MUHAMMAD SIDDIQUE FAROOQI, (CHAIRMAN).--The appellant has assailed various orders passed by the officers of Police Department. The Superintendent of Police discharged the appellant from services, vide his order dated 12-6-1979. Against this order the appellant went in appeal before the Deputy Inspector-General of Police, who dismissed the same on 7-2-1984. A Review Petition presented by the appellant was also dismissed on 23-5-1984. The appellant has challenged all the orders and prayed for re-instatement to the service. We heard the arguments of the counsel for the parties and perused the record. The learned counsel for the appellant argued that order dated 12-6-1979 was void ab-initio for having been passed without initiation of disciplinary proceedings, against the appellant and without issuance of show-cause notice to him, therefore, the subsequent orders upholding the same are also void. The learned counsel for the respondent pleaded that the appeal was time-barred against all the orders and further stated that there was no illegality in discharging the appellant from service. According to the learned Additional Advocate-General, counsel for the respondent, the appellant was a member of Police Service and absence from duty without leave entails dismissal, therefore, there was no illegality in discharging the appellant, from the services of the police department on account of his absence from the duty.
2. In our view, the following points need determination:-
(a) Whether any disciplinary proceedings were initiated against the appellant and whether he was issued any show-cause notice to defend himself against the charge of absence?
(b) Whether the order is void?
(c) Whether the appeal entails dismissal, on account of limitation?
3. The learned counsel for the appellant referred to the statement of Muhammad Hanif, Constable Reserve Police, who is an orderly Sergeant and is also performing the functions of Record Keeper of Reserve Police, Muzaffarabad. This witness was produced by the appellant, who had brought the service record of the appellant. It was stated by him that the appellant applied leave for one month but he was allowed only 5 days leave, which expired on 18-3-1979 and the appellant did not turn up for duty after the expiry of 5 days leave. An application for one year's furlough leave was received. The application dated 13-3-1979 is Exh.P.A./2. Another application dated 20-3-1979 was received from Karachi, which was accompanied by a Medical Certificate, Exh.P.A./4. This application was rejected and information was sought to be conveyed to him on his home address, vide notice Exh.P.A.5. On the notice, there is a report, Exh.P.A./7 by Chowkidar of the Village that the appellant was not at home and had gone to Karachi. Thereafter, order dated 12-6-1979 Exh.P.A./8 was issued, whereby the appellant was discharged from service. It was stated by the Record Keeper that no notice was issued in any newspaper, nor otherwise except one on which aforesaid report of Chowkidar was received. The order of discharge from service was also neither published in any newspaper nor served directly by the office, rather a copy of order was marked to Commander Reserve Wing Mirpur, with the direction that the appellant be informed. There is no record to show that the order was served upon the appellant. Thereafter, application for extension of leave was also received on 24-1-1980 and the appellant was replied that he had been discharged from service, but there is nothing on record to show whether this reply was received by the appellant.
4. The learned counsel for the appellant argued that first notice issued to the appellant contained an information that the leave applied for was not sanctioned and that appellant should resume the duty which was not legally served upon the appellant, through any mode recognized by law for the service of a notice. On the failure of the appellant, in resuming the duty, the disciplinary proceedings could have been initiated with charge-sheet and show-cause notice should have been issued to the appellant for defending himself against the charge but neither the disciplinary proceedings were initiated, nor enquiry was conducted and no show-cause notice was issued.
Thus, failure on the part of Superintendent of Police Reserve, in this behalf has rendered the action taken against the appellant as a nullity in the eyes of laws. The order is, thus, void ab-initio.
5. According to the learned counsel for the appellant, there was no question of limitation against such an order, which is void ab initio and it is also not proved that it was ever conveyed to the appellant. There is also no proof on file that the appellant got an information of refusal of the leave applied for. The counsel for the appellant cited an unreported judgment of Supreme Court of Azad Jammu and Kashmir, entitled; Faiz Muhammad v. Imam Din, delivered on 22-5-1985. He also cited PLD 1966 SC 531, PLD 1974 Lah. 434 and PLD 1967 Kar. 295.
6. The Additional Advocate-General as earlier pointed out, pleaded that it was the duty of the appellant to get information about the sanction of his leave and in absence of the sanction, he could not have availed of the leave, as the appellant was a member of Police Department, which is a disciplined force.
