JUSTICE (RTD.) MUNAWAR ALI KHAN (CHAIRMAN).- This judgment covers three appeals; namely, appeal No.74/91 filed Moula Bux, appeal No.75/91 filed by Muhammad Ibrahim and appeal No.76/91 filed by Muhammad Juman. In these appeals identical questions of law and fact are involved and hence the commen judgment.
2. The factual background of the above appeals, as disclosed in their case files, is as follows. All the three appellants were Police Constables on patrol duty at Sukkur Jail on the night between 22nd and 23rd March, 1986, when break took place and as many as 34 condemned prisoners succeeded in escaping from the Jail. The appellants were amongst the Police personnel who allegedly showed cowardice. Instead of facing the criminals, they took shelter due to fear. Enquiry Tribunal consisting of the Judge of High Court who was appointed to probe into the matter held the three appellants from amongst these who failed to show courage and prove equal to the occasion. Accordingly they were charge sheeted. After finding the appellants' reply unsatisfactory, they were dismissed from service by S.S.P. Sukkur's order dated 23-2-1987. They preferred appeal from the said order to the DIGP who by his order dated 24-3-1988 accepted their appeal and ordered their re- instatement in service. He however, ordered fresh enquiry against them in accordance with the police rules.
3. In the meantime the appellants had challenged their orders of dismissal before this Tribunal but subsequently due to their re-instatement, they withdrew their appeals which were dismissed as withdrawn vide the Tribunal's order dated 16-4-1988. Mr. Rasool Bux Mahar, P.I.P.B., Sukkur who was nominated as enquiry officer for conducting fresh enquiry against the appellants, submitted his findings whereupon the appellants were given final show-cause notice dated 7-12-1988. They submitted their detailed explanation on 14-12-1988. The appellants were ultimately dismissed from service vide order dated 21-12- 1988 of SSP, Sukkur. Thereafter they went in departmental appeal dated nil to the DIGP. Constitutional Petitions dated 6th May, 1990 were also filed by them but the same were withdrawn vide the High Court's brief order dated 20-2-1991. The appellants came to this Tribunal second the by filing above appeals on 11-7-1991.
4. Mr. Amanullah Shaikh for the appellants and Mr. Zawwar Hussain Shah, AAG, on behalf of the Official respondents were elaborately heard at the bar. They also assisted us ingoing through the relevant record.
5. The fore-most objection raised by the learned AAG was that the appeals were hopelessly the- barred. On the other hand the appellants learned counsel tried in vain to neutralize the impact of his adversery's arguments on the question of limitation. We have carefully considered the arguments of both the sides. It appeared to us that the appellants had to thank themselves for getting the appeals the-barred. Either owing to their own ignorance or due to wrong advice given to them, they made a complete mess of their case. Of course their first dismissal order passed on 23-2-1987 stood washed of by the DIGP's order dated 24-3-1988 whereby the said order was set aside and they were re-instated in service Consequently they withdraw their earlier appeals, which were disposed as withdrawn by this Tribunal's separate but identical orders dated 16-4-1988.
6. Asa result of fresh enquiry, the appellants were once again dismissed from service by SSP's order dated 21-12-88. It was from this stage that bungling on the part of the appellants started. It was contended on their behalf that the dismissal order was not communicated to them. The perusal of the said order would reveal that it was duly endorsed to the appellants on the very date on which it was passed. Accordingly the above contention had no substance in it. Even otherwise it was unbelievable that ail the three appellants had missed the receipt of the order. May be any one of them might not have received the order in the. In case of non-receipt of the order, had the appellants been vigilant, they would have got it within reasonable the through personal efforts.
Normally after conclusion of the proceedings they were expected to keep visiting the office of the SSP until they had received the order. But as stated in the opening paragraph of the memos of appeal, the said order was received by them on 20-2-1991 and that too, on direction of the High Court. This gives an impression as if the order was deliberately withheld from the appellants. We see no reason for withholding of the order. No where through out the memos of appeal any such plea has been raised. The appellants have also not produced any material to prove that despite their efforts, the authorities concerned refused to give them a copy of the order. Because then alone, they could be said to have been constrained to seek the intervention of the High Court.
