PLJ 2010 Tr.C. (Services) 103
[
Present:
Justice (R) Muhammad Jahangir Arshad,
Chairman
ZAHEER
AHMAD, EX-
versus
DEPUTY
INSPECTOR GENERAL OF POLICE
Appeal No.
658 of 2009, decided on 2.2.2010.
----R.
16.2--Civil servant was a young boy with four years service to his credit--Dismisal from service--Charge of involvement in criminal
case--Inquiry officer was appointed who conducted inquiry into the matter and
declared the civil servant guilty of the allegation--Validity--Principle of
natural justice--Inquiry proceedings were conducted when the civil servant was
confined in jail and such fact alone was sufficient to conclude that inquiry
proceedings were conducted in violation of principle of natural justice
providing no body to be condemned unheard--Held: Competent authority must at
least have waited for the release either on bail or otherwise of the civil
servant from jail before ordering inquiry--A person on judicial remand cannot
be considered either as a free citizen or in a position to defend such
proceedings in a free atmosphere with his option to face the proceedings in
accordance with law. [P. 106 &
107] A
2007
SCMR 192, rel.
Civil
Servant--
----Charge
of involvement in criminal case--Dismissal from service--No disciplinary proceedings
could be initiated against a civil servant--Validity--Competent authority
merely on the registration of criminal case and without waiting for the
decision of a criminal Court opted to proceed with the matter in an unnecessary
haste resulting in miscarriage of justice to the civil servant. [P. 107] B
Principle of
Natural justice--
----Civil
servant--Dismissal from service--Charge of involvement in criminal case--No
major penalty could be imposed on a civil servant either without regular
inquiry or by dispensing with requirement of regular inquiry especially when
the civil servant has denied the allegation and determination of disputed
questions of fact was necessary through evidence--Held: So called inquiry
proceedings were not held according to principle of natural justice and the
civil servant was deprived of his right of defending in accordance with law. [P. 107] C
Civil
Servant--
----Dismissal
from service--Charge of involvement of criminal case--Opportunities of hearing
were not given to civil servant--Validity--Where orders of authorities below
imposing and upholding major penalty of dismissal from service on the civil
servant are to be set aside and the same are accordingly set aside. [P. 107] D
Civil
Servant--
----Jurisdiction--Power
to confirms--Determination--Contention--Punjab Service Tribunal being a Court
of ultimate jurisdiction for determining the terms and conditions of a civil
servant has the power to confirm, set aside, vary or modify the punishment or
decision given in particular case. [P.
108] E
2009
SCMR 1197 & PLD 1996 SC 840, ref.
----R.
16.2--Civil servant was dismissed from service due to involvement in criminal
case--Inquiry officer declared him guilty of the allegation--Civil servant was
a young boy with four years service to his credit--Right of
earning--Administration of justice--Validity--Instead of wasting further time
in awaiting the final decision of the criminal Court and holding fresh
proceedings through regular inquiry the matter be decided at that stage by way
of imposing appropriate penalty on the civil servant who has got only four
years service to his credit and sending him home at that stage would amount to
depriving him from his right of earning and further would defeat the
reformatory concept of punishment in administration of justice--Appeal was
allowed. [P. 108] F & G
2008
PLC (CS) 877, rel.
Mr. Pervez Inayat Malik,
Advocate for Appellant.
Mr. Naeem Nazir Sulehri,
Assistant District Attorney for Respondents.
Mr. Tanzeem Ahmad, JPO O/o SSP Patrolling,
Date of
hearing: 2.2.2010.
Judgment
For the
charge of his involvement in criminal case FIR No. 111/08 dated 11.4.2008 under
section 395 PPC PS Motra District Sialkot,
the appellant was given show cause notice to which he replied denying the
allegation and requesting for withdrawal of show cause notice. According to the
competent authority Mr. Fiaz Hameed,
DSP/PHP, Sheikhupura was appointed as Inquiry Officer
who conducted regular inquiry into the matter and submitted his report
declaring him guilty of the allegation. The competent authority on receipt of
inquiry report and after affording opportunity of hearing to the appellant vide
order dated 23.7.2008 imposed penalty of dismissal from service on the appellant
and the departmental appeal filed by him was also dismissed on 10.2.2009. Hence this appeal.
