Tariq Mehmood Khoso, Member. The instant appeal has been preferred under Section 4 of the Sindh Service Tribunals Act, 1973 by the appellant being aggrieved and dissatisfied by the impugned order dated 03.01.2018 passed by Superintendent of Police on behalf of Commandant, Special Security Unit, Sindh Police.
2. Brief facts of the case are that the appellant was appointed as Police Constable (Commando) in Sindh Police on 12.05.2017. He was deputed for recruit course at SSB, EPTC Razzakabad Karachi and then was repatriated from the course due to prolonged (medical condition) and was directed to report to SSU Headquarter but he did not report and absented himself from 01.11.2017 to 03.01.2018 (64 days) without any intimation or lawful permission hence he was awarded major punishment of Discharge from Service vide order dated 03.01.2018 passed by Superintendent of Police on behalf of Commandant, Special Security Unit Sindh Police. Against which the appellant preferred departmental appeal on 21.11.2020 before Commandant, Special Security Unit (SSU), Sindh Police Karachi which remained undecided. He filed second departmental appeal before Deputy Inspector General of Police, Special Security Unit Province of Sindh Karachi on 11.12.2020 which was not considered vide order dated 22.03.2021 and then appellant filed the instant appeal before this Tribunal on 07.05.2021.
3. In response to the notices, the Respondent Nos.2 & 3 have filed their separate written statements whereas Respondent No. 1 adopted the written statement filed by Respondent No. 3. The Respondent Nos. 2 & 3 in their written statements have taken the same stance by stating therein that the appellant did not report and absented himself with effect from 01.11.2017 to 03.01.2018 without any intimation or permission. As per letter of Medical Superintendent Police Hospital Karachi dated 31.10.2017, the appellant was suffering from Schizophrenia. It was recommended that due to his mental illness he is unable to perform duty with weapon and he may continue his duty under supervision without handling weapon. The Special Security Unit (SSU) Sindh Police is Commando Police unit and weapon handling is its essential part. When appellant was discharged from hospital, he did not report at the Unit and remained continuously absent from 01.11.2017 to 03.01.2018 without any intimation therefore he was discharged from service under Police Rule 12.21 of the Police Rules, 1934 being found unfit to retain in service. Appellant filed appeal against major punishment of Discharge from Service but as per Rule 12.21 the appeal in such matter cannot be considered.
4. The learned counsel for the appellant has contended that at the time of discharge from service the appellant was on probation. In case of discharge from service on the basis of absence from duty, the accused Police - Officer may have been proceeded against under the Sindh Police (E&D)
Rules, 1988. During training the appellant fallen ill and was referred to JPMC vide letter dated 21.09.2017. The concerned doctor vide letter dated 20.11.2017 advised that the appellant might continue his duty under supervision without weapon.
The authorities asked assured the appellant that he would be accommodated in the next batch of training but he was not called. He approached the department on different intervals for assumption of duty. He also requested to IGP on 30.10.2019 for assigning office work/office duty. On 27.11.2020 the appellant was handed over the order of discharge from service, then within 30 days the appellant filed departmental appeal to the DIG. The appellant may be discharged under Rule 12.21 only on the ground of in efficiency after complying the provision of Rules 14.11-A and 14.12 of Police Rules, 1934 which provides the procedure for discharge from service but before passing the impugned order of discharge from service under Rule 12.21 the respondents did not follow the proper procedure. If discharge was based on the allegation of misconduct then appeal can be filed before the concerned authority. He has relied upon case law reported on 2000 SCMR 75.
5. The learned Assistant A.G. submitted that the instant appeal is time barred; the appellant is suffering of Schizophrenia hence unfit for the job of police constable. The concerned doctor has recommended that he may perform duty without weapon and under supervision. Under these conditions no police constable can perform his duty. The appellant was appointed as commando and cannot render service without weapon.
6. The first point involved in this appeal is that whether an appeal is maintainable against an order of discharge under Rule 12.21 of Police Rules, 1934?
