AZAD GOVERNMENT OF THE STATE OF J&K Versus MUHAMMAD RAFIQUE KHAN

1. BASHARAT AHMAD SHAIKH, J ‑‑‑The respondent was working as Sub‑Inspector in the Police Department when certain charges were framed against him. He was suspended on 5th of September, 1985 and a departmental inquiry was held which culminated in an order passed by the Deputy Inspector General of Police on 30th of November, 1985 whereby the respondent was awarded the penalty of compulsory retirement after he had been found guilty of some charges. After the necessary formalities the respondent filed an appeal with the Service Tribunal, which was accepted on 26th of March, 1989. The Tribunal held that the penalty of compulsory retirement was not covered by rules. Consequently the order of compulsory retirement was set aside. The Tribunal did not go into the merits of the case so far as factual aspects were concerned and as observed in the order of the Service Tribunal recorded on 26‑3‑1989, it was thought proper to remand the case for fresh proceedings in accordance with law and it was also directed that the appellant should be given an opportunity for cross‑examining the witnesses. In obedience to the order of the Service Tribunal the Deputy Inspector‑General of Police, on 13th of May 1989, reinstated Muhammad Rafique Khan and ordered a fresh inquiry to be held against him for which purpose an Inquiry Officer was nominated. It was also ordered that the official would continue to remain under suspension and would be entitled to receive the subsistence allowance under rules. Before the Inquiry Officer, Haji Mir Muhammad Khan, the person who had levelled allegations against Muhammad Rafique Khan, himself resiled from hip allegations and the Inquiry Officer reported to the Deputy Inspector‑General of Police that the allegations remained unproved. On 10th of August, 1989 the Deputy Inspector‑General of Police issued an order in which he noted the fact that the complainant had resiled from allegations levelled by him, therefore the allegation of corruption against Muhammad Rafique had not been prove and a major penalty could not be awarded to him. He observed that it would take him some time to pass a detailed order in the matter. Therefore, he ordered that Muhammad Rafique Khan would stand reinstated from 4 th of April 1989, the date on which he had reported for duty after the order of the vice Tribunal. The Deputy Inspector‑General of Police also noted in the order that the question as to how the intervening period was to be treated would also be decided when the detailed order is issued,

2. The detailed order was subsequently issued by the Deputy Inspector General of police on 29th of October 1989. It is this order, which was vacated by the Service Tribunal and is sought to be restored through this appeal. In the order of 29th of October, 1989 the Deputy Inspector‑General of Police observed that Muhammad Rafique Khan had been found guilty at the conclusion of the first inquiry and it is on the basis of a technical ground that the Service Tribunal had set aside his punishment and a fresh inquiry had been ordered. It was observed that somehow or the other Muhammad Rafique Khan had been able to win over the star witness against him and, therefore, was able to save himself from punishment. However, it was noted that during the period when he was out of service he had performed no official duty and had also received pension and other benefits for that period. The Deputy Inspector‑General of Police expressed the view that in these circumstances there was no justification for payment of arrears to Muhammad Rafique Khan w d ordered that during the period when he was not on duty from 30th of November, 1985 till 4th of April, 1989 he would be treated to be on leave without pay. Muhammad Rafique Khan challenged the adverse part of this order before the Service Tribunal and succeeded in having the order vacated.

3. The Service Tribunal in its order under appeal decided the case in light of section 16 of the Azad Jammu and Kashmir Civil Servants Act, 1976 which is to the following effect:‑

4. " 16 Pay ‑‑ A civil servant appointed to a post or grade shall be entitled in accordance with the rules, to the pay sanctioned for such post or grade:

5. Provided that when the appointment is made on a current, acting or additional charge basis, his pay shall be fixed in the prescribed manner:

6. Provided further that where a civil servant has been dismissed or removed from service or reduced in rank, he shall, in the event of the order of dismissal, removal from service or reduction in rank being set aside, be entitled to such arrears or pay as the authority setting aside the order may determine."

7. After reproducing this section the Tribunal analysed the provision in the following words: ‑

8. "The above rule of law makes it abundantly clear that a civil servant can only be refused his salary if he has received the punishment of dismissal, or removal from service or reduction in rank for the charges brought against him and not otherwise. It is, no doubt, that all disciplinary actions against the subordinate members of the police service are taken under AJ&K Police Rules but at the same time the provisions of Civil Servants Act are also applicable to all the members of the Police Service. Therefore, it shall have to be accepted that both a civil servant and a police servant cannot be refused the payment of their salaries for any period during which they are charge‑sheeted and placed under inquiry for proving charges brought against them. In the instant case no charge has been proved against the appellant in the second inquiry held against him and as such the payment of salary for the period the appellant remained under suspension and illegal retirement cannot be withheld by way of a penalty."

