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Case No. 170/94 of 1984, decided on 2nd July, 1985.

‑‑‑ Officiating appointment‑‑Reversion to substantive post/rank for misconduct‑‑Not a reversion in exgencies of service but punishment‑ Cannot be made without show cause and defence opportunity‑‑Police official‑‑Reverted by ex parte order from Officiating rank of Inspector to substantive rank of Sub‑Inspector on alleged charge of abuse of powers and acting in rash and tactless manner‑‑Allegations found not established on record‑‑Service Tribunal, in circumstances, accepting appeal not only on merits but also on legal grounds that impugned order could not be made in such ex parte manner‑‑Punjab Service Tribunals Act (IX of 1974), S.4.

P L D 1983 S C 100 and 1984 P L C (C.S.) 1234 rel.

Masud Ahmad Riaz for Appellant.

A.G. Humayun, District Attorney for Respondents.

.‑‑Muzammal Hayat, S.I. No.F/78., C.I.A., Faisalabad has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the D.I. G. Police, Multan Range, Multan, and the Inspector‑General of Police, Punjab. Lahore, as respondents.

2. By virtue of this appeal he has prayed that impugned order dated 26‑5‑1984, and the final order passed by the Inspector‑General of Police Punjab, regarding filing of appeal be set aside and appellant be reinstated as Inspector Police w.e.f. 26‑5‑1984, with full benefits of any and allowances.

3. Brief facts of the case are as under:‑

The appellant joined service in the Police Department as a directly recruited A.S.I. in the year 1966 and was promoted as Officiating Sub‑Inspector on the basis of his consistently excellent record of service. He earned 74 commendation certificates and one second class. Most of these certificates were awarded to the appellant on account of his effective control over the crimes and criminals as S.H.O. at various heavy Police Stations. The appellant was brought on List 'F' in February, 1983 and promoted as Officiating Inspector of Police by respondent No.2 w.e.f. 3‑4‑1983. However, by order dated 26‑5‑1984, the appellant was abruptly reverted as Sub‑Inspector on the charges of abuse of legal powers, for acting in most rash and tactless manner. The appellant made a detailed representation to the Inspector‑General 'of Police, recounting the entire background of the case and pointing out at the same time that Mr. Nazar Muhammad Fatiana was involved as well as in 16 F.I.Rs. out of which he was let off in some cases at initial stage but was challaned in a number of other cases. It was further pointed out by the appellant in his representation that actually the appellant was not a person who has arrested Mr. Nazar Muhammad Fatiana, Advocate but the person was additional. S.H.O. who found a cognizable case against him on the evidence so adduced by the complainant and thus arrested him. However, his plea was not accepted and his appeal was rejected. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by Mr. Israr Hussain Kazmi, and have perused the entire record of this case with their assistance.

5. Learned counsel for the appellant has submitted that the very perusal of the impugned order dated 26‑5‑1984 shows that it is liable to be set aside on legal plane as well as on actual facts. Accordingly the learned counsel for the appellant has submitted that the law enunciated on this legal issue has now been settled by the judgment of Supreme Court of Pakistan as reported in P L D 1983 S C 100 and followed by this Tribunal in case of Ghias‑ud‑Din v. I.G. Police Punjab, reported as P L C 1984 C S 1234. It has been argued that it is a settled law now that when a civil servant is reverted from his officiating rank to the substantive one due to exigencies of service such reversion could not be called in question but when it is found that the said officiating civil servant has been reverted due to certain misconduct or charges so levelled against him then it was incumbent upon the authority to serve him with a show‑cause notice and to give him a chance to defend himself before final order was so passed against him.

