Wednesday, 29 July 2015

Punishment of Dismissal from Service

PLJ 2015 Tr.C. (Services) 161[Punjab Service Tribunal, Lahore]
ZESHAN HAIDER--Appellant
versus
Appeal No. 2900 of 2014, decided on 11.3.2015.
Punjab Employees (Efficiency, Discipline and Accountability) Act, 2006 (XII of 2006)--
----S. 9--Civil servant--Punishment of dismissal from service--Denovo proceedings--Challenge to--Validity--Inquiry officer neither recorded statement of any prosecution witnesses nor he asked appellant to put cross-examinations--Major penalty is a serious and extreme punishment in context of service laws--Such penalty can not be imposed lightly and without proof of serious allegation and for that quality incriminating evidence/material should be of high standard and same is missing in present case.
                                                                                                                        [Pp. 164, 165 & 166] A, B, D & E
----Art. 71--Incriminating evidence--Opinion of investigation officer--Inadmissible in evidence--It is settled law that opinion of investigation officer is inadmissible in evidence and not relevant for purpose of any decision or conviction in terms of Art. 71 of Qanun-e-Shahadat Order, 1984--Incriminating evidence available against present appellant, inquiry officer could have discussed same in his inquiry report. [P. 165] C
Malik Muhammad Asif Javed, Advocate for Appellant.
Mr. Kewan Basit, D.A. Mr. Irfan Sial, Inspector legal for CCPO, Lahore.
Date of hearing: 11.3.2015.
Judgment
Brief facts for the disposal of the instant appeal are that show-cause notice No. 1690/PS dated 09.12.2011 was issued against the present appellant by DIG of Police Operations, Lahore which was replied by him.
Vide order dated 16.02.2012, DIG of Police Operations, Lahore by invoking the provision of PEEDA Act, 2006, awarded major punishment of dismissal from service against the appellant. The appellant filed departmental appeal before the CCPO, Lahore who rejected the same on 07.04.2012. Thereafter, revision petition was filed which was also rejected on 04.07.2012. The above said orders were challenged by filing service appeal before this Tribunal which was partly allowed, whereby the appellant was reinstated in service and the case was remanded to the competent authority i.e. CCPO, Lahore to initiate denovo proceedings vide order dated 12.10.2012.
2.  During post remand proceedings, the CCPO, Lahore reinstated the appellant in service and appointed Superintendent of Police, CRO & Computerization, Lahore as inquiry officer vide order dated 5.11.2012 to conduct denovo regular inquiry. The inquiry officer Mr. Jamat Ali Bukhari after conducting inquiry, submitted his report on 21.11.2012 before Respondent No. 1 (CCPO, Lahore) while exonerating the appellant from the charge sheet. It is contended that assistant director of CCPO Office, Lahore due to ulterior motive got the denovo inquiry conducted through DIG Operations, Lahore vide order dated 31.01.2013. The DIG Operations, Lahore to whom denovo inquiry was marked second time, did not carry out the inquiry himself but Sr. Superintendent of Police, Investigation, Lahore Mr. Abdur Rab Chaudhary conducted the inquiry and did not allow the appellant to cross-examine any witness. The second inquiry officer after obtaining the written statement of Sub Inspector Abdul Sattar, Investigating Officer of the criminal case FIR No. 650/11 under Section 392, PPC, Police Station Race Course, Lahore held the appellant guilty of the charge. The CCPO, Lahore without giving due consideration to the contentions of the appellant as well as inquiry conducted by the first inquiry officer, passed an order dated 20.09.2013 whereby inflicted punishment of dismissal from service upon the present appellant by invoking the provision of PEEDA Act, 2006. The appellant again challenged the said order by filing departmental appeal before Respondent No. 2 (Inspector General of Police, Punjab, Lahore) who vide his order dated 27.03.2014 rejected the appeal. Hence, this appeal.
