1991 P L C (C.S.

) 299
[Service Tribunal AJ&K]
Present: Sardar Muhammad Sajawal Khan, Chairman and Raja Muhammad Ashraf
Kayani, Member
KHAK HUSSAIN
Versus
AZAD GOVERNMENT OF STATE OF JAMMU AND KASHMIR through Chief
Secretary and 2 others
Service Appeal No. 447 of 1989, decided on 27th June, 1990.
(a) Police Rules, 1934---
----R. 16.28---Azad Jammu and Kashmir Service Tribunals Act (XXII of 1975), S.4---
Removal from service---Misconduct---Appellant a Police Constable, while posted on patrol
duty at night entered a mosque with his shoes on in search of a suspect, kicked a man
sleeping there, who was in fact Imam Masjid, hitting him at nose---Imam made a complaint
against the Constable to higher Police Authorities and as a result of inquiry, appellant was
discharged by Senior Superintendent of Police but on appeal to Deputy Inspector-General of
Police, his two increments were stopped instead and he was reinstated ---Inspector General of
Police on a review filed by the Department, restored order of removal from service made by
Senior Superintendent of Police---Appellant challenged said order of Inspector-General of
Police---Inspector-General of Police under Police Rules 16.28 had powers to annul order of
reinstatement of appellant--Order of Inspector-General of Police, thus, could not be said to be
void ab initio although it was violative of principles of natural justice---But appeal of
appellant suffered from laches and was hopelessly time-barred---Appeal was dismissed in
circumstances.
(b) Police Rules, 1934--
--R. 16.28---Punishment---Inspector-General of Police, Deputy Inspector General and
Superintendent of Police have powers to call for record of award of punishment made by
their subordinates and confirm, enhance, modify or annul same---Under sub-rule (3) of Rule
16.28, in a case where officers propose to enhance award of punishment, shall before passing
final orders give defaulter concerned an opportunity of showing cause either personally or in
writing.
(c) Limitation Act (IX of 1908)--
---S. 3---Limitation would not run against a party in a case where such party had an
established right for being given hearing and the of order was made without hearing and
without notice to that party---Distinction between an act wholly without jurisdiction and an
act done in the improper exercise of that jurisdiction stated.
Ishfaq Ahmad Kayani for Appellant.
Raja Muhammad Hanif Khan for Respondents.
JUDGMENT
SARDAR MOHAMMAD SAJAWAL KHAN (CHAIRMAN).The instant appeal is
directed against the order dated 19-10-1985 issued vide order Book No.177 by the Inspector
General of Police Azad Government of the State of Jammu and Kashmir by which the order
of reinstatement dated 31-12-1984 in respect of the appellant made by the Deputy Inspector-
General of Police was cancelled and the order dated 19-10-1985 of Senior Superintendent of
Police, Muzaffarabad was upheld. The appellant has arrayed Azad Government of the State
of Jammu and Kashmir through Chief Secretary, Inspector General of Police and Senior
Superintendent of Police, Muzaffarabad as respondents in his appeal for seeking his relief
against them.
2. The facts leading to this appeal are that the appellant was employed as Police Constable in
the Police Department. A few cases of theft in mosques were reported and a Police party
headed by Muhammad Roshin, Head Constable was organized for patrol duty, at night on 13-
9-1983. Among others, the appellant was also included in the party for patrol duty and it was
at the direction of Head Constable Muhammad Roshin that the appellant and Shah Pal
Constables were deputed to go inside the mosque located nearby at `Addah Dahkki',
Muzaffarabad in search of the suspects. It was alleged that both the Constables went inside
the mosque in a state of smoking and without taking off their shoes. They found a person
sleeping inside the mosque and the appellant kicked him hitting at his nose. The person
sleeping inside the mosque subsequently, turned out to be the Imam of that Masjid who next
day made a complaint before Senior Superintendent of Police, Muzaffarabad about the
maltreatment that he suffered at the night time by the kick of the appellant. Under the orders
of Senior Superintendent of Police, the Head Constable Muhammad Roshin as well as the
accused Constables were placed under suspension and the Deputy Superintendent of Police,
Muzaffarabad was appointed as Inquiry Officer to probe into the allegations brought against
them. The Inquiry Officer found Muhammad Roshin Khan Head Constable and Shah Pal
Constable to be not associated with the commission of any offence but made an adverse
report against the appellant that he was responsible for showing disrespect to the mosque and
causing injury to the Imam Masjid. The Senior Superintendent of Police served him with a
show-cause notice and finally discharged him from the service vide Order Book No.414,
dated 11-4-1984. Feeling dissatisfied with the aforesaid order of Senior Superintendent of
Police, Muzaffarabad, the appellant brought an appeal before the Deputy Inspector-General
of Police who firstly rejected his appeal but later on allowed the reinstatement of the
appellant after the stoppage of his two annual increments by way of punishment. The senior
Superintendent of Police, Muzaffar, bad invoked the review jurisdiction of the Inspector-
General of Police through a Letter No. 633/Reader/SSP/85, dated 10-1-1985 and the
Inspector-General of Police made the following order which is impugned at this forum by the
appellant:--
"The orders of S.S.P are upheld."
