1993 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN): ‑‑Appellant Mr. Zahid Mahmood, an officer in the Police Service of Pakistan has preferred this appeal against punishment of withholding of increments for two years imposed on him under the provisions of Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the E&D Rules), vide Notification, dated 29th July, 1986 issued from the Establishment Division.

2. The appellant was allegedly involved in mishandling a situation that had arisen from a raid organised by Provincial Anti‑Corruption Staff, Faisalabad on Traffic Police Staff on 2‑6‑1983, while he was Additional S.P., Faisalabad. It was alleged that the raiding party headed by a Magistrate by name Mr. Mehar Akbar Ali caught two Traffic Police Constables red‑handed on having taken illegal gratification from the Public Transport drivers. The raid by the Anti‑Corruption Staff was resented by the Traffic Police staff and other local police officials. A criminal case was registered at the Police Station by one of the Police Constables of the Traffic Police involved in the incident against the Magistrate and others, but counter‑case reported by the Magistrate was not registered on the same day. The report of the incident made by the Magistrate was registered on the next day. The Traffic Police Constables involved in the incident were arrested. Their bail application was rejected by the concerned Sessions Judge on 11‑6‑1983. The District Police Force Station at Faisalabad lodged protest and took out a long procession on the same day evening and created a mutiny like situation which was, however, averted by the Senior Police Officers. A thorough inquiry into the entire incident was conducted by a Commission consisting of the Chairman, Governor's Inspection Team, Additional I: G. Police and the Deputy Commissioner, Sargodha. On the basis of the report by the said Commission, departmental proceedings under the provisions of the E&D Rules were initiated against the D.I.‑G. Police Mr. Khalid Latif, S.P. Mr. Hameed Aslam Malik; and the appellant Mr. Zahid Mahmood. They were charge‑sheeted separately by Mr. Maqbool Ahmad Shaikh, Member (Revenue), Board of Revenue, Lahore, who was appointed as an authorised officer and regular inquiry was held. On the report of the. Inquiry Officer, Mr: Khalid Latif, D.I.‑G. was exonerated of the charges; whereas Mr. Hameed Adam Malik, S.P. was awarded punishment of `censure'; and the appellant Mr. Zahid Mahmood was imposed the punishment of withholding of increments for two years. After rejection of his review petition as per letter dated 17‑5‑1986 from the Establishment Division to the Deputy Secretary, Services, General Administration and Information Department, Government of the Punjab, Lahore, the appellant preferred this appeal on 13‑10‑1986 for setting aside the original order dated 29‑7‑1985 as well as the appellate order dated 17‑5‑1986.

3. The charges against the appellant were as under:‑‑ (i) That while posted as S.P., Faisalabad, you failed to correctly assess the situation arising out of the incidents, dated 2nd June, 1983 and also failed to use discretion and command judiciously. You allowed yourself to become a tool in the hands of unscrupulous subordinate police officers thereby taking certain hasty actions which complicated the issues beyond redemption; (ii) that in a spirit of false bravado in trying to pose as a hero to your men, you failed to act prudulently and ignored the advice of the District Magistrate to send the matter till the return of the Superintendent of Police, the next day. You also failed to take a balanced view of the situation; and (iii) that you failed to take adequate measures to pacify the Traffic Police (of which you were incharge) after the incidents of 2nd June, 1983, which eventually ended up in the near mutiny by a majority of the Traffic Police.

