IN THE HIGH COURT OF SINDH (CIRCUIT COURT)
AT HYDERABAD
C.P. No. D- 1292 of 2011
Mohammad Urs ----------------- Petitioner
VERSUS
Government of Sindh
& Others ------------------ Respondents
Date of hearing: 07.05.2014
Date of judgment: 20.05.2014
Petitioner: In Person.
Respondents: Through Mr. Allah Bachayo Soomro, Additional Advocate General Sindh
J U D G M E N T
MUHAMMAD JUNAID GHAFFAR, J. - Through instant petition, the petitioner has sought relief against the respondents including the Police Department for payment of his salaries for the period commencing from 01.01.2001 to 15.04.2005 with pension and other benefits.
2. Precisely, the relevant facts are that the petitioner is a retired police officer and had worked for 36 years in the Police Department. On 15.01.2001, the petitioner was issued a show cause notice by the Deputy Inspector General of Police, Mirpurkhas (DIGP Mirpurkhas) alleging therein that despite his posting at Mirpurkhas, the petitioner remained absent without any intimation / permission of the competent authority w.e.f. 08.01.2001 and hence amounted to misconduct. The said proceedings were initiated under Rule 6(3)(b)(i) of the Sindh Police (Efficiency, Discipline) Rules, 1988 without any formal enquiry in the matter. The petitioner replied to the said show-cause notice vide his representation dated 03.02.2001 where-after the learned DIGP Mirpurkhas passed an order bearing No.4406-10 dated 23.05.2001 wherein the relevant portion is as under:-
“I have gone through the reply submitted by defaulter Inspector and found that he has used insulting and scandalous language against senior officers. He has also broken chain of command by sending a copy of reply to Show Cause Notice to I.G.P. Sindh Karachi. His reply to the Show Cause Notice was considered and found not satisfactory. He has completed 32 years of Service. His retention in disciplined force with doing nothing than to take care of his own buffaloes only is a liability on us. As such he is awarded major punishment of compulsory retirement from Service with immediate effect. His absence period from 8.1.2011 to 14.1.2001 and period of absence during suspension from 15.1.2001 onwards treated as leave without pay.
Defaulter Inspector Muhammad Uris is at liberty to go in appeal to I.G.P. Sindh, Karachi within 30 days from the receipt of this order if he so desire.”
3. The said order was challenged by the petitioner before the Inspector General Police Sindh (I.G.P. Sindh) who after affording opportunity of hearing and calling comments from the department passed order dated 06.05.2011 which is reproduced as under:-
“ OFFICE OF THE
PPO/SECRETARY TO GOVERNMENT OF SINDH POLICE
DEPARTMENT
No.5407-10/E-11/D.P
Karachi, dated 6-05-2011
Read
1. Final order bearing No.4406-10 dated 23.5.2001, passed by DIGP Mirpurkhas awarding thereby major punishment of Compulsory retirement from service to Inspector Muhammad Uris Mahar of District Mirpurkhas.
2. Appeal filed by above named Ex. Inspector against aforesaid punishment.
3. Heard in person on 30.4.2011.
O R D E R
Consequent upon acceptance of his appeal, the major punishment of Compulsory retirement from service awarded to him by DIGP Mirpurkhas vide order No. quoted above is hereby set aside.
His absence period is treated as leave with pay on medical ground.
He will stand retired from service on superannuation age of 60 years with effect from 15-04-2005.
Sd/-
( FAYYAZ AHMED LEGHARI) PSP
PPO / Secretary to Government of Sindh
Police Department Karachi.”
However, the said order was not implemented by the department and certain objections were raised where-after the petitioner after pursuing the matter with the department has filed the instant petition.
4. Petitioner present in person contended that the DIGP Mirpurkhas vide his order dated 23.5.2001 while awarding a major punishment of compulsory retirement from service had counted the period from 8.1.2001 to 14.1.2001 and the period of absence during suspension from 15.1.2001 onwards, as leave without pay. The petitioner contended that on appeal the learned I.G.P. Sindh while accepting the appeal had set-aside the impugned order and major punishment of compulsory retirement from service and had ordered to treat the absence period as leave with pay on medical grounds and had further ordered that the petitioner shall stand retired from service on attaining the age of superannuation w.e.f. 15.4.2005. The petitioner further contended that despite passing of specific order in favor of the petitioner, whereby the department was required to pay salary of the entire intervening period, the department did not adhered to and has failed to comply the said order and since then the matter is lingering on whereas the petitioner has been forced to run from pillar to post for seeking implementation of the said order passed by I.G.P. Sindh.