On 19-11-1985 the appellant made an application to the Inspector-General of Police for
mercy but the same was also turned down and at a belated stage through this appeal he has
invoked the jurisdiction of this Tribunal under section 4 of the Service Tribunals Act, 1975.
3. The appellant's prayer is that the impugned order may be set aside and the order of Deputy
Inspector-General of Police issued under order Book No.510, dated 31-12-1984 may be
restored.
4. We have perused the inquiry report as well as the relevant record maintained in the Central
Police Office. We have also given our careful consideration to the arguments as were
addressed at the Bar by the learned counsel of each party. It is contended on behalf of the
appellant that there was no impartial inquiry conducted against the appellant and ex parte
proceedings were taken against him without following the relevant procedure given in Police
Rules. He held spotless career of service and was removed out of service because of the
personal liking and disliking of the Senior Superintendent who had developed hatred against
him because of the fact that Imam Masjed had poisoned him. It is further contended that the
Inspector-General of Police has removed the appellant out of service without giving him an
opportunity of personal hearing. According to the learned counsel for the appellant, the
impugned order is ab initio void and the limitation period prescribed to bring this appeal
before this forum had not run against the appellant. He is of the opinion that the appeal is
within time and the relief claimed through this appeal may be given to the appellant.
5. In the punishment chapter of Police Rules, 1934 as enforced in Azad State of Jammu and
Kashmir under rule 16.28, the Inspector-General, Deputy Inspector-General and the
Superintendent of Police have the powers to call for the record of awards of punishment
made by their subordinates and confirm, enhance, modify, or annul the same. But under sub-
rule (3) of the said rule 16.28, in all such cases in which the Officers propose to enhance the
award of punishment, they shall before passing final orders give the defaulter concerned an
opportunity of showing cause either personally or in writing. But in the instant case the order
made by the Inspector-General of Police on the file seems to be a telegraphic order without
touching the merits and demerits of the case and the appellant was not afforded an
opportunity of shoeing cause for setting aside the order of his reinstatement made by the
Deputy Inspector-General of Police.
6. There is, no doubt, in it that the period of limitation does not run against a party m a case
where such party has an established right for being given hearing and the order is made
without hearing and without notice to that party. But there is a clear distinction between an
act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction.
Where there is jurisdiction to decide, then as it has often been said there is jurisdiction to deal
either rightly or wrongly, and merely a wrong decision does not render the decision without
jurisdiction. To amount to a nullity, an act must be non-existent in the eye of law; that is to
say; it must be wholly without jurisdiction or performed in such a way that the law regards it
as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction. In the
instant case the Inspector-General of Police, undoubtedly, held the powers of review in case
of the appellant and he had the jurisdiction too to make any order in respect of the appellant
as might have been deemed fit by him. Under Police Rule 16.28 he also held the powers to
annul the order of reinstatement of the appellant made by the Deputy Inspector-General of
Police. Hence, the impugned order is not ab initio void although it is violative of principles of
natural justice. It is on the record that the impugned order was conveyed to the appellant
quite well in time and he had made an application to the Inspector-General of Police for
showing mercy to him which also failed. It is argued on behalf of the appellant that he was
promised to be reinstated on his post in case he would be earning an acquittal in the criminal
case of zina registered against him with the Police Station at Channari but after his acquittal
in the said case, the reinstatement sought for was refused to him and that fact brought his
appeal within limitation. The appellant was required to bring his appeal within thirty days
next after getting the knowledge about the passing of the impugned order. But he has brought
his appeal at this forum after the lapse of the period of about more than three years. There
does not exist any good ground for condonation of the delay. In the instant case the limitation
prescribed for making an appeal at this forum would start running from the date of the
knowledge of the impugned order and the application dated 19-11-1985 brought by the
appellant before the Inspector-General of Police for mercy makes it abundantly clear that he
had got the knowledge of the impugned order before filing his application. The appeal is,
therefore, held hopelessly time-barred and the same is hereby dismissed without any order as
to the costs.
M.Y.H./109/SrA Appeal dismissed.