1. C.M.P. No.12/L of 1 992 NASIM HASAN SHAH, J.--For reasons given in the petition for restoration of the appeal (.Civil Appeal No.675 of 1989), which was dismissed for non-prosecution on 16-12-1991, the appeal is restored to its original number. Let it be taken up for hearing on merits today.
2. C.A.No.675 of 1989 The facts, which form the background to this appeal, have been recited in the order granting leave to appeal as, follows:- "The petitioner (now appellant); a Sub-Inspector of Police, while posted as S.H.O. Police Station, Pasrur, was dismissed from service by the Superintendent of Police vide order' dated 11-4-1982; on the ground of misconduct. The petitioner (now appellant) aggrieved by the said order filed a departmental appeal before the Deputy Inspector-General of Police, Gujranwala who accepted his appeal vide order dated 19-9-1987 as the petitioner (now appellant) was acquitted by a Court of Law, of the charges which formed the basis of his dismissal and ordered his re-instatement in service "with all back benefits". But at the same time, it was observed:- `The period he remained out of service subsequent to his dismissal shall be treated as leave of kind due and the period of suspension if any as duty period.'
3. Accordingly, while implementing the order of re-instatement on 10-10-1987 it was ordered that the period spent out of service shall be treated as period spent out of duty as leave without pay (extraordinary leave). The petitioner (now appellant) filed an appeal against the order dated 10-10- 1987 before the Service Tribunal praying that he be given all back benefits.
4. The Service Tribunal vide order dated 12-(-1989 not only refused the prayer but went on to set aside the order of the Deputy Inspector-General of Police, Gujranwala dated 19 9-1987 also which was never appealed from and restored the order of dismissal passed by the Superintendent of Police, Sialkot dated 11-4-1982. Hence this petition for leave to appeal.
5. The question whether the Service Tribunal while dealing with the appeal of the petitioner (now appellant) for grant of all back benefits had the jurisdiction suo motu to order petitioner's (now appellant's) dismissal from service by setting aside the order of his re-instatement earlier passed by tilt D.I.G. Police, Gujranwala on 19-9-1987 needs examination:' - We have now examined the order of the Service Tribunal and note that the appellant, who was at the relevant time serving as S.H.O.Pasrur, wa charged along with four others of kidnapping one Kamran Raza, keeping him in illegal custody and subjecting him to torture which ultimately resulted in hi death, while he was in their custody. After registration of criminal cases for the alleged commission of these offences Muhammad Saleem and hi accomplices/absconded and were declared Proclaimed Offenders. In the meanwhile, the S.P. Sialkot charged-sheeted Muhammad Saleem appellant an his accomplices (in absentia, due to their absconsion) for misconduct. The Inquiry was conducted under the Punjab Police (E&D) Rules, 1975 and th Inquiry Officer submitted a.
6. Detailed report on 10-4-1982 to the S.P.Sialko Herein all the accused officers were found guilty of the charges levelled again them find the imposition of the major penalty including dismissal from service was recommended against all of them. The S.P.Sialkot agreeing with the findings of the Inquiry Officer and keeping in view the gravy; nature of the allegations and wilful absence of all the accused police. Officials including the appellant ordered their dismissal from service vide order dated 10-4-1982. r appeal was filed against this order either by the appellant or by any of the accomplices before the D.I.G., Gujranwala Range within the limitation name 30 days. Accordingly, the order of dismissal dated 10-4-1982 became final.
7. Three of tile accomplices of Muhammad Saleem namely Muhamm Hayat, ASI, Ilam Din, ASI and Muhammad Siddiq, Constable, were apprehended during the Martial Law period and tried by the Special Military Court, which convicted and sentenced them to different terms of imprisonment.
8. After the lifting of Martial Law, the appellant Muhammad Saleem and Ataullah Constable surfaced from their hiding and were arrested and tried by the Additional Sessions Judge, Lahore and acquitted under section 265-IC, Cr.P.C. Vide judgment dated 22-6-1987. !t was, at this stage, that Muhammad Saleem appellant filed an appeal to challenge the order of his dismissal dated 10-4- 1982 which was accepted by the D.I.G., Gujranwala vide order dated 19-9-1987 and he was ordered to be re-instated with effect from 10-4-1982 with all back benefits.
