1988 PLC(CS) 490

IHSANUL HAQ CHAUDHRY (CHAIRMAN). ‑‑The brief facts relevant for the decision of the present appeal are that the appellant Ghulam Abbas was serving as S.I. in the Punjab Police and in the year 1981 was posted as S. H.O., Satiana, District Faisalabad. There were certain allegations of misconduct and corruption, therefore, Respondent No.l decided to initiate disciplinary proceedings against the appellant. The appellant was accordingly ‑served with a show‑cause notice. The appellant submitted reply thereto and was granted personal hearing by the Respondent No.l, who was not impressed by the justification, rendered by the appellant, therefore, he was awarded minor penalty of 'Censure'. The order of Respondent No.l is dated 4‑5‑1981. The appellant assailed this order of Respondent No.l through representation before Respondent No.2, who after due consideration of the matter rejected the same vide order dated 3‑3‑1984. The appellant, thereafter, submitted yet another representation before Respondent No.3 through Respondent No.l who treated the same as second appeal and informed the appellant that second appeal is not competent.

2. There are number of appeals by different Police Officials and are directed against the cyclostyled order of I.G .P/DIG /S.P. whereby the revision petitions filed by the appellants were treated as second appeals and the appellants were informed that there was no provision for second appeal in the Punjab Police (Efficiency and Discipline) Rules, 1975. These appeals raised a common question of law, therefore, we decided to hear arguments in all the appeals together and write the main judgment in this appeal. The appeals were argued on behalf of the appellants?by Mr. Masud Ahmad Riaz, Advocate, Ch. Nushtaq Masood, Advocate, and Asif Saeed Khosa while other learned Counsel for the appellants adopted their arguments. The learned Counsel for the appellant inter alia argued: ‑

(i) that revision is competent;

(ii) that only the rules 16.24 to 16.27 of the Punjab Police Rules stood repealed with the promulgation of Police (Efficiency and Discipline) Rules, 1975 and the remaining rules especially Police Rules 16.28 and 16.32 are still in force. The same can be pressed in service to supplement the provisions of the Efficiency and Discipline Rules; and

(iii) The Respondent No.l has passed the order without applying mind mechanically, arbitrarily whereby revision petition was treated as second appeal. The grievance of the appellant and others precisely is that the I.G.P/DIG/S.P. did not deal with the matter themselves at all and in their stead their staff dealt with matter and issued cyclostyled memos without bothering about their authority and taking into consideration the grievance of the appellant.

On the other hand the learned D.A. has argued that neither the revision is competent nor second appeal, therefore, use of word second appeal in the impugned memo. is of no legal significance, because the position remains the same. It is added that Police Rules pertaining to disciplinary procedure and remedy available to the accused stands repealed in toto with the promulgation of Police (Efficiency and Discipline) Rules, 1975. It is argued that since Rule 12 precedes rule 13, therefore, the same cannot be pressed into service after availing the remedy of appeal. Lastly, it is argued that appeal in this Tribunal is competent after the decision of the Departmental appeal or representation, as the case may be, and word 'Revision' does not figure anywhere in section 4 of Punjab Service Tribunals Act, 1974.

3. We have given our anxious considerations to the arguments and gone through the relevant rules. First of all we deal with Rule 12, which reads as under: ‑

"12. Revision

(i) The Inspector‑General, Additional Inspector‑General, a Deputy Inspector‑General of Police or a Superintendent of Police may call for the records of awards made by their subordinates and confirm, enhance, modify or annul the same, or make further investigation or direct such to be made before passing orders.

(ii) If an award of dismissal is annulled, the officer annulling it shall state whether it is to be regarded as suspension followed by reinstatement, or not. The order should also state whether service prior to dismissal should count for pension or not.

(iii) In all cases in which officers propose to enhance an award they shall, before passing final orders, give the defaulter concerned an opportunity of showing cause, either personally or in writing, why his punishment should not be enhanced."

4. It is admitted by both the sides that the Rule is not happily worded. The title of the Rule is 'Revision' while from the text it is evident that various officers in the heirarchy have been vested with supervisory powers. It is lawful for them to send for the records of awards made by their subordinates and confirm, enhance, modify or annul the same. It is strictly speaking not revisional powers in, the ordinary legal parlance. The Police officials at different levels could suo motu send for the records to correct the errors of their subordinates. If looked from this angle, it is purely discretionary jurisdiction, but with the restoration of fundamental right the theory of absolute discretion has completely disapproved and demolished by Article 25 of the Constitution of 1973.

