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Petitioner: ALI AFSAR KHAN VS Respondent: AZAD GOVERNMENT OF THE STATE OF J & K
1984 P L C (C
1984 P L C (C. S.) 500
[Service Tribunal A J & K]
Present: Muhammad Ashraf Khan, Chairman and Kh. Abdus Samad, Member
Sardar ALI AFSAR KHAN
Versus
AZAD GOVERNMENT OF THE STATE OF J & K
Appeal No. 86 of 1978, decided on 12th December, 1983.
Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline). Rules, 1977‑
‑‑R. 6 (2)‑Enquiry conducted prior to initiating disciplinary pro ceeding without associating civil servant therein‑Can only be utilized for purpose of initiating disciplinary proceedings but cannot form basis for finding him guilty of charges‑Show‑cause notice served on basis of Report of Enquiry Commission‑Charges denied in detailed explanation ‑ Facts and interest of justice demanding that charges be enquired into and in absence thereof coming to correct findings on basis of show‑cause notice and reply thereto found highly impossible by Service Tribunal‑Resort to summary and shorter procedure of show‑cause notice by Authorised Officer, in circumstances, held, viola tive of rules‑Penalty of compulsory retirement by adoption of unlaw ful procedure, held, bad in law and unsustainable‑Reliance placed by competent authority on Report of Enquiry Commission enquiry whereof held in absence of civil servant prior to service of show‑cause notice, while passing penalty order, held, an error‑Impugned penalty order, in circumstances, set aside awarding re‑instatement with back benefits to appellant and directing fresh proceedings by competent authority in accordance with r. 6 (2)‑Azad Jammu & Kashmir Service Tribunal Act, 1975, S. 4.
P L D 1980 S C 211; P L D 1976 S C 538; P L D 1979 S C 711; P L D 1970 S C 435; AIR 1955 S C (Ind.) 166; AIR 1953 S C 404; A I R 1958 S C 538; P L D 1957 S C 157; P L D 1956 Lah. 865; P L D 1957 Kar. 1; P L D 1957 Dacca 1; P L D 1968 Kar. 88; A I R 1976 Boni. 394; A I R 1961 Orissa 113 and A I R 1952 Ph. 191 ref.
Raja Muhammad Hanif Khan for Appellant.
Addl. Advocate‑General for Respondent.
Dates of institution /hearing: 26th April, 1978/23rd, 25th and 26th June, 2nd, 3rd and 4th July, 1983.
ORDER
KH. ABDUS SAMAD (MEMBER). ‑ The appellant has made this appeal against Government Order No. S&GAD/P‑1 /397‑457/78, dated 29th June, 1978, under section 4 of the Azad Kashmir Service Tribunals Act, 1975, whereby the appellant has been compulsorily retired from service by the respondent.
By virtue of this appeal, the appellant prays for setting aside the above impugned order and restoration on to his original post with full pay and other benefits.
2. Briefly the facts of the case are that the appellant was serving as Deputy Inspector‑General of Police under the Respondent‑Government on 15th November, 1977, the appellant was sent on forced leave without assign ing any reasons. This action against the appellant was announced in a Press Conference by the Chief Executive.
Two Commission of Inquiry were set up by the Government under section 3 of the Commission of Inquiry Act, 1956, for the purpose of Inquiry and probe into the persistent public allegations of gross misuse, misappropriation, embezzlement, misconduct, nepotism, favouritism committed in respect of grants, funds and departments. The Police Department was also included in perview of Commission of Inquiry No. 2 headed by Brig. Muhammad Arif Khan. Relevant Order issued by the respondent is Annexure "A".
3. The appellant was once summoned by Lt.‑Col. Muhammad Safdar Khan (Member of Commission) and asked him to submit his written reply to certain allegations against him. Accordingly the appellant put in his reply on 25th February, 1978. He denied the truth of the allegations, saying that these were cooked up by Sardar Said Hassan Khan, D. I.‑G. (C) who was offended with the appellant for many reasons. Some of those reasons were mentioned by the appellant. The said D. I.‑G. was taking advantage of his relations with the Chief Executive. He had submitted a false report to the Chief Executive against the appellant vide his letter No. 34/SB/77, dated 10th November, 1977, without the knowledge of the I.‑G. P. and the Chief Secretary and had thus succeeded in getting the appellant sent on forced leave. After filing the above‑mentioned reply, the appellant never heard anything about the matter. The Commission did not record any evidence in appellant's presence, nor did it give him an opportunity of defending himself.
