Brief facts of the case are that the appellant was appointed as S.I on 20.8.2014, through the Punjab Public Service Commission. He proceeded to the Police College Sihala, for training of Probationer Class Course on 23.8.2014. On 11.08.2015 he submitted his resignation from the said post to "through proper channel, which was forwarded by the then Line Officer of District Police Lines, Bahawalnagar to the District Police Officer Bahawalnagar vide endorsement No, 24099" on the grounds of compelling reasons.
2. Thereafter, the appellant, being a T/S.I, was served with a Show-Cause Notice by the Competent Authority on the following allegations: "He was recruited as SI and had assumed duties on 20.8.2014. On 23.08.2014, he was dispatched to Police College, Sihala for undergoing Probationer Class Course from where the was reverted back to parent district due to absence from training and reported back in the Police Lines, Bahawal Nagar on 15.10.2014.
2. On 13.8.2015, he was again dispatched to the Police College, Sihala vide Daily Diary entry No, 8 for undergoing Probationer Class Course but reportedly he has not reported at Police College, Sihala for undergoing the mandatory Probationer Class Course and absented himself without any intimation or leave from the competent authority. On 20.11.2015, he reported back after an absence of 99-days."
3. The appellant submitted his written reply containing that his parents were suffering from severe illness. He added that being elder son he was unable to leave his ailing parents and to proceed for undergoing the training. He finally requested that he may be discharged from service enabling him to get some other job for his career. The District Police Officer, Bahawalnagar, disagreeing with the contentions made by the appellant, awarded him a major penalty of "Removal from Service" in absentia, under Punjab Police. (E&D) Rules, 1975, vide Order No, 7266-70/PA, dated 23.11.2015. The appellant being aggrieved of the said impugned order filed an appeal before the Appellate Authority which was rejected, vide Order No 17375-76, dated 30.7.2016, passed by the Regional Police Officer, Bahawalpur. Hence, the appellant instituted the instant service appeal before this Tribunal.
4. Notices were issued to the respondents. Written replies were filed by them. I have heard the arguments from both the sides and perused the record.
5. At the cost of repetition, the appellant's stance that he was to appear in Masters Examinations and he was not granted leave for the better career and it was not true resignation, rather, it was a gesture of frustration. I am of the humble view that the freedom of profession is a fundamental right, which has been guaranteed by the Article 18 of the Constitution of Pakistan, 1973, which is reproduced for ready reference.
Constitution of Pakistan, 1973 Article 18: Freedom of trade, business or profession: Subject to such qualifications, if any as may be prescribed by law, every citizen shall have the right to enter upon any lawful trade or business.
Provided that nothing in this Article shall prevent:
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce, or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, or any trade, business, industry or service, to the exclusion, complete or partial, or other persons.
I am also fortified by the settled law in a case of LA Sherwani v. the Government of Pakistan (1991 SCMR 1041), the relevant para is cited as under:-- "e) Service Tribunals Act, (LXX of 1973) S. 4 .. ... Constitution of Pakistan, 1973, Article. 25.... Appeal-- jurisdiction of Service Tribunal . . . Civil servants cannot bypass the Service Tribunals by adding a ground of violation of the Fundamental Rights ... Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights. (p.1063) E.
M. Yamin Qureshi vs. Islamic Republic of Pakistan and another PLD 1980 SC 22, Iqan Ahmed Khuram vs. Government of Pakistan and others PLD 1980 SC 153; the Controller, Central Excise and Land Customs and others V. Aslam Ali Shah PLD 1985 SC 82. The Superintendent of Police, Headquarters, Lahore and 2 others vs. Muhammad Latif, PLD 1988 SC 387, Abdul Wahab Khan vs. Government of the Punjab and 3 others, PLD 1989 SC 508, and Abdul Bari vs. Government of Pakistan and 2 others, PLD 1981 Kar. Ref'
It is also a settled law that the judgment of the honourable Apex Court of Pakistan have binding effect on all the judicial and executive authorities in Pakistan. Reliance is placed on PLD 2013 472.
The honourable Supreme Court of Pakistan held in Qaiser Zaman's case as under:; 2014 SCMR 1199
(a) Civil Servant.
"Resignation from government service, process of Delay... by concerned officials in approving resignation... Resignation of civil servant not processed by concerned officials for 2-1/2 years and instead issuing him a show-cause notice for absence from duty and consequently dismissing him froth. service. . . Legality, income tax officer appellant applied for leave to pursue further studies....
Competent Authority did not sanction the leave.. The appellant tendered his resignation from serviced on 31.3.2006, which remained unprocessed . on 13.11.2008 a show-cause notice was issued to the appellant on the ground of his absence from duty under the provisions of the Removal from Service (Special Powers) Ordinance, 2000.. . Appellant submitted his reply to the show-cause notice but no response was received by him.... On 17.1.2009 appellant received a notification entailing penalty of his dismissal from service... Departmental appeal filed by the appellant against his dismissal from service was also dismissed as time barred .. .. Federal Service Tribunal also dismissed appellant's appeal as being time barred... Plea of the department that resignation of the appellant could not be processed in time as his file had been misplaced. Validity, concerned officials under the law rules regulations were responsible for expediting the process of resignation of the civil servants well in time. Department could not justify issuance of show-cause notice to the appellant after inordinate delay of 21/2 years ... After tendering his resignation case of the appellant was not processed for 21/2 years on the ground that his personal file went missing.
