MY REPORTED CASE BY FST: 2000 P L C (C.S.) 270 [Federal Service Tribunal] Before Muhammad Ayub Khan and Abdul Hameed Khan Khattak, Members MUHAMMAD RAMZAN Versus ADDITIONAL SUPERINTENDENT OF POLICE ISLAMABAD---and another Appeal No.232 R of 1998, decided on 15th February, 1999. Civil service ¬ Reduction in rank Summary proceedings Major penalty of reduction in rank (from Sub Inspector to Assistant Sub Inspector of Police) was awarded to civil servant on certain allegations, only after issuing him show¬ cause notice, but without holding any enquiry by appointing Enquiry Officer Authority, while imposing penalty of reduction in rank to civil servant, had not specified duration of reduction period, which had rendered the order of Authority as defective Authority in awarding penalty to civil servant had adopted summary procedure of enquiry Validity Ordinarily summary procedure of enquiry was to be adopted only where minor penalty was proposed to be awarded and if major penalty was to be executed, principles of natural justice required that a full dress discrete and detailed inquiry was conducted. Raja Saifur Rehman for Appellant. Shujjat Hussain Naqvi, PDSP, D.R. for Respondents. Date of hearing: 11th February, 1999. JUDGMENT ABDUL HAMEED KHAN KHATTAK (MEMBER). Appellant feeling aggrieved of an order, dated 29 12 1997, passed by Mr. B.A. Nasir, Additional Superintendent of Police, Islamabad, awarding major penalty of reduction in rank (from SI to ASI), has preferred this appeal. 2. Facts as stand reflected in the memo of appeal and \ the objections/parawise comments of the respondents and the other relevant documents annexed thereto are that appellant, Sub Inspector (B.14) was having 27 years service to his credit and his name was also placed in List F with effect from 8 8 1996, meaning thereby he was held entitled to promotion to the rank of Inspector as and when a vacancy was available. To his bad luck, it was in the month of March, 1997 that an occurrence took place which darkened his future service career. One Mst. Shabnam daughter of Muhammad Sharif was admitted in PIMS, Islamabad for treatment as she was having burn injuries and on receipt of information through wireless on 24 3 1997, Khan Muhammad, A.S.I. visited her in PIMS and recorded her statement (Annexure A) which was attested by the Doctor Incharge as well as her parents and on return to Police Station, Khan Muhammad, recorded the said report in Roznamcha at Serial No.27. On 25 3 1997, S.H.O., Khurshid Ahmad Khan made over tire said statement of Mst. Shabnam and copy of the said Roznamcha for further action to the appellant and thereafter, the appellant without losing any time applied in writing (Annexure B) on the same day to the PDSP through the S.H.O. for elucidating legal opinion and the said legal opinion was furnished by the P.D.S.P. Legal on 27 3 1997 opining thereby, that an offence under section 354 A, P.P.C. was made out thus the appellant promptly registered the case under section 354 A, P.P.C. vide F.I.R. No.55, dated 27 3 1997 (Annexure B 1) against Muhammad Ishaq (husband of the victim) and arrested the accused on the same day and associated him in investigation. The appellant took into possession the burnt Shalwar and shirt of the victim and a burnt blanket from the residential house of the accused (case property) vide Memo (Annexure C) in the presence of two witnesses on 27 3 1997. It was during the course of investigation that the accused produced before the appellant affidavits of ten persons to the effect that Mst. Shabnam attempted to commit suicide and the appellant accordingly submitted progress report (Annexure D) on 10 4 1997 to respondent No. l (Mr. B.A. Nasir, Additional S.P., Islamabad) as he during those days happened to be the Incharge of Secretariat Police Station and respondent No.l endorsed on the said progress report the following directions: S.H.O. Sectt: Take into possession the gas heater/kerosine oil stove. Verify the truth of the matter from relatives of the deceased. Get in touch with the parents of the deceased to enquire about the true facts. In compliance thereto, the appellant took into possession kerosine oil stove vide recovery memo, dated 12 4 1997 (Annexure D) in the presence of a witnesses. The accused was sent to judicial custody in the due course and in the meantime a writ petition was filed in the Honble High Court, Rawalpindi Bench, Rawalpindi that since Mst. Shabnam had succumbed to the burnt injuries in C.M.H. Kharian, thus, it was prayed that the Police be directed to register murder case, on receipt of notice from High Court, the P.D.S.P. (Mr. Shujjat Hussain Naqvi) appeared before the Honble High Court and submitted that the offence was converted from 354 A, to 302, P.P.C. vide Zimni No. 11, dated 3 6 1997 (Anneuxre D.2) and the said writ petition was disposed of accordingly (Annexure E) it is stance of the appellant that he converted the offence under section 354 A, to section 302, P.P.C. under the directions of the said D.S.P. Legal). The appellant thereafter, recorded