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Appeal No.28 of 1980, decided on 27th August, 1984.

‑‑‑R.5 (3)‑‑Reasonable opportunity to show cause‑‑Accused offered personal hearing in show‑cause notice‑‑Accused submitting reply stating that he had given full explanation and also asking for personal hearing‑Plea before Service Tribunal in appeal against penalty of compulsory retirement that personal hearing not given‑‑Such objection not mentioned in memo of appeal and plea raised for first time in arguments before Service Tribunal‑‑Neither any evidence to establish such assertion adduced nor even an affidavit to that effect filed during pendency of appeal‑‑Held: (1) Such averment if made in memo. of appeal there could have been sufficient material in written statement of respondent department to contradict appellant on such point; (2) it is presumed that official acts have been regularly performed‑‑Plea, in circumstances, rejected and denial of reasonable opportunity to show cause, held, not established‑‑Sind Service Tribunals Act (XV of 1973), S.4.

Manzoor Ali Khan for Appellant.

Hassan Akbar, A.A.‑G. for the Government.

Date of hearing: 13th August, 1984.

.‑‑ The appellant, an officiating D. S. P. C.I.A. has preferred this appeal against an order dated November 28, 1979 of Secretary, Home Department, Government of Sind, in departmental proceedings, compulsorily retiring the appellant from service with immediate effect.

The facts in brief are that Mr. J.A. Rahim and his son Sikandar Rahim were detained in their house under D.P.R. in compliance with an order of detention issued by the then Home Secretary. On 2nd May, 1976 Mr. J. A. Rahim was forcibly taken from his house to Ferozabad Police Station by Police and he was maltreated. Mr. J.A. Rahim and his son Sikandar were kept at the Police Station for about two hours. It is said that the appellant came to Ferozabad Police Station and met Inspector Aijaz Hussain. The appellant told him that Mr. J.A. Rahim and his son should be sent in separate cars, which had been provided for the purpose, to the K.D.A. Rest House in Defence Housing Society, according to instructions of Home Secretary and Mr. Jam Sadiq Ali, Minister. The D.S.P. remained in the background but watched the despatch of these victims through a window and directed one Dadal, a well‑known Gunda of Karachi, now dead, to accompany them. According to the F.I.R. lodged by Mr. J.A. Rahim, he and his son were tortured from 2nd May, 1976 till 5th May, 1976. They were then taken back blindfolded at mid‑night to their house.

This report, lodged by Mr. J.A. Rahim, was registered and the case was investigated. Several persons including Jam Sadiq Ali, the then Minister, Mr. Muhammad Khan Junejo, the then Home Secretary and Dadal Gunda were challaned far wrongful confinement, torture etc. The Inspector‑General of Police, Sind, found that during the investigation it had been established that Mr. Noor Khan Choudhry, officiating D.S.P., C.I.A., was involved in the abduction and wrongful detention of the above persons and he accordingly moved the Home Secretary for suspension of Mr. Noor Khan. Mr. Noor Khan, the appellant was accordingly suspended by an order, dated 16th November, 1977. The Inspector‑General of Police then issued a show‑cause notice to Mr. Noor Khan under sub‑rule(3) of rule 5 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973. The charges were, (a) that on 2‑5‑1976 in wilful abuse of his official position, he had caused the removal of Mr. J.A. Rahim and Sikandar Rahim to Bungalow No. 31‑B, D.H.S., K.D.A. Rest House, (b) that at his instance they were kept in unlawful confinement by Policemen and private persons and were subjected to physical and mental torture, (c) that under his behest on 4‑5‑1976 these two victims were blindfolded and removed to their residence at P.E.C.H.S., Karachi.

Since the case was under investigation the matter regarding departmental proceedings against the police Officers was also forwarded to D.I.‑G., Mr. Gohar Zaman. Mr. Gohar Zaman recorded statements of Inspector Aijaz Hussain and others. Inspector Aijaz Hussain corroborated that the appellant had contacted him for despatch of the two victims in car and jeep blindfolded to K.D.A. Rest House. In his presence the appellant had directed Dadal Gunda to accompany them. According to statement of the Gunman of Minister Jam Sadiq Ali, D.S.P. Noor Khan Choudhry had visited Jam Sadiq Ali in his house and taken instructions. According to statement of Mr. Muhammad Khan Junejo, the then Home Secretary, Mr. Noor Khan Choudhry had been entrusted with this job.