4. On 27th April, 1978, the Secretary Services and General Adminis tration issued a show‑cause notice to the appellant under rule 6 (b) in which it was stated that after considering report of Commission of Enquiry No. 2, the competent authority had decided to serve show‑cause notice under rule 6 (b) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, and Annexure "B" is reproduced below for ready reference.
No: S&GAD/7506/78
SERVICES AND GENERAL ADMINISTRATION DEPARTMENT,
AZAD GOVERNMENT OF THE STATE OF JAMMU KASHMIR, MUZAFFARABAD
To Dated 27th April,
1978. Mr. Ali Afsar Khan, D. I.‑G. Police (on leave) Upper Plate, Muzaffarabad.
Subject: ‑Show‑cause notice.
The competent Authority after considering the report submitted by Commission of Enquiry No. II as far as it pertains to you has decided to serve show‑cause notice under rule 6 (b) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 upon you, Mr. Ali Afsar Khan, D. I.‑G. Police (on leave) the following charges: ‑
(1) That for construction of your house at Muzaffarabad you took away 208 planks and 80 ballas of timber meant for despatch to other under‑construction buildings of Police Department, from Police Lines to the Site of your house under construction.
(2) That you illegally cut 6/ 7 `RETHA' trees from the house of Mr. Atta‑Ullah a clerk of your department.
(3) That you utilized skilled as well as unskilled police personnel during construction of your house.
(4) That you allowed sub‑standard recruitment of constables in the Police Department inasmuch as you condoned cases of 70 recruits during your tenure as D. 1.‑G. from 4/76 to 10/77.
(5) That you gave irregular and against rules promotions to many persons of your family to the rank of Head Constables and A. S. I's. Some of them are Mr. Zaffar Hussain, Mr. Nasir Ahmed, Muhammad Riaz and Sharaf Din of District Muzaffarabad, Poonch and Mirpur.
(6) That you made frequent postings without justification with the result that this action of your brought bad name to the department and it was assumed that you made postings on `Contract basis'.
(7) That you misused the Government Vehicle for private purposes.
(8) That there was an extraordinary re‑appropriation of Rs. 1,75,000 over and above the normal grant of Rs. 33,250 for secret expendi ture, during the years 1975‑1977. Besides, sum of Rs. 30, 530 and sum of Rs. 17,091.91 were also spent out of Police Welfare Fund and Imprest Account of the C. P. C., respectively, for secret purposes. No account has been maintained. Failure to maintain a detailed record of expenditure leads to the assumption that the fund might have been misused or embezzled by you.
(9) That you have acted as a party in the misuse of three (at times 4) Police vehicles when you signed for the user i.e. I.‑G. P. as the I.‑G. P. was, firstly, not authorised to use more than one vehicle at a time and, secondly, when he happened to be on casual leave or on holidays, he could not use the vehicle.
(10) That you have not only been careless in verifying entries but also signed a certificate for Rs. 94,290 in the capacity of 1.‑G. P. is, therefore, not valid and it can be assumed that the expenditure is irregular and might have been embezzled by you.
2 In the light of above charges you appear to be guilty of misconduct under rule 6 (b) of Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 and the competent authority proposes to award the penalty of dismissal from service and as such you are directed to show cause why you should not be dismissed from service as laid down in the aforesaid rules.
3. You are required to submit your reply to the undersigned within 7 days of the receipt of this show‑cause notice. If your reply is not received within the specified period it will be presumed that you have accepted the charges levelled against you and the case will be decided accordingly. After the issue of show‑cause notice you are not required to be heard in person under rules. However, to meet the ends of justice you can be heard in person for any clarification with regard to charges,, if you state so clearly in your reply to this notice.
(Sd.) (Khalil Ahmed Qureshi) Secretary, Services and General Administration Department."
5. The appellant replied the show‑cause notice, on 4th May, 1978 and also submitted another reply on 16th May, 1978 denying all the charges levelled against him and demanded proof of these charges. Appellant's replies on Annexure "C and D" are on the file, and will be referred to at the proper state of this judgment.
6. The appellant was granted interview by the Chief Executive, and was compulsorily retired from service vide impugned order Annexure `E' and reads as follows: ‑
"SERVICES AND GENERAL ADMINISTRATION DEPARTMENT, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR, MUZAFFARABAD
ORDER
"The President Azad Jammu & Kashmir after considering the report of Commission of Inquiry No. II, show‑pause notice given to and reply to the charges contained in the show‑cause notice submitted by Mr. Ali Afsar Khan and finding him guilty of misconduct and corruption under rule 6 (b) and (c) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, is pleased to order the compulsory retirement of Mr. Ali Afsar Khan, Deputy Inspector‑General of Police, Azad Government of the State of Jammu and Kashmir under rule 4 (b) (ii), with immediate effect.
