PLJ 2022 Peshawar 30 (DB)
Constitution of Pakistan, 1973--
----Arts. 199 & 212(1)(2)--Service Tribunals Act, 1974, Ss. 4(1)(b) & 5--Grant of earned leave--Absence from service after expiry of leave--Conviction and sentence in a murder case--Acquittal from charges--Initiation of departmental proceedings--Issuance of show-cause notice--Removal from service--Jurisdiction--Petitioner had been acquitted on 13.11.20 I 7, after lapse of more than 6 years from first order and more than two years and six months from last order and no satisfactory explanation has been offered by petitioner for such delay--Status of petitioners being employees of Police Department do fall within definition of civil servant which excludes jurisdiction of High Court to adjudicate upon matters relating to terms and conditions of a civil servant and Tribunal established under provision of Service Tribunal Act, is proper forum for adjudication of such matters--High Court, has no jurisdiction to entertain any proceedings in respect of terms and conditions of service of a civil servant which can be adjudicated upon by Tribunal under Act--Unless jurisdiction of Tribunal is ousted under Section 4(1)(b) of Act, assumption of jurisdiction by High Court in respect of matters of terms and conditions of a civil servant is unconstitutional and impermissible--Petition dismissed.
[Pp. 35 & 38] A, D, E & F
Maxim--
----"Vigilantibus non domintius eaquitas subvenit"--Maxim "Vigilantibus non dormientius aequitas subvenit," which means equity aids vigilant and not ones, who sleep over his rights.
[P. 35] B
Sleeping over his rights--
----A right which is no longer available as it is barred by latches.
[P. 35] C
PLD 2003 SC 132 ref.
Mr. Ahmad Ali, Advocate for Petitioner.
Nemo (Motion case) for Respondents.
Date of hearing: 13.10.2021.
PLJ 2022 Peshawar 30 (DB)
[D.I. Khan Bench]
Present: Abdul Shakoor and Muhammad Naeem Anwar, JJ.
Malik SHAH JAHAN--Petitioner
versus
GOVERNMENT OF KHYBER PAKHTUNKHWA through Provincial Police Officer/IGP, Peshawar and others--Respondents
W.P. No. 10-D of 2021, decided on 13.10.2021.
Judgment
Muhammad Naeem Anwar, J.--Through this single judgment we will decide instant petition and "W.P No. 11- D of 2021" titled "Malik Muhammad Kamran vs. Government of KPK through Provincial Police Officer and 4 others" as identical question of law and fact involved in both these petitions. The petitioner Malik Shah Jahan has sought the following relief and prayed that:
a. To declare the impugned orders bearing OB No. 644/FRP dated 01.7.2014 and order Bearing No. 7058-59/EC dated 07.6.2018 (Imposing Major Penalty on petitioner from dismissal of service) as illegal, without lawful authority, mala fide, unfair, unjust and against the principle of natural justice and be set-aside the same.
b. To declare the decision/order of Commandant Frontier Reserve Police, Khyber Pakhtunkhwa, Peshawar regarding dismissal of petitioner from service in exercise of powers conferred him under NWFP Police Rules, 1975 by taking exparte action as illegal, improper and without affording any opportunity of representing petitioner's point of view at any stage before dismissal of service, which too, is of violative of the procedure enumerated in the said Rules and Efficiency and Discipline Rules of Khyber Pakhtunkhwa.
c. To issue directions to the respondents or to the quarter concerned to reinstate the petitioner on his respective post (Constable No.7774) and set aside the impugned orders dated 01.7.2014 and 07.6.2018
d. That the Impugned orders dated 01.7.2014 and 07.6.2018 (Imposing Major Penalty on petitioner from dismissal of service) be suspended during the pendency of the instant writ petition, and the respondents be restrained from further taking any action prejudice to the petitioner.
e. To grant any other relief which this Honorable Court deems appropriate in the given circumstances of the case.
2. Facts lying in the background of the instant petition are that the petitioner was appointed as Constable in the Frontier Reserve Police Department in the year 2007, served the Department for almost 05 years. On 29.05.2007 he proceeded on earned leave for sixty days (60) but did not join his duty. On 04.10.2013, the Superintendent Police Investigation communicated SP FRP D.I. Khan that the petitioner has been booked in case FIR No. 712 dated 30.09.2013 under Sections 324/353/186/148/149, PPC and 13 AO in Police Station Cantt: District D.I. Khan, thus, he was suspended and proceeded against departmental inquiry which culminated into his removal from service from the date of his absence, on 01.07.2014. In parallel criminal proceedings he was charge sheeted after commencement of criminal trial, remained in custody and after full dressed trial he was acquitted of the charges levelled against him vide Judgment of the learned Additional Sessions Judge-II, D.I. Khan on 13.03.2015. Record further transpires that in case FIR No. 499 dated 28.06.2014 under Section 302 PPC at Police Station Cantt: D.I. Khan he was also nominated as an accused, wherein after completion of trial he was convicted under Section 302(b), PPC and sentenced to death with the payment of compensation under Section 544-A, Cr. P.C to be paid of the legal heirs of deceased, vide Judgment of learned Additional Sessions Judge-I D.I. Khan on 31.01.2017, against which he filed Criminal Appeal No. 11-D of 2017 before this Court which was allowed on 13.11.2017 and he was acquitted of the charges. The judgment of this Court was assailed before Hon'ble Supreme Court through Criminal Appeal No. 277 however, on 21.01.2019 the appeal was dismissed. Through instant writ petition filed on 06.01.2021, the petitioner has challenged the orders dated 01.07.2014, & 07.06.2018 of his removal from service. Facts of the connected W.P No. 11-D are that Malik Muhammad Kamran, the petitioner was police constable posted at Police Station Lines District Bannu remained absent from duty since 19.01.2012, for which a departmental inquiry was initiated against him, charge sheet was served upon him, his reply to the charge sheet and show-cause notice was received and placed on record. It was averred that he along with others was booked in case FIR No. 309 dated 17.06.2012 at Police Station Saddar D.I, Khan under Section 302/34, PPC, after submission of challan and recording of evidence all of them were convicted under Section 302(b), PPC vide Judgment dated 13.10.2015 however, their Cr.A. No. 73-D of 2015 was allowed and they were acquitted of the charges on 04.04.2018. In departmental proceedings after completion, he was dismissed from service vide impugned order dated 07.08.2012. his prayer in the petition is as under:
a. To declare the impugned order bearing OB No. 1444 dated 13.8.2012 and order dated 07.8.2012 passed by respondents/authorities (Imposing Major Penalty on petitioner from dismissal of service) as illegal, without lawful authority, mala fide, unfair, unjust and against the principle of natural justice and be set-aside the same.
b. To declare the decision/order of District Police Officer, D.I. Khan regarding dismissal of petitioner from service in exercise of powers conferred him under Khyber Pakhtunkhwa Police Rules, 1975 by taking ex-parte action as illegal, improper and without affording any opportunity of representing petitioner's point of view at any stage before dismissal of service, which too, is of violative of the procedure enumerated in the said Rules and Efficiency and Discipline Rules of Khyber Pakhtunkhwa.
c. To issue directions to the respondents or to the quarter concerned to reinstate the petitioner on his respective post (Constable No. 1906) and set aside the impugned orders bearing OB No. 1444 dated 13.8.2012 and order dated 07.8.2012.
d. That the Impugned Orders bearing OB No. 1444 dated 13.8.2012 and order dated 07.8.2012 passed by respondents/authorities (Imposing Major Penalty on petitioner from dismissal of service) be suspended during the pendency of the instant writ petition, and the respondents be restrained from further taking any action prejudice to the petitioner.
3. Learned counsel for petitioners contended that when the petitioners have earned acquittal form the Court of competent jurisdiction which has been made basis for initiating departmental proceedings against them and that too were conducted in absentia, violative to the principle of audi alteram partem thus, the impugned orders are against the law, whimsical, arbitrary, fanciful and coram non judice. He added that petitioners had served the department for long time but without providing them an opportunity as provided in law they were victimized by the impugned orders which on one hand against Rule 6 of Khyber Pakhtunkhwa Police Rules, 1975 but also against the canons of natural justice. It was also submitted that neither any inquiry was conducted not the provisions of Section 10 of Public Servant (inquiries) Act, 1850 were complied with.
4. Arguments heard and record perused.
5. It is undisputed that on 29.05.2013 the petitioner of instant petition was allowed earned leave for 60 days and it also not denied that he did not report back for duty on completion of 60 days leave i.e., on 30.07.2013. Record reflects that there were two crime reports against the petitioner i.e., FIR No. 712 dated 30.09.2013 under Sections 324/353/1861148/149, PPC and 13 AO & FIR No. 499 dated 28.06.2014 under Section 302, PPC at Police Station Cantt: D.I. Khan. In the former he was acquitted vide Judgment of the learned Additional Sessions Judge-II, D.I. Khan on 13.03.2015 whereas in the later he was convicted under Section 302(b) PPC and sentenced to death with the payment of compensation under Section 544-A, Cr. P.C to be paid of the legal heirs of deceased, vide Judgment of learned Additional Sessions Judge-I D.I. Khan on 31.01.2017. It is an admitted fact that the petitioner was acquitted of the charges when his Criminal Appeal No. 11-D of 2017 was allowed by this Court on 13.11.2017. As per record he was required to report back for duty on 30.07.2013 which remained inexplicable, perplexed and disconcerted that till his nomination in the first ever criminal case which was lodged on 30.09.2013 why did he not report to his office for duty. Accordingly, it appears from record that the petitioner of the W.P. No. 11-D was nominated in the FIR No. 309 dated 17.06.2012 whereas he remained absent from duty since 19.01.2012 thus, for the reasons best known to him he absented himself from duty since 19.01.2012 and has never explained his absence through plausible justification.
6. Moreover, order dated 01.10.2014 reveals that the petitioner of the instant petition was suspended on 04.10.2013, charge sheet and statement of allegations were sent to him through Superintendent Central Prison D.I. Khan which returned with the report that the under-trial prisoner has refused to receive the charge sheet, the report was received with office memo. No. 11170/WO/H-B dated 11.10.2013. thereafter the charge sheet was delivered upon the petitioner through SHO of concerned police station vide office Letter No. 1602/FRP on 25.11.2013 but with no response. Final show-cause notice was served upon the petitioner on 04.04.2014 but the petitioner failed to reply within the period of 15 days.
8. Next, the argument of the learned counsel for the petitioners that the petitioners have been acquitted from criminal cases and departmental inquiries were not conducted is not tenable in the eye of law when they were served with the charge sheets i.e., if first case through SHO of PS cantt: D.I. Khan and in former case by inquiry officer but neither they filed written reply to the statement of allegations nor the reply of last show-cause was filed by them. The petitioners cannot say that no regular inquiry was conducted into the matter when statement of allegations and show-cause notices were served upon them and even then, there is no categoric denial in the contents of theses petitions except generalized contents. The petitioners did not raise any objection during inquiry proceedings.
The petitioner of instant petition was suspended from service on
04-10-2013 and was removed from the service on 01-07-2014 after completion of inquiry and even after his acquittal in the year 2017 he raised no objection. Acquittal order of the petitioners from criminal cases do not, per-se, absolve the departmental liability of civil servants as both departmental and criminal proceedings are entirely different and not inter-linked; one is related to criminal liability and the other is related to discipline of service. This controversy was resolved by the apex Court of Pakistan in case titled "Khaliq Dad v. Inspector General of Police and 2 others" (2004 SCMR 192" wherein it was held that:
Disciplinary proceedings and criminal proceedings--Difference--Acquittal from criminal case--Effect-Both such proceedings are not interred dependent and can be initiated simultaneously and brought to logical end separately with different conclusions--Criminal proceedings do not constitute a bar for initiation of disciplinary proceedings relevant to Efficiency and Disciplinary Rules--Acquittal in criminal case would have no bearing on disciplinary action."
Reliance may also be placed on "Government of N.W.F.-P. through Secretary Finance, Excise and Taxation Department Peshawar and 2 others" (2003 SCMR 318). Another objection of the petitioners was that they were not dealt with in consonance with the Section 10 of The Public Servants (Inquiries) Act, 1850 (Act No. XXXVII of 1850), suffice is to say that this Act has already been repealed by the Repealing Act, 1870 (Act No. XIV of 1870). Therefore, this contention is misconceived. Likewise, the provisions of Section 10 of The Khyber Pakhtunkhwa Police Rules, 1975 deals with the Procedure of Departmental Inquiry however this rule in not applicable in certain matters as provided in Section 8 of the ibid Act which reads as under:
8. Rules 5 and 6 not to apply in certain cases.--Nothing in Rules 5 and 6 shall apply in a case-
(a) where the accused is dismissed or removed from service or reduced in rank, on the ground of conduct which has led to a sentence of imprisonment; or
(b) where the authority competent to dismiss or remove a person from service, or to reduce a person in rank, is satisfied that for reasons to be recorded in writing by that authority, it is not reasonably practicable to give the accused an opportunity of showing cause.
In view of Rules 8 this submission of the learned counsel for petitioners is also misconstrued.
9. Admittedly and undeniably, the petitioners were civil servants and the impugned Notifications relate to the terms and conditions of the civil servants, regarding which, this Court cannot exercise its jurisdiction under Article 199 of the Constitution, in accordance with the bar provided in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, which reads as:
"212. Administrative Courts and Tribunals.--(1) Notwithstanding anything hereinabove contained, the appropriate Legislature may by Act [provide for the establishment of] one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of
(a) matters relating to the terms and conditions of persons [who are or have been] in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy and tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal other than an appeal pending before the Supreme Court, shall abate on such establishment:
Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal"
10. Likewise, the principle laid down by the apex Court regarding the terms and conditions of civil servants as enunciated in the cases of Miss Rukhsana ljaz vs. Secretary, Education, Punjab and others (1997 SCMR 167); Ayyaz Anjum vs. Government of Punjab, Housing and Physical Planning Department through Secretary and others (1997 SCMR 169); Rafique Ahmad Chaudhry vs. Ahmad Nawaz Malik and others (1997 SCMR 170); Secretary Education NWFP, Peshawar and 2 others vs. Mustamir Khan and another (2005 SCMR 17) and Peer Muhammad vs. Government of Baluchistan through Chief Secretary and others (2007 SCMR 54), thus, matters relating to the terms and condition of service can be urged before the departmental authority at first instance and then before the learned Service Tribunal so this Court, while exercising its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, can't step-in.
13. For the above reasons, both these petitions are dismissed, however, the petitioners are at liberty to approach the proper forum for their redressal, if they are so advised.
(Y.A.) Petition dismissed
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