1990 PLP 1358 (SCMR)

NASIM HASAN SHAH, J.‑‑‑The respondent Waris Khan, a Head Constable of the Police, while posted at Beacon‑House Check Post alongwith Constable Sarfaraz and Sanjab is alleged to have not been operating the check- post barrier in accordance with the rules. The allegation is that the said barrier was pulled up and the traffic allowed to pass unchecked through the check‑post. This irregularity was being committed as illegal gratification, was being received for showing this favour. This irregularity came to light when the Deputy Inspector‑General of Police, Peshawar Range, Peshawar and S.S.P., Peshawar paid a surprise visit to the check‑post at 1900 hours on the fateful day. The said officers found Constable Sarfaraz and Sanjab taking illegal gratification from a moving pick‑up but the bribe money was thrown on one side when the Constables saw the vehicle of the aforesaid officers. The allegation against the respondent, Waris Khan, was that being Incharge of the Check‑Post he had not performed his duty properly in permitting the barrier to be pulled up and allowing the Constables to receive the illegal gratification. He was, accordingly, issued a show cause notice but as his reply to the show‑cause notice was not found satisfactory he was ordered to be dismissed from service. His departmental appeal having failed he filed an appeal before the N.‑W.F.P. Service Tribunal. The learned Service Tribunal accepted the appeal and noted that the order of dismissal was passed without appointing any inquiry officer. According to the learned Tribunal as the allegation of receiving illegal gratification required definite proof the competent authority was not justified in proceeding to announce the order of the dismissal immediately on receipt of the reply to the show‑cause notice. The respondent's appeal was, accordingly, accepted and he was reinstated in service, with all the back benefits. In support of this petition for leave, the learned Advocate‑General, N.‑W.F.F. has submitted that the respondent, a police officer, was not a "civil servant" and no appeal could be filed by him against the order of the competent police authority to the N.‑W.F.P. Service Tribunal. He also submitted that Rule 12 of the N.‑W.F.P. Police Rules, 1975 lays down‑‑ "

12. No order passed under these rules shall be subject to review by any Court/Tribunal." Hence the N.‑W.F.P. Service Tribunal had, for this reason, also no jurisdiction to entertain the appeal. These submissions raise questions of general public importance and require authoritative determination. However, we agree with the Service Tribunal that when the allegations in the show‑cause notice were not being accepted by the accused‑officer and a controversy existed on the question as to whether the allegations contained in the show‑cause notice were or were not correct such controversy could only be determined by an inquiry, in which the accused‑officer is associated. Hence, we would not stay the operation of the order of the Service Tribunal. The result is that the respondent, Waris Khan, shall be reinstated into service. The authority may continue departmental proceeding against him from the stage when the respondent submitted his reply to the show‑cause notice, if so advised, but he must first be reinstated into service. In the result, leave to appeal is granted but the operation of the impugned order of the Service Tribunal is not stayed. The appeal shall be made ready on the present record with liberty to the parties to add further documents if any and put up for hearing at a very early date. H.B.T./S‑561/S Leave granted.