5. The discretion has been clipped and briddled by the Constitution. The same has now to be exercised in all cases alike. The necessary corollary of this change brought by restoration of Constitutional guarantees‑is that all Authorities having discretionary powers in certain matters have some guideline with them to exercise their powers. It is the only safe way to avoid attack to the discretionary powers on the ground of discrimination. The Authorities under Efficiency and Discipline Rules have to bear in their minds that their subordinates are to be given equal treatment. It is only possible if they have evolved same rules according to which they are to exercise the powers. It is clear that powers available under Rule 12 to the Respondents at different levels cannot be equated with the powers available in revisional jurisdiction.

6. We have already decided in Appeals Nos. 349/87, 360/87, 404/87 and 355/87 that revision is not competent. The relevant portion of the judgment reads as under:‑

"When both the old and new rules are compared .then it becomes clear: ‑

(a) ??????? That the accused has no right of revision and it is only the departmental authorities which can suo motu exercise revisional jurisdiction.

(b) ??????? That there is no scope for mercy petition now.

(c) ??????? That. there was never any provision for second appeal i.e. appeal against an order passed in appeal."

The result is that for the purpose of this Tribunal the decision of departmental appeal is a 'final order' and accused official can straightway, file appeal in this Tribunal. But in case he elects to put in a petition to move the Respondents to exercise their powers under section 12, then on the one hand he will be doing so at‑ his own risk and subsequently when he comes to this Tribunal, he has to render explanation and full justification for the time elapsing between the order passed on Departmental appeal and filing of the appeal in this Tribunal. On the other hand it will be for the concerned Police Authority to exercise or refuse to exercise, powers under Rule 12 but they will have to justify the order.

7. It is emphasised that the jurisdiction has to be exercised on some visible principles. It will be seen from Police Rule 16.32 that 'material irregularity' was a valid ground to entertain a revision petition under the said rule, but in the present rule there is nothing of the sort. The framer of the Rule left it to the judgment of the concerned Authority but now that has to be exercised carefully in order to avoid objection of discrimination. This is only possible when mind is applied to the facts and a speaking order is passed.

8. Ch. Mushtaq Masood, Advocate, for the appellant has placed on record numerous ‑ orders in which petitions were entertained by the I.‑G.P. but it was‑ two years back and now, according to the learned D.A., the interpretation of the Department is that Revision is not competent. We had in‑ our mind to suggest amendment to make the Revisional powers more effective but the way in which it has been exercised discouraged us and we gave up the idea of suggesting amendment. It is better not to confer any such powers if the same are to be used so wrecklessly and by the subordinate staff of the concerned Authorities.

9. The conclusion is that the Revision is not competent and the Respondents while dealing with the petitions requesting to invoke their powers under rule 12 have first of all to see whether it is a proper case for exercise of supervisory powers and if according to the guideline or criteria, it is a fit case then they can proceed with the matter.

10. Now we take up the second point urged on behalf of the appellant that in spite of promulgation of Punjab Police Efficiency and Discipline Rules, 1975, the Police Rules 16.28 and 16.32 remained intact. The argument in nutshell is that while Police Rules 16.24 to 16.27 have been repealed by the Rules of 1975 but other Rules remained unaffected. The argument is misconceived for the simple reason that Rules of 1975 are a complete set of Rules. It not only provided the procedure for initiation and completion of disciplinary proceedings but also made provisions for remedy available to the effected civil‑servants. All the rules on the subject stand repealed by rule 15, which reads as under: ‑

"15. ????????????????? Repeal

Any Disciplinary Rules previously applicable to Police Officers to whom these rules apply are hereby repealed but the repeal thereof shall not affect any action taken or anything already done or suffered thereunder."

We are, therefore, of the considered opinion that not only rules 16.24‑ to 16.27 but subsequent Rules in the series were also scrapped by Rule 15 of the Rules, 1975.

