1984 PLP (C (PLC(CS))

Muhammad Iqbal, ex‑Constable has made this appeal under section 4 of the Punjab Service Tribunal Act, 1974, wherein he has impleaded the Superintendent of Police, City, Lahore and the Deputy Inspector‑General of Police, Lahore Range, Lahore as respondents.

2. By virtue of this appeal, the appellant has prayed that the order dated 31st July, 1982 of the respondent No. 1 be declared illegal and with out lawful authority. The appellant be re‑instated with full back benefits

3. Brief facts of the case are that on the complaint of Saeed ‑Ali son of Shahid Ali case F. I. R. No. 151, dated 14th May, 1982 under section 382 P. P. C., P. S. Railway Station. Lahore was registered against Constable Muhammad Iqbal (the appellant), Constable Bashir Ahmad, Constable Nasir Ahmad arid Sami‑ud‑Din, an employee of Railway Carriage Shop. The allegations against them were that they extorted Rs. 500 as illegal gratification from Saeed Ali on 14th May, 1982 at Platform No. 4, Railway Station. Lahore. The appellant alongwith other accused named above threatened the complainant to take him to Police Station for action against him on the charge that he had crossed the border unlawfully and had Indian currency. The accused including the appellant were arrested by S. I. Muhammad Ikhlas Khan, Railway Police Station, Lahore. The appellant, Muhammad Iqbal, was issued a show‑cause notice under the provisions of Punjab Police (E & D) Rules, 1975. No regular enquiry was held in his case. In a reply to the show‑cause notice the appellant denied the charges being false. Therefore, a reference was made to the Superintendent, Pakistan Railway Police, Lahore Division, Lahore. It was informed by him that the challan, against the appellant involved in case mentioned above had since been submitted in the Court of S. R. M./Lahore on 19th May, 1982, which was under trial. The appel lant was beard in person by Superintendent of Police, City Division, Lahore on 31st July, 1982 and reply was found unsatisfactory. As the appellant was challaned in a criminal case, he was found guilty of misconduct and was dismissed from service w. e. f. 31st July, 1982. His period of suspen sion from 14th May, 1982 to 31st July, 1982 was treated as such. The appellant filed an appeal to the D. I.‑G., Lahore Range, Lahore which is still pending. Hence this appeal.

4. I have heard the parties. It has been argued by the learned counsel for the appellant that the appellant was dismissed from service by respondent No. 1 on the basis of a show‑cause notice and that too including charge of illegal gratification. No regular enquiry was held to find out the truth in this case. The appellant was dismissed on the basis that he was challaned in a criminal case which had been submitted in the Court of S. R. M./Lahore on 19th May, 1982 and was under trial. Thus, he was guilty of the charge against him. It was pointed out by the learned counsel for the appellant that this very base on which the appellant was dismissed from service has fallen to the ground by the judgment dated 29th May, 1983 of Special Railway Magistrate, Lahore, wherein the appellant was acquitted. It was submitted by the learned counsel for the appellant that keeping in view the acquittal of the appellant through judgment mentioned above, the impugned order cannot be sustained. Relying upon the judgment of this Tribunal, in case of Anis‑ur‑Rehman v. D. l.‑G. Police Lahore etc. Appeal No. 729/763 of 1980, announced on 6th July, 1981, the learned counsel for the appellant has submitted that in similar and identical case involving the similar points of law, the impugned orders were not sustained. It was prayed by the learned counsel for the appellant, as this case is on all fours with the case of Anis‑ur‑Rehman v. D. L‑G. Police etc. mentioned above, the impugned order in the appellant's case be also quashed and set aside.

5. Controverting the above arguments the learned District Attorney has submitted that the show‑cause notice makes it clear that the appellant was arrested in a criminal case on the ground that he had extorted Rs. 500 as illegal gratification alongwith others. As the charge was quite clear, hence, there was no need of holding a regular enquiry. Furthermore, as the charge was proved against the appellant, hence, he has been punished correctly and lawfully.

