1. KHAWAJA GHULAM QADIR (MEMBER).------This appeal under section 4 of the Service Tribunal Act, 1975 was filed by Maqbool Ahmad appellant to assail Order No. 580, dated 18-1977 and No. 418, dated 26-12-1977 whereby the appellant was awarded punishment of forcible retirement from the police service by S. P., Poonch respondent No. 3 and subsequently his appeal was rejected by D. I.- G. Police Azad Jammu & Kashmir respondent No. 2 respectively.
2. The facts as stated by the appellant in his. Appeal which gave rise to the appeal in hand are narrated briefly as under :- Appellant Maqbool Ahmad, an intermediate qualified Police Head const--able with 18 years service to his credit, was serving under S. P. Poonch respondent No. 3 and was posted at Bandi Abbaspur in 1977 when his left eye suffered from Cataract and the incharge Dispensary Abbaspur referred him for treatment to C. M. H., Rawalakote where the eye--specialist Rawalakote advised him to have an operation vide copy of the letter dated 23-4-1977 Annexure `A'.
3. The appellant submitted his case to S. P., Poonch (respondent No. 3) for sending him for eye operation and treatment departmentally but no heed was paid to his request. Then the appellant submitted an application dated 16-4-1977 to S. P., Poonch for sanctioning 25 days' leave to enable him to get his eye-operated of his own accord but no leave was sanctioned. Feeling dis-- appointed at the hands of S. P. The appellant submitted another application dated 19-5-1977 to him requesting therein that he may be permitted to see D. I.-G., Police for redress of his grievences including sanction of the leave applied for but the S. P. Got effended and instead of granting the permission sought for suspended him without hearing and also did not inform him of this action.
4. Having failed in his efforts to get his leave sanctioned by S. P., Poonch the appellant, out of his compelling necessity of eye-operation, sub--mitted another application dated 21-8-1977 to respondent No. 3 S. P., Poonch through Police Station Bandi Abbaspur for grant of ten days leave Jor treatment of his eye and availed of the same in anticipation of sanction and went to Central Hospital. Rawalpindi where he remained out-door patient on the advice of medical authorities.
5. During this period he sent another application to S. P., Poonch respondent No. 3 for grant of one year leave for complete treatment' of his eye. (Copies of these applications are Annexures B, C, D & E).
6. After sometime the appellant came to know that S. P., Poonch, reason--dent No. 3 had framed certain charge against him and an enquiry was entrusted to Circle Inspector, Abbaspur and submitted an application dated 9-6-1977 to respondent No. 3 requesting his that inquiry against him be stopped and D. I.-G. Police be requested to appoint some other impartial officer to hold enquiry as the respondent No. 3 .Had assumed the role of a party in his matter and the appellant did not expect any justice or fairness at his hands or that of an officer directly subordinate to him.
7. (Copy of the application Annexure `F').
8. As the weak financial position of the appellant did not permit him to undertake the treatment of his eye by operation at his own expenses in Central Hospital, Rawalpindi he fell back upon the department for help and sub--mitted another application dated 10-8-1977 requesting that he be sent for medical treatment through the department under rules but respondent No. 3 paid no heed to this genuine request of the appellant and rather threatened him of taking action against him for making entry of his presence in the daily police diary without his prior permission. (Copy of application Annexure G).
9. Finally, the appellant produced himself before respondent No. 2, D. I.-G. Police, M'abad, with his application dated 21-8-1977 for the medical treatment who- ordered respondent No. 3 to send the appellant departmentally for treatment but respondent No. 3 did not care for the same. (Copy of apple--cation Annexure `H'). Having lost all hopes of any aid through the depart--ment the, appellant, willy-nilly, undertook to solve his difficulty by his own means and at last succeeded in getting operation of his eye from Christian Hospital Taxila. (Copy of medical certificate attached as An--nexure `J').