9. The learned counsel for the parties Raja Muhammad Hanif Khan and Ch. Muhammad Ibrahim Zia were unanimous on the point that section 16 reproduced above was not applicable at all. It was contended by Raja Muhammad Hanif Khan that Rules 16.20, 16.28 and Rule 16.35 of the Police Rules were applicable to the present case. On the other hand Ch. Muhammad Ibrahim Zia contended that none of these rules could be applied to the facts of the present case. He also contended that the order of compulsory retirement was vacated by the Service Tribunal and that no adverse order could be passed in respect of the period when the order of compulsory retirement was in force. It was submitted that since the illegal order had been vacated it would be deemed that his client had not been retired and would be entitled to get his full pay for that period.

10. I would first advert to the question as to which law is applicable to the subordinate Police Officers. The definition of `civil servant' as contained in section 2 of the Azad Jammu and Kashmir Civil Servants Act is wide' enough to include all members of the Police Force. The definition is as follows:‑

11. "(b) Civil Servant' means a person who is appointed to any service of the State of Jammu and Kashmir or holds a civil post in service of Azad Jammu and Kashmir employed in connection with the affairs of the State, but does not include,‑

(i) a person who is on deputation to the service of Azad Jammu and Kashmir in connection with the affairs of the Government, from the Council or the Federation or any Province of Pakistan or authority;

(ii) a person who is employed on contract, or on work‑charged basis, or who is paid from contingencies;

(iii) a person who is a `worker' or `workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1922 (VIII of 1923)

12. Disciplinary matters relating to the civil servants are provided for in coon 15 of the Civil Servants Act which runs as follows:‑

13. "15.Efficiency and Discipline‑ ‑A civil servant shall be liable to such procedure as may be prescribed."

14. In pursuance thereof Azad Jammu and Kashmir Civil Servants; efficiency and Discipline) Rules were framed in 1977. Sub‑rule (2) of Rule 1, of the Rules provides that these Rules shall apply to all civil servants except members of such services and holders of such posts as may be specified by the Government. It has been specified by the Government that the Civil, servants (Efficiency and Discipline) Rules, 1977 shall not apply to the members of the subordinate Police Officers upto the rank of Inspector and that members of the subordinate Police Service upto the rank of inspector shall be governed by the Azad Jammu and Kashmir Police Rules, section 7 of the Police Act deals with matters relating to efficiency and discipline in respect of subordinate ranks of the Police Force. The section is worded as follows:‑

15. "7.Appointment dismissal etc., of inferior officers‑‑ Subject to such rules as the Government may from time to time make under this Act, the Inspector‑General, Deputy Inspector‑General, Assistant Inspector General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same; or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in‑ a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely;

(a) fine to any amount not exceeding one month pay;

(b) confinement to quarters for a term not exceeding fifteen days, with or without punishment drill, extra guard, fatigue or other duty

(c) deprivation of good‑conduct pay;

(d) removal from any office of distinction or special emolument;"

16. It is thus clear that so far as matters of discipline are concerned Police Officers of the subordinate ranks arc governed by section 7 of Police Act and the rules made thereunder and in matters "discipline Civil Servants (Efficiency and Discipline) Rules do not only. However, since the definition of `civil servant' is wide, all Police Officers are governed by Civil Servants Act and the rules made thereunder m respect of matters to which the Police Act does not apply. 'This question came up before Supreme Court of Pakistan in Inspector‑General of Police v. Mushtaq Ahmad Warraich PLD 1985 SC 159. After a detailed examination of the relevant case‑law Muhammad Haleem, C.J speaking for the Court observed as follows:‑ .

17. "The Civil Servants Act is an Act of general application and as earlier said it has no Constitutional status. Accordingly, it is as much a law as the Police Act of 1861 with the added distinction that it is of general application, while the Police Act is of special application to the officers of the subordinate ranks of the police force. The same is true with the rules. In this view of the matter, as to which would prevail over the other in case of inconsistency is of no difficulty. It should not be forgotten that the Police Act and the rules framed thereunder are such as would be applicable to a disciplined force only while the Civil Servants Act cannot serve this purpose."

