1988 PLP (C (PLC(CS))

MALIK MUHAMMAD PARVEZ KHAN (CHAIRMAN).--Appellant Zahir Shah was dismissed from service vide impugned order dated 8-10-1986 by respondent No.

1. He filed an appeal before the D.I.G. Police, Malakand Range, Saidu Sharif, Swat which was rejected by him vide order dated 16-12-1986 and his further appeal/ representation to the I.G. Police, NWFP, Peshawar was rejected on 2-3-1987 received by the appellant on 7-3-1987. According to him he was serving as Head Constable in Swat Police and was posted at P.S Ghaligi in Saidu Sub-Division. He took two accused to the Court on 20-7-1986 and produced one of them before the Court, while the other accused was kept by F.C. Mohammad Zahid and when he came out the accused Habib-ur-Rehman was missing and was informed by constable Mohammad Zahid that he left the accused un-attended and went to urinate himself and on his coming back he found him missing. He reported the matter of P.S Ghaligi against FIR No. 170/86. Later on accused Habib-ur-Rehman was arrested and he verified the statement of Mohammad Zahid Constable. Respondent No. 1, however, issued a show-cause notice to him which was replied but later on an enquiry was conducted and the Enquiry Officer recommended major punishment for the appellant which was announced by respondent No. 1 on 8-10-1986. Appellant filed an appeal and respondent No. 2 remanded the case to the Enquiry Officer per order dated 4-11-1986 to record the statement of the accused Habib-ur-Rehman. The Enquiry Officer then obtained the copy of the statement of accused Habib-ur-Rehman recorded under section 161, Cr.P.C. and submitted his report by exonerating the appellant from the charge. The said respondent i.e. 'respondent No. 1 who awarded the punishment was by that time acting as officiating D.I.G. and in this capacity rejected the appeal per orders dated 16-12-1986. His representation to respondent No. 3 also met failure, so the present appeal on the ground that the procedure adopted by the Enquiry Officer and the remaining respondents was illegal, ultra vires of the rules, without jurisdiction and untenable. The same officer awarded punishment of dismissal from service to him and then decided the appeal filed by the appellant against his own orders. Respondents submitted the written statements denying the allegations and alleging that respondent No. 1 and respondent No.2 are two different posts and the decision was made by the officer in different capacities. . Learned counsel for the appellant argued that the appellant was exonerated of the charges of misconduct/ negligence by the Enquiry Officer, but respondents did not take into consideration this fact. Besides this respondent No. 2 was the same person who awarded the major punishment to the appellant and who decided the appeal filed by him. This under the law he cannot do. On the other hand Prosecuting Inspector argued that the action taken by the respondents was legal and in accordance with the provisions of Police Rules; 1975. We have given our patient hearing to the arguments, advanced by both the sides and have come to the conclusion that respondent No. 1 being the authority awarded the major punishment to the appellant and no law empowers him to decide the appeal filed by the appellant even if he would have been working as the regular D.I.G. of the Malakand Range. It was obligatory upon him to wait for the arrival of the regular incumbent of the post or to send the papers tot respondent No. 3 for marking it for disposal to another D.I.G. He cannot decider the fate of the appellant as an authority as well as an appellate forum. This being; the position we accept the appeal, filed by the appellant and re-instate him ins service from the date of his dismissal from service alongwith all back benefits; Costs to be borne by the respondents and file be consigned to the record room. S.Q./86/Sr. N Appeal accepted.