NAZAR MUHAMMAD BALOCH, MEMBER. - Through this appeal the appellant Muhammad Fayyaz, has impugned the original order No. SSC/1143635-40/95, dated 3.10.1995 of the Senior Superintendent of Police, Hyderabad (Defunct) through which he was discharged from service, order No. 10373-75, dated 18.4.2002 of the Regional Police Officer, Hyderabad through which his appeal was held to be not admissible and filed, and also order No. 2356-58/E-1111/2007, dated 5.4.2007 of the Provincial Police Officer, Karachi through which his appeal for reinstatement-in service was filed.
2. We have heard the appellant and Syed Kamil Shah, A.A.G. who appeared on behalf of the respondent.
3. Briefly stated facts relevant for the disposal of the appeal are that the appellant was appointed as Constable on 4.3.1995. He remained absent with effect from 2.9.1995 and as such he was discharged from the service , vide impugned original older dated 3.10.1995 by the Senior Superintendent of Police. Hyderabad (Defunct) Respondent No. 4 under Police Rule 12.21. The appeal filed by the appellant was found not admissible, hence it was filed by the Respondent No. 2 on 18.4.2002 on the ground that the appellant could not produce cogent reason of his fault as well as on the ground that there was no provision of appeal against the order of discharge from service under Police Rule 12.21. Appellant filed Review Petition/Appeal before the Regional Police Officer, Hyderabad which was also filed vide Letter No. E/III/70928-29, dated 26.5.2005. He again filed appeal before the . Provincial Police Officer for reinstatement which was also filed vide order dated 5.4.2007 on the ground that there lies no appeal against an order passed under Police Rule 12.21.
4. The learned A.A.G, has argued that the appeal against original impugned order dated 3.10.1995 was rejected by the Regional Police Officer on 18.4.2002. The appellant did not file any Revision before the Provincial Police Officer, within a period of one month and as such the Revision before the Provincial Police Officer, was hopelessly time-barred. He therefore, prayed that the present appeal before this Tribunal is not maintainable.
5. The appellant has argued that on account of attack of jaundice he could not perform his duties with effect from 2.9.1995 and got treatment from a Hakeem. That on being fit he reported for duty but he was discharged from service. He made several appeals to, the D.I.G., Police, Regional Police Officer, Hyderabad and the Provincial Police Officer but his case was not sympathetically considered. He further stated that Aqeel Ahmed, Constable was discharged by the S.S.P.
Hyderabad during 1991 but he was reinstated in service during 2007. Moreover Anwar Ali and Muhammad Zafar and others were also reinstated in service. He also produced the copies of orders of reinstatement of above Officials which show that:-
(a) Nine Police Constables including Ex-PC/3930 Aqeel Ahmed were reinstated by the Regional Police Officer, Hyderabad vide order No. E/597-99, dated 12.1.2007 after verification by Special Branch and obtaining medical fitness certificate from the Medical Superintendent, Services Hospital, Hyderabad.
From Perusal of copy of letter No. E/XVI/LS/45618-19 of the Office of the Regional Police Officer, Hyderabad addressed to the P.P.O. Karachi it appears that EX- C/3930 Aqeel Ahmed was discharged during 1991 under Police Rule 12.21.
(b) Ex-PC/167 Muhammad Zafar was discharged from service by the S.P Hyderabad Vide order No. 48671-74, dated 18.9. S 995 under Police Rules 12.21 who was. Reinstated viae order No. 1312 16/E- III/2005, dated 14.2.2005 by the Provincial Police Officer, Karachi by converting the punishment to forfeiture of approved service for two years.
6. We have carefully considered the above submissions of both sides and have gone through the relevant Rules. The important point in this case is whether after coming into force of Sindh Police (Efficiency and Discipline) Rules, 1988 which were notified through Gazette of Sindh Extraordinary, Part I on 12th June, 1988 the action against the appellant could be taken under Police Rule 12.21 of Police Rules, 1934. Rule 19 of the Sindh Police (Efficiency and Discipline) Rules, 1998 has barred application of any Disciplinary Rules to Police Officers. This Rule is reproduced below:- "Rule 19. Repeal: - Any Disciplinary Rules previously applicable to Police Officers to whom these rules apply are hereby repealed but the repeal thereof shall not affect any action taken or any thing already done or suffered there under."
7. In view of the above legal position the" appellant could only be proceeded against under the Sindh Police (Efficiency arid Discipline) Rules, 1988. However, in case the appellant if appointed on probation, during the period of probation he could be discharged in accordance with the 'probation-or training rules applicable to him' as provided io NOTE (3)(a) appended to Rule 4 of the Sindh Police (Efficiency and Discipline) Rules, 1988. But since it has not been mentioned in the impugned orders or even in the written, statements of the respondents that the appellant was discharged under any of the above-referred rules, the appellant could only be proceeded against under the Sindh Police (Efficiency and Discipline) Rules, 1988.
8. As for delay in filing the appeal is concerned, we find from the record that the appellant had been continuously sending his representations time and again to the concerned higher-ups in the Department. Secondly that the appellant was performing the duties of a Dhoobi (Washerman) which conveys a message that though qualified to be appointed as a Police Constable yet he was found to be less literate. Above has gone un-controverted from the side of the respondents. Hence in view of the peculiar circumstances of this case, we feel inclined to condone the delay in filing of the appeals. Accordingly delay is hereby condoned.
9. In the above circumstances we dispose of the present appeal in the following terms:- "The appellant should appear before the District Police Officer, Hyderabad not later than 20.2.2008 who may get verification report from the Special Branch and also refer the appellant for certificate of physical fitness as was done in the similar cases of Aqeel Ahmed and others. In case of clearness the appellant should be reinstated and restored in the same position as he was before passing of the impugned original order. The appellant will however, not be entitled for any back benefits. There shall be no order as to costs."
Given under our hands -and Seal' of this Tribunal on this 21st day of January, 2008, at Karachi.