Farman Ali Vs Provincial Police Officer/ IGP at CPO peshawar

JUDGMENT SHEET

PESHAWAR HIGH COURT, MINGORA BENCH

(DAR-UL-QAZA), SWAT

(Judicial Department)

W.P No. 1179-M/2023

Farman Ali

—Versus— Provincial Police Officer/IGP at CPO, Peshawar and others Date of hearing: 25.09.2025

PRESENT:

Muhammad Javaid, Advocate for petitioner.

Mr. Rahimullah Chitrali, Assistant A.G. for respondents.

JUDGMENT

QAZI JAWAD EHSANULLAH, J.- The petitioner, through instant petition, has invoked the constitutional jurisdiction of this Court seeking the following relief:

“It is therefore, humbly prayed that on acceptance of this writ petition:

Firstly, the impugned termination order dated 5/7/2022, my be set aside and the petitioner may be reinstated in service from 24/11/2021 with all service back benefits. Secondly, the respondents may also be directed to regularized, the service of petitioner as per the Khyber Pakhtunkhwa Special Police Officers (Regularization of Services) Act 2019 issued on 08/10/2019. Any other remedy which has not specifically been prayed for and to which the petitioner is entitled may also be granted in favour of petitioner.”

2.Briefly stated, the petitioner was appointed as Special Police Constable vide order dated 08.01.2009 and served for nearly a decade when his services were terminated by the District Police Officer, Swat (respondent No.3) through order dated 01.02.2019 on the allegation, Tajamul/CS | DB: Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

based on a complaint, that he had received a bribe of Rs.500/-. Feeling aggrieved, the petitioner preferred an appeal/application before the Regional Police Officer, Malakand Division (respondent No.2). He repeatedly inquired about the outcome of his appeal but was kept uninformed, until he was belatedly handed over the order dated 16.08.2019 whereby his appeal had been dismissed without timely communication to him. Consequently, the petitioner instituted W.P No.845-M/2020 before this Court.

His writ petition, along with several connected petitions, was decided vide consolidated judgment dated 24.11.2021, wherein this Court held that the principle of audi alteram partem had not been observed and the petitioners, including the present one, had not been afforded a proper opportunity of hearing. The writ petitions were disposed of in the following terms:

“9. We, in the circumstances, set aside all the orders impugned in the writ petitions mentioned above and direct that all the respective petitioners shall be restored on same terms and conditions on which they had been serving prior to their termination. The respective competent authorities may if so desire, conduct fresh inquiries against the petitioners wherein they shall also be confronted with the allegations leveled against them and should also be provided opportunity of hearing. Thereafter the competent authorities would be at liberty to pass any appropriate orders. Since the petitioners have not served the department during the intervening period, therefore they are not granted any back benefits. All these constitutional petitions are accordingly disposed of.” (Underlining added)

Tajamul/CS | DB: Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Following the said judgment, the petitioner approached the respondents seeking his reinstatement but to no avail. He was, therefore, constrained to move an application before this Court for implementation of the judgment. Meanwhile, respondent No.3 issued a fresh termination order dated 05.07.2022, again dispensing with the petitioner’s services. According to him, he became aware of this subsequent termination order only when the respondents produced it along with their reply before this Court. It is in this backdrop that the petitioner has filed the instant petition.

3.In response, respondent No.3 has filed his official comments wherein he has pleaded that the petitioner was removed from service after conducting proper inquiry in accordance with law, therefore, he is not entitled to any relief.

4.Arguments heard and record perused.

5.The record reveals that the petitioner’s services were initially terminated on 01.02.2019 on the allegation of having received illegal gratification from one Umar Zarin.

His departmental appeal having failed, he approached this Court through a writ petition which was decided on 24.11.2021 along with other identical petitions. This Court directed the respondents to reinstate the petitioner on the same terms and conditions and, if so desired, to conduct a Tajamul/CS | DB: Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

fresh inquiry against him. Acting upon these directions, the department again initiated inquiry proceedings and, on their conclusion, terminated the petitioner’s service vide order O.B. No. 93 dated 05.07.2022. During the second round of proceedings, the petitioner was issued a final show-cause notice dated 13.06.2022, the relevant extract whereof is reproduced below:

“........... As per secret information collected by SHO Sohrab Khan, that you have received illegal gratification (RS-500) from complainant Umar Zarin. You were called to the office of Enquiry Officer, However you could not produce cogent reasons regarding the charges leveled against you. The Enquiry Officer recommended you for Appropriate Punishment.

You are, therefore, served with this Final Show Cause Notice to show cause in writing within seven (07) days of the receipt of this notice as to why major punishment as mentioned in Rule-4 of Police Disciplinary Rules- 1975 should not be imposed on you. You should also state in writing as to whether you wish to be heard in person by the competent authority, your failure in this respect will be deemed that you have no defense to offer and ex-parte action will be taken against you.” (Emphasis supplied)

The petitioner duly submitted his reply denying the allegation of bribery. Nevertheless, he was terminated from service under the impugned order dated 05.07.2022. It is significant to mention that the concluding paragraph of the termination order, reproduced below, contains grounds entirely different from those in the show-cause notice:

“The SPO under report is a habitual absentee and does not take interest in his duty. He violates discipline and his efficiency is below average. His conduct is detrimental to discipline and his further retention in Police is bound to adversely affect attitude of other Tajamul/CS | DB: Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

personnel of the Force. Hence, I, Zahid Nawaz Marwat, PSP, District Police Officer, Swat being competent authority, am constrained to terminate his contract from the date of re-instatement i.e 29-12-2021.”

