FAZAL ELAHI Versus SUPERINTENDENT OF POLICE, RAHIMYAR KHAN

ORDER

Comments furnished by Superintendent Police, Rahimyar Khan perused Mr. M. A. Pirzada, the learned counsel for the petitioner and Haji Riaz-ud-Din Ahmad Khan, learned representative of Advocate-General Punjab, Lahore assisted by Mr. Habib-ur-Rehman, Prosecuting Inspector (deputed by S. P., Rahimyar Khan, respondent No. 1) have addressed the Court. Learned counsel for the petitioner argued that the factual assertions made in the writ petition with regard to non-issuance of show-cause notice by S. P. to the petitioner before passing the impugned order of dismissal having been admitted in the comments and the allegations of discrimina tory treatment with the petitioner having not been specifically denied therein, the interim relief granted on 24th August, 1983, may be confirmed.

As against this, the learned Representative of Advocate-General Punjab, Lahore while conceding that Habib Ullah Inspector Police, convicted by the same Court in the same case has not been dismissed and having been re-instated by D. I.-G. Police Multan, is still in service, has raised following points :-

(1) That under police rules, the petitioner was not entitled to show -cause notice against his dismissal from service following his conviction.

(2) That the petitioner has appropriate remedy available before Punjab Service Tribunal and as such, the writ petition filed by the peti tioner is not tenable.

(3) That a person convicted by Military Court and even subse quently pardoned cannot be re-instated but may be entitled to fresh employment. Reference has been made to C. M. L. A. Secretariat, Rawalpindi, letter No. 57/29(1)B/AJAG/CMLA/83, dated 16th March, 1983 endorsed by Headquarter, Martial Law Administrator, Zone-A, Punjab's letter No. 411/Ruling/L/ML, dated 29th March, 1983.

2. Having carefully attended to the arguments advanced by the parties, I find that since admittedly, no show-cause notice was given to the petitioner before his dismissal from service, prima facie, he has been condemned unheard at least in violation of Principle of Natural Justice. Furthermore, since Habib Ullah Inspector Police a co-convict in the cam case by the same Military Court awarded much more punishment has not been dismissed, as frankly admitted by the learned Representative of Advocate-General on the instructions of Mr. Habib-ur-Rehman, P. I. and is still in service, therefore, prima facie, the petitioner is a victim of discrimination. It is really unfortunate that Habib Ullah Inspector Police convicted by the same Court for the same offence and award much more sentence, was not dismissed and is still in service whereas the petitioner. S. I., who was awarded much-less sentence has been dismissed and that, too, without show-cause notice. I am convinced that had the petitioner been given opportunity of being heard, the possibi lity that the S. P., Rahimyar Khan, just like D. I.-G., Police Multan fin case of co-convict) might not have dismissed him from service, cannot be excluded. The 3 points raised by the learned Representative of Ad vocate-General, prima facie, do not rehabilitate the obvious infirmities affecting the jurisdiction and authority of S. P., Rahimyar Khan to condemn the petitioner unheard in violation of the principle of natural justice. It is well-settled that when a show-cause notice is not a statutory requirement, the Principle of Natural Justice which is deep rooted in Pakistan comes to the rescue of persons likely to be adversely affected by the proposed action. The police rules may not require show -cause notice yet the Principle of Natural Justice did require show-cause notice to the petitioner before passing any order against his interest. As for point at No. 2, it is also not less well-recognized that available alternative remedy constitutes no bar where the impugned order suffer from jurisdictional defect or the orders are without lawful authority. The Courts in Pakistan have taken the view that failure to comply wit the Principle of Natural Justice renders the act void ab initio and that the orders passed without issuing show-cause notice are not only illegal but also without lawful authority and of no legal effect. Each case has however, to be determined on its own facts. So far as the E letters issued by C. M. L. A. Secretariat referred to by the learned Representative of Advocate-General in his point No. 3 are concerned these do not authorize the punishing authority to dismiss a convict Officer/official without providing him opportunity of being heard.

3. For what has been stated above, prima facie, it is a case of apparent discrimination and great injustice to the petitioner. The interim relief granted on 24th August, 1983, is, therefore, affirmed.

A. E. Order accordingly.