(Sd.) S. Muhammad Ibrahim Khan Deputy Secretary, Services and General Administration
No. S&GAD P‑1/397/78, dated 29th June, 1978.
Copy to: ‑
(1) Secretary to the President, A J & K Government.
(2) Principal Secretary to the Chief Executive A J & K Government.
(3) Private Secretary to the Chief Secretary for Information of the Chief Secretary.
(4) All Secretaries to the Government of A J & K.
(5) All Heads of Departments A J & K Government.
(6) Accountant‑General of A J & K Government.
(7) Inspector‑General of Police A J & K.
(8) Mr. Ali Afsar Khan c/o Inspector‑General of Police A J & K Government.
(9) Deputy Secretary Election Cell.
(10) Superintendent, Government Printing Press for publication in the Government Gazette.
(Sd.) Deputy Secretary Services and General Administration."
7. The appellant submitted a review petition to the respondent vide Annexure `F' but with no success.
8. The appellant prays for setting aside of the impugned order on many grounds. Mainly the grounds of appeal are that the Commission of Inquiry No. 2 had no authority to deal with the civil disciplinary matters and the order under appeal could not be based on the report of the Commission. These proceedings were ex parte, secret and whimsical. Appellant was never beard and given no chance of cross‑examining the witnesses deposing against him. The adverse material on record was not shown to him. The report being in violation of natural justice, has no value. That the Commission of Inquiry No: II could not be set up under the Efficiency and Discipline Rules of 1977, and action under these rules can be taken only after following the same.
9. Finally, the appellant has challenged the impugned order on many other grounds as given in the memorandum of appeal.
10. The Additional Advocate‑General counsel for the respondent has denied the appellant's grounds of appeal. He has made a specific denial in para. 9, in the following terms.
Para. No. 9.‑The Government order appealed against was rightly issued as the appellant was found guilty of serious charges. He has prayed for dismissal of the appellant's appeal with costs.
11. Before proceeding further with the judgment we feel inclined to refer to the reply to the allegations against the appellant as Annexure "C". The said reply reads as under: ‑
Subject: Reply to the allegations against Ali Afsar Khan, D. 1.‑G. Police on leave.
"Kindly refer to your letter No. S & GAD/7506/78, dated 24th April, 1978 and itemwise reply as under: ‑
1.1 The timber that of the Deodar was purchased during 1974‑75 for the use in construction of Police Stations etc. It was then worked and converted into doors and windows in the Police Lines which were later on transported to various Police Stations outside Muzaffarabad: During this whole process Mr. Abdul Hassan Sub‑Inspector (quartermaster) of reserve Muzaffarabad Police Lines remained incharge of the project.
1.1 My house was constructed during 1968‑69 and extension repairs carried on in 1976 and the timber used was that Kail. The record of Police Lines would reveal that during the period no Ballas and planks were on their charge. As such the allegations levelled against me for taking away 80 Ballas and 208 planks becomes baseless. The record will be shown when heard in person.
1.2. I did not cut the trees from the house of Mr. Atta Ullah. The house of Mr. Atta Ullah is occupied by S. Zahoor Hussain Shah Superin tendent of Police and the fact can be verified from him.
1.3. It is incorrect that 1 used skilled/unskilled police personnel for construction of my house. Mr. Ali Zaman Malik Deputy Superin tendent Police Lines and many other Police Officers from police lines will prove my statement. The relevant record of the police lines can be produced as and when heard in person by the compe tent authority, which will unveil the truth.
1.4. D. I.‑G. Police is empowered by the Police Rules para. 12.15 Vol. II to fix a physical standard for initial recruitment as well as empowered to relax.
1.5. It is alleged that many promotions of Head Constables and Assistant Sub‑Inspectors police were made against rules benefiting own family. It may be pointed out that the said promotions were made against clear vacancies on merits and by selection in conso nance with the Police Rules para. 13.1 (1) and (2). The copy of the promotion order is enclosed. The very fact that the beneficiaries/ promotees belong to Districts Muzaffarabad, Poonch and Mirpur clarifies that they are neither my relatives nor my family is spread over whole of Azad Kashmir and Pakistan. Similar promotions were made by my predecessors and successors vide Orders No. 24 of 5th May, 1975 and No. 292 of 3rd August, 1976 (Copies enclosed).
