1. ' ABDUL MAJID KHANZADA (CHAIRMAN)---Facts in short are that the appellant joined the service in Police Department as Constable under order, dated 9-11-1992, issued by the Senior Superintendent of Police, Dadu. He has further stated that he completed all the necessary Courses/Trainings and probationary period. He has served about three years as constable when the Police Department' advertised vacancies for the appointment of Assistant Sub-Inspector. As such the appellant also applied for the said post with reference to the advertisement. The written test was held on 5th September, 1995 in Police Line Hyderabad which was qualified by the appellant as such he was called for Interview by the Selection Committee that too he qualified successfully. As such he was appointed as Assistant Sub-Inspector of Police by Order, dated 7-12-1995 passed by the Senior Superintendent of Police Dadu. Accordingly the appellant joined police service as A.S.I. Of Police, as such he was relieved from the post of Constable. Subsequently the appellant was sent for A.S.Is.
2. Course at PTC Saeedabad, Karachi and the same was cleared by the appellant in the term ending 31st July, 1997. His name accordingly appeared at Serial No,70 of the list, dated 9-8-1997. The appellant was doing practical training course (B) when he was abruptly discharged from service vide Order, dated 8-11-1997, passed by respondent No,2, D.I.-G., Police Hyderabad Range Hyderabad. The appellant being highly aggrieved and dissatisfied from the Order, dated 8-11-1997 filed departmental appeal before the respondent No,2, I.-G. Of Police but the same was not disposed of as such after waiting. Statutory period of 90 days the appellant filed present appeal before this Tribunal on 28-3-1998.
3. ' We have heard Mr. M.M. Aqil Awan, Advocate for appellant and Mr. Seydain Zaidi, A.A.-G. For respondents and with their assistance perused the record.
4. ' The main contentions of the learned counsel for the appellant are that the appellant was discharged by the D.I.-G. Police under Rule 12.8 of the Police Rules. According to him Rule 12.8 of the Police Rules gives any independent powers to the D.I.-G. Of Police but in this particular case the D.I.- G. Has not exercised his power according to law, he has passed the discharge order on the basis of the recommendations of S.S.P. Dadu which was submitted to him under letter, dated 5th November, 1997. This letter has not been communicated to the appellant nor the same has been supplied to the appellant at any stage before or after passing of the discharge order. As such according to him the discharge order appears to have been either passed by the S.S.P. Dadu or his recommendations were merely counter signed by the D.I.-G. Of Police. According to him in both the positions the impugned order is devoid of legal sanctity and do not qualify the test of Rule 12.8 of the Police Rules. He has further argued that the power to discharge from duty vested in D.I.-G., under Rule 12.8, but such power should not be exercised arbitrarily and unfairly. According to him if the report of S.S.P. Is excluded then there is no occasion for the D.I.-G. Of Police to exercise powers which are vested in him under Rule 12.8 and therefore, in such circumstances the D.I.-G. Of Police was obliged under law to supply copy of such report, to the appellant so that he could have an opportunity to defend himself against such report which is definitely adverse to his interest. He has further argued that under the amended section 24-A of the General Clauses Act it is mandatory for every authority exercising any power under any statute thereby affecting adversely an individual, to record reasons for such exercise of powers and such reasons be further communicated to individual. According to him here in this case sterio type order has been passed by the D.I.-G. Of Police when the appellant was at the verge of expiry of his probationary period and was discharged without any reason, which amounts to dismissal from service. He has further argued that another cardinal principle of law, is violated in this case, is principle of natural justice.
5. According to him the discharge order is based on the report of S.S.P. Dadu which was neither supplied to the appellant nor he was afforded opportunity of hearing to defend himself against any allegation whatsoever, before passing of the discharge order and as such the discharge order is against the principle of natural justice. On this point he has relied the famous case of Anisa Rehman v. PIA reported in 1994 SCM R 2232. He has further argued that the appellant has served for three years as Constable in the same department and there is absolutely no adverse report or warning on his credit: He has relied on the Judgment of this Tribunal passed in Service Appeal No,74 of 1998, Ilyas Khichi v. Dy. Inspector-General of Police and another decided on 7-5-1999. He has also relied on the Tribunal's judgment passed in Appeals Nos,34, 35, 49, 50, 51, 60 and 61 of 1998 delivered by this Tribunal on 10-3-1999 which was challenged before the Honourable Supreme Court of Pakistan vide Civil Petitions Nos,256-K to 259-K of 1999 and 261-K, 262-K and 267-K of 1999 decided by the Honourable Supreme Court of Pakistan on 8-7-1999 upholdhig the Judgment of the Tribunal.
