1988 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN).--Allah Bakhsh, retired ASI, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Superintendent of Police, Mianwali and DA.G. Police, Sargodha Range, Sargodha as respondents. 2. By virtue of this appeal he has prayed that the impugned orders dated 7-7-1983, be set aside and he may be re-instated in service as A.S.1. from 4-6-1983, with full back benefits of Pay, Allowances and seniority. 3. Brief facts of the case are that the appellant was served with a show-cause notice dated 5-4-1983, on the charges of being corrupt and for misconduct in the years 1975-76 and 1977, in which he was adversely reported upon. The award of three censures was considered one of the charges. The appellant submitted a detailed reply to the same but was not found satisfactory and he was compulsorily retired from service w.e.f. 4-6-1983. He filed appeal on 22-7-1983 before the D: I. G. Police, Sargodha Range, Sargodha, but as no reply was received by him and a period of 90 days had elapsed, he has come before this Tribunal for redress of his grievance. 4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance. 5. Learned Counsel for the appellant has submitted that the charges on which order was passed, were indefinite and no statement of allegations was supplied to him alongwith the show-cause notice. It was further submitted that such like vague charges of corruption and misconduct required full-fledged enquiry as well as to provide chance of defence to the appellant but the same had not been so provided. Learned Counsel for the appellant has addressed this Tribunal about the background of this order at length and submitted that once upon a time the appellant was dismissed from service on the allegation of detaining an innocent person in a false case by the respondent No.1 in the year 1977. Against the said dismissal order, the appellant filed appeal before the D.I.G. Police who accepted the same vide his order dated 15-11-1977. The D. I. G. Police while accepting the appeal held that the enquiry conducted against the appellant was sketchy, slip shod and the findings of the Prosecuting Inspector and A.S.P. were based on presumptions and concoction and without any basis. It was also observed in the said order that the appellant was not even heard in person before passing the order of dismissal against him and he had a good record of service with 67 certificates and four censures which were awarded on the same date and at the same time on 1-7-1977 which according to the D.I.G. could not be weighed against him. According to the learned counsel for the appellant, this incident annoyed the A.S.P. namely Mr. Muhammad Ali, who lost no time to express his annoyance in the form of adverse report in the year 1977. It has been further submitted that when the annoyance of the said A.S.P. Mr. Muhammad Ali took a concrete shape in the form of adverse report, the appellant filed appeal against the same before this Tribunal. The Tribunal vide its detailed judgment dated 13-10-1983, directed the expunction of the said remarks, as these were found to be unfounded and result of malice. While. arguing his case with this background learned counsel for the appellant has submitted that the author of the impugned order is the same S.P., therefore, the impugned order is nothing but result of malice and also not in conformity with the Rules and Regulations as laid down in the Police E&D Rules. 6. On the other hand learned District Attorney has adopted the comments submitted by Mr. Muhammad Ali, S.P. Mianwali and has submitted that the S.P. besides levelling the charge of corruption against the appellant has considered his attitude indifferent. According to him he was always found a wilful absentee. He has prayed that the appeal be dismissed and the impugned order be maintained. 7. We have given our anxious thought to the arguments advanced by the parties and find that the claim of the appellant that he has been the victim of annoyance of an officer, cannot be summarily rejected, as the facts of the case established on the record go a long way to establish the same. We have taken into account the first dismissal order and find the same was passed on the report of Mr. Muhammad Ali while he was ASP and it is on the record that the D. I. G. while re-instating the appellant made certain serious observations about the conduct of the case against the appellant as well as the findings so arrived at against him. We have made mention of such observations in the earlier part of our judgment while dealing with the arguments advanced by the learned counsel for the appellant. 8. We have also taken into consideration the judgment of this Tribunal and are in agreement with the arguments of the learned counsel for the appellant that in the said judgment, it was observed as under:- "It appears that the Reporting Officer was not happy over his re-instatement and the observations recorded by the D.1.G. in his order which had polluted his mind against the appellant resulting in the adverse remarks. Thus, we hold that there is much force in the arguments of the appellant that these remarks were mala fide." 9. In view of the established facts that Mr. Muhammad Ali who has now dismissed the appellant from service, was held to be having bias against him in the judgment of this Tribunal, we will assess the strength of the present order keeping in mind this background of the case. We have perused the show-cause notice and find that the appellant was charged as under:- (i) that while posted as A. S. I. in District Faisalabad he indulged in corruption and exhibited high sense of misconduct in the years 1975-76 and 1977 for which he was adversely reported by the then S.P. Faisalabad; (ii) that he was awarded 3 censures; (iii) that such indulgence in corruption and adverse reports speaks of his doubtful and controversial integrity and character. (iv) that normally three consecutive bad reports attracts the institution of departmental, action as envisaged by Rule 13-17(2) of Punjab Police Rules. We do not find any mention of charge of wilful absence from duty or his behaviour in his earlier service as that of wilful absentee. We also do not find any statement of allegations accompanied with the said show-cause notice. 