Full Judgment Text & Judicial Ruling

2008 P L C (C

2008 P L C (C.S.) 1085

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

TASNEEM AHMED

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Food, Agriculture and Livestock, Islamabad and 2 others

Appeal No.86(K)(C.S.) of 2004, decided on 4th November, 2006.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 2(aa), 3, 5 & 10---Service Tribunals Act (LXX of 1973), S.4---Imposition of punishment of withholding of two increments---Appeal---Punishment of withholding of two increments was imposed on appellant after issuing him show-cause notice, but without holding inquiry against him through an Inquiry Officer or Inquiry Committee on charges of `inefficiency' and 'misconduct'-Counsel for .appellant had raised objections; that impugned order was not issued by the competent Authority and that period for which the increments were ordered to be withheld was not mentioned---Validity---Authorities had not drawn the 'disciplinary proceedings against the appellant in accordance with law and had not given any satisfactory reply to the objection about the competent Authority---Secretary of Department concerned was competent Authority in the case, but show-cause notice was issued to the appellant by Director General of Department who was not competent Authority---Show-cause notice, in circumstances, was void and nullity, in the eyes of law and liable to be set aside---Appeal filed by appellant against impugned order was allowed and same was set aside with direction to authorities to pay all pecuniary benefits to appellant from the date of impugned order.

1997 TD (Service) 346; 2004 PLC (C.S.) 959; PLJ 2005 SC 1189; 2003 SCMR 1718=2003 PLC (C.S.) 1304; 2004 SCMR 1662; 2004 PLC (C.S.) 1414; PLD 2004 SC 441; 1986 PLC (C.S.) 894; 2000 PLC (C.S.) 1252; 2004 PLC (C.S.) 470; Meraj Din Bhatti v. Chairman Punjab Board of Technical Education, Lahore and 4 others 2605 PLC (C.S.) 551; Mohib K. Habib v. The Province of Sindh and others 2005 PLC (C.S.) 403 ref.

Sanaullah Noor Ghauri for Appellant.

Asif Hussain Mangi, Standing Counsel for Respondents.

Date of hearing: 20th September, 2006.

JUDGMENT

RASHID ALI MIRZA (MEMBER).---While he had been serving as Deputy Director (Reg.), Department of Plant Protection, the appellant was imposed punishment of withholding of two increments vide impugned order, dated 14-1-2004 received by the appellant on 17-1-2004. He preferred a departmental appeal to the Prime Minister on 26-1-2004 and having not received the reply thereof, he filed the present appeal before the Tribunal on 20-4-2004 after waiting for the statutory period of 60 days.

2. Briefly, the history of this case, gleaned from the record, is that the appellant joined service under the Federal Government in the Department of Plant Protection as Deputy Director (BPS-18) on 30-5-1994 through Federal Public Service Commission. He had first division academic career from Matric to M.Sc. (Honours) Agriculture, Faisalabad. The work and conduct of appellant had remained satisfactory throughout his service. He never earned adverse Performance Evaluation Report and was never warned or even advised to improve his efficiency and conduct of service. Show-cause notice, dated 30-10-2003 received by the appellant on 6-11-2003 was served upon the appellant by Rashid Bashir Mazari, Director-General, stating himself to be the competent authority under section 2(aa) of the Removal from Service (Special Powers) Ordinance, 2000. The order, dated 14-1-2004 imposing the penalty mentions about two show-cause notices, dated 30-10-2003 and 6-11-2003. The appellant however, received only one show-cause notice dated 30-10-2003. He is not aware if any show-cause notice, dated 6-11-2003 was even served upon the appellant and processed by the department. In the show-cause notice there were allegations of "inefficiency" and "misconduct" against the appellant as defined in the Ordinance. The show-cause notice further stated that it was not necessary to have an inquiry through an Inquiry Officer or the Inquiry Committee. The charges contained in the show-cause notice were as under: -

"You had failed to ensure the involvement of Establishment Section (Deputy Director (Admn.), while proposing constitution of tender opening/award committee to Director-General on 10th July, 2003, so that previously constituted committees (i.e. Purchase Committee and Inspection Committee) notified vide Circular No.2-2/2002-S&D(P), dated the 7th February, 2003 should have been discussed.

(ii) You did make proper arrangement for sealed tender box in the committee room where the tenders were to be opened.

(iii) You received the bid documents by hand in violation of the rules.

(2) By reasons of the above you appear to be:

(e) inefficient or has ceased to be efficient within the meanings of section 3(1)(a) of the Removal from Service (Special Powers) Ordinance, 2000.

(f) guilty of misconduct within the meaning of section (1) of the Removal from Service (Special Powers) Ordinance, 2000, for the said commission/commission on your part."

