' Justice (R) Sayed Zahid Hussain, Chairman.--Shakeel Ahmad, the appellant was selected through a due process and appointed as Constable (BS-05) in Capital Territory Police, Islamabad by means of offer letter dated 07.06.2012. His training period commenced with effect from July, 2012.
While he was undergoing the same he applied for 25 days leave w.e.f, 04.12.2012 for appearing in the Second Semester Exam of Master of Public Administration (MPA), University of Sindh, Jamshoro.
On receiving no response and informing his immediate senior, he left and resumed duty on 24.12.2012. He was issued a Show Cause Notice and was placed under suspension and despite his explanation was awarded major punishment of "discharged from service" under Rule 12.21 of the Police Rules, 1934, treating the period of absence as "without pay" (extraordinary leave). This was vide order of the Respondent No, 2 dated 22.04.2013. His appeal there-against was rejected by Respondent No, 1 on 14.06.2013 that since he was discharged from service under Police Rule 12.21, no appeal lies against it. Hence this appeal under S. 4 of the Service Tribunal Act, 1973.
2. Para-wise comments have been filed by the department reiterating the stance that the appellant had absented from the Recruitment Course at Police Training School, Islamabad and that he participated in the examination of Master of Public Administration, University of Sindh, Jamshoro without obtaining NOC or prior permission of the competent authority; and that his appeal was rejected, as no such appeal lies against discharge from service under Police Rule 12.21.
3. The learned counsel for the appellant and the Inspector (Legal) of the respondent department have been heard.
4. It is the case of the appellant that prior to joining the Police department, he was studying in Master of Public Administration, University of Sindh, Jamshoro and had completed his first Semester before joining the service and that since the second Semester exam was going to start from 06.12.2012 to 24.12.2012, he applied for leave of 25 days but as the response thereto was not received he was left with no option but to go and appear in the examination. It is contended by the learned counsel that such harsh approach adopted by the department has rendered the appellant jobless whereas his absence was not deliberate nor for any other unjust cause but to acquire higher education. It is contended that right to education is a fundamental right as held by the Hon'ble Supreme Court in Rana Aamer Raza Shafaq and another vs. Dr. Minahaj Ahmad Khan and another (2012 SCMR 6). It is said that there has been no adverse allegation against the appellant through out his service career. It is further contended that by applying Rule 12.21 of Police Rules, the appellant was rendered remediless at the departmental level, whereas the adverse action was taken against him without holding proper inquiry. Reference is made to Government of Sindh vs. Ryas Khichi (2003 SCMR 830) in this context. It is contended that the order of discharge from service itself is an illegal order which suffers from self-contradiction inasmuch as the period of absence has been treated as "extraordinary leave without pay" and thus there remained no question of misconduct on his part. He has also cited Lahore Development Authority and others vs. Muhammad Nadeem Kachloo and another (2006 PLC (CS) 294) and the judgment of the Tribunal dated 13.12.2012 in Appeal No, 865(R)CS/2012.
5. The perusal of the material on record would show that the appellant had been selected and appointed as Constable (BS-05), he was undergoing the training when the Second Semester Exam Schedule was announced by the Department of Public Administration, University of Sindh, Jamshoro. According to the time table the first paper was to start from 06.12.2012 and the last on 24.12.2012. It is not that the appellant had run away from the training/duty, but had gone for participation in the exam for higher education. It is his case that he had applied for leave for 25 days, but receiving no response thereto he had per-force to leave for the exam. He had been awarded Commendation Certificate by the IGP, Islamabad on 05.04.2013 for his "Good Performance" but appear to have been dealt with unfairly at the departmental level without even holding a regular inquiry. In the order of his discharge from service the Respondent No, 2 has noted that "According to his statement, he applied to the SSPILogistics (HQ) for grant of leave to appear in the examination of "Master of Public Administration (MPA)" from University of Sindh, Jamshoro for the period from 06.12.2012 to 24.12.2012 but his request was not entertained. Hence, he had to absent himself i.e, 19 days and 22 hours, from training to participate in the said exam".
The case of the appellant is that no regular inquiry was held and his fate was determined through a summary proceedings labeling him "guilty of gross misconduct". His statement referred above gave the correct version about his absence.
6. Adverting to the allegation, the basis for imposition of major penalty is the absence from duty.
But what is of importance is the cause of absence. The appellant was forthright in saying that he was appearing in the examination. Such an assertion and stance of the appellant is not denied or refuted. There is no other allegation against him. The question therefore is whether such a straightforward stance of the appellant called for such a severe and harsh penalty. Was it such an un-condonable mistake or lapse on his part. Any fair or judicious approach in the matter will not justify the imposition of major penalty. The conclusion of Respondent No, 2 that "he cannot become a good Police Officer" is merely conjectural and premature at a stage when he had started his career but has successfully completed the training and awarded Commendation Certificate of good performance.
