' The appellant Ghulam Rasool was a Constable in the Police Department. He was discharged from service by order dated 30-12-1991 (Annexure E, page 13) on the ground of wilful absence from 3-9- 1991. He was taking training as a recruit constable at the P.T.C. Qaddafi Stadium, Lahore. The Principal of the Training School made a report vide his letter dated 16-9-1991 against him whereupon he was reverted to his parent District, i.e, Sheikhupura, where he allegedly failed to report till the aforesaid order was passed. It was indicated in the order that he was served with a show-cause notice but he did not appear in the Orderly Room. The S.P. Proceeded against him ex parte and discharged him from service taking a view that he did not prove himself to be a disciplined subordinate right at the beginning of his career and that, therefore, he was totally unfit for the disciplined force like Police. He thought, no leniency could be shown to him and consequently discharged him from service.
2. The appellant preferred an appeal to the D.I.-G. (respondent No, 1 herein) who dismissed it vide order dated 7-9-1994. He found it grossly time-barred as it was preferred two years and seven months after the original order dated 30-12-1991 was passed against him.
3. Aggrieved by the aforesaid order of respondent No, 1, the appellant brought the instant appeal.
He explained at length how on falling ill during his training at the P.T.C. Qaddafi Stadium, Lahore, he had sent a medical certificate through his cousin Muhammad Shafi, how on reporting back at the Centre after recovery, he was informed that he stood reverted to the District Sheikhupura vide Memo. No, 1972 of 16-9-1991 and how he was informed at Sheikhupura that he had been dismissed from service. He added that despite his efforts, he was not allowed access to respondent No, 2, nor was given a copy of his order dated 30-12-1991 and that in the background of these typical circumstances, he "personally appeared before the then Deputy Inspector-General of Police on 20- 1-1992 and presented his appeal in writing'. Later teeing that it was not being .Decided, he again appeared before respondent No,1 alongwith a reminder accompanied by a copy of the Memo of appeal earlier submitted to him. Since respondent No, 1 took no decision either on his original appeal or on the reminder, the appellant waited for ninety (90) days and then brought the instant appeal.
4. Mainly, his case was that he was not served with any show-cause notice (Annexure D) that it was self-contradictory inasmuch as it was purportedly issued under rule 12.21 of the Punjab Police Rules, 1934 (wrongly shown as the Punjab Police E&D Rules, 1977) which rule did not exist as rule 15 of the Punjab Police (E&D) Rules, 1975 repealed all previous Rules on the subject; that discharge from service being tantamount to termination of employment, was a major penalty which could not have been imposed without a regular inquiry as enjoined by the I.-G's. Own instructions dated 4-3- 1984 and 22-7-1985; and lastly that since the impugned order passed by respondent No, 2, itself directed that the "period of absence will be considered as leave without pay", there was no fun in holding him simultaneously guilty of absence without leave and to punish him. Counsel laid stress on the fact that absence for a few days on account of illness did not warrant a major penalty of discharge and that the impugned orders were arbitrary as also lacking objectivity.
5. He sought condonation of delay reiterating that he had personally presented the appeal on 20- 1-1992 to the then D.I.-G. That though it was traced out subsequently, yet it was wrongly numbered at No, 39325 on 1-8-1994 and finally that the impugned order being void ab initio, no limitation applied to them especially as held in ' 1994 PLC 454 as distinguished from the case reported in 1994 SCM R 1033.
6. It appears that after filing of the instant appeal, the D.I.-G. Dismissed the appellant's department appeal vide his order dated 7-9-1994. The appellant then sought amendment of the Memo of appeal so as to assail correctness of the aforesaid orders as well. The amendment was allowed and among other grounds, he asserted that no limitation was prescribed by the Punjab Police (E&D) Rules, 1975, for filing such a departmental appeal.
7. The appeal was strenuously contested stating that the appellant had wilfully absented from duty both at the P.T.C., Lahore, as also at Police Lines, Sheikhupura and likewise deliberately failed to take part in the disciplinary proceedings initiated against him. It was claimed in addition that the appeal was grossly barred by time and was, therefore, rightly dismissed. It was maintained that Rule 12.21 of the Punjab Police Rules, 1934, was still intact and fully applied to the case in hand.
