1. JUDGMENTMalik Mohammad Parvez Khan, (Chairman) - Appellant filed the present appeal against respondent No.1's order dated 29.6.1988 vide which the departmental appeal of the appellant against his compulsory retirement dated 13.5.1987 passed by respondent No.2 was rejected.
2. According to him he was serving as Head Constable under respondent No.3 when one Shahid Hussain preferred an application on 21.6.1986 (actually the date was 23.6.86) to the Deputy Superintendent of Police, Saddar D.I.Khan containing the complaint of receipt of Rs.2000/- from him by the appellant on 17.6.1986 at evening time. AIthough per daily diary of Police Station Cantt, D.I.Khan, the appellant was in Peshawar on 17.6.1986 which fact was corroborated by the statement of Mr. Inayat Ali Shah, Sub Inspector dated 14.10.1986. Even the complainant stated before the Enquiry Officer on 4.10.1986 that he had not made any complaint against the appellant and denied to have written the same. The allegation against the appellant was that he caught red handed a prostitute girl in studios along with the complainant and left them free on receipt of Rs.2000/- as illegal gratification.The enquiry was not conducted properly. Any-how respondent No.3 inflicted upon him the minor penaIty but the strange thing was that when his accomplice preferred appeal to respondent No.2 against the conviction by respondent No.3, the respondent No.2 suo moto enhanced the punishment of the appellant which under the rules he could not do. He surpassed his jurisdiction and the order is accordingly illegal and void.
3. Claim of the appellant was vehemently resisted by the respondents who stated that the respondent No.2 had got the jurisdiction to check the acts and omissions of his subordinates that he was empowered under the law/rules to enhance the punishment, that the act of the appellant was so grave that the punishment awarded to him by respondent No.3 did not serve the purpose.
4. Arguments heard and the record perused.
5. Learned counsel for the appellant argued that the complainant denied the averments made in the alleged complaint against the appellant. Respondent No.2 had got'no power to enhance the sentence awarded to the appellant by respondent No3. Rules 1934, to which the reference was made by the respondents have since been withdrawn and cannot be attracted to the facts of the present case.On the other hand Special Govt. Pleader argued that aIthough rules 1975 were applicable in the departmental proceedings, yet it cannot be stated that rules, 1934 were withdrawn totally. TTiey also hold the field. The action of respondent No.2 was quite legal as the appellant was involved in a serious case of corruption and instead of awarding the major punishment to him, respondent No3 took a very lenient view. Respondent No.2 before awarding the major sentence to the appellant issued a show cause notice to him and after hearing him he passed the sentence against him, therefore the same is not illegal.
6. The above narration of facts would depict that respondent No.2 suo moto took the action against the appellant in another appeal filed by the co- accused of the appellant. He acted under rule 16.28 of the Police Rules, 1934 which empower him to review, enhance, modify, confirm or annul the punishment awarded to a police servant under rules 16/1 of the said Police Rules. The case of the appellant was deaIt with by respondent No.2 on 13.5.1987. However prior to it NWFP Police Rules, 1975 were enforced and rules 13 of the said rules which is reproduce below deals with similar matters.
7. Rules 13 Repeal: "Any Disciplinary Rules applicable to police officers to whom these rules apply are hereby repealed but the repeal thereof shall not effect any action taken or anything done or suffer thereunder."
8. This clarifies the position. The action assailed by the appellant was taken against him after the introduction of the Rules, 1975. Rules 16/1 and 16/28 are also Disciplinary Rules, therefore, in view of the promulgation of Rules, 1975, respondent No.2 was not authorised to rely on the earlier rules.
9. Courts or Tribunals derives their strength/power from the statutory enactments. They cannot exercise their powers beyond them and an action taken by them beyond the statutory sanction would be termed as illegal and uItra vires of the rules. This being so, we have got no aIternative but to accept the present appeal by setting aside the order dated 13.5.1987 passed by respondent No.2.
10. He is re-instated in service from the date he was compulsory retired from service. The period of compulsory retirement shall be treated as leave without pay. Since the case has been disposed of on legal analysis of the rules, the parties are left to bear their own costs and file be consigned to the record room.