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Petitioner: IRSHAD AHMAD CH. VS Respondent: THE SUPERINTENDING ENGINEER and others
Court Name: Punjab Service Tribunal Judge(s): Mian Faiz Karim, Sarfraz Hasan Title: IRSHAD AHMAD CH. vs THE SUPERINTENDING ENGINEER and others Case No.: Case No, 376/897 of 1986 Date of Judgment:- Reported As: 1989 PLC (C.S.) 798 Result: Order accordingly
JUDGMENT
JUDGMENT ' SARFRAZ HASAN (MEMBER).--Irshad Ahmad Chaudhary, Sub-Engineer, Public Health Engineering Sub-Division, Burewala has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the Superintending Engineer, Public Health Engineering Circle, Multan and the Chief Engineer (South), Public Health Engineering Department, Punjab as respondents Nos. 1 and 2 respectively. 2. By virtue of this appeal Irshad Ahmad Ch. Has prayed that:-- (i) Impugned order dated 5-12-1985 passed by the Authorised Officer awarding him a minor punishment of stoppage of one increment with future effect be set aside. ' Impugned order dated 15-2-1986 passed by the Authority (respondent No, 1) (a) treating his period of suspension from 11-3-1982 to 19-5-1984 as such allowing him subsistence allowance at 1/2 of his pay during this period, and (b) treating the entire period he remained out of service during the compulsory retirement from 20-5-1982 to 8-3-1985 as extraordinary leave without pay be set aside and he may be treated on duty with full pay and allowances throughout this period i,e, 11-3-1982 to 19-5-1982 and 20-5-1982 to 8-3-1985. (iii) Impugned order dated 27-4-1986 passed by the Chief Engineer (South) Public Health Engineering Department, Punjab (respondent No, 2) rejecting his departmental appeal against order dated 15-2-1986 of respondent No, 1 may be set aside. (iv) He may be treated on duty with full pay and allowances during the period he remained under suspension from 9-3-1985 to 22-12-1985. 3. The facts of the case are that on the basis of serious allegations of misconduct against him, the appellant was placed under suspension by the Superintending Engineer, Public Health Engineering
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Circle, Multan (respondent No, 1) vide his Teleprinter message No, 327/E, dated 11-3-1982 in the following words:- "From ' The Superintending Engineer, ' Public Health Engineering Circle, ' Multan. ' To ' The Executive Engineer, ' P.H.E.D. Sahiwal. ' Memo: No, 327/E, dated 11-3-1982. ' Subject: Establishment Sub-Engineer Mr. Irshal Ahmad ' Reference:-Your Office Endst: No, 1010, dated 10-3-1982. ' Apropos your discussion on telephone today the 11th March, 1982 Mr. Irshad Ahmad, Sub-Engineer is placed under suspension with immediate effect on account of refusal to carry out orders of his superiors and ungentlemanly, behavior and gross misconduct. He is attached with Executive Engineer, P.H.E. Division, Multan till further orders." ' The above teleprompter message was further modified by respondent No, 1 vide his TelePrompTer Message No, 359/E, dated 18-3-1982 in the following words:-- "In partial modification of this office Memo. No, 327/E, dated 11-3-1982, it is directed that disciplinary action is initiated against Mr. Irshad Ahmad, Sub-Engineer for disobedience of orders ungentlemanly behavior and gross misconduct under the Punjab Civil Servants (E & D) Rules, 1975." ' The Executive Engineer, Public Health Engineering Division, Multan was appointed as Authorised Officer by respondent No, 1. The Authorised Officer charge-sheeted the appellant on grounds of misconduct in that he was eged to have brought undue influence for the cancellation of his transfer orders sued by respondent No, 1 on 16-12-1981, had failed to comply with the transfer riders and had threatened and misbehaved with Sh. Hafeez-ud-Din, Executive engineer, Public Health Engineering Division, Sahiwal, on 10-3-1982. ' The Authorized Officer assumed the role of Enquiry Officer himself and submitted his enquiry report to respondent No, 1 on 19-5-1982. On the basis of this enquiry report, respondent No, 1 dismissed the appellant from service with effect from 20-5-1982. ' The appellant filed a departmental appeal before the Chief Engineer (South), Public Health Engineering Department Punjab, Lahore. However, vide his No, SO-II(PHE)2-79/82, dated 16-6-1983, the Secretary to Government of the Punjab, Housing and Physical Planning Department appointed Mr. Shafquat Hussain Qureshi, Director-General, Housing and Physical Planning Department to act as an appellate authority in this case. ' The appellate authority reduced the penalty of dismissal to compulsory retirement