1989 PLP (C (PLC(CS))

MALIK MUHAMMAD PARVEZ KHAN (CHAIRMAN).--Appellant Sher Bahadur was dismissed from service vide impugned order dated 3-8-1988 of respondent No. : and his appeal having been dismissed on 28-9-1988 by respondent No. 2, he has approached this Tribunal to seek his redress by r; instating him in service with all the back benefits. According to him he joined the Police Department as a constable on 1-3-1974 and on 25-4-1988 one Yaseen son of Muhammad Salim an accused under section 3/4 H.O. and 13/A.O. was in his custody from 12 noon to 3 p.m. when he approached Moharrir Muhammad Rafiq with the request to depute some body in order to have guard upon the same accused as he was going to offer the Zohar prayers but the said Moharrir asked him to perform the prayers and he himself Hill look after the accused. However, in the meanwhile accused made good his escape which resulted in an enquiry against him and finally in his dismissal from service. The said order was challenged by him on the grounds that the Enquiry Officer cannot took upon him the job of the authority in prescribing the punishment. Enquiry was conducted against the provisions of Police Rules, 1975, that he was innocent and that a criminal case has also been registered against him for the same offence. Respondents filed the written statement by denying the allegation levelled in the appeal and stated that he was rightly punished by them as he was negligent and in-efficient official. Record perused and arguments heard. In the light of it the case is decided as under: It was argued on behalf of the appellant that he was charged alongwith the abovementioned Moharrir Mr. Muhammad Rafique for negligence, inefficiency and misconduct by the Enquiry Officer who recommended the punishment of dismissal from service in the case of the appellant but ordered the stoppage of 3 years' increments of LHC Muhammad Rafique without cumulative effect. Since for the sake pf arguments it is admitted that the appellant did commit an offence, his co-accused Muhammad Rafique was also a party to it, but he was dealt with leniently and no mitigating circumstances were given in the case of the Moharrir. The punishment must be in accordance with the act or omission of an accused party. Further he argued that appellant had not committed any offence because the accused Muhammad Yaseen decamped from the spot at 2.30 p.m. and the appellant took permission from Moharrir Muhammad Rafique to offer his prayers who asked him to do so and instead he will look after the said person. Over and above this the handcuffs of the accused Muhammad Yaseen were removed from his hands by Muhammad Rafique Moharrir who kept the keynear the said person and tied his legs with the cot. Muhammad Rafique was sitting in the office when accused Muhammad Yaseen made good his escape while appellant was offering his prayers so not the appellant but Muhammad Rafique Moharrir was responsible for negligence, misconduct and inefficiency. On the other hand PDSP assisted by PSI Mr. Abdul Hamid argued that the duty hours of the appellant to look after the accused Muhammad Yaseen were from 12.00 noon to 3.00 p.m. and he left him unattended at 2.30 p.m. There is nothing on the record to suggest that Muhammad Rafique granted him the permission for offer prayers. He was responsible for the offence so he was rightly dismissed from service We have gone through the arguments after perusing the record and have come to the conclusion that appellant did commit the offence of negligence because during the month of April the Zohar prayers can be offered till 4.00 p.m. at the maximum. Since he was not offering the prayers with Jamat so he must have waited till duty hours have expired. However Muhammad Rafique was also responsible in the commission of the offences because he removed the handcuffs from the hands of the accused Muhammad Yaseen and placed the keys before his view from where accused Yaseen took the same and easily opened the handcuffs from the cot and ran away. However, the Enquiry Officer prescribed the punishment of stoppage of 3 increments in the case of LHC Muhammad Rafique. He must have done so in the case of the appellant. Both the accused were to be treated at par, therefore, by accepting the said appeal partially we reinstate the appellant m service with all back benefits from the date he was dismissed, however, the punishment of stoppage of 3 increments without cumulative effect in the case of the appellant from the date the impugned order was announced is ordered. Before parting with the case we bring it to the notice of the authority that Enquiry Officer is empowered under the law to prescribe the punishment. He can either say that the accused official is guilty of the offence on the basis of the evidence produced by it or not. This is an illegality and in future it may be voided. Parties are left to bear their own costs and file be consigned to the record room. A.A./125/Sr.N Appeal partly accepted.