2008 PLP (C (PLC(CS))

QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).

While the appellant had been serving as Constable No.212 at Railway Police Station Jacobabad, a show-cause notice, dated 23-9-2003, containing the following allegations, was issued to him:-- "While you detailed with Train 20-DN Khushal Khan Express from Jacobabad to Dadu along with Constable No.102, Sikandar Ali on 3-6-2003 .snatched all Pakistan licence along with pistol and Rs.2,500 from a passenger named Muhammad Jan resident of Karachi during search. As per finding of enquiry report you have been held responsible of the charges mentioned above which is highly objectionable from the discipline point of view." The appellant replied the show-cause notice denying the allegations against him. Thereafter, without holding any departmental inquiry major penalty of dismissal was imposed upon the appellant vide order, dated 3-10-2003. The appellant filed a departmental appeal against the impugned order of the punishment of dismissal from service, but his appeal was not responded to; hence, he filed this appeal before the Tribunal on 2-1-2004 under section 4, read with section 2 of the Service Tribunals Act of 1973, praying to set aside the impugned order of dismissal dated 3-10-2003 and to reinstate him in service with all back-benefits.

2. We have heard the learned counsel for the parties and perused the record including the written comments filed on behalf of the respondents.

3. The learned counsel for the appellant argued that although preliminary inquiry into the allegations against the appellant was held, but the appellant had not been given any chance to cross-examine the witnesses; hence, the preliminary inquiry could not be made basis for imposing the major penalty of dismissal upon the appellant; that in the show-cause notice, regular departmental inquiry had been dispensed with but in view of the serious allegations of fact denied by the appellant, regular departmental inquiry was absolutely essential for bringing home the charge to the appellant, but that had not since been done, the entire disciplinary proceedings against the appellant had been vitiated as held by the apex Court in various authorities. In support of his arguments, the learned counsel for the appellant relied on an identical judgment of this Tribunal reported in 2004 PLC (C.S.) 1385. He also relied on 1993 SCMR 603, 2004 SCJ 455, 1997 TD (Service) 346, 2004 PLC (C.S.) 959, 1986 PLC (C.S.) 894, 1986 CLC 1408 and 1994 PLC (C.S.) 1273. Lastly, the learned counsel for the appellant argued that in the identical case against Sikandar Ali, bearing Appeal No.408(K)(C.S.) of 2003, the order of his dismissal was set aside with the liberty to the respondents to initiate de novo proceedings against appellant Sikandar Ali. The learned counsel for the appellant Tariq Hussain stated that he would be satisfied if similar order was also passed in the present identical appeal of Tariq Hussain.

4. The learned counsel for the respondents has contended that the inquiry was held against the appellant, but she admits that it was a preliminary inquiry against the appellant in which the appellant was not given the chance to cross-examine the witnesses. She admits that no regular departmental inquiry was held, into the allegations against the appellant, but her contention is that the allegations mentioned in the show-cause, notice, did not require any regular departmental inquiry and the appellant was rightly penalized after giving him personal hearing by the competent authority.

5. We have considered the above arguments of both sides. We do not find ourselves in agreement with the contention of the leaned counsel for the respondents that no regular departmental inquiry was needed into the allegations against the appellant. In our opinion, preliminary inquiry mentioned above together with personal hearing of the appellant were not sufficient to impose the major penalty of dismissal upon the appellant as the appellant had denied the serious allegations of fact against him, which could only be proved by a regular inquiry giving the appellant a chance to cross-examine the witnesses and to put up his defence. Admittedly, no chance of cross-examination and putting up his defence was given to him, as such the disciplinary proceedings against the appellant were vitiated and, therefore, the major penalty of dismissal of the appellant cannot be sustained.

6. We, therefore, allow the appeal, set aside the impugned order of dismissal of the appellant and direct the respondents to reinstate him in service from the date of his dismissal. However, the respondents will be at liberty to initiate the de novo proceedings against the appellant strictly in accordance with law within a period of four months from the date of receipt of a copy of this judgment. The back-benefits, if any, for the period of appellant was not gainfully employed elsewhere, would depend upon the result of the inquiry.

7. No order as to costs.

8. Copies of this judgment be sent to the parties under registered cover and to the relevant quarters as per Rule 21 of the Service Tribunals (Procedure) Rules, 1974. H.B.T.79/FST Appeal allowed.