1981 PLP (C (PLC(CS))

It is the case of the petitioner that the Inspector‑General orally ordered the Superintendent Police (Legal) that the name of the petitioner be brought on the list 'F'. The S. P. (Legal) has denied the same in his comments. The petitioner further stated that after he left the room of the Inspector‑General, the same Superintendent of Police who had charged him entered and got the decision changed behind his back.

3. On 8th January, 1980, the petitioner received a fresh charge‑sheet containing the same allegations of which he had been exonerated. He submitted his reply again but no further proceedings are stated to have been taken on it. It was at that time that the petitioner, allegedly, came to know that the Inspector‑General of Police had, in exercise of his suo motu revisional jurisdiction, under the Punjab Police (Efficiency and Discipline) Rules, 1975, vacated the order of the Deputy Inspector‑General of Police, on 26th November, 1979, to issue a fresh charge‑sheet and proceedings referred to above.

4. It is contended by the learned counsel that as the appeal of the petitioner had been accepted by the Deputy Inspector‑General of Police, the Inspector‑General of Police could not pass any order against him without issuing a notice and hearing him. It is further stated that the hearing given by the Inspector‑General on 5th November, 1979, was only on the representation made by the petitioner and not in pursuance to any suo motu proceedings.

5. Before reverting to the merits of the case, the learned Assistant Advocate‑General raised a preliminary objection. He referred to Article 212 of the Constitution read with the Service Tribunal Act to say that as the writ petition pertained to terms and conditions of the petitioner, the exclusive jurisdiction lay with the Service Tribunal and, therefore, the jurisdiction of this Court was barred. He relied on Yasmin Qureshi's case (P L D 1980 S C 22), in support of this plea and referred to Mujeebullah Aijaz v. D. G. T. & T. Department (P L D 1978 Quetta 58), to say that the rule laid down therein does not cover the case of petitioner. Another case of Raja Muhammad Sadiq v. WAPDA (P L D 1978 Lah. 738), was also cited. He also relied on Afzal Hussain Syed v. Govern ment of Punjab (P L D 1980 Lah. 697), wherein I took the view that the ouster under Article 212, of the Constitution is absolute if the necessary jurisdictional facts are obtainable. Further, as the ouster under Article 212, also depends on certain facts, this Court would be entitled to go through the same to satisfy that the same do exist.

6. It is to be noted that the Inspector‑General of Police set aside the order of the D. L‑G. He acted under rule 12, which reads as under :‑ "12.‑(1) The Inspector‑General, Additional 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 re‑instatement, 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 showing cause, either personally or in writing, why his punishment should not be enhanced."

7. Rules 12(i) shows that the Inspector‑General can call for the records of awards made by his subordinates and confirm, enhance, modify or annul the same or make further investigation or direct such to be made before passing further orders. Rule 9 deals with the punishment proceedings and notes three different kinds of procedures. Rule 6(2) dealing with the Police Summary Proceedings lays down in clause (ii) that if the explanation of the accused is unsatisfactory he may be awarded minor punishment. Rule 6(3) (4) deals with General Police Proceedings. Rule 6(5) provides that in case charge is proved, the authority may award one or more of the punishments. The same is the case with regard to the Special Police Proceedings given in rule

9. It is stipulated in rule 9(b) that the authority may award any of the punishments specified in section 7 of the Police Act, 1861.

8. The above resume makes it quite clear that the award is only o punishment and not of acquittal. Rather, the proceedings fall through if the authority finds that no case of awarding of punishment is made out. The power of the Inspector‑General to call for the records of awards thus means only record of such a case where punishment bas been given and not the one where no case had been made out against an accused Police Officer. This conclusion is further supported by the contents of rule 12(ii) and 12(iii).

9. It will be seen that no constitutional guarantees or terms and conditions have been given to the civil Servants. Article 240 of the Con stitution provides that in the case of services of a Province and the posts in connection with the affairs of a Province, the appointments to and terms and conditions shall be determined under Act of Provincial Assembly. Section 4 of the Punjab Civil Servants Act, 1974, lays down that all such appointments shall be made in the prescribed manner by the Governor or by a person authorised by him. Thus the question whether an officer is or is not the appointing authority would depend on the specific power under this section. Similar is the case with the power to terminate or retire from service under sections 10 and

12. Section 15 provides for disciplinary action in accordance with the prescribed procedure. Thus if rule 12 does not provide for the records of acquittal or exoneration by the Inspector‑General, his order will be void and inoperative, if he does so.

10. Again, even if it be accepted for the sake of argument that the Inspector‑General could call for the records of a case of exoneration, undoubtedly no specific notice as required by rule 12(ii) was issued by the I. G. to say that he had decided to look into the legality, correctness or propriety of the order passed by the Deputy Inspector‑General. No such notice or communication has been produced. The interview of the petitioner with the Inspector‑General on 5th November, 1979, took place in pursuance to the representation of the petitioner so as to get his name restored on list `F'. It is, therefore, quite clear that the revisional order had been. passed without affording an opportunity of hearing to the petitioner. As the impugned order is violative of even the principles set out in rule Mill' of the Punjab Police (Efficiency and Discipline Rules, as well as the rules of natural justice, it is void. Reference be made to Atta Muhammad Qureshi v. S. C. (P L D 1971 S C 61). The contention that the record had been called for in this situation will be of no relevance.

11. It is to be noted and I feel no hesitation in agreeing with the learned Assistant Advocate‑General that if a valid notice had been given by the Inspector‑General to the petitioner and he had also considered that summoning of the record was not necessary, there would have been no illegality of a nature calling for interference, unless the petitioner was able to show any prejudice caused to his case. Be that as it may, the record has in fact been called in this case as there is a document dated 2nd December, 1979, on record produced, showing that it was being sent back to the Deputy Inspector‑General.

12. After it is found that neither could the Inspector‑General call for the record of a case, in which a police officer had been exonerated, nor could he reverse the finding without a notice and opportunity of hearing, the proposition arising for determination is whether this Court can exercise its constitutional jurisdiction in such a case? It was held in Muhammad Tufail v. Abdul Ghafoor etc. (P L D 1958 S C (Pak.) 201), that a bar for lack of jurisdiction does not apply to a case where the order was void. The reason is that the order shall not be deemed to have been passed under that law. The rule laid down by the Full Bench of Baluchistan High Court in Mujeebullah Aijaz would also apply as the impugned order is without jurisdiction and void.

13. Again, it will be seen that the impugned order of the Inspector General was an order of remand. An appeal under section 4 of the Punjab Services Tribunals Act, 1974, lies against a final order whether original or appellate made by a departmental authority only. According to the judgment of that Full Bench of Baluchistan High Court referred to above, an appeal does not lie against an order which is not final. As the impugned order was an order of remand it was not a final order as the proceedings had rather been reopened. Reference be also made to the case of Ramzan v. Rehabilitation Commissioner (P L D 1963 Lah. 461), wherein a Division Bench of this Court held as under :‑ "We are of the opinion that even if it is assumed that the complaint is well founded (without deciding that it is so), since the error, if any, has not arisen in a final order but in an order of remand, it is not appropriate that we should interfere with that order in a writ jurisdiction." The same view was taken by another Division Bench in Mst. Kaniz Fatima v. Member (Revenue) (P L D 1973 Lah. 495). In view of the above, the bar contained under Article 212 of the Constitution does not operate in this case. The impugned order is, therefore, declared to be without lawful authority and of no legal effect. There will be order as to costs. Appeal accepted.