2. It is submitted by the learned Counsel for
the appellant that the so called inquiry when conducted the appellant was
neither summoned nor produced before the Inquiry Officer or even not associated
with the proceedings and he was not given opportunity of defending himself
hence the finding of the said inquiry could not be used against him having been
conducted ex-parte without notice and affording
opportunity of hearing against principle of natural justice. Further contention
is that it is established principle of law that no departmental proceedings
could even be initiated against a police officer without final determination of
guilt or innocence by a criminal Court as provided Under Rule 16.2 of Punjab
Police Rules which provides that a police officer/official can be proceeded
against departmentally only after final determination of criminal case by the
Court even upto the Court of revision and not earlier
because without trial registration of FIR was nothing except First Information
Report about the occurrence of offence and till the matter is so finally
determined by the criminal Court the FIR would remain unsubstantiated and on
its basis maximum penalty could not be imposed. The learned Counsel to support
his contention has also placed reliance on 2007 SCMR 192. The learned Counsel
has further argued that as the appellant in his reply to show cause had
specifically denied the allegation it was therefore incumbent upon the
competent authority to have held regular inquiry for determining the disputed
questions of fact and not otherwise as held by the Hon'ble
Supreme Court of Pakistan in 2007 SCMR 192 and 2009 SCMR 339. Further
contention of the learned Counsel for the appellant is that prima facie the
involvement of the appellant in the said case is doubtful because during the
investigation the appellant was held innocent and the matter is still pending
investigation and unless the appellant was found guilty he would be deemed and
considered innocent and on this ground also the imposition of penalty of
dismissal from service was not sustainable. Further argument of the learned
Counsel for the appellant was that as the alleged departmental inquiry was not
conducted according to the principle of natural justice and also in violation
of the principle of law "no body to be condemned unheard, therefore the
competent authority was not justified in basing its finding while imposing
penalty of dismissal from service on the said report of the Inquiry Officer.
Last argument of the learned Counsel is that the appellant is a young boy with
4 years service to his credit and he has been deprived of his only source of
livelihood by the competent authority without considering the fact that even
according to the report of Inquiry Officer the involvement of the appellant in
the crime of said FIR was doubtful and his only mistake was that after taking
the truck in dispute in his custody he did not immediately enter the same in
the police record and for that fault the imposition of harsh and severe penalty
of dismissal from service was not warranted and justified at all as held by the
hon'ble Supreme Court of Pakistan in 2008 PLC (CS)
877.
3. On the other hand, this appeal has been opposed
by the learned Assistant District Attorney on various grounds with specific
reference to the nature of offence committed by the appellant for which he was
booked through the above noted FIR and the matter was under trial, therefore
keeping in view the nature of offence the appellant was rightly dealt with by
the authorities below and he being a member of disciplined force was not
entitled to any sympathy or leniency, therefore his appeal be dismissed.