10. We have further carefully examined the reply to the said show-cause notice in which the appellant had totally denied the charge of doubtful integrity, etc. being incorrect and without any substance and requested for the details of the charges so that he was in a position to rebut the same with reference to the facts and figures. The appellants also pointed out that no statement of allegations had been supplied to him alongwith show-cause notice which was a mandatory requirement under the Police E & D Rules. Dealing with tt. a charge of corruption it was pointed out by the appellant that it has been held by the Punjab Service Tribunal in a large number of cases pertaining to Police officials that when there was a charge of corruption, a regular enquiry was a must. He has made a reference to the case of Muhammad Saleem Beg A.S.I. and Ali Ahmad, reported as 1980 P L C (CS) 92(1) and 1983 P L C (CS) 261. The appellant took care to attach a copy of both the judgments with his reply. With regard to the ACRs for the year 1975-76, it was submitted by the appellant that both the reports had been categorized as 'B' category by the learned S.P., therefore, the same could not be made basis of this proceedings. With regard to the report of 1977, it was submitted that it was not final and thus cannot be made basis of disciplinary action against him. The appellant fervently prayed that the proceedings against him may be kept pending and the result of appeal before the Service Tribunal regarding expunction of ACR be awaited. 11. While examining the impugned order we find that the Supdt. of Police has failed to touch any of the point so referred to by the appellant in his detailed explanation and has devolved something new which not a subject-matter of show-cause notice i.e. proceeding of appellant on 3 days casual leave from 5-4-1983 and not turning up after the said leave had so expired etc. We are at a loss to understand, how could the competent authority refer to those matters which were 'not the subject-matter of show-cause notice and to take action against the appellant for matters for which he would have the opportunity to` defend himself. This very strange and bizarre action of the competent authority speaks volumes in favour of the claim of the appellant which was duly upheld by the Punjab Service Tribunal that Mr. Muhammad Ali, S.P. did nurture deep annoyance against him and was looking forward for a chance to throw him out of service. 12. The law on this point has been settled by the Supreme Court of Pakistan vide its judgment reported as 1980 S C M R 850, in which it was held as under:- "There is nothing in this sub-rule to support learned Counsel's submission that the Authorised Officer has to pass an order in writing for dispensing with an enquiry. All that the rule requires is that the Authorised Officer should make a decision on the question whether are enquiry should be held or not, and if he decides not to hold an enquiry, he is bound to inform the accused in writing "of the action proposed to be taken in regard to him and the grounds of the action." Therefore, the Superintendent of Police should have clearly specified in. his show-cause notice the grounds on which the appellants were directed to show cause against their dismissal. The only grounds in the notice which were quoted read:- "(1) You were negligent in your duty to control the illicit trade in liquor... (2) That you may reasonably be considered corrupt because you have a persistent reputation of being corrupt." Mr. Rehimtoola advanced a lengthy argument to show that this notice did not comply with the mandatory provisions of clause (a) of sub-rule (3) which we quoted. The point is self-evident, and precisely because the Authorised Officer dispensed with an enquiry he should have taken pains to give full particulars of the charges against the appellants. Instead he informed them of the allegations against them without giving any -rounds for those allegations. As the show-cause notices were thus, in flagrant violation of the mandatory provisions of sub-rule (3), they were illegal and on this ground alone the proceedings instituted against the appellants have td be set aside. Unfortunately, this aspect of the case, which stared the Tribunal in the face, was ignored by it in its order, therefore, the appeals have to be allowed." Similarly this Tribunal has held in its ruling cited as 1980 P L C (CS) 92(1):- "Allegation of corruption must be based on some solid facts and the subjective opinion of the competent authority about the adverse reputation of his subordinate should be supported by some tangible evidence and accused official should be confronted with the same." We also further find that the reliance made by Superintendent of Police on rule 13.17(2) of the Punjab Police Rules, is no more a valid reliance the said Rules have been substituted by Police E & D Rules, 1975, which are only valid Rules for proceeding against a Police Employee. The perusal of Police E & D Rules, 1975, does not reveal that any such provision exists which permits the competent authority) to start departmental proceedings against a Police Official who was recipient of three adverse reports. We have further taken into consideration the mention of three censures against the appellant by the competent authority but find that the D.I.G. Police had categorically observed while re-instating the appellant in service that these censures would not weigh against him as these were issued on one and the same date. 13. In view of the detailed analysis of this case as given in the earlier part of our judgment, we are of the considered opinion that the impugned order of the competent authority dated 7-7-1983 cannot be sustained as the same is against the settled principle of law as well as Police E & D Rules and positively exhibits the state of annoyance on the part of the competent authority against the appellant. Any order passed in this state of mind would be an order corum non judice, and thus, is liable to be set aside as void ab initio. 14. The result is we accept the appeal, set aside the impugned order and direct that the appellant be re-instated in service with all back benefits. There will be no order as to costs. A.E./33/S-Tr Appeal accepted.