HAKIM KHAN Versus INSPECTOR-GENERAL OF POLICE, ISLAMABAD
SYED ALLY MADAD SHAH (CHAIRMAN).‑ ‑‑Appellant Hakim Khan was a Head Constable in the Special Branch of Islamabad Police, Islamabad. He was dismissed from service vide order dated 12‑12‑1989 made by the Superintendent of Police, Special Branch, Islamabad. After dismissal of his departmental appeal by the Inspector‑General of Police, Islamabad, as per order communicated under endorsement dated 28‑6‑1990, he preferred this appeal on 26‑7‑1990.
2. The facts in the background in the imposition of the punishment on the appellant and the proceedings taken against him are stated in the impugned order dated 12‑12‑1989 of dismissal of the appellant from service made by the Superintendent of Police, Special Branch, Islamabad, which is reproduced in extenso:
"OFFICE OF THE SUPERINTENDENT OF
POLICE, SPECIAL BRANCH, ISLAMABAD
O R D E R
The Head Constable Hakim Khan No.1580 was posted in Special Branch, Islamabad. On 13‑9‑1989, the case F.I.R. No. 128, dated 13‑9‑1989 under section 16/18 Hadd Zina 170/P.P.C. was registered against him at Police Station Industrial Area on the complaint of Mst. Mobcena (15/16 years) daughter of Muhammad Yousaf, caste Guryal r/o Kala Bagh Police Station Donga Gali, District Abbottabad, presently residing at House No. 7, Block No. 59, Sector I/10/3, Islamabad. She stated while. recording the FIR that on 12‑9‑1989 at 3 p.m. she along-with her cousin Sameena (12/13 years) went to rear side of Sitara Market in a Jungle. Meanwhile the defaulter Head Constable came there. He posed himself to be a Police Inspector. At that time his co‑accused namely Tariq Mahmood s/o Abdul, caste Awan r/o House No. 280/A, Sector G‑7/3, Islamabad was also accompanying him. They took them to Police Lines Sector H‑11 in Quarter No. 2/C in a car bearing No. LHR/5185 on the pretext of handing them over to `Darulaman'. The Head Constable and his companion put them in the quarter and locked up the same from outside. After that they went away. Later on when the Head Constable and his companion returned and opened the lock they were apprehended by the Police of PS/Industrial Area and the above-said case got registered against them. Beside above, the defaulter Head Constable was also found absent from his duty on 13‑9‑1989. The SSP/Islamabad sent the incident report vide his Office No: 8951/C, dated 26‑9‑1989 whereupon the defaulter HC was placed under suspension vide No. 3071‑73/SP(SB), dated 18‑9‑1989. On 1‑10‑1989 he was served with a show‑cause notice vide this Office No. 3275/SP(SB) on the grounds of absence from the duty and involvement in the criminal case mentioned above.
The defaulter HC denied the charges leveled against him and submitted his written reply in this regard. He was also given opportunity for personal hearing on 28‑10‑1989. His written reply and verbal submissions were not found satisfactory and he failed to put forward any plausible explanation in his favour.
His plea is not acceptable as he was caught red handed from the place of occurrence where he had confined/locked up the girls and in this way his absence from duty place is also proved beyond reasonable doubt.
In the circumstances mentioned above he is found guilty of gross misconduct and indiscipline. He is, therefore, dismissed from service with immediate effect as laid down in PR (E&D) Rules, 1975. His period of suspension is treated as leave without pay. Order announced in his presence.
(Sd.)
RAZA AHMED KHAN,
Superintendent of Police,
Special Branch, Islamabad.
No. 4050‑54/SP (SB), dated 12‑12‑1989.
Copy to:
(1) The Inspector‑General of Police, Islamabad. .
(2) The Superintendent of Police, Hqrs., Islamabad.
(3) The Dy. Superintendent of Police, Special Branch, Ibd. with reference to his Office No. 20899/SB, dated 27‑9‑1989.
