JUSTICE (RETD.) MUNAWARALI KHAN (CHAIRMAN).--- The appellant, Roshanali was a Police Constable when he was discharged from service vide cider, dated 27-7-1990 of S.P. S.G., SRP, Karachi. The appellant's version of his case is that he joined as Police Constable, in Mohafiz Police Force in 1987. Although he performed his duties to the entire satisfaction of his superiors, yet due to departmental jealousy he was involved in a false case of robbery and put under arrest on 3-7- 1990. On the excuse of his involvement in the criminal case, he was discharged from service without giving him any show-cause notice or holding any departmental enquiry against him. After his release on bail, he applied for his reinstatement but without any success. He was ultimately acquitted in the criminal case vide judgment, dated 11-2-1992 of the 1st Additional Sessions Judge District Central, Karachi. Despite his acquittal in the said case, the SP did not reinstate him in service. He preferred departmental appeal dated 17-7-1992 to the Addl. I.G.P. Karachi but the same was rejected by his order, dated 6-10-1992. Thereafter the appellant came up in the present appeal on 26-11-1992.
We heard the appellant personally and the learned AAG. Subsequently on request of the appellant's learned counsel, he too was heard in support of the appellant's case. We also went through all the documents relevant for disposal of the appeal.
On examination of the case file it transpired that the appeal was time --barred. The office too had raised the objection with regard to limitation at the time of scrutiny of the memo of appeal. The appellant had also moved condonation application simultaneously with filing of his appeal.
However, the appeal was admitted, to regular hearing subject to all just exceptions which of course included the objection of limitation. It would appear that the order of the appellant's discharge was passed on 27-7-1990 whereas the present appeal was filed after more than two years on 26-11- 1992. Obviously it was for the appellant to explain the so much delay he made in approaching this Tribunal. To begin with he had to challenge the order of his discharge in departmental appeal which he admittedly filed on 17-7-1992 i.e. Nearly two years after his discharge order was passed.
No satisfactory explanation was given in course of arguments for delaying the departmental appeal. In fact neither the appellant's learned counsel nor the appellant himself touched the point of Limitation at the time of arguments. However, we have perused the appellant's condonation application and the affidavit filed therewith. In the affidavit the appellant took the stand that after his release on bail when he reported for duty he was told that since the criminal case was pending against him and he had been discharged on that account, he could not be reinstated until finalisation of the case. He has further stated that after his acquittal it the criminal case, he immediately reported for duty but he was not reinstated. We are not impressed by the appellant's above statement. The appellant could have filed departmental appeal in time i.e. Within 30 days of his discharge order, even from jail. If he was not able to challenge his discharge order during the period of his detention in jail, he should have immediately availed the opportunity of his having been enlarged on bail, for filing departmental appeal particularly when he was refused to be reinstated. There is also nothing in black and white on record to show that immediately after his release on bail, the appellant had actually approached the authorities for his reinstatement but they had refused to take him back on the ground that until finalization of the criminal case he would 'not be reinstated. Despite the refusal for his reinstatement, nothing prevented him from filing departmental appeal. But he rather preferred to wait and thereby wasted time until his acquittal in the criminal case. The judgment of his acquittal produced before us shows that he was acquitted on 11-2-1992. According to the appellant's own version he contacted the authorities immediately after his acquittal but once again he was not allowed reinstatement. But we were not shown any documentary proof in this regard. Even after his failure to get back his service, he took further five months to file his departmental appeal, for the first time on 17-8-1992. Again no explanation, much less plausible one, has been furnished for the said delay. We are therefore, convinced that the appeal is time-barred. In the case reported as PLD 1990 SC 731, the Honourable Supreme Court expressed the view chat: "In service matter time is of essence and that aspect stands further emphasized by section 4 of the Service Tribunals Act".
Taking up the case on merits, it is found that the appellant was discharged under Rule 12.21 of Police Rules. The said rule reads as under:-- "12.21. A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any time within three years of enrolment. There shall be no appeal against order of discharge under this rule."
It is appellant's own case that he joined Police Force in 1987. Therefore, he was still a probationer in terms of above rule at the time of his discharge from service. As stated in above rule a police official is liable to be discharged from service at any time during the period of three years of enrolment and no appeal shall lie against such order of discharge. The appellant's learned counsel contended that since the appellant's discharge was accompanied by stigma, not only he was entitled to show-cause notice but also he was competent to file appeal against the order of his discharge. In support of his arguments he placed reliance upon the case of Supreme Court reported as Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan (PLD 1974 SC 393) wherein it was held:-- "In my opinion, if the service of a probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service such termination will be in terms of the contract or the rules made by the Government but if the service of a probationer is terminated. On the ground of misconduct that will amount to removal or dismissal. It will be a stigma in his favour.