6. With regard to the merits of the case it has been submitted that it is established on record that on 12‑4‑1984, an application was filed by one Hakim Ali of Kot Devamal that Mr. Nazar Muhammad Fatiana, Advocate and his accomplice Pehlwan had committed theft of his buffalo. S.P. Sahiwal, whom this application was addressed, passed order for legal action and report within 5 days. The said Advocate visited the P.S. in connection with another case and he was apprised of the contents of the complaint on 14/15‑4‑1984, who assured that the dispute would be settled by him with the complainants within 4/5 days On 19‑4‑1994, the application was marked to Sub‑Inspector Mr. Saeed Alam, Additional S.H.O. for necessary legal action. On 20‑4‑1984 Additional S.H.O. directed the complainant to associate him with the investigation of his complaint and should be present on 21‑4‑1984. On 21‑4‑1984, Sub Inspector/Additional S.H.O. proceeded to the site at 6.30 a.m., held investigation and registered a case against Mr. Nazar Muhammad Fatiana, Advocate, and his accomplice Pehlwan Wasli. He completed the investigation within about 9 hours. The Additional S.H.O sent a written report through Constable Ali Sher that the case was cognizable under section 457/380, P.P.C. He also prepared the sketch of the site of theft and recorded statements of witnesses. After observing all these formalities he reached back at about 2.00 .m. and informed the appellant about the registration of case against him. It was on the basis of the report and the Police file as complied by Additional S.H.O. the arrest of Mr. Nazar Muhammad Fatiana, Advocate, was effected by the said Additional S.H.O. at 3.30 p.m. in the normal course of law. With these submissions the learned Advocate on behalf of the appellant has argued that the appellant was not at all responsible for the arrest of Nazar Muhammad Fatiana and the observation of the learned D.I.G. Multan that the appellant had arrested Nazar Muhammad Fatiana, Advocate, was without any legal justification and was factually incorrect. He has made a grievance that although the said D.I.‑G. Police had passed an order in ex parte manner without affording any opportunity of defence to the appellant yet the I.G. Police Punjab, before whom entire picture was available in the form of a detailed appeal filed by the appellant, did not advert to any of his assertions which were positively based on facts and record of this case and dismissed his appeal in most arbitrary manner. In this manner it has been argued that the case of the appellant for reinstatement to the rank of Officiating Inspector of Police from the date he has been so reverted was highly justified in view of proposition of law enunciated by the learned counsel for the appellant as well as un-controverted facts on record so submitted by him.

7. On the other hand learned District Attorney has adopted the comments of the Department and has submitted that the D.I.‑G. Police was fully justified to pass reversion order in view of the background of this case in which a respectable person who was an Advocate by profession was arrested on the charge of stealing a buffalo which amounts to an act of rashness, and thus his work was not found satisfactory. It has been pleaded that his reversion has been made from officiating] rank to the substantive rank and this would be no punishment in the eye of law. It was further submitted that the matter regarding arrest of Nazar Muhammad Fatiana, Advocate by a Team under the orders of Martial Law Authorities and it was found by the Enquiry Team that the appellant acted with vengeance in arresting the Advocate in a most rash and tackless manner.

8. We have given our anxious thought to the arguments advanced by the parties and find that the respondent in his parawise comments has submitted that the appellant was guilty of gross misconduct by acting rashly in arresting Advocate, therefore, he was so reverted. This being so admitted by the respondents in their parawise comments duly signed by the D.I.‑G. Police Multan Range, we will now first of all advert to the legal issue whether an officiating civil servant could be reverted to a substantive rank due to misconduct without assigning/ I issuing, him a show‑cause notice or not. In case No.397/1852 of 1982, decided by this Tribunal on 20‑3‑1984 this legal issue came before it in case Ghias‑ud‑Din v. S.P. Dera Ghazi Khan and others; and the same was struck as under:‑

"Can a reversion be made from officiating rank to substantive rank which has been made for certain acts of omission and commission of a member of the Police Force without issuing him a show‑cause notice/charge‑sheet "

After giving a thoughtful consideration, this Tribunal while relying on the case of Dr. Safdar Mahmud reported as P L D 1983 S C 100, came to the conclusion that such like reversion could not be made without issuing a show‑cause notice to the said civil servant although he was officiating in rank and reverted to his substantive rank. The relevant portion of the ruling of the Supreme Court of Pakistan so mentioned above is reproduced as under:‑

"A fair assessment of the entire facts of the case shows that the reversion of the respondent to his original grade in the Income‑tax Group was not a routine or innocent reversion. It was the outcome of the supposed misconduct of which he was guilty as Director of Research Cell."

"Despite the fact that these charges were found to be unfounded and the disciplinary proceedings dropped, vide order dated 24‑6‑1978, but in the very same order it was also stated that the orders restricting him to his present grade were being maintained. The conclusion that irresistibly follows from these facts is that the reversion of the respondent to Grade‑19 on 1‑1‑1978, was due to the fact that ever since August, 1977, he was considered to be guilty of misconduct, which belief continued to be entertained at least until April, 1978, when he was issued the formal charge sheet. His reversion in‑between this period and his being "replaced" to his substantive post on 1‑1‑1978 was not, therefore, simply an accident of service but this was ordered as a measure of punishment and displeasure. In these circumstances the view of the Service Tribunal that the reversion of the respondent to Grade 19 was not justified, therefore, appears to be just and equitable."