5. Learned A.A.G. has filed comments in which it has been contended that after passing of the order dated 6.5.2011 the department had sought some clarification regarding off duty period of the petitioner from 23.5.2001 to 15.4.2005 and the reference was moved to the PPO Sindh Karachi vide letter No. Estt./10003-05/2011 dated 17.5.2011 addressed by the District Police Officer, Mirpurkhas. The said letter was responded by the office of IGP Sindh through order dated 30.11.2011 in which it was observed that the period from 23.5.2001 to 15.04.2005 is hereby treated as leave without pay. Subsequently another order dated 07.01.2012 was passed whereby the observations recorded in letter dated 30.11.2011 was modified and the said absence was converted into leave of kind due. According to learned A.A.G, since there was no leave credited in the account of petitioner, hence the order passed in favor of the petitioner was turned into leave without pay and subsequently leave on kind due and hence the petitioner is not entitled for any financial benefits, therefore, the instant petition is liable to be dismissed.
6. We have heard the petitioner and the learned A.A.G. and have perused the record. By consent the matter was taken up at katcha peshi stage for final disposal.
7. The petitioner through the instant petition is seeking implementation of the order dated 6.5.2011 whereby the appeal of the petitioner was allowed by setting aside the major punishment of compulsory retirement and the entire period of absence was treated as leave with pay on medical grounds, whereas on the other, hand the case of the department is that subsequent to passing of the said order dated 06.05.2011 on the representation of the department, the same stands modified. It is an admitted position that the order passed by IGP Sindh dated 06.05.2011, whereby the major punishment of compulsory retirement from service was set-aside, the same was not challenged any further by any of the parties, therefore, had attained finality. The controversy started when the petitioner approached the department for the implementation of the said order passed in appeal in which the learned IGP Sindh had given treatment to the entire period of absence as leave with pay on medical grounds. It was further held in the said order that the petitioner shall stand retire from service on superannuation age of 60 years w.e.f. 15.04.2005. It further appears that initially the show-cause notice issued to the petitioner was in respect of his absence for the period from 08.01.2001 and when the order dated 23.5.2001 was passed by the DIGP, Mirpukhas, the absence period was shown from 08.01.2001 to 14.01.2001 and further absence period after suspension was shown from 15.1.2001 onwards. However through the said order, the petitioner’s absence w.e.f. 08.01.2001 to 14.01.2001 and thereafter from 15.01.2001 onwards was cumulatively treated as leave without pay.
8. The Appellate authority i.e. IGP Sindh in his order dated 06.05.2011 after setting aside the major punishment of compulsory retirement, had given treatment to the pre and post suspension period as leave with pay on medical grounds and through the same order, the compulsory retirement from service was set-aside, consequently, the petitioner stood restored to his service until attaining the age of superannuation on 15.4.2005 for all practical and legal purposes including the benefits of service and payments thereof. In fact when the Appellate order dated 06.05.2011 was passed, the petitioner stood retired from service long ago as he had attained the age of superannuation by such time, therefore the Appellate Authority after examining the case of the petitioner and taking a lenient view, after setting aside the entire order passed by the DIGP Mirpurkhas, treated the absence of the petitioner including that of pre suspension and post suspension as leave with pay on medical grounds. However, the department did not implement the order, raising objection that since no medical leave with pay was available to the petitioner, as the petitioner had availed all such benefits of leave. In our view, such contention of the department is not correct and is misconceived. The order passed by the Appellate Authority was never challenged by the department and rather under the garb of some clarification, sought one after the other; the implementation of the said order was delayed for so long. The DIGP/Estt, Sindh subsequently on 30.11.2011 passed an order by treating the intervening period from 23.05.2001 to 15.04.2005 as “leave without pay”. Thereafter another officer acting as Additional IGP Sindh, vide order dated 07.01.2012 modified the order dated 30.11.2011 once again by treating the intervening period from 23.5.2001 to 15.4.2005 as “leave of kind due”. It must be appreciated that both these orders dated 30.11.2011 and 07.01.2012 were passed by two different officers and none of them was an officer who had actually passed the earlier appellate order dated 06.05.2011. Further, both these orders dated 30.11.2011 and 07.01.2012 were passed without hearing the petitioner or affording any opportunity of making any representation in response to such contention of the department. Without prejudice to the fact that whether or not the order passed by the Appellate Authority dated 06.05.2011 could be reviewed, even otherwise, if both the aforesaid orders are treated as orders on review filed by the department, even then they cannot be sustained on the ground that they have been passed against the interest of the petitioner who had been successful in appeal, without affording any opportunity of hearing to the petitioner. We have gone through these two orders and are deeply concerned to note that such orders are being passed by such high ranking officials in the department, which are directly affecting a person and are changing the entire complexion of the earlier order passed in favor of the petitioner, without affording them any opportunity of hearing.
