JUSTICE (RTD) MUNAWARALI KHAN (CHAIRMAN).- The appellant, Baqar Ali was Lance Naik in charge of the Judicial Lock up, Sheikhupura, when he was dismissed from service. The said dismissal was ordered in the wake of disciplinary proceedings taken against him under the Sind Civil Servants (Efficiency and Discipline) Rules 1973. The charge against him was that during his duty hours on 17.8.1978 three prisoners had escaped from the lock-up due to his negligence. Although criminal case was also registered against him and other police personnel on duty on the day of incident, yet the said case was ultimately withdrawn. As for his dismissal, instead of challenging it before this Tribunal, the appellant took the matter in High Court, Sukkur Bench. By its judgment dated 21.10.1986 the said Bench of High Court set aside the order of the appellant's dismissal. However, no appeal was filed against the judgment of the High Court even on the ground of jurisdiction for obvious reasons. Instead it was implemented and the appellant was reinstated in service.
2. But fresh proceedings were started against the appellant in accordance with the police rules, with service of charge-sheet and statement of allegations on him. After completing the necessary enquiry, the Enquiry Officer submitted his report recommending therein imposition of penalty of stoppage of increments for three years. Thereupon the appellant was given final show cause notice to which he submitted his reply. He was given personal hearing. Ultimately disagreeing with the recommendations of the Enquiry Officer, the SSP Sukkur vide his order dated 25.8.1988, awarded major penalty of dismissal to the appellant. Once again instead of approaching this Tribunal for the desired relief he challenged the order of his dismissal in the Constitution petition before the High Court, Sukkur Bench, which was however dismissed in limine vide the High Court's judgment dated 31.10.1988. Having thus failed in the High Court, the appellant preferred departmental appeal before the DIGP Sukkur, who rejected the same by his order dated 18.2.1989. It was against this order that the appellant filed the present appeal on 18.8.1991.
3. We heard the arguments of Mr. Mumtaz Ali Siddiqui for the appellant and Mr. Hayat Qureshi on behalf of the official respondents. We also perused the necessary documents available in the case file.
4. In course of his arguments, the learned counsel for the appellant did not contest the findings of the Enquiry Officer in as much as that the charges against the appellant were duly proved. His first grievance was that the penalty of dismissal awarded to the appellant was in contravention of the Enquiry Officer's recommendations. The other objection raised by the learned counsel was that although the proceedings were initiated against the appellant under rule 16.19 of Police Rules 1934, the impugned order of punishment was passed under rule 6(6) of Sind Police (E&D) Rules 1988. In his opinion the impugned order was therefore illegal.
5. As for the learned counsel's first contention, suffice it to say that the punishing authority was not bound to accept the recommendations of the Enquiry Officer with regard to nature and quantum of punishment. He was unable to support his submission by quoting any law/rule. We are of the view that it was none of the Enquiry Officer's business to make recommendation about the penalty to be imposed on the accused official. Because such recommendation does not fall within ambit of his jurisdiction. His only function was to assess the evidence produced before him and give his findings as to whether in the light of material before him the charge/charges were proved. Of course there is no bar on his making recommendations with regard to penalty. But if he makes such recommendation, they are not binding on the punishing authority.
6. Coming to the second objection of the appellant's learned counsel, we feel that too was without any legal force. We are unable to agree with the view that punishment awarded to the appellant was rendered illegal and hence inoperative only because correct rule under which it was required to be imposed was not mentioned in the order of the punishment: According to the learned counsel the punishment was required to be awarded under the same rules under which the disciplinary proceedings had been initiated. Assuming his view to be correct in this regard, we called upon the learned counsel to show us if the punishment of dismissal could not be awarded under the old police rules under which the proceedings had been initiated against the appellant.
His reply to our above querry was evasive, as he could not satisfy us on this point. We have ourselves gone through the list of penalties specified in the police rules. The list certainly includes the penalty of dismissal. We have not come across any provision in the police rules which prohibited awarding of penalty of dismissal in the case involving the charges made against the appellant. On the contrary as provided m rule 16.2 of police rules the punishment of dismissal shall have to be awarded for gravest of at of misconduct. The negligence shown by the appellant in escape of the prisoners, in our opinion, definitely amounted to gravest misconduct of his part. As such the learned counsel's objection was without force.
7. Apart from above, the appeal is obviously hopelessly the barred. The original order of the appellant's dismissal was passed as far back as 25.8.1988 whereas the appellant filed the present appeal after lapse of more than 3 years' the. The explanation furnished by the appellant for the delay of the intervening period is totally un-acceptable. AS is disclosed in the memo of appeal, the appellant first took the impugned order to the High Court challenging the same in the Constitution petition. He seemed to have resented to such step, inspite of knowing fully well, that the service Tribunal and not the High Court had jurisdiction to allow the relief he sought for. As required by proviso (a) to Section 4 of the Sind Service Tribunals Act 1973, he had not cared to exhaust even the departmental remedy available to him prior to going to High Court. He filed the departmental appeal before the DIGP only after his failure to get relief in the High Court. Although he was supposed to have filed the present appeal within thirty days of the DIGP's order passed on 18.2.1989, yet he waited for over 2 years before he came to this Tribunal in the present appeal The only explanation furnished by him in this regard is that he got the DIGP's order late on 10.8.1991. A look at this order would reveal that it was an attested copy, indicating thereby that the appellant had managed to secure it after he had made up his mind to come to this Tribunal. The order clearly shows that it was communicated to the appellant soon after it was passed on 18.2.1989. We see no reason why the appellant should not have received it at that the. It is not believable that he did not know about passing of the order at that the. Thus we are convinced that from the very date of the incident i.e. 17.8.1978 when the prisoners had escaped from the Judicial Lock-up, the appellant has no intention of knocking the door of this Tribunal for seeking the desired relief. He wasted his the in pursuing the matter at wrong forums. Even if he went to the High Court instead of coming to this Tribunal through ignorance, he would go there only once. But his memo of appeal shows that he approached the High Court twice. There is no indication on record that he ultimately came to right forum namely this Tribunal on advice of the High Court or any other quarter. As such we have no doubt that he knew from the very beginning that the Service Tribunal was the only right forum for seeking the desired relief still he tried his luck before the High Court twice. On top of all the above, the learned counsel did not care to move an application for condonation of the delay. According to the recent ruling of the Supreme Court reported as PLD 1990 SC 731, in service matters........ The is essence and that aspect stands further emphasized by Section 4 of the Service Tribunals Act................... .Time wasted in approaching wrong forum not condoned."
8. In view of the above discussion the appeal is dismissed with no orders as to costs.
9. Given under our hands and the Seal of this Tribunal on this 25th day of November, 1991 at Karachi.