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Case No. 308/628 of 1980, decided on 17th February, 1981.

‑‑‑R. 6(3)(i)(b)‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑ Disciplinary action‑‑Defence opportunity‑‑Personal hearing‑‑Principle of natural justice‑‑Police Head Constable (appellant) accused of corruption under 5.161, P.P. C and 5(2) of Prevention of Corruption Act, 1947‑ Facing criminal trial and in judicial lock‑up‑‑Served with show‑cause notice‑‑Appellant in reply pleading innocence and taking plea of alibi at time of raid and requesting for adjournment of departmental case till decision of criminal case‑‑S.P. (punishing authority) without giving personal hearing to appellant finding him guilty and imposing penalty of dismissal from service and representation of appellant against dismissal order before D.I.‑G. and review petition before I.‑G.P. rejected‑‑Held: (i) Competent authority not justified to conclude case hurriedly without providing appellant his fundamental right of being heard in person; (11) it would have been more prudent for competent authority to launch formal inquiry to know correctness of stand of appellant as matter involved recording of evidence to reach some decision hence authority bound to act with patience to verify important plea of alibi in larger interest of justice; (iii) justice not to be allowed to be sacrificed on altar of haste and expediency; and (iv) appellant having been condemned unheard impugned dismissal order was void as being ab initio ultra vires running counter to principles of natural justice and violative of mandatory provisions of r.6(3)(i)(b).

Muhammad Murtaza Qazi v. University of Sind and others P L D 1960 (W.P.) Kar. 500 and Muhammad Nawaz v. The Deputy Commissioner, Multan and others 1980 P L C (C.S.) 213 rel.

‑‑‑Departmental action‑‑Criminal trial‑‑Same charge‑‑Effect of decision in Criminal case‑‑Proceedings against Police Head Constable‑‑Dismissed from service pursuant to show‑cause notice without waiting for decision of criminal trial‑‑Accused convicted by Summary Military Court but acquitted by High Court‑‑Held: When a person is acquitted by High Court in a particular case Executive authorities should show respect for such decision in his favour and refrain to take action on same charges.

Hamid Khan for Appellant.

H.R. Cheema, District Attorney for Respondents.

Mr. Muhammad Saleem has filed an appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded Government of Punjab, Inspector -General of Police, Punjab, D.I.‑G.P., Sargodha Range and Superintendent of Police, Faisalabad as respondents. It has been prayed that the order of dismissal from service passed against the appellant by respondent No‑4, dated 26‑10‑1978 and orders of respondents Nos.2 and 3, dated 13‑10‑1979 and 11‑5‑1980, respectively be declared illegal, without lawful authority and contrary to the applicable laws and rules and the appellant be re‑instated in service, with effect from 24‑8‑1978,

2. The brief facts of the case are that the appellant was posted as Head Constable in Police Station Kotwali, Faisalabad on 24‑8‑1978 whet) an F.I.R. No.27 of the same date under section 161, P.P.C., section 5(2) of the Prevention of Corruption Act, 1947 and Martial Law Order No.7 was registered at Police Station Faisalabad at the instance of one Mst. Allah Rakhi wife of Peer Bakhsh. Vide this F.I.R. the said Mat, Allah Rakhi made a complaint that while she was coming alongwith her nephew Nazir from Mai Di Chugi towards Lyallpur City she was asked to stop by one man when she was nearing the T.B. Hospital. The said person enquired from her as what was Nazir in relation to her. Mat, Allah Rakhi replied that he was her son whereupon the said person slapped Mat. Allah Rakhi and forcibly made Nazir sit behind his Scooter and told Mat. Allah Rakhi to reach Police Post Jhang Bazar. When Mat, Allah Rakhi reached the Police Post Jhang Bazar she did not find Nazir there. She kept on searching Nazir and came to know on 24‑8‑197h (the date of registration of the F.I.R.) that the said Nazir was confined in the Kotwali: When she reached Kotwald she found Nazir sitting there. She contacted a person, tall and strong, fair in colour and of bluff eyes, who demanded Rs.500 from her as bribe to let off said Nazir, Ultimately, a sum of Rs.400 was settled. She, however, arranged thi9 money and informed the Martial Law Authorities. When she reported the matter to the Police, her statement was recorded and a raiding party was arranged, which resulted in recovery of Rs.400 from one Ghulam Hussain Constable posted at Police Station Kotwali, Faisalabad, However, during the course of the enquiry the appellant's name also was mentioned in allegations made by one Muhammad Rafique son of Peer Bakhsh whose statement was recorded under section 161 of P.P.C, The appellant and said Ghulam Hussain were tried in Summary Military Court No.9, Faisalabad presided over by Major Shahzad Hussain under section 161, P.P.C, read with section 5(2) of the Prevention of Corruption Act, 1947 and Martial Law Regulation No.14, read with M.L.O. No.7, and was sentenced on 29‑11‑1978 to six months' rigorous imprisonment with fine of Rs.4,000 and in default of payment of fine to undergo rigorous imprisonment for a further period of two months. While the appellant was in judicial lock‑up a show‑cause notice was issued against him in which he 6 was called upon to make his reply within seven days and was also informed that he was being proceeded against by way of general police proceedings in which institution of regular departmental enquiry was not necessary. He was told that the penalty of dismissal from service was likely to be imposed upon him. The appellant being in judicial lock‑up sent a short reply, through a 'ruqa' placed on record as Annexure B/1 as under:‑

