1. MUNAWAR ALI KHAN (CHAIRMAN).--The appellant Shahid Ahmed Khan was working as Sub- Inspector, Police when he was dismissed from service vide order of the I.-G. Police, Sind dated 1-10- 1980. This appeal is directed against the said order.
2. As disclosed in the memo of appeal, the appellant felt seriously ill in August, 1978 and therefore proceeded on medical leave. The diagnosis of his illness revealed a suspected cancer in his neck, which completely unnerved the appellant, who hastily left for England for necessary treatment on 4-9-1978 without obtaining Ex-Pakistan leave. However, he handed the application for such leave to his younger brother for submitting it to the Department. As he could not afford the treatment expenditure, he returned to Karachi on 9-9-1978. After his arrival, he was standing near two Army Officers at the Airport when the said Army Officers alongwith two three other persons standing near them including the appellant were apprehended by the Army authorities and were taken to the Army Headquarters. The appellant was allowed to go after two three days as nothing was found against him in the enquiry. Police authorities were informed accordingly on telephone. Despite this the appellant was served with a show-cause notice dated 3-10-1978 alleging therein that he was involved in espionage activities and that he left the country without permission. Although he denied the charge of espionage activities, the appellant tendered an unconditional apology for his leaving the country without permission. After considering his reply, the S.P. Traffic Branch Karachi by his order dated 5-12-1978 dismissed the appellant. The departmental appeal preferred by the appellant on 7-1-1979 was rejected by the D.I.-G.P. Vide his order dated 17-5-1978. Thereafter, the appellant addressed a mercy petition to the I.-G.P. Which was however disposed by the Additional I.-G.P. By his order dated 3-9-1979, whereby the penalty of dismissal awarded to the appellant was converted into reduction in the pay by Rs.14 for one year. Consequently the appellant was reinstated in service.
3. About six months after his reinstatement the appellant was again given notice dated 22-3-1980 by the I.-G.P. Calling upon him to show-cause why the order of his dismissal from service should not be restored. The appellant submitted his reply on 1-4-1980 which was found by the I.-G.P. Without any force and consequently by the impugned order he annulled the order of the Addl. I.-G.P. And restored the order of the appellant's dismissal from services. Before the impugned order was passed the appellant had already challenged the show-cause notice dated 22-3-1980 first in the civil court and then in the writ petition before the High Court. After his writ petition was dismissed by judgment dated 8-8-1985, the appellant approached this Tribunal in the present appeal.
4. We heard the arguments of the learned counsel for the parties at some length and with their assistance also glanced through all the relevant documents. held in presence of the appellant nor the latter was given any opportunity to cross-examine any witness examined in any such enquiry or lead evidence in his defence. The competent authority namely the S.P. Traffic Branch, Karachi after considering the appellant's reply to the show-cause notice dismissed him from service by his order dated 5-12-1978. There is no indication on the record that at the time of giving him show-cause notice the appellant was supplied any other document. Therefore the only material which formed the basis of his dismissal from service was appellant's own admission that he went to England without obtaining Ex-Pakistan leave for which his explanation was that while going abroad he had handed the application for Ex-Pakistan leave to his younger brother for passing it on to the concerned office. In any case it is established from the appellant's own admission that he went to England without first obtaining Ex-Pakistan leave.
5. But this was the only charge which was proved against him As regards the other charge that he was involved in expionage activities there was absolutely no proof. There is no elaboration of this charge in the show-cause notice itself nor any formal enquiry was held in presence of the appellant to prove that charge. However the extreme penalty of dismissal from service was awarded to the appellant for the solitary charge of his having gone to England without obtaining Ex-Pakistan leave. The question was whether such a penalty was proportionate to the charge proved against the appellant, The appellant cited at least two instances; one of S.I. Abidali and another of Inspector Akhtar Ahmed Siddiqui who both had gone abroad without any valid permission but no such extreme penalty was imposed on them. Moreover the Addl. I.-G.P. While disposing the appellant's mercy petition addressed to the I.-G.P. Made the following observation: "I have examined all the relevant record of proceedings. The only charge remained against him now is that he left Pakistan without proper permission and punishment of dismissal from service is too harsh for this lone charge. In view of this his appeal is accepted---------------------..--- Accordingly the Addl. I.-G.P. By his order dated 3-9-1979 reduced the appellant's penalty from dismissal from service to reduction in pay by Rs.14 for a period of one year. We are inclined to endorse the view of the Addl. I.-G.P. As regards the severity of the punishment awarded to the appellant for the only charge proved against him that he had gone to England without obtaining proper leave. Consequently the I.-G.P's. Order dated 1-10-1980 whereby the order of the Addl. I.-G.P.
