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Case No. 589/1402 of 1981, decided on 15th April, 1982.

‑‑‑R. 12.8‑‑Punjab Police (Efficiency and Discipline) Rules,1975, rr.4(3)(a) & 15‑‑Punjab Civil Servants (Appointment and Conditions of Service) Rules No. 1974, r. 7‑‑Discharge of, probationer A.S.I.‑‑A.S.I. alleged to be facing criminal trial prior to enlistment and had concealed same at time of joining service‑‑Removed from service while under training during probation‑‑Removal order seen in light of r. 12.8 of Punjab Police Rules, 1934 unexceptionable because such person could justifiably be described as a person not considered desirable to continue in Police Service‑‑Provisions of Punjab Police Rules dealing with penalties, however, no longer valid as having been repealed by Punjab Police (Efficiency and Discipline) Rules, 1975 and for matters of probation Police Officials governed by r. 7 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 hence provisions of "discharge" under r.12.8 of Punjab Police Rules, 1934 no longer available to competent authority‑‑Action having been taken for alleged misconduct by implication for failing to Inform authorities of his involvement in criminal case‑ A.S.I: (appellant), held, entitled to proper proceedings under Punjab Police (Efficiency an‑d‑Discipline) Rules, 1975‑‑Appellant subsequently acquitted without any stigma by criminal Court‑‑Impugned order, in circumstances, held, not only illegal but also unjustified Service Tribunal accepting appeal reinstating appellant with all back benefits.

P L D 1963 S C 185; Raja Muhammad Nawaz 1981 S C M R 523; P L 0 1974 S C 393 ref.

Masud Ahmad Riaz for Appellant.

Haroonur Rashid Cheema, District Attorney for Respondents.

The appellant in this case is Khalid Parvez who was removed from service as A.S.‑I. of Police by order, dated 3‑11‑1981, made by the D.I.‑G. of Police, Sargodha Range, after having completed nine months of the Course at Police Training College, Sihala, where he had been sent for training after enrolment in the Police as A.S. I. The impugned order was issued after it came to the D.I.‑G's. notice that when the appellant entered the Police service he was involved in two criminal cases, in one of which (F.I.R. No. 761, dated 23‑10‑1978) he had been acquitted whereas the other (F.I.R. No. 269, dated 18‑7‑1980) was still pending in Court. It was felt that by concealing the fact of these two cases, ....from service on a charge of misconduct, as he would have never been appointed A.S. I. in the first place if the fact had been within the knowledge of the ‑‑‑authorities. The removal of the appellant took place under rule 12.8 of the Punjab Police Rules. He was given a personal hearing before the order was passed by the D.I.‑G.

2. The appellant filed appeal in this Tribunal on 14‑11‑1981 and also filed an appeal before the Inspector‑General of Police after some days, i.e. on 30‑11‑1980. During the course of the hearing, on 22‑2‑1982, learned counsel for the appellant also filed copy of judgment, dated 18‑1‑1982 delivered by Magistrate 1st Class, Sargodha, in the second criminal case involving the appellant, according to which judgment the appellant had been acquitted because he was not implicated either by the eye‑witnesses or the injured' person himself.

3. The parties were heard. Learned counsel for the appellant forcefully made out the point that the appellant could not have been removed from service in the manner adopted by the D.I.‑G. and that, in fact, it was the S.P. and not the D.I.‑G. who was competent to proceed against the appellant. It was submitted that at the time of enlistment in the Police the appellant was not required to state whether he rules 12.5, 12.6 and 12.7 of the Police Rules to strengthen his point. The impugned order stated that as the appellant "was facing trial. in a criminal case he was not considered a desirable person to continue in the Police Department", meaning thereby that only the pending case was held against him and not the one in which he had been acquitted. With the appellant's acquittal in the second case subsequently, the Department should now have no objection to the appellant's continuance in service. In any event, mere involvement in a case is no charge as held in P L D 1963 S C 185. Learned counsel also cited the case of Raja Muhammad Nawaz, published as 1981 S C M R 523, to show that once the appointment had been made and acted upon it had achieved finality and that, in the light of that judgment, the appellant's case could not be reviewed in the context of appointment. It was also argued that with the promulgation of the Police E&D Rules all punitive parts of the Police Rules stood automatically repealed as provided by rule 15 of the E&D Rules. Thus rule 12.8 of the Police Rules, whereunder the appellant had been removed, was no longer a valid rule and the D.I.‑G could not take recourse to that rule to remove him, and the appellant could only be proceeded against by the S.P. under the Police E&D Rules. On behalf of the respondents, the learned Deputy Attorney submitted that when the D.I.‑G. used the words "removed from service" in the impugned order the obvious intention was to say that the appellant had been "discharged" since the order had been passed in pursuance of rule 12.8 of the Police Rules which provided for "discharge".

