The facts which form the background are that the petitioner was a Foot Constable in the Police Force of Bahawalpur District having been appointed on 25.3-1963. He is alleged to have remained absent without any information from the place of his posting as follows:
(a) On 24-7-67 he remained absent for one day and 11 hours.
(b) on 23.4-67 he remained absent for 9 hours and 15 minutes.,
(c) on 12-5-67 he remained absent for 3 hours and 50 minutes.
(d) On 28-5-67 he remained absent for 13 hours and 2 minutes.
The Superintendent of Police ordered a departmental enquiry against the petitioner vide his order- dated 27-6-67 and a regular enquiry was held by the Deputy Superintendent of Police against him.
The Enquiry Officer found that the allegations noted above stood proved and recommended that the petitioner be dismissed from service. A show-cause notice along with the copy of the fining of the Enquiry Officer was given to him. The petitioner showed cause taut the Superintendent of Police wav not satisfied. By this order dated 30-9-67 he dismissed the petitioner from service with immediate effect. In the aforsaid` order, besides agreeing with the findings of the Enquiry Officer with regard to the allegation of the petitioner being a habitual absentee, he further noted as follows:- "This is also in my knowledge that he has abducted a woman and married her. He is habitual absentee arid of undesirable type. He is not worth retention in such a disciplined force. I, therefore, dismiss him from service with immediate effect."
The petitioner filed an appeal against the above order, which was dismissed by the Deputy Inspector-General of Police on 16-1-68. His further revision to the Inspector-General also failed. He then served a notice tinder suction W, C. P. C. on the Provincial Government. During the course of the examination of his case, in pursuance of the above notice, it was discovered that the dismissal of his appeal by tire Deputy Inspector-General of Police had been passed without affording an opportunity to the petitioner to be heard. Hence the said order was a nullity t the eyes of the law.
The Deputy Inspector-General of Police was, therefore directed through the Inspector-General of Police, Punjab, to re-instate the petitioner with effect from the date of his dismissal and to pass fresh orders on his appeal, after giving him a personal hearing.
2. The Deputy Inspector-General of Police, Bahawalpur, thereafter heard the petitioner but dismissed the appeal In his order dated 17-2-72, he inter alia, observed as follows:- "He appeared before me on 15-2-72 . . . . . . . . . . . . . . .--- He stated that he was made a victim of party intrigue and the then D. S. P. Headquarters (Mr. R. B.
Gill) who was against him was responsible for his dismissal."
While summing up his conclusions the learned Deputy Inspector-- General of Police observed as follows: "Having gone through the entire case and also having heard him in person 1 hold that there is too force in the arguments that he had been victimised because of party intrigue. Since he has taken ibis plea for the first time after he was dismissed on 30-9-67 by the then S. P. 1 am not incli6ed to accept his new version now which he had given before me as he produced no defence nor levelled any such allegation while the enquiry was in progress."
In conclusion the appeal was dismissed by the order-dated 17-2-72 of the Deputy Inspector- General of Police, as noted already.
3. Two main contentions have been raised before me by Mr. Mumtaz Hussain, learned counsel for the petitioner; firstly, that the order of dismissal passed by the Superintendent f Police has taken into consideration facts and circumstances which were not included in the charge preferred against the petitioner; and, secondly, that the learned Deputy Inspector. General of Police erred in rejecting the plea that the petitioner was victimised because of party intrigue. On the assumption that this plea was taken for the first time before him, in so far as this plea was in fact contain-.d in the grounds of Appeal dated 28-10-67, preferred against the order of dismissal dated 30-9-67 passed by the Superintendent of Police.
4. In reply, learned counsel appearing on behalf of the respondents has attempted to meet the first contention raised above by submitting that in the order of the Deputy Inspector General of Police the facts that the petitioner had abducted a woman and married her or that he was also an undesirable type were not taken into consideration and that his order to dismiss the petitioner from service was made solely on the ground that the petitioner was a habitual absentee. It is argued that since the original order on appeal merges into the appellate order, the weaknesses, if any, of the original order stand cured by the appellate order, which is based on the correct premises. As regards the 'second contention. It is admitted that in the Grounds of Appeal dated 28-10-67, preferred against the order of the Superintendent of Police, passed on 30-9-5 J, the background of party intrigue is mentioned, but, it is submitted, that the observations of Deputy Inspector-General of Police made, in his order dated 17-2-72 to the effect that this point was not raised before the Superintendent of Police and that it was taken for the first time after the order of dismissal was passed by the latter, on 30-9-67 are correct. This appears to be the true position and the only point therefore, for consideration in this case, is as to the consequences flowing from the fact of the Superintendent of Police taking into consideration allegations not included in the charge-sheet, while passing his order dated 30-9-67.
5. The order of the Superintendent of Police dated 30-9-67, the relevant part of which, has been quoted above, makes it clear that he took three circumstances into consideration while coming to the conclusion that the petitioner was unworthy of being retained in the Police Force Piz; (a) that he had abducted a woman and married her, (b) that be was habitual absentee; and (c) that he was an undesirable type. The allegations mentioned in items (a) and (c) above were not included in the charge-sheet and the petitioner had no opportunity to reout them. It is, therefore, not possible to predicate the part played by the consideration of the said allegations on the mind of the Superintendent of Police, while coming to the conclusion that the petitioner was not worthy of retention in a disciplined force, such as the Police Force.
6. The law is clear that an order, which is based on consideration of matters, which ought not to have been taken into consideration by the authority passing it, renders the order as inoperative.
See Sher Muhammad v. Bashir Alt Khan (PLD 1962 Lah. 172). The principle underlying this view has been fully explained in the Full Bench judgment of this Court in Rehmat Elahi v. Govt. of West Pakistan (PLD 19.65 Lab. 112), a herein M. Yaqub Ali, J. spooking on behalf of the Court, observed at page 121 of the report, as follows:- "What then is the effect of the wrongful inclusion of the two grounds set out above on the validity of the impugned orders of arrest and detention made under section 3 of the Ordinance? At first, the learned. . . Advocate-General conceded, and rightly so, that the orders are rendered illegal, but in his subsequent address he sought to make a distinction that if an Insignificant ground be foreign to the scope of the relevant law it did not take away from the efficacy of the other grounds. The argument is met to two ways. Firstly, the satisfaction of the detaining authority that sufficient material exists for detaining a person in preventive custody is entirely subjective and the Courts cannot sit is judgment and decipher as to which of the grounds had appealed to him as determinative and what material he considered to be insignificant. Similarly if there is more than one ground on which the order of preventive detention is based, then each ground has contributed to the satisfaction of the detaining authority and none could be excluded froth consideration.
Conversely, if the detaining authority considered any material as insufficient to warrant preventive detention he will not set it out in the grounds of detention served on the person detained to make an effective representation against it."
7. The upshot is that the order-dated 30-9-67 passed by the Superintendent of Police dismissing the petitioner from service is not a proper order in the eyes of law. The submission made on behalf of the learned counsel for the respondents that the said order should be deemed to have merged into the appellate order, passed by the Deputy Inspector-General of Police, dated 17-2-72, has no force. If the original order is without jurisdic--tion, its mere affirmation by the appellate authority cannot make it legal. See Yousaf Ali v, Muhammad Aslam Zia (PLD 1958 SC (Pak.) 104).
Furthermore, in the instant case the Deputy Inspector-General, has no revisional authority over the order passed by the Superintendent of Police and, therefore, the argument that an illegal order of the first authority can be cured by a valid order passed by the appellate authority Is not at all available in the absence of the appellate authority also possessing suo motu powers of revising such an order.
8. The order of dismissal passed against the petitioner-dated 30-9-67 is, therefore, declared to be without lawful authority and of no legal effect. The result is that the petitioner would be deemed to have continued in service, notwithstanding the above order of dismissal. In conclusion this writ petition succeeds and is hereby accepted. In the circumstances of this case, however, there shall be no order as to costs.