(4) The OB/OSI, Islamabad.
(5) Person concerned."
3. The impugned order of dismissal of the appellant from service has been assailed on the grounds that criminal case in respect of the same charge was registered against the appellant on 13‑9‑1989 and departmental proceedings could not have been initiated against him without the order of the District Magistrate as per Rule 16.38 of the Punjab Police Rules, 1934; and even otherwise, the punishment of dismissal from service without holding regular inquiry into the charge against the appellant was uncalled for. The learned counsel for the appellant has cited several cases in support of aforesaid submissions. It has also been contended that the original order as well as the appellate order were made by the, same person, namely Mr. Raza Ahmad Khan, Superintendent of Police. The learned counsel also urged that the department had referred the case to the Justice Division for opinion and that Division had advised that the appellant was not liable to have been awarded punishment without holding inquiry against him.
4. The respondents have resisted the appeal, contending that the action against the appellant was taken under the Punjab Police.(E&D) Rules, 1975 as adopted, and no inquiry was required to be conducted as punishment could be awarded by adopting summary procedure of issuing show‑cause notice. They have taken the stand that Rule 16.38 of the Punjab Police Rules, 1934, relied upon by the appellant, is contained in the chapter of punishments which stands repealed by the Punjab Police (E&D) Rules, 1975. According to them, the filing of the criminal case and even the acquittal of the appellant by the Criminal Court did not stand in the way of the departmental proceedings.
5. The first question to be resolved is whether the appellant was governed in the disciplinary matters by the Punjab Police Rules, 1934 or by the Punjab Police (E&D) Rules, 1975. The appellant is an employee of Islamabad Police Force. Islamabad Police has adopted Punjab Police (E&D) Rules, 1975 vide Notification dated 26‑1‑1981. Evidently, he is to be governed by the provisions of the aforesaid Act and the Rules. It is specifically mentioned at Rule 15 of the said Punjab Police (E&D) Rules, 1975 that any disciplinary rules, previously applicable to Police Officers to whom the said Rules, are applied stood repealed. The Punjab Police (E&D)S Rules, 1975 are applicable to the Police Officers below the rank of Deputy Superintendent of Police as laid down in clause (2) of Rule 1 of the Rules. The appellant being a Head Constable of Police, a subordinate rank below that of the Deputy Superintendent of Police is, therefore, governed by the said Rules of 1975 so far the disciplinary matters are concerned. Therefore, the Chapter XVI of the Punjab Police Rules, 1934 relating to punishments spread over Rules 16.1 to 16.41 stands repealed in respect of Police Personnel below the rank of the DSP in respect of the departmental actions. Rule 16.38 of the Punjab Police Rules, 1934 relied upon by the learned counsel for the appellant to canvass the proposition that the departmental proceedings could not be taken against the appellant without the order of the District Magistrate is of no avail to the appellant.
6. As discussed above, the departmental action was to be taken against the appellant under the Punjab Police (E&D) Rules, 1975 (hereinafter referred to as the 1975 Rules). The procedure for awarding punishments is laid down under Rule 6 of the Rules, which provides that the punishment proceedings would ordinarily be of three types, i.e. (a) Summary Police proceedings (b) General Police proceedings and (c) Special Police proceedings. It would be worth‑while to reproduce Rule 6 of 1975 Rules in extenso:
"6. Punishment proceedings.‑ ‑‑The punishment proceedings will ordinarily be of three kinds, i.e. (a) Summary Police Proceedings, (b) General Police Proceedings and (c) Special Police Proceedings, for which the procedure shall be as under:‑
(1) The authority shall decide on the facts of each case whether procedure of Summary or General Proceedings shall be adopted;
(2) In case the authority decides that the misconduct is to be dealt with in Police Summary Proceedings, it shall proceed as under:‑
(i) The accused officer liable to be dealt with in the Police Summary Proceedings shall be brought before authority in an Orderly Room.