3.  Learned counsel for the appellant contended that the impugned orders are against law, facts and have been passed on the basis of no evidence; impugned orders have been passed in contravention of laws/rules governing the Civil Servants; the respondents failed to note that impugned punishment have been inflicted on the basis of vague charges; the order of the Hon'ble Tribunal was not followed in its letter and spirit; inquiry officer was requested by the appellant to record statement of the complainant of the case, the dacoits and to put them under cross-examination to dig out the truth but it was not done by the inquiry officer; inquiry officer carried out inquiry in a slip shod manner and relied on hearsay evidence; Learned counsel for the appellant next contended that impugned orders are illegal and coram non judice,prayed that appeal be accepted impugned orders be set aside and the appellant be reinstated in service with all back benefits.
4.  Conversely, the learned District Attorney vehemently opposed the arguments advanced by the learned counsel for the appellant and made his reliance on the parawise comments furnished by the respondents. Learned District Attorney contended that appeal is without any substance, hence, it be dismissed.
5.  Arguments heard and available record perused.
6.  Annex (A) is a photocopy of show-cause notice Bearing No. 1690/PS dated 09.12.2011 which was issued by DIG of Police Operations, Lahore to the present appellant in the following manners:
“As communicated by the CCPO/Lahore vide his office No. 9388-90/R-CCPO dated 02.12.2011, case FIR No. 650/11 dated 11.10.2011 under Section 392, PPC was registered at PS Race Course on the complaint of Constable (Driver) Qamar Abbas No. 355 that you alongwith Constable Sohail Akhtar N. 23423 had taken his (Constable Driver's) official motorcycle No. LEG-1213 (Honda-125) on 11.10.2011 for obtaining CBC test from Shaukat Khanam Laboratory near Shadman Market. On your way back from the Laboratory, two persons snatched away the official motorcycle from you on gunpoint and left their motorcycle CD-70 (without Number) at Mall Road under-pass.
An enquiry into the allegations was conducted by the SSP/D&I, Lahore who concluded that while coming back from the Laboratory, you alongwith Constable Sohail Akhtar had started checking of the documents of a motorcycle (CD-70) from the boys riding on it, for ulterior motives. You also made their personal search but they had no documents with them. You alongwith Constable Sohail kept on roaming with the accused so that they give you money as illegal gratification. On failure to get money from the accused, you alongwith constable Sohail tried to take them to the police station and asked accused Shehbaz to drive the official motorcycle towards the police station but both the accused succeeded to flee away taking the official vehicle with them. You called DSP Mazhar Hussain (your father) on the spot who immediately got the above said case registered at PS Race Course to shroud your guilt and to save your skin that you had done checking of the documents from the accused for personal gains which caused the incident of taking the official vehicle by them, hence, you are guilty of gross misconduct and are liable for strict departmental action against you under Punjab Employees Efficiency Discipline and Accountability Act, 2006.”
7.  Earlier the DIG of Police Operations, Lahore vide his order dated 16.02.2012 by invoking the provisions of PEEDA Act, 2006 awarded major punishment of dismissal from service against the present appellant. Departmental appeal was earlier filed and disposed of by the CCPO, Lahore vide his order dated 04.04.2012 whereby the order dated 16.02.2012 was up held. The Inspector General of Police, Punjab, Lahore also rejected the revision petition vide his order dated 04.07.2012.
8.  The above said orders were earlier challenged by filing service Appeal No. 2933/2012 and it was partly allowed by this Tribunal vide order dated 12.10.2012 and after the order of reinstatement of the appellant, his case was remanded to the competent authority (CCPO, Lahore) to initiate denovo proceedings against the appellant.