6. Was annulled and the order of appellant's dismissal was revived, was not supportable.
7. Apart from the above the learned counsel for the appellant also assailed that I.-G.P's. Order on the legal ground that since the Addl I.-G.P. Had accepted the appellant's mercy petition and reduced his penalty while exercising the I.-G.P's. Powers delegated to him, the I .-G . P . Could not undo his order in exercise of his revisional powers. No doubt police rule 16.25 confers powers of revision on the I.-G.P. Who can call for any case decided by any subordinate officer and revise the order passed by him. It is not denied that the rank and status enjoyed by the AddI.I.-G.P. Is subordinate to that of the I.-G.P. Our attention was drawn to the circular letter dated 5th August, 1978 whereby the I.-G.P. Had distributed the administrative work between himself and Addl. I.-G.P. Of course the disposal of appeals/ revisions of non-gazette officers and establishment has been assigned to the Addl. I.-G.P. Since mercy petition is clearly distinguished from appeal/revision in the police rules, it could not be treated as appeal or revision and disposed as such by the Addl. I.-G.P. However, the argument of the learned counsel for the appellant was that the mercy petition was originally addressed to the I.-G.P. And unless it was marked by the letter for disposal to the Addl.I.G.P. It could not be conceived that the Addl. I.G.P. Would pass any order in respect thereof. In our opinion the argument was not without force. While endorsing the mercy petition to the Addl.I.G.P. For disposal, the I.G.P. Had impliedly delegated his powers to the said officer for taking decision on the said petition. So once the Addl.I.G.P. Exercised the delegated powers of the I.G.P. And passed order on the mercy petition the I.G.P. Could not annul that order by re exercising the same power himself.
8. Accordingly the I.G.P's. Order which has been impugned in this appeal could not be sustained for that reason.
9. Despite the above discussion mostly on merits of the case, the learned Government counsel opposed the appeal on legal grounds. His first objection was that appeal was time-barred.
10. Although the impugned order of the I.G.P. Was passed on 1-10-1980, yet this appeal was filed nearly five years thereafter i.e. On 10-8-1985. The delay of five years in filing the appeal is thus admitted.
11. Separate application for condonation of the above delay was filed simultaneously with the appeal.
12. The detailed affidavit of the appellant filed in support of the condonation application shows that the only ground for the delay was that the appellant was seeking remedies at other legal forums.
13. As stated above he had filed writ petition in the High Court besides filing suit in the Civil Court. It was submitted by the learned counsel for the appellant, that litigation was instituted both ill Civil Court and High Court in the bona fide belief that these courts enjoyed concurrent jurisdiction with Service Tribunal in respect of the orders passed without jurisdiction. In this connection we may refer to the observations made by the High Court in its judgment dated 8-8-1985 in the appellant's writ petition (Constitution Petition 1378/1980). They are as under:- "In the first place before a Court could examine whether an order is really of the nature mentioned above it must have jurisdiction to undertake the examination and determine the question. As soon as it is shown that a particular order of the departmental authority lies within the ambit of the Tribunal, the jurisdiction of the civil courts including the "High Court is ipso facto ousted as a result of the barring provisions of Article 212. The High Court would, therefore, not be competent on any ground to examine the validity of an order which falls within the jurisdiction of the Tribunal. The decision on which reliance seems to have been placed for the view canvassed in support of the arguments related to the ouster of jurisdiction --under sub-constitutional legislation and in relation to finality clauses in statutes. Apparently in such cases the power of judicial review available to the High Court under Article 199 is not affected and, therefore, recourse can be had to the? Extraordinary supervisory jurisdiction of the High Court to challenge such orders on the ground of nullity. But the situation under Article 212 is entirely different. The ouster contemplated? Under that Article is of the constitutional nature and, therefore, of necessity curtails the jurisdiction of the High Court totally in respect of the subject-matter committed to the Service Tribunals."
14. It is clear from the above judgment, that the ouster of jurisdiction of the courts including High Court in service matters is by the constitution and as such there is no force in the argument It that other courts were approached under the genuine impression that they had concurrent jurisdiction to decide the service matter. Even otherwise ignorance of the party's counsel as to the legal forum where the case was to be instituted or the wrong advice tendered by him in this regard is no valid ground for condoning the delay particularly when no affidavit of such counsel was filed in support.
15. Particularly when no affidavit of such counsel was filed in support. In this connection reference may be made to
(1) Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102.
(2) Mrs. Ismat Tariq v. Sh. Shaukat Ali 1974 SCMR 158 and (3) Ch. Muhammad Sharif v. Muhammad Ali Khan and others 1975 SCMR 259.
16. Para 7 of the appellant's affidavit filed in support of his application for condonation of the delay reads as under: "That I consulted a lawyer who assured me that said respondent had no authority to do so and his said action was illegal, without authority and void. He advised me to challenge the said order in a court of law which I did on 1-4-1980 in the form of Civil suit No.1299/80 before the senior Civil Judge at Karachi and stay was granted in my favour."
17. Again in para 9 of his affidavit the appellant has stated thus: "In September 1980 the stay was unfortunately vacated, under legal advice on 24-9-1980 that the said respondent's action being totally illegal and the stay having been vacated there was no other specific and quick remedy for me than aconstitution petition. "
18. It would appear that the appellant pursued his case at wrong legal forums on the legal advice of his lawyer. But he has not filed the personal affidavit of the said lawyer in support of his assertions.
19. Accordingly in view of the above authorities the delay of nearly five years that he has made in filing this appeal can not be condoned and therefore the appeal must fail.
20. Apart from above, the appellant did not exhaust the departmental remedy as required by proviso
(a) to Section 4 of the Sind Service Tribunal Act 1973 before approaching this Tribunal in the present appeal. Following his reinstatement in service by order of the Addl.I.G.P. He was again adversely affected i.e. Dismissed from service by the order of the I.G. Police. He was therefore required to challenge hl b order in departmental appeal before the appropriate authority, which was admittedly not done in this case. Consequently the appeal cannot be maintained even on this ground.
21. A.A./134/Sr.S.