7. Let us now see on what date and with what prayer the appellants approached the High Court.
They have produced copies of Constitution Petitions filed by them in the High Court. The appellants in the aforementioned order filed Constitution Petitions Nos. D-422/90, D-423/90 and D-420/90 respectively on 6th May, 1990 with almost identical prayer as under; "The petitioner therefore prays that this Honourable Court may be pleased to pass the following orders;
(A) To declare the verbal termination order dated 21-12-1988 issued by respondent No.1 to be illegal, un-warranted, by law and based on malafide intention.
(B) To order the respondent No.1 to re-instate the Petitioner in service. As the Petitioner has been terminated without any termination order or given any show-cause notice or explanation.
(C) To award the costs of the petition.
(D) To grant any other relief which may be deemed fit and proper in the circumstances of the case."
8. It would appear from the above prayer that the appellants sought relief which the High Court was not competent to grant. There was no prayer from them that the concerned authorities be directed to deliver a copy of the implied order to them.
9. More over all the appellants have stated in their Constitution Petitions that a copy of termination order was delivered to them on 24-12-1989. (see page 3 para 2 of the Constitution Petitions). This statement stands in contradiction to the assertion made in opening paragraph of the memo of appeals that impugned order was received on 20-2-1991. Now that the appellant's own admission is that they get hold of the dismissal order on 24-12-1989, it became absolutely clear that they would not approach the High Court 9n later date i.e. 6th May, 1990 to help them to get the said order. As stated above even otherwise they had made no such prayer in their Constitution Petitions.
Having admittedly received the dismissal order prior to filing of these petitions, the question of making the prayer in the petitions for delivery of the said order did not arise. That is precisely the reason that the petitioners desired the High Court to rescind the dismissal order and grant them consequential reliefs. Perhaps on persuasion of the High Court when they realized their folly to have approached the wrong forum they withdrew the petitions by contenting themselves with the receipt of a copy of the dismissal order which in fact they had already received. Thus there was absolutely no justification for the appellants to have gone to the High Court. The High Court had no jurisdiction to grant them relief they had prayed for in their petitions. As for receipt of the dismissal order, it is their own admission that they had received it on 24-12-1989 much before they went in the High Court on 6th May, 1990. Therefore the the spent in approaching the High Court was a sheer waste and under no circumstances, it was to be condoned. To strengthen this view we may refer to the recent authority of the Supreme Court reported as PLD 1990 S.C. 731, wherein it was ruled that the the wasted in agitating the matter at wrong forums could not be condoned. In the same authority emphasis has been laid on the the factor stressing further that the was of essence in the service matters.
10. From above discussion we are convinced that the appellants had received the dismissal order soon after it was passed. Accordingly they could have come to this Tribunal for the desired relief in the first quarter of the year 1989. Assuming that they got the dismissal orders in the end of that year, as has been admitted by them in the Constitution Petitions, even then their appeals before this Tribunal must have been instituted latest by March, 1990. But they were actually filed over one year later for which they have furnished no explanation whatever. Instead of concentrating on the prescribed procedure for obtaining the relief, the appellants either on their own or on wrong advice given to them had been running from pillar to post pursuing the matter at wrong forums. We have come across lengthy applications made on behalf of the appellants first to the SSP and then to Chief Minister, obviously in violation of the set procedure, thereby wasting their valuable the of limitation.
11. Since the appeals are liable to be dismissed on the ground of limitation, we need not go into other aspects of the case. Nevertheless it appears to us that the appellants do not have a good case even on merits. The High Court Judge who was appointed to make an initial probe into the incident of the Jail- break had already given his verdict against them. In fact they were punished on the basis of his findings but due to certain legal draw-backs which came to the notice of the DIGP, the appellants earlier dismissal order was revoked and fresh enquiry was ordered. Their present appeals is a second round of litigation, so far this Tribunal is concerned. As pointed out above the appellants had withdrawn their earlier appeals. We are of a considered view that even the appellants present appeals are not only hopelessly the-barred but are also without any merit.
For above reasons all the three appeals are dismissed with no order as to costs.
Given under our hands and the seal of this Tribunal on this 27th day of January, 1992 at Karachi.