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Writ Petition No. 757 of 1980, decided on 7th December 1980.

‑‑‑ S. 4 read with Constitution of Pakistan (1973), Arts. 199 & 212 -Service matters of civil servants‑Ouster of jurisdiction of High Court‑Absolute if necessary jurisdictional facts obtainable‑High Court entitled to go through to satisfy existence of certain facts Order passed without jurisdiction‑Void‑Not beyond jurisdiction of High Court‑Inspector‑General of Police‑Empowered to call for record of awards in disciplinary proceedings against Police Officials Award‑ leans only punishment and not acquittal‑Inspector‑General not competent to call for record of acquittal‑Case of Police Official acquitted by Deputy Inspector‑General of Police called for and proceedings re‑opened by Inspector‑General of Police without notice to official‑Action of Inspector‑General in circumstances, held, not only without jurisdiction but violative of rules and principles of natural justice‑Such order, further held, not a final order covered by S. 4 of Punjab Service Tribunals Act, 1974‑Not hit by bar contained under Art. 212 of Constitution of Pakistan (1973)‑Impugned order declared as without lawful Authority and of no legal effect by High Court on Writ Petition under Art. 199 of Constitution of Pakistan‑Punjab Civil Servants Act (VIII of 1974), S, 15 read with Punjab Police (Efficiency and Discipline) Rules, 1975, r. 12.

Mujeebullah Aijaz v. D. G. T. & T. Department P L D 1980 Quetta 58, Atta Muhammad Qureshi v. S. C. P L D 1971 S C 61; Muhammad Tufaul v. Abdul Ghafoor etc. P L D 1958 S C (Pak.) 201 ; Ramzan v. Rehabilitation Commissioner P L D 1963 Lah. 461 and Mst. Kaniz Fatima v. Member (Revenue) P L D 1973 Lah. 495 rel.

Yasmin Qureshi's case P L D 1980 S C 22 ; Raja Muhammad Sadiq v. WAPDA P L D 1978 Lah. 738 and Afzal Hussain Syed v. Government of Punjab P L D 1980 Lah. 697 ref.

Muhammad Sadiq for Appellant.

S. M. Zubair, A. A.G. for Respondent.

Date of hearing : 29th October 1980.

The petitioner who was working as S. H. O., Khudian, received a notice on 19th March, 1979, from the Superintendent of Police, Kasur, to show cause in respect of allegations of corruption and misconduct. He submitted his reply denying the charges. The Superintendent of Police, Kasur, found that though the charge of corruption had not been proved, yet the petitioner did misconduct‑ himself. Consequently, he while proceeding under rule 6 of the Punjab Police (Efficiency and Discipline) Rules, 1975, reduced him to the rank of an Assistant Sub‑Inspector vide his order dated 10th April. 1979.

2. The petitioner took an appeal. It was accepted by the Deputy Inspector‑General of Police, vile his order dated 12th September, 1979, with the result that he was exonerated. As his name had, in the meanwhile been removed from list F' by the Inspector‑General of Police, as a result of the order of the Superintendent of Police, the petitioner made a representation to the Inspector‑General to restore his name. The Inspector‑General summoned the petitioner for interview on 5th November, 1979. It is the case of the petitioner that the Inspector‑General orally ordered the Superintendent, Police (Legal) that the name of the petitioner be brought on the list F. The S. P: (Legal) has denied the same in his comments. The petitioner further stated that after he left the room of the Inspector‑General, the same Superintendent of Police who had charged him entered and got the decision changed behind his back.

3. On 8th January, 1980, the petitioner received a fresh charge‑sheet containing the same allegations of which he had been exonerated. He submitted his reply again but no further proceedings are stated to have been taken on it. It was at that time that the petitioner, allegedly, came to know that the Inspector‑General of Police had, in exercise of his suo motu revisional jurisdiction, under the Punjab Police (Efficiency and Discipline) Rules, 1975, vacated the order of the Deputy Inspector‑General of Police, on 26th November, 1.979, to issue a fresh charge‑sheet and proceedings referred to above.

4. It is contended by the learned counsel that as the appeal of the petitioner had been accepted by the Deputy Inspector‑General of Police, the Inspector‑General of Police could not pass any order against him without issuing a notice and bearing him. It is further stated that the hearing given by the Inspector‑General on 5th November, 1979, was only on the represent ation made by the petitioner and not in pursuance to any suo motu procee dings.

5. Before reverting to the merits of the case, the learned Assistant Advocate‑General raised a preliminary objection. He referred to Article 212 of the Constitution read with the Service Tribunal Act to say that as the writ petition pertained to terms and conditions of the petitioner, the exclusive jurisdiction lay with the Service Tribunal and, therefore, the jurisdiction of this Court was barred. He relied on Yasmin Qureshi's case (P L D 1980 S C 22) in support of this plea and referred to Mujeebullah Aijaz v. D. G. T. & T. Department (P L D 1980 Quetta 58) to say that the rule laid down therein does not cover the case of the petitioner. Another case Raja Muhammad Sadiq v. WAPDA (P L D 1978 Lah. 738) was also cited. He also relied on Afzal Hussain Syed v. Government of Punjab (P L D 1980 Lah. 697) wherein I took the view that the ouster under Article 212 of the Constitution is absolute if the necessary jurisdictional facts are obtainable. Further, as the ouster under Article 212 also depends on certain facts, this Court would be entitled to go through the same to satisfy that the same do exist.

