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(a) Constitution of Pakistan (1973)

-- Art. 212-N.-W. F. P. Police (Efficiency and Discipline) Rules, 1975, r. 5(3)-Compulsory retirement-Leave to appeal granted to consider point that provision of r. 5(3) of Rules, 1975 were not complied with and in fact neither an opportunity of personal hearing was afforded to employee nor an opportunity was given to him to rebut allegation levelled against him.

(b) North-West Frontier Province Police (Efficiency and Discipline) Rules, 1975

---- R. 5(3)-Compulsory retirement-Allegation of misconduct Enquiry-Procedure-No exhaustive or enumerative description of all facts and circumstances could be provided - Authority should decide what particular procedure to adopt for enquiry Competent authority was best Judge of all this matter-Nature of allegation of time, occasion, place and presence or absence o: superiors etc. might have bearing on question.

(c) North-West Frontier Province Police (Efficiency and Discipline) Rules, 1975

-- R. 5(3)-Compulsory retirement-Police Officer offering bribe to his own superior -Reasonable opportunity for showing cause against action proposed to betaken against him given to accused officer by way of furnishing him an opportunity to submit his written explanation-Procedure adopted by competent authority in compliance with r. 5(3), held, was justified in circumstances.

Qazi Muhammad Jamil, Advocate Supreme Court and M. Qasim Imam, Advocate-on-Record for Appellant.

Amir Zada Khan, Advocate-General and Nur Ahmad Khan, Advocate on-Record for Respondents.

Date of hearing : 2nd April, 1980.

ASLAM RIAz HUSSAIN, J.-This appeal by leave of the Court is directed against the judgment of the Service Tribunal, Peshawar, dated 4-9-1984, dismissing his service appeal.

2. The facts leading to this appeal briefly, are that on 20-7-1978 Mr. Abdul Hamid Khan, U. S. P., Swabi. reported to S P., Mardan that Fazal Rahim the appellant while posted as Additional S. H. O. Police Station, Swabi offered him Rs. 2,000 in currency notes of Rs. 100 denomination for showing favour to some accused persons involved in a case under section 302, P. P. C. On receipt of the said report, S. S. P., Swabi issued a show-cause notice to the appellant on 22-7-1978 calling upon him to explain the alleged misconduct within 7 days of the receipt of the notice. In response to show cause the appellant submitted a detailed explanation in writing to the S. P., Mardan. After considering the appellant's explanation the S. P. passed the order of his (appellant's) compulsory retirement with immediate effect. on 27-7-1978.

The appellant assailed the order of the S. S. P., dated 27-7-1978 ordering his compulsory retirement before the D. I.-G. Police, Peshawar Range, Peshawar, by means of a departmental appeal but the same was dismissed vide order dated 29-11-1978. Feeling aggrieved by the said order he filed an appeal before the N.-W. F. P. Service Tribunal, Peshawar, which too met the same fate. He then approached this Court for grant of leave and leave was granted to him on 9-6-1982 to consider the following question :

The point that deserves consideration is that the provisions of rule 5(3) of N.-W. F. P. Police (Efficiency and Discipline) Rules, 1975 were not complied with. In fact, neither an opportunity of personal bearing nor an opportunity to rebut the allegation against him was granted to the petitioner.

We have heard the learned counsel for the appellant as well as the learned Advocate-General. The appellant's counsel took us to the provisions of rule 5 of the N.-W. F. P Police (Efficiency and Discipline), Rules, 1975. The relevant portion of this rule read as follows :

"5. Punishment proceedings.-The punishment proceedings will be of two kinds i. e. (a) Summary police proceedings and (b) General police proceedings and the following procedure shall be observed when a police officer is proceeded against under these rules

(2) In case the authority decides that the misconduct is to be dealt with in police summary proceedings he shall proceed as under :

(i) The accused officer liable to be dealt with in the police summary proceedings shall be brought before the authority in an orderly room.

(ii) He shall be apprised by the authority orally the nature of the alleged misconduct etc. The substance of his explanation for the same shall be recorded and if the same is found unsatisfactory, he will he awarded one of the minor punishments mentioned in these rules.