6. ' The learned A.A.-G. Has argued that the appellant has been discharged undue Rule 12.8 as such there is no appeal against that rule. He has relied on para. 1 of his written statement whereby he has admitted that the appellant was appointed as Constable on 9-11-1992 and according to him during the course of his service the appellant appeared for the written test for the appointment of A.S.I. And he qualified the written test, therefore, he was called for interview before the Departmental Selection Committee. He was also cleared by DSC and thereafter', on completion of the required formalities for appointment the appellant was sent for A.S.Is. Course PTC Saeedabad, Karachi but he was declared failed in the final law examination) held in November, 1996. According to him the appellant has passed the probationary A.S.Is. Course in second attempt. Thereafter, the appellant remained absent from his service for about 53 days without any intimation or prior permission, therefore, he was awarded minor punishment of censure. According to him the review committee under the Chairmanship of S.S.P. Dadu scrutinized the performance and found his performance extremely poor, therefore, he was recommended for weeding out from the Police Service under Rule 12.8 as appellant was not likely to be a good police officer.
7. ' Before dealing with respective contentions of the learned counsel for both the parties, we would like to examine the impugned order, dated 8th November, 1997 passed by the D.I.-G. Of Police Hyderabad Range in pursuance of the Rule 12.8 of the Punjab Police Rules which reads as under:-- "On the recommendations of the S.P. Dadu received vide his Letter No,Estt/45875, dated 5-11-1997 trainee A.S.I. Amir Murtaza son of Sher Shamsuddin of Dadu hereby discharged from service with immediate effect under Police Rule 12.8 and he is not likely to become good police officer."
8. ' The requirement of the Rule 12.8 to take action are as under:--
(i) Probationer failed to pass the prescribed examination/training including riding test.
(ii) Probationer is guilty of grave misconduct.
(iii) Probationer is deemed for sufficient reasons unsuitable for service in police."
9. ' Looking into the impugned order it is found that it does not fall within the first two categories.
10. Therefore, one has to fall back and rely upon the third category as to whether the impugned order falls within the purview, of this category. We have to see whether mere findings as not likely to become good police officer in the impugned order amount to sufficient reasons as contemplated in Rule 12.8. The second aspect on which a great emphasis is laid by the learned counsel for the appellant is that whether the power contemplated in Rule 12.8 and vested in the D.I.-G. Of Police is an independent power or dependent one. The sufficiency of the reasons came for interpretation before this Tribunal in the case of Sadruddin v. Superintendent of Police and others reported in 1996 PLC (C.S.) p.
11. 1085. A page 1087 it was held "although the appellant's case was, seemingly based on the third ground yet there was no indication of reasons for the appellant's unsuitability for retention in service, much less the sufficiency of any such reasons to draw the conclusion of his of such unsuitability. Thus, the impugned order was wanting in essential requirements and as such it was difficult to be upheld." This Tribunal in Service Appeal No,74 of 1998, decided on 25th May, 1999 has taken the view that the power of discharge vested in D.I.G. Of Police must be exercised with judicious/independant mind. Our findings materially in that appeal are asunder:-- "In this appeal the appellant was discharge on the report of the SSP Larkana while living beyond territorial jurisdiction of the reporting officer. Alleged charge particularly of being mixed up with the criminals were serious charges and the competent Authority should have looked into the matter judiciously by calling of the evidence and examining of such charge. In absence of any corroborating evidence on the record the report of S.S.P. Concerned amounted to hearsay which under the provisions of Qanun-e-Shahadat is not evidence. It is also an established legal position as held by this Tribunal and Hon'ble Supreme Court of Pakistan that where the alleged charge amounts to 'STIGMA' it is necessary to hold proper full-fleged departmental enquiry in the matter and if the charges are Established/proved against the accused then he can only be convicted of the same followed appropriate penalty. In the instant case the appellant was not apprised of alleged charge against him by way of charge-sheet or departmental enquiry, even a show-cause notice was not issued to the appellant which means that he was condemned unheard which is in contravention of the principle of natural justice, fairplay and equity, upheld by all the Superior Courts in Pakistan. The catch words in Rule 12:8 are deemed for sufficient reasons unsuitable for service in police. Sufficient reasons necessarily required evidence."
12. ' We go a step, further in this appeal by holding that the reasons contemplated in Part-III of the Rule 12.8 should be of alike nature as contemplated in Parts 1 and 2 and its sufficiency should be of such magnitude which could satisfy the mind of a man of ordinary prudence. The exercise of the power under Rule 1.2.8 May be bracketed with section 24-A of the General Clauses Act, 1897 which was introduced by way of amendments vide Act No,XI of 1997 which reads as follows:- "Section 24-A Exercise of power under. Enactment.--(1) Whereby or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power should be exercised reasonably fairly, justly and for the advancement of the purpose of an enactment.
(2) The authority, office or person making any order or issuing an direction under the powers conferred by or under any enactment shall so far as necessary or appropriate, give reasons for making the order or as the case may be for issuing direction and shall provide copy of the order or as the case may be the direction to the persons affected prejudicially."
