1988 PLP (C (PLC(CS))

MALIK MUHAMMAD PARVEZ KHAN (CHAIRMAN).‑‑Appellant Muhammad Arif was a probationer ASI when he received the impugned order dated 19‑12‑1985 passed by respondent No.2 vide which his services were terminated and appeal/mercy petition by the other two respondents were also dismissed. According to trim he joined the Police 'Department as ASI on 5‑4‑1984 at Mardan after qualifying the examination and later on was directed to undergo training at Police Training. School, Hangu where he reported for duty on 14‑4‑1984. The duration of the course was 6 months and it so happened that he fell ill on 27‑5‑1984 and was referred to Lady Reading Hospital, Peshawar for treatment by the Incharge Police Hospital, Hangu. He after recovery resumed his duties in July, 1984 but was disallowed by the authorities on the ground .that the appellant will not be able to make up the deficiency and was sent back to his parent district and started performing his duties there uptil 15‑4‑1985, when again he was deputed to undergo the training at Hangu and sit in the lower school examination. Meanwhile his services were terminated by respondent No.2 vide order dated 19‑12‑1985 and his appeal/mercy petition to respondents 1 and 3 also met the same fate. He approached the Chief Minister of the province in this connection but without any result. His work and achievement during the service earned for him a commendation certificate and cash reward of Rs.100. He filed a writ but later on withdrew it and instituted the present appeal, the impugned orders are wrong, illegal, void and without jurisdiction that application of Police Rules 12.8 is against law, that no show cause notice was served upon him. No ground for termination was offered. The respondents opposed the appeal by filing the written statement and after going through the record of the case we propose to dispose of the appeal as under: Learned counsel for the appellant argued that Police Rules 12.8 is not applicable in the present case because after the framing of the NWFP Police Rules, 1975 not the Deputy Inspector‑General of Police but the Superintendent of Police was the person to order the termination of the appellant. Further the written statement of the respondents would show that the appellant's services were terminated for misconduct /inefficiency and in such like situation an enquiry was needed. Appellant's services could not be terminated in this manner. He according to law was entitled to defend his rights, which opportunity was not given to him. On the other hand learned Prosecuting Inspector argued that the appellant was not found fit to carry on with the present job, He was sent twice to undergo the course, but deliberately did not complete the same and without .the permission he remained absent from duty on every occasion. A lenient view was taken at the first occasion but he did not mend himself so the respondent No.2 was constrained to take this step against him. He gave a lame excuse about his absence regarding the death of his mother, which fact was later on investigated and it proved to be un true. Appellant is an unwilling person and his stay in the organization would be harmful to it. No appeal lies against the order of discharge and the same is incompetent. We have given our patient hearing to the arguments and we are of the opinion that the appellant was discharged from service for the alleged misconduct as maintained in the written statement filed by the respondents. The allegation of misconduct can only be established through some evidence oral or documentary. In the present case there is nothing on the record to suggest that the appellant was involved in the activities rendering him liable for mis‑conduct. Mere absence from duty should not entail such drastic action. If he could not qualify the examination none else but he was to suffer for it. Besides this, the punishing authority in the case of the appellant was the S.P. and not the D.I.‑G. under the present rules. Violation of the rules would make the order illegal and without jurisdiction. This being so, the appeal succeeds and is accordingly accepted, leaving the parties to bear their own costs. The period o termination from service may be treated as a period spent on extra ordinary leave. M.Y.H./66/Sr.N Appeal allowed