Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUBARIK AHMAD MALIK VS Respondent: FEDERATION OF PAKISTAN
1980 P L C (C
1980 P L C (C. S.) 418
[Service Tribunal Punjab]
Present: Saleem Chaudhry, Chairman and Khalid Faruq, Member
MUBARIK AHMAD MALIK AND 4 OTHERS
Versus
FEDERATION OF PAKISTAN AND 2 OTHERS
Appeals Nos. 151/56, 233/36, 71/52, 283/6 of 1977 and 12/38 of 1978.
(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 ---
‑‑‑‑ R. 5‑Departmental proceedings ‑ Initiation of Competent authority to apply its own independent mind‑Matter initiated under instructions of extranuous /higher authorities without any choice or part of competent authority‑Not valid‑Proceedings initiated against Provincial Civil Servants in compliance with posi tive directions of Federal Government leaving a stark choice to Pro vincial Government to retire compulsorily or remove‑Proceedings, held, invalid and eventual order also not sustainable‑Constitution of Pakistan (1973), Art. 149.
Syed Fayyaz Hussain Qadri v. The Administrator, Lahore Municipal Corporation, Lahore P L D 1972 Lah. 316 ; 1977 P I. C (C. S. T.) 99 and P L D 1961 Pesh. 152 rel.
(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 ----
‑‑ R. 6 (3)‑Recourse to show‑cause notice‑Dispensing with enquiry‑Discretion not entirely arbitrary‑Reasonable discretion to be exercised objectively‑Allegations already subjected to informal enquiries and probes and disproved‑Show‑cause notice issued thereafter on basis of such charges dispensing with formal enquiry-- Discretion, in circumstances, held, exercised arbitrarily and not reasonably.
Dost Muhammad v. Deputy Commissioner, Multan, etc. 1978 N L R 10 rel.
(c) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑
‑‑‑‑ Rr. 2 (I), 2 (2), 2 (3) read with Punjab Government Rules of Business, 1974 and Constitution of Pakistan (1973), Arts. 129 & 139‑Provisions of Arts. 139 of 1973 Constitution‑Re-arrangement of provisions of Arts. 80 & 81 of 1962 Constitution and Arts. 102 & 106 of 1972 Constitution‑No substantial change or departure in transaction of Government Business‑Show‑cause notice issued by Chief Secretary against a Provincial Government Civil Servant in whose case powers to inflict minor punishment stood delegated to other departmental authority/officer, held, not objectionable.
P L D 1973 Lah. 220 rel.
Law Notes 1971 Lah. 395 ; P L D 1977 Lah. 442 and 1975 P L C (C. S. T.) 99 ref.
(d) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑
‑‑‑ Rr. 6 (3) (a), (b) & 8 ‑ Show‑cause notice‑‑Opportunity of defence‑Date of personal hearing advanced without any justifica tion‑Notice received only one day before date of personal hear ing‑Accused refused access .to relevant material‑Hearing lasting not for than two minutes‑Defence opportunity, in circumstances, held, not reasonable and proceedings and orders passed eventually invalid.
Muhammad Mazhar v. Secretary, Agriculture, Punjab N L R 1978 Service 314 ; Haq Nawaz v. Province of the Punjab P L D 1976 Lah. 1013 ; P L D 1955 Sind 250 ; P L D 1957 Lah. 925 and P L D 1963 Lah. 295 ref.
(e) Civil services‑
‑‑ Disciplinary action‑Mala fide‑‑Contention of ‑ Compulsory retirement challenged on plea of mala fide‑Factual mala fide against competent authority himself must be alleged and established.
P L D 1973 Lah. 220 fol.
(f) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 ‑
‑‑‑ Rr. 8 & 19 read with West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 and Notification No. SOIV (S & GAD) 5‑52/63 dated 25th October, 1969‑Personal hearing‑ Chief Secretary‑Competent to grant personal hearing to civil servant whose punishing authority is Government.
Masood Ahmad Riaz for Appellant No. 1.
Ch. Riasat Ali for Appellant No. 2.
Muhammad Aslam Virk for Appellants Nos. 3 and 4.