18. The following observations occurring at page 176 of the report are also significant:‑

19. "Here comparing the two statutes I find that the provisions of the special law are of a disciplinary character and were enacted with the object to fulfill the requirements of a disciplined force, which purpose cannot be achieved if the provisions of the general law were to be applied to them. The field of operation of special law is, therefore, altogether different and limited to one subject, that is, the police force. Hence, there cannot be any possibility of any collision to attract the doctrine of `implied repeal'."

20. The conclusion drawn by the Court can be found at page 177 in the following words:‑

21. "From the above discussion it is clear that special law will prevail over the later law of general application."

22. After reaching the conclusion that the matter has to be resolved within framework of the Police Act and the Rules made thereunder, I now turn to the relevant Police Rules. Rule 16.20 is to the following effect: ‑

23. "16.20 (1) A police officer under suspension shall be given a subsistence grant. If, as the result of an enquiry, a police officer under suspension is punished, his subsistence grant for the time spent under suspension may not exceed one‑fourth of his pay (Fundamental Rule 53); if he is acquitted either as the result of an original enquiry or on appeal, the assessment of the subsistence grant is governed by Fundamental Rule 54.

(2) The following officers are empowered to make subsistence grants to police officers under suspension:‑

(a) Deputy Inspectors‑General, To all inspectors and non the Assistant Inspector‑ gazetted officers subordinate

24. General, Railway Police, and to them.

25. Superintendent of Police.

(b) The Assistant Superintendent, ditto

26. Government Railway Police, and (except as regards sergeants)

27. Deputy‑Superintendents Incharge of

28. Railway Police Sub‑Division subject to, confirmation by the Assistant

29. Inspector‑General, Railway Police."

30. This provision shows that when a departmental inquiry is completed and the officer proceeded against is acquitted, the subsistence grant for the time spent under suspension is governed by Fundamental Rule 54. This rule is to the following effect:‑

31. "F.R.

54. When the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable; or

32. When a Government servant who has been dismissed, removed or suspended is reinstated the revising or appellate authority may grant to him for the period of his absence from duty‑‑

(a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension; or

(b) if otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe.

33. In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty.

34. In a case falling under clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so directs."

35. In accordance with sub‑rule (2) of Rule 16.20 the Deputy Inspector General of Police its the authority who can sanction subsistence grant in respect of officers upto the rank of Inspector. Thus the power under Fundamental Rule 54, which refers to the revising or appellate authority shall be deemed to be exercisable by the Deputy Inspector‑General. Under Fundamental Rule 54 the powers mentioned in clauses (a) and (b) are applicable only when the revising or appellate authority vacates an order of dismissal, removal or suspension but Rule 16.20 makes these powers applicable not only when a police officer is acquitted on appeal but also when he is acquitted as a result of the original inquiry. The effect of the two provisions read together is that it is in the discretion of the concerned authority to determine whether the acquittal is honourable or not and consequently decide the proportion of pay and allowances to be paid to the police officer concerned.

36. However, it was contended by Ch. Muhammad Ibrahim Zia that Fundamental Rules are not in force in Azad Jammu and Kashmir and are not law of the land. This argument has no force because it is specifically mentioned in Rule 16.20 of the Police Rules that the assessment of the subsistence grant would be governed by Fundamental Rule 54. It is a clear case of referential legislation in which legislation is made by making a reference to a provision of law instead of repeating the phraseology. Rule 16.20 refers to Rule 54 of the Fundamental Rules, therefore, the phraseology of rule 54 has become a part of Rule 16.20.

37. Coming to the merits of the case, it was contended by the learned counsel for the respondent that in the second inquiry there was nothing on the record, which could be read against the respondent because no proceeding took place at all. After due consideration this argument is found to be devoid of any force. It is the Deputy Inspector‑General who was to basically decide whether it was honourable acquittal or not and he has taken the view that it was not. It has already been noted that at the previous occasion statements were recorded which fully implicated the respondent. It was on technical grounds and not on merits that the order was set aside at the previous occasion. The present acquittal is also not on merits because the complainant resiled from his complaint. Thus, the view taken by the Deputy Inspector‑General appears to be correct and cannot be set aside. In a judgment of the Supreme Court of Pakistan in Government of West Pakistan v. Mian Muhammad Hayat (PLD 1976 SC 202), it was observed as follows:‑

38. "As a result of the dropping of the inquiry against the respondent the allegations of misconduct against him were not inquired into and determined on merits. This cannot possibly be regarded as amounting to a consideration of the allegations of misconduct against the respondent on merits and a finding that they were either false or not proved. The very word `acquittal' implies that there must have been a trial of the case on merits followed by acquittal of the accused. Under rule 73(a) of the Rules the acquittal should be an `honourable' one which implied, in my opinion, that the acquittal must follow a finding of the Tribunal concerned that the allegations were false and not merely not proved."

