' SHAHMEEN HUSSAIN KADRI, J.-The petitioner, formerly a Foot Constable, has challenged his dismissal from service, under Article 98 of the Constitution of the Islamic Republic of Pakistan, 1962.
The dismissal order was passed by the senior Superintendent of Police, Lame, on 18th June 1968 (Annex re His appeal and revision failed before the Deputy Inspector-General of Police and the Additional Inspector-General of Police vide their orders dated 31st August 1968 and 28th November 1968 (Annexures 'H and J') on the record of this petition.
2. The writ petition was filed in this Court on 5th December 1970. Certain objections were raised by the office and after compliance it came up for hearing for the first time on 4th June 1971 and was dismissed in default. Owing to the change in law Service Tribunals were created and service matters were referred to them. Since the petitioner was dismissed in 1968 the present petition does not abate by virtue of section 4(1)(c) of the Punjab Administrative Tribunals (Amendment)
Ordinance, 1975.
3. The allegation against the petitioner was that he along with certain other constables while posted to District Police Lines was detailed for standing guard duty by the Reserve Inspector but he and his companions refused to go and behaved insolently with R. I. He disobeyed the orders and threw away the belt in a very rude and indisciplined manner. An Enquiry Officer was appointed and summary of allegations of misconduct was delivered to the defaulters by the Enquiry Officer. The petitioner and others did not plead guilty. The Enquiry Officer recorded the statements of four P. Ws.
In support of the prosecution story. A prima facie case was made out and after framing the charge-sheet and getting approval from the Senior Superintendent of Police on 29th April 1968, the petitioner and others were served with charge-sheets. A glance at the order of dismissal clearly reflects that it was a preliminary enquiry. Neither any opportunity of cross-examining the witnesses was allowed to the petitioner nor to his companions. It is mentioned in the order that they did not produce any defence or written explanations in response to the charge-sheets. It was presumed by the Enquiry Officer that they did not have any reply to give. The order of dismissal of the petitioner was passed on this finding of the Enquiry Officer.
4. We called upon Mr. Muhammad Akhtar learned counsel for the respondent to produce the enquiry file and personal file of the petitioner. He submitted that in view of rule 12.3.5 of the Police Rules, 1934, Volume II, the character and service rolls of the petitioner have been destroyed.
However, we are of the view that this rule does not provide that the enquiry file has also to be destroyed after the expiry of three years. Rule 16.23 of the Rules provides that a person making a complaint and those who support him shall ordinarily be called as witnesses and the accused shall be allowed to cross-examine them. Rule 164 lays down the procedure of conducting departmental enquiries. Sub-rule (iii) lays down "If the accused police officer does not admit the misconduct, the officer conducting the enquiry shall proceed to record such evidence, oral and documentary, in proof of the accusation, as is available and necessary to support the charge. Whenever possible, witnesses shall be examined direct, and in the presence of the accused, who shall be given opportunity to take notes of their statements and cross-examine them." Since the enquiry file has been withheld, for whatever reason, we are constrained to observe that the enquiry in this case has not A been held in accordance a with the above-mentioned rules. We have come to this conclusion after perusal of the various orders passed by the Police Authorities. If the basic order is bad the superstructure falls to the ground" Reliance is placed on Yousaf Ali v. Muhammad Aslam Zia and others (1).
(1) PLD 1958 SC (Pak.) 104 ' The dismissal of the petitioner, to our mind, is without lawful authority a The only snag in the case of the petitioner is that he slept over the matter for about two years after the final order was passed by the Additional Inspector-General of Police on 28th November 1968. The petition, therefore, suffers from laches. There is nothing in the petition to show that the petitioner made any representation whatsover to his superiors for the redress of the wrong done to him. Probably he felt satisfied. Had he taken that recourse there would have been no bar in our way to issue writ in this case. Reliance is placed on Pakistan v. Abdul Hamid (1) and the Chairman, District Screening Committee, Lahore and another v. Shari/Ahmad Hashmi (2).
5. We called upon the petitioner if he would like to forego the salary for the period during which he slept over the matter, but he refused to do so. Had he cared to accept this position we would have accepted the petition, but owing to the attitude adopted by the petitioner, we are afraid we cannot overcome the difficulty of laches which comes in our way in this ease. There is thus no other option left for us but to dismiss this petition. Parties to bear their own costs.
(1) PLD 1961 SC 105 (2) PLD 1976 SC 258