the statements of mother and brother of Mst. Shabnam and handed over the record of the case to the S.H.O. for submission of challan to the Court under section 302, P.P.C. It transpired that the Commandant conducted some inquiry into this matter at the back of the appellant without associating him and as a result, a show cause notice (Annexure F) was issued to the appellant by Respondent No. 1 although. he (respondent No. 1) was himself the Incharge of the said Police Station and had been dealing with the case as A.S.P. The appellant submitted his reply to show cause notice on 4 11 1997 (Annexure F/1) but without holding any proper inquiry into the matter or giving the appellant reasonable opportunity of defence, Respondent No. 1 passed the impugned order on 29¬12 1997 (Annexure G) thereby reverting him from S.I. to A. S. I. whereafter appellant preferred departmental appeal (Annexure G.1) on 17 1 1998 to the Inspector General of Police, respondent No.2, but as the same remained unresponded within 90 days, the appellant made the instant appeal before this forum. 3. The respondent refuted the above contentions of the appellant. The stand taken by them was that the appellant was awarded the above penalty as he was found to be negligent during the investigation of the aforementioned case. 4. Arguments heard, record perused. 5. The learned counsel for the appellant at the very out set raised legal objection with regard to competency of Respondent No. 1 to award the punishment as according to him it was Respondent No.2, I. G. and not respondent No. 1, Additional S. P. who was competent to award punishment. This contention seems to be devoid of force as in the Punjab Police (Efficiency and Discipline) Rules, 1975, as adopted by Islamabad Police, major penalty of reduction from substantive rank to a lower rank relating to S.Is., A.S.Is. could be awarded by S.P./A.S.P. and it were only the Inspectors who were to be dealt with by D. I.G. (as there is no D.I.G. in Islamabad Police, thus, I. G. was to take the place of D.I.G.). In this regard and as the appellant was holding substantive rank of S.I., thus, he could be reduced in rank by S.P./A.S.P. 5. The allegations levelled against the appellant in the show cause notice are reproduced as under: (1) The incident took place on 15 3 1997, but the case was registered on 27 3 1997. The parents of deceased were never questioned about this inordinate delay. (2) Neither the material evidence was taken into possession nor it was mentioned in case file. (3) No Police remand of alleged accused was taken. No efforts were made to bring out the truth. (4) The original penal section i.e. 354 A, was changed to 302 QAD without any justification and solid evidence which was totally uncalled. (5) No proper investigation was carried out as directed by Court. 6. With regard to allegation No. 1, it suffices to say that no doubt occurrence took place on 15 3 1997, but for the first time a wireless message was received on 24 3 1997 from the Hospital about the same and the S.H.O. deputed Khan Muhammad, A.S.I., to visit Hospital and record the statement of victim and he complied with those instructions and recorded her statement which is Annexure A and the same was duly attested by her parents and the Incharge Doctor and the investigation of the case was entrusted to the appellant on 25 3 1997 who without loss of time applied vide Annexure B to the D.S.P./Legal seeking his legal opinion and the D.S.P./Legal furnished such legal opinion as late as 27 3 1997 and the appellant himself promptly drafted the F.I.R. 55 on 27 3 1997 (Annexure B/1), hence, there was no delay on the part of the appellant in registration of the case. 7. With regard to allegation No.2, the appellant did take into possession on 27 3 1997 the burnt Shalwar and Shirt of the victim and also a burnt blanket vide Annexure C, thus, it was wrong to hold that no material evidence was taken into possession by him. 8. The third allegation with regard to non taking physical remand of the accused, it suffices to hold that the accused remained in the custody of the appellant for 24 hours after his arrest who was duly interrogated and as the recovery had since been effected and nothing else was required to be taken into possession, thus, there was hardly any need left to apply for further physical remand and it is not always obligatory for an Investigating Officer to apply for physical remand in each and every case. 9. As regards allegation No.4 about changing of penal sections from 354 A to 302, P.P.C., as already given above, the appellant himself never applied any of these penal sections either at the time of registration of the case or subsequently rather before dealing with the nature of the offence he seems to be wise enough to elucidate legal opinion from the D,S.P./Legal and on both occasions it was not the appellant rather D.S.P./Legal who is to be solely held responsible for guiding the appellant to register the case under section 354 A or to change/convert the same at later stage to section 302, P.P.C. The