4. Rule 12.8 states that during the probation period an A.S. I. can be discharged if he is guilty of grave misconduct or is deemed for sufficient reason to be unsuitable for service in the Police. In the present case there was no charge of misconduct, but the D.I.‑G. stated in the impugned order that in view of the case in which he was facing trial the appellant was not considered a desirable person to continue in service in the Police Department. The obvious inference was that the authority had decided to ignore the first case in which the appellant had already been acquitted and objected only to his standing trial in a criminal case. It would logically follow from this that the D.I.‑G. did not hold the appellant's failure to inform the department about his (past) involvement in the first case as a handicap or as a point against his enlistment in the Police. Thus the only hurdle in the way of the appellant's acceptability as A.S. I. was that he was facing trial in a Court of law. But in this case also he was later acquitted, with neither the injured person nor any of the P.Ws. implicating him in the incident which was the subject of the trial. The appellant has thus been left with a clean slate in so far as the second case is concerned. This is the situation of the appellant as it stood after 18‑1‑1982, when the trial Court acquitted him. But before that date the D.I.‑G. had no means of knowing what the outcome of the case would be and he had to act on the circumstances then prevailing, and these were that the appellant was standing trial in a criminal case and thus could justifiably be described as a person not considered desirable to continue in Police Service. Seen in that light the impugned order is unexceptionable. However, there is another aspect of this case which has to be kept in mind while adjudicating it. It has been submitted that with the Police E&D Rules in the field those of the Police Rules which deal with penalties are no longer valid and thus the D.I.‑G could not take recourse to rule 12.8 of the Police Rules. Moreover, at the time of passing of the impugned order the appellant was admittedly on probation and would fall within the mischief of the relevant parts of the Punjab Civil Servants (Appointment and Conditions of Service) Rules. 1974, promulgated in pursuance of the Punjab Civil Servants Act., 1974. It was submitted that in respect of probation also the provision of "discharge" in rule 12.8 of the Police Rules would no longer be available to the competent authority and, in that case, the competent authority would be the S.P. and not the D.I.‑G.

5. In this view of the matter I art: persuaded to hold that with the coming into force of the Civil Servants (Appointment and Conditions of Service) Rules, the appellant, who was on probation when the impugned order was issued, would be governed by rule 7 of these rules read with rule 4(3)(a) of the Police E&D Rules. That would make the S.P. the competent authority in case of the appellant and there would be no escape from the contention raised by learned counsel for the appellant that the D.I.‑G. was not competent to pass the impugned order. There is also another aspect of the matter. When the appellant was enlisted in the service as A.S.-I., he was not asked to state whether he was Involved in any criminal case or not. In the absence of such a requirement it cannot be legitimately asserted that the appellant had failed to inform the authorities concerned of his involvement. Moreover, it is presumed that before he was enlisted the appellant's antecedents must have been investigated and he must have been given a clean chit by the agency responsible for this purpose. Learned counsel also submitted that by issuing the impugned order the D.I.‑G. had, so to say, questioned the very appointment of the appellant and characterised it as irregular. In this context 1981 S C M R 523 was cited to argue that even if the appointment was irregularly made it could not be terminated since the appellant had, in the meantime, acquired valuable rights, and if it was to be terminated as "discharge" then seen in the light of rule 4(3) of the Police E&D Rules, the competent authority would be the S.P., thereby rendering the D.I.‑G's. order void and unlawful. Another case cited by learned counsel was that of P L D 1974 S C 393 which laid down that the service of a civil servant on probation could be terminated without notice if his performance was found wanting, but if he was to be discharged for misconduct then he was entitled to proceedings under the, E&D Rules. In the instant case it was not the appellant's official performance which had been found unsatisfactory but, by implication, he was charged with misconduct for failing to inform the authorities of his involvement in a criminal case and was thus entitled to proper proceedings. under the E&D Rules.

6. The upshot of the above discussion is that the impugned order of discharge is found to have been incompetently passed. Moreover, in view of the fact that the appellant was acquitted without any stigma in the case in which he was standing trial at the time the impugned order was Issued, there was no justification left to effect his discharge by even the competent authority. Consequently, this appeal is accepted and the appellant is re‑instated in service with all back benefits. There shall be no order as to costs.

A.E.

Appeal accepted.

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