4. In his reply to the charge‑sheet submitted on 20‑9‑1984, the appellant dilated on the incident of 2‑6‑1983 as under:‑‑ "... On that day, SHO Nishatabad, rang me up, after Maghrib prayers, to inform me about the incident between Anti‑Corruption raiding party accompanied by private truckwalas and traffic policemen at Bolley‑di‑Juggi. He also stated that policemen and public had gathered at the police station and the policemen were agitated over the occurrence. Smelling the seriousness of the situation. I reached the police station and heard the policemen as well as publicmen. Both stated that excesses have been committed on traffic policemen by private truckwalas and Anti‑Corruption raiding party. A Head Constable and constable were injured and the later was bleeding. Guaging the mood of the agitating policemen and apprehending a very ugly situation in the making, I thought it was necessary to inform the quarters concerned to get guidance and help. Superintendent of Police, Faisalabad was away to Lahore on leave. To apprise of the developments and to seek his guidance telephonically, I went to my residence to ring him up since the phone installed at the Thana is Non‑STD. I tried in vain to contact the Superintendent of Police and later gave a detailed account of the situation, as I saw it, to the District Magistrate and the D.I: G. on phone. The District Magistrate was requested for a joint meeting so that the matter could be amicably resolved. My request was not adhered to. He was then requested to depute a Magistrate for viewing the true picture. He in reply said: The matter was then discussed with D.I‑.G. on phone, who directed for the registration of the case. Accordingly a case was registered, on the complaint of injured Constable and consequently one of the accused from among the private truckwalas named in the FIR was hauled up. This pacified the agitating policemen and the situation did not exacerbate. The Superintendent of Police returned the following day and from then onward till the unfortunate incident took place on 11‑6‑1983 he was in command." As regards the charges, the appellant took the plea that he had correctly assessed the situation on 2‑6‑1983 and used his discretion and command in good faith without allowing his mind to have been influenced by the subordinate Police Officers and he took all possible efforts to get guidance from the relevant quarters and then took impartial action that he felt appropriate in the circumstances of the situation. He denied that he had indulged in false bravado in tackling the situation. As regards the incident of 11‑6‑1983 he stated that the matter was in the control of the Superintendent of Police.

5. Inquiry into the charges against the appellant, the S.P. and the D.I: G. was initially entrusted to Mr. Anwar Tehmasap Khan, Director‑General (R&G), Board of Revenue. He conducted the inquiry but he expired before he could submit his report. The enquiry was then entrusted to Mr. Abdul Majeed OS15 (Inquiries), Services, General Administration and Information Department, Government of the Punjab. After holding thorough inquiry, the second Inquiry Officer submitted his report on 3‑3‑1985. He exonerated the D.I.‑G. Mr. Khalid Latif of the charges, and held the S.P. Mr. Hameed Aslam Malik guilty of the charges and also held the appellant Mr. Zahid Mahmood guilty of the first two charges. The authorised Officer Mr. Maqbool Ahmad Shaikh, Member (Revenue), Board of Revenue, thoroughly examined the inquiry report and agreed with the findings of the Inquiry Officer by recording his own reasons except charge No. (iii) against the appellant on which he disagreed with the Inquiry Officer that the appellant was not guilty of that charge and he held that the appellant was guilty of that charge too. Accordingly, he recommended that Mr. Khalid Latif, D.I.‑G., who had been posted by that time as OSD in the Services, General Administration and Information Department, may be exonerated of the charges; and Mr. Hameed Aslam Malk S.P., who too had, by that time, been posted as OSD, be awarded a major penalty on charges Nos. (ii) and (iii) against him; and the appellant Mr. Zahid Mahmood, who also was then OSD, should be awarded a major penalty on all the three charges.

6. The recommendations of the authorised Officer submitted to the Establishment Division were examined there and the Secretary, Establishment Division partly accepted the recommendations and exonerated Mr. Khalid Latif of the charges, and awarded minor penalty of censure on Mr. Hameed Aslam Malik, S.P., and imposed minor penalty of withholding of increments for two years on the appellant Mr. Zahid Mahmood. The appellant was, accordingly, awarded the aforesaid punishment vide. Notification dated 29‑7‑1985.

7. The appellant has assailed the impugned order on the grounds that the inquiry proceedings were not conducted in accordance with the E&D Rules inasmuch as that he was not even afforded opportunity of hearing in person; and moreover, he was not guilty of the charges against him. The learned counsel representing him reiterated the same grounds at the hearing of the appeal and also urged that the statement of allegations provided to the appellant alongwith the charge‑sheet was vague and likewise the final show? cause notice too was vague.

8. The appeal is directed against the Government of Pakistan through Cabinet Secretariat, Establishment Division. The appeal has been registered by filing written objections through a Section Officer, Establishment Division, countersigned by the learned Standing Counsel Hafiz Tariq Naseem. At the hearing of appeal, Sardar Muhammad Amir Akbar Khan, Advocate appeared to represent the respondent. The learned Standing Counsel contended that the charges against the appellant were proved at the regular inquiry, which was conducted thoroughly and in accordance with the rules. He also contended that the impugned order was made by the Secretary, Establishment Division but he has not been made a party and, therefore, the appeal is hit by Rule 7 of the Service Tribunal (Procedure) Rules, 1974. He placed reliance on a case reported in 1983 SCMR 339.