In the last mentioned case, the probatiner will be protected by the provisions of Article 177 of the Constitution of 1962 and will be entitled to a show-cause notice and a proper enquiry against him must be made."
It is clear from above authority that if stigma is accompanying the discharge or removal, the person affected even though on probation shall be entitled to show-cause notice or enquiry.
Therefore, we have to first see if the appellant's discharge from service was fastened with stigma. In order to appreciate this argument it would be convenient to reproduce the discharge order as under:-- "The following Police Constables of Sindh Reserve Police, Karachi are hereby discharged from service under Police Rule 12.21 as they are not likely to become good Police Officers: S. No.Name and B. No.
1. PC/6046 Sirajuddin
2. PC/6838 Muhammad Younus
3. PC/6064 Muhammad Yaqoob
4. PC/783 Roshan Ali
5. PC/1827 Rehmat Shaikh
6. PC/1147 Mushtaq Ahmed
7. PC/6239 Nadeem Zaidi
8. PC/889' Akhtar Abbas
9. PC/3584 Jamil Ullah 10.RPC/6624 Khalid Mehmood
11. RPC/6709 Muhammad Nazir Evidently the only reason given for the appellant's discharge is that he was not likely to be a good officer. The words underlined cannot be regarded as stigma attaching to the appellant. The said words were rather an overall assessme nt about him and his performance. The appellant's learned counsel however was of the view that the appellant's discharge was based on his involvement in the criminal case in which he was ultimately acquitted. The appellant has taken this plea in para. 7 of "Facts of the Case" in the memo. Of appeal. In reply to this para. The learned AAG invited our attention to the corresponding para. Of the written statement which reads as under:-- "7. That the contents of para. 7 are not admitted. The appellant was discharged from service under Rule 12.21 and not on the charges he was tried and subsequently acquitted by the learned Court."
We are inclined to agree with the above reply that he was not discharged owing to his involvement in the criminal case. The order of discharge by itself supports the AAG's above stand as reproduced in para. 7 of the written statement. Had the appellant been discharged on the basis of the criminal case instituted against him, that would have found mention in the discharge order. Furthermore besides the appellant, several other Police Constables and two Head Constables were discharged by the same order. If the criminal case had been the reason for the appellant's discharge from service, he would have been ousted only after his conviction in that case. Not only that but he would have been immediately reinstated in service following his acquittal in*the case. We feel that though there was as direct link between the appellant's discharge and the criminal case registered against him, yet in overall assessm ent of the appellant's work and performance, his superiors might have also taken a mental note of his involvement in the criminal case. After all it did not look nice and proper that the appellant who was him self a member of security force should be implicated even in a false criminal case of robbery. Thus, it seemed to be perhaps one of the factors which influenced the judgment of the appellant's superior officers about him. True sometime enmity plays a part in engineering false criminal case. But the enmity which becomes motive for false case is invariably so pronounced, that it is hardly necessary to prove it. But in the instant case excepting the appellant's vague statement that he had been victim of departmental jealousy, there is nothing before us to show as to who was behind the appellant's false involvement in the criminal case and for what reason. In any case we were convinced that the appellant's discharge from service was not based merely on involvement in the criminal case. As such the Supreme Court authority relied upon, by the appellant's learned counsel was not applicable in this case.
Apart from above, the appellant's learned counsel produced photo copies of two orders whereby two police constables, Ehsan Ali, and Barucha Khan who were tried together with the appellant in aforementioned criminal case, were reinstated in service following their acquittal in the said case.
On the basis of the said orders the learned counsel tried to show that in spite of his acquittal in the same criminal case, the appellant was not similarly treated. In other words he meant to say that like his co-accused, he was not reinstated in service. In fact this argument was covered by our above discussion inasmuch as that we did not agree with the view that the appellant's discharge was based solely on his involvement in the criminal case. Our said disagreement finds support from the fact that the above two Constables who were reinstated were not discharged by the same order by which the appellant was Discharged. May be the reason for their oyster was different and that is why thud names did not appear in the same discharge order. Supposing their reinstatement was the result of undue favour, surely the appellant could not seek his reinstatement on that ground. Because two wrongs could not make one right. His case had to be judged on its own merits. Since the appellant was still a probationer, his services could be terminated on general assessm ent of his work and performance. As has been held above the order of his discharge reflected discharge simpliciter, unaccompanied by any stigma. Therefore, the impugned order was perfectly legal and no exception could be taken to it: There is no justification to interfere with the impugned order. Consequently the appeal is dismissed with no order as to costs.