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Appeal No. 50 of 1977, decided on 6th August 1977.

‑‑ R. 16.28(3) read with Kashmir Service Regulations. Vol. II, Art. 32‑Maxim: Audi alteram partem‑Enhancement of punishment by reviewing authority passed without affording opportunity of showing cause to person affected‑Held, in direct violation of r. 16.28( ) and hence without legal effect‑Punishment, held further, could not be enhanced by reviewing authority, however higher without affording person concerned opportunity to show cause.

‑‑ Punishment‑Deputy Inspector‑General instead of applying his own independent judgment on application for review denying leave to appellant, referring matter to Inspector‑General and on latter's direction reverting appellant from post of selection grade constable to that of constable‑‑Deputy Inspector‑General having passed orders without applying his own independent mind and reviewing promotion order of appellant passed 10 years earlier, while considering review application for grant of furlough leave, order, held, passed without legal authority and of no legal effect.

B. A. Farooqi for Appellant.

Additional Advocate‑General for Respondents.

.‑Brief facts leading to this appeal may be stated as under :‑

The appellant, a Constable in Rangers Police, was promoted on 16‑21966 as Selection Grade Constable and later on further promoted tem porarily as Head Constable Rangers Police on 4‑1‑1973. These promotions were effected as he was considered the senior most and suitable for promotion.

However, vide Order Book No. 197 dated 25‑7‑1973 Commandant A. K. P. Rangers, respondent No., 3, reverted the appellant to the post of the Constable. Against this order of reversion the appellant filed an appeal to the Deputy Inspector‑General of Police HQ (Rangers), respondent No. 2, on 26‑7‑1973. While this appeal was pending he proceeded on one month's privilege leave on 26-7‑1973 after the expiry of which he requested for extension of the leave which was rejected. As he could not be served person ally ex parte departmental enquiry was held against him for being absent without leave and be was accordingly dismissed vide order Book No. 111 dated 15‑4‑1974 (copy Annexure 'A'). The appellant preferred an appeal against this order as well before respondent No. 2 who accepting the appeal of the appellant re‑instated him as Constable vide Order Book No. 56 dated 12‑10‑1974 loopy Anneaure 'B'). This appeal was accepted on the ground that the order was passed without charge‑sheeting the appellant and affording him any opportunity of being heard. However, respondent No. 2, while accepting the appeal, remarked that the appellant was also negligent on which account his annual grade increment for the period of one year was stopped. It was further ordered that the period of dismissal be treated as leave of the kind whichever may be found duo to the appellant.

Respondent No. 3 did not seem to be pleased with the direction of granting of leave to the appellant and therefore he addressed a letter to the inspector‑General of Police, respondent No. 1, requesting that the order of respondent No. 2 be reviewed and no leave be allowed to the appellant (copy of the letter Annexure 'C'). Respondent No. 1, however, did not agree with this suggestion and endorsed the decision given by respondent No. 2i He, therefore, directed respondent No. 3 to implement the order passed by respondent No. 2 in appeal (copy of direction Annexure 'D'). But while implementing this order, respondent No. 3, instead of granting the appellant furlough leave or leave on private affairs which was requested by the appellant, granted leave without pay for the period of ten months and 24 days (copy Annexure D/1), In the meantime the appeal preferred by the appellant against his order of reversion was accepted by respondent No. 2 on 18‑3‑1975 (copy Annexure 'E') vide order Book No. 58. Thereafter the appellant made another representation to respondent No. 2 that as his order of reversion had been vacated he may be promoted as Head Constable, being senior most in the cadre. Respondent No. 2 accepted this representation vide order Book No. 224 dated 5‑11‑1975 and directed that the appellant be promoted as Head Constable on the appearance of first vacancy in the cadre of Head Constables in accordance with the seniority (copy Annexure 'F'). This order was implemented and the appellant was promoted temporarily as Head Constable on 25= ‑19‑6 ride order Book No. 138 (copy Annexure 'G'). This having regained his previous position the appellant further represented to respondent No. 2 (copy Annexure 'H') that the period of his absence which wit counted as leave without pay by Respondent No. 3 may be counted as Furlough leave which, according to him. was due and was also the real purport of the order of respondent No. 2. This was the stage from where the reverse gear for the appellant started. Instead of deciding this representation himself, Respondent No. 2 sought directions from respondent No. 1 and on his direction, respondent No. 2 reverted' the appellant to the cost of Constable thereby cancelling order dated i8‑3‑1975 by which the appellant bad been re‑instated as Selection Grade Constable (copy of order Annexure 'I'). Then the appellant submitted a review petition before respondent No. 1 which was dismissed on 19‑3‑1977 vide Order Boot No. 87 (copy Annexure 'K'). As a consequence the appellant was reverted to the post of Constable vide Order Book No. 65 dated 24.3‑1977 (copy Annexure 'L').

It is against these two orders (Annexure 'I' and Annexure 'L') that the present appeal has been lodged before this Tribunal.