9. The charges against the appellant apart, the proceedings against him seem to have been taken place in a peculiar manger. At the relevant time, the appellant belonged to Police Group, constituted in the year 1975, subsequently replaced by Police Service of Pakistan, constituted under SRO. 1033 (1)/85, dated 23‑10‑1985. Thus, his services seem to have been allocated to the Government of the Punjab but he was not serving there as a deputationist. The proceedings against him were taken under the provisions of Rule 9 of the E&D Rules, which provides that where the services of the Government servants to whom the rules apply are lent to a Provincial Government or to a local or other authority, referred to as the borrowing authority, the borrowing authority shall have the powers of the authority for initiating proceedings against such Government servants etc. etc. Under Office Memorandum No. 9/9/73‑C.II, dated the 19th March, 1974 (Sl. No. 101 of ESTACCDE, 1989 Edition at page 527), it is provided that disciplinary cases against Government servants belonging to the All Pakistan Unified Grades have to be initiated and processed in the Establishment Division on receipt of report and recommendations of the Ministry or Division or Department to which they are attached at the time of commission of the alleged offence. The rule laid down in the said Office Memorandum, dated 19th Mardi, 1974 was amplified in Explanation 2, contained in Notification No. SRO. 615(1)/79, dated 5th July, 1979‑‑ (Notification No. 7/I/73‑D.I, dated 5th July, 1979), published in ESTACODE, 1989 Edition at page 501, laying down that for a Government servant serving outside the Federal Secretariat, whether in a Provincial Government or in an autonomous body, who is serving in a post, or belongs to a service or cadre, administratively controlled by a Ministry of Division, the Secretary, Joint Secretary, Deputy Secretary or Section Officer designated as authority or authorised officer means the Secretary, Additional Secretary, Joint Secretary, Deputy Secretary or Section Officer of that Ministry or Division. Further, clarification was issued under Office Memorandum No. 3/3/80‑D.I, dated 1st January, 1989 (ESTACODE, 1989 Edition at pages 502 and 503) that the Notification No. SRO. 615(1)/79, dated 5th July, 1979 extended to the Government servants serving outside the Federal Secretariat, whether in a Provincial Government or in an autonomous body, who are serving in a post or belbags to a service or cadre administratively controlled by the Establishment Division e.g. officers of Police Group administratively controlled by the Establishment Division or of Military Land and Cantonment Group similarly controlled by the Ministry of Defence. The appellant belonged to the Police Group and the proceedings under the E&D Rules could be initiated against him only by the Federal Government and the proceedings initiated against him by the Provincial Government were, therefore, without lawful authority. Of course, such objection has not been agitated specifically, but this legal lacuna involving the lack of authority in initiating the proceedings cannot be over- looked by the Tribunal seized of the matter in appellate jurisdiction conferred by law. The other significant factor to be taken notice of is that the appellant was not afforded an opportunity of hearing in person at any stage up to the level of the Establishment Secretary. This way, the appellant was seriously prejudiced in taking action against him on the facts on paper. In view of the aforesaid lacuna in the proceedings, it is not necessary to dilate on the merits of the case.

10. The preliminary objection by the respondent that the appeal is hit by Rule 7 of the Service Tribunal (Procedure) Rules, 1974 as the Secretary, Establishment Division, who had passed the impugned order, has not been impleaded as a respondent. The objection does not seem tenable in view of the fact that the appeal is directed against "Government of Pakistan through Cabinet Secretariat, Establishment Division, Islamabad". Thus, the requirement of Rule 7 of the Service Tribunal (Procedure) Rules, 1974 that the competent authority against whose orders the appeal is preferred and any other party to the dispute shall be shown as respondent, stands substantially complied with.

11. For the reasons recorded above that the proceedings under the E&D Rules against the appellant were not initiated and processed by the competent authority, the appeal is allowed and the impugned order is set aside. No order? is made for costs. A.A. /722/Sr.F Appeal accepted.