2006 PLP (C (PLC(CS))

JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).

Appellant Raja Farrukh Younus while serving as Sub-Inspector of Police Department at Khairpur in the capacity of S.H.O. of Police Station Gambat,. was proceeded with departmentally. A large number of show cause -notices were issued to him on account of his involvement in criminal cases, negligence, misuse of official position and absence from duties. As alleged, appellant failed to submit reply of any A of the show cause notices. Ultimately by order dated 21-9-2001 passed by the then Senior Superintendent of Police, Khairpur, appellant was awarded major penalty of dismissal from service. After availing departmental remedies as provided by law and being unsuccessful, appellant has filed the present appeal for his reinstatement in service with all back and consequential benefits.

2. Mr. Muhammad Nawaz Shaikh, learned counsel for the appellant argued the matter at length and raised number of factual and legal pleas. He stated that charges were serious but no regular inquiry was ordered/conducted, none of the show-cause notice was ever served upon the appellant and he was condemned unheard thus the principles of natural justice were glaringly violated. He submitted that criminal case in which the appellant was falsely involved was disposed of at the very initial stage in "C" class, but without examining the record, appellant was penalized. As regards appellant's absence from duties, learned counsel contended that on account of serious aliment appellant remained under medical treatment and that he time and again sent the medical certificates in support of his illness, but the respondent No.4, without verifying the genuineness and authenticity of the same sacked appellant from service without observing the codal formalities as provided by law. He also stated that no final show-cause notice which was mandatory was ever issued to the appellant. He submitted that at the one hand appellant's absence has been treated as leave without pay and thus he was made to suffer pecuniary loss and on the other hand he was penalized for same charge. While referring the un-reported judgment passed in civil Petition No.389-K/2002 (Inspector General of Police, Sindh and others v. Muhammad Hassan) decided by the Honourable Supreme Court of Pakistan vide judgment dated 28-6-2002, whereby the judgment dated 12-2-2002 passed in appeal 332/1999 was maintained, learned counsel argued that once absence from duty having been regularized treating the same to be leave without pay, the subsequent penalty of dismissal from service is not sustainable. 3_ In rebuttal, learned Asstt. A.G. vehemently opposed the appeal. She contended that appellant's failure to submit reply to the show-cause notice tantamount to admission of guilt, there was thus no necessity of conducting regular inquiry. She added that appellant's absence from duty without prior permission amounts to misconduct, therefore, he was rightly penalized.

4. On careful examination of the record made available before us and the arguments advanced at Bar, it transpires that within a short span of 7 months from 24-1-2001 to 24-8-2001 as many as 6 show-cause notices were issued to appellant. There. is, however, nothing on the record to indicate if any of the said show-cause notice was ever served upon the appellant. In the absence of positive proof of service of show-cause notice, failure of appellant to furnish reply thereof, is of no significance. It appears that appellant was not provided full, fair and proper opportunity to defend himself, thus the principles of natural justice were violated. It is settled principle of law that any order, B affecting the rights of the parties concerned, passed in violation of principles of natural justice carries no legal value. In a case of University of Dacca v. Zakir Ahmed PLD 1965 SC 90, it was held that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequence affecting "the person or property or other rights of the parties concerned". The. above case was referred to in the case of P.I.A.C. v. Nasir Jamal Malik and others, 2001 PLC (C.S.) 890 wherein the Honourable apex Court observed that:-- "It may be noted that in the judicial history of our country as well as in those countries where identical/corresponding system of administration of justice is in vogue the principle enshrined in the maxim "audi alteram partem" has been made applicable expressly or impliedly in every instrument governing the proceedings which may be statutory or otherwise and if its absence is conspicuous by not making it part of the instrument governing the proceedings. Though the principle of audit alterm partem is not universally accepted principle but emphasis on its application has always been made on those proceedings where adverse action is being contemplated to he taken against the person/persons who have at least a right to defend such action or during course of time they have acquired a right to negate allegations on basis of which an action adversely attracting their interest is being taken." Besides, no final show-cause notice was ever issued to the appellant which is also a must and in this respect no leniency can be made for its dispensation as has been held by the Honourable Supreme Court in PLD 1981-SC-179 and 1997-PLC (C.S.) 424.

5. In view of above legal lacunas, we are of the considered opinion to remand the matter to respondent No.3 to initiate departmental proceedings against the appellant afresh. Accordingly, the original impugned order dated 21-9-2001 passed by respondent No.3 and two appellate orders passed by respondents Nos.1 & 2 are set aside and the matter is remanded to respondent No.3 to initiate departmental proceedings against the appellant afresh after providing him full, fair and proper opportunity of hearing, purely in accordance with law. Meanwhile the appellant is directed to be re instated in service to clothe him with the status of civil servant. The intervening period would follow the outcome of the fresh disciplinary proceedings, which shall be concluded within 4 months from the date of receipt of copy of the judgment. No order as to costs.

6. Announced in open Court. H.B.T./8/KST Order accordingly.