1988 PLP (C﷓S (PLC(CS))

Muhammad Latif Khan, Special Government Pleader for Respondents. MALIK MUHAMMAD PARVEZ KHAN (CHAIRMAN).--Appellant filed the present appeal against the impugned order, dated 8-12-1987, received by her on 12-12-1987, passed by respondent No. 3 vide which she was discharged from service under rule 12.21 of Police Rules, 1934. According to her, she being the widow of late A.S.I. Nawab Jang was recruited as Lady Constable in the Police Force on 1-8-1987. Her husband was killed by out-laws on 24-12-1986, within the limits of Police Station Umerzai, Tehsili Charsaddai, Peshawar. She performed her duties efficiently and honestly but due to the conspiracy hatched against her by some influential Police officials, she was informed regarding the disciplinary action to be taken against her under the N.-W.F.P. Police Rules, 1975 as allegedly she was charged to be a woman of bad character and a smuggler. She submitted the reply repudiating all the charges and further stating that it was due to the enmity of her opponents and she requested to probe into the matter by taking into consideration all the necessary evidence. However, to her utter dismay, she received the order of her discharge under the Police Rules, 1934. She challenged the said action as illegal, void, mala fide, without jurisdiction and not binding upon her. Respondents seriously refuted the allegations by stating that there were many complaints against her. The authority can take action under Police Rules, 1934 as her service was less than 3 years and the Tribunal had no jurisdiction to entertain the matter under the Police Rules, 1975 as it had barred the powers of any Court, Tribunal or Authority to review an order passed by the departmental authorities. Learned counsel for the appellant argued that appellant was a victim of conspiracy of some influential persons and impugned action was the result of the said manoeuvring. He augmented his arguments by saying that at the first instance an enquiry was to be convened against her in the light of her reply to the show-cause notice, but later on when it was realised that the allegations levelled against her cannot be substantiated, she was proceeded against under Police Rules, 1934 instead of Police Rules, 1975. She was the widow of a Police Officer and was recruited after a thorough scrutiny of her antecedents per police record and it is surprising to note the fact that she was a bad character and was indulging in smuggling but this could not be ascertained by the Police Force on the one hand and on the other hand it is more surprising to point out that after joining the police force she became smuggler and a woman of bad character. According to her she had a clash with some police officers and other influential persons and they were instrumental in getting her dismissed from service. An act which is mala fide and biased can be set aside by the Tribunal. On the other hand Special Government Pleader argued that the Authority and the Appellate forum had no malice towards her. Besides this the jurisdiction of the Tribunal is barred under the envisions of Rule 12 of the N. W.F.P. Police Rules, 1975. We have given our anxious thought to the arguments and have perused the record with the assistance of both the sides. Appellant joined the police force as a lady constable on 1-8-1987 after complying with the requisite formalities regarding her physical fitness etc. So far as her character is concerned, a thorough probe was made per report of the local police. It is clearly admitted in the verification report that she is a woman of good character, permanent resident of village Gonda and had not been proceeded against criminally before. Hardly she had worked in the force for a few months, when a show-cause notice dated 24-11-1987 was served upon her which was received by her on 6-12-1987 and it was maintained that "she is reportedly a bad character lady and also indulging in smuggling, which amounts to a grave mis-conduct on her part and renders her liable for major punishment under the N.-W.F.P. Police Rules, 1975." So, she was asked to explain her position with the further warning that "why she should not be punished/discharged from service under the N.-W.F.P. Police Rules, 1975". She was further directed to put in her written defence within 7 days of the receipt of the notice and should also disclose whether' she wants to be heard in person o: not". The basis of the show-cause notice was a report against her by some A.S.I, which was to the effect that she was the 3rd wife of Ex-A.S.I., Nawab Jang and was recruited in the force without verification of her character. Now it came to fight that she is a woman of evil character and a black spot on the face of lady police force. She deals in prostitution. People of bad reputation visit her house. Her sister is imprisoned to jail due to her character. The appellant is a bad character and a smuggler and she may be dismissed/discharged from service. Report was recommended for a suitable action by the next higher officer. However, there is an endorsement on the said complaint, that "please examine the complainant and discharge her if found to be a bad character and smuggler". Ultimately show-cause notice mentioned above was issued against her and she submitted her reply on 7-12-1987, denying the allegations levelled against her and further requested the Authority for providing her the copies/other material which formed the basis of the said show-cause notice. On her reply it was remarked by the Authority that "explanation is not satisfactory. In the first place she was not eligible to force. Discharge under P.R. 12.21". It is dated 8-12-1987. The written order conveyed to her would show that it is to the following effect that the "alleged misconduct of lady constable Tasleem No. 3764 stands proved against her. She is, therefore, discharged under Police Rules 12.21 with immediate effect". Her appeal to the Authority was rejected on 21-3-1988 on the ground that "since she was discharged from service under Police Rule 12.21 and no appeal lies against the said rule". Appellant still feeling aggrieved moved the Tribunal through the present appeal on the grounds earlier mentioned in the opening paragraph. It is thus clear from the history narrated above that notwithstanding the allegations of misconduct/bad character and smuggling no body was examined in support of the said accusation. It was incumbent upon the Authority to have examined the complainant and other persons pointing at the shortcomings and lapses of the appellant. She is a lady and in our society if a lady is once labelled to be a woman of easy virtues, not only her own career is spoiled for ever but honour of her entire family also. The allegations strictly required proof. The mala fides of the Authority is quite apparent from the fact that in the beginning the appellant was asked to submit her reply and was informed that she will be proceeded against under N.-W.F.P. Police Rules, 1975. She was further told that she will be heard in person, if she so desires. But suddenly the Authority changed his mind for the reasons best known to him, and instead of proceeding against her under the N.-W.F.P. Police Rules, 1975 a via media was adopted in order to deprive her of any legal remedy by invoking the provisions of Police Rules; 1934. Rule 12.21 is reproduced below: "A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any, time within 3_years of enrolment. There shall be no appeal against an order of discharge under this rule:" A perusal of the above rule would show that there is no mention of the misconduct by a police constable to attract the penalty under the said rule. It relates to the efficiency and performance of an officer. It nowhere speculates the conduct of a police officer. This rule was in no way applicable in the face of the allegations, levelled against the appellant. No doubt police force has been dealt with through a special statute. However, when the mala fides is alleged/proved against the Authority and when the Authority exceeds his jurisdiction and when the action itself is patently illegal and void, the impediment/bar under rule 12 of Police Rules 1975 would not stand in the way of the Tribunal to grant relief to an aggrieved person. In the present case appellant was treated in a very unfair and improper manner. There was no proof of her bad character on the file and even then she was punished for that. If she was dealing in smuggling, there is proper forum to deal with such like persons. There is no complaint of such like indulgence of the appellant by said force. Besides, this rule 12.21 in no way is applicable qua the allegations, levelled against the appellant. In the circumstances we are constrained to accept the present appeal with costs and the file be consigned to the record room. A.A./96/Sr.N Appeal accepted.