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Case No. 397/1852 of 1982, decided on 20th March, 1984.

‑‑ R. 6‑Proceedings against police servant‑Higher authority exercising powers of lower authority ‑ Held, can exercise such powers under Punjab Police (Efficiency and Discipline) Rules, 1975.

‑‑ R. 4 (b) (i)‑Officiating appointment ‑ Reversion amounting to reduction of rank‑Service of show‑cause notice‑Civil servant an officiating Sub‑Inspector, on charge of complicity with Head Constable dismissed from service on acceptance of illegal gratifica tion while investigating a murder case, reverted to lower rank on direction of D. I.‑G.‑Person not present at Police Station when alleged investigation took place and directions of D. I.‑G. imple mented straightaway without applying mind‑Civil servant, held, reverted on charge of inefficiency as well as complicity‑‑Such reversion, held further, amounted to reduction of rank necessitating service of show‑cause notice.

M. Ibrahim v. Government of Pakistan P L D 1972 S C 332 and Safdar Muhmood's case P L D 1983 S C 100 ref.

Mian M. Zafar Yasin for Appellant.

A. G, Hvmayun, District Attorney for Respondents.

The appellant has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded respondents mentioned above.

2. By virtue of this appeal the appellant has prayed that the order of respondent No. 1, dated 20th December, 1981 and order of respondent No. 2, dated 10th July, 1982 served upon the appellant, on 17th July, 1982 may kindly be set aside.

3. Brief facts of the case are that the appellant was working as officiating Sub‑Inspector/S. H. O. Police Station Rajanpur in the year 1981. The appellant had gone out of station for the purpose of investiga tion of a murder case of F. 1. R. No. 49, dated 18th March, 1981. Mean while Ghulam Abbas Head Constable registered a case F. I. R. No. 57, dated 31st March, 1981 under section 302, P. P. C. under the directions and supervision of Sub‑Divisional Police Officer/D. S. P. and proceeded to the scene of occurrence for the purpose of investigation. He arrested the accused, recovered the weapon of offence and also made other relevant recoveries from the spot and thus almost completed the investigation under the direction and supervision of S. D. P. O. in the absence of the appellant. This investigation was also confirmed by the said S. D. P. O./ D. S. P. However, a complaint was made by the father of the Accused person and the said Head Constable was proceeded against under rule 6 (3) (1) (A & B) of the Punjab Service (E & D) Rules, 1975 on the ground that he had allegedly accepted illegal gratification during the course of investigation of the case. However, the appellant was served neither any show‑cause notice nor he was proceeded against under E. & D. Rules. The appellant was suspended by the respondent No. 1, vide his order, dated 30th April, 1981, but the appellant was re‑instated as no allegation against the appellant was proved. On his re‑instatement the appellant was appointed as Additional S. H. O./S.‑I. Police Station, Rajanpur. However, Head Constable Ghulam Abbas was dismissed from service, vide order dated 18th July, 1981. The said Head Constable filed an appeal before respondent No. 2 who dismissed the appeal and observed that "officiating S.‑I. Ghias‑ud‑Din who was then working as S. H. O. Police Station Rajanpur also appears to be the main defaulter. He should be reverted to his substan tive rank of A.S.‑I. for the poor supervision and possible complicity pending further enquiry." While quoting this observation in his impugned order the S. P., D. G. Khan, vide his order dated 20th December, 1981 reverted the appellant to his substantive rank of A. S.‑I. The appellant filed an appeal before the D. I‑G. who, vide order dated 10th July, 1982 found that the appellant has failed to prove his innocence, therefore, he maintained the original order passed against him which in fact was passed on the direction of the D. I.‑G. Hence this appeal.

4. I have heard the learned counsel for the appellant as well as the learned District Attorney assisted by the representative of the Department and perused the record carefully with their assistance.

5. The learned counsel for the appellant has submitted that the order was illegal as the respondent No. 1 was the competent authority in his ease but the said order was passed on the direction of D. I.‑G., therefore, the impugned order, dated 20th December, 1981 was not result of application of his own mind. It was further submitted that even the direction of respondent No. 2 was not complied with as he had directed to revert the appellant pending further enquiry while the respondent No. 1 reverted the appellant straightaway without awaiting the result of the enquiry report. It was further pointed out that no enquiry was initiated against the appellant therefore, the reversion of the appellant is not even in accor dance with the direction of the respondent, hence the orders are illegal. It was further highlighted that under the Police Rules 13.10 of Police Rules, 1934 officiating promotion is also a promotion, and reversion of the appellant amounts to a punishment which has been awarded to the appel lant without having recourse of the E. & D. Rules. The learned counsel for the appellant also submitted that the service record of the appellant of that relevant period was good while working under the competent autho rity. Therefore, appellant who has good record of service has been condemned unheard which is both against the E. & D. Rules as well as the principle of natural justice.