"It is submitted that the petitioner 'was on duty, vide Rapt No.32 dated 23‑8‑1978, Police Station Kotwali, in search of proclaimed offenders and had left for Sialkot, Multan, Lahore,. Rawalpindi and Sheikhupura to find such absconders. It was in his absence that a raid was conducted on 24‑8‑1978 when he was neither present at the spot nor any recovery of any incriminating article was made from him or could be made from him. A false case against, the petitioner was fabricated and he was absolutely innocent. The departmental case against the petitioner may not be completed unless and until his fate was decided in the criminal case."

The Superintendent of Police, Faisalabad after taking into consideration the said reply submitted by the appellant found him guilty and dismissed him from service. He was not given any opportunity to be heard in person by the said authority. Sometime later a representation was made by him on 17‑3‑1979 to the D.I.‑G.P., Sargodha Range in which he pleaded his innocence and brought to the notice of the said officer the entire side of his case but the same did not meet with any success. Another petition for review before the I.‑G. Police, dated 24‑10‑1979 also met the same fate. I.‑G. Police, vide his order, dated 11‑5‑1980 did not consider the case of the appellant as fit for re‑instatement, hence this appeal.

3. We have heard the learned counsel for the appellant as well as the Government Pleader at length and have perused the record of this case with their assistance. The main ground raised on behalf of the appellant is that he was not given any chance to defend himself where as rule 6, sub‑rule 3(i)(b) of the Punjab Police (Efficiency and Discipline) Rules, 1975 make it a mandatory for the authority to give a reasonable opportunity of showing cause to a person who is likely to be punished. According to the learned counsel for the appellant the Superintendent of Police was under obligation to give full chance to the appellant to defend himself as well as to afford him an opportunity of personal hearing. The dispensation of the formal enquiry in the case of the appellant was made in most arbitrary manner whereas the facts of the case required that a formal enquiry was a must as allegations against the appellant involved taking of evidence to satisfy whether he was guilty of some misconduct or not. It was further submitted that when ultimately the appellant was acquitted by no less authority than the High Court of Lahore his case should have been considered as that of a person found not guilty of any corruption or misconduct. It has been vigorously argued that the Superintendent of Police, the competent authority in this case, had acted in a very hasty manner without adopting the normal procedure as laid down under the rules to do justice in the case of the appellant.