10. During this period of treatment respondent No. 3 treated the appellant as absent from duty and taking proceedings in absentia against him awarded the punishment of forcible retirement from service vide the impugned order dated 18-10-1977. The appellant filed appeal against this order before D.I.G. Police M'abad respondent No. 2 but the same was rejected by respondent No. 2 vide his order No. 418 dated 26-12-1977. The appellant went in revision on 21-1-1978 against this order to respondent No. 1 I.-G. P. Azad Jammu & Kashmir but the same remained undecided.
11. With this background of the case the appellant came up with this appeal before the Service Tribunal on the following grounds-
(i) that the position of respondent No. 3 vis-a-vis appellant was that of a party and as such legally, he could not take any action against appellant especially when an objection to this effect was taken in writing;
(ii) that the appellant had been continuously applying for leave on a genuine ground of medical cause and this fact was very much known to respondent No. 3 and thus without deciding the matter of leave he could not proceed against appellant ex parte and pass the impugned order;
(iii) that impugned order is illegal and inoperative as the punishment of forcible retirement is nowhere provided under rules or law applicable to the appellant.
12. The respondents filed their written statement and denied almost all the averments of facts made by the appellant in his appeal except that he was suspended and later forcibly retired from service on the charge of being absent without leave.
13. We have heard the arguments advanced by the counsel for the parties and have also gone through the relevant record. The learned counsel for the appellant Mr. Muhammad Saeed Advocate confined his contention mainly to the legal ground of appeal that the punishment of forcible retirement awarded to the appellant was absolutely illegal and contrary to law and as such liable to be set aside as no such punishment was provided under any law or rule pertaining to the Police service. His argument, in substance, was that the appellant belonged to the police service and as such the terms and condi--tions of his service were governed by the Punjab Police Rules, 1934 exclu--sively as adopted by the Azad Government of the State of Jammu & Kashmir (hereinafter referred to as Police Rules) as the Police Rules being a special law applicable to the Police personnel the general law, that is the Civil Servants Act, 1976 or Kashmir Service Rules ; was not to be applied while deciding a departmental inquiry against a member of the Police service.
14. In this regard the learned counsel for the appellant relied on the Punjab Police Rules, 1934 and drew our attention to Chapter XVI of the said Rules which deals with matters of punishment.
15. In this Chapter sub-rule (i) of rule 16.1 of the Police Rules reads as under :- "No Police Officer shall be departmentally punished otherwise than as provided in these rules."
16. The wording of sub-rule (1) quoted above is so framed as to exclude the application of any other law or rule while conducting any proceeding departmentally against any member of the Police service with a view to awarding any punishment.
17. The punishment which may be imposed upon a Police Officer as a result of any departmental inquiry are specifically mentioned in the table sub joined to sub-rule (2) of rule 16.1 of the Police Rules which are 10 in number and kind, namely, (1) dismissal (2) reduction in rank, (3) stoppage of increment, (4) entry of censure, (5) confinement to quarters, (6) extra guard fatigue, (7 to 10) punishment Drills of different periods. The punishment of compulsory retirement finds no mention in the second column of this table of punishments. The appellant, if found guilty on a departmental inquiry could punished with any one of the punishments prescribed in the above-mentioned table and .No other punishment could legally be inflicted upon him. Thus the punishment of compulsory retirement awarded to the appellant in conse--quence of a departmental inquiry is absolutely illegal and unwarranted by law.
18. We have already held this view in Appeal No. 67 of 1978 entitled Muhammad Qasim v. S. P., Poonch and others while determining the legality of the order awarding similar punishment of forcible retirement under the Police Rules and follow the same view even now and hold that the impugned order inflicting punishment of compulsory retirement upon the appellant was passed in clear violation of mandatory provisions of Rule 16'1 of the Police Rules, 1934 and thus was illegal, inoperative and ineffective qua appellant.
19. The learned counsel for the respondents was unable to repel this legal and weighty argument of the counsel for the appellant.
20. In view of this legal question involved in this appeal and going to the root of the matter we do not feel any necessity of discussing the merits of this appeal. In consequence we set aside the impugned orders and re-instate the appellant w. e. f. The date of his compulsory retirement with, all consequential benefits. The parties shall bear their own costs and shall be informed of this order.
21. SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).----I agree.