' SYED MANSOOR ALI SHAH, J.--- Brief facts of the case are that the petitioner, who is a probationer Assistant Sub-Inspector (A.S.-I.) was sent for training to the Police College Sihala, Punjab. The training started on 4th of May, 2009 and after three months on 13-8-2009, the petitioner proceeded on a long weekend leave till 15-8-2009 and she was to report back on 16-8-2009.
2. However, she could not return till 18-8-2009. According to the petitioner, she got delayed because she had to collect her salary from Lahore Police Lines being the only daughter of her mother (her father having passed away) and the salary being the only source of income of the family. As she could not get her salary from the Lahore Police Lines, she had to borrow money to travel to Sihala College and, therefore, instead of joining the course on 16-8-2009, she reached the College at 4-00 p.m. On 18-8-2009.
3. As a result, respondent No,3 (Commandant of the Police College) issued the impugned order dated 18-8-2009, whereby, inter alia, the petitioner was suspended and withdrawn from the course in absentia.
4. The impugned order dated 18-8-2009 passed by respondent No,3 is challenged in the instant petition.
5. It has been argued by the counsel for the petitioner that according to Rule 13(iii) of the Punjab Police College Sihala Manual, 2002 respondent No,3 can disqualify a probationer (Inspectors/SIs, ASIs) if he/she absents himself/herself from the course for more than 21 days. In the present case, the petitioner being late by only two days, the impugned order is not only unlawful but also harsh.
6. It is further submitted that the impugned order is based on, conjectures and surmises. The order states that the petitioner is "not interested" in her training and terms the absence of the petitioner to be "wilful absence". It further places the petitioner under "suspension" without any lawful authority considering that respondent No,3 is not the competent authority of the petitioner.
7. The learned law officer referring to the report/parawise comments filed by respondent No,3 admitted in response to ground "b" that as per rule 13 of the Punjab Police College Sihala Manual, 2002, it is in the case of absence for 21 days in the whole course of one year that the probationer is liable to be reverted to his parent district.
8. The main contention of the respondents is that in the training period of three and a half months the petitioner remained absent from training for 15 days. The breakup of 15 days given in the comments submitted by respondent No,3 is 3 days casual leave, 10 days medical rest and 2 days wilful absence. This factual position is belied by paragraph 1 of the "Report on Factual Position" filed by respondent No,3 where it is clearly stated that the petitioner joined the course on 4-5-2009 and for the first time proceeded on a long weekend leave on 13-8-2009 till 15-8-2009. The impugned order dated 18-8-2009 fails to mention the dates when the petitioner has absented herself from the course. The petitioner has denied that she has absent from -the course other than the two days in August, therefore, in her training of three and a half months the petitioner absented herself for only 3 days. In any case as per the Punjab Police College Sihala Manual, 2002, unless the probationer petitioner absents herself for 21 days, she cannot be removed from the course.
9. Arguments heard and record perused.
10. Petitioner was appointed as a Lady Assistant Sub-Inspector by the Capital City Police Officer, Lahore on the recommendations of the Punjab Public Service Commission on 30-4-2009. As part of her training she had to undergo a one year course at the Commandant Police College Sihala, Punjab and for the purposes of this training was brought under the supervision of respondent No,3.
The affairs at the Commandant Police College Sihala are regulated by the Punjab Police College Manual, 2002. Rule 13(iii) states:- "He shall have powers to disqualify and return to his parent district, Range/Unit, any trainee of Advance, Upper and Intermediate (HCs) Class Courses who stays away from training at Police College Sihala for a total period of more than 10 days. In case of Recruits and Drill courses total period of more than 15 days and in case of probationers (Inspectors/SIs/ASIs) and Inspectors Legal for a total period of more than 21 days. Such trainee may be recalled during the next session. The Probationer officer may not be discharged on this account. However the trainee reverted to his parent District on account of misconduct will be discharged from service."
