S. ABBAUL JABBAR KHAN (CHAIRMAN). -Umer Hayat Khan Niazi has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Superintendent of Police, Faisalabad, D. I.-G. Police, Sargodha Range, as respondents.
2. By virtue of this appeal he has prayed that the impugned orders dated 10-11-1981 and 23/25-3- 1982, be set aside and the appellant be re-instated in service with full benefits of pay etc.
3. Brief facts of the case are that the appellant joined service as a probationer ASI on 1-4-1951. He was confirmed and brought on list 'E' w.e.f 10-9-1958. He was further promoted as Sub-Inspector on 2 years probation w.e f. 10-8-1968, in Lahore Range and was to be con--firmed from that date on the expiry of his probation period. His confirma--tion did not materialise and he was placed on 2 years probation w.e.f. 1-7-1973 in Sargodha Range. As this probation also did not bear fruit the appellant after filing departmental representation filed an appeal No. 7/74 of 1977, before this Tribunal which was accepted on 18-11-1979. By virtue of this judgment an order dated 24-6-1975 of the D. I.-G. Sargordha Range regarding appellant's reversion w.e:f. 1-7-1973 was set aside. This Tribunal further directed the D. I.-G. To examine whether the appellant's transfer in 1968, when he was on probation in Lahore Range took place at his own request or due to exigency of public service and observed that if he was so transferred in public interest, he was entitled to retain his status of probationer even in Sargodhas Range, in accordance with I.-G.P.'s own instructions dated 26-4-1968. As this judgment was not implemented for about 11 years appellant again moved this Tribunal through a Miscellaneous of application and ultimately vide its order dated 25-1-1981 the Tribunal accepted the application and issued necessary directions. These directions only resulted in the implementation of half judgment as D. I.-G. Police Sargodha Range dated 7-8-1980, treated the appellant is confirmed S. 1. w.e.f. 1-7-1973. The matter relating to LahoreRange was still left undecided. At this juncture an exercise was taken in hand by the Department to retire officials who had completed 25 years of service under section 12 (ii) of the Punjab Civil Servants Act, 1974. The appellant at the relevant time was working under S. P., Faisalabad Mr. Manzur Ahmad Khan. The Advisory Committee formulated for the said purpose issued directions to the said S. P., to retire the appellant under the above-mentioned provisions. The competent authority after examining the case of the appellant submitted that the case of the appellant was a case of retention in service while other eight S. Is. Were not proceeded under the above-mentioned provisions. D. I.-G. Police did not approve the decision of the competent authority although recommen--datory in nature and asked him to take action against the appellant for retiring him under section 12 (ii) of the Punjab Civil Servants Act, 1974. Despite this clear cut direction of the D. I.-G. Police, the competent authority still considered not possible to refer his case to the said commit--tee. This decision of the competent authority brought a stern direction from the D. I.-G. Police. Ultimately the competent authority made a reference to the Advisory Committee vide letter dated 11-6-1980 but at the same time again reiterated that the retirement of the appellant was not in the public interest. The D. I.-G.
Wrote a very stern note and brought out in his letter dated 27-7-1980 Annexure H, short--comings of the appellant and again advised the competent authority to take action against the appellant.
There were further correspondence between the competent authority and D. I.-G. In which the competent authority stuck to his earlier views but when it was found that the D. I.-G. Was adamant to see the appellant retired he vide a letter dated 1-12-1980, wrote as under :- "The S. I. May be retransferred to this district and the day he reports he will be retired compulsorily without referring to the Advisory Committee again."
The appellant was transferred from Sargodha to Faisalabad District on 10-12-1980. The appellant was ultimately retired from service by respondent No. 1 vide his order dated 10-11-1981 and his Review Petition was rejected and this information was conveyed to the appellant on 25-3-1982.
Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.
5. Learned counsel for the appellant has pleaded that according to section 12 (ii) of the Punjab Civil Servants Act, 1974, a civil servant can be retired by a competent authority after completing his 25 years service qualifying for pension and other benefits. It has been further submitted that Article 13 of the P. C. O. 1981, protects this section, if it is found that the civil servant has completed 25 years service qualifying for pension and other benefits and the order is passed by the competent authority. Relying on these two provisions he has urged that the pre-conditions of retirement under section 12 (ii) can be completion of 25 years' service qualifying for pension and other benefits and action by the competent authority. Learned counsel has all along argued that the' history of this case will make it crystal clear that the appellant was not retired by the competent authority but the action taken against him by the competent authority was due to coersive direction of the D. L-G.
