JUSTICE (RETD) GHULAM NABI SOOMRO, CHAIRMAN - Appellant Ali Nawaz Panwhar while posted as Constable at P.P. Fatehpur of Police Station Gablo, District Jacobabad was involved and arrested in Crime No. 91/1996 under Sections 302, 324, P.P.C, r/w Section 17(4), H.O. Registered at Police Station "A" Section, Kandhkot registered on 13.6.1996. He was thus proceeded against departmentally under the provisions of Sindh Police (E&D) Rules, 1988. A show-cause notice dated 25.6.1996 issued by respondent No. 3 was served upon appellant while he was in judicial custody. Appellant submitted its reply, but according to him, it was not' transmitted to the respondent No. 3. On account of appellant's failure to submit reply to the show-cause notice, he was awarded major penalty of dismissal from service vide order dated 21.7.1996, by respondent No. 3. Appellant challenged the said order in his departmental appeal to the then Deputy Inspector-General of Police, Larkana, , but it was rejected per order dated 23.12.1998., Appellant then filed review/mercy application to. The then Inspector-General of Police, Sindh, Karachi, which too met with same fate vide order dated 15.7.1999.
2. Appellant who was facing trial in the above-, referred crime in the Court of learned Special Judge, S.T.A., Kandhkot, then waited for the final outcome of the criminal case. Ultimately, by judgment dated 23.1.2007, appellant was acquitted in the criminal case. After acquittal, appellant filed another review/mercy application to the Provincial Police Officer, Sindh, which was dismissed vide order dated 24.7.2007. Appellant has now invoked the jurisdiction of this Tribunal for setting aside the original as well as appellate orders and prayed for re-instateprient in service with all back and consequential benefits.
3. In their separate written statements, - the respondents controverted the assertions of appellant a nd prayed for dismissal of appeal.
4. In support of appeal, learned counsel for the appellant argued that whole disciplinary proceedings initiated and culminated against the appellant were in violation of the mandatory provisions of Law, as neither a regular inquiry was conducted nor final show-cause notice was issued or chance of personal hearing was provided to the appellant, thus the principles of natural justice were violated. Learned counsel further contended that major penalty-of dismissal from service inflicted upon appellant was merely on account of his involvement and arrest in a criminal case, without awaiting the outcome of the same. Since, appellant has already been acquitted from the criminal case by the competent Court of Law, the very basis of awarding major penalty stands washed off. Therefore, appellant may be reinstated in service, In support of his contentions, learned counsel has relied upon the cases of (i) Rashid Mehmood v. Additional Inspector-General of Police & others, 2002 SCMR 57 and the case of Noor Muhammad v. Air Chief Martial of Pakistan & others, 1990 PLC(C.S.) 246.
5. In rebuttal, learned Asstt. A.G. While referring .The written statements filed by respondents argued that on 13.6.1996 appellant alongwith his companions robbed Motor Cycle from one Mahendra Kumar and his father Rameshlal on pistol point who raised cries, suddenly "one Tharomal reached there, upon whom accused persons opened fire which hit Tharomal who died at the spot. The Police Party reached there and chased the accused persons who were fleeing from the place of incident and at some distance police apprehended appellant and his co-accused Ali Asghar. Learned Asstt. A.G.
Has further submitted that appellant being a member of disciplined force, committed a serious crime, therefore after observing the requisite formalities, appellant was rightly awarded major penalty of dismissal from service. Learned Asstt. A.G. Also raised legal objection that appellant's departmental appeals/applications were hopelessly time-barred and were rightly rejected; therefore, as per settled law, the present appeal is also time- barred and liable to be dismissed on this score alone.
6. While exercising right of reply, learned counsel for appellant invited our attention to Rule 16.32 of Police Rules, 1934, which provides an opportunity to the Police Officer to apply for review of earlier order on availability of fresh evidence.
7. We have carefully considered the above submissions, minutely perused the case papers and have gone through the case-law referred to by the learned counsel for the appellant.
8. Appellant was arrested on 13.6.1996 and involved in Crime No. 91/1996 under Section 302, P.P.C.
17(4), H.O. Of Police Station 'A' Section, Kandhkot. After placing the appellant under suspension, he was proceeded against departmentally and a show-cause notice dated 25.6.1996 while Judicial Lock-up. According to appellant, he submitted its reply through jail authorities, but it was not sent to the concerned authority, whereas according to respondent No. 3, appellant failed to submit reply within stipulated period of 7 days, In any case, the respondent No. 3 was legally bound to issue final show-cause notice which was a mandatory requirement, but instead of adopting proper legal procedure of issuing final show-cause notice and conducting regular inquiry, appellant was hurriedly awarded major penalty of dismissal from service vide order dated 21.7.1996' with retrospective effect from 17.7.1996.
