1981 PLP (C (PLC(CS))

DORAB PATEL, J.‑The petitioners in these four petitions for leave were posted as Assistant, Sub‑Inspectors in Police Station, `A' Division, Sahiwal in March, 1976. One Ghulam Hussain was a Sub‑Inspector of this Police Station and he had an altercation with the local Chairman of the Pakistan Party. Now, according .o learned counsel, this local Chairman of the Pakistan Peoples Party was a cousion of Dr. Muhammad Hasan, a Federal Minister, therefore, the Sub‑Inspector Ghulam Hussain was transferred and Sub‑Inspector Abdul Khaliq was directed to take charge of his duties. But when Sub‑Inspector Abdul Khaliq went over to take charge Sub -Inspector Ghulam Hussain refused to hand over charge and went on strike to defy the transfer order passed against him. And, it is alleged that he was joined in this strike by several other police men including the four petitioners. 'The Superintendent of Police, Sahiwal was of the view that this had led to a very grave lave and problem as these Police Officers had sworn on the Holy Qur'an to make this strike a success. Therefore, he passed a written order that `it was not possible to give the strikers a show‑cause notice and he took action against them under rule 10(b) of the Punjab Police (Efficiency and Discipline) Rules, 1975. and dismissed them by his order dated 13‑3‑1976. The petitioners and the other Police men, who were dismissed, challenged their order of dismissal in an appeal before the Deputy Inspector‑General of Police, Multan Range, on the ground that they had never gone on strike as stated inn their dismissal order. And, their case was that they had teen on duty through out the period of the strike instigated by Ghulam Hussain, Sub‑Inspector in Sahiwal, But the Deputy Inspector‑General of Police rejected this plea and dismissed their appeal on 1‑7‑1976. The petitioners challenged the Deputy Inspector‑General's order in a revision before the Inspector General of Police, which was dismissed on 9‑10‑1976. Therefore, they challenged the three order passed against them in appeals before the Service Tribunal (Punjab) and all the petitioners contended in their respective appeals that the Police Record itself would prove that the had "been working through out the period in question and had nothing to do with the so‑called strike

" We would also add here that the lengthy Memorandum of Appeal filed by the petitioner is nothing but an elaboration of this plea that they were on duty during the period of the strike. However, when their appeal was heard, they advanced the further plea that their order of dismissal was illegal, because the circumstances of the case did not justify recourse to rule 10(b) of the said rules under which Police Officers could be dismissed summarily without any show‑cause notice or enquiry. The Tribunal carefully examined this plea and rejected it with the observation that it was not possible to "believe that the senior hierarchy of police had made out a completely fabricated case of such a serious nature against their own subordinates. But the ground on which the petitioners had relied in their appeals was that the allegations against them were false, because they had been on duty at the time of the strike, and they had all filed affidavits in support of their plea before the Tribunal. The Tribunal did not examine this plea, but dismissed the appeals by its order dated 9‑10.1978 with the observation that all the petitioners had been "individually heard by the D. I.‑G. (and there is no contention to the contrary) before passing the appellate Order rejecting their appeal". Accordingly, as their appeal were dismissed, the petitioners have filed these petitions under Article 212(3) of the Constitution and as another Bench of this Court had ordered notice to the respondents on 29‑10‑1980, Mr. Dar was present on behalf of the respondents when the petitions came up for hearing before us on the 11th of November, 1980. Mr. Zainul Abidin's submission before us on the 11th of November, 1980, was that the Tribunal had dismissed the appeals of the petitioners without even examining their contention that the had been on duty at the time o strike. This submission appeared, prima facie, to be correct. Additionally, as we pointed out, the appeals of the petitioners was dismissed, because the Tribunal thought that it was not possible that the senior hierarchy of the police would fabricate a case against tine petitioners and because they had been given a personal hearing in their departmental appeals by Deputy Inspector‑General of Police (who belonged to what the Tribunal described as the senior hierarchy of the police). But the real question before the Tribunal was not whether the Deputy Inspector‑General of Police had given a personal hearing to the petitioners but whether he was justified in rejecting their defence, that they were on duty at the time of the strike. Now, as the Tribunal did not examine this defence this raised the further question whether a Tribunal can dismiss a service appeal merely because the appellant has been heard in a departmental appeal and has been unsuccessful in that appeal. Learned counsel was apprehensive that if the view thus taken by the Tribunal was upheld, it would amount to an abdication by Service Tribunals of their statutory obligations under the Service Tribunals Acts to decide appeals. This was obviously a question of public importance within the meaning of Article 212(3) of the Constitution, and, can the other hand, it was obvious that the interest of the petitioners and the respondent would be served best if the cases of the petitioners were remanded to the Tribunal with a direction to the Tribunal to rehear and decide them after examining the defence of the petitioners. Therefore, as Mr. Dar was present on behalf of the respondents, we adjourned the case' to the 12th of Novem ber, 1980 and told him to inform us whether the respondents would be agreeable to this suggestion, as it would curtail, the proverbial delays of the law. Mr. Dar appeared before us to day assisted by Mr. Ijaz Ali, and as he stated that he had been instructed to oppose the grant of