Moazzam Hayat, Member.--Appellant Muhammad Javed Awan was a Sub Inspector, posted in Police Station, Shalimar, Islamabad when he was awarded penalty of stoppage of increments fur two years vide order dated 08.02.2011 under the Punjab Police E&D Rules, 1975. His departmental appeal dated 03.03.2011 was rejected on 26.04.2011. The rejection order was sent to him on 10.05.2011.
Hence this appeal.
2. A complaint had been made to the DIG by one Javed Iqbal that one Shahid Sattar resident of Sector E-11/4, Islamabad had harassed him and abused him on 23.04.2010 along with his servants and this incident was brought to the notice of the appellant but he did not register any case, abused him and maltreated him. On this charge, a show cause notice was issued to him on 03.02.2011.
3. According to the respondents the appellant was not competent to file any departmental appeal against minor penalty. On merits, it is stated that the competent authority was satisfied that the appellant had failed to perform his lawful duties in registering the case against said Shaid Sattar and his servants and it was also proved that instead of registering a case on the report of the Javed Iqbal he (the appellant) had abused him and had maltreated him.
4. We have heard the learned counsel for the appellant and departmental representative of respondents. The record has also been perused by us.
5. It is stated in Section 22(2) of the Civil Servants Act, 1973 that where there is no provision for appeal or review under the rules in respect of any order or class of orders, a civil servant aggrieved by such an order may make a representation to the next higher authority within 30 days. Thus the law had given a right to the appellant to make a representation to the next higher authority against the penalty awarded to him. As such the appellant did not commit any mistake in filing departmental representation against the impugned order. His right to make representation could not be taken away by any departmental instructions of the Inspector General of Police.
6. In Section 4(a) of the Service Tribunals Act, 1973, also it is clearly stated that appeal shall not lie in the Tribunal unless an appeal against the impugned order is filed before the appellate authority.
The cumulative effect of Section 22(2) of Civil Servants Act, 1973 and Section 4(a) of the Service Tribunals Act, 1973 is that the appellant had a vested right to make representation to the next higher authority against the penal order passed against him by the competent authority. The departmental appeal is synonymous with departmental representation. Technically there is not much difference between a departmental appeal and a departmental representation. The departmental appeal filed by the appellant could be treated as departmental representation under Section 22(2) ibid. The objection of the respondents with regard to departmental representation/departmental appeal filed by the appellant against the impugned order is repelled.
7. The record shows that Javed Iqbal had made a complaint to the Police and Shahid Sattar had also made a counter complaint. There were thus cross complaints from both the parties. A report was submitted by the appellant on 20.05.2010 that these complaints were without any merit. His findings were subsequently verified/confirmed by the learned District and Session Judge when he dismissed the application of Javed Iqbal, filed under Sections 22(a) & 22(g) of Criminal Procedure Code n 25.05.2010. From the order of the learned Session Judge, we are satisfied that there was no case which could be registered by the appellant against Shahid Sattar and others. There was thus no occasion for the competent authority to award any penalty to the appellant on 08.02.2011 after the rejection of aforementioned application by the Session Judge.
8. For the above reasons, we hold that the appellant had not committed any mistake nor had he failed to perform his duties. His appeal is accepted in the circumstances and the penalty imposed upon him of stoppage of increments for two years is set aside.
9. There shall be no order as to costs. Parties shall be informed.