9. On facts and law narrated above, the order of dismissal was void, nullity in law and not sustainable, It is well-settled law that an administrative authority cannot pass order with retrospective effect, It is only the Legislature that can give retrospective effect to what it ordains, In this connection, we rely on the case of Province of Punjab v.' Khan Khaliq Dad Khan reported as PLD 1953 Lahore 295, wherein it was held as under:- "We. Have been referring the order of dismissal passed by the Punjab Government which purports to take effect from a previous date without comment. Let it not be understood that we accept the authority of the Government to pass orders with retrospective effect, It is only the Legislature that can give retrospective effect to what it ordains. The Government have only power to dismiss and a power to dismiss does not imply a power to say "a dismissal shall be deemed to have taken place on such and such a date". At least in the absence of an authority from the Legislature, express or necessarily intended, no such power can exist."
Similar was the view taken in the case of Al-Samrez Enterprise v. The Federation of Pakistan, reported as 1986 SCMR 1917.
10. Learned Asstt. A.G. Contended that appellant's departmental appeal and review/mercy applications were rejected on 23.12,1998 and 15.7.1999 by respondents Nos. 2 & 1 respectively, and appellant was supposed to file appeal before this Tribunal within 30 days thereof, - but instead he waited for a pretty long time and filed another review/mercy application to P.P.O. (Respondent No. 1) which was not maintainable and time-barred, therefore, this appeal before the Tribunal was also time-barred.
This contention, in. The circumstances of the present case, has no force, In normal course, the civil servant was supposed to file appeal before this Tribunal within 30 days from the date1 of communication of appellate order. However, in the instant case, the legal position is somewhat different. Appellant's departmental appeal and review/mercy application were rejected while he was facing trial in the above-referred criminal case. As it appears, appellant waited for the final outcome of the said criminal case and ultimately acquitted vide judgment dated 23.1.2007.
Thereafter, he filed another review/mercy application to the respondent No. 1 alongwith a copy of judgment passed in criminal case. The second review/mercy application of the appellant in terms of Rule 16.32 of the Police Rules, 1934 was very much maintainable & competent. Rule 16.32 reads as under:- "16.32 An officer whose appeal has been rejected is prohibited from applying for a fresh scrutiny of the evidence. Since, officer may, however, apply, within a month of the date of dispatch of appellate orders to him, to the authority next above the prescribed appellate authority for revision on grounds of material irregularity in the proceedings or on production of fresh evidence, and may submit to the same authority a plea for mercy; provided that no application for the revision of an order by the Inspector-General will be entertained. An officer whose appeal has been heard bv the Inspector General may, however, submit to the Inspector General a plea for mercy or may apply to the Inspector-General for a review of his appellate order only on the ground that fresh evidence of his appellate order only on the ground that fresh evidence has become available since the appellate order -has been pronounced. This rule does not affect the provisions of Rule 16.28. Such application or plea must be in English."
(underlining is ours)
11. Simple reading of above Rule would reveal that on availability of fresh evidence* an officer whose appeal has been earlier heard and decided by the Inspector- General of Police, may apply for a mercy or review of his appellate order, In the case in hand, appellant after availability of fresh evidence, in the shape of judgment, of acquittal, had rightly filed review/mercy application to the Provincial Police Officer, Sindh, and after its rejection, appellant filed the instant appeal which is well within time. Therefore, the question of limitation does not arise.
12., Besides the above discussion, the disciplinary proceedings initiated against the appellant were in sheer violation of the settled law as neither final show-cause notice was issued nor regular enquiry was conducted/ordered or a personal hearing to defend himself was provided to the appellant. Any adverse order passed without affording proper and 'reasonable opportunity to an accused Civil Servant, in violation of principles of natural justices would not be sustainable in law.
Reference is made to the cases; of Dina Sohrab Katrak (PLD 195 S.C (Pak.) 45) and University of Dhaka V. Zakir Ahmed (PLD 1965 S.C 90).
13. In view of the above factual and legal position, we are of the firm opinion that all the impugned orders being not sustainable under the lav/ are hereby set aside Resultantly, the appeal is allowed.
We direct that appellant shall be reinstated in service forthwith. As regards, intervening period, suffice to say that appellant has not raised any plea in this appeal that he remained out of service, was jobless or was sitting idle or was not employed any where for earning bread, In the absence of any proof to, that extent, the appellant is not entitled to any financial benefits for the intervening period. Reference is made to the case of Pakistan Automobile Corporation Limited v. Mansoor-ul- Haq Solangi, 2004 SCMR 1308. Parties are left to bear their on costs.
14. Announced in open Court, this 30th day of January, 2009.