Who headed the Advisory Committee and thus the impugned order would be violative of the conditions as laid down by them under P.C.O. 1981, as well as section 12 (ii) of the Punjab Civil Servants Act, 1974. For this he has relied on the various judgments of this Tribunal viz. Bashir Hussain v. S. P. Sialkot and D. 1.-G. Police, Gujanwala case No. 482/1227 of 1980 and Muhammad Iqbal Nasim Foodgrain Inspector v. Deputy Director, Food, Multun Region and 2 others Case No. 428/747 of 1980, and has submitted that as these two judgments have attained finality the law laid down in these two judgments shall have to be respected by the respondents and the case of the appellant was within the four corners of the above--mentioned decision.
6. On the other hand learned District Attorney has adopted the parawise comments filed by the respondents in extenso and has controverted the stand of the appellants' counsel that the impugned order was in fact an order not by an independent mind lout under the coersive direction of the superior of the competent authority.
7. We have given our anxious thought to the main and crucial issue in this case which would be whether the impugned order passed by the competent authority, was passed independently or the same was under the direction and behest of his superiors whom he could not displease. To assess the situation of the present case we will now refer to certain observa--tions which for all purposes would be the bedrock or sheet anchor of the appellant's case. It is on the record that when the case of the appellant was examined under provision of section 12 (ii) by the competent authority he observed as under :- "Consequently eight out of nine Sub-Inspectors have been retired while S. I: Umer Hayat Khan Niazi whose case is explained below is distinguishable from other has been retained. During the last 10 years he did not earn any adverse report. His A. C. Rs. For this period although not outstanding, are yet better than those of many other Sub-Inspectors presently serving in the Department. His last posting was as SHO/Khurrianwala where he performed his duty satisfactorily. He was specially selected for posting as S. I. Security on 25-1-1979 a job which he is performing efficiently and conscien--tiously. He is a hardworking and seasoned officer who is performing his duty satisfactorily. I consider that his retirement for the lapses committed much earlier, would not be justified. It is therefore, requested that S. I. Umer Hayat may kindly be allowed to continue in the Department."
The matter would have ended here if the competent authority who has unequivocally found the appellant suitable to be retained in service, should have retained the appellant himself and not referred the case to the Review Committee. We will further reproduce the stand of the com--petent authority when he was again directed by the D. I. G. To take care of the appellant. Annexure E is the observation which we reproduce below for ready reference :----- "All the officers recommended for retirement except him were retired but he was retained on account of his better services and recommendations for his continuance in service were made to Range Office, Sargodha vide this office Memo. No. 220/GRC dated 5-2-1980. In the light of these affairs it was considered not possible to refer his case to the said Committee in January, 1980, as the previous order of the Committee was not implemented."
This note brought a strong direction of the competent authority in the following terms :- "The position taken by you in your above-quoted T. P. Message is untenable."
We also come across a very pertinent and firm observation of the competent authority vide his letter dated 11-6-1980 Annex C, in which it was stated that the recommendation for retirement of S. I. Umer Hayat Khan No. U.I. (Now S/9) of the district received vide your memo. Under reference was not implemented as being competent authority. I personally considered it necessary to retain him in service for public interest as lapses under which he was recommended for retirement were of about last eleven years while his subsequent working is quite satisfactory " This stand is obvious and unhesitant that has once for all concluded the case of the appellant in his favour viz. That the competent authority was in no manner ready to retire him as he was considered an asset of the Department. The DIG was also adamant in the matter and he told the competent authority in clear manner that the record of the appellant was bad as he had adverse report for 1972 and awarded censure twice in the year 1976, therefore, his case was of a retirement case and the competent authority should do the same.
8. In view of the above we are absolutely clear in our mind that the competent authority, not once but a number of times told the D. I. G. Police that he was a fit person to be retained in service and despite number of directions resisted to be influenced by him who ultimately had to obey his order as being a Member of disciplined force, he could not withstand the displeasure of his superiors. We have stated in our earlier judgment so cited by the learned counsel for the appellant that in these circumstances the faculties of the competent authority are likely to be paralysed and it would not be possible for him to exercise an independent mind which is sin qua non of the spirit of section 12
(ii) and Article, 13 of the .P.C.O, 1981.
9. Following our earlier view which has attained finality and has become law laid down we hold that the impugned order passed by the competent authority never emanated from his independent mind but on the converse he took a very strong and firm stand in favour of the appellant a number of times who ultimately could not withstand the pressure of the D. L-G.
10. We therefore, proceed to set aside the order so impugned and direct that the appellant be re- instated in service as if he was never retired from service by the competent authority himself but the action against him has been taken at the direction of the D. I.-G. There will be no order as to costs.