w,e,f, the same date i,e,, 20-5-1982. After compulsory retirement of the appellant, Sh. Hafeez-ud-Din, ex-Executive Engineer lodged a criminal case against the appellant vide Police Station 'A' Division, Sahiwal F.I.R. No, 174, dated 1-9-1982 under section 506, P.P.C. ' After a protracted trial, the Court acquitted the appellant on 12-1-1985 in the following words:- {{URDU TEXT}} ' The appellant also filed an appeal before the Punjab Service Tribunal against his orders of compulsory retirement. The Tribunal accepted the appeal and remanded the case to the competent authority to proceed afresh strictly in accordance with the provisions of the Punjab Civil Servants (E & D) Rules, 1975. The relevant portion of the Tribunal's judgment dated 22-1-1985 reads as follows:- "According to the above provisions of the Rule 6, it was mandatory for the Authorised Officer to appoint an independent Enquiry Officer or Enquiry Committee under the circumstances of the case
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but the Authorised Officer (Executive Engineer, P.H. Engineering Division, Multan) himself acted as an Authorised Officer as well as Enquiry Officer. This action of the Authorised Officer to act as Authorised Officer and Enquiry Officer was against the rules, being unlawful, cannot be sustained. Similarly the orders of dismissal and compulsory retirement of the appellant which have been based upon the unlawful action--recommendations of the Authorised Officer also become equally unlawful. 8. The result of the above analysis of the case is that the appeal is accepted, the impugned orders are set aside and case is remanded to the competent authority to proceed afresh strictly in accordance with the provisions of the Punjab Civil Servants (E & D) Rules, 1975 as 2. That now you have mentioned in the above referred memo, that ni enquiry is necessary and you propose to proceed under rule 6(3) of th said rules. 3. That under the (Efficiency and Discipline) Rules, 1975 this action an proceedings are not correct and illegal and fresh proceedings in the matter under rule 6(3) are against the orders issued by the Punjab Service Tribunal Lahore that "to proceed afresh strictly in accordance with the provisions of the Punjab Civil Servants (E & D) Rules, 1975." ' Vide his No, 2607/ST, dated 5-12-1985, the Authorised Officer submitted another report to the Authority (respondent No, 1), the relevant portion of which reads as follows:-- "The accused Mr. Irshad Ahmad, Sub-Engineer, in the light of the findings of the Enquiry Officer was served with a "show-cause notice" in writing on 16-11-1985 at 11 a.m. The accused presented himself on the said date and submitted his defense to the undersigned in writing on the said date and time. ' The Enquiry Officer has partially proved charges Nos. 1 and 2 in the charge-sheet against the accused official and proved charge No, 3 in the charge-sheet against him. ' The undersigned as "Authorised Officer" has gone through the report of the Enquiry Officer and the defence of the accused in his "show-cause notice". There has been a probe against the accused in the above mentioned charge and the judicial Magistrate has already acquitted the accused giving him the benefit of doubt against this charge. Copy of the decision of the Judicial Magistrate as submitted by the accused on 16-11-1985, is also attached. ' Keeping in view the circumstances in this enquiry and keeping in view the circumstantial evidence and detailed findings of the Enquiry Officer, I, the undersigned as "Authorised Officer" awarded minor punishment for stoppage of one increment with future effect to the accused official." ' Vide his memo. No, 2608/ST, dated 5-12-1985 to the appellant, the Authorised Officer imposed a minor penalty on the appellant in the following words:-- "I, as Authorised Officer against you in the abovementioned case, hereby award a minor punishment of stoppage of one increment with future effect in the above cited enquiry after going through the report of the Enquiry Officer and your written defence on 16-11-1985 in response to show-cause notice served upon you vide this office No, 2325-26/ST, dated 31-10-1985." ' On receipt of endst. No, 2609/ST/SWL, dated 5-12-1985 about the abovementioned penalty from the Authorised Officer, the Authority (respondent No,1) vide his office Order No, 22, dated 11-2-1986 recorded his orders, the relevant parts of which read as follows:-- "Mr. Irshad Ahmad, Sub-Engineer, was placed under suspension w,e,f, 11-3-1982 vide this office order No, 327/E, dated 11-3-1982 and remained under suspension up to 19-5-1982. He is allowed subsistence allowance at the rate of 1/2 of his pay for the period from 11-3-1982 to 19-5-1982 under rule 7.2(b), C.S.R. Vol. I, Part I read with the Government of the Punjab Finance Department memo. No, 1515-SR-VI70, dated 22-4-1970." "Fresh proceedings were started under the directions of the Tribunal and an Authorised Officer was appointed vide this office No, 32/E, dated 6-3-1985 who subsequently appointed an Inquiry Officer vide his No, 464, dated 10-3-1985. The Inquiry Officer submitted his report on 11-6-1985 who