A bare reading of the above makes it abundantly clear that the petitioner was removed from service on grounds of alleged habitual absence, indiscipline and inefficiency, which allegations were neither mentioned in the show-cause notice nor subjected to any inquiry proceedings. The Enquiry Officer’s report too was premised largely on these extraneous considerations rather than the original charge of illegal gratification. Thus, the petitioner stood condemned on grounds for which he was never put to notice nor provided any opportunity of defence. The record further reflects that the respondents were unable to substantiate the bribery allegation; instead, unrelated and mala fide grounds were introduced merely as a pretext to justify his removal. Such action constitutes a clear departure from mandatory legal requirements, amounting to abuse of authority and violation of due process. The impugned order therefore reflects arbitrariness and mala fide exercise of power, and is amenable to judicial correction under this Court’s Constitutional jurisdiction.

The apex Court, while dealing with such like situations in Muhammad Ismail v. Government of Punjab through Tajamul/CS | DB: Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Secretary Law and Parliamentary Affairs Division, Lahore and others 1, laid down the guiding principles as under:

“7. Courts play a critical role in ensuring that penalties imposed on civil servants are just, proportionate, and lawful. Judicial review of disciplinary actions is essential in preventing arbitrary or excessive punishments while maintaining the integrity of the civil service. A key principle in judicial review is proportionality--the penalty must not be excessively harsh in relation to the offense. Courts frequently set aside penalties that are disproportionately severe, ensuring fairness in disciplinary actions. Similarly, courts apply the principle of rationality and reasonableness, which requires that disciplinary decisions be based on objective evidence and not be arbitrary or politically motivated. Another essential principle is procedural fairness (due process). Affected civil servants must be granted a fair hearing, and disciplinary proceedings must adhere to legal requirements. Due process ensures that no officer is unjustly penalized without being given an opportunity to present their defense. At the same time, courts must exercise judicial restraint and avoid undue interference with executive discretion. While judicial review is necessary to prevent abuse of power, courts must respect the autonomy of the executive branch in managing its employees. Judicial intervention should be limited to cases involving clear illegality, arbitrariness, or mala fide intent. Finally, courts must balance individual rights with the larger public interest. While it is imperative to protect employees from unfair treatment, judicial decisions should not undermine the broader objectives of maintaining an efficient and disciplined civil service. A well-functioning disciplinary system is essential for governance, and courts must ensure that their rulings do not compromise the effectiveness of administrative oversight. With this background we approach the present case.”

Likewise, in another more recent case of Faisal Ali v. District Police Officer Gujrat and another2, the

2025 SCMR 708

2025 SCMR 92

Tajamul/CS | DB: Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Supreme Court enunciated the principle in unequivocal terms that no civil servant can be penalized on grounds not disclosed in the show-cause notice. The relevant passage reads:

“7. No doubt, the employer, on any allegation of misconduct, can hold a departmental inquiry/ proceeding against the delinquent and even on some concrete grounds or reasons may dispense with the enquiry while recording reasons to do so and communicating the reasons to the accused person. The foremost step that triggers the enquiry is the show cause notice and statement of allegations sent to the accused person to respond for further proceedings and consideration. The departmental proceedings may be initiated on the basis of allegations contained in the show cause notice and not on the allegations which were never part of the show cause notice. The purpose of a show cause notice is to solicit a response explaining, with reasonable cause, why a specific action on a particular act of misconduct should not be taken against the employee. By and large, it is a well-defined and well-structured process designed to provide the alleged defaulter with a fair chance to respond to the allegations raised against him and explain his position within a reasonable timeframe, ensuring that he is not taken by surprise upon the culmination of the proceedings or subjected to any adverse action based on allegations which were never presented to him or where he was not allowed any opportunity to respond and defend himself. Therefore, in all fairness, the departmental action on account of any misconduct should be confined to the allegations mentioned in the show cause notice/ statement of allegations, and should not travel beyond its precinct because the accused of misconduct who is petitioner in this case was only liable to answer the allegations communicated to him in the show cause and had no supernatural knowledge to respond to the allegations not known to him. If this tendency or practice is appreciated and illegal departmental actions are reinforced or fortified by the Courts and Tribunal, then there will be a ludicrous state of affairs, and in a nutshell, the whole purpose of the provisions provided for disciplinary proceedings under the Civil Servants and Labour Laws will not only be redundant and superfluous, but will also be deemed to be Tajamul/CS | DB: Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

a sham; a feigned and mala fide exercise of power to victimize and get rid of the employee, by hook or by crook, without the due process of law and without observing the universal norms of natural justice.” (Underlining added)

In light of the above authoritative

pronouncements, it is evident that the impugned termination order cannot be sustained in law. It stands vitiated not only for having been passed on allegations beyond the show- cause notice and inquiry, but also for reflecting arbitrariness and mala fide intention, thereby warranting interference by this Court in exercise of its Constitutional jurisdiction.

6.As a sequel of the foregoing discussion, the petition in hand is allowed in the terms that the impugned termination order is set aside forthwith and the respondents are directed to reinstate the petitioner to his service.

Announced Dt:25.09.2025 Sd/-

JUDGE

Sd/-

JUDGE

Tajamul/CS | DB: Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah