2017 PLP (C (PLC(CS))

WAQAR AHMAD SETH, J.

Through this single judgment we propose to dispose of the instant Writ Petition No.3599-P of 2014 as well as connected Writ Petitions Nos.3600-P and 3601-P of 2014 as common question of law and fact is involved in all these petitions.

2. Tajammul Khan DSP, Banaras Khan DSP and Rahim Shah Khan DSP in all three petitions have joined the Police Department in the years 1991, 1980 and 1983 respectively and due to their excellent performance they were promoted to the rank of DSP. That one Mati Ullah son of Abdul Aziz was kidnapped from Hayatabad on 06/07/2014 and was subsequently recovered from within the jurisdiction of PS Hayatabad. A case to this effect has been registered vide F.I.R. No.747 dated 10/07/2014 under section 365 P.P.C. It has reliably been learnt and reported in the print media that they (petitioners) have close contacts with criminal groups involved in the said abduction. Respondent No.3 issued charge sheet to the petitioners that they were guilty of misconduct under section 3 of Khyber Pakhtunkhwa Government Servants Efficiency and Discipline Rules (E&D), 2011. The charge sheet was accompanied by statement of allegations and an inquiry consisting of three senior police officers under the supervision of respondent No.4 was constituted. The petitioners submitted their replies on 18/08/2014 wherein they denied the allegations against them. The Inquiry Committee submitted its report and thereafter respondent No.3 issued a final show cause notice to the petitioners on 02/10/2014 as to why a major penalty shall not be imposed upon them which was also replied by the petitioners. Ultimately respondent No.3 being competent authority vide his order dated 21/10/2014 issued orders of compulsory retirement of the petitioners. Being aggrieved of the aforesaid order, the petitioners filed Departmental Appeals to the Government of KPK through the Chief Secretary on 23/10/2014. It is averred in the petition that the only remedy available to the petitioners was to file an appeal before the Service Tribunal KPK but since the Tribunal is not functional at present and the matter is very urgent, hence they have approached this Court for setting aside the impugned order dated 21/10/2014 passed by the respondent No.3 and also direction to the respondents for their re-instatement with all back benefits.

3. We have heard learned counsel for the petitioners and have also gone through the available material placed on file.

4. Record is suggestive that petitioners in all the three writ petitions were proceeded under KPK, Government Servant (E&D) Rules, 2011, by issuing them a charge sheet coupled with statement of allegations and holding proper and regular inquiry, in which petitioners duly participated and after issuance of final show cause notice petitioners were served with a major penalty of compulsory retirement, vide order dated 21st October 2014 whereas these writ petitions have been filed on 28.11.2014.

5. Since, petitioners were proceeded under (E&D) Rules, 2011, therefore, rightly under section 17 they preferred their Departmental Appeals before the Appellate Authority i.e. Chief Secretary, Government of KPK Peshawar, on 24.10.2014, within thirty days from the date of penalty imposing order. Since petitioners were proceeded under (E&D), Rules, 2011, therefore, they cannot be treated out of said Rules and in the said Rules, Rule 17(2) is for the Appellate Authority who is supposed to call for the record of the case, and comments on the points raised in the appeal and by an order in writing is empowered to (a) uphold the order of penalty and reject the appeal; or (b) set aside the order and exonerate the accused; or (c) modified the order or reduce the penalty, within a period of 60 days and in case within 60 days the delinquent officers is not communicated the decision in appeal he has the right to file an appeal before KPK, Service Tribunal under Rule 19 (1). Since the Departmental Appeals under Rule 17 of the petitioners are pending before the appellate Authority and 90 days have not lapsed as yet, therefore, any proceedings before any forum are pre-mature.

6. In addition to the above observations and premature proceedings in writ petitions it is also held that there is no exceptional clause given in Rule 19 of KPK, Government Servant (E&D) Rules, 2011, nor any proviso has been attached to Article 212 (2) of Islamic Republic of Pakistan 1973. It means that petitioners are supposed to file appeals under Rule 19 of the KPK, Government Servants (E&D) Rules, 2011, after the expiry of requisite 60 days and then in case there is some emergency or urgency they may approach this forum on the point of non functioning of the Service Tribunal. There are no exceptional or extra ordinary circumstances to entertain the writ petitions of ex-officers of Police Department charged for an offence against the society, state and morals.

7. We have given our ample considerations to the recent judgment of the Apex Court reported in PLD 2014 SC Page 232 (2014 PLC CS 884) wherein the Lordships have held that in the absence of non appointment of Chairman or non functional status of the Tribunal, a writ petition under Article 199 is maintainable. With utmost respect it is held that the grievances agitated by the petitioners in the instant writ petitions fall within the domain of KPK, Service Tribunal, and for that matter petitioners are supposed to approach the said Tribunal by filing their service appeals, firstly and that too, after the expiry of 60/90 days i.e. period provided to the Departmental Appellate Authority, and there after they could approach to this Court by showing good cause coupled with emergency or urgency in the matter. In the case in hand petitioners are no more in service hence, there is no urgency as, if at all their grievances are redressed they would be reinstated, as per law and precedent, with back benefits etc. Like petitioners hundreds and thousands of service appeals are pending in the Service Tribunal due to indifferent attitude of the Provincial Government. Since in the cited judgment of the Apex Court there is no mention of grievance of the parties nor any indication as to whether any service appeal was filed by them and that too after the expiry of time mentioned under the law or not, this judgment is not applicable to the instant petitions.

8. The time provided under special law or statute could not be allowed to curtail in the writ jurisdiction under Article 199 of the constitution of Islamic Republic of Pakistan, 1973, therefore, all the three writ petitions are dismissed in limine along with interim relief as premature and non maintainable. ZC/6/P Petitions dismissed.