6. It was, also, submitted by the learned District Attorney that the appeal is time‑barred. The appellant had preferred an appeal on 25th August, 1982, against the impugned order to the D.

1. G. Police, Lahore Range, Lahore and the appellant should have filed the appeal to this Tribunal within 120 days of the date of submission of his appeal to D. L‑G. Police, Lahore. The appellant has filed this appeal to the Tribunal on 1st January, 1983, thus, the appeal is barred by time by seven days and is liable to be dismissed on this score as well.

7. Rebutting the above legal objection of the learned District Attorney regarding time limit, the learned counsel for the appellant has submitted that the appellant has submitted an application under section 3 of the Limitation Act for condonation of this delay of few days on the solid and valid grounds that this has all happened due to a bona fide advice given by Ch. Karamat Ali, Advocate whose affidavit has also been attached alongwith this application. It was pointed out by him that as soon as the appellant came to consult him i. e. on 28th December, 1982, he advised him that the time limit for filing of the appeal to the Tribunal was almost over and there was some innocent mistake, in calculating this time limit by Ch. Karamat Ali, Advocate. On this the appellant engaged him as his counsel for this case and he prepared the appeal immediately and sub mitted to the Tribunal. The learned counsel for the appellant prayed that these are the valid grounds which have been given in the application sub mitted under section 5 of the Limitation Act for condonation of the delay and the delay of only seven days be condoned.

8. I have given my anxious thought to the arguments of the parties and have also perused the record in this case very carefully.

9. I will deal first with the legal objection of the learned District Attorney regarding appeal being time‑barred. I have gone through the application submitted by the appellant under section 5 of the Limitation Act through his counsel, Ch. Muhammad Mahmood, Advocate, and the affidavit of Ch. Karamat Ali, Advocate. It is clear that the delay in this case was not intentional and this delay of about seven days has occurred due to the bona fide advice of Ch. Karamat Ali, Advocate. Thus, this all has happened on the advice of a senior counsel. We already, in our judgment of Labour Officers, Case No. 345/ 1170 of 1981dated 22nd September, 1982, Khair Muhammad Budh and 13 others, have decided the similar issue and bad condoned the delay on the bona fide advice of a senior counsel. We have also upheld the same views in case of Muhammad Aslam Khan, Appeal No. 389/1908 of 1979. Thus there is justification for condonation of the delay of few days as objected to by the learned District Attorney, and the delay is condoned accordingly.

10. Perusal of this case shows that this is an identical case involving the similar facts and points of law as decided earlier by this Tribunal in case of Anis‑ur‑Rehman v. D. L‑G., Police, Lahore and others Appeal No. 729/763 of 1980, announced on 8th July, 1981, the operative portion of the judgment is reproduced below :‑ "In view of the facts that the basis on which the appellant was dis missed from service has fallen to the ground by the detailed and well‑reasoned judgment of the Court of competent jurisdiction, which still holds the field, and in the absence of a regular enquiry which was a must in this case, the impugned order cannot be sus tained. The result is that we accept the appeal and set aside the impugned order as being of no legal effect and direct that the appel lant be reinstated in service from the date of his suspension in the office he was holding at the relevant time, as if he had not been removed from the service at all, with all the back benefits." This case is on all fours with the above judgment of this Tribunal. No regular enquiry was held in the present case and the basis on which the appellant was dismissed has fallen on grounds, as he was acquitted by g the Court of competent jurisdiction i.e. Special Railway Magistrate, Lahore vide his judgment, dated 29th May, 1983. In view of this the impugned order cannot be sustained.

11. The result is that I accept the appeal and set aside the impugned order as being of no legal effect and direct that the appellant be re‑instated in service from the date of his suspension, as if he had not been suspended/`dismissed from service at all, with all back benefits. There will be no order as to costs. A. E Appeal accepted.