9.  During post remand proceedings, vide order dated 5.11.2012, Superintendent of Police, CRO & Computerization, Lahore Mr. Jamat Ali Bukhari was appointed as inquiry officer to conduct inquiry and submitted his findings. After conducting departmental inquiry, Mr. Jamat Ali Bukhari, Police, CRO & Computerization, Lahore submitted his report vide Letter No. 1125-PSO-CRO dated 21.11.2012 by observing that the reply given by the appellant to the charge sheet was found satisfactory and he recommended for taking lenient view against him. On perusing the said inquiry report, CCPO, Lahore without showing any cogent reason ordered for initiation of denovo inquiry and for that appointed DIG Operations, Lahore to carry out inquiry against the appellant under Section 9 of the PEEDA Act, 2006 vide order dated 31.01.2013.
10.  Pursuant to the order dated 31.01.2013, Mr. Abdur Rab Chaudhary, Sr. Superintendent of Police, Investigation, Lahore conducted denovo departmental inquiry and recommended major punishment of dismissal from service against the present appellant.
11.  I have gone through the inquiry report submitted by Sr. Superintendent of Police, Investigation, Lahore time and again and feel no hesitation to observe that the said inquiry officer neither recorded the statement of any prosecution witnesses nor he asked the present appellant to put cross-examinations, he mainly relied on the written statement of one Sub-Inspector, Abdul Sattar, who was Investigating Officer of criminal case FIR No. 650/11 under Section 392, PPC registered at Police Station, Race Course, Lahore.
12.  Para No. 4 of the inquiry report is reproduced as follows:--
“4. SI Abdul Sattar, the Investigating Officer of case FIR No. 650/11 under Section 392, PPC PS Race Course, Lahore stated in his written statement (attached as Annexure-D) that during investigation of the case it. transpired that Constable Zeshan Haider and Muhammad Sohail Akhtar stopped accused Muhammad Shahbaz and Muhammad Tanveer near Under Pass, Canal Mall Road who were coming on a without number motorcycle and asked to show the documents of motorcycle. The accused persons did not produce the documents of the motorcycle. Constable Zeshan Haider went on the motorcycle of the accused to bring the vehicle from the P.S. Constable Muhammad Sohail Akhtar could not drive the motorcycle and handed over the motorcycle to the accused Shahbaz for driving and sat their behind. When accused started the motorcycle and accelerated, Constable Sohail Akhtar fell down and accused fled away on official motorcycle. During investigation, it was not proved that the accused were armed. The accused changed the colour of the motorcycle as black. During investigation both the accused persons were arrested, official motorcycle was recovered and challaned to Court.”
13.  Scanning of this Para would bring this fact on the surface that in order to declare the present appellant guilty of the charge, the inquiry officer mainly made his reliance on the investigation carried out by Abdul Sattar, Sub Inspector in a criminal case FIR No. 650/11. It is settled law that opinion of the Investigation Officer is inadmissible in evidence and not relevant for the purpose of any decision or conviction in terms of Article 71 of the Qanun-e-Shahadat Order, 1984. Had there been any incriminating evidence available against the present appellant, inquiry officer could have discussed the same in his inquiry report. The inquiry which was carried out by Mr. Abdur Rab Chaudhary, Sr. Superintendent of Police, Investigation, Lahore was apparently defective and not according to the principal of natural justice.
14.  It is necessary to add that major penalty is a serious and extreme punishment in the context of service laws. It means the end of

a person's career. Such penalty can not be imposed lightly and without proof of serious allegation and for that quality of incriminating evidence/ material should be of high standard and the same is missing in the present case.
15.  It is interesting to accentuate that CCPO, Lahore did not appoint Mr. Abdur Rab Chaudhary, Sr. Superintendent of Police, Investigation, Lahore as inquiry officer and there is noting available in the file that as to how Mr. Abdur Rab Chaudhary became the inquiry officer in place of DIG of Police Operations, Lahore. While passing the impugned orders, the above said crucial facts escaped from the notice of the respondents and thus they have committed material illegality.
16.  In view of what has been discussed above, the impugned orders are set aside and the appellant is reinstated in service with all back benefits.
(R.A.)                                                                       Appeal accepted.

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