Find a Lawyer

Appeal No. 49 of 1982, decided on 8th January, 1985.

‑‑ Locus poenitentiae‑Power of receding available to authority making an order till a decisive step is taken‑Order could validity be cancelled provided not yet acted upon ‑ Police Constable dismissed from service by Superintendent of Police (Punishing authority)‑Appeal rejected by D. I.‑G. of Police‑D. I.-G. sub sequently without any power of review reviewing own appellate order and passing order for reinstatement‑‑Reinstatement not yet made‑Reinstatement order subsequently cancelled by D. I.‑G. of Police‑Reinstatement order having not been acted upon cancella tion of such void order, in circumstances, held, not legally ob jectionable‑General Clauses Act (X of 1897), S. 21.

Naimatullah Qureshi for Appellants.

Hasan Akbar, Asstt. A ‑G. for Respondents.

‑Ex‑Constable Muhammad Nawaz has filed this service appeal against an order of dismissal from service passed by the Superintendent of Police, Jacobabad and maintained by the D. I.‑G. and I.‑G. P.

The facts in brief are that the appellant was served with show‑cause notices for the allegation of dealing in country liquor. He was also prosecuted in respect of these offences, though, he got acquitted for want of sufficient evidence. By an order, dated 28th June, 1978 the appellant was dismissed from service by Superintendent of Police, Jacobabad, as it was proved that the appellant was a habitual absentee and he dealt in the business of illicit liquor. He was found to be a criminal, though, serving in the Police Department and he was accordingly dismissed from service with effect from 28th June, 1978. The appellant preferred an appeal to the D. I.‑G. but the appeal was dismissed by an order, dated 17th January, 1979 on the ground that the appellant was a criminal and, therefore, unfit for the Police Department. Appellant made a review application to the D. I.‑G. which was accepted by an order dated 17th January, 1980 and the appellant was ordered to be reinstated in service. This order was, however, subsequently cancelled on 6th February, 1980 on the ground that the appellant was reported to be a criminal and he was unfit to be retained in service.

The appellant then preferred a mercy petition to the I.‑G. P. which was also rejected on the ground that the appellant was a criminal and he had obtained acquittals in criminal cases by tampering with evidence. That he was a criminal was categorically stated by the D. I.‑G. P.

The contention of the learned counsel for the appellant is that the D. I.‑G. P. having allowed the appeal and ordered reinstatement of the appellant, he could not afterwards cancel the said order without issue of show‑cause notice. It has, however, been pointed out by the A. A.‑G. that the D. I.‑G. had rejected the appeal by an order, dated 17th January, 1.979. That he had no jurisdiction or authority to entertain a review application and allow the appeal after nearly one year of the previous order. This order being ab initio void was cancelled by the D. I.‑G. on 6th February, 1980 because a void order does not create any rights. Even other wise under section 21 of the General Clauses Act, power to make an order includes power to amend or rescind any such order. The power of receding or locus poenitentiae is available to the official making the order till a decisive step is taken, i.e. the order could validly be cancelled provided it had not yet been acted upon. But in this case the order of reinstatement had not yet been carried into effect. Under the circum stances, there could be no legal objection to the cancellation of a void order.

Even on merits the appellant has hardly any case. Being a Police Constable he indulged in the nefarious trade and dealt in the sale of illicit liquor. He was known to his officers to be a criminal and he could not, therefore, be retained in the Police Department.

In the result the appeal is dismissed with no order as to costs.

A. E.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.