11. This brings us to the second limb of the argument that in any case 'Revision' is competent under section 21(2) of the Punjab Civil Servants Act, 1974. The relevant subsection reads as under: ‑

"Where no provision for appeal or review exists in the rules in respect of any order, a civil servant aggrieved by any such order may, except where such order is made by the governor, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order."

It is clear from the text of the subsection (2) of Section 21 that it is a residuary power and available only when no provision for appeal or review is available in the rules in respect of an order. Therefore, the prerequisite for invoking the powers under subsection (2) of Section 21 of the Punjab Civil Servants Act, 1975 is whether power of appeal or review is available under the relevant set of rules or not?

12. The appeals have been dealt with by Rule 14 of the Punjab Police Efficiency and Discipline Rules, which reads as under: ‑

"14. ????????????????? Appeal

(a) An appeal shall lie only against the order of dismissal, removal from service, compulsory retirement, reduction in rank or time‑scale forfeiture of approved service and imposition of fine;

(b) ??????? There shall be one appeal from the original order, and the order of the appellate authority shall be final;

(c) ??????? The appeal shall lie to an officer one step higher in rank as shown in the schedule, than the one who passed the original order provided that in case of orders passed by the Inspector ?General of Police, only a review petition would be admissible."

While the penalties which can be imposed under Rules of 1975 are detailed in Rule 4 of the Punjab Police Rules. Now if Rules 4 and 14 are read together then it becomes clear that no appeal is competent against the following minor punishments:

(i) Censure;

(ii) Withholding of promotion upto one year;

(iii) Confinement to quarters for term not exceeding 15 days with or without punishment; and

(iv) Drill, extra guard or other duties. Extra drill not exceeding 15 days fatigue or other duties.

While in respect of other penalties namely dismissal, removal from service, compulsory retirement, reduction in rank or time scale, forfeiture of approved service and imposition of fine, a provision for appeal has been made. Now question arises whether representation can be maintained by Police personnel against imposition of penalty imposed under Police Rules? We have to read section 21(2) of the Civil Servants Act together with Rules 4 and 14 of the Police Efficiency and., Discipline Rules to answer his question. The result is that if the accused Police officials have a remedy under Rule 14 then they cannot invoke the provisions of section 21 of the Civil Servants Act e.g. in cases of dismissal, reduction in rank, the cases as detailed in the earlier part of this paragraph and precisely where the appeal under Rule 14 is competent. While other cases where appeal is not competent under Rule 14 of the Police Rules e.g. Censure etc., as detailed in the earlier part of this pare, the aggrieved Police Personnel can maintain a representation under section 21(2) of the Civil Servants Act.

The conclusion is that where appeal under Rule 14 against the order of imposition of penalty is competent in those cases there is no scope for representation. We may make it clear that even Rule 12 will not be available in respect of minor penalties for which no appeal has been provided for under the Rule. The accused civil servant has to make a representation, under section 21(2) of the Punjab Civil Servants Act. The result is that we hold that Police Rules 16.28 and 16.32 framed under Punjab Police Act stands repealed by virtue of Rule 15 of Rules 1975. Therefore, there is no scope for any revision under Rule 16.28 of the Police Rules.

14. This brings us to the last argument that Respondent No.l did not attend to the petition of the appellant and cyclostyled order was conveyed by his staff and in any case Respondent No.l had no justification to decide the petition after the dismissal of the Departmental appeal of the appellant by Respondent No.2. The jurisdiction thereafter only vested in Respondent No.3. Before proceeding any further we would refer to the subject and relevant portion of the petition, which reads as under: ‑

"To

The Inspector‑General of Police,

Punjab, Lahore.

THROUGH PROPER CHANNEL

Subject: PEPRESENTATION AGAINST THE ORDER OF DIG FAISALABAD RANGE, FAISALABAD."

??????????? while the impugned memo reads as under:?

"Copy of Memo. No.13419/E, dated 13‑9‑1987 from the Inspector‑General of Police, Punjab, Lahore, to the Deputy Inspector‑General of Police, Faisalabad Range, Faisalabad.