(iii) The authority conducting the police summary proceedings may if deemed necessary, adjourn them for a maximum period of 1 day to procure any additional information.

(3) If the authority decides that the misconduct or act of omission or commission referred to above should be dealt within general police proceedings he shall proceed as under :

(a) ..

(b) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action, and

(c) give him a reasonable opportunity of showing cause against that action:

Provided that no such opportunity shall be given where the authority is satisfied that in the interest of security of Pakistan or any part thereof it is not expedient to give such opportunity."

He then argued that these rules should not be read as giving arbitrary power to the authority to decide whether the police summary proceedings or General police proceedings shall be followed in any case wherein inquiry is intended to be made into the misconduct alleged against a police officer. He submitted that there must be some principle to guide the authority in deciding whether one or the other procedure should be adopted in any particular case and submitted that such a guideline is given by this Court in Deputy Inspector of Police Lahore v. Oneesur Rehman Khan (PLD1985SC134), in the following words :

"It appears to us that the Tribunal has laid down certain requirements for the competent authority deciding to hold a departmental inquiry without the appointment of an Inquiry Officer. These cannot be sustained on the basis of law on the subject: The good record, the Press reports and the quality of service rendered by an official is not the criteria for determining whether the inquiry shall be held after appointing an Inquiry officer or by issuing a show-cause notice straightaway. It is the nature of the allegation the time occasion the place and the presence or absence of superiors, etc. which may have a bearing on this question. No exhaustive or enumerable description of all the facts and circumstances can be provided. The competent authority is the best Judge of it. Its discretion cannot be controlled by any such standards as have been indicated by the Tribunal in its order.

According to the appellant's counsel these guidelines had not been kept in mind by the authority in the present case.

4. The learned Advocate-General on the other hand gave us a copy of an unreported judgment of this Coutt i.e. D. L-G. Police and another v. Haroonur Rashid (Civil Appeal No. 40-P of 1984) wherein after reproducing the relevant rules, i.e. rule 5(3) of the N.-W. F. P. Police (Efficiency and Discipliue) Rules, 1975, this Court upheld the decision of the authority to deal with the inquiry in question in accordance with the General police proceedings".

5. We have carefully considered the question and are not persuaded to agree with the submission of the appellant's counsel. In Ajaz Ali Mangi v. Chief Secretary to Government of Sind (1985 S C M R 280). Similar rules containedi in the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, came under consideration. In that case learned counsel for the appellant had argued firstly that the order of removal was liable to interference inasmuch A as no reasons had been recorded for dispensing with a formal inquiry. This contention was, however repelled by the Court in the following words :-.

"On the first point, we find that rule 5(2) of the rules gives the authorised officer the discretion to decide whether or not, in the light of the facts of the case of the interests of justice, an inquiry should be conducted through an inquiry officer. The rule does not require him to record his reasons also for so declining . . . . . . ."

Even the observations by this Court in the case of Oneesur Rehmarn (supra) do not in any way advance the appellant's case. In the first place it is observed therein that no exhaustive or enumerative description of all the facts and circumstances can be provided in which the authority B should decide to adopt a particular procedure for the inquiry and that competent authority is the best Judge of it". Moreover, the indication given in the said judgment by way of guideline is only that the "nature of the allegation, the time, occasion, the place and the presence or absence of) superiors etc. may have bearing on this question"

6. ' Even if this guideline is applied to the facts of the present case the adoption of the procedure given in clauses (b) and (c) of rule 5(3) was justified because not only was the offence committed by the appellant in the presence of the D. S. P. who is an officer superior to him but, in fact, c he offered the bribe to the none other than his own superior officer. We are also of the view that the reasonable opportunity for showing cause against the action proposed to be taken against him was given to the appellant in this case by way of furnishing him an opportunity to submit his written explanation.

7. In view of the above discussion we do not consider it a fit case for interference. The appeal is therefore, dismissed. No order as to costs.

M. B. A. Appeal dismissed.

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