7. The Rule 12.21 of Police Rules, 1934 provides that, "There shall be no appeal against the order of discharge under this rule." However, the Honourable Supreme Court of Pakistan in case of Government of Sindh through Advocate General Sindh v. Muhammad Hussain and 06 others, (2002 SCMR 75) held that, "Furthermore, no doubt Rule 12.8 lays down that the officer against whom action is taken under the said Rule shall not have any right of appeal but the respondents being civil servants, they are governed by provisions of Civil Servants Act, 1973. The right of departmental appeal being provided to civil servants under the relevant rules; the provision of Rule 12.8 cannot prevail over the same."
8. It is imperative to mention that Rule 12.8 of Police Rules, 1934 provides for discharge of upper subordinates at any time within the period of their probation if they failed to pass the prescribed examinations including riding test or are guilty of grave misconduct or are deemed for sufficient reasons, to be unsuitable for service in Police. While Rule 12.21 of the Rules ibid provides for discharge of a police constable who is found unlikely to prove an efficient police official may be discharged at any time within three years of enrollment. Both the Rules provide that there shall be no appeal under these rules but keeping in view the dictum laid down by the Honourable Supreme Court in the above-mentioned case, an appeal shall lie against an order under Rule 12.8 and on the basis of same analogy an appeal would also be competent against an order passed under Rule 12.21. Therefore, we are of the opinion that departmental appeal and consequent service appeal against an order of discharge under Rule 12.21 is maintainable.
9. The second point involved in the instant appeal is that whether the instant appeal is time barred?
10. The perusal of the impugned order dated 03.01.2018 reveals that the appellant after his appointment was deputed for recruit course at SBB, EPTC Razzakabad, Karachi. He was repatriated from the said course due to prolong medical condition and was directed to report to SSU Headquarter but he did not report and absented himself from 01.11.2017 to 03.01.2018 (64) days without any intimation or lawful permission. Therefore, ex-parte decision was taken and he was awarded major punishment of "Discharge from Service". The record further reveals that the appellant after medical treatment for one month was discharged from hospital on 17.10.2017. The Head of the Department of Psychiatry and Behavioural Sciences, JPMC/JSMU, issued medical examination/expert opinion report 20.10.2017 diagnosed his illness as Schizophrenia and advised that he may continue his duty under supervision without handling weapons. The appellant claims that he reported for duty on 21.10.2017 but he has not produced any document to prove such claim.
The appellant has annexed an application dated 30.10.2019, addressed to the IGP, Sindh, whereby he was requesting for assigning office work/office duty but it does not bear the proper office endorsement regarding its receipt. He has also annexed another application with same subject addressed to the DIGP, Establishment Sindh, Karachi on 17.01.2020 which bear the endorsement of its receiving. The appellant lodged a complaint on the Prime Minister Citizen Portal which was ultimately disposed of on 01.06.2020, with the status "closed-relief cannot be granted". The appellant in Para 7 of his departmental appeal filed before the DIGP, Special Security Unit, Province of Sindh, Karachi on 11.12.2020, has mentioned that he was informed through PM Portal on 01.06.2020 that ex-parte decision was taken against him and he was awarded major punishment of Discharge from Service. Instead of filing departmental appeal within 30 days from the date of knowledge i.e. 1.6.2020, the appellant filed departmental appeal on 11.12.2020 which was time barred by 05 months and 10 days.
11. It has time and again been held by the Honourable Supreme Court of Pakistan in various cases that if the departmental appeal filed by a civil servant is time barred, his service appeal shall also be treated as time barred and incompetent. Reliance can be placed on 2009 SCMR 1121 (Zia-ur- Rehman vs. Divisional Superintendent, Postal Services, Abbotabad and others), 2011 SCMR 1717 (Irshad Muhammad Shah vs. HESCO and another) and 2012 SCMR 195 (Sajjad Hussain vs. Secretary, Ministry of Railways, Islamabad and others).
11. For the reasons discussed above, the instant appeal is dismissed. Since the instant appeal is being dismissed on the point of limitation, therefore, we refrain to discuss and dilate the merits of the case.