1993 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN):

Appellant Riaz Ahmed was a Pakistan Railway Police Constable. He was dismissed from service vide order dated 14‑6‑1988 made by the Deputy Superintendent (A), Pakistan Railways Police, Karachi under the Punjab Police Rules, 1934 as adopted under the Pakistan Railway Police Rules, 1980. He preferred departmental appeal which was dismissed by the Superintendent, Pakistan Railway Police, Karachi vide order dated 11‑8‑1988. He then preferred second appeal to the Deputy inspector‑General of Pakistan Railway Police, Lahore that appeal too was dismissed vide order dated 24‑12‑1988. Thereafter, he submitted mercy petition to the Inspector‑General of Pakistan Railway Police, Lahore. His mercy petition was dismissed on 20‑2‑1989. He then preferred this appeal on 20‑3‑1989.

2. The appellant was awarded punishment of dismissal from service on the charge that he and one Raiz Ahmad, Railway Police Constable, were involved in committing sodomy on a boy by name Waheed in a first class Sleeper Compartment at Karachi City Railway Station during the night between 15th and 16th September, 1987. A criminal case was registered against both the culprits. Departmental proceedings also were initiated against them on 29‑9‑1987. Regular inquiry was conducted. Both the appellant and Raiz Ahmad were held guilty of the charge of misconduct. Both were accordingly awarded punishment of dismissal from service.

3. The grounds urged in the memo of appeal and reiterated at the hearing of the appeal by the learned counsel for the appellant are that since a criminal case was registered against the appellant, the departmental proceedings should not have been initiated until the decision of the criminal case and reliance has been placed on the provisions of Rule 16.2 of the Punjab Police Rules, 1934; and that even otherwise the departmental proceedings were not taken in accordance with the provisions laid down in Rule 15.24 of the Police Rules. It has also been contended that the impugned order of dismissal was passed by the Deputy Superintendent of Pakistan Railways Police who was not competent to have awarded that punishment.

4. The respondents have opposed the appeal. They have taken preliminary objection that the appeal is time‑barred. They have taken the stand that the departmental proceedings against the appellant were taken in accordance with Rule 16.1(ii) of the Punjab Police Rules. According to them, the Deputy Superintendent of' Pakistan Railways Police was competent to have awarded on the appellant the punishment of dismissal from service.

5. The appellant was awarded the punishment of dismissal from service after taking against him departmental proceedings. It is provided under Rule 18 of the Pakistan Railways Police Rules, 1980 that all officers, members and ministerial staff in the Railway Police shall be governed in respect of departmental punishments by the Punjab Police Rules, 1934. In the Punjab Police Rules 1934 the provision for punishment is contained in Chapter XVI Rule 16,1 lays down the punishments and mentions the authorities competent to award punishments. Procedure for holding departmental inquiries is laid down in Rule 16.24. Provision for right of appeal is made in Rule 16.29. There is also a provision for revision and mercy petition in Rule 1632. It appears from the documents on record that the provisions of Rule 16.24 were adopted in substance in conducting the departmental proceedings against the appellant and there does not seem any lacuna which could have rendered the proceedings illegal. As regards the objection to the departmental proceedings in case a criminal case was registered against the appellant, reliance has been placed on the provision of Rule 16.3 which provides that when a Police Officer has been tried and acquitted by a Criminal Court, he shall not be punish d departmentally on the same charge or on different charge based upon the evidence cited in the criminal case, whether actually led or not, unless the criminal charge has failed on technical grounds; or in the opinion of the Court or of the Superintendent of Police the prosecution witnesses have been won over; or the Court has held in its judgment that an offence was actually committed and that suspicion rests upon the Police Officer or the evidence cited in the criminal case discloses facts unconnected with the charge before the Court which justify departmental proceedings on a different charge, or additional evidence admissible under rule 16.25 (1) in departmental proceedings is available. This provision bars departmental proceedings in case a Police Officer has been tried and acquitted but it does not bar taking of the departmental proceedings in case a criminal case has only been registered. In the instant case, the departmental proceedings against the appellant were taken after the registration of the criminal case but they were completed before the completion of the trial and the subsequent decision of the criminal case by the Criminal Court did not invalidate the departmental proceedings which were already completed and given effect to. As regards the competency of the Deputy Superintendent of Police to have awarded the punishment of dismissal on the appellant, the Chart of the departmental proceedings in Rule 16.1 of the Punjab Police Rules, 1934 shows in column 6 that the punishment of dismissal on a constable could be awarded by the Deputy Superintendent incharge of the Railways Police Division. It was stated at the hearing of the appeal by Mr. Akbar Ali, Prosecutor of the Railways Police, Karachi that the Deputy Superintendent of Police, who awarded the punishment of dismissal on the appellant, was incharge of the Division. Thus, the punishment was awarded on the appellant by the competent authority. It thus appears that the proceedings taken against the appellant having culminated in awarding on him punishment of dismissal from service did not suffer from any lacuna.

6. Next is the question of limitation raised by the respondents. It would appear from the events mentioned above that the impugned order of dismissal of the appellant from service was made on 14‑6‑1988. His departmental appeal to the Superintendent of Railways Police was dismissed on 11‑8‑1988 then preferred second appeal to the Deputy Inspector‑General of Pakistan Railways Police, Lahore which was dismissed on 24‑12‑1988 and yet he made mercy petition to the Inspector‑General of Pakistan Railway Police and it was dismissed on 20‑2‑1989. It has been discussed above that the departmental proceedings against the Railways Police personnel are regulated under the provisions of the Punjab Police Rules, 1934. Rule 16.29 provides that there shall be only one appeal from the original order and the order of the appellate authority shall be final. Therefore, the appellant's remedy of departmental appeal stood closed by the dismissal of the departmental appeal by the Superintendent of Railways Police, Karachi by order dated 11‑8‑1988. Of course, there is provision in Rule 16.32 that an officer whose appeal has been rejected may apply within a month of the despatch of the appellate order to him to the authority next above the prescribed authority for revision on ground of material irregularities in the proceedings or on production of fresh evidence, and may submit to the same authority a plea for mercy. His appeal to the Deputy Inspector‑General may be taken to be an application for revision under the provisions of Rule 16.32 but that appeal was rejected vide order dated 24‑12‑1988. Even mercy petition could be made to the same authority viz. the Deputy Inspector‑General along-with the revision application. There is no provision that a mercy petition could be made to the Inspector‑General in such a case. No doubt, there is a provision for mercy petition to the Inspector General but only in case where the Departmental appeal has been decided by the Inspector‑General and not otherwise. The time occupied in making and I pursuing mercy petition is not condonable. This appeal filed on 20‑3‑1989 is, therefore, time‑barred.

7. For the reasons recorded above, the appeal has no merit and it is also time‑barred and it is dismissed on both counts, with no order as to costs. A.A./673/Sr.F Appeal dismissed.