SECRETARY TO GOVERNMENT OF N.W.F.P, And 2 Others vs SAIFUR REHMAN

ORDER

MUNAWAR AHMAD MIRZA, J.---This petition for leave to appeal is directed against judgment dated 11th August, 1996 passed by Service Tribunal, N.-W.F.P., Peshawar in Appeal No.742 of 1995.

2. Relevant facts briefly mentioned are that respondent was appointed as Constable in Police Department on 4th July, 1991. After completion of training, he was posted to C.I.D. Section of Police Department towards 7th April, 1992. The conduct and behavior of respondent was unsatisfactory, therefore, after necessary formalities, he was discharged from service vide order dated 25th November, 1993. Aggrieved from said departmental order, respondent Saifur Rehman had preferred Service Appeal No.210 of 1994 before Service Tribunal, Peshawar which was ultimately accepted on 31st of October, 1994, whereby he was reinstated with back benefits allowing option to hold departmental proceedings against him afresh. Petitioners thereafter, filed petition for Leave to Appeal No.42/P/1995 before this Court which was, however, rejected on 30th of May, 1995.

3. It may be seen that fresh departmental proceedings were commenced against respondent Saifur Rehman. Inquiry Officer was appointed who recorded statement of five witnesses.

Respondent was eventually found guilty of charges levelled against him and dismissed from service vide order dated 1st August, 1995. Departmental appeal submitted to Inspector-General of Police was not responded. However, feeling dissatisfied, respondent challenged the order regarding his dismissal through Appeal No.742 of 1995 before Service Tribunal, Peshawar. The appeal was accepted vide order dated 11th August, 1996 observing that respondent was not associated with enquiry proceedings, therefore, mandatory requirements of law were glaringly contravened. However, on reinstatement of respondent, option was left open to the petitioners for drawing against him departmental proceedings; afresh. The above-referred order of Service Tribunal has now been assailed through present petition for leave to appeal. Operative portion of said order is reproduced below:- "The Tribunal, would however, observe that since the accused/appellant was not associated with the inquiry proceedings and the inquiry report without fulfilling the procedural requirements which are mandatory in nature, is bad in the eyes of law and could not be made a basis for passing the impugned order. The legal procedural requirements that the appointment of Inquiry Officer, should be intimated to the accused and he should be associated with the inquiry proceedings and should be allowed also to get copies of a part of the proceedings or the enquiry report before final orders are passed has not been adopted and the impugned order based on it is not according to the relevant provisions of the laid down law and Government Service Rules.

In the circumstances, the Tribunal accepts the appeal, set aside the impugned order and reinstates the appellant in service from the date of his dismissal on the ground that the departmental inquiry was not conducted according to the relevant provisions of Police (E&D) Rules, with an option to the respondents to proceed afresh against the appellant on the same charges and conduct all the proceedings particularly the inquiry proceedings in accordance with the relevant rules and then final order in the case. Parties are left to bear their own costs. File be consigned to the record."

4. Heard arguments addressed by Mr. Fateh Muhammad, Advocate Supreme Court, for petitioners and Mr. Jan Muhammad Khan, AOR, appearing on behalf of respondent/caveator. Original record pertaining to enquiry was perused which clearly discloses that respondent was neither associated with enquiry proceedings nor allowed opportunity to cross-examine witnesses produced against him. Learned counsel for the petitioners made abortive attempt to support propriety of enquiry proceedings. We have no doubt that a person facing enquiry has right to be associated with its proceedings and entitled to impeach credit of witnesses produced against him through cross- examination. Obviously, enquiry proceedings and consequential order regarding dismissal of respondent suffer from inherent legal defects as rightly discussed by the Service Tribunal, Peshawar in the impugned judgment.

Record reveals that officers who have twice conducted enquiry in this case, were completely unaware about legal requirements. Their inefficiency and total ignorance from enquiry proceedings has entailed unnecessary litigation between the parties. The department normally should make sure that person being appointed as Inquiry Officer is fully conversant with relevant rules so that unwarranted harassm ent could be averted. It is noteworthy that Service Tribunal, in view of defects apparent on record while accepting the appeal and setting aside order of respondent's dismissal has left option open to the petitioner for holding enquiry against him, afresh. Therefore, we do not find any impropriety or error in the impugned judgment. Consequently, petition is dismissed and leave refused.