4. We have given our anxious thought to all the points so raised in this appeal on behalf of the appellant and proceed to examine the most vital issue i.e. audi alteram partem. The record of this case clearly reveals that when the show‑cause notice was issued by the Superintendent of Police the appellant was in jail. Annexure 'B/1' fully substantiates this fact as at Vie end of the reply it has been written Muhammad Saleem Head Constable No.1404 Thana Kotwali at present under‑trial. In the judicial lock‑up, District Jail, Faisalabad, dated 24‑10‑1978." This fact is further proved from the contents of the impugned order, dated 26‑10‑1978 (Annexure 'C') wherein there is nod mention that the appellant was given the opportunity of being heard in person. In P L D 1960 (W.P.) Kar. 500 in Muhammad Murtaza Qazi v. University of Sind and others, it was held by his Lordship S.A. Haque, J. that it was incumbent upon the competent authority to give reasonable opportunity to show cause or to defend himself to a person who is called upon to explain his conduct vis-a‑vis certain charges. In the abovementioned case Muhammad Murtaza Qazi was refused the extension of time to defend himself when he requested for the same due to his illness. The learned Judges of the Division Bench were of the opinion that the extension so sought, by Muhammad Murtaza Qazi was his right and should not have been deprived. In the present case the reason given by the appellant for postponement of proceedings against him was much more effective as he being in jail would be hardly in a position to produce any evidence to defend himself before the competent authority. We also find that the competent authority was in such a great hurry to conclude the matter that he even refused the appellant his fundamental right of being heard in person and we do not find any justification for the same. We are of the confirmed opinion that the case of the appellant was of a nature In which lot of care had to be taken to see whether he had any involvement in case particularly when he claimed that he was outstation at fad, flung places under orders to search the proclaimed offenders. In view of above it would have been more prudent on the part of the competent authority to launch a formal enquiry to know whether the stand taken by the appellant was correct or not. A matter like this would have definitely Involved the taking up of evidence to come to some decision. It is settled law that where a matter involves recording of evidence ire all fairness the matter should be probed into through a formal enquiry other than to decide the case summarily. We have taken pains to go through the F.I.R. as well as the statements of the witnesses recorded by the raiding authority and have also perused in this respect the judgment of the Hon'ble High Court. The name of the appellant does not figure anywhere in the F.I.R. nor in the statements made before the raid was conducted. The conspicuous absence of Muhammad Rafique before the Summary Military Court‑‑the only person on whose statement the appellant was involved‑ demolishes the edifice of guilt so built by the competent authority against the appellant. The whole structure falls through like a house of cards when we find that appellants tiles that he was not present at the time of the raid and was away on qf1cial duty to Multan, Lahore, Sheikhupura, etc. in search of proclaimed offenders has not been adverted to by the competent authority as well as by the D.I.‑G. Police and the I.‑G. Police. In all fairness and in the larger interest of justice the competent authority was duty bound to act with patience to verify this all important plea of alibi raised by the appellant in his favour as against some wild allegations made against him by Muhammad Rafique who had not even the courage to appear before the Summary Military Court to substantiate what he initially said before the raiding authority. It will not be out of place also to emphasise that when a person is acquitted by the High Court in a particular case the executive authorities should show respect for such decision in his favour and refrain to take action against such person on the same charges again. In 1980 P L C (C.S.) 213 in Muhammad Nawaz v. The Deputy Commissioner, Multan and others this principle has been reiterated by this Tribunal. In the present case we find that the competent authority was in such a great hurry to conclude the fate of the appellant that it has stated in so many words in the impugned order that the outcome of the Summary Military Court's decision against the appellant was a foregone conclusion. In a case where the appellant had been caught red‑handed himself the matter would have been different but where the appellant was crying at the top of his voice that he was in no way connected with the raid was outstation on the date of such raid and was beseeching that his case be deferred for some time to enable him to defend himself should have been judged with all care. The way the impugned order was passed speaks volume in favour of the plea that the appellant was condemned without being heard. We are of the confirmed view that justice cannot be allowed to be sacrificed on the alter of haste and expediency.

5. In the light of the above discussions we are of the considered opinion that the impugned order is void as being ultra vires running counter to the principles of natural justice as well as in violation of the mandatory rule 6(3)(i)(b) of the Punjab Police (Efficiency and Discipline) Rules, 1975. The basic impugned order after being struck down as without lawful authority all the orders based upon it are liable to be without any force and would be considered void for all purposes. The appellant would be considered to be in service from the date of his suspension with all back benefits.

A.E.

Appeal allowed.

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