2. The two pronged attack directed against the impugned orders is that :‑

(i) while passing the impugned orders neither Respondent No. 1 nor Respondent No. 2 afforded the appellant any opportunity of showing cause either personally or in writing againt his demotion as a Constable.

(ii) That the order passed by respondent No. 2 on the direction of respondent No. 1 is illegal since respondent No. 2 who was seized of the review petition did not exercise his own Independent judgment and rather acted on the directions of respondent No. 1 before whom no review proceeding were pending.

3. We have heard the learned counsel for the appellant and the learned Additional Advocate General. The stand taken by the learned Additional Advocate‑General is that there was no need of affording the appellant an opportunity of showing cause against the infliction of the intended punishment of demotion as the appellant had fully placed his cue before the concerned authorities. That this argument is not available as is clear from Police Rule 16.28 (1) and (3) of the Police Rules. They read as :

"16‑2d. Powers to review proceedings.‑(1) The Inspector‑General, a Deputy Inspector‑General and a Superintendent of Police may call for the records of awards made by their subordinates and confirm, enhance, modify, or annul the same, or make further investigation or direct such to be made before passing orders.

(2) ..............

(3) In all cases in which officers propose to enhance an award they shall before passing final orders, give the defaulter concerned an opportunity of showing cause, either personally or in writing, why his punishment should not be enhanced."

A cursory glance at rule 16.28 (3) leaves no doubt that in all cases where reviewing authority, be it the lower or the higher, proposes to enhance punishment passed on a personnel of Police Force such personnel must be afforded an opportunity of showing cause against the intended enhancement before the punishment can be enhanced. This is a mandatory provision and in .A consonance with the principle of audi alteram partem. Therefore any enhance ment of punishment by a reviewing authority passed without affording the concerned person an opportunity of showing cause will be in direct violation of rule 16.28 (3) and as such without any legal effect. Learned counsel for the appellant has also referred to Article 32, K. S. R. Volume II which, inter alla, contains a similar provision of an opportunity of showing cause before any punishment can be inflicted on a Civil Servant. But since the Punjab Police Rules have been adopted in Azad Kashmir we need only rely on rule 16.28 (3) of the Police Rules.

There is no denying the fact, and it is not even controverted, that the appellant was never afforded any opportunity of showing cause before the passing of the impugned orders resulting in the demotion of the appellant to the post of a constable.

These orders were passed behind appellant's back without hearing him or affording him an opportunity of being heard and as such are not sustain able in law.

4. So far as the second objection is concerned we find it also quite forceful. It is true, as contended by the Additional Advocate‑General that under rule 16.28 (1) the Inspector. General of Police (respondent No. 1) had also the powers of reviewing the orders of promotion passed in favour of the appellant. This is not denied by the learned counsel for the appellant. But his plea is that as no review proceedings were pending before the Inspector‑General of Police, and rather they were lying for over a period of one year with the Deputy Inspector‑General of Police, the Deputy Ins pector‑General could neither seek, nor the Inspector General issue, the directions concerning the enhancement of the appellant's punishment. As the review petition against the denial of leave was pending before the Deputy Inspector‑General, he alone, in our view, by applying his own independent judgment, could accept or reject the application. But what he did was that instead of deciding the review petition himself he obtained a direction from the Inspector‑ General of Police and according to the direc tion reverted the appellant to the post of a Constable from that of the Section Grade Constable. Thus this order passed by the respondent No. 2 suffers from the Incurable defect that he did not apply his own independent mind while passing the impugned order. An order passed by reviewing authority in compliance with the direction issued from a higher authority before whom no review proceedings are pending is not supportable in law. Even the review petition before respondent No. 2 was concerning the granting of the furlough leave and not for the review of the order of promotion of the appellant which had been passed over ten years before the passing of the impugned orders. It could not be explained as to how and on what grounds, while considering the review application for granting of furlough leave, the respondent reviewed the order of promotion of the appellant issued in the year 1966. No such proceedings, either before respondent No. 1 or respondent No. 2, were pending and as such this legal objection raised by the learned counsel for the appellant must prevail. We have also observed that while accepting the appeal of the appellant, respondent No.2 (vide Annexure 'B') bad clearly ordered that the period of dismissal may be treated as leave whichever kind was due to the appellant. But respondent No. 3, it seems was not pleased with this order and after failing to get it reversed by the Inspector‑General of Police, granted the appellant leave without pay. It was rightly pointed out by the Inspector‑General of Police that if furlough leave or leave on private affairs was found due to the appellant is should have been given so that no break could occur in the service of the appellant. But instead of following these directions respondent No. 3 treated the period of 10 months and 24 days of absence as leave without pay. This order if allowed to remain will naturally adversely affect the service prospects of the appellant.

We, therefore, for the reasons stated above, while accepting the appeal and it upsetting the impugned orders Annexures 'I' and 'L' direct that the appellant be re‑instated as Selection Grade Constable from the very date of his promotion as such and the period of his absence may be treated as leave on private affairs or furlough leave if found due to him. We pans no orders as to cost.

Appeal accepted.

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