Subject: ??????????? SECOND APPEAL

Under (E & D) Rules, 1975, second appeal is not entertained. Therefore, cases of the officials as per list enclosed are returned herewith alongwith the Service Documents. The officials may please be informed accordingly. "

It is clear from impugned memo that order was not passed by, Respondent No.l but in fact it was an intimation received by him from I. ‑G. P. through D .I . ‑G . , Faisalabad for passing it on to the appellant. Therefore, there is no merit in the argument that the Respondent No.l has usurped the powers of Respondent No. 3 and wrongly and illegally blocked the petition of the appellant. This will not help the Respondents because the main attack to the impugned memo is that it has been passed without looking into the grievance of the appellant. This remains unrebutted.

15. It is clear from the subject as well as body of the said memo., that the Respondent No.3 did not apply his independent and judicious mind to the grievance of the appellant placed before him. The appellant had never filed a second appeal. It is, therefore, clear that the cyclostyled order was issued by the staff of the Respondent No.3 without bothering about the complaint of the appellant. The learned D.A. when confronted with this had nothing to add except that since revision is also not competent, therefore, it makes no difference whether the term second appeal or revision is used in the memo. The argument is too superficial and without merit for the simple reason that it is evident from the impugned memo that Respondent No.3 did not apply his mind at all to the grievance of the appellant. This fact alone is sufficient to render his order illegal. The fact that even revision is not competent becomes irrelevant.

16. Before parting with the judgment we would like to point out that the present system of addressing appeals and petitions against the orders passed under E & D Rules through proper channel needs to be stopped at once. It is needless to add here that under rule 18 of the Punjab Civil Servants E&D Rules, the appeals, representations have to be filed through proper channel while there is no corresponding provision in the Police Efficiency and Discipline Rules, 1975. We would suggest that even the provision in the Civil Servants Rules in this behalf needs amendment, inter alia, for the following reasons:

(a) ??????? The provision is against principle of natural justice and prejudices the defence of the a accused officials because normally speaking it is very difficult for them to incorporate the true facts especially as to mala fide and victimisation in face of their immediate boss. Because no big boss would like to see spade being called spade;

(b) ??????? Secondly, lot of time is wasted in forwarding the appeals and petitions to the concerned authorities and then their decisions back to the appellants‑petitioners in the same channel but in the reverse order. This back and fro exercise is merely wastage of time and funds;

(c) ??????? Thirdly, since the true facts are not pleaded initially and at subsequent stage the accused civil servant is not allowed to raise the points as the same are considered afterthought. The result is that this Tribunal is deprived of proper material;

(d) Fourthly, the channel results in wrong assumption of powers because the appeals or petitions are illegally withheld by the lower authorities, who have no jurisdiction. Our viewpoint is fully supported by the fact that in many of these appeals the revision petitions were withheld by D.I.‑G. and appellants were informed that second appeal is not competent before the I.‑G. This way D.I.‑G. illegally usurped the powers of I.‑G.

17. There is yet another amendment required in. the same context in the rule. We have noted that there is no provision in the Punjab Civil Servants (E&D) Rules, 1975 and Police E&I7 Rules parallel to that of Rule 7 of the Civil Servants (Appeal) Rules, 1977. The provision reads as under: ‑

"7(1) ??? An appeal may be withheld by an authority not lower than the authority from whose order it is preferred it: ‑

(a) . . . . . . . .

(b) . . . . . . . .

(c) . . . . . . . .

(d) ??????? it is addressed to authority to which no appeal ,lies under these rules:

Provided that in every case in which an appeal is withheld, the appellant shall be informed of the fact and the reasons for it;

Provided further that an appeal withheld on account only of failure to comply with the provisions of sub‑rule (2) or (3) of rule (5) or clause (d) may be resubmitted within one month of the date on which the appellant is informed of the withholding of the appeal, and if resubmitted in a form which complies with those provisions or is addressed to the proper appellate authority, as the case may be, shall not be withheld."

18. It is desirable that Rule 18‑A may be added after Rule 18 of the E & D Rules making a provision to the effect that if Departmental appeal /representation or. petition is addressed to a wrong authority then the same shall be returned within 30 days to the appellant/ petitioner for presentation of appeal/petition before the proper authority within seven days. This amendment if made will prove conducive to the needs of justice.

19. The result is that we accept this appeal and remand the matter to the Respondent No.3 to decide it afresh in accordance with law. There is no order as to costs.

S. Q. /196/Sr.P ???????????

Appeal accepted.