(ii) He shall be apprised by the authority, orally, of the nature of the allegation against him. The substance of his explanation for the same shall be recorded and if the same is found unsatisfactory, he may be awarded one of the minor punishments mentioned in these rules.
(iii) The authority conducting the Police Summary Proceedings may, if deemed necessary, adjourn them, ordinarily, for a maximum period of 7 days.
(3) If the authority decides to hold General Police Proceedings, the procedure shall be as under:‑
(i) The authority shall determine whether in the light of facts of the case or in the interests of justice, a departmental inquiry through an Inquiry Officer is necessary, if it decides that it is not necessary, it shall‑‑
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and
(b) give him a reasonable opportunity of showing cause against that action:
Provided that no such opportunity shall be given when the authority is satisfied that in the interest of security of Pakistan or any part thereof, it is not expedient to give such opportunity.
(4) If the authority decides that it is necessary to have departmental inquiry it shall appoint for this purpose an Inquiry Officer, who is senior in rank to the accused.
(5) On receipt of the findings of the Inquiry Officer or where no such officer is appointed, on receipt of the explanation of the accused, if any, the authority shall determine whether the charge has been proved or not. In case the charge is proved, the authority may award one or more of the punishments which, as per Schedule, it is competent to impose."
7. The appellant was proceeded against in the manner envisaged under sub‑rule (3) of Rule 6 and the authority adopted the Summary Procedure provided under sub‑clause (a) of clause (i) of sub‑rule (3) and served on the appellant show‑cause notice dated 1‑10‑1989, which is Annexure `C' at page 13 of the memo of appeal. The appellant submitted undated reply (Annexure `D' at page 14) wherein he denied the allegations and alleged false implication due to enmity and also took the plea that he could not be proceeded against departmentally without the order of the District Magistrate, relying on the provisions of Rule 16.38 of the Punjab Police Rules, 1934. The authority, who was the Superintendent of Police, Special Branch, did not believe the reply of the appellant and proceeded to impose on him the punishment of dismissal from service. The appellate authority, who was the Inspector‑General of Police, upheld the order of the Superintendent of Police, Special Branch. Of course, sub‑rule (3) of Rule 6 of 1975 Rules confers discretion on the authority to determine whether a departmental inquiry in the light and facts of the case or in the interest of justice is necessary and then proceed accordingly. But this discretion has to be exercised keeping in view the facts of the case and the interest of justice. In the instant case, the charge against the appellant was that he had wrongfully confined in his quarter two young girls by names Mst. Mobeena d/o Muhammad Yousaf and Sameena, with the connivance of one Tariq Mahmood s/o Abdul, and he was hauled up and a case was registered against him. The appellant made denial of the allegations and alleged false implication. It was, therefore, a case where regular inquiry should have been held by recording statements of the victim girls and also those of the witnesses who had detected the appellant confining the girls. Since the matter was under investigation on registration of the crime, the just course to have been adopted was that either result of the investigation should have been awaited and in case the case was sent up to the Court the verdict of the Court should have been awaited or regular inquiry could have been started simultaneously and if the charge was proved against the appellant at the departmental inquiry, appropriate punishment could have been awarded; but it was not a case for taking decision by adopting summary procedure by only issuing a show‑cause notice. No doubt, the charge against the appellant was such that action in the matter should not have been postponed but at the same time the departmental proceedings should not have been resorted to in a manner as to have deprived the appellant of putting up his defence. Resultantly the order of dismissal of the appellant from service is not sustainable and it is set aside by allowing this appeal. The appellant shall be entitled to reinstatement in service. The authority may consider desirability of taking fresh proceedings against the appellant. Of course, keeping in mind the judgment in the criminal case. The question of monetary benefits for the period the appellant has remained out of job in pursuance of the order set aside hereby will be decided by the authority.
A.A./679/Sr.F Appeal accepted.