39. The Supreme Court of Pakistan accepted the appeal filed by Government of West Pakistan. The order of the Governor of West Pakistan by which the period of suspension was not treated on duty was revived and the concerned civil servant was allowed the subsistence allowance and compensation allowances already drawn by him during the suspension.

40. The learned counsel for the respondent, Ch. Muhammad Ibrahim Zia, then vehemently contended that the period up to the passing of the order by tile Service Tribunal when the compulsory retirement of the respondent was previously vacated could not become subject‑matter of an order by the Deputy Inspector‑General of Police. While setting aside the order on the previous occasion the Service Tribunal did not pass any order in respect of the past salary relating to the period when the respondent here was kept out bf service. That order of the Service Tribunal was in the following terms: ‑

41. "It will be proper to remand the case back for fresh orders/proceedings in accordance with law. The appellant should also be given an opportunity of cross‑examining the witnesses whose evidence has been recorded in his absence if such witnesses are available.

42. As an upshot of the above discussion the appeal is accepted and the orders dated 30‑11‑1989 and 9‑8‑1986 are set aside. The D.I: G. shall process the case afresh in light of the observations of the Tribunal and the Rules applicable on the subject."

43. It is clear that it was an order of remand. The proceedings taken thereafter were in continuation of the previous proceedings. The respondent had not been acquitted at any previous stage and the inquiry proceedings legally culminated on 10th of August, 1989 for the first time. This is the stage visualized by Rule 16.20 of the Police Rules when assessment of the subsistence grant had to be decided because this is the stage when he was either to be acquitted or punished. Thus the order was rightly passed by the Deputy Inspector‑General in respect of the whole period.

44. The learned counsel Ch. Muhammad Ibrahim Zia relied on Government of East Pakistan v. Murzuqullah (PLD 1969 SC 1) and Abdul H amid v. Secretary, Rehabilitation and Revenue to the Government of Punjab 1980 Lah.1). I have gone through both the judgments and find that there is nothing in them, which can support the case of the respondent.

45. It has thus crystalised that the approach adopted by the Service was not correct and consequently the conclusions it reached are unsustainable. I ,nay also gene that the view expressed by the Service Tribunal that a civil servant who has been compulsorily retired is not covered by the proviso to section 16, does not seem to be free from doubt because it tentatively appears that the law‑maker while using the term "removal from service" used it in a broad sense so as to include all persons who have been illegally displaced from their service against their will. However, since this question does not arise in this case in a concrete shape it is left open.

46. However, the operative part of the order passed on 29‑10‑1989 by the Deputy Inspector‑General of Police, which is the subject‑matter of this appeal, is not in accordance with law and is also somewhat contradictory. The relevant part (as translated) runs as follows: ‑

47. "The official has received all the pensionary benefits in light of the retirement order and has not performed any official duty during the period when he was out of service. Therefore, there is no justification to pay him the arrears of pay. In these circumstances the period of absence from service from 30th of November, 1985 to 4th of April, 1989 is treated as leave without pay."

48. In pursuance of this order the period of absence has to be treated as leave without pay. The logical conclusion would be that Muhammad Rafique would have to refund the amount of pension, which he received from the period when he stood compulsorily retired. One of the reasons recorded by the Deputy Inspector‑General of Police for his decision to withhold prayer of arrears is that the concerned official had already received full pensionary benefits. It has thus created an anomalous situation. Apart from that, according to rule 54 of the Fundamental Rules when a Government servant is reinstated without being honourably acquitted only a proportion of pay and allowances can be refused to him and not the whole pay. If the period during which the respondent was out of service is treated as leave without pay this provision of rule 54 would be clearly violated. The order of the Deputy Inspector‑General of Police, therefore, needs to be modified in order to bring it in conformity with law. It is, therefore, ordered that the respondent shall be entitled to the amount of pension and other allowances, which he received between 30‑11‑1985 and 4‑4‑1989 and would not be entitled to any other arrears.

49. As an upshot of the foregoing, the appeal is accepted and the order of the Service Tribunal is set aside. Consequently, the order passed by the Deputy Inspector‑General of Police shall stand restored with the modification indicated above.

50. A.A./355/SCA Appeal accepted.