passed by the respondent No.3 on 21-4-2005. The appellant preferred an appeal which was rejected by the respondent No.2 vide order dated 28-5-2005. The revision petition was also filed before the respondent No.1 but vide order dated 28-9-2005 it was replied that there was no provision for filing of a revision petition.

2. In their parawise comments the respondents maintained that the appellant was rightly proceeded against under the law and punished accordingly.

3. In the first round of litigation my learned predecessor vide order dated 28-3-2006 dismissed the appeal of the appellant on the question of limitation. However, on appeal the Honourable Supreme Court of Pakistan vide order dated 8-3-2007 directed that the matter be decided on merit. 3A. The learned counsel for the appellant has contended that the appellant had never been absent from the duty and that he fell ill on 9-2-2005 and remained under treatment till 14-2-2005. With respect to registration of a criminal case he has stated that the case was wrong and cancellation report was made therein.

4. Case F.I.R. No.445, dated 15-8-2004 under section 409, P.P.C.' was registered at Police Station Lytton Road, Lahore, wherein it was alleged that engine of case-property Car No.7312/LXR was found in a rickshaw and that the present appellant was involved therein. The learned counsel for the appellant has placed on record copy of cancellation report in the case but there is nothing on record to suggest that the case was actually cancelled by the competent authority. To the extent of alleged absence from 9-2-2005 to 14-2-2005 the appellant has pleaded that he was ill but in the impugned order he was held absent from 9-2-2005 till the date of passing of order viz. 21-4-2005. I agree with the learned counsel for the appellant that in the show-cause notice the appellant was alleged to have been absent from 9-2-2005 till the date of show-cause notice viz. 12-2-2005 but while holding him absent till the date, of impugned order, fresh charge was to be framed against the appellant. The learned counsel for the appellant simultaneously referred to number of documents placed on record to suggest that the appellant was not absent during those days. As to involvement in the criminal case that per se is no ground for holding the appellant liable for punishment under the Punjab Removal from Service (Special Powers) Ordinance, 2000 unless substantiated through evidence or verdict of Court. The criminal matter and departmental proceedings may go side by side. A major penalty of the dismissal from service was passed by adopting a summary procedure of issuance of show-cause notice which was not appropriate in this case because controversial questions of facts were involved which needed evidence. In this case dispensing with regular inquiry was not proper; therefore, impugned orders are not sustainable in the eyes of law.

5. For what has been discussed above, the appeal of the appellant is accepted and impugned orders dated 21-4-2005 and 2`8-5-2005 are set aside. As a consequence the appellant shall be reinstated into service. The departmental proceedings against the appellant shall be deemed to be pending. The competent authority shall appoint an inquiry officer and issue a statement of allegations and on receipt of report in the regular inquiry, pass a fresh order after evaluating the same. In the light of the outcome of the inquiry the competent authority shall also determine the nature of the intervening period from dismissal till reinstatement into le service. H.B.T./47/PST Appeal accepted.