Abdul Aziz for Appellant No. 5.
A. G. Humayun, Government Pleader for Respondents.
ORDER
M. SALEEM CHAUDHRY (CHIRMAN).‑By these five appeals, three ex P.C.S. officers, an ex‑Divisional Forests Officer and an ex‑Executive Engi neer (Public Health Engineering Department) seek to assail their retirement orders dated 30th of October, 1976, passed by the Government of the Punjab, under the Punjab Government Servants (Efficiency and Discipline) Rules, 1975 (hereinafter referred to as E. & D. Rules, 1975). They are also aggrieved by the order of the Government of the Punjab rejecting their Review Petitions against the same. Since these appeals involve the com mon questions of law and somewhat similar facts, the same are, therefore, disposed of by one common judgment. The facts so far as relevant and material to these appeals are that on 13th of October, 1976, the Government of Pakistan, vide letter No. 1661/JSF/76, dated 13th October, 1976 deputed Mr. Abdul Aziz, Joint Secretary, Establishment Division, who passed on the information received by the Federal Government, against various officers including the appellants to the Government of the Punjab, with the following directions:
"2. You are advised to take appropriate disciplinary action against these officers. Where an officer has completed 25 years' service qualifying for pension or other retirement benefits, he may be retired under the Civil Servants Act.
This letter is being sent through Mr. Abdul Aziz, Joint Sec retary, Establishment Division, to ensure safe delivery and due secrecy. He will also render such assistance as may be requir ed of him for expeditious action in these cases."
The details of the allegations relating to the present appellants as contained in annexure to the aforesaid letter were as under :‑
(1) Mr. Muhammad Aslam Virk.
(i) Notoriously corrupt, drun kard and a womaniser.
(ii) Released an accused involv ed in charges/opium smuggl ing case after accepting Rs. 60,000 and a Toyota Car, as illegal gratification.
(iii) Accepted Rs. 20,000 as bribe in a murder case and released the accused.
(iv) Is mixed up with bad‑char acters. The allegations are under enquiry with A. C. E., Punjab.
(2) Mr. M. R. Khalid
(i) Reputed to be corrupt.
(ii) Presently serious allegations of corruption, misuse of official position and accep tance of bribe for allotment of land, in the names of fictitious persons, are under enquiry with the A. C. E., Punjab.
(3) Mr. Muhammad Ishaque Mr. Aslam Sahee, District Engineer, Jhang (NOT APPELLANT)
(i) In collusion these two officers have misappropriat ed large Government funds.
(ii) Ch. Muhammad Ishaq transferred rupees 22 lacs to Habib Bank from P. W. D. Funds in contravention of Government instructions.
(4) Ch. Muhammad Zafarullah Khan
(i) He is involved in case F.I.R. No. 15, dated 28th October, 1975 under section 409/ 109 P. P. C. and 5(2) 47 P.C.A. P. S/A.C.E. Sargodha. The allegations pertain to misappropriation of Govern ment property amounting to Rs. 1,65,000. Case is un der investigation with A.C.E., Punjab.
(5) Mr. Mubarik Ahmad Malik
Misappropriated G.I. Pipes of the value of Rs. 1,15,805. Case is under investigation with A.C.E., Punjab.
3. Since none of the appellants had completed 25 years service, the action, against them was initiated under the Efficiency and Discipline Rules, 1975, and they were straightaway served with show‑cause notices dated 16th of October, 1976, presumably under rule 6 (3) (a) of the Efficiency and Discipline Rules of 1975, proposing the imposition of a major penalty upon each of them. They filed the replies in which the allegations were denied, but these appeared to have failed to find favour with the authorities. Initially, vide notice dated 28th October; 1976, they were called upon to appear on 3rd November, 1976 for personal hearing before the Chief Secretary to Government, Punjab. But by another notice even dated, the date for personal hearing was accelerated to 30th October, 1976. They appeared before the Chief Secretary, Punjab, on 30th October, 1976, and on the same day by the impugned orders, they were compulsorily retired from service, with immediate effect. It appears that they approached the Government in Review which was also rejected. Hence these appeals before us. As regards their service details, Mr. