1988 PLP (C (PLC(CS))

Any Disciplinary Rules previously applicable to Police Officers to whom these rules apply are hereby repealed but the repeal thereof shall not affect any action taken or anything already done or suffered thereunder." We are, therefore, of the considered opinion that not only rules 16.24‑ to 16.27 but subsequent Rules in the series were also scrapped by Rule 15 of the Rules, 1975.

11. This brings us to the second limb of the argument that in any case 'Revision' is competent under section 21(2) of the Punjab Civil Servants Act, 1974. The relevant subsection reads as under: ‑ "Where no provision for appeal or review exists in the rules in respect of any order, a civil servant aggrieved by any such order may, except where such order is made by the governor, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order." It is clear from the text of the subsection (2) of Section 21 that it is a residuary power and available only when no provision for appeal or review is available in the rules in respect of an order. Therefore, the prerequisite for invoking the powers under subsection (2) of Section 21 of the Punjab Civil Servants Act, 1975 is whether power of appeal or review is available under the relevant set of rules or not?

12. The appeals have been dealt with by Rule 14 of the Punjab Police Efficiency and Discipline Rules, which reads as under: ‑ "14.????????????????? Appeal (a) An appeal shall lie only against the order of dismissal, removal from service, compulsory retirement, reduction in rank or time‑scale forfeiture of approved service and imposition of fine; (b)??????? There shall be one appeal from the original order, and the order of the appellate authority shall be final; (c)??????? The appeal shall lie to an officer one step higher in rank as shown in the schedule, than the one who passed the original order provided that in case of orders passed by the Inspector ?General of Police, only a review petition would be admissible." While the penalties which can be imposed under Rules of 1975 are detailed in Rule 4 of the Punjab Police Rules. Now if Rules 4 and 14 are read together then it becomes clear that no appeal is competent against the following minor punishments: (i) Censure; (ii) Withholding of promotion upto one year; (iii) Confinement to quarters for term not exceeding 15 days with or without punishment; and (iv) Drill, extra guard or other duties. Extra drill not exceeding 15 days fatigue or other duties. While in respect of other penalties namely dismissal, removal from service, compulsory retirement, reduction in rank or time scale, forfeiture of approved service and imposition of fine, a provision for appeal has been made. Now question arises whether representation can be maintained by Police personnel against imposition of penalty imposed under Police Rules? We have to read section 21(2) of the Civil Servants Act together with Rules 4 and 14 of the Police Efficiency and., Discipline Rules to answer his question. The result is that if the accused Police officials have a remedy under Rule 14 then they cannot invoke the provisions of section 21 of the Civil Servants Act e.g. in cases of dismissal, reduction in rank, the cases as detailed in the earlier part of this paragraph and precisely where the appeal under Rule 14 is competent. While other cases where appeal is not competent under Rule 14 of the Police Rules e.g. Censure etc., as detailed in the earlier part of this pare, the aggrieved Police Personnel can maintain a representation under section 21(2) of the Civil Servants Act. The conclusion is that where appeal under Rule 14 against the order of imposition of penalty is competent in those cases there is no scope for representation. We may make it clear that even Rule 12 will not be available in respect of minor penalties for which no appeal has been provided for under the Rule. The accused civil servant has to make a representation, under section 21(2) of the Punjab Civil Servants Act. The result is that we hold that Police Rules 16.28 and 16.32 framed under Punjab Police Act stands repealed by virtue of Rule 15 of Rules 1975. Therefore, there is no scope for any revision under Rule 16.28 of the Police Rules.

14. This brings us to the last argument that Respondent No.l did not attend to the petition of the appellant and cyclostyled order was conveyed by his staff and in any case Respondent No.l had no justification to decide the petition after the dismissal of the Departmental appeal of the appellant by Respondent No.2. The jurisdiction thereafter only vested in Respondent No.3. Before proceeding any further we would refer to the subject and relevant portion of the petition, which reads as under: ‑ "To The Inspector‑General of Police, Punjab, Lahore. Subject: PEPRESENTATION AGAINST THE ORDER OF DIG FAISALABAD RANGE, FAISALABAD." ??????????? while the impugned memo reads as under:? "Copy of Memo. No.13419/E, dated 13‑9‑1987 from the Inspector‑General of Police, Punjab, Lahore, to the Deputy Inspector‑General of Police, Faisalabad Range, Faisalabad. Subject:??????????? SECOND APPEAL Under (E & D) Rules, 1975, second appeal is not entertained. Therefore, cases of the officials as per list enclosed are returned herewith alongwith the Service Documents. The officials may please be informed accordingly. " It is clear from impugned memo that order was not passed by, Respondent No.l but in fact it was an intimation received by him from I. ‑G. P. through D .I . ‑G . , Faisalabad for passing it on to the appellant. Therefore, there is no merit in the argument that the Respondent No.l has usurped the powers of Respondent No. 3 and wrongly and illegally blocked the petition of the appellant. This will not help the Respondents because the main attack to the impugned memo is that it has been passed without looking into the grievance of the appellant. This remains unrebutted.

