Mirza MUHAMMAD SADIQ Versus INSPECTOR GENERAL OF POLICE, AZAD JAMMU AND KASHMIR, MUZAFFARABAD

MUHAMMAD SIDDIQUE FAROOQI (CHAIRMAN).‑‑ This appeal is directed against order of Superintendent of Police Reserve Muzaffarabad, whereby the appellant's compulsory retirement from service was ordered on 31‑10‑1984, vide order book No.2153 and against order of Inspector‑General of Police vide order book No‑175 dated 16‑10‑1985, through which the order of retirement was maintained with the amendment that the words "compulsory retirement" were substituted by "retirement on request/right".

2. The appellant states that he was transferred to Chattar Post near C. F. L. in District Kotli on 22‑10‑1984. Prior to that, he had served on the posts near C.F.L. a number of times. His transfer to different places was ordered with ‑the short intervals. Aggrieved by these transfers, he presented an application as a protest to the Inspector‑General of Police that his frequent transfers were not justified. Alternatively, he requested for retirement, if fair treatment could not be meted out to him, in the matter of transfer. A photostat. copy of the application is stated to have been received by Superintendent of Police Reserve on 29‑10‑1983. The Superintendent of Police Reserve without any order of the superior authority proceeded for the action against the appellant. The Superintendent of Police Reserve described the action of the appellant as violation of the discipline and ultimately on 31‑10‑1984 ordered the compulsory retirement of the appellant. On review of the proceedings, the Inspector‑General of Police altered 'the order of compulsory retirement to one as retirement on request/title. The present appeal has been preferred against both the aforesaid orders. The appellant does not own the application on which the action was taken by Superintendent of Police.

3. The last portion of the order of the Superintendent of Police Reserve shows that the retirement of the appellant was compulsory. In Police Rules, there is no provision for compulsory retirement as punishment or otherwise. The language used by Superintendent of Police Reserve in the last paragraph of the order shows that in his opinion, the appellant was guilty of a number of charges, which could be levelled against him on the basis of his applications or his conduct. Apparently, the Superintendent of Police has styled his action of compulsory retirement of appellant, a matter of lenient attitude. So far, as the question of retirement is concerned under the Police Rules, the retirement can take place on the superannuation of age only and not as a disciplinary proceedings. The other provision, regarding the premature retirement exists in Civil Servants Act, 1976. The action under section 12 of the Civil Servants Act can only be taken by the competent authority. The competent authority has been defined as the appointing authority in the same Act. In the case of Sub‑Inspector of Police, the Inspector‑General of Police is the appointing authority in Azad Kashmir. We have often observed that appointments even to the post of Assistant Sub‑Inspector are made by the Inspector‑General of Police and not by any officer below him. The promotion of the appellant to the post of Assistant Sub‑Inspector was also made by Inspector‑General of Police as is evident from Order Book No.47 dated 9‑2‑1974, issued by Commandant A.K. Police Rangers ;Muzaffarabad. Although the order of promotion to the post of Sub‑Inspector is not traceable, nevertheless there can be no doubt that authority competent to make promotion as Sub‑Inspector even in his case was Inspector‑General of Police and not Superintendent of Police. Under these circumstances, the powers vesting in the competent authority under section 12 of the Civil Servants Act, 1976 could not be exercised by Superintendent of Police Reserve. The order passed on 31‑10‑1984 is, therefore, without jurisdiction. ' If the matter is adjudged from another angle, the Superintendent of Police was competent to remove the appellant from service on the basis of some disciplinary grounds. The proceedings should have been taken in the form of issuance of charge‑sheet, enquiry and the issuance of show‑cause notice etc. No enquiry seems to have been conducted nor any show‑cause notice for the proposed action of compulsory retirement appears to have been issued. In these circumstances, the order cannot be maintained, even on this score, i.e., breach of discipline. Consequently, the order of Superintendent of Police passed on 31‑10‑1984 is without any legal footing. Another factor coming to our notice is that the application was made by the appellant as a protest to the Inspector‑General of Police. . He was the proper authority for taking any action in the case of the appellant. It is strange that the S.P. proceeded to retire the appellant from service on a photostat copy received by him. Such a hasty action on a photostat copy of the application is neither warranted by law, nor it is expected of a responsible officer. The action of S.P. Reserve should have been disapproved. The Police is a disciplined force and superior officers are enjoying ample power to maintain the discipline, but the mode of exercise of powers is also provided in the Rules. If the powers are misused or exercised in a rough and rude manner, violating the rules, it tantamount to create disrespect and state of no confidence in the superior officers, which would be more injurious to the discipline.

5. The order of Inspector‑General of Police dated 16‑10‑1985 rests upon the proceedings of Superintendent of Police Reserve, which has been found illegal, therefore, this order does not stand at a better footing than the order of Superintendent of Police Reserve. These orders cannot be maintained.

6. As upshot of the above discussion, the appeal is accepted. The orders of respondents passed on 31‑10‑1984 and 16‑10‑1985 are set aside. The appellant is reinstated to service from the date of being relieved from service. He shall be entitled to all the benefits of service, as if he was never retired. The competent authority, if so desires may proceed afresh according to law.

M.Y.H./60/Sr.A Appeal allowed.