7. We have examined the legal position of the case. Apart from the authorities, quoted by the learned counsel for the appellant we have been able to lay our hand on recent authority namely; 1986 PLC 854, which is a case of absence of Police Official. The authorities namely; PLD 1966 SC 531 and PLD 1967 Kar. 295 are not relevant to the issues involved in this case. In the case entitled; Faiz Muhammad v. Imam Din, decided by our own Supreme Court on 22-5-1980, it has been held by the Honourable Court in paragraph 8, of the judgment as under:- "We are, on careful consideration of the point, involved in agreement with the learned counsel for the appellants that order of cancellation, passed by the Rehabilitation Minister without any notice to the appellants, was void ab initio and all the orders passed thereafter by the Rehabilitation Authorities in favour of respondent were, for having been passed without lawful authority, also void and non-existent."
Again, in paragraph 13, it has been observed as under:- "For arriving at the conclusion in both the aforesaid cases that void order is always to be ignored regardless of limitation made by Mr. Munir C.J. In Yousuf Ali's case PLD 1958 SC 104. This passage from Munir C.J.'s judgment, observed Mr. Dorab Patel, J. In S. Sharif Ahmad Hashmi v. The Chairman Screening Committee, Lahore and another, 1980 SCMR 811."
The Supreme Court has also relied upon PLD 1974, Lah. 434,' which was cited by the learned counsel for the appellant. The relevant paragraph is at page 440, which reads as under:- "In the instant case, however, the Deputy Settlement Commissioner by not issuing any notice or affording any opportunity of being heard to the petitioner and not conveying the ex parte order to him, has clearly violated to the provision of Settlement Scheme, No. 1. It is, therefore, not only the violation of principle of audi alteram partem, but clear defiance of the statutory provisions of the scheme. In such a situation, the fact that the petitioner was subsequently heard by the higher Settlement authorities in appeals or revision, will not remove the infirmity suffered by the order of the Deputy Settlement Commissioner."
The Supreme Court has also relied on PLD 1958 SC 107. In the case reported in 1986 PLC 854 it has been held at page 856 paragraph 9 as under:- "In view of these two affidavits on record, it was incumbent upon the appellant Authority to remand the case for further enquiry to verify these facts. This enquiry was necessitated on the ground that S.P. Headquarters, Lahore, who has relied on the report of Maratab Ali Constable with regard to the service so effected upon the brother namely Ghulam Hussain as alleged had neither summoned the said Maratab Ali before him nor recorded evidence so that it was proved that the report so made by Maratab Ali was ficticious, who was to be proceeded against for providing this fake document of, what the learned S.P. Did that he arbitrarily accepted the report of Maratab Ali and thus, straight way dismissed him from service. Similarly when the case was before the learned Additional Inspector-General Police with all these documents, which are now before this Tribunal, the justified course open to the authority was to probe into the matter for remanding the case for further enquiry to see the stand taken by the appellant was correct or not."
8. The way in which the case has been processed is evident from the order of Superintendent Police, reproduced below:-
9. Appellants going abroad is not borne out from record. Again, the Superintendent Police passed the following order on 9-6-1979 on the report of Orderly Head Constable:- Thereafter, order, dated 12-6-1979 was issued. The case of the appellant is even stronger than the last mentioned case report in 1986 PLC 854, for the reason that the appellant proceeded on leave sanctioned in his favour and thereafter, he absented himself from duty due to illness. The application was supported by a Medical Certificate, forthcoming from the record of the Reserve Police. As suggested in the aforesaid case, the proper course for the Superintendent was to ask the appellant for appearance before any other Medical Officer, if the Superintendent was not satisfied about bona fide of the application. He could have also satisfied about the genuineness of the leave applied for, if he had doubt about the certificate submitted by the appellant, but it was not at all proper to refuse the leave. The second irregularity committed by the Superintendent was the taking of extreme disciplinary action of discharge from service without initiating any disciplinary proceedings in the form of charge-sheet and enquiry, nor the Superintendent Police observed the procedure prescribed in the Police Rules. The relevant provision is embodied in Rule 11-A of Chapter 14 of Police Rule, dealing with the cases of absence, which is reproduced below:- "14. 11-A. If an enrolled police officer withdraws from the duties of his office without permission or without having given the two months previous notice as prescribed in rule 14.11(2) or, being absent on leave fails, without reasonable cause to report himself for duty on the expiration of such leave, he shall be prosecuted under section 29 of the Police Act, 1861, and a warrant for his arrest shall be applied for. If the officer absconds or conceals himself so that the warrant cannot be executed, an application shall be made to the Court for the publication of a written proclamation under section 87 of the Code of Criminal Procedure. If the proclamation is made and the police officer so proclaimed fails to appear within the statutory period of thirty days, he may be dismissed or otherwise dealt with at the discretion of the police officer empowered to appoint him, under Rule 16.2."