leave, we heard the learned counsel at length and we would now turn to the submissions. Mr. Zainul Abidin's first submission was that the dismissal of the petitioners by the third respondent (the Superintendent of Police) was illegal, because it was not preceded by a show‑cause notice. This contention was vehemently opposed by Mr. Dar and as rightly submitted by him, the third respondent had recorded in writing his satisfaction that it was not reasonably practicable to give an opportunity to the petitioners to show‑cause, because of the disturbed conditions then prevailing. Additionally, although the appellants denied having taken any part whatsoever in this strike, they admit that the refusal of Sub‑Inspector Ghulam Hussain to hand over charge had created a difficult situation at the police station. In these circumstances, we agree with Mr. Dar that the third respondent was justified in taking action against the appellants under rule 10(b) of the said rules. Mr. Zainul Abidin's second submission was that the Tribunal had not given any opportunity to the petitioners to produce evidence in support of their plea that they were on duty at the time of the strike. The question whether they had sought permission to produce evidence is one of fact and as this objection has not been pleaded in the petitions for leave, we agree with Mr. Dar that Mr. Zainul Abidin cannot be permitted to raise this objection before us. However, Mr. Zainul Abidin's main submission was that the Tribunal's order was illegal, because the Tribunal had dismissed the appeals without attempting to examine the plea of the petitioners that they were on duty at the time of the strike. The second limb of the submission is correct and even Mr. Dar was not able to refer us to any observations in the Tribunal's order which could lead by the remotest inference to the conclusion that the Tribunal had rejected the plea of the petitioners after examining it. There fore, learned counsel submitted that the entire material was before the Tribunal and as the appeals had been dismissed, it should be assumed that the Tribunal had examined and rejected the affidavits of the petitioners. But, if as submitted by Mr. Dar, the Tribunal was not impressed by the petitioners' affidavits, it could have said so. The petition might have been different if the plea raised had been one of the many pleas raised by the petitioners. ‑But, as it was the only factural plea raised by them, we are constrained to express our very great regret that the Tribunal dismissed the appeals without examining this plea. And, as this amounted to an abdication of its duties by the Tribunal, we have read and re‑read its order to discover some observation which could indicate that the Tribunal had had rejected the plea of the petitioners that they were on duty at the time of the strike after applying its mind to this plea. But, unfortunately, we have not been able to find any such observation. We would, however, recall here that the Tribunal bad observed that it was not possible to believe that "the senior hierarchy of police bad made out a completely fabricated case" against the petitioners. Can these obser vations be stretched to mean that the Tribunal had examined and rejected the plea of the petitioners that they were on duty at the time of the strike? The answer must be in the negative for more reasons than one. In the first place, these observations had reference to the legal objection raised by the petitioners that the third respondent was not justified in dismissing them under rule 10(b) of the said rules. And, as this rule is attracted in an emergency, it is obvious that the third respondent's action could not be stretched to mean that the defence of the petitioners was false. At the highest it would mean that the third respondent bad rejected this plea, but for example decision could have been erroneous. That is why the Legislature has prescribed departmental appeals and an appeal before the Tribunal. Therefore, even if the Tribunal had no doubt about bona fide of the senior hierarchy of police, this did not relieve it of its obligation under the Punjab Service Tribunals Act, 1974 to decide the appeal of the petitioners after applying its mind to their contentions. The only other ground given by the Tribunal for dismissing the appeals of the petitioners was that they "were individually heard by the D. I. G. . . . . before passing the appeals, we feel the ends of justice have been substantially met in this case." With due respect to the Tribunal the question was not of its feeling whether the ends of justice had been substantially met. The question was of the intention of the Legislature and that intention was very clear. Although the Legislature was aware that the aggrieved Government servant had generally a right of a departmental appeal and a departmental revision, it had confessed on him the further benefit of a right of appeal before the Service Tribunal, and an appeal before an independent, Tribunal, is quite different from a mere departmental appeal. Therefore, nothing turned on the fact that the petitioners had been heard by the second respondent, nor was this sufficient by itself to meet the ends of justice, because the Legislature had imposed an obligation upon the Tribunal to hear and decide the appeals before it according to law and in the light of the evidence produced before it. But, instead of so doing, the Tribunal has followed the ipse dixit of the second respondent and dismissed the appeals with a couple of vague generalization. Such an order cannot stand and we would clarify that it is for the Tribunal to decide whether the second respondent's order is correct or not, but this must be by its own adjudication and in the circumstances of the‑case after examining and weighing the plea of the petitioners that they were on duty at the relevant time. Accordingly, after hearing the leaned counsel, we converted the petitions inter appeals and allowed them. The Tribunal's order of 9‑8‑1978 is set aside and the case is remanded to the Tribunal so that it may hear and decide according to law the appeals of the petitioners. Appeal accepted.