1.6. Transfers/postings of police officers are made by the Inspector -General Police himself and the staff officer has just to issue the orders. The table attached will indicate that the pace of postings remained quite stable and slow during the period when I remained the staff officer. This policy was appreciated all over Azad Kashmir, and no `Safarish' was encouraged. The allegation that the postings were made on `contract basis' is in fact a challenge to my, known spottess past career. I say with full confidence that no individual of police department or public personnel can witness wherein I ever involved in bribery or money making affairs.
1.7 The Government vehicle was never misused. The log book of the vehicle will speak that the Government interests and the eco nomy has always been kept in view and at no occasion this principle was overlooked.
1.8. The Secret Fund is entirely the privilege of the Inspector‑General Police vide Government Order No. 435/50. In this case the amount was re-appropriated by the Inspector‑General Police with the consent of the Finance Department and by the approval of the Chief Secretary/Home Secretary and after proper Government orders. The secret fund account is maintained for the current financial year only and after the expiry of the financial year, a certificate is furnished by the Inspector‑General Police regarding the utilization of the funds to the Prime Minister Azad Kashmir for counter signatures. The same procedure was followed by the Inspector‑General Police in this case. This certificate is available with the Central Police Office. I do not come in any way regarding the utilization of the funds because the amount is drawn from the bank by the cashier/accountant of the Central Police Office and is dis bursed directly by him under the orders of the Inspector‑General Police. The amounts of Rs. 30,530 and Rs. 17,091/91 allegedly having been spent out of Police Welfare Fund and the imprest account of Central Police Officer for secret purposes does not hold true as per record held in the Central Police Office. This amount of welfare fund might have been spent by the Chairman, Welfare Funds and can be verified from his records wherein I cannot be held respon sible. The relevant record will be produced when heard in person by the competent authority. The certificates of Secret Funds expenditure are directed for 1975‑77 as provided by the appellant. Attested true copies on the file page 22 are repro duced below: ‑
"OFFICE. OF THE SECRETARY‑GENERAL AZAD KASHMIR GOVERNMENT
CABINET ORDER NO. 435/50, Dated 5‑11‑50
The Azad Kashmir Government is pleased to order that the Secret Service Grant shall be operated by the Inspector‑General of Police who will be competent to draw lump sum amount according to requirement. After utilization he will furnish a certificate that the amount drawn has been disbursed to the concerned person or persons and this certificate shall be countersigned by the Minister for Police Department. The names of payees shall not be required to be dis closed and the expenditure shall not be subject to audit.
(Sd.) Deputy Secretary‑General Cabinet Branch No. 3182‑86/Cab/50 Dated 13th November, 1950.
Note: In this year I was D. D. O. C. P. O. for 3J months' only from 17th March, 1976 to 30th June, 1976.
The above orders show that the Secret funds were utilized by I.‑G. P. and countersigned by the Minister Incharge of Police Department. The appellant got the order countersigned by the Prime Minister when he was not I.‑G. P.
1.9. The vehicles were used by the Inspector‑General Police for himself and for secret service purposes. Log Books were written by the incharge driver Mr. Mumtaz Sub‑Inspector Police and countersigned by me. The Staff Officer is responsible to sign log books as has been the past practice. Log books held in the Central Police Office can be seen. If the vehicles were ever misused or used for private purposes and the amount was not deposited under rules, the officer using the vehicles should be held responsible. As far as the log books reveal, the vehicles were used in the interest of the Government, which can be verified.
1.10. The account to amounting Rs. 94,290 were duly verified by the Inspector‑General Police on presenting the same to him by the accountant/cashier of the Central Police Office, and I was asked to sign on his behalf which was also countersigned by the Prime Minister Azad Kashmir. As stated vide item No. (8) above, the transaction/utilization of the secret funds have never been made through me so the assumption of embezzlement is not correct.
In the light of the above explanation, the allegations levelled against me are baseless, unfounded and biased, and do not amount to misconduct. It is prayed that accepting my explanation, the case may kindly be filed.
3. It is further prayed that to meet the ends of justice, I may be given an opportunity to be heard in person by the competent authority so that complete record with facts and figures is presented and explained. It is submitted that the allegations be proved lawfully before proceed ing further.