8. The crucial question was of limitation. Mr. Madni for the appellant heavily relied upon his assertion made in para. 5 of the Memo. Of appeal and the reply made by the respondents thereto.
He emphatically averred that the appellants assertion of having "personally appeared before the then D.I.-G. On 20-1-1992 and presented his appeal in writing" was admitted to be correct in the corresponding para. Of the written objections and that it settled the point beyond any shadow of doubt. Such admission., according to him, precluded the respondents from setting up the plea that no such appeal was presented on 20-1-1992 and that they in vain attempted to take a somersault in going back upon their own pleadings. He stressed that while the appeal was filed on 20-1-1992 and its reminder was submitted on 3-5-1994 but none was filed on 1-8-1994 as shown in the impugned orders.
9. Contrarily, the learned DA. Contended that the reply given in para. 5 of the written objections had to be read as a whole including the statement that the appeal was filed two years and seven months after the due date and that the sentence "It is correct" could not be separated from the remaining portion of the para.
10. A careful consideration of the matter leads one to believe that the appellants categorical assertion of having personally appeared before the D.I.-G. On 20-1-1992 and presented the appeal in writing was admitted by using the sentence "It is correct". It appeared to be an unequivocal admission on their part and the argument that the appeal was grossly barred by time was afterthought. Even otherwise, receiving such an extreme penalty so soon after joining service, was a phenomenon as could not have been lightly taken especially when it was not based on any moral turpitude. The probability was that the appellant must have availed it without losing time as still there was hope for him to regain the job. Consequently, the appeal is held to have been filed in time. Ordinarily, the present appeal should have been filed within 120 days from 20-1-1992 but respondent No, 1 chose to decide a subsequent reminder (or appeal) by the impugned order dated 7-9-1994. The appellant could avail this terminus quo with impugnity for this appeal as held in 1985 SCMR 16. Thus, no objection could be raised on the point of limitation.
11. As for the merits of the case, proceedings were taken against the appellant ex parte. He claimed to have had sent a medical certificate. There was no proof of service of show-cause notice on him.
It should have been proved beyond doubt when its service was strongly disputed. Further, the penalty imposed was major and evidently according to the I.-G's. Instructions on the point, a regular inquiry must have been made. It was not made of course only at the cost of those instructions. The appellant had an inviodable right of getting such a regular inquiry held against him. Denial of this protection was indeed traversal of a vested right. The impugned order could not be sustained on this ground alone.
12. Next was the plea that the so-called absence from duty was by the very order itself converted into "leave without pay". If it was so converted, then it could not have been punished for. The only punishment intended was to deny him emoluments for the period of absence. The impugned order suffered from a patent contradiction. Further, leave without pay contemplated continuity of service and if he was seemingly continuing to serve, where lay his absence? Probably the idea to treat the absence as leave was based on the impression that the appellant was ill. No other hypothesis was advanced in this behalf. It turns out to be a case where absence was not sans reason and the reason whatever persuaded the S.S.P. (respondent No, 2) to convert it into leave. Granting leave and at the same time punishing for it by removal from service presented something highly unusual not permissible by any rule. The argument of Mr. Madni was really indefensible on the point.
13. Rule 12.21 of the Punjab Police Rules, 1934, might be giving powers to . Discharge a probationer or a trainee but herein quite clear terms, the Punjab (E&D) Rules, 1975 were invoked. A regular inquiry was indispensable as prescribed by the I.-G's. Instructions referred to above and even various authorities of the Honourable Supreme Court of Pakistan. Non-observance thereof was fatal.
14. As a result, the appeal is allowed. The impugned orders dated 30-12-1991 passed by respondent No, 2 and dated 7-9-1994 passed by respondent No, 1, are set aside and the appellant is reinstated in service with all back benefits. The intervening period ever since 30-12-1991 shall be treated as on duty.