6. The learned District Attorney has relied upon the para-wise comments and has submitted that under the police rules the powers of the lower authority can be exercised by the higher authority and thus the direction of D. I.‑G. was legal. It has been further submitted the reversion of the appellant was just without any stigma attached to him, therefore, according to the law laid down by the Supreme Court of Pakistan such like reversion cannot be considered as punishment. How ever, he has concluded the fact of the case so claimed by the appellant that he was on duty in connection with investigation of some other case and that the Head Constable investigated the said case under the direction and supervision of the Deputy Superintendent of Police.

7. We have given our anxious thought to the argument advanced by the parties and without discussing the fact of the case as laid down in the appeal as the same are conceded by the learned District Attorney, though we are only required to determine the legal issue so involved in this case which are as under :‑

(i) Whether a superior authority in police hierarchy can exercise the powers of the lower authority and under what circumstances

(ii) Can a reversion be made from officiating rank to substantive rank which has been made for certain acts of omission and commission of a member of the police force without issuing him a show‑cause notice/charge‑sheet.

To resolve these two legal issues we have carefully gone into the Police r Rules and find that a higher authority can exercise the power of a lower authority in cases of the E. & D. Rules against a police servant but not otherwise. While taking into consideration second legal issue we find that it was settled in M. Ibrahim v. Government of Pakistan (P L D1971 S C 332), by their Lordships of the Supreme Court that officiating appointment could be terminated at any time for any reason relatable to exigencies of service, and for this matter no show‑cause notice was necessary but at the same time it was held that show‑cause notice was necessary in case of reversion punishment, as the reversion in that case amounted to reduction in rank. It was also further held that if it was found that reversion was made on mala fide, the same could be struck down. Similarly this view was reiterated by their Lordships of Supreme Court of Pakistan in 1.983 in Dr. Safdar Mahmud's case (P L D1983 S C 100). The relevant portion are given below :‑

"A fair assessment of the entire facts of the case shows that the reversion of the respondent to his original grade in the Income‑tax Group was not a routine of innocent reversion. It was the outcome of the supposed misconduct of which he was guilty as Director of the Research Cell.

Despite the fact that these charges were found to be unfounded and the disciplinary proceedings dropped, vide order dated 24th June, 1978, but in the very same order it was also stated that the orders restricting him to his present grade were being maintained. The conclusion that irresistibly follows from these facts is that the reversion of the respondent to Grade‑19 on 1st January, 1978, was due to the fact that ever-since August, 1977, he was considered to be guilty of misconduct, which belief continued to be entertained at least until April, 1978 when he was issued the formal charge‑sheet. His reversion in‑between this period and his being "replaced" to his substantive post (on 1st January, 1978) was not, therefore, simply an accident of service but this was ordered as a measure of punishment and displeasure. In these circumstances the view of the Service Tribunal that the reversion of the respondent to Grade‑19 was not justified, therefore, appears to be just and equitable."

8. In view of the above I am of the considered opinion that the case of the appellant is fully covered by the law laid down by Supreme Court of Pakistan as the appellant in this case was reverted at the directions of D. I.‑G., who while hearing the appeal of Head Constable Ghulam Abbas when even the appellant was not present before him. The S. P. only implemented the direction of the D. L‑G. without any application of his own mind and reverted the appellant immediately although there was clear direction by the D. I.‑G. that this should be done pending enquiry in this case. I have also no hesitation to hold that the appellant who was officiating in the post of Sub‑Inspector for the last seven years was not reverted for exigencies of service but on a clear charge of inefficiency as well as for complicity with the dismissed Head Constable who investigated a murder case when the appellant was out of station and the said case was investigated under the direction supervision of S. D. P. O./D. S. P. I, there fore, hold that the appellant was reverted as a matter of punishment ands thus this reversion will amount to reduction in his rank.

9. In view of the settled law on the above issue so formulated by me. I set aside both the impugned orders as without lawful authority as well as of no legal effect. The appellant shall be considered as officiating Sub‑Inspector as if he was never so reverted, with all back benefits if any attached to his officiating rank. There will be no order as to costs,

M. Y. M. Appeal allowed.

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