13. In view of this amended provision of law the D.I.G. Of Police was required to record reasons to discharge the probationer police officer which sho .1d have been based on objective consideration and sufficient in his view or consideration. In this case as D.I.-G. Of Police has acted like a rubber stamp on the report of SSP Dadu, absolutely do not commensurate with the minimum requirement of law. It is very strange that probationer is performing his duties in the PTC Saeedabad Karachi and report is being formulated by the SSP Dadu under whom he had not worked a single day, as a probationer and power is being exercised by the D.I.G. Of Police Hyderabad who perhaps might never had visited the probation or seen his performance in PTC Saeedabad. It is not the case of respondents that the performance record of the appellant was made available to the D.I.-G. Of Police Hyderabad Range by the Principal of said College for assessment of the same to take action against the appellant in pursuance of Rule 12.8. Our conclusion are as under:--
(1) The power of D.I.-G. Of Police under Rule 12.8 Punjab Police Rules is an independent power and he is obliged to exercise the same independently with judicious mind and has not to act like a rubber stamp on the report furnished to him against the probationer by the subordinate police officer.
(2) In the exercise of power under Rule 12.8 D.I.-G. Of Police is required to record his reasons and such reasons must fall within the purview of Rule 12.8 and the minimum requirement of their sufficiency is that they should satisfy the man of ordinary prudence as to their sufficiency, although sufficiency of the reasons may vary from case to case.
(3) On recording of sufficiency of reasons and action taken in pursuance of the power under Rule 12.8 must be communicated to the adversely affected probationer police officer. Upshot of the above discussion is that we are unable to uphold the impugned order, therefore, set aside the same.
14. ' Adverting to the objection of the learned A.A.-G. That no appeal lies against the order passed in pursuance of Rule 12.8. In the first instance the learned A.A.-G. Appears to us confused while making this submission, therefore, we could not follow his submission as to whether he wanted to say that no appeal lies against the order passed under Rule 12.8 before the departmental authority or before this Tribunal. Since with the passage of time the point has already been decided elaborately by the Honourable Supreme Court, therefore, the same being binding upon us we overrule the objection of the learned A.A.-G. While relying upon the judgment in the case Inspector-General of Police, Baluchistan, Quetta v. Syed Imran Abbas reported in 1995 SCM R P.29. In paragraph No,7 the Honourable Supreme Court has held " there being no provision for appeal and Deputy Inspector- General of Police having become functus offico after passing the discharge order could not pass an order reinstating him. At best a representation could be filed to the next higher authority and there upon the jurisdiction in the matter could have been of the next higher authority and not of the Deputy Inspector-General of Police Quetta Range Quetta" placing reliance on this authority we hold that even if no appeal is provided against the order of discharge passed by the D.I.-G. Of Police and representation could be made to the next higher authority by the affected probationer police officer against whom discharge order is passed.
15. ' So far as the jurisdiction of this Tribunal is concerned we are clear in our mind that the jurisdiction vested in this Tribunal in pursuance of Article 212 of the Constitution of Islamic Republic of. Pakistan, 1973 read with section 4 of the Sindh Service Tribunals Act, cannot be ousted by Rule 12.8 of the Punjab Police Rules. It is cordinal principle of interpretation of law that subordinate legislation cannot supersede the principal legislation. Moreover, this point was raised by the learned Additional Advocate-General in the case of Muhammad. Hussain and other where six A.S.Is. Who were reinstated in service by this Tribunal and the Government of Sindh challenged the decision before the honourbale Supreme Court in Civil Petitions Nos,256-K to 259-K of 1999, 261-K to 262-K and 267-K of 1999. The Supreme Court held that "respondents being civil servants they are governed by the provisions of Civil Servant Act, 1973. Right of departmental appeal provided to the civil servant under the relevant rules the provisions of Rule 12.8 cannot prevailed over the same.
16. Therefore, interference with the order of the Tribunal on the point is not warranted under law.4' As a matter of necessary corollary if the Rule 12.8 cannot prevail over the provisions of Sindh Civil Servants, 1973 so it also cannot prevail over the provisions of Sindh Service Tribunal Act, 1973. Under the circumstances we hold that this Tribunal has the jurisdiction to adjudicate an appeal against an order passed under Rule 12.8 of the Punjab Police Rules. Last objection of the learned A.A.-G. Was that the appellant was declared failed in the final law examination held in November, 1996. He passed probationer A.S.Is. Course in second attempt, he remained absent from service for about 53 days without any intimation as he was awarded minor punishment of Censure. The objection of the learned A.A.-G. Has no force inasmuch as these facts were not subject-matter of the discharge order impugned in this appeal. Moreover, the power under Rule 12.8 as already held by us is not dependent on the findings of the review committee under the Chairmanship of S.S.P. Dadu. The learned A.A.-G. Has completely failed to show before us that the impugned order was passed on the basis of performance of the appellant in PTC Saeedabad where he was undergoing the relevant training and courses and was under the supervision of the Principal of the said college.
17. ' Under the circumstances we do not find any force in the objections raised by the learned A.A. -G..
18. Upshot of the above discussion is that this appeal is allowed with no order as to costs. The intervening period may be treated as 'Leave due'.