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Petitioner: MERAJ DIN BHATTI VS Respondent: CHAIRMAN, PUNJAB BOARD OF TECHNICAL EDUCATION, LAHOREHonorable Justice Syed Jamshed AliZafar Abbas Mashadi Syed,Sh. Shahid Waheed
2005 P L C (C
2005 P L C (C.S.) 551 [Lahore High Court] Before Syed Jamshed Ali, J MERAJ DIN BHATTI versus CHAIRMAN, PUNJAB BOARD OF TECHNICAL EDUCATION, LAHORE and 4 others Writ Petition No.6163 of 2002, heard on 7th January, 2004.
(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975--- ----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.
(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975--- ----Defect of jurisdiction---Curing the defect of jurisdiction---Original order having not been passed by competent authority stood vitiated---Order passed in appeal did not had the effect of curing the defect of jurisdiction.
(c) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975--- ----Delegation of power---Limitation---A delegatee cannot further delegate his powers.
Zafar Abbas Mashadi Syed for petitioner. Sh. Shahid Waheed for Respondents. Date of hearing: 7th January, 2004.
JUDGMENT The petitioner, was employed in the Board of Technical Education Lahore, as Junior Clerk (BS-5). He was proceeded against under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, (adopted by the said Board) on the charge of wilful absence from duty for the period from 8-10-1998 to 6-12-1998 and was removed from service vide order dated 14-9-1999 of the Chairman of the said Board. The petitioner approached this Court in W.P. No.21208-99 to assail the said order. Meanwhile, the appeal filed by the petitioner against the said order was decided vide order dated 4-2-2000. Accordingly, W.P. No.21208-1999 was withdrawn with permission to file a fresh petition to assail the original as well as the appellate order. These have been assailed in the present petition. 2. The learned counsel for the petitioner submits that in accordance with Delegation of Powers under the (E&D) Rules duly approved by the Board in the meeting held on 29-6-1998 and by the Controlling Authority vide letter dated 19-8-1998, the competent authority to impose major punishment on the petitioner, was the Secretary of the Board while the Chairman was the appellate authority. He submits that the basic order having been passed by an incompetent authority, even the order passed in appeal will not cure the defect of jurisdiction. And, both the orders stands vitiated. 3. The learned counsel for the respondent-Board has, however, defended the impugned orders. He submits that for officials in Grade 5 to 15, the Chairman of the Board was the competent authority, according to Regulation No.3 of Chapter III, of the Regulations of the Board which was neither amended nor the Chairman was deprived of the powers of the competent authority in relation to the petitioner by virtue of the delegation of powers being relied upon. He next submits that petitioner did not raise any objection before the Chairman to proceed against the petitioner and, therefore, he is estopped to raise it before this Court on the principle of aquisence. He next maintains that the delegator could lawfully exercise the powers of the delegatee. Reliance was placed on Tanvir Ahmed Khan v. Deputy Commissioner, Islamabad (1992 MLD 2146), Haji Muhammad Ismail and another v. Govt. of the Punjab through Secretary, Local Govt, and Rural Development and 13 others (1987 MLD 2157) and Punjab Road Transport Board and another v. Punjab Service Tribunal and 3 others (1982 SCMR 76). 4. The submissions made by the learned counsel for the parties have been considered. Regulation No.3 of Chapter III being relied upon was issued in 1981 as mentioned in para. 12 of the report and parawise comments submitted on behalf of the Board. The delegation of powers being relied upon by the learned counsel for the petitioner was approved by the Board on 29-6-1998 and by the controlling authority on 19-8-1998. The proceedings were initiated against the petitioner on 3-6-1999 when a show-cause notice and statement of allegations were served on the petitioner. On the said date, the delegation of powers under the E&D Rules had already been enforced, according to which the competent authority in relation to the petitioner was the Secretary of the Board and not the Chairman. The specific delegation of powers under the (E&D) Rules being later in point of time has the effect of overriding Regulation No.3 of Chapter III. As far as the next contention of the learned counsel for the respondents is concerned, it has no merit. The submission to the jurisdiction of an authority does not confer jurisdiction on the said authority if none is possessed by it. The question of jurisdiction is otherwise is a pure question of law going to the root of the matter and can be raised at any stage of the proceedings. As far as the next contention is concerned, it has no merit either. It is not a case in which the delegator has exercised the authority of the delegatee because the Chairman of the Board, as one of the functionaries of the Board is himself the delegatee, the delegator being the Board itself who had delegated powers under the E&D Rules to various functionaries of the Board including the Chairman. Therefore, I do not think it necessary to examine the judgments cited by the learned counsel for the respondents. 5. For what has been stated above, the impugned order of removal from service not having been passed by the competent authority stands vitiated and even the order passed in appeal does not have the effect of curing the defect of jurisdiction. Accordingly, this writ petition is allowed. The impugned removal order dated 14-9-1999 and the appellate order dated 4-2-2000 are declared as without lawful authority and of no legal effect, and the petitioner is directed to be reinstated in service. The intervening period shall be treated as the kind of leave due to the petitioner. It is clarified that the competent departmental authority shall be free to take fresh proceedings against the petitioner in accordance with law. No order as to costs.
H.B.T./M-427/L Petition allowed.