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Case No. 797/1016 of 1980, decided on 4th March, 1982.

‑‑‑R. 6‑‑Charge of corruption and extortion of illegal gratification‑ Proper and regular enquiry‑‑Essential‑‑Enquiry, held, but opportunity of cross‑examination of witnesses not afforded to accused‑‑Penalty order of compulsory retirement, in circumstances, set aside by Service Tribunal remanding case to competent authority for dealing in accordance with law if so advised.

1980 S C M R 850 rel.

M.A. Riaz for Appellant.

H.R. Cheema, District Attorney for Respondents.

Through this appeal Muhammad Bashir, a former Assistant Sub‑Inspector of Police, challenges his compulsory retirement effected by order, dated 12‑8‑1980 passed by the Superintendent of Police, Faisalabad. An appeal preferred before the D.I.‑G. of Police, Sargodha Range, remained unanswered till the filing of the present appeal. The appellant also impugned the order, dated 14‑5‑1980, whereby he was reverted as A.S.‑I. by the Superintendent of Police.

2. The appellant joined the Police force as Constable on 16‑1‑1947. He was promoted Sub‑Inspector in 1978 but was reverted as A.S.I. on 15‑5‑1980. On 29‑5‑1980 he received a show‑cause notice while he was serving as Incharge Nawan Lahore Police Post. The notice reads as follows:‑‑

"On receipt of a petition of Mr. Shaukat Mahmood of Faisalabad from the President and C.M.L.As. House, Rawalpindi Mr. Muhammad Ashiq Sukhera, D.S.P./Hqs. held an enquiry about the allegations of misconduct, and corruption against S.JI. (now A.S. I) Muhammad Bashir No.237/S, Incharge P.P. Nawan Lahore. The D.S.P. reported that the following misconduct was proved against S. I.:‑‑

(i) On account of a dispute of civil nature between Yousaf Ali son of Allah Yar, resident of Chak No.335/J.B, and Liaqat Ali, Mechanic Nawan Lahore Bus Stop, the S.‑I. supporting the latter summoned the former to the Police Post unlawfully and detained him illegally.

(ii) He misbehaved and insulted Yousaf Ali at the Police Post.

(iii) He coerced Yousaf Ali and accepted Rs.400 as illegal gratification from him and also took him to A1‑Noor Hotel, Jhang and enjoyed lunch for which payment of Rs. 90 was made by Yousaf Ali.

(2) From the above, it is evident that S.‑I. now A.S..I. Muhammad Bashir No.247/S is corrupt and guilty of grave misconduct for which he is liable to disciplinary action. He is, therefore, called upon to show cause within 7 days as to why he should not be dismissed from service by way of General Police Proceedings as provided under the Punjab Police (E & D) Rules, 1975. His explanation must reach the undersigned within the stipulated period failing which it shall be presumed that he has nothing to say in his defence and ex parte orders will be passed accordingly.

(3) He is allowed to appear in O.R. for personal hearing."

The appellant replied to the show‑cause notice. An enquiry was conducted by Mr. Muhammad Ashiq, D.S.P. Hqs. who examined the persons concerned. The appellant was heard in the Orderly Room and confronted with the Enquiry Report. As his oral explanation too was not found satisfactory the retirement order was issued.

3. The parties were heard and the record of the case sent for and examined. Making his submissions on behalf of the appellant, learned counsel stated in respect of the reversion from S.‑I. to A.S.‑I. that this was not a reversion simplicitor from an officiating rank but was an outcome of the proceedings which ultimately ended in the appellant's retirement and should, therefore, have been preceded by permitting the appellant to explain his conduct. As for the order of compulsory retirement it was submitted that the so‑called enquiry was held before issue of show‑cause notice and that the appellant was not enabled to cross‑examine the witnesses. The most significant feature of the proceedings under the Police (E & D) Rules was that whereas corruption was alleged in the show‑cause notice no formal or proper enquiry was held. In this context 1980 S C M R 850 was cited to show that, a preliminary enquiry can only be used against a civil servant if it is supplied with the show‑cause notice and the civil servant concerned is given the opportunity to examine the Enquiry Officer, which was not done in this case. On the part of the respondents, the learned D.A. stated that the appellant was fully associated with the proceedings and gave a statement before the Enquiry Officer. He had been found guilty of corruption and maltreatment of members of the public and a complaint in this connection had gone up to no less an authority than the C.M.L.A. The learned D.A. also defended the reversion order, in that the order contained no charge or allegations and was an ordinary order of reversion from an officiating rank to the substantive rank of the appellant. Such an order was perfectly legal according to the Police Rules.

I have gone over the Enquiry Report minutely and taken due note of the arguments made by the parties. The E.O. (D.S.P. Hqs. Mr. Muhammad Ashiq) found the appellant guilty of extorting Rs.400 as illegal gratification from Yousaf All and or taking meal .from the same Yousaf Ali which cost the latter Rs.90. The report does not show that in order to clearly establish the facts the appellant was allowed to cross‑examine the various persons examined by the Enquiry Officer. It is also not evident from the show‑cause notice and the impugned order that when summoned to the Orderly Room the appellant was given the opportunity to question the Enquiry Officer. I feel that in the circumstances it would not be appropriate for me to give my findings on the merits of the case, since the appellant assails the very nature of the proceedings taken against him under the (E & D) Rules. It has been clearly held by the superior Courts in a number of cases that where a charge relates to corruption and acceptance/ extortion of illegal gratification a proper enquiry must be held. This Tribunal too has held likewise in a number of cases that such an enquiry should have been held where the taking of bribe by a civil servant is involved. This view is further strengthened by 1980 S C M R 850 cited by the learned counsel for the appellant. In the instant case an enquiry of sorts was held but its other concomitants were not fulfilled. I have a feeling that since the complaint against the appellant was received through the office of C.M.L.A. the respondent department neglected to comply with some of the requirements of law as laid down by the superior Courts and by this Tribunal itself.

In view of the above discussion I am of the opinion that th6 impugned orders did not have the full backing of the law. The order, dated 12‑8‑1980 is, therefore, set aside and the case remanded to the, S.P., Faisalabad for dealing with it according to law, if so advised

However, in respect of the appellant's reversion from the rank of S.‑I. to A.S.‑I., I do not find any justification for interference as the reversion was from an officiating rank and was permitted by the relevant rules.

There will be no order as to costs.

A. E.

Appeal accepted

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