1982 PLP 702 (SCMR)

MUHAMMAD HALEEM, Actg. C. J.‑Leave to appeal was granted to the appellant to examine the question as to whether the S. P. was competent to dismiss him in the background of the earlier decision reported as Muhammad Afzal Khan v. Superintendent of Police, District Montgomery and others (P L D 1961 Lah. 808) in which it was held that it was the D. I ‑G. Police who alone had such power. The Punjab Administrative Tribunal, while dismissing the appeal of the appellant held that as this question was not raised before the D. L‑G., the appellate departmental authority could not take cognizance of such a sub mission in terms of proviso (a) of clause (4) of the Administrative Tribunals Act, 1974, on the failure of the appellant to raise it in appeal before such authority. On the factual side, the appellant was appointed as an A. S. I. by the S: P., Multan on 10th of March, 1956, from the list of accepted candidates for direct recruitment as .A. S. I. maintained in the office of the D. I.‑G., Multan Range, under rule 12.7 of the Punjab Police Rules, 1934, Vol. II, Chapter

12. On 7th of March, 1959, while serving as an A. S. I., at Montgomery, he was discharged from service by order of the S. P., District Montgomery. Having failed to get any relief through departmental appeals and petitions, the appellant filed a Constitutional petition titled, Muhammad Afzal Khan v. S. P., `Montgomery', cited as above; under Article 2(4) of the Laws Continuance in Force Order, 1958, to seek relief against his discharge and succeeded as the erstwhile High Court of West Pakistan, Lahore, held that the appointment of the appellant, under the law, could not be deemed to have been made by the S. P., Multan, on a reading of rules 12.7 and 12.8 and as the order amounted to his removal from service within the meaning of Article 182 of the 1956 Constitu tion, the impugned order was passed by an authority lower in rank than the one that had made the appointment. He was, therefore, re‑instated. On 10th of January, 1969, he was promoted in an officiating capacity to the rank of S. I., and again reverted to a his original post as A. S. I., on 14th of April, 1969. He was next proceeded against for misconduct under the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 and as he abstained from participating in the inquiry, it pro ceeded in his absence and the' Inquiry Officer held him guilty of charges of misconduct as per report dated 27th of September, 1969. The S. P., Mianwali, then served on him a show‑cause notice dated 2nd of October, 1969, giving him 7 days' time to submit his explanation which, according to the appellant, was received by him on 7th of October, 1969. He was, thereupon, submitted his explanation on 14th of October, 1969, but a day before it reached the S. P., he was dismissed from service by' him. He, thereupon, filed an appeal to the D. I.‑G., who heard him in person as the proceedings were ex parte against him and by order dated 29th of April, 1970, he dismissed the appeal. The appellant, next filed a writ petition in the High Court which abated on 15th of July, 1974, whereafter he filed an appeal before the Punjab Administrative Tribunal, but did not succeed, The learned counsel mainly relied on the decision, cited above, to contend that as he was appointed by the D. I.‑G., the S. P. could not order his dismissal ; but at a time when the order of his dismissal was passed by the S. P., the constitutional dispensation was different as in Article 177(1) (a) of the 1962 Constitution, the appellant could be removed from service by an authority subordinate to that by which he was appointed if he had been expressly empowered to do so‑ by an authority not so subordinate. Such delegation of authority to the S. P. is found in Item 9 of Police Department Delegation of Powers Rules, 1958, as amended by Notifications from time to time. Therefore, no exception can be taken to the order of dismissal as it is according to the Constitutional dispensation and for the further reason that the Delegation Rules have Constitutional sanction and superseded all other service Rules for the time being in force. The dictum in the earlier case has therefore, no relevance. It was next contended that there was violation of rule 6‑A(5) of West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, as the S. P., before taking into consideration the explanation, passed the order of his dismissal. The period specified in the Rule is one not exceeding one month, therefore, while giving 7 days to the appellant for submitting his reply, there was no violation in regard to time ; and if the petitioner himself delayed the submission of his reply until 14th of October, 1969, no exception can be taken if the S. P. had passed the order on 15th of October, 1969. The requirement as to the consideration of the explanation could only be relevant if the appellant had been vigilant to send the reply, as directed, within the specified time. This requirement could not apply in case the explanation was not sent at all or where it was received after the given period had expired. The appeal is, therefore, without merit and is hereby dismissed but with no order as to costs. Appeal dismissed.