Asim Akram, Member Since both the titled appeals are almost identical in their characteristics i.e. having similar facts and involving common questions of law, we intend to dispose them off jointly through this single judgment.
2. The facts giving rise to these appeals are that both the appellants Ijaz Ahmed, Head Constable and Zaheer Ahmed, Constable were posted at Police Station Shahzad Town, Islamabad when they were issued a Show-Cause Notice on 22.06.2019 as per Rule 4(a) & (b) of the Punjab Police (E&D)
Rules, 1975 (Rules) as adopted by the Islamabad Capital Territory Police, Islamabad. In the said show-cause notice, it was stated that there is an ample proof and record to initiate General Police Proceedings, without inquiry under Rule 6(3)(i)((a) and (b) of the said Rules. The appellants replied to the Show-Cause Notice and denied the charges levied against them. Orderly Room proceedings were held on 28.06.2019 and their plea/reply being found unsatisfactory resultantly they were awarded major penalty for dismissal from service under the Rules. Departmental appeals were filed by the appellants through proper channel and vide order dated 29.10.2019 the appellate authority re-instated them in service from the date of dismissal i.e. 28.06.2019 with direction that the intervening period from the date of dismissal be treated as leave of the kind due.
By a subsequent order dated 20.12.2019, hereinafter called the impugned order, the earlier order of re-instatement was cancelled/ withdrawn.
2. Feeling aggrieved, the appellants have filed the appeals at hand challenging the order dated 20.12.2019 with a prayer that the said impugned order be set aside and they be reinstated into service along with consequential back benefits.
3. The learned counsel for the appellant has assailed the impugned order inter-alia on the grounds that the order dated 29.10.2019 was final order passed in departmental appeals and there is no provision of withdrawal of the same provided in law/Rules. The learned counsel for the appellant further states that the impugned order has been passed due to Media pressure in Frishta Bibi case bearing FIR No. 99 of 2019 and the appellants have no role in commission of the charges levied against them. He added that while passing the impugned order no personal hearing was given to the appellants.
4. The respondents have vehemently opposed the appeals by filing their objections in these appeals wherein it is stated that the Tribunal lacks the jurisdiction to adjudicate upon the matter. It is further stated that the departmental proceedings were initiated against the appellant in furtherance of Judicial Inquiry conducted in the case bearing FIR No. 99 of 2019 wherein the Judicial Inquiry Officer recommended departmental proceedings be initiated against the appellants. The proceedings were conducted in accordance with the procedure laid in Punjab Police (E&D) Rules, 1975 adopted Islamabad Capital Territory Police, Islamabad.
5. We have heard the arguments of learned counsel for the appellants and the departmental representative appeared on behalf of the respondents. We have also perused the record carefully.
6. At the first instance we would like to address the question of jurisdiction of the Tribunal in the subject matter as raised by the respondents. The employees of the Islamabad Capital Territory Police, Islamabad are serving under the Federal Government and falls within the definition of Civil Servants as defined in Section 2(1)(b) of the Civil Servants Act, 1973. As such the objection raised by the respondents stands overruled.
7. After passing of the order dated 28.06.2019 whereby finding plea/written reply of the appellants was found unsatisfactory, major penalty of dismissal from service was awarded upon them.
Appeals were filed against the said order under Rule 14 of the Punjab Police (E&D) Rules, 1975. Rule 14(b) provides for only one appeal against the original order and the order of the appellate authority is final. A review petition is admissible against the said order as per Rule 14(c) in case if the order is passed by Inspector General of Police. For ready reference the provisions of Rule 14 the Punjab Police (E&D) Rules, "1975 are reproduced hereunder: "Rule 14. Appeal...
(a) An appeal shall lie only against the order of dismissal, removal from service, compulsory retirement, reduction in rank or timescale, forfeiture of approved service and imposition of fine.
(b) There shall be one appeal only from the original order and the order of the appellate authority shall be final.
(c) The appeal shall lie to an officer one step higher in rank as shown in the Schedule, than the one who passes the original order provided that in case of orders passed by the Inspector General of Police, only a review petition would be admissible."
(The holding and underlining is done for consideration)
8. In the case at hand, the order dated 29.10.2019 passed in the appeals talk about "Temporarily Re-instated" despite the fact that there is no provision of temporarily reinstatement whereas the order for dismissal has been withdrawn and the intervening period from dismissal till withdrawal has been ordered to be treated as leave. This order is final in its nature, wherein the operation of the previous dated 28.06.2019 has not been suspended rather withdrawn while accepting the plea taken by the appellants being found satisfactory and convincing.
9. Rule 14 of the Punjab Police (E&D) Rules, 1975 provides only appeal and which ever party being aggrieved can approach the appropriate forum against the said order. In the case at hand, the order dated 29.10.2019 & 20.12.2019 were passed by similar individual and the reason given in the impugned order that "due to Law and Order situation during Dharna of JUI(F) he was temporarily re-instated into service from the date of dismissal i.e. 28.06.2019 for performing security duties.
This Office Order No. 7547- 52/Admn/DIG/Ops, dated 29.10.2019 is hereby cancelled, withdrawn with immediate effect i.e, 19.12.2019" does not bear any weight.
10. The respondents are barred by the principle of estoppels when after passing of the order dated 29.10.2019, the appellants were re-instated and were paid salary for two months and the intervening period of their dismissal till their re-instatement was treated as leave. The respondents preferred no appeal against the order dated 29.10.2019 and the same has attained finality.
Meaning thereby that the respondents have accepted the order passed by the appellate authority.
Now the appellate authority is barred to withdraw its earlier order that to without any complaint.
11. It is also to be observed that the term of "Temporarily Re-instated" as described in the impugned order dated 29.10.2019 is not C provided in the provisions of Punjab Police (E&D) Rules, 1975. The order dated 20.10.2019 whereby the appellants were re-instated a word of temporarily has been added which has no legal sanctity in the eyes of law. Even the impugned order dated 20.12.2019 does not describe any provision of law/rules under which the same has been passed and the earlier order is cancelled/withdraw. The appellate authority once it has passed an order under Rule 14 does not have jurisdiction to cancel/ withdraw the same on the principle that the respondent- department could not approbte and reprobate in the same breath with regard to the same matter and would be estoped from taking such position as they cannot be allowed to accept one thing for one purpose and to reject same for another. As such the impugned order 'dated 20.12.2019 is against the provisions of Punjab Police (E&D) Rules, 1975 as it does not provide for reconsideration of an order passed by the appellate authority, making the said impugned order illegal and void bearing no lawful justification or cogent reason. Reliance is placed on the case reported as 1998 PLC(CS) 893 in which the Hon'ble Supreme Court of Pakistan has held that if a civil servant once exonerated by the respondents from the charges levied against him would stand restored in service.
12. In view of foregoing facts, we are of the opinion that the impugned order dated 20.12.2019 is not permissible under the law as the respondents were not vested with authority to withdraw or rescind an order if same had taken legal effect and created certain legal rights in favour of an individual.
As such once the re-instatment orders were passed, the respondents could neither be revoked nor withdrawn under the principle of locus poenitentiae. Therefore the same is hereby set aside and the appeals are allowed. Resultantly the appellants stand re-instated into their service by keeping intact the earlier order dated 29.10.2019 passed by the appellate authority. The respondent are further directed to treat the intervening period during which the appellants remained dismissed from service as leave of the kind due.
13. No order as to costs. Parties be informed in accordance with rules.