ETIMAD-UD-DIN Versus SUPERINTENDENT OF POLICE, SIALKOT
ABDUL HAMID CHAUDHRY (MEMBER). ‑ Etimad‑ud‑Din has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Superintendent of Police, Sialkot, the Deputy Inspector‑General of Police, Gujranwala Range, Gujranwala and the Inspector‑General of Police, Punjab, Lahore as respondents.
2. By virtue of this appeal, the appellant has prayed that the impugned orders dated 29th May, 1982 of respondent No. 2 and 25th July, 1983 of respondent No. 3 received on 9th August, 1983, be set aside. It has also been prayed that the appellant be re‑instated in service as Sub -Inspector from 29th May, 1982 with full benefits of pay, allowances, seniority etc.
3. Brief facts of the case are that the appellant, Etimad‑ud‑Din, ex -Sub‑Inspector, now A. S.‑I. No. 96/G. I. was transferred to Pakistan Rangers on deputation by the Deputy Inspector‑General of Police, Gujranwala Range, Gujranwala, vide his order No. 24954‑57/E. C., dated 13th December, 1981. At that time, the appellant had gone to Karachi in connection with special duty While the appellant was still on special duty at Karachi, he fell ill due to serious kidney trouble. On completion of his special duty, the appellant reported back for duty at Sialkot, vide Daily Diary Report No, 27, dated 4th March, 1982. In this arrival report, the appellant mentioned that he was already under treatment and he would continue his treatment from Government Hospital after getting necessary official docket. Accordingly the appellant was referred by the Police Hospital to Civil Hospital, Sialkot, vide Daily Diary No. 10, dated 11th March, 1982. The appellant was admitted in Government Allama Iqbal Hospital, Sialkot on 11th March, 1982. After necessary medical check up Medical Superintendent of Civil Hospital referred the appellant to Dr. Syed Bandey Ali Shah, Medical Specialist of the same Hospital where he remained as indoor patient upto 7th April, 1982. The appellant intimated this fact to respondent No. I alongwith the medical certificates who further intimated it to the respondent No. 2. Copies of the medical certificates are at Annexures `B/1' 'B/2', `B/3', `B/4', `B/5' and 611/6'. In the meanwhile the Deputy Inspector‑General of Police, Gujranwala, Range, Gujranwala, directed Superintendent of Police, Sialkot that the appellant should be relieved of his duties and directed to. report with Pakistan Rangers. In reply to that Superintendent of Police informed the Deputy Inspector‑General of Police, vide his letter dated 25th March, 1982 (Annexure `C') that the appellant was admitted in, Allama Iqbal Hospital since 11th March, 1982. However, the Deputy Inspector‑General of Police directed that the appellant be relieved immediately. The Superin tendent of Police, Sialkot again intimated, vide his letter dated 4th April, 1982 and 5th April, 1982 (Annexures `B' and 'E') that appellant was admitted in Hospital and could only be relieved as and when he reports back from the Hospital. The above correspondence between the Superin tendent of Police and the Deputy Inspector‑General of Police showed that the appellant was a bona fide sick person. The Deputy Inspector‑General of Police gave direction on 18th April, 1983 to the Superintendent of Police, Sialkot that appellant should be got medically examined through a medical board to ascertain his fitness or otherwise. In the meanwhile the appellant was also placed under suspension w. e. f. 24th April, 1982 though the appellant was still ill. On the aforesaid directive from the Deputy Inspector‑General of Police, the Superintendent of Police wrote to Medical Superintendent, District Headquarters Hospital to convene the Medical Board of the said Hospital for appellant's medical examination. However, before the Medical Board could be convened and the appellant could be examined for his fitness or otherwise, the Deputy Inspector- General of Police, Gujranwala Range, Gujranwala issued order dated 29th May, 1982, through which the appellant was reverted an A. S.‑I. on the ground that the appellant was trying to avoid his transfer through delay ing tactics. The appellant remained sick and ultimately he joined duty on 10th May, 1983. The appellant made a representation to the Deputy Inspector‑General of Police, Gujranwala Range, Gujranwala and also sought interview. However, an order was passed by the Deputy Inspector -General of Police, Gujranwala Range, vide order, dated 20th November, 1982, wherein after hearing the appellant in person, he dropped the departmental proceedings against the appellant but also ordered that he could remain as A. S.‑I. for failing to comply with the orders. Another order dated 30th April, 1983 was passed by the Superintendent of Police, Sialkot (Annexure `N'). Vide this order, the previous order of his pre decessor was set aside and the appellant was sanctioned leave on medical certificate for the period from 11th March, 1982 to 4th June, 1982 on full pay. The appellant made an appeal to the Inspector‑General of Police, Punjab, Lahore regarding his reversion from the rank of S.‑I. to A. S.‑I. which was rejected, vide his order dated 25th July, 1983. Hence this appeal.