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substantiated the allegation levelled against Mr. Irshad Ahmad. Accordingly, the Authorised Officer issued show-cause notice to the accused on 7-11-1985 and after considering the reply of the accused awarded a minor punishment of stoppage of one increment with future effect under his No, 2608/ST, dated 5-12-1985. Consequently the Appointing Authority (Superintending Engineer) reinstated him with immediate effect vide office order No, 176/E, dated 23-12-1985." "Now therefore, in pursuance of the directions of the Punjab Service Tribunal, and in view of the decision of the Authorised Officer, as stated above, the entire period for which the accused Mr. Irshad Ahmad, remained out of service is treated as extraordinary leave without pay, under the Revised Leave Rules, 1981 w,e,f, 20-5-1982 to 8-3-1985. ' The order dated 23-12-1985 of respondent No, 1 referred to in the abovequoted order dated 11-2- 1986 reads as follows:- "Mr. Irshad Ahmad, Sub-Engineer under suspension PHE Division Multan is hereby reinstated with immediate effect. Subsistence grant @ 1/2 of pay is allowed to be paid for the period of suspension from 11-3-1985 to date under rule 7.2(b) of C.S.R. Vol. 1st Part I, read with Government of West Pakistan Finance Department Lahore No, 515-SR-VI-70, dated 22-4-1970." ' The appellant submitted his departmental appeal to the Chief Engineer (South) Public Health Engineering Department, Punjab, Lahore (respondent No, 2) on 20-14986 and 10-3-1986. However, vide his No, 26-ES/78-ES(2), dated 27-4-1986 to the appellant, respondent No, 2 rejected his appeal against the orders of the Authority (respondent No, 1) in the following words:- "After perusing the record and hearing you (appellant) and the representative of the Punishing Authority on 22-4-1986, it is considered that there is no sufficient ground for any change in S.E.'s orders, hence your appeal is dismissed. "The decision of the S.E., PHE Circle, Multan is upheld." ' On receipt of rejection order from appellate authority (respondent No, 2), the appellant filed this appeal before the Tribunal. 4. The appellant did not engage any counsel and appeared in person. Accordingly we have heard the appellant in person and learned District Attorney and have also perused the record carefully with their assistance. 5. The appellant submitted the following main points in his appeal and during hearing in Court:-- (a) Vide its judgment dated 22-1-1985 the Punjab Service Tribunal accepted his appeal and remanded the case to the competent authority to proceed the Punjab Service Tribunal (Procedure) Rules, 1975 which reads as under:-- "In every memorandum of appeal, the competent authority against whose order the appeal is preferred and any other party to the dispute shall be shown as respondent." (ii) In view of non-compliance with the mandatory provision of the above quoted rule and the recognized legal principle of audi alteram partum, appeal against the impugned order dated 5-12- 1985 passed by the Authorised Officer is not entertain able by the Tribunal. 9. Attention is invited to the following main points with regard to impugned order dated 15-2-1986 sanctioning subsistence allowance to the appellant for the period 11-3-1982 to 19-5-1982 nearly four years after the appellant had remained under suspension:-- (i)Payment of subsistence allowance to a suspended civil servant as long as he remains under suspension is an essential condition of his suspension for the following reasons:-- (a) Under the rules, a suspended civil servant is not entitled to his regular monthly salary. However, vide Para. 2(c) of S&GAD Circular letter No, SOR-(S&GAD)65/73 (Vol.II)-A, dated 26-34977 it has been laid down as under:-- "A Civil Servant does not cease to be a civil servant merely because he has been suspended. Although, his powers, functions and privileges arc in abeyance during the suspension period, he continues to be subject to the same discipline and penalties as if he had not been suspended."