9. The order impugned before the Service Tribunal, we note, was passed to challenge a subsequent order made on 8-10-1987 which was passed in connection with the efforts of the appellant to obtain full back benefits by the S.P.Sialkot. According to this order of S.P.Sialkol dated 8-10-1087 the period spent out of service by the appellant was to he treated as under:-
(1) From 10-4-1982 to 7-8-1982 120 days as on full pay
(2) From 8-8-1982 to 25-3-1983 24(1 days as on half pay
(3) From 26-3-1983 to 19-9-1987 4 years and 179 days as without pay.
10. The Service Tribunal while dealing with the appeal against the above order dated 8-10-1987 took the view that the said order flew "directly from the reinstatement order dated lc) 9-1987 of the D.LG.Gujranwala" and further observed that "for proper adjudication of the points raised and the issues involved in the instant appeal it would be only imperative to look into the propriety and the vires of the re-.Instatement order dated 19-9-1987."
11. It then proceeded to examine the .Prey of the said order (dated 19-9-1987) and observed that "it weld tae seen tithe dismissal order dated 1:0-4-1982 was passed against the appellant pry the S.P., Sialkot as `Authority under the Punjab Police; (E&D) Rules, 1975 which provided for a limitation period of 30 days for filing an appeal with the "Appellate Authority" i.e. D.I.G., Gujranwala but it took the appellant more than five years to do so. Thus, he failed to file an appeal against the dismissal order dated 10-4-1982 within the prescribed time limit in the proper forum. Even on being arrested as a Proclaimed Offender on 21-4-1986 he did not prefer any appeal before the D.I.G. The appellant has not challenged the dismissal order even up til now either in any Court of law, or before this Tribunal. It was only after the pronouncement of the judgment dated 22-6-1987 that he -Fried an appeal before the D.I.G., Gujranwala who without taking into any notice of the fact that by then the appeal had already become unjustifiably and unccindonably time barred, readily passed the reinstatement order dated 19-9-1987. Though the appeal filed by the appellant merited outright dismissal on the point of limitation alone."
12. The Tribunal went on to consider the order of the D.1.G. Dated 19-9-1987 on merits and in this connection it observed that "it was obviously not competent for him to have entertained and admitted the appeal and to have passed the reinstatement order dated 19-9-11)87, without first deciding the question of limitation which was of paramount importance in the case."
13. It then further observed:- "The D.I.G. Gujranwala has passed the reinstatement order dated 19-9-1987 entirely on the basis of (lie judgment dated 22-6-1987 without assigning any other reason or ground, factual or legal, whatsoever, for the same; and without appreciating that the dismissal order dated 10-4-1'.)82 against the appellant had never been a matter or an issue subjudice before the learned Additional Sessions Judge, Lahore. As already stated the dismissal order dated 10-4-1982 had been based upon the enquiry report of the Enquiry Officer i.e. D.S.P., Narowal, who had found the appellant (and hit accomplices) guilty of the charge inquired into. The appellant never challenged the Enquiry Report and findings of the Enquiry Officer against him, either before any Court of law, or before this Tribunal, and the same have not been even touched upon by the D.I.G., Gujranwala while passing the reinstatement order dated 19-9-1987. Consequently, the Enquiry Report and the findings dated 10-4-1')82 of the Enquiry Officer, as against the appellant, still land intact and undemolished. In this view of the matter, it was not chis three accomplices before the Special Military Court, had gone hostile. Resultantly, the trial of the appellant ended in fiasco clue to the reselling of all the prosecution witnesses examined by the prosecution against him. Thus the acquittal of the appellant resulted solely due to resiling of all the prosecution witnesses examined; and due to non- exam nation of the complainant, Sycd Maqsood Ali, as well as the Investigating Officer; and as such acquittal of the appellant was neither on merits, nor because of his innocence and, therefore, not honourable. Moreover, his dismissal was not under adjudication in the Court of learned Additional Sessions Judge, Lahore, who never exonerated him of the charges of misconduct, absconsion and wilful absence from duty for more than five years. It was, therefore, erroneous, incompetent and illegal for the D.I.G., Gujranwala to have arbitrarily ordered reinstatement of the appellant, vide his order dated 19-9-1987 solely on the basis of the judgment dated 22-6-1987."
