ZAHIR JAN and others vs PROVINCE through Secretary, Home and Tribal Affairs Department, Peshawar and others

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, J.-These petitions for leave to appeal have been filed against the judgment 3rd July, 2002 passed by N.-W.F.P. Service Tribunal, Peshawar whereby appeals filed by petitioners have been dismissed.

2. Briefly stating the facts of the case are that petitioners being employees of the Police Department were proceeded against for misconduct allegedly for the charge committed by them during the course of their service as they have stolen the smuggled articles, kept in the `Malkhana' and sold the same in the market. Department initially conducted a preliminary inquiry to gather information against them and subsequently by issuing separate charge-sheets, they were ordered to proceed under sub-rule (3), rule 5 of the N.-W.F.P. Police (Efficiency and Discipline) Rules, 1975 (hereinafter referred to as 'the Rules, 1975'). Deputy Superintendent of Police, Akora Khattak was appointed as Inquiry Officer. It seems that before final conclusion of the inquiry by him, Department decided to proceed against them under the summary police proceedings, according to sub-rule

(2) of rule 5 of the Rules, 1975 and on adopting the procedure laid down for such purpose, removed them from the service. Petitioners preferred service appeals, after completing all codal formalities for their reinstatement into service but without any success as vide impugned order their appeals have been dismissed. As such instant petitions have been filed.

3. Learned counsel for petitioners contended that under rule 5(2) of the Rules, 1975, if an employee of the Police Department has been proceeded against under summary police proceedings, the competent authority can only award them minor penalty. Whereas in the instant case by adopting summary procedure, petitioners have been awarded major penalties by dismissing them from service. When we confronted to Sardar Shaukat Hayat, learned Additional Advocate-General, N.- W.F.P. With his proposition, he stated that under the summary procedure, removal can also take place. In this behalf he made reference to rule 5(5) of the Rules, 1975.

4. We have heard parties' counsel and have also gone through rule 5(2) of the Rules, 1975, which is required to be read with rules 5(3) and 5(4) of the Rules, 1975 because only on receipt of the inquiry report, the competent authority can award major penalty, whereas in the instant case, admittedly no detail inquiry was conducted and the petitioners' cases were dealt with under rule 5(2) of the Rules, 1975. Therefore, in our view, major penalty was unwarranted. However, we are conscious of the fact that in view of the gravity of the nature of allegation, levelled against the petitioners, they being a member of disciplinary force and uniformed persons have committed theft of the property which was kept in `Malkhana', therefore, are required to be dealt with strictly in accordance with the procedure laid down under the law. As in instant case, department itself had initially decided to proceed against the petitioners by adopting procedure meant for detailed police inquiry and for that purpose---Deputy Superintendent of Police, Akora Khattak was also appointed as Inquiry Officer and petitioners were required to submit reply of the charge-sheet, therefore, it would have been proper for the department to have obtailed report from the Inquiry Officer and thereafter department should have proceeded against them according to rules. Learned Additional Advocate-General informed that detailed police proceedings have not therefore been initially decided because the Inquiry Officer i.e, Deputy Superintendent of Police, Akora Khattak was transferred,, for such reason summary police proceedings were followed. Be that as it may, even now the department is free to finalize the detailed police proceedings against the petitioners in terms of rule 5(3), (4) and (5) read with rules 6 and 7 of the Rules, 1975, because it is the duty of the department to probe into the matter according to rules to meet the ends of justice.

' Thus, for the foregoing reasons, instant petitions are converted into appeals and partially allowed to the extent that removal order of the petitioners from service dated 26th May, 2001 is set aside.

However, petitioners are directed to face detailed police proceedings for which the steps have already been taken. The department may conclude the detailed police proceedings, against the petitioners, expeditiously as far as possible within a period of three months. Parties are left to bear their own costs.