' SARDAR MOHAMMAD SAJAWAL KHAN (CHAIRMAN).-- The instant appeal is directed against the order dated 19-10-1985 issued vide order Book No,177 by the Inspector General of Police Azad Government of the State of Jammu and Kashmir by which the order of reinstatement dated 31-12- 1984 in respect of the appellant made by the Deputy Inspector-General of Police was cancelled and the order dated 19-10-1985 of Senior Superintendent of Police, Muzaffarabad was upheld. The appellant has arrayed Azad Government of the State of Jammu and Kashmir through Chief Secretary, Inspector General of Police and Senior Superintendent of Police, Muzaffarabad as respondents in his appeal for seeking his relief against them.
2. The facts leading to this appeal are that the appellant was employed as Police Constable in the Police Department. A few cases of theft in mosques were reported and a Police party headed by Muhammad Roshin, Head Constable was organized for patrol duty at night on 13-9-1983. Among others, the appellant was also included in the party for patrol duty and it was at the direction of Head Constable Muhammad Roshin that the appellant and Shah Pal Constables were deputed to go inside the mosque located nearby at `Addah Dahkki', Muzaffarabad in search of the suspects. It was alleged that both the Constables went inside the mosque in a state of smoking and without taking off their shoes. They found a person sleeping inside the mosque and the appellant kicked him hitting at his nose. The person sleeping inside the mosque subsequently, turned out to be the Imam of that Masjid who next day made a complaint before Senior Superintendent of Police, Muzaffarabad about the maltreatment that he suffered at the night time by the kick of the appellant. Under the orders of Senior Superintendent of Police, the Head Constable Muhammad Roshin as well as the accused Constables were placed under suspension and the Deputy Superintendent of Police, Muzaffarabad was appointed as Inquiry Officer to probe into the allegations brought against them. The Inquiry Officer found Muhammad Roshin Khan Head Constable and Shah Pal Constable to be not associated with the commission of any offence but made an adverse report against the appellant that he was responsible for showing disrespect to the mosque and causing injury to the Imam Masjid. The Senior Superintendent of Police served him with a show-cause notice and finally discharged him from the service vide Order Book No,414, dated 11-4-1984. Feeling dissatisfied with the aforesaid order of Senior Superintendent of Police, Muzaffarabad, the appellant brought an appeal before the Deputy Inspector-General of Police who firstly rejected his appeal but later on allowed the reinstatement of the appellant after the stoppage of his two annual increments by way of punishment. The senior Superintendent of Police, Muzaffarahad invoked the review jurisdiction of the Inspector-General of Police through a Letter No, 633/Reader/SSP/85, dated 10-1-1985 and the Insepctor-General of Police made the following order which is impugned at this forum by the appellant:- "The orders of S.S.P are upheld."
' On 19-11-1985 the appellant made an application to the Inspector-General of Police for mercy but the same was also turned down and at a belated stage through this appeal he has invoked the jurisdiction of this Tribunal under section 4 of the Service Tribunals Act, 1975.
3. The appellant's prayer is that the impugned order may be set aside and the order of Deputy Inspector-General of Police issued under order Book No,510, dated 31-12-1984 may be restored.
4. We have perused the inquiry report as well as the relevant record maintained in the Central Police Office. We have also given our careful consideration to the arguments as were addressed at the Bar by the learned counsel of each party. It is contended on behalf of the appellant that there was no impartial inquiry conducted against the appellant and ex parte proceedings were taken against him without following the relevant procedure given in Police Rules. He held spotless career of service and was removed out of service because of the personal liking and disliking of the Senior Superintendent who had developed hatred against him because of the fact that Imam Masjed had poisoned him. It is further contended that the Inspector-General of Police has removed the appellant out of service without giving him an opportunity of personal hearing. According to the learned counsel for the appellant, the impugned order is ab initio void and the limitation period prescribed to bring this appeal before this forum had not run against the appellant. He is of the opinion that the appeal is within time and the relief claimed through this appeal may be given to the appellant.
5. In the punishment chapter of Police Rules, 1934 as enforced in Azad State of Jammu and Kashmir under rule 16.28, the Inspector-General, Deputy Inspector-General and the Superintendent of Police have the powers to call for the record of awards of punishment made by their subordinates and confirm, enhance, modify, or annul the same. But under sub-rule (3) of the said rule 16.28, in all such cases in which the Officers propose to enhance. The award of punishment, they shall before passing final orders give the defaulter concerned an opportunity of showing cause either personally or in writing. But in the instant case the order made by the Inspector-General of Police on the file seems to be a telegraphic order without touching the merits and demerits of the case and the appellant was not afforded an opportunity of showing cause for setting aside the order of his reinstatement made by the Deputy Inspector-General of Police.
6. There is, no doubt, in it that the period of limitation does not run against a party in a case where such party has an established right for being given hearing and the order is made without hearing and without notice to that party. But there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide, then as it has often been said there is jurisdiction to deal either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be non-existent in the eye of law; that is to say; it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction. In the instant case the Inspector-General of Police, undoubtedly, held the powers of review in case of the appellant and he had the jurisdiction too to make any order in respect of the appellant as might have been deemed fit by him. Under Police Rule 16.28 he also held the powers to annul the order of reinstatement of the appellant made by the Deputy Inspector-General of Police. Hence, the impugned order is not ab initio void although it is violative of principles of natural justice. It is on the record that the impugned order was conveyed to the appellant quite well in time and he had made an application to the Inspector-General of Police for showing mercy to him which also failed. It is argued on behalf of the appellant that he was promised to be reinstated on his post in case he would be earning an acquittal in the criminal case of zina registered against him with the Police Station at Channari but after his acquittal in the said case, the reinstatement sought for was refused to him and that fact brought his appeal within limitation. The appellant was required to bring his appeal within thirty days next after getting the knowledge about the passing of the impugned order. But he has brought his appeal at this forum after the lapse of the period of about more than three years. There does not exist any good ground for condonation of the delay. In the instant case the limitation prescribed for making an appeal at this forum would start running from the date of the knowledge of the impugned order and the application dated 19-11-1985 brought by the appellant before the Inspector-General of Police for mercy makes it abundantly clear that he had got the knowledge of the impugned order before filing his application. The appeal is, therefore, held hopelessly time-barred and the same is hereby dismissed without any order as to the costs.