3. The appellant replied the aforesaid show-cause notice and stated that he did not receive any bid documents by hand as alleged; that the tenders were placed on his table by the tenderees themselves; since there was no standard procedure nor there were any instructions to him, written or oral, therefore, neither he accepted nor rejected the placement of bids on his table by the tenderees. He stated that he acted honestly, efficiently and diligently and committed no act of "misconduct", but to the astonishment of the appellant, vide letter, dated 9-12-2003 he was called for personal hearing on 12-12-2003 by respondent No.2 i.e. Secretary Ministry of Food, Agriculture and Livestock in which respondent No.3 had served the show-cause notice in his capacity as competent authority. The appellant appeared for personal hearing but did not hear any thing from respondent No.2 or 3 but received an order, dated 14-1-2004 imposing punishment of withholding of two increments which did not mention the period for which the increments will remain withheld, though the requirement of the rules is that the increments would be withheld only for a specified period to be mentioned in the order imposing upon the penalty. However, the appellant preferred an appeal to the Prime Minister on 26-1-2004 which has not been responded to, hence this appeal under section 4 of the Service Tribunals Act, 1973 with the prayer to set aside the impugned order of withholding of two increments.

4. We have heard the learned counsel for both the parties and have also perused the record minutely.

5. The learned counsel for the appellant raised only two objections viz; the impugned order was not issued by the competent authority and secondly; that the period for which the increments were ordered to be withheld was not mentioned. He contended that show-cause notice was served upon the appellant by respondent No.3, whereas the competent authority under Removal from Service (Special Powers) Ordinance, 2000 for officers in BPS-18 is the Secretary of the Ministry/Division concerned, hence the respondent No.3 was not competent to serve the show-cause notice.

6. The learned counsel for the appellant argued that the disciplinary proceedings against the appellant had not been drawn in accordance with the Removal from Service (Special Powers) Ordinance, 2000 (hereinafter called the "Removal Ordinance, 2000 as amended upto date). According to the learned counsel, under S.R.O. dated 13-6-2000, notified by the Government of Pakistan in relation to the Removal Ordinance, 2000, the competent authority in respect of the appellant was Secretary of the Ministry/Division concerned; that there being no provision under the S.R.O. for delegation of powers, as such, the action of withholding of two increments was without lawful authority as he was not authority under the said Ordinance; that the appellant in his reply to the show-cause notice had stated that he did not receive any bid documents by hand as alleged and that the tenders were placed on his table by the tenderees themselves; since there was no standard procedure nor there were any instructions to him,. written or oral, therefore, neither he accepted nor rejected the placement of bids on his table and did not commit any act of "misconduct"; that in view of the facts and circumstances mentioned above the appellant had not committed any misconduct and a harsh penalty of withholding of increments could not have been imposed on him by respondent No.3, who was not the competent authority under the law. In support of his above contentions, the learned counsel for the appellant relied on the following authorities:

Inquiry cannot be dispensed with (1) 1997 TD (Service) 346, (2) 2004 PLC (C.S.) 959, (3) PLJ 2005 SC 1189.

Show-cause notice by incompetent authority (4) section 2(aa) of Removal from Service (Special' Powers) Ordinance 2000, 2003 SCMR 1718=2003 PLC (C.S.) 1304.

Regular inquiry (5) 2004 SCMR 1662, (6) 2004 PLC (C.S.) 1414.

Personal hearing (7) PLD 2004 SC 441

Denial of charges regular inquiry (8) 1986 PLC (C.S.) 894.

Summary procedure (9) 2000 PLC (C.S.) 1252

Non-speaking order (10) 2004 PLC (C.S.) 470.

7. The learned counsel, for the respondents on the statement of D.R. conceded that the Secretary is the competent authority but the Secretary had delegated his power to Director-General, Department of Plant Protection. The learned counsel for the appellant stated that under Ordinance, 2000 the competent authority cannot delegate his power. He placed reliance on Meraj Din Bhatti v. Chairman, Punjab Board of Technical Education, Lahore and 4 others 2005 PLC (C.S.) 551 and Mohib K. Habib v. The Province of Sindh and others 2005 PLC (C.S.) 403 wherein it was held as under:--

2005 PLC (C.S.) 551

"----Jurisdiction---Competent authority---.Delegation of powers---Delegatee's powers to further delegate such powers---Chairman, Board of Technical Education had imposed major penalty on the petitioner for his wilful absence from duty---Validity--Competent authority in relation to the petitioner was Secretary of the Board and not the Chairman---Petitioner was punished by incompetent authority---Petitioner's submission to jurisdiction of an authority did not confer jurisdiction on the said authority if none was possessed by it---Order of removal from service having not been passed by competent authority stood vitiated."

2005 PLC (CS.) 403

"The Rule as its plain reading would bear out, is mandatory and does not permit the Authorized Officer so designated to delegate his role to another person, the competent authority's order to the contrary, notwithstanding."

We have carefully considered the above arguments of both sides and minutely examined the record of the case.

