' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, has been preferred against an order passed by the High Court on 10-2-1999, whereby the writ petition filed by the appellant, herein, was dismissed.
2. The necessary facts, giving rise to the present appeal, briefly, stated are that the appellant, herein, was serving as a Constable in the Police Department. He was transferred to Police Choki Kulian vide order dated 18-3-1997. Instead of complying with the order of his transfer, he made an application to his superiors that his wife was ill and as such he might be granted leave and that the matter of his transfer might be re-considered. Consequently he absented himself from his duty without leave for 35 days. Thereafter, a show-cause notice was given to him and an inquiry was conducted. As a result of said inquiry he was compulsorily retired from service. A learned Judge in the High Court has dismissed the writ petition filed by the appellant observing that the appellant was reinstated after inquiry but thereafter was retired from service. According to the High Court his reinstatement was made to give him pension benefits which otherwise he would not have got. The High Court also observed that in the inquiry conducted against the appellant he was found guilty and it was not necessary for the authority to hear him before retiring him from service.
3. Arguing the case on behalf of appellant it was vehemently contended by Mr. Ghulam Mustafa Mughal, the learned counsel, that the judgment of the High Court suffered from material illegality as the compulsory, retirement being a major punishment, the same could not be ordered without serving a show-cause notice upon the appellant and, giving him an opportunity of being heard.
The learned counsel submitted that as a rule of natural justice it was enjoined upon the Competent Authority to afford the appellant a reasonable opportunity of being heard, as, such, the impugned judgment was liable to be set aside. In support of his submissions the learned counsel relied upon cases titled Syed Makadar Hussain Shah v. Board of Intermediate and Secondary Education, Mirpur through its Chairman and 5 others (1995 CLC 1594), Manzoor Hussain Shah v. Superintendent of Police Sahiwal and another (1986 PLC (C.S.) 192) and Amir Khan v. Superintendent of Police Jhelum District and another (1986 PLC (C.S.) 512).
4. After hearing the contentions of the learned counsel for the appellant and perusing the record, it may be stated that in the matter in hand a full-fledged inquiry was conducted against the appellant by the orders of the authority. It also transpires from record that the appellant while submitting his application before the S.S.P. Did not disclose in his application that for how much period he sought leave from his duty. In his appeal before the Deputy Inspector-General of Police, the appellant also did not raise the plea that before passing the order of retirement from service, he should have been given an opportunity of being heard. It may usefully be observed that while dealing with the matter of misconduct of police officials the relevant rules which are applicable in Azad Jammu and Kashmir are called the Police Efficiency and Discipline rules, 1992. Rule 6 sub-rule
(5) of the aforesated Rules reads as follows:-- "(5) On receipt of the findings of the Inquiry Officer or when no such officer is appointed on receipt of the explanation of the accused, if any, the authority shall determine whether the charge has been proved or not. In case the charge is proved, the authority shall award one or more of major or minor punishment as deemed necessary."
5. According to the aforementioned rule the authority is vested with the jurisdiction either to conduct inquiry Against the accused or to seek his explanation. Once the authority decides to seek the explanation of the accused only then it implies that it will, give personal hearing to the accused for substantiating his explanation, but where the mode of inquiry is adopted the accused in that case gets sufficient time and opportunity before the Inquiry Officer to put up all the relevant material and facts on which he relies. In the instant case a detailed inquiry was conducted by the Inquiry Officer in presence of accused where he had the sufficient time and opportunity to put up his point of view. Thus, the accused in the present case has been retired from service on the basis of inquiry conducted by the Inquiry Officer, as such, in our view, no injustice appears to have been committed by passing the order of retirement of appellant's service.
6. Now adverting to the authorities cited by the learned counsel for the appellant, it may be stated that in a case reported as Manzoor Hussain Shah v. Superintendent of Police Sahiwal and another (1986 PLC (C.S.) 192), it was observed that a regular inquiry should have been conducted providing the accused an opportunity of putting up his defence and in absence of that the accused was prejudiced. In another case reported as Amir Khan v. Superintendent of Police Jhelum District and another (1986 PLC (C.S.) 512), it was observed that where a police constable was charged for being drunk and forcibly entering in courtyard of quarter of another constable and knocking door of quarter in an attempt to commit Zina-bil-Jabr upon wife of respondent, a regular inquiry should have been conducted providing sufficient opportunity, to accused to cross-examine the witnesses and to produce defence evidence. The aforestated both the authorities have no . Relevancy to the facts of the present case as in the former no inquiry was conducted and the accused was not provided with an opportunity of being beard, whereas in the later the regular inquiry was not conducted and the cased was not provided with an opportunity of putting up his defence and producing the defence witnesses. In the case in hand a detailed inquiry was 'conducted by the Inquiry Officer and the accused was provided with sufficient opportunity and time to put up, his point of view before the Inquiry Officer.
7. In a case reported as Syed Makadar Hussain Shah v. Board of Intermediate and Secondary Education, Mirpur through its Chairman and 5 others (1995 CLC 1594) the accused was charged of using unfair means in the examination and in the decision 'of Disciplinary Committee it was not stated that right of hearing was given to the candidate. Thus, it was observed that requirement of natural justice was not fulfilled. This authority is also distinguishable as far as the case of the appellant is concerned.
8. In a latest judgment of this Court titled Shaukat Mahmood Prosecuting Inspector v. Secretary Home Azad Jammu and Kashmir (1999 PLC (C.S.) 349) it was observed by this Court that seniority of appellants officers of subordinate rank would be determined by applying the Police Rules and Azad Jammu and Kashmir Civil Servants Rules, 1977 were not applicable to the matters of seniority.
It was further held by discusing various authorities that to the matters dealt with in the Police Rules, Civil Servants Act and the Rules made thereunder will not be applicable.
9. In the light of what has been Stated above, finding no force in this appeal, the same stands dismissed.