9. We have also gone through copy of letter dated 05.06.2013 placed on record through statement dated 11.06.2013 by the learned AAG, which has been addressed by SSP Mirpurkhas to the IGP Sindh wherein the entire history and facts of the petitioner’s case have been narrated. In the said letter at page 2 it is observed that the learned SSP has requested the IGP Sindh that the comments filed by DIGP Mirpurkhas in response to the appeal filed by the petitioner were required to be reconsidered to evaluate the petitioner’s claim in order to meet the ends of justice. We are surprised to note that all this is being done after the Appellate authority has passed a judicial order in appeal which by all means is final in nature. Though the said order is subject to revision in terms of Rule 16.32 of the Police Rules 1934, but such revision is firstly only available to the officer (Petitioner) and not the department itself; secondly it can only be preferred to the authority next above the prescribed appellate authority. In the instant matter the appellate authority was the highest authority in the department, as such no revision could have been preferred in the matter, even by the petitioner himself. Whether the order passed by the Appellate Authority was correct or not, can only be decided by challenging the same further in accordance with law and not by seeking clarification and or reconsideration of the comments already filed by the department. The department has also observed in their representation that perhaps the order dated 06.05.2011 did not specifically decided the intervening period from 23.5.2001 to 15.4.2005 and for this a reference / representation was sent to the IGP Sindh. Again we are of the view that this contention of the department is entirely misconceived and based on presumption. When the Appellate authority had passed the order dated 06.05.2011 the appellate authority was and must be conscious enough that the appeal which is being decided is much after the intervening period as well as the period after which the petitioner stood retired, therefore, it cannot be presumed that the appellate authority had only passed the order regarding absence period as leave with pay on medical grounds in respect of the period only prior to 23.05.2001. The appellate authority in clear terms had passed the said order and after setting aside the order for compulsory retirement, had treated the absence period (without any qualification) as leave on medical grounds. In view of such position we are of the view that after passing of the appellate order dated 06.05.2011 the office of the IGP Sindh, had become functuous officio, as such no clarification and or modification of the said order was permissible under the law. Since the Appellate Authority had conclusively observed that the petitioner shall stand retired from service at the age of 60 years w.e.f. 15.04.2005, therefore the inference drawn by the department that there was no categorical decision regarding the intervening period from 23.05.2001 to 15.04.2005 is not correct and the subsequent orders passed on 30.11.2011 and 07.01.2012 cannot be sustained and are accordingly set-aside.
10. In view of hereinabove, the instant petition is allowed and the respondents are directed to implement the order dated 06.05.2011 passed by the then IGP Sindh by implementing it in letter and spirit and treating the entire period of absence of the petitioner i.e. from 08.01.2001 to 14.01.2001 and from 15.01.2001 till retirement i.e. 15.4.2005, as leave with pay on medical grounds. The respondents are further directed to place on record the compliance report within 30 days from the date of this order through Additional Registrar of this Court.
Dated: 20.05.2014 JUDGE
JUDGE