14. As a result of these findings the Tribunal came to the conclusion that the reinstatement order dated 19-9-1987 was arbitrary, illegal, ultra vires and of no legal consequence and was, accordingly, set aside. The dismissal order dated 10-4-1982 of Superintendent of Police, Sialkot was upheld with the result that the appellant was held to have been rightly dismissed from service with effect from 10-4-1982 and continued to remain so dismissed. The appeal before the Tribunal claiming benefits of service with effect from 10-4-1982 was rejected with these findings.
15. From the foregoing detailed reference of the order of the Service Tribunal it is crystal clear (and we wholeheartedly) agree that the order of the D.I.G., Gujranwala dated 19-9-1987 accepting the appeal of the appellant against the order of his dismissal dated 10-4-1982 was totally illegal and grossly improper. The only question is whether the Service Tribunal while dealing with the appeal in relation to a subsequent order namely the order dated 8-10-1987 (in relation to the grievance made about the true amount that the appellant was entitled to receive towards the back benefits under the earlier order of the D.I.G., dated 19-9-1987 ordering his reinstatement into service) could be set aside although the said later order was not impugned by any party before it. The question being an important question of law of public importance, leave was granted to consider it.
16. However, during the pendency of this appeal a question raising the same question of law came up for consideration before this Court and has been thoroughly discussed. It has been held that the Service Tribunal cannot, of its own motion, deal with a matter not brought before it by the aggrieved civil servant and pass an order which is more detrimental to him, than the one already passed, which he is challenging before the Tribunal. (See Salahuddin Butt v. Sh.Tujammal Hussain PLD 1989 SC 597). Accordingly, the question of law which required to be answered and elucidated already stands answered and clarified by this Court.
17. Coming now to the instant case we observe that apart from the plea that the Service Tribunal was not competent to go into a question dealt with by it and which was not expressly challenged before it, we observe that on the factual plane the order passed by the Service Tribunal is fully justified and most appropriate. It is manifest that the D.I.G. Gujranwalla order dated 19-9-1987 is completely illegal and wholly improper. The question therefore, is whether this Court despite being of the said opinion should proceed to uphold it as the same was not properly challenged before the Service Tribunal. This Court in the similar circumstances has, however, held that where an appeal was likely to succeed on the question of limitation but the case was otherwise unjust on merits interference in such a situation was not proper and, accordingly, dismissed the appeal on the ground that the equitable writ jurisdiction could not be exercised in aid of injustice; see Tufail Muhammad and others v. Raja Muhammad Zia Ullah Khan and another PLD 1965 SC 269. Again in the case of Begum Shams-un-Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413 this Court while agreeing with the contention of the learned counsel of the respondents that the Chief Settlement Commissioner could not interfere with the order of the Settlement Commissioner under- section 9(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, nevertheless maintained the order of the Chief Settlement Commissioner despite tile fact that the said order was set aside by the High Court on the ground of lack of incompetency, observing as follows: "As for the argument that the appellant should have challenged tile order of the Settlement Commissioner by filing a writ petition and that this Court should not substitute its discretion for that of the High Court, suffice it to say that the High Court in exercise of its discretionary writ jurisdiction is not bound to interfere in all the circumstances and it would have been a proper exercise of its discretion if it had not interfered with the order of the Chief Settlement Commissioner in this case, even if it felt that the order of the Chief Settlement Commissioner, whereby he rendered the order of the Settlement Commissioner as null and void was not strictly legal. However, the matter coming before this Court and (cave having been granted the whole case has been re-opened before us and this Court, in order to prevent failure of justice, can interfere with the improper exercise of discretion of the High Court and hold that a writ ought not to have been issued in favour of the respondent in the circumstances of this case. For doing full justice in this case we hold accordingly."
18. The law on the question involved in this case having already been settled and declared and to prevent failure of justice this appeal merits dismissal. Indeed, any other course would be acting in aid of injustice.
19. The result is that this appeal fails and is dismissed hereby. No costs.