Department instead of processing the case of resignation of the appellant opted to proceed against him departmentally for absence duty. Was not understandable as to how the department could sit over the resignation once it was tendered. In case the personal file of the appellant went missing the head of the department should have ordered enquiry and should have proceeded against the delinquent officers found responsible for misplacing the personal file of the appellant.
Supreme Court directed Secretaries, Establishment Division and Cabinet Division to ensure that the resignation cases of the civil servants should be processed immediately and the concerned civil servant should also be informed about its fate forthwith as per the rules; that delinquent officers! officials who caused delay in processing resignation cases should be made accountable and proceeded against departmentally .. . Appeal was allowed accordingly and orders passed by the departmental authority and Federal Service Tribunal were set aside."
6. The learned District Attorney and the departmental representative of respondents have placed the reliance on Article 116 of the Police Order, 2002 and Police Rule 14.11 of t lie Police Rules, 1934, which is reproduced as under: Article 116 of Police Order, 2002
(1) No Police Officer ..'hall withdraw from the duties of his office unless expressly allowed to do so in writing by Head of District Police or by some other officer authorized to grant, such permission. |Rule 14.11 of the Police Rules, 1934
(1) Resignation of the police officers may only be accepted by the officers empowers to appoint them.
(2) An enrolled police officer who intends to resign from the police service shall give notice to that effect in writing and ordinarily shall not be permitted to withdraw himself from, duty until two months have elapsed from the date on which his resignation was .tendered.
Provided that the Superintendent may, at his discretion, allow a head constable or constable to credit to Government two months' pay in lieu of notice.
(3) Ordinarily, ahead constable or constable who has agreed to serve for three years shall not be permitted to resign within that period.
(4) Probationary, inspectors, sergeants, sub-inspectors, and assistant sub-inspectors of police, whose appointments involve training at the Police Training School, Phillaur, shall not be permitted to resign within three years of the date of their appointment."
7. I have examined the. Article 116 of the Police Order, 2002, and provision of Rule 14.11 of the Police Rules, 1934. As per SI No, 14 Esta Code (P-466) on receipt of resignation, the department concerned is required to forward it immediately to the Competent Authority and ask the civil servant concerned to wait until resignation is accepted. In this case, the department had willfully avoided to process the case, in defiance of the instructions contained in Esta Code at SI No, 16 (P467), which required the department to forward the case of acceptance or otherwise of the resignation of a civil servant well in time." It is settled law that this Tribunal can examine the vires of any rules passed by the executive authority. Reliance is placed on 1991. SCMR 1041 and 2010 PLC (CS) 68.
8. The appellant frustrated by the act of the respondent for withholding and not accepting his application for leave, based on the reasons to appear in the LLB and CSS exams and for a better career, does not seem to be unjustified, unfair, illegal, and against the Revised Leave Rules, 1981 His application for resignation was not voluntarily rather, due to the inaction of the respondent. They did not process the application in due course of law. The competent authority acted against the S.I No, 14 of the Esta Code (P-466) as well as the dictum as laid down in Qaiser Zaman's case 2004 SCMR 1199. The submission of application for resignation was taken as exception in the shape of disciplinary proceedings which ended in removal from service as a major penalty, the future of the appellant was stigmatized for no fault on his part after tendering resignation. The appellant could have been discharged to save his career, rather, it was acted' upon adversely. Record reflects that prior to the resignation, the appellant had informed the Commandant and also intimated him through a written application and left the place of training institute, "Sihala" with his permission on 29.8.2014. The show-cause notice was issued on 30.3.2015 after about 7 months. Subsequently, his request to rejoin was also pending and remained hanging on fire without any order. Needles to mention here, that the appellant was awarded a major penalty of removal form .service without an independent fair, and impartial regular inquiry, which was mandatory as settled in 1993 SCMR 1543 and 2003 SCMR 353, 2009 PLC (CS) 98, it has been held by the honourable Apex Court of Pakistan that departure from the requirement of the regular inquiry under the rules would amount to condemn a person unheard. Reliance is placed on 2003 SCMR 393.
9. Moreover, a major penalty of removal from service without any inquiry was not justified. Reliance is placed 2009 SCMR,
98. It is C also settled law that regular inquiry was necessary as enshrined in maxim "Audi Alterarn Partem." The facts of the case depict that the appellant left the duly place after submitting an application for eave. which led to resignation. He adopted the due course of law it-flight of the judgment 2009 SCMR 1199. His absence was not without any permission or leave, the same does not fall. within the purview of misconduct. It is also settled law, that; where a question of determination of factual controversy is involved, then regular inquiry is a must. (1994 SCMR 222).
10. I have gone through the Police Rule 14.11 of Police Rules, 1934, and Article 116 of the Police Order,.
2002, which seem .to be militant to the Article 18 (part Fundamental rights and principles of policy) of the Constitution, 1973 of Islamic Republic of Pakistan, and law settled in 2014 SCMR 1199. For the aforesaid reasons, I do not find any justifiable reasons to maintain the findings of the respondents which have stigmatized the career of the appellant. He is a young man of 27 and has a long way ahead. I, therefore, set aside the impugned, orders dated 20.11.2015 and 30.7.2016. resultantly, the appellant shall stand reinstated in service from the date of removal. The intervening period shall be treated as leave of the kind due. If, the appellant is still stuck to his stance as taken in his application for resignation, the respondent department (Competent Authority) shall process the same as discussed above in light of the criteria as laid down in 2014 SCMR 1199 within 15 days, in the extreme interest of justice. The appeal is decided in the above terms.