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(b) As a civil servant does not cease to be a civil servant during suspension and continues to be subject to the same discipline, he cannot seek alternative employment to provide himself and his family with means of subsistence. (c) The superior Courts have held that subsistence allowance during the period of suspension is an essential condition of suspension. ' As reported vide PLD 1964 Dacca 671 it was held by the High Court of Dacca as under:-- "During the period of interim suspension, the person suspended continues to hold office and is given pay as subsistence allowance during that period, though he is debarred from actually performing the function of that office. ' Vide PLD 1969 Lah. 506, it was held by the Lahore High Court as follows:- "The diminution of remuneration is not sufficient to constitute an order of suspension as a penalty for the simple reason that it is provided by the rules of the service which every public employee accepts that in the event of suspension, his remuneration shall be at such a level." ' Vide PLD 1964 SC 321 in case Muhammad Hayat v. Province of West Pakistan, the Supreme Court of Pakistan observed as follows:-- "I am unable to regard the diminution of remuneration as sufficient to constitute an order of suspension as a penalty for the simple reason that it is provided by the Rules of services which every public employee accepts that in the event of suspension, his remuneration shall be at such a level." ' Again vide PLD 1967 Dacca 14 the High Court of Dacca held as under.-- "There is a distinction between salary obtained by the Government servant and subsistence allowance which is payable to him during the period of suspension which is compulsorily imposed upon him without the wherewithal for an alternative employment to keep himself alive. The dictionary meaning of the word "Salary" is a periodical payment for service. As against this a subsistence allowance is paid to the Government servant not as remuneration for work done but as solemn undertaking by the Government to see that its servant can at best keep himself alive during the period taken by Government to decide his case." ' Under Rule 7.2 of Civil Service Rules Punjab Volume I Part I, a I suspended civil servant is entitled to specified allowances "during period A of suspension." ' Vide Government of West Pakistan, Finance Department No, 515-SRVI-70, dated 22-4-1970 to all Administrative Secretaries, Heads of attached Departments etc. It was laid down as follows:- "I am directed to state that the Government- of West Pakistan has decided that Government servants under the rule making control of the Government of West Pakistan should during the period of suspension be paid subsistence grant at the rate of 1/2 instead of 1/3rd of their pay which they were drawing immediately before their suspension and which they would have continued to draw had they not been placed under suspension. (2) These orders will take effect from 1st December, 1969. Necessary amendments in the relevant rules will be carried out in due course." (t) Vide Government of the Punjab, Finance Department No, FD-SRIV7/7-71, dated 19-12-1979 to all Administrative Secretaries etc., it was laid down as follows:-- "Inquiries have been made about the rate of pay, allowances and other amenities admissible to civil servants during suspension. It is clarified that a Government servant as well as an officer/employee of Government controlled Corporation/Autonomous Bodies is entitled to the following payments/facilities during the period of suspension:-- (i) Subsistence grant--Equal to one half of the pay of the suspended Government servant as laid down in the Finance Department's letter No, 515-SR-VI-70, dated 22nd April, 1970. (ii) Allowances--Compensatory allowance as specified below if admissible before suspension:-- (a) House-rent allowance.
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(b) Local Compensatory allowance. (c) Conveyance allowance. (d) Senior Posts allowance. (iii) Residential telephone-11e may be allowed to retain the residential telephone at his own expense line rent including. (iv) Residence Orderly--Where provided, will be withdrawn. (v) Transport--No official transport will be provided.' (g) The above quoted Government circulars dated 22-4-1970 and 19-12-1979 have the force of statutory rules. Vide PLD 1974 SC 291 in the case of Khan Faizullah Khan v. Government of Pakistan, the Supreme Court of Pakistan held as follows:-- "This Court has stated on several occasions that even instructions contained in Memoranda issued by the appropriate Government could be regarded as being in the nature of statutory rules provided they are expressed with precision and yet possess generality so as to be capable of application to a large number of cases." (h) Article 38(c) of the Constitution of the Islamic Republic of Pakistan 1973 reads as follows:-- "The State shall provide for all persons employed in the service of Pakistan or otherwise, Social Security by Compulsory Social Insurance or other means." (k) Article 4(i) of the Constitution of the Islamic Republic of Pakistan 1973 reads as follows:-- "Right of individuals to be dealt with in accordance with law etc; (i) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan." (ii) The appellant was placed under suspension by respondent No, 1 on TelePrompTer vide his TelePrompTer Message No, 327/E, dated 11-3-1982 further modified vide his TelePrompTer Message No, 359/E, dated 18-3-1982. Neither the first nor the second teleprompter message contained any reference to subsistence allowance for the appellant