KHALID FAROOQ Versus INSPECTOR-GENERAL, PAKISTAN RAILWAYS POLICE LAHORE,
CH. HASAN NAWAZ (MEMBER): ‑‑In this appeal under section 4 of the Service Tribunals Act, 1973, the appellant who is serving as Prosecuting Inspector in the Pakistan Railways Police, .has challenged the validity of order dated 6‑11‑1990, awarding "punishment of stoppage of increment for one year permanently", passed by the competent Authority in consequence of disciplinary proceedings.
2. The impugned order of 6‑11‑1990 is to the following effect.
ORDER
Prosecuting Inspector, Khalid Farooq (formerly posted in Lahore Division) was proceeded against departmentally by the Superintendent, Pakistan Railways Police, Workshops Division, Moghalpura on the charges that while scrutinising case FIR No. 13 dated 12‑3‑1988 under section 379/409, P.P.C., Railways Police Station, Faisalabad, recorded incorrect and misleading legal opinion for ulterior motives and recommended that the case should be filed as untraced. While doing so he did not take into consideration the evidence against the accused persons which was sufficient for challaning the accused persons for committing theft and misappropriation of H.S.D. Oil from Oil Tank No. 5248. The above mentioned case was registered on the report of Joint Enquiry Committee and instead of guiding and advising the Investigating Officer on proper lines, he tried to put S.I./SHO, Muhammad Sadiq of Railways Police Station, Faisalabad the Investigating Officer on a different track which is evident from case diaries Nos. 45 dated 6‑7‑1988 and 46, dated 8‑10‑1988. Ultimately the investigation of the case was entrusted to Crime Branch and challan was submitted to the Court.
2. The Enquiry Officer Mr. Muhammad Daud Minhas, Superintendent, Pakistan Railways Police, Workshops Division, Moghalpura exonerated the PI of the charges but the undersigned disagreeing with the verdict of the Enquiry Officer for the reasons mentioned above, served show‑cause notice to PI Khalid Farooq. The reply received from him has been examined by the undersigned and found unsatisfactory. He was also given personal hearing but he could not come out with any argument in his favour. He is, therefore, awarded punishment of stoppage of increment for one year permanently.
(Sd.)
Iftikhar Ahmad Khan
Deputy Inspector‑General,
Pakistan Railways Police, Lahore"
3. It is evident from the impugned order that the appellant was exonerated of the charge by the Inquiry Officer who is a responsible Officer of the rank of Superintendent, Pakistan Railways Police. The Inquiry Officer's report is exhaustive and after applying himself to various aspects of the matter he carne to the conclusion that the appellant was not guilt 'v gas ail) misconduct. His finding was that "in the light of the facts/evidence on the record, I have no reason to discard the evidence of M/s. Ghulam Asghar, Safdar Ali, Allah Rakha, Muhammad Ibrahim IRP/Steel Shop and Manzoor Ahmad Khan, SRP Lahore" and that the charges levelled against the accused official had not been substantiated.
4. We do not dispute the proposition that the competent authority could differ with the Inquiry Officer's report and award punishment irrespective of the finding arrived at by him. But then, the order should have been supported by reasons. In the present case, however, this does not appear to have been done and we are obliged to hold that the impugned order appears to be rather arbitrary. While taking note of the fact that the Inquiry Officer exonerated the appellant of the charges, it was observed by the competent authority that he did not agree with the verdict of the Inquiry Officer for the reasons mentioned above". The expression namely "for the reasons mentioned above" in para. 2 of the impugned order has reference to what has been said in para. 1 of the order However, it is extremely difficult to say that that portion of the order contains any reason in support of disagreement with the Inquiry Officer's finding. The first paragraph is only a verbatim reproduction of the first paragraph of show cause notice dated 6‑10‑1990, which is only a bald statement of allegations. Therefore, even some straining on the import of paragraph 1 does not enable us to spell out any reason in support of competent authority's disagreement with the Inquiry Officer's conclusion.
5. The competent authority seems to have assumed that the statement of allegations in paragraph 1 of the impugned order is factually correct. As we have already mentioned above, this part of the order is a verbatim copy of show‑cause notice of 6‑10‑1990 and actually a statement of allegations. There was no justification for an assumption that this statement was factually correct. The competent authority does not appear to have applied his mind to the report of the Inquiry Officer for any analysis, which could have avoided any impression that the impugned order is arbitrary. No reason whatsoever has been mentioned for disagreeing with the fending of the Inquiry Officer which is based on the evidence produced before him.
6. This aspect of the matter apart even otherwise we do not find any justification for awarding any penalty against the appellant. His opinion on account of which he has been punished is as follows:
"Subject: Case FIR No. 13 dated 12‑3‑1988
Under Sections 379. 409.109. P.P.C.. RLY/FSLD
In this connection it is submitted that I have already scrutinised the subject case very carefully, therefore, I am again of the view that it is not fit for trial, and submission of challan in its present position is not beneficial for Rly. because following points goes in favour of accused person, and trial Court will acquit them on the very first date of hearing:‑
(1) It is case of no recovery of alleged High Speed diesel oil.
(2) There is no independent eye‑witness to connect the accused persons with the misappropriation 27539, Litres High Speed Diesel Oil from Oil Tank Wagon No. 5248/BTK except the statement of PW Rana Safdar Ali, Asghar Ali (friends of accused Inyiat Ali) and Allah Rakha (employee of Inyiat Ali accused).
(3) There is five years unexplained delay in lodging the FIR.
(4) Unnecessary statement of 7 PWs who will not depose about the shortage of H.SDO from Oil Tank Wagon No. 5248.
Under the circumstances mentioned above if approved the subject case whose investigation has already been verified by DSP/B may please be filed as untraced and a move to Rly. Department be made to initiate a departmental action against the accused persons.
Submitted please.
(Sd.)
Khalid Farooq,
PI"
15‑10‑1988.
7. We do not think it is necessary for us to go into the question whether the opinion is correct or legally Sound. What we are concerned with is only the fact that the appellant does not appear to have dealt with the matter in a perfunctory manner. He has given reasons in support of his opinion and it will be taken to have been genuinely expressed. The worst for the appellant is that it may be erroneous on the basis of material available on the record. But he could be penalised only if it has not been expressed in good faith. It hardly requires an emphasis that nobody should be punished for a genuine opinion, regardless of whether it is correct or otherwise. The appellant expressed this opinion in the performance of his duty as a Prosecuting Inspector. He examined the case and seems to have come to the conclusion in good faith that the case may be filed as untraced.
8. Further, as we see from the marginal note, even the Superintendent Police concerned agreed with the opinion of the Prosecution Branch; which fact further supports the question that the opinion in question was expressed by the appellant in good faith. It could by no means be visited with any punitive action.
9. For the reasons mentioned above, the impugned order of 6‑11‑1990 is set aside in acceptance of the appeal. There will be no order as to costs.
A.A./743/Sr.F Appeal accepted.