6. It is to be noted that the Inspector‑General a Police set aside the order of the D. I. G. He acted under rule 12, which reads as under :‑

"12. (i) The Inspector‑General, Additional Inspector‑General, a Deputy Inspector‑General of Police, or 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.

(ii) If an award of dismissal is annulled, the officer annulling it shall state whether it is to be regarded as suspension followed by re‑instatement, or not. The order should also state whether service prior to dismissal should count for pension or not.

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

7. Rule 12 (i) shows that the Inspector‑General can call for the records of awards made by his subordinates and confirm, enhance, modify or annul the same or make further investigation or direct such to be made before passing further orders. Rule 6 deals with the punishment proceedings and notes three different kinds of procedures. Rule 6 (2) dealing with the Police Summary Proceedings lays down in clause (ii) that if the explanation of the accused is unsatisfactory he may be awarded minor punishment. Rule 6 (3) (4) deals with General Police Proceedings. Rule 6 (5) provides that in case charge is proved, the authority may award one or more of the punishments. The same is the case with regard to the Special Police Proceedings given in rule 9. It is stipulated in rule 9 (b) that the authority may award any of the punishments specified in section 7 of the Police Act, 1861.

8. The above resume makes it quite clear that the award is only of punishment and not of acquittal. Rather, the proceedings fall through if the authority finds that no case of awarding of punishment is made out. The power of the Inspector‑General to call for the records of awards thus means only record of such a case where punishment has been given and not the one where no case had been made out against an accused police officer. This conclusion is further supported by the contents of rule 12 (ii) and 12 (iii).

9. It will be seen that no constitutional guarantees or terms and conditions have been given to the civil servants. Article 240 of the Constitution provides that in the case of services of a Province and the posts in connection with the affairs of a province, the appointments to and terms and conditions shall be determined under Act of Provincial Assembly. Section 4 of the Punjab Civil Servants Act, 1974, lays down that all such appointments shall be made in the prescribed manner by the Governor or by a person authorised by him. Thus the question whether an officer is or is not the appointing authority would depend on the specific power under this section. Similar is the case with the power to terminate or retire from service under sections 10 and 12. Section 15 provides for disciplinary action in accordance with the prescribed procedure. Thus if rule 12 does not provide for calling for the records of acquittal or exoneration by the Inspector General his order will be void and inoperative, if he does so.

10. Again, even if it be accepted for the sake of argument that the Inspector‑General could call for the records of a case of exoneration, undoubt edly no specific notice as required by rule 12 (iii) was issued by the I.G. to say that he had decided to look into the legality, correctness or propriety of the order passed by the Deputy Inspector‑General. No such notice or communication has been produced. The interview of the petitioner with the Inspector‑General on 5th November, 1979, took place in pursuance to the representation of the petitioner so as to get his name restored on list F. It is, therefore, quite clear that the revisional order had been passed without affording an opportunity of hearing to the petitioner. As the impugned order is violative of even the principles set out in rule 12 (iii) of the Punjab Police (Efficiency and Discipline Rules. as well as the rules of natural justice, it is void. Reference be made to Atta Muhammad Qureshi v. S. C. (PLD 1971 SC 61). The contention that the record had been called for in this situation will be of no relevance.

11. It is to be noted and I feel no hesitation in agreeing with the learned Assistant Advocate‑General that if a valid notice had been given by the Inspector‑General to the petitioner and he had also considered that summoning of the record was not necessary, there would have been no illegality of a nature calling for interference, unless the petitioner was able to show any prejudice caused to his case. Be that as it may, the record has in fact been called in this case as there is a document dated 2nd December, 1979, on record produced showing that it was being sent back to the Deputy Inspector‑General.

12. After it is found that neither could the Inspector‑General call for the record of a case, in which a police officer had been exonerated, nor could be reverse the finding without a notice and opportunity of hearing, the proposition arising for determination is whether, this Court can exercise its constitutional jurisdiction in such a case It was held in Muhammad Tufail v. Abdul Ghafoor etc. (PLD 1958 SC (Pak.) 201) that a bar for lack of jurisdiction does not apply to a case where the order was void. The reason is that the order should not be deemed to have been passed under that law. The rule laid down by the Full Bench of Balochistan High Court in Mujeebullah Aijaz would also apply as the impugned order is without jurisdic tion and void.

13. Again, it will be seen that the impugned order of the Inspector- General was an order of remand. An appeal under section 4 of the Punjab Service Tribunal Act, 1974, lies against a final order whether original or appel late made by a departmental authority only. According to the judgment of the Full Bench of Baluchistan High Court referred to above, an appeal does no lie against an order which is not final. As the impugned order was an order of remand it was not a final order as the proceedings had rather been reopened. Reference be also made to the case of Ramzan v. Rehabilitation Commissioner (P L D 1963 Lah., 461) wherein a Division Bench of this Court held as under :‑

"We are of the opinion that even if it is assumed that the complaint is well founded (without deciding that it is so), since the error, if any, has not arisen in a final order but in an order of remand, it is not appropriate that, we should interfere with that order in a writ jurisdiction."

The same view was taken by another Division Bench in Mst. Kaniz Fatima v. Member (Revenue) (P L D 1973 Lah. 495).

In view of the above the bar contained under Article 212 of the Constitution does not operate in this case. The impugned order is, therefore, declared to be without lawful authority and of no legal effect. There will be no order as to costs.

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