7. His appeal there-against was also dealt with in a cursory way inasmuch as it was rejected that the same does not lie and that it was "merit-less". Such a stance and view of the department as to incompetency of the appeal is also inconsistent with their own record inasmuch as there is an order dated 05.11.2012 on the record .Disposing of an appeal submitted by Constable Imran Ali, who had been awarded major punishment of "discharge from service" but his appeal was accepted ordering his reinstatement into service. Another instance is of Constable Adeel Hussain, who had also been "discharged from service" under Police Rules 12.21 but his appeal was accepted on 23.12.2014 and was ordered reinstatement into service. Incidentally, the said order was passed by the same officer i.e, Respondent No, 1 who passed the order in the appeal of the appellant.
Disposition of matters in such a way by one and the same officer holding in one case that appeal does not lie and rejecting it and in the other accepting the appeal and setting aside the order of discharge from service under the same law, cannot be countenanced. Equal treatment and equality before the law is not only the mandate of Arts. 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 but also a cherished object of dispensation of justice. Different and double standards in identical matters are abhorred by the constitution and law. The order passed against the appellant who has been dealt with unfairly and unjustly is unsustainable on this ground alone.
8. We also find merit in the contention of the learned counsel that legal process cannot be adopted irrationally and unreasonably in disciplinary proceedings inasmuch as rendering a person jobless by applying Rule 12.21 of Police Rules, 1934 and then rendering him remediable that no appeal lies against such discharge from service. It is thus that the learned counsel has referred to Section 22 of the Civil Servants Act, 1973, Rule 10 of Government Servants (E& D) Rules, 1973, Rules 3 & 9 of Civil Servants (Appeal) Rules, 1977 and Rule 14 of Punjab Police (E&D) Rules, 1975 (said to have been duly adopted by Islamabad Capital Territory Police). His object to refer above mentioned provisions of law/Rules is to show that far any departmental penalty imposed upon the person concerned, there is a remedy of appeal within the departmental hierarchy. It is so, as the fundamental principle of administration of justice has its genesis in the rules of natural justice as observed by the Hon'ble Supreme Court of Pakistan in the Chief Commissioner, Karachi and another vs. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak). 45). In that case when the question arose as to whether the right of appeal under Sindh (Requisition of Land) Act (XLVI of 1947), carried with it any inherent right of personal audience and hearing, it was held, "that the right of appeal being a vested right, the maxim audi alterm partern applied to it, and the appeal could not be disposed of in Chamber without giving a right of a personal audience to the appellant, because if the hearing was not given it would tantamount to destroy his vested right in his absence". It is also consistent with the view taken by the Shariat Appellate Bench'of the Hon'ble Supreme Court in Pakistan through Secretary, Ministry of Defence vs. The General Public (PLD 1989 S.C. 6) that "as far as the question that the provisions barring the right of appeal in the Defence Service Laws are not repugnant to the Injunctions of Islam is concerned, we cannot agree. This Court has held that the Islamic Injunctions of Adal, Qist and Ehsan warrant that an aggrieved party should be entitled to test the correctness of a decision which results in deprivation of his livelihood. See Federation of Pakistan and others v. Public at Large (PLD 1988 SC 202) wherein the validity of certain provisions of the West Pakistan Press and Publications Ordinance (XXX of 1963) including the provisions therein which did not permit an aggrieved party the right of appeal was considered and it was held that the said provisions were against the injunctions of Islam and must be amended and the right of appeal provided. The need for testing the correctness of a decision which results in deprivation of liberty and also livelihood would obviously be greater " And further "the Federal Shariat Court in its impugned judgment has also held that the right of appeal was recognized by the Holy Prophet (Peace be upon him) as well as by the Khulfa-e-Rashtdeen and discussed this question in great detail. Nothing has been shown to us in refutation thereof The plea, thus, that barring the right of appeal does not offend against the Injunctions of Islam, cannot be accepted". In presence of such authoritative pronouncements of the Apex Court the provisions of R.
12.21 of Police Rules, 1934 denying the right of appeal to the person U concerned loose all its import and significance and cannot be pressed into service.
9. Since the appellant has not been dealt with in the matter in a just and fair manner and rather he has been victim of irrational approach, the order of his discharge from service is not sustainable and is set aside. He is ordered to be reinstated in service with all consequential benefits.
10. The appeal is accepted accordingly with no order as to costs.
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