15. It is clear from the subject as well as body of the said memo., that the Respondent No.3 did not apply his independent and judicious mind to the grievance of the appellant placed before him. The appellant had never filed a second appeal. It is, therefore, clear that the cyclostyled order was issued by the staff of the Respondent No.3 without bothering about the complaint of the appellant. The learned D.A. when confronted with this had nothing to add except that since revision is also not competent, therefore, it makes no difference whether the term second appeal or revision is used in the memo. The argument is too superficial and without merit for the simple reason that it is evident from the impugned memo that Respondent No.3 did not apply his mind at all to the grievance of the appellant. This fact alone is sufficient to render his order illegal. The fact that even revision is not competent becomes irrelevant.

16. Before parting with the judgment we would like to point out that the present system of addressing appeals and petitions against the orders passed under E & D Rules through proper channel needs to be stopped at once. It is needless to add here that under rule 18 of the Punjab Civil Servants E&D Rules, the appeals, representations have to be filed through proper channel while there is no corresponding provision in the Police Efficiency and Discipline Rules, 1975. We would suggest that even the provision in the Civil Servants Rules in this behalf needs amendment, inter alia, for the following reasons: (a)??????? The provision is against principle of natural justice and prejudices the defence of the a accused officials because normally speaking it is very difficult for them to incorporate the true facts especially as to mala fide and victimisation in face of their immediate boss. Because no big boss would like to see spade being called spade; (b)??????? Secondly, lot of time is wasted in forwarding the appeals and petitions to the concerned authorities and then their decisions back to the appellants‑petitioners in the same channel but in the reverse order. This back and fro exercise is merely wastage of time and funds; (c)??????? Thirdly, since the true facts are not pleaded initially and at subsequent stage the accused civil servant is not allowed to raise the points as the same are considered afterthought. The result is that this Tribunal is deprived of proper material; (d) Fourthly, the channel results in wrong assumption of powers because the appeals or petitions are illegally withheld by the lower authorities, who have no jurisdiction. Our viewpoint is fully supported by the fact that in many of these appeals the revision petitions were withheld by D.I.‑G. and appellants were informed that second appeal is not competent before the I.‑G. This way D.I.‑G. illegally usurped the powers of I.‑G.

17. There is yet another amendment required in. the same context in the rule. We have noted that there is no provision in the Punjab Civil Servants (E&D) Rules, 1975 and Police E&I7 Rules parallel to that of Rule 7 of the Civil Servants (Appeal) Rules, 1977. The provision reads as under: ‑ "7(1)??? An appeal may be withheld by an authority not lower than the authority from whose order it is preferred it: ‑ (a) . . . . . . . . (b) . . . . . . . . (c) . . . . . . . . (d)??????? it is addressed to authority to which no appeal ,lies under these rules: Provided that in every case in which an appeal is withheld, the appellant shall be informed of the fact and the reasons for it; Provided further that an appeal withheld on account only of failure to comply with the provisions of sub‑rule (2) or (3) of rule (5) or clause (d) may be resubmitted within one month of the date on which the appellant is informed of the withholding of the appeal, and if resubmitted in a form which complies with those provisions or is addressed to the proper appellate authority, as the case may be, shall not be withheld."

18. It is desirable that Rule 18‑A may be added after Rule 18 of the E & D Rules making a provision to the effect that if Departmental appeal /representation or. petition is addressed to a wrong authority then the same shall be returned within 30 days to the appellant/ petitioner for presentation of appeal/petition before the proper authority within seven days. This amendment if made will prove conducive to the needs of justice.

19. The result is that we accept this appeal and remand the matter to the Respondent No.3 to decide it afresh in accordance with law. There is no order as to costs. S. Q. /196/Sr.P??????????? Appeal accepted.