MUHAMMAD AFZAL vs REGIONAL POLICE OFFICER, BAHAWALPUR and others
This matter arises from a petition filed by a police constable challenging his compulsory retirement and subsequent enhancement of penalty to dismissal from service by the Police Department, which was partially modified by the Services Tribunal maintaining the compulsory retirement. The core legal question is whether a regular departmental inquiry could be lawfully dispensed with and whether the petitioner was afforded due process and an opportunity of defence. The Supreme Court held that the failure to conduct a regular departmental inquiry, provide an opportunity to cross-examine witnesses, or establish sufficient documentary evidence to dispense with the inquiry resulted in a miscarriage of justice and prejudice to the petitioner. The Court laid down the principle that dispensing with a regular inquiry without sufficient material and proper justification violates fundamental principles of fairness, necessitating a de novo inquiry providing full opportunity of hearing.
- Can the department dispense with a regular departmental inquiry without sufficient documentary evidence?
- Whether the failure to provide an opportunity to cross-examine witnesses in a disciplinary proceeding results in a miscarriage of justice?
- Does the enhancement of a penalty from compulsory retirement to dismissal during the pendency of a service appeal suffer from legal infirmity?
ORDER
' MIAN SAQIB NISAR, J.---The petitioner, who was a constable in the Police Department, has been compulsory retired by the department on account of some complaint filed by a private person alleging extracting some money on the pretext of purchasing a car. However, on departmental appeal filed by the petitioner, the penalty of compulsory retirement was enhanced to dismissal from service. But this was done when the petitioner had already filed a direct service appeal against the original order.
2. It may be pertinent to mention, that before passing the order for the compulsory retirement a fact-finding departmental inquiry was conducted by the department, and it seems that on account of some material collected therein that the regular inquiry against the petitioner was dispensed with. Be that as it may, the Services Tribunal through the impugned order has dismissed the appeal of the petitioner maintaining his compulsory retirement, but has set aside the order dated 29-10-2009 passed in departmental appeal through which his penalty was enhanced.
Hence this petition.
3. Heard.
4. We are not satisfied from the record produced by the learned Law Officer pursuant to the order dated 18-2-2009 that any regular inquiry has been conducted in the matter and that the petitioner was given any opportunity to cross-examine the witnesses, who even appeared in the fact-finding inquiry. We are also not convinced, if sufficient documentary evidence was available with the department to dispense with the regular inquiry; therefore the above lapse has resulted into its miscarriage of justice, causing prejudice to the petitioner. Resultantly, by converting this petition into an appeal, it is allowed. The impugned orders are set aside with the direction to the department to hold a de novo regular inquiry against the petitioner which should be completed within a period of two months from the date of communication of this judgment. Appeal accordingly, allowed.