ORDER SHEET
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Date Order with signature of Judge
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Present
Mr. Justice Muhammad Ali Mazhar
Mr. Justice Abdul Ghani Soomro
Fozia Noreen ………..… Petitioner
V E R S U S
Province of Sindh & others …………… Respondents
Date of hearing: 15.08.2016
Mr. Rafiullah, Advocate for the Petitioner.
Mr. Abdul Jalil Zubedi A.A.G.
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Muhammad Ali Mazhar, J: The controversy involved in this case is that petitioner is the daughter of deceased Muhammad Arif, who was Police Constable in Sindh Reserve Police Base-I, Baldia Town, Karachi, and died on 16.01.2008 when he was on earned leave. On 17.04.2008, he was issued a show cause notice under the provisions of Removal from Service (Special Powers) Sindh Ordinance, 2000 (RSO 2000). The allegation against him is reproduced as under:
“You PC:6008 Muhammad Arif, of SRP Base-I Baldia, Karachi, were proceeded on 60 days Earned Leave and due on 23.01.2008, but you failed to join your duty and marked absent w.e.from 23.01.2008 to till date, without any information or prior permission of the competent authority of the Base, as reported by Line Officer SRP Base-I Baldia, Karachi.
This act of yours amounts to gross misconduct on your part and renders you liable for a major penalty under the aforesaid ordinance.”
2. The learned counsel argued that it is an admitted fact that the petitioner’s father was on earned leave, but he was confined in Central Jail in some cases. However, he expired on 16.01.2008. In order to prove the exact date of death, he has attached the copy of report submitted by Superintendent Central Jail, Rawalpindi in the Court of Additional District & Sessions Judge, Gojar Khan in Crime No.705/2007. The copy of Death Certificate is also attached with report of Superintendent Central Jail, Rawalpindi produced in the Court in which also the date of death is 16.01.2008. The certified copy of one more order is available on record passed by the learned Additional District & Sessions Judge, Gojar Khan, whereby the proceedings against the petitioner’s father were abated and in this order too, the date of petitioner’s father’s death is 16.01.2008 in the Jail Hospital due to heart attack. The same order further reflects the Death Certificate of the accused. The learned counsel argued that the father of the petitioner was required to resume his duty on 23.01.2008, but due to his death it became impossible, while the show cause notice was issued after his death with the allegation that he failed to report on 23.01.2008 when he was no more in this world. He further argued that due to this illegality or irregularity, entire dismissal order as well as the proceedings are unlawful and the deceased’s family is entitled to claim all the full and final settlement dues of the deceased Muhammad Arif till the date of his death.
3. The learned A.A.G. was confronted with these documents and he is also of the view that the allegation is non-reporting on 23.01.2008, but he pointed out to us an order dated 07.12.2012 when the learned Division Bench of this Court, after reducing some controversy, appointed Mr. A.D. Khawaja, the then D.I.G. to enquire into the alleged date of death of accused employee. According to the learned A.A.G., the date of death of the petitioner’s father is 01.06.2009, therefore, the show cause notice was in his life time. On the contrary, the documents produced before us are showing date of death as 16.01.2008. We have also seen the report submitted by the then D.I.G., but we do not find out any cogent justification on the basis of which the inquiry officer reached to the conclusion that the date of death was 01.06.2009. Apparently, three documents produced before us clearly speak of the actual date of death in which one of the documents is the certified true copy of the Court order through which the proceedings were abated. Therefore, in our view, all these relevant documents should have been considered and the report should have been called from the concerned Jail to decide the controversy properly. In view of the above, this petition is disposed of in the following terms:
(a) Since earlier inquiry was conducted by Mr. A.D. Khawaja, who is now Inspector General of Police, Sindh, he is directed to conduct de novo inquiry and consider the relevant documents which we have already pointed out in this order showing the actual date of death and after providing opportunity of hearing to the petitioner, decide the matter within two (2) months. The petitioner may also produce all other documents which she feels necessary and relevant to prove the date of death.
4. The Inspector General of Police, Sindh will submit the compliance report to this Court through office of Advocate General, Sindh. Copy of this order be transmitted to the learned A.A.G. as well as the Inspector General of Police, Sindh, for compliance.
5. If during inquiry it is found out that the father of the petitioner expired on 16.08.2008, then the I.G. Police, Sindh will pass necessary order for the payment of full and final settlement dues of Muhammad Arif including pensionary benefits in accordance with law.
JUDGE
JUDGE
Asif