4. We have heard the parties. It has been argued by the learned counsel for the appellant that the basis of the reversion of the appellant from S.‑I. to A. S.‑I. where that the appellant had been avoiding to comply with his transfer orders to Pakistan Rangers. The learned counsel was contended that these basis are not borne out from the facts on record, for two reasons. Firstly, it has been admitted in the parawise comments by the respondents that the orders of his transfer to Pakistan Rangers were never served upon him at any stage and as such there was no question of avoiding the compliance of those orders. Secondly he remained ill throughout which fact had been certified by the Medical Superintendent to Government Allama Iqbal Hospital, Sialkot as well as the Urologist of the same Hospital. It has also been submitted that even the Superintendent of Police, Sialkot had been intimating to the Deputy Inspector‑General of Police, Gujranwala Range that the appellant was ill and as such he could be relieved after he reports from duty. The Deputy Inspector‑General of Police had passed the impugned order under some wrong impression or ill advice from his office. This fact is clear from the order of the Superintendent of Police, Sialkot dated 30th April, 1983 (Annexure `N'), wherein the Deputy Inspector‑General of Police had himself directed the Superintendent of Police, Sialkot on a later stage to "review the petition of the A. S. I. in accordance with the leave rules, 1981." This very order of the Superintendent of Police, Sialkot shows that ultimately the entire period from 1Ith March. 1982 to 4th June, 1982 was treated as leave on medical certificate on full pay. Therefore, the hard fact of the illness of the appellant was duly accepted by the com petent authority and the impugned order passed by the Deputy Inspector. General of Police, Gujranwala Range, Gujranwala on the basis that the appellant had been adopting delaying tactics to join the Pakistan Rangers, has no legs to stand. Hence, the reversion of the appellant from S.‑I. to A. S.‑I. is uncalled for, against the facts of the case and is unlawful. The appellant's counsel has also relied on the judgments of the Supreme Court of Pakistan reported as Muhammad Ibrahim v. Government of Pakistan (P L D 1972 S C 332), and Government of Pakistan v. Dr. Safdar Mahmood (P L D 1983 S C 100). He has pointed out that keeping in view these judgments, the appellant could not be reverted from S.‑I. to A. S.‑I. unless he was served with a show‑cause notice and was given an opportunity to defend himself.
5. On the other hand, the learned District Attorney has relied on the parawise comments submitted by the respondents and the impugned orders. He has submitted that it is a fact that the appellant was adopting the delaying tactics to comply with the transfer orders. This is also clear from the fact that the appellant had been approaching the Deputy Inspector‑General of Police, Gujranwala Range for cancellation of this transfer orders. It has also been pointed `out by the learned District Attorney that the appellant was also avoiding to appear before the Medical Board which also confirms that he was adopting the delaying tactics to get his transfer cancelled. Thus, the appellant has been punished correctly, lawfully and no exception can be taken against the impugned orders. The learned District Attorney assisted with the representative of the Department, has also stoutly resisted by submitting that the appellant was reverted to his substantive rank of A. S.‑I. from officiating rank of S.‑I. for which issuance of show‑cause notice or personal hearing was not necessary. The reversion from officiating rank to substantive rank could not be treated as a punishment as the reversion was surely for administra tive reasons and not as a punitive action.
6. We have given our anxious thought to the arguments of the parties and have also perused the record of this case very carefully. We have also gone through the impugned order dated 30th April, 1983 of the Superintendent of Police, Sialkot (Annexure 'N') which is reproduced as follows :‑---
"This is to dispose of petition of A. S.‑I. Muhammad Ihtimad‑ud -Din No. 96/G. L., against the orders of the then S. P. Sialkot treating the period of absence from 11th March, 1982 to 4th June, 1982 without pay.
The case of the A. S.‑I. had been referred to Range Office, Gujran wala for decision. The Deputy Inspector‑General of Police, vide his memo. No. 5506/B. C., dated 26th May, 1983 directed the undersigned to review the petition of the A. S.‑I. in accordance with Leave Rules, 1981.