4. At the end it will not be out of place to mention that these allega tions have adversely affected my hard earned good reputation, princi ple of honesty, dedication to the mission of serving the country at large and uprightness during the 14 years of police service in Azad Kashmir. Not only all the present districts heads of administrations of districts Azad Kashmir but the serving personnel, common man and notables of the State will witness about my spotless past career. Throughout my service I could construct only one house after getting 45,000 house building advance which is still incomplete and has been time and again mentioned in the above allegations.
Hoping for justice with regards, Yours Sincerely, (Sd.) Ali Afsar Khan D. I.‑G. Police (on leave) Upper Plate, Muzaffarabad.
Dated 4th of May, 1978 Encl: 9 Copy forwarded:
To
The Inspector‑General of Police Azad Kashmir for favour of confirma tion of procedure, in force in the C. P. O., regarding item No. (8) & (9) above. '
(Sd.) Ali Afsar Khan D. I. G. Police on leave."
12. Annexure "D" is another explanation submitted by the appellant in his defence and is also mentioned for appreciation of the above charges levelled against the appellant.
"EXPLANATORY NOTE SHOWING ITEMWISE CLARIFICATION ALLEGATION AGAINST ALI AFSAR KHAN D. I.‑G. P.
Sir,
With reference to my reply to show‑cause notice submitted on 4th May, 1978 ; the Secretary S&GAD was kind to show me the enquiry report file except noting side, against me, it came to my knowledge on the said date that some evidences were produced against me before the Commission. In rebuttal of the above‑quoted evidences the applicant submits inter alia the records as follows i.e. item‑wise and preliminary. In the presence of Civil Servants Act, efficiency and discipline rules, K.S.R., Police Rules and other service laws, the Commission of Enquiry No. 2 report/ recommendation becomes unlawful and hence untenable. The reasons are quite clear. If at all it is conceded for the sake of arguments that the Commission was empowered, even then the so‑called enquiry made by the said commission, is illegal, mala fide, void and of no legal effect as against the rights of the applicant for the reason that the Commission did not afford me the oppor tunity of being heard or for giving defence evidence. Neither did it allow me to cross‑examine the so‑called witnesses produced against me. Even they did not attach my reply to the allegations with their report. In view of these facts the enquiry report1recommendations of the Commission become null and void ab initio: ‑
Clarification‑‑
(1) (i) Police Lines timber, meant for despatch to other under construc tion buildings of police department was that of "deodar" and kept there in the shape of ready made Doors, Windows and Ventilators. as such my taking away of 208 planks and 80 Ballas becomes absurd. A report from Q. M. Police Lines Records is attached please. Furthermore, the evidence recorded or attached with the file by the Commission itself refutes this allegation. The evidence says that shuttering (for wood) planks/Ballas was sent to my residence, This allegation is also refuted with the records of the Q. M, Police Lines already attached with my reply, dated 4th May, 1978 which clearly shows that even in this shuttering wood there were no planks on charge but only a few Ballas in the shape of "firewood" and nothing more. They were returned vide Q. M. receipt attached dated 30th July, 1977 for perusal please. Hence this part of the allegation also becomes untrue.
(2) The allegation on enquiry file against me is that I illegally cut 6/7 Retha trees from the house of Mr. Atta Ullah. The statement of Mr. Atta Ullah on the enquiry file against me itself clarifies that I did not cut the trees. Syed Zahoor Hussain Shah S. S. P. then was occupying the house, will make the position clear. Neither I cut the trees nor I asked any person to do so. As such I may not be held responsible for an act which was not done by me.
(3) Allegation of using skilled; unskilled men from Lines: One state ment in the enquiry file shown to be of one Gul Zaman indicates that he worked at my residence from 29th April, 1977 to 26th May, 1977 alongwith Sarwar Shah. But Daily Diary No. 12 (copy attached) shows that he was sent to I. G. P's. Official residence in 29th April, 1977 and returned from there on 26th May; 1977 vide Roznamcha No. 11 of 26th Mays 1977. These documents prove the statement of Gul Zaman to be false. Further in the same statement it is further stated that he again worked at my residence from 5th July, 1977 to 21st August, 1977. But Daily Diary No. 15, dated 5th July, 1977 shows he worked in the C.P. O. from 5th July, 1977 to 21st August, 1977 and sent back to lines vide D. D. No. 13, dated 21st August, 1977 copies attached for perusal please.
Vide D. D. No. 14, dated 26th June, 1977 in the enquiry file it is stated that One Luqman was posted at my residence but copy obtained from the police lines indicates that some constables were sent to the C. P. O. on guard
duties. As such the so‑called diary attached in the enquiry file proves to be false.
One Abdul Sattar states that be worked at my…
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