9. From the above discussion of the material on record, it is evident that the respondents had not drawn the disciplinary proceedings against the appellant in accordance with law. Over and above all this, the respondents had not given any satisfactory reply to the objections about the competent authority. The definition of "competent authority" given under section 2(aa) of Ordinance, 2000 is as under:

"Competent authority" means, the Chief Executive and where, in relation to any person or class of persons, the Chief Executive authorize any officer or authority, not being inferior in rank to the appointing authority prescribed for the post held by the person against whom action is proposed to be taken, to exercise the powers of competent authority under this Ordinance, that officer or authority, and, in relation to an employee of a Court or Tribunal functioning under the Federal Government, the appointing authority or the Chairman or Presiding Officer of the Court or the Tribunal."

So far as the appointing authority is concerned, we have to refer to Rule 6 of the 'Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 whereby sub-rule (2) for the post of BPS-17 to 19, Establishment Secretary is the appointing authority, but as per notification of the Cabinet Secretariat (Establishment Division) dated 27-5-2000, the officers authorized to exercise power of the competent authority under section 3 of the Ordinance, 2000 shown in Column 2 of the table are as under:

Table No.I

S.No.

Class of Persons

Officer authorized to exercise

1

2

3

(1)

Holders of posts in BS-20 and above

Chief Executive of Pakistan

(2)

Holders of posts in BS-16-19

Secretary of the concerned Ministry/ Division

(3)

Holders of posts in BS-1-15

An officer not below the appointing authority to be notified by the Secretary of the concerned Ministry/Division

Table No.II

For persons employed in an Attached Department or a subordinate office of the Federal Government

S.No.

Class of Persons

Officer authorized to exercise the powers of competent authority

1

2

3

(1)

Holders of posts in BS-20 and above

Chief Executive of Pakistan

(2)

Holders of posts in BS-16-19

Head of the Department/ Subordinate Officer

(3)

Holders of posts in BS-1-15

An Officer not below the appointing authority to be authorized by the head of the Department/Subordinate Officer.

Table No.III

For persons in Corporation Service.

S.No.

Class of Persons

Officer authorized to exercise the powers of competent authority

1

2

3

(1)

Holders of posts in BS-20 and above and equivalent

Chief Executive of Pakistan

(2)

Holders of posts in BS-16-19

Managing Director/ Chief Executive Officer of the Organization by whatever name called

(3)

Holders of posts in BS-1-15 equivalent

An Officer not below the appointing authority to be authorized by the Chief Executive Officer of the Corporation.

10. The appellant belonged to the attached department of the Federal Government; hence under Table-II, the competent authority in his case would be Head of the Department viz. Secretary, Ministry of Food, Agriculture and Livestock, Islamabad. However, by notification of Government of Pakistan, Cabinet Secretariat, Establishment Division dated 17-6-2000, the above-mentioned Table-II was amended as under:--

Table No.II

For persons employed in an Attached Department or a Subordinate Office of the Federal Government

S.No.

Class of Persons

Officer authorized to exercise

1

2

3

(1)

Holders of posts in BS-20 and above

Chief Executive of Pakistan

(2)

Holders of posts in BS-17-19

Secretary of the Ministry/ Division concerned.

(3)

Holders of posts in BS-1-16

Head of the Department or Head of Subordinate Office

(4)

Holders of posts in BS-1-15

An Officer not below the appointing Authority to be authorized by the Head of Department or Head of Subordinate Office.

11. In view, of the above amendment by means of S.R.O.-411, Secretary of the Ministry of Division concerned was the competent authority under section 2-A of the Removal from Service (Special Powers) Ordinance, 2000 hence, the show-cause notice by the Director-General Department of Plant Protection, Jinnah Avenue, Malir Halt, Karachi is without any doubt void and nullity in the eyes of law and this was therefore, liable to be set aside.

12. In paras.6 and 7 of departmental appeal appellant has stated that he and one Mr. Zafar Ali, Deputy Director Locust were charged for the same allegation of inefficiency and misconduct and that said Mr. Zafar Ali, was responsible for all such acts, however, Mr. Zafar Ali was awarded a minor penalty of "Censure" while appellant has been awarded punishment of "withholding of two increments" without specifying the time period. This step-motherly treatment, being discriminatory and against the norms of equity and justice is liable to be quashed. .

13. In view of our finding that respondent No.3 was not the competent authority under the provisions of the Removal from Service (Special Powers) Ordinance, 2000 the whole disciplinary proceedings initiated and concluded are coram non judice and not sustainable in law. Accordingly, the appeal is allowed and the impugned order, dated 14-1-2004 passed by respondent No.3 is set aside. The respondents are .directed to pay all pecuniary benefits to the appellant from the date of impugned order. The respondents would however, be at liberty to initiate disciplinary proceedings against the appellant, if they so desire.

14. Copies of judgment be sent to the parties under registered cover and to the relevant quarters under the Rules.

H.B.T./78/FST Appeal allowed.

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