After completing the formality of getting the evidence against Noor Khan Choudhry recorded, the then Home Secretary, Mr. Kunwar Idris as the Authority issued a fresh show‑cause notice, dated 11th May, 1978, covering the above charges. The appellant submitted his written explanation covering 8 typed pages to the I.‑G., Police and 10 typed pages to the Home Secretary. The Home Secretary afterwards issued orders, dated November 28, 1979, compulsorily retiring the appellant from service.

It has first been argued by Mr. Manzoor Ali Khan on behalf of the appellant that the appellant has been implicated merely at the instance of D.I.‑G. Gohar Zaman because the D.I.‑G. was inimical to him for the reason that the appellant as D. S. P., C.I.A. had in his report implicated Gohar Zaman's brother as receiver of stolen cars from the inter‑provincial gangsters and car‑lifters. That there was no evidence to connect the appellant with any of the activities in respect of Mr. J.A. Rahim attributed to him in the show‑cause notice.

The question of involvement of the appellant in forcible removal, wrongful confinement and torture had been discovered by the I.‑G.P., Sind, long before the case was entrusted to D.I.‑G., Gohar Zaman. In fact, at the very outset the episode was found to have taken place at the instance of the appellant and the I.G.‑P. had, therefore, moved the Home Secretary for his immediate suspension. It cannot, therefore, be said that the appellant had been implicated at the instance of D. I.‑G., Gohar Zaman and there was nothing to connect him with this episode. This allegation is, therefore, neither reasonable nor convincing.

As regards the evidence, Inspector Aijaz Hussain Shah and others including the Home Secretary, Mr. Muhammad Khan Junejo had established the involvement of the appellant in the drama. They could not have been influenced by D.I.‑G. Gohar Zaman, to falsely implicate the appellant.

Mr. Manzoor Ali Khan has then argued some technical legal pleas to point out procedural defects in the departmental proceedings. He has argued that, although, the first show‑cause notice was issued to the appellant on 21‑11‑1977, the statements of Inspector Aijaz Hussain and others were recorded thereafter on 6‑12‑1977. It may, however, be pointed out that the impugned orders had been passed on the basis of the show‑cause notice issued by the then Home Secretary on 11‑5‑1978. This show‑cause notice had by implication cancelled the previous show- cause notice issued by the I.‑G.P. since the charges were identical. It cannot, therefore, be said that the evidence was recorded after issue of show‑cause notice.

It has then been argued that the appellant had been offered a personal hearing in the show‑cause notice issued by the Secretary to Government, Home Department. That the appellant had in his written explanation stated, at the end, that in additional to what he had stated, personal hearing may also be granted to him. That personal hearing had been denied to him. But in the letter addressed by the appellant to the Home Secretary, dated 2‑6‑1979 attached to the memo. of appeal as accompaniment 'H' the appellant had stated that he had given his replies to the show‑cause notice and fully explained with documentary proofs that he was not concerned with the allegations at all. That he had also submitted the proof that Mr. Gohar Zaman, the then D.I.‑G., Karachi bore grudge against him due to personal reasons and had managed to connect the allegations. The appellant accordingly requested the Home Secretary, "that decision may be taken at an early date".

The question arises whether the appellant had seen the Home Secretary personally and explained his position. In the memo. of Appeal filed before this Tribunal, the appellant has nowhere alleged that the personal hearing had been denied to him by the Home Secretary. If he had made this averment there would have been sufficient material in the written statement contradicting the appellant on this point. It is for the first time in the course of arguments that Mr. Manzoor Ali Khan has suddenly taken the plea that the personal hearing had been denied to his client. The appellant had been offered personal hearing by the Home Secretary and he had asked for a personal hearing also in addition to the detailed written explanation with documentary proof. There is, therefore, no reason why the Home Secretary should have refused to see the appellant. On the contrary, it is presumed that official acts have been regularly performed. The burden is on the appellant to show that this opportunity had been denied to him by the Home Secretary. No such affidavit has been filed by the appellant throughout the period the appeal remained pending before this Tribunal.

Under these circumstances it has not been established that the reasonable opportunity to show cause had been denied to the appellant.

In the result we find no substance in this appeal which is accordingly dismissed with no order as to costs.

A. E. Appeal dismissed.

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