4. Arguments considered, record perused.
5. At the very outset I am inclined to agree
with the contention of the learned Counsel for the appellant that in the
presence of express provision contained in Rule 16.2 of Punjab Police Rules as
well as the judgments of the hon'ble Supreme Court of
Pakistan noted above "without final determination of guilt or innocence of
the appellant by the criminal Court even the departmental proceedings could not
have been commenced". On this short ground alone the order of the two
authorities below are liable to be set aside. However there is another aspect
of the matter that the inquiry proceedings were conducted when the appellant
was confined in jail and this fact alone is sufficient to conclude that the
inquiry proceedings were conducted in violation of principle of natural justice
providing "no body to be condemned unheard". The competent authority
must at least have waited for the release either on bail or otherwise of the
appellant from jail before ordering inquiry. A person on judicial remand cannot
be considered either as a free citizen or in a position to defend such
proceedings in a free atmosphere with his option to face the proceedings in
accordance with law, perhaps due to this reason Rule 16.2 was incorporated and
the hon'ble Supreme Court of Pakistan also held in
2007 SCMR 192 that without waiting for the decision of the criminal proceedings
no disciplinary proceedings could be initiated against a civil servant and
further the superior Courts had rightly held that despite acquittal from the
criminal case the departmental proceedings could still be brought against the
civil servant but in the instant case the competent authority merely on the
registration of criminal case and without waiting for the decision of the
criminal Court opted to proceed with the matter in an unnecessary haste
resulting in miscarriage of justice to the appellant. Since
it is established principle of law that no major penalty could be imposed on a
civil servant either without regular inquiry or by dispensing with such
requirement of regular inquiry especially when the civil servant has denied the
allegation and the determination of disputed questions of fact was necessary
through evidence. I am therefore satisfied that the so called inquiry
proceedings were not held according to the principle of natural justice and the
appellant was deprived of his right of defending in accordance with law. For
the above noted reason I am therefore satisfied that this is a fit case where
the orders of authorities below imposing and upholding major penalty of
dismissal from service on the appellant are to be set aside and the same are
accordingly set aside. However the matter is still subjudice
before the criminal Court and during the pendency of
such criminal proceedings the decision of the matter by the competent authority
afresh after regular inquiry would not be justified rather the same again would
be in violation of the above noted rules as well as the law declared by the hon'ble Supreme Court of Pakistan. When confronted the
learned Counsel for the appellant namely Mr. Pervez Inayat Malik, Advocate on the
instructions from the appellant present in Court in the view of the Court
submitted that the appellant would be satisfied that without waiting for the
outcome of criminal trial, if instead of sending the matter to the competent
authority and directing the competent authority for deciding the same afresh
through regular inquiry after the decision by the criminal Court which may take
considerable time if the present proceedings are decided by this Tribunal itself
by way of imposing appropriate punishment on the appellant especially keeping
in view the age, length of service of the appellant as well as the dictum of
law laid down the hon'ble Supreme Court of Pakistan
in 2008 PLC (CS) 877. As according to the learned Counsel for the appellant
this Tribunal being a Court of ultimate jurisdiction for determining the terms
and conditions of a civil servant has the power to confirm, set aside, vary or
modify the punishment or decision given in a particular case as held by the hon'ble Supreme Court of Pakistan in PLD 1996 SC 840 and
2009 SCMR 1197, I am inclined to agree with the above noted stance taken by the
learned Counsel for the appellant under the instructions from the appellant
present in Court, I feel that instead of wasting further time in awaiting the
final decision of the criminal Court and holding fresh proceedings through
regular inquiry the matter be decided at this stage by way of imposing
appropriate penalty on the appellant who has got only four years service to his
credit and sending him home at this stage would amount to depriving him from
his right of earning and further would defeat the reformatory concept of
punishment in administration of justice as held by the hon'ble
Supreme Court of Pakistan in 2008 PLC (CS)
6. Resultantly this appeal is partly allowed and
the penalty as imposed on the appellant by the competent authority and
maintained by the departmental appellate authority is converted into forfeiture
of two years service. Further the appellant is reinstated in service from the
date of dismissal and the intervening period is ordered to be treated as leave
of the kind due. In case if full leave is not available to his credit the same
shall be deducted from his future service. It is however made clear that the
findings/observation recorded above are meant for the decision of present
appeal only and shall have no binding effect on the decision of criminal case
by the criminal Court and the same shall be decided purely on the basis Of
evidence recorded by the criminal Court. Further the findings of the criminal
Court shall be binding on the appellant notwithstanding the decision of this
case.
(R.A.) Appeal
allowed.