IHSAN-UL-HAQ CHAUDHARY, J.--The petitioner was serving as Foot Constable in Punjab Police and was posted at Rawalpindi in year 1964 when he was involved in a number of criminal cases under section 411 P.P.C. He was arrested on 12.2.1964. Thereafter he was suspended by respondent No.1 on 13.2.1964. The disciplinary proceedings were initiated against the petitioner, which resulted in dismissal of the petitioner vide order 22.2.1966 passed by respondent No.1. The petitioner unsuccessfully challenged this order through an appeal before respondent No.2, who dismissed the appeal vide order dated 19.6.1966. Thereafter respondent No.3 dismissed his revision vide order dated 30.9.1969 and mercy petition was dismissed by respondent No.4 vide order dated 2.5.1970. It is thereafter that the petitioner invoked the Constitutional jurisdiction of this Court. In the meanwhile, the petitioner was acqutted in eight criminal cases registered under section 411 P.P.C, agaisnt the petitioner vide judgment dated 26.11.1964. The petitioner was also proceeded against under West Pakistan Essential Services (Maintenance) Act, 1958 and was acquitted by A.D.M., Rawalpindi vide judgment dated 14.3.1969.The petitioner after his acquittal from the criminal Court reported for duty to respondent No.1 but it transpired that he was dismissed by respondent No.1 on 22.2.1966 and it was thereafter that the petitioner started pursuing the remedy with the respondents No.2 to 4 and after exhausting the remedy available to him at the Departmental level proceeded to file the present petition.
2. This petition came up for preliminary hearing on 25.5.1971 and was admitted to regular hearing.
However, the writ petition was disposed of as abated in view of the provisions of Article 212 of the Constitution which laid down that where Service Tribunal has been appointed all matters relating to terms and conditions of civil servants will be dealt with by the Tribunal exclusively. The petitioner thereafter approached the Punjab Service Tribunal through an appeal, which was dismissed on 24.5.1979 on the ground that the proceedings being prior to 1.7.1969, therefore, not amenable to appeal before Punjab Service Tribunal. It was thereafter that the petitioner moved a review application. The same was allowed by this Court vide order dated 23.4.1988 and writ petition was once again became pending.
3. I have heard the learned counsel for the petitioner who in support of the petition has argued that the petitioner was suspended vide order dated 12.2.64 and without recalling this order the petitioner was not expected to join duty, therefore, the whole proceedings against the petitioner were uncalled for and illegal. The learned counsel in support of the argument has rclerrcd to the case of Mirza Muhammad Abbas Vs.S.P.Muzaffargarh and another (P.L.D 1964 Lahore 662).
4. On the other hand, learned counsel appearing for the respondents has placed on record phot- stat copy of the suspension order which is marked as Annexure Cl but showed his inability to produce or refer to any order recalling this order of suspension.
5. I have given my anxious considerations to the arguments of the learned counsel for the parties, gone through the record and precedent case. The admitted position on record is that the petitioner was suspended on 12.2.64 and learned counsel for the respondent has failed to point out if this order was ever recalled. The matter is dealt with by Rule 16.21(2) of Police Rules. The same reads as under:-"A Police Officer under suspension shall be transferred to the lines, if not already posted there. He shall attend all roll-calls and shall be required to perform such duties and to attend such parades as the Superintendent may direct; provided that he shall not perform guard duty or any other duty entailing the exercise of the powers of functions of a police officer; shall not be issued with ammunition. A police officer under suspension shall ordinarily be confined to lines when off duty, but shall be allowed the reasonable facilities for the preparation of his defence............... ".
6. Now when this rule is read with the suspension order then it is clear that the petitioner was not transferred to lines, therefore, the remaining portion of the rule is not applicable. It is clear from the record that respondent No. 1 failed to deal with the case of the petitioner in accordance with law.
The petitioner was not reinstated after he was acquitted of the criminal charges. This is not all. On the other hand the petitioner has been repeatedly asking for reinstatement but no-body cared to dispose of his request in accordance with law and rules. The relevant portion of the charge- sheet served on the petitioner reads as undcr:- "That in the year 1964 you while posted in the police lines Rawalpindi were arrested in case FIR No,4/64 u/s 457/380 PPC P.S Sadar and seven other cases of burglary and placed under suspension vide SSP/Rawalpindi OB No.112 dated 13.2.64. You v were released on bail and were required to remain present in the Police Lines Rawalpindi during the period of suspension and till the decision of cases but you absented from the lines without leave and without lawful excuse. You however, reported in the Police Lines on 10.2,65 vide D.D. Report to appear before R.L but you absented yourself from duty and your absence recorded in the D.D. Report No.61 dated 15.3.65 and you are still absent from duty without leave and without any intimation."
7. The respondents have failed to prove the transfer of the petitioner to the lines and until and unless that was done there was no occasion to serve him with the charge-sheet. The respondents beasides disciplinary proceedings also proceeded to prosecute the petitioner under West Pakistan Essential Services (Maintenance) Act, 1958 with alleged offence under section 7 ibid but he was acquitted of the charge by A.D.M, Rawalpindi vide judgment dated 14.3.69. The petitioner was not expected to report at the Police Lines without his transfer, therefore, when the respondents accepted him to remain present in the Police Lines they were putting the cart before the horse. The approach was clearly illegal and illogical therefore, there was no basis to initiate disciplinary proceedings.
8. The learned counsel for the respondents although did not conced yet has nothing to controvert the arguments of the learned counsel for the petitioner. It is clear that after suspension unless the petitioner was transferred to the lines he was not supposed to remain in attendance and perform the duties detailed in the rule reproduced above. The order of suspension was silent as to the transfer and even any subsequent order effecting the transfer of the petitioner to lines has neither been referred to nor placed on record.
9. The up-shot of the above discussion is that the orders of the respondents are declared illegal.
The result is that the petitioner is to be deemed to continue in service with all the usual benefits admissible under law. However, there is no order as-to costs.