said D.S.P./Legal was very much present during the course of arguments and he conceded that the appellant had consulted him on both occasions and that the penal section was applied and converted, as detailed above, as per his advice and directions thus how could the appellant be made scape goat. 10. Lastly the allegation of non conducting of proper investigation as directed by the Court, it is yet to be seen during trial of the case as to whether investigation was carried out correctly or otherwise as if there is any pointation made by a Court at trial stage or any other interregnum stage prior to trial, such expression of the Court is to be deemed as tentative in nature. Lacunae in the investigations, if any, could be highlighted or the conclusion of the Trial by the Court but it was too premature to hold the appellant as negligent for not conducting proper investigation. 11. The last nail in the coffin of the case of the respondent is the Inquiry Report made by D.S.P./S.D.P.O. Secretariat Police Station, dated 13 1 1999. Towards the fag end of this report, it was manifestly given by the said Inquiry Officer that the appellant could not be held responsible for any negligence with regard to holding of investigation meaning thereby he exonerated the appellant of all the above allegations, thus this report of the Inquiry Officer takes the bottom out of case of respondents. It transpires that holding of such an inquiry was ordered by the competent Authority during the proceedings of departmental appeal which culminated on 13 1 1999 by resolving the matter in favour of the appellant as a result of discrete and detailed inquiry but the appellant could not be expected to have awaited the out come of such belated inquiry as any delay on his part beyond 90 days statutory period might have resulted in dismissal of the present appeal as being hit by limitation. The boot seems to be on the other foot in that, had the competent authority dealing with departmental appeal been prompt and quick in disposal of the same within required period, the appellant would have felt satisfied with the result thereof and there was every likelihood that he would have been spared of the mental torture and financial loss in the form of presenting the appeal before this Tribunal. 12. As the allegations mentioned in the show cause notice related to factual controversy of .the matter, holding .of a detailed inquiry after appointment of Inquiry Officer was need of the hour and the method of short circuiting adopted by Respondent No. I was never called for. 13. We also feel pained to observe that, as reproduced above, respondent No. I himself was associated during the investigation of this case of Mst. Shabnam being Incharge Secretariat Police Station and he had also made certain endorsements on the progress report thus the norms of natural justice and fair play demanded that be should have taken his hands off this matter relating to hold of disciplinary proceedings against the appellant rather an unbiased and independent Inquiry Officer should have been appointed specially for the reason that peculiar circumstances of this case necessitated a thorough inquiry into the matter. It is astonishing to note that in the case in hand, respondent No. 1, seems to have been enjoying more than one roles i.e. it was none else but he who remained entrusted with the above murder case, he issued the show cause notice to the appellant and he passed the impugned order of awarding of major penalty without having appointed any Inquiry Officer under the given circumstances, he preferably ought not, under any norms of fair play and justice, to have been clothed with portfolio of complainant, prosecutor and judge. As stands reflected above, he being associated at some stage of the murder case was certainly having a biased mind thus he should have avoided to sit in judgment during the disciplinary proceedings against the appellant. A biased and prejudicial nature of his mind seems to have been unfolded by the report of D.S.P., dated 13 1 1999. Furthermore, while awarding the sentence, the specification of the duration of the reduction period was not given which also rendered the impugned order defective. We would be failing in our duty if we do not resort to opining that it is well settled principle that ordinary summary procedure of inquiry is to be adopted only where minor penalty is proposed to be awarded and if major penalty is to be exacted, it is fair and akin to the principle of natural justice and good conscience that a full dress discrete and detailed inquiry is conducted. 14. For all the aforesaid reasons the impugned order being not sustainable in law is hereby set aside and the same shall be deemed as non¬existent for all intents and purposes. The appellant shall also be entitled to the relevant consequential benefits. No order is made as to costs. 15 Parries be informed through registered post H.B.T./310 FSC(Trib) Appeal allowed.
Posted on: Thu, 07 Nov 2013 20:47:37 +0000
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