11. Other than the above rule, respondent No,3 has no power to remove the petitioner. Perusal of the impugned order shows that the petitioner was not afforded an opportunity of hearing or show cause to explain her position. It further proceeds on the assumption that the petitioner is "not interested in the training" and that the petitioner has exhibited "wilful absence". All these facts are irrelevant and, at best, are no more than figment of imagination of respondent No,3.
12. The impugned order also places the petitioner under suspension. The competent authority of the petitioner is CCPO as the appointment letter dated 30-4-2009 shows, therefore, respondent No,3 had no power to suspend the petitioner.
13. In addition to the above, the exercise of discretion by respondent No,3 leaves much to be desired. It has been held time and again that discretion to be exercised by a public functionary must be structured. Structuring discretion means regularizing it, organizing it, producing order in it so that the decision will achieve a higher quality of justice. Reliance has been placed on Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCM R 641 and Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504. An offshoot of this is that exercise of discretion should not be unreasonable, irrational or disproportionate. "The rule of reasonableness is so embedded in the jurisprudence that even where statute confers arbitrary powers on any authority, it is to be read in such statute that the authority while exercising its jurisdiction shall act reasonably" Gadoon Textile Mills v. WAPDA 1997 SCM R 641. In KBC Authority v. Hashwani S and S Ltd. PLD 1993 SC 210, regulations made under the Sindh Buildings Control Ordinance, 1979 were declared to be unreasonable and hence ultra vires.
"Unreasonableness as a ground for judicial review has now received legislative confirmation in section 24A of the General Clauses Act, 1897 which reads:--- "24A. Exercise of power under enactments:---
(1) Where, by or under any enactment, a power to make an order or give any discretion is conferred on any authority, officer or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the Act." (Judicial Review of Public Actions) by Justice (R)
Fazal Karim Volume 2."
14. Similarly, doctrine of proportionality is a rapidly growing principle of checking discretionary powers under administrative law. "Proportionality is a principle where the Court is concerned with the process, method or manner in which the decision maker has ordered his priorities and reached a conclusion or arrived at a decision. The doctrine of proportionality, thus, steps in focus true nature of exercise-the elaboration of rule of permissible priorities" (Law of Writs by V.G. Ramachandran's Chapter 4 Volume 2). Doctrine of proportionality, therefore, ordains that admissible measures should not be more drastic than are necessary for attaining the desired result. In Halsbury's Laws of England (4th Edition), it is stated "the Court will quash exercise of discretionary powers in which there is no reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior Courts are wholly out of proportion to the relevant misconduct." In Bhagat Ram v. State of H.P. AIR 1983 SC 454 "an inquiry was instituted against a Forest Guard and he was held guilty for negligence in performance of his duty". The Court observed "the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution".
15. The doctrine of proportionality stems from irrationality and perversity in the exercise of administrative discretion. "Disproportionality ' and unreasonableness are synonymous, and the jurisprudential basis is that the power to make administrative decisions is a delegated and limited power, and the Court proceeds on the presumption that the legislature does not authorize unreasonableness acts. While conferring discretion on an authority the statute does not intend to arm such authority with unfettered discretion which may be beyond the limits of reason, And comprehension of a man of ordinary intelligence.... It is to be read in such statute that the authority while exercising its discretion shall act reasonably 1997 SCM R 641.
16. In the present case, the petitioner arrived at the course just two days late supported with a valid reason but was thrown out of the year long course at the very beginning of her career, certainly renders the discretion of respondent No,3 unreasonable and totally disproportionate to the gravity of the lapse committed by the petitioner and, therefore, C cannot be sustained. The impugned order is without legal authority and without legal effect.
17. Respondent No,3 is directed to take the petitioner back into the course. This Court is aware that this unfortunate litigation, with which the petitioner was burdened, must have left the young petitioner disturbed at the very beginning of her career. It is, therefore, expected of respondent No,3, who, during the course, will ensure that the time lost by the petitioner is compensated by making extra effort to cover for inconvenience occasioned due to the passing of the impugned order. The petition is, therefore, allowed and order dated 18-8-2009 is set aside to the extent Of the petitioner.