I have carefully gone through the relevant documents and decision taken by my predecessor who had ordered the period to be treated as without pay on the grounds that the petitioner was using delaying tractics to avoid his transfer. As a matter of fact S. P. is not competent to refuse leave on a Medical Certificate as per provisions contained in Leave Rules, 1981. However, a second opinion can be had about the illness. In the case under decision Medical Superin tendent had recommended leave to which a Medical Board subsequently created did not disagree.,
In the circumstances the previous orders are set aside and A. S.‑I. Muhammad Ihtimad‑ud‑Din No. 96/G. L. is sanctioned leave on Medical Certificate for the period from 11th March, 1982 to 4tb June, 1982 on full pay."
The perusal of this order clinches the whole matter. It shows that the Deputy Inspector‑General of Police, Gujranwala Range, Gujranwala had passed the impugned order dated 29th May, 1982 under a wrong impres sion and without applying his mind to the provisions of the Leave Rules, 1981. As is clear from para. 2 of this order that the Deputy Inspector- General of Police, took into consideration the Leave Rules. 1981, and for that reasons he directed the Superintendent of Police, Sialkot, to review the petition and to decide the case in the light of the Leave Rules, 1981. A reference to para. 3 of the above‑mentioned order of the Superintendent of Police makes it clear that the appellant was a bona fide sick person. Thus, the Superintendent of Police, Sialkot sanctioned the leave on medical ground for the entire period from 11th March, 1982 to 4th June, 1982 on full pay. As the appellant was a bona fide sick person, it was not correct on the part of the respondent No. 2 i.e. the Deputy Inspector -General of Police, Gujranwala Range, to declare that the appellant had been trying to avoid his transfer orders due to delaying tactics. It is also interesting to note that the Superintendent of Police, Sialkot wrote letter dated 25th May, 1982 to the Medical Superintendent, District Headquarter Hospital, Gujranwala (Annexure 'G') for arranging Medical Board of the appellant at an early date. However, order of reversion of the appellant by the respondent No. 2, was issued on 29th May, 1982 i.e. within a period of 4 days of issue of above letter. It is, therefore, clear that the respondent No. 2, had acted hastily to pass the above‑impugned order without wait ing the recommendations of the Medical Board.
8. There is yet another order of the Deputy Inspector‑General of Police, Gujranwala Range, respondent No. 2, dated 20th November, 1982 (Annexure `M') wherein he dropped the departmental proceedings against the appellant but directed that the appellant would remain A. S.‑I. for failing to comply with the orders.
9. It has been conceded in para. 3 of the parawise comments filed by the respondents to this appeal of the appellant that the order of transfer of the appellant to Pakistan Rangers were not conveyed to him. Para. 3 of the parawise comments is reproduced below :‑
"It is correct that the orders of the transfer of the petitioner to Pakistan Rangers on deputation could not be served upon the peti tioner due to his stay at Karachi for special duty till 4th March, 1982 and due to the reason that he got himself admitted in the Civil Hospital, Sialkot from 11th March, 1982 to 7th April, 1982 after his arrival from Karachi."
10. The learned District Attorney has submitted that the appellant could be reverted to the substantive rank of officiating rank as it could not be treated as a punishment. This reversion was purely on administrative reasons and not as a punitive action. However, in the present case the appellant was reverted on the basis that the appellant was avoiding trans fer through delaying tactics. Accordingly to the order dated 30th April, 1983 (Annexure 'N') of the Superintendent of Police, Sialkot, through which the period from 11th March, 1982 to 4th June, 1982 has been sanc tioned leave on medical certificates on full pay on the directions of the Deputy Inspector‑General of Police, Gujranwala Range, Gujranwala who made this reversion ; these basis do not stand. This order of the Superin tendent of Police, Sialkot makes it clear that the appellant was bona fide sick man and thus it cannot be said by any stretch of imagination that the appellant was avoiding transfer by delaying tactics. Keeping in view these facts of the case, the impugned order of the Deputy Inspector‑General of Police, Gujranwala Range, Gujranwala, vide order dated 29th May, 1982 in reverting the appellant from S.‑I: to A S.‑I. is arbitrary against the facts of the case and is unlawful.
11. The upshot of the above analysis of the case is that the orders dated 29th May, 1982 and 20th November, 1982 of respondent No. 2, i. e. the Deputy Inspector‑General of Police, Gujranwala Range, Gujran wala and final order dated 25th July, 1983 of respondent No. 3, i. e. the Inspector‑General of Police, Punjab, Lahore are set aside and the appeal of the appellant is accepted. The appellant would be deemed to have been continuing as Sub‑Inspector from 29th May, 1982 onwards with full back benefits.
There will be no order as to costs.
M. I. Appeal accepted.