The case of Ghias‑ud‑Din is fully applicable to the case of the appellant as the appellant has been reverted not due to the exigencies of service but on clear charge of inefficiency as well as misconduct, therefore, we have no hesitation to hold that the order of the learned D.I.‑G. police by reverting the appellant from officiating rank of Inspector to substantive rank of Sub‑Inspector is without lawful authority.

9. With regard to the merits of the case we do not find ourselves in agreement with the contention of the respondents as given in the parawise comments that the arrest of the Advocate Nazar Muhammad Fatiana was the result of vengeance on the part of the appellant. Due to said arrest a beating was given by Nazar Muhammad Fatiana in the Court room of Mr. Atta Muhammad Jag, Magistrate 1st Class as a result of which the appellant sustained injuries and a case F.I.R. No.72, dated 26‑4‑1984, was registered against him under section 307/353/332/148/149/224/225 and G/M L D at P.S. A Division, district Sahiwal. We are fortified in our observation by the established facts on record that the S.I. Saeed Alam, Additional S.H.O. having found the contents of application as correct registered a case vide F.I.R. No.80 of 1984 under section 457/380, P.P.C. against Nazar Muhammad Fatiana and he was arrested at 3.30 p.m. in the normal course of law four days earlier to the attack so made by Mr. Nazar Muhammad Fatiana against the appellant in the Court room of Atta Muhammad Jug, Magistrate 1st Class. In this manner it stands fully established that it was Nazar Muhammad Fatiana who sought vengeance for his arrest against the appellant and not the appellant as there was no cause available with him to take vengeance in this regard. We have also verified from the record that the physical arrest of the appellant was made by Saeed Alam Additional S.H.O to whom the case was marked by the appellant under the orders of S.P. of the said District. We are also satisfied that it was the Additional S.H.O. who went to the spot, inspected the site and completed the investigation against the said Mr. Nazar Muhammad Fatiana, Advocate. This being so the stand of the Department that the appellant had acted in vengeance for the arrest so made upon Mr. Nazar Muhammad Fatiana and thus caused his arrest stands rebutted.

10. We have also gone through the written appeal of the appellant dated 17‑6‑1984, filed by the appellant before the I.G. Police, Lahore and find that these facts are fully mentioned in an elaborate manner, wherein the appellant had claimed that he was not the person who had arrested the said Mr. Nazar Muhammad Fatiana, advocate, but we find that the learned I.‑G. Police did not advert to this claim of the appellant and rejected his appeal without controverting his this stand. In addition we further find that the said Advocate is stated to be involved in 12 criminals cases duly registered in P.S. Noor Shah, P.S. Saddar Sahiwal, P.S. Tandlianwala, P.S.A. Division, Sahiwal, etc. The perusal of the F.I.Rs. fully indicates that the said Mr. Nazar Muhammad Fatiana, was required in a number of criminal cases out of which a few resulted in his let off at the earlier/initial stage but there is positive proof on record that he was challaned in the remaining cases so registered against him. We are not in a position to comment as to the guilt or innocence of the said Mr. Nazar Muhammad Fatiana and have narrated these facts only to show that all was not well with regard to the relations of said Mr. Nazar Muhammad Fatiana with the local Police administration. We have also taken notice of the assertions of the appellant to the background of the deeds of Mr. Nazar Muhammad Fatiana but acting on the golden principle of justice that no body can be condemned without being heard we refrain to comment on this aspect of this case. However, fact remains that the learned I.‑G. Police Punjab, as well as D.I.‑G. Police Multan did not take notice of this documentary evidence on record which the appellant put forth in his appeal before the learned I.‑G. Police Punjab, while deciding case against him. It is also an established fact on record that the order of the learned D.I.‑G. Police is ex parte order without calling upon the appellant to advance defence as laid down by the Supreme Court of Pakistan to show cause about his so‑called misconduct for which he has been so reverted. 11. In the light of the above analysis of the entire case of the appellant both relating to the legal issue as well as facts of his case, we are of the considered opinion that the reversion of the appellant could not be made in the manner in which it has been so made by the learned D.I.‑G. Police Multan and also have no hesitation to hold that the appellant had no hands in the arrest of Mr. Nazar Muhammad Fatiana, Advocate, as proved from the record of this case.

12. The result is we accept the appeal, set aside the impugned orders and direct that the appellant be reinstated in service as Inspector of Police from 26‑5‑1984, with all back benefits. However, there will be no orders as to costs.

A.E.

Appeal accepted.

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