during his period of suspension. In fact, respondent No, 1 did not pass any order about subsistence allowance for the appellant as long as he remained under suspension during the period 11-3-1982 to 19-5-1982. ' Keeping in view what has been stated in para. 9(i)(a) to (k) above, order of suspension dated 11- 3-1982 passed by respondent No, 1 did not fulfill the statutory requirements of rules, violated the basic principles of natural justice and was therefore void in law. It also disregarded Articles 4(i) and 38(c) of the Constitution of the Islamic Republic of Pakistan 1973. (iii) Keeping in view what has been stated in para. 9(i) and (ii) above, the impugned order dated 15-2-1986 is also void in law for the following reasons:-- (a) The impugned order dated 15-2-1986 allowing subsistence allowance to the appellant from 11- 3-1982 to 19-5-1982 when the appellant remained under suspension is based on order of suspension dated 11-3-1982 passed by the same respondent No, 1 nearly four years earlier. As explained at para. 9(ii) above, the order of suspension dated 11-3-1982 did not fulfill the statutory requirements of rules/law and violated the basic principles of natural justice and was therefore void in law. As the impugned order dated 15-2-1986 was based on the void order of suspension dated 11-3-1982, the impugned order dated 15-2-1986 shall also be treated as void and of no legal effect. ' According to PLD 1958 SC 104, the Supreme Court of Pakistan has ruled that subsequent orders based on void order have as little legal foundation as the void order on which they are founded. (b) The impugned order dated 15-2-1986 allowing subsistence allowance to the appellant for the period 11-3-1982 to 19-5-1982 was passed nearly 4 years after the last date of suspension period i,e,, 19-5-1982. ' This inordinate delay in sanctioning subsistence allowance nearly 4 years after the last date of suspension has negated and subverted the very concept of subsistence allowance. This allowance
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is required to be paid to a suspended civil servant to provide him and his family with means of subsistence during the period of his suspension and as long as he remains suspended when he is no longer entitled to regular monthly salary and when his guilt or innocence has yet to be established. ' In this particular case, the appellant could neither draw his monthly salary during the period 11-3- 1982 to 19-5-1982 when he remained suspended nor he was allowed any subsistence allowance to provide him and his family with means of subsistence during this period. Therefore, sanctioning of subsistence allowance to the appellant nearly four years after the suspension period cuts across the basic principles of natural justice. ' According to the well-recognized legal principles, any order in violation of the rules of natural justice is void in law. ' According to PLD 1975 SC 131, the Supreme Court of Pakistan has defined a void order as follows:- "A void order on the other hand is one which would render the proceedings quorum non-judice such as the one passed mala fide, without jurisdiction or in violation of mandatory provisions of law or against the principles of natural justice." (iv) According to PLD 1974 Lah. 434, the Lahore High Court has ruled that "void order will have no value whatsoever and is simply to be ignored." Again, vide PLD 1970 Lah. 6,. The Lahore High Court has ruled that "an act or an order which is a nullity has simply to be ignored." Therefore, void order dated 15-2-1986 allowing subsistence allowance to the appellant nearly 4 years after suspension period was over and the equally void order of suspension dated 11-3-1982 have simply to be ignored as though these orders were never passed. As a result, the appellant's period of service from 11-3-1982 to 19-5-1982 shall have to be treated as duty with full pay and allowances admissible to him under the rules ignoring the void order dated 11-3-1982 and 15-2-1986 as though these had never been passed. (v) Treating the appellant's period of service from 11-3-1982 to 19-5-1982 as suspension period was also not justified in the light of circular letter No, SO(XI)(S&GAD)5-7/62, dated 24-8-1962 which had the force of statutory rules. According to this circular letter "suspension should only be resorted to where it is essential" Further, suspension for corruption or misconduct should only be ordered in case major penalty was likely to be imposed. ' In this case, however, the proceedings against the appellant ended in a "minor punishment". 10. The impugned order dated 15-2-1986 passed by respondent No, 1 also refers to his order dated 23-12-1985 allowing the appellant subsistence allowance for the period 11-3-1985 to 22-12-1985 after the period of suspension was over. In this connection attention is invited to the following:-- (i) The original order of suspension dafed 11-3-1985 by respondent No, 1 on which his order dated 23-12-1985 was based reads as follows:-- "Mr. Irshad Ahmad, Sub-Engineer is hereby placed under suspension till further orders under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975." ' The above order of suspension did not allow any subsistence allowance to the appellant to which he was entitled during suspension. As already explained vide para. 9(i) and (ii) above payment of subsistence allowance is a mandatory provision of rules/law as long as the civil servant remains under suspension. (ii) The following references clearly show that no subsistence allowance was paid to the appellant throughout his prolonged period of…
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