1999 PLP (C (PLC(CS))

Qazi M. Anwar, Advocate Supreme Court and Muhammad Zahoor Qureshi, Advocate‑on‑Record (absent) for Respondents. Date of hearing: 3rd June, 1998. CH. MUHAMMAD ARIF, J.‑‑‑Challenge in these appeals has been made, by all the appellants, to judgment of the N.‑W.F.P. Service Tribunal, Peshawar dated 7‑12‑1996 whereby their separate Service Appeals were disposed of, in Appeal No. 734 of 1995 made by Muhammad Siddique Ex‑Constable, and major penalty of removal from service was reduced to minor penalty of withholding two annual increments without accumulative effect.

2. Leave Grant Order dated 30‑5‑1997 contains the narration of the attending facts‑of the case and paras. 2 to 4 thereto read thus: "

2. Facts of the case briefly stated are that on 17‑5‑1995 Frontier Reserve Police Platoon No. 20 of Karak under the command of S. I. Nazir Badshah was deployed in connection with the emergency duty of Nifaz‑e‑Shariat movement at Ashari Gat which was strategic point falling within the jurisdiction of Police Station, Timergara District Dir. In the evening when the Platoon was asked by their seniors to unload the truck from their beds and other luggage at Ashari Gat they unanimously refused to unload the truck which amount to disobeying the lawful order of the Platoon Commander. They also refused to do so when D.S.P. accompanied by S.H.O., Timergara after getting information arrived at the spot. Then S.P. Dir was informed and at his instructions the Platoon was close to line at Timergara and their place was occupied by Platoon No.

14. The D.S.P. Headquarter was asked to conduct an enquiry who recorded the statements whereupon report was submitted that the respondents have clearly disobeyed the order or their seniors in the hour of grave emergency and recommended them to be sent to their homes under the Police Rules in the interest of discipline of force law and order situation. Ultimately D. Commandant, F.R.P. dismissed the respondents. The respondents preferred departmental appeals to the Commandant, F.R.P. who after examining the record rejected the same on 31‑1‑1996. Before such rejection order was passed the respondents approached the Service Tribunal in appeal against the impugned order dated 8‑8‑1995 passed by petitioner No. 1; whereby they were dismissed from service. Prayer was made in the appeals for their reinstatement with back benefits.

3. The learned Service Tribunal vide the impugned judgment came to the conclusion that the punishment awarded to the respondents was harsh and it required to be reduced, therefore, without discussing detailed defects, if any, in the enquiry proceedings, which were of procedural nature, the punishment of removal from service which is a major penalty was converted into minor penalty of withholding of two annual increments without accumulative effect.

4. We have heard the learned counsel for the petitioners and perused the record. He emphasised that the respondents are members of disciplined force and they have been proceeded against in a proper manner following the procedure provided under the Police Rules and that they having admitted the disobedience referred to above the learned Service Tribunal was not legally correct to interfere with the order in question in absence of any legal infirmity going to the root of the case and prejudicial to the respondents. It was further contended that the proceedings were conducted under Rule 8 of the N.‑W.F.P. Police Rules, 1975 and it was wrongly assumed by the Service Tribunal to be under Rules 5 and 6 of the Rules though Rules 5 and 6 were not applicable to the present proceedings. It was further contended that in case any irregularity, affecting the defence of the respondents was there, the proper course for the Service Tribunal was to have remanded the case for fresh enquiry in accordance with such Rules. The contention raised requires consideration. Leave to appeal is, accordingly, granted in all the abovementioned petitions."

3. It appears that the learned Tribunal disposed of the appeals of the respondents observing that punishment awarded to them was harsh and the same required to be reduced. A further observation of the Tribunal was that for adopting this course, it need not discuss in detail the defects in the inquiry proceedings as they were procedural in nature " .... and the whole fact has been admitted by the appellant and his other colleagues themselves".

4. Mr. Khalid Khan, learned counsel appearing on behalf of‑ the appellants, has not confined his criticism to the alleged admission of the occurrence in question but further reiterated his plea noticed in the last paragraph of the Leave Grant Order to the effect that the proceedings had been conducted under Rule 8 of the N.‑W.F.P. Police Rules, 1975 and it was incorrectly assumed by the Tribunal to have been conducted under Rules 5 and

6. He has concluded his arguments by pressing into service his last plea noticed in the Leave Grant Order to the effect that in case of any irregularity having been found by the learned Tribunal in the conduct of the proceedings against his clients, the proper course for the Tribunal was to remand the case for fresh inquiry in accordance with such Rules. Mr. Qazi M. Anwar, Senior Advocate Supreme Court representing all the respondents has supported the impugned judgment on the question of the grant of relief to the extent of reduction of the major penalty of removal from service to the minor penalty of withholding of two annual increments without accumulative effect. As regards the plea raised by the learned counsel for the appellants that in this case the proceedings were conducted under Rule 8 of the Rules of 1975, he has supported Mr. Khalid Khan, Advocate Supreme Court. On the plea that Service Tribunal should have remanded the case for fresh inquiry in accordance with the N.‑W.F.P. Police Rules, Mr. Qazi M. Anwar submitted that he supports such plea with a view to affording an opportunity to the respondents to unfold their case before the competent Authority in appropriate proceedings under the Rules of 1975.

5. We have considered the arguments advanced on behalf of the patties and have also been taken through the material available on the record. The assertion on behalf of the appellants that the respondents have admitted the happening dated 17‑7‑1995, is not borne out from the record. None of the respondents has even so much as alleged to have said that he was not willing to perform his duty on the spot. All of them had, in fact, attended to their duty on 17‑7‑1995 during day time and were ready to continue with such performance throughout the night. Their request for permission to unload the truck at a place where they could spread their beds was taken as an affront to the authority of their superiors, then. Be that as it may, the argument advanced by the learned counsel for the appellant‑authorities that the case should have been remanded, by the learned Tribunal, to them 'for fresh inquiry in accordance with rules of 1975, was duly noticed in the Leave Grant Order and reiterated during the arguments. As already mentioned above, Mr. Qazi M. Anwar, was not averse to the idea of remand of the case to the appellant‑authorities. We are also inclined to the view that such course will go a long way in putting an end to the situation which came about on the evening of 17‑7‑1995. 6.Accordingly, these appeals are disposed of and the impugned judgment dated 7‑12‑1996 is modified by directing the appellant‑authorities to hold a regular inquiry into the case of the respondents in these appeals under the N.‑W.F.P. Police Rules, 1975. Until the conclusion of the proceedings before the concerned Authorities, the respondents shall remain in service. There shall be no order as to costs. A.A.ID‑10/S Order accordingly.