1. ' MUHAMMAD ISHAQ KHAN (CHAIRMAN).-This is a service appeal filed by one Zia-ul-Hassan Shah, Ex.-A. S. I. Chah Syed Munawar Shah, D. I. Khan, the appellant, against the order dated 23rd December, 1979 conveyed vide endorsement No, 297, dated 3rd January, 1980 rejecting his petition for review against respondent No, l's earlier order dated 30th April, 1979 whereby the appellant had been removed from service.
2. ' The facts briefly, stated are that the appellant who had initially jointed service as A. S. I. In 1969, was at the relevant time serving at Police Station Mardan, Bannu District. On 7th August, 1977 he tendered his resignation because of his ill health and because of the Superintendent of Police, Bannu's refusal to allow him sick leave. He then left for his home at D. I. Khan. The appellant was, however, informed by respondent No, 2 that his resignation had not been accepted and that he should immediately return and report at Bannu. Accordingly, the appellant reported in the office of Respondent No, 2, where he was served with notice which was duly replied by the appellant. But respondent No, 2, without appreciating the circumstances and without Considering the appellant's resignation submitted earlier, arbitrarily ordered the appellant's dismissal from service. Had respondent No, 2 acted wisely by allowing the appellant to leave the service there would have been no trouble.
3. ' The appellant has further alleged that he was not given the ,dismissal order by respondent No, 2 in writing in spite of the demand made in this behalf. The respondents who contested the case have admitted that no written order was delivered to the appellant. But their explanation is that the appellant was not traceable which was not very convincing, particularly when it comes from the Police.
4. ' Thereafter, the appellant filed an appeal against respondent No, 2's order and his appeal was accepted by the Deputy Inspector-General of Police, D. I. Khan by his order dated 2nd January, 1978 re-instating the appellant in service as A. S. I. But reducing him to the lowest scale of his pay as A. S. I. His name was also removed from the promotion list `E' and he was posted to D. I. Khan District till further orders. The intervening period was treated as leave.
5. ' Dissatisfied with the partial acceptance of his appeal by the Deputy Inspector-General, he again moved a petition for a review before the same Deputy Inspector-General which was not accepted, directing him to approach the Inspector-General of Police, North-West Frontier Province and the decision was conveyed to the appellant through endorsement No, 6670- 71 dated 25th February, 1978 D. I. Khan. Accordingly, the appellant approached respondent No, 1 with a petition for his restoration to the original position as it existed prior to respondent No, 2's dismissal order. This petition was filed on 9th November, 1978 and it was decided on 30th April, 1979 rejecting his mercy petition but at the same time directing his removal from service under rule 4(b) (III) of North-West Frontier Province Police Rules, 1975. This order was admittedly conveyed to the appellant on 4th May, 1979 whereafter the appellant is alleged to have fallen ill because of the shock. However, after recovering he moved a petition for the review of the said order which was turned down on 23rd December, 1979 conveyed to the appellant under endorsement No, 297 dated 31st January, 1980 which was received by the appellant on 5th April, 1980. The appellant feeling aggrieved filed the present service appeal on tad February, 1980 alongwith the application for condonation of delay, if any.
6. ' The appeal has been contested by the respondents who submitted their written statements, contending that the action taken by respondent No, 1 was correct. They have also raised two preliminary objections regarding the appeal being time barred and non-joinder of a necessary party viz. Deputy Inspector-General, D. I. Khan Range.
7. ' We have heard the learned counsel for the parties and have gone through the record placed before us. The learned counsel for the appellant contended that a perusal of the very order issued by respondent No, 1 shows that it was under North-West Frontier Province Police Rules, 1975 which is confirmed by the last sentence of the order itself :- ' "His mercy petition is rejected and he is removed from service with immediate effect, under rule 4(b) (III) of North-West Frontier Province Police Rules, 1975."
8. ' This being the case it does not lie with the respondent's counsel or the respondents for that matter, to take a stand different from the one taken by the Inspector-General of Police as noted above. The respondent's plea that the impugned action by respondent No, 1 was taken under rule 16.28 of the Police Rules, 1934, is only an afterthought as no such ground has been taken in the written statement and the plea taken in arguments is also contradicted by the very order passed by the Inspector General of Police. Besides, learned counsel for the appellant has also drawn our attention to the fact that the Punjab Police Rules, 1934 are inapplicable to this Province as we have the North-West Frontier Province Poline Rules, 1937.
9. ' Now coming to the North-West Frontier Province Police Rules, 1975, we find that rule 11 of the said Rules dealing with the appeals envisages only one appeal from the original order, and the orders of the Appellate Authority are final. This rule excludes the jurisdiction of all those above the Appellate Authority. It is an admitted fact that respondent No, 2 was the authority competent to inflict any punishment including that of dismissal from service upon the appellant which he did in the instant case. The Appellate Authority in this case admittedly is Deputy Inspector-General of the Range, who had accepted the appellant's appeal and had ordered his re-instatement in service setting aside the penal order of dismissal, with certain modifications, of course. This being the case respondent No, I had no jurisdiction to interfere in the matter under the Rules even if he was approached by the appellant. The mercy petition though misconceived was to be disposed of in accordance with the law and the law requires that no such petition is to be entertained under the Rules. We may also refer to rule 13 of the said Rules which repeals all the existing Disciplinary Rules applicable to Police Officers to whom Police Rules, 1975 apply. Obviously, the Rules applicable to the appellant's case are the North-West Frontier Province Police Rules, 1975 and under these Rules, respondent No, I not being the Appellate Authority had no jurisdiction to interfere with the appellate order validly passed by, the Deputy Inspector-General. Thereafter, the order passed by him on 30th April, 1979 conveyed under endorsement No, 6704-61E(11), dated 30th April, 1979, annexure 'E' to the memorandum of appeal is null and void.
10. ' There is a long list of rulings referred by the learned counsel for the appellant on the point of jurisdiction out of which I may note a few as under :- ' PLD 1958 Supreme Court of Pak. 119, PLD 1961 SC 322, PLD 1975 Karachi 128, PLD 1973 SC 236.
11. In the instant case, respondent No, l's action amounts to a usurpation of power unwarranted by law and such an action is a nullity, ' This Tribunal cannot allow perpetuation of such an Act which is not only without jurisdiction but is patently unjust and unlawful, because respondent No, 1 while upsetting the order of the competent Appellate Authority in violation of the Rules not only assumed jurisdiction which did no vest in him but had also passed the impugned order in an utter disregard of the established principle of natural justice that no one is to be condemned unheard. Particularly so when the appellant acquired a vested right to continue in service through an earlier valid order and such a vested right could not be altered or changed to the detriment of the appellant without prior notice. We may refer to Supreme Court authority on this point reported as PLD 1969 SC 407.
12. ' Having held that the impugned order was null and void, we in respectful agreement with the established view of the Supreme Court o Pakistan are of the view that laches, delay or question of limitation B under such circumstances would not arise. However, we are inclined to condone the delay, if any, on the part of the appellant under the circumstances of this case.
13. ' The appellant had filed an affidavit in support of this allegation contained in the memorandum of appeal which has not been countered through a proper counter-affidavit though the respondents have filed a short sworn statement.
14. ' For the foregoing reasons, we accept the appeal, holding that the impugned order dated 30th April, 1979 passed by respondent No, 1 is void ab initio and the same is hereby rescinded. The appellant is re-instated in his service. Parties are, however, left to bear their own costs in this appeal.