The other provisions, relating to misconduct were also not kept in view, which are as under:- "16.1.(1) No Police Officer shall be departmentally punished otherwise than as provided in these rules.
16.22. (1) In all departmental cases in which the alleged offence is such as to merit a major punishment, if proved a record shall be kept which shall contain:-
(a) the charge;
(b) the evidence supporting the charge;
(c) the defence of the accused officer;
(d) the statements of the defence witness, if any;
(e) the finding of the officer conducting the case;
(f) the final order.
16.24(1) The following procedure shall be followed in departmental enquiries:- '
(i) The police officer accused of misconduct shall be brought before an officer empowered to punish him, or such superior officer as the Superintendent may direct to conduct the enquiry. That officer shall record and read out to the accused officer a statement summarising the alleged misconduct in such a way as to give full notice of the circumstances in regard to which evidence is to be recorded. A copy of the statement will also be supplied to the accused officer free of charge."
10. The third irregularity was the non-issuance of the show-cause notice for the penalty proposed to be passed. The Superintendent of Police on the mere report of Chowkidar wrongly construed that the appellant was going abroad, the application was not genuine and that the Medical Certificate was fake. All these three conclusions drawn by the Superintendent Police were unfounded and uncalled for. The Superintendent of Police could not claim that by any intution, he came to know that the appellant was going abroad and the illness was a lame excuse. The- surmises and conjucture cannot support such a conclusion, nor this can be substituted for a legal enquiry or the show-cause notice. Whenever, any action is sought to be taken against any Government official, it is a legal right of the official that he should be B heard in defence and in the case of non fulfilment of this requirement, it renders the entire proceedings against the official as null and void. We may quote here that in PLD 1964 SC 97 it was held by Supreme Court of Pakistan that a Court was not competent to hear a case on a date which was not fixed for hearing and any degree or order, passed on the basis of proceedings held on such a date was a nullity in the eyes of law. Applying this principal to the present case, the proceedings taken in the present case, on a date of which the appellant had no notice was a nullity in the eyes of law. In the present case, no proceedings for disciplinary action were initiated in the legal form and only the final order seems to have been passed on the report of a Chowkidar. This report was made on a notice for resuming duty, which could not be termed as a notice for disciplinary action. Our own Supreme Court has held in the case 1980 CLC 789 that when an order is nullity in the eyes of law, it is to be ignored as if it never existed.
11. In view of the legal position, illustrated by the authorities of Supreme Court of Azad Jammu and Kashmir and others from Pakistan jurisdiction, described hereinbefore, we are constrained to hold that the order of Superintendent of Police dated 12-6-1979 was nullity in the eyes of law and that no limitation runs in respect of remedy to be sought against such an order, which is void ab initio. All superstructure based on such an order ensuing as a consequence thereafter will also be illegal.
Thus, the decision of Deputy Inspector General of Police dated 7-2-1984 and dated 23-5-1984 stand at the same footing. We are bound to hold, in view of the authorities of our own Supreme Court that the limitation in case of void order is to be ignored. The argument of the Additional Advocate-General that the appellant should have been careful about his duty also fails for the reason that if Superintendent of Police, who is more educated person has ignored the provisions of law, required to be observed, how much care could be expected of a person holding the status of a Head Constable, who cannot be as much conversant with the requirement of law as a Superintendent of Police, is expected to be. The lapse, if any, on the part of appellant, should be ignored in the circumstances of this case when a hasty and illegal action was taken, against him ignoring all the legal requirements.
12. As a result of the above discussion, we accept this appeal and set aside the orders of Superintendent of Police dated 12-6-1979 and orders of Deputy Inspector-General of Police, dated 7-2-1984 and 23-5-1984. The appellant is restored to the post of Head Constable. However in order to save the Government from such financial liability, the period from. 18-3-1979 to the date of decision of his appeal, dated 7-2-1984 be treated as leave without pay and from the date of illegal order of rejection of appeal, i.e. 7-2-1984 to the date of resuming of duty in pursuance of this order of the Court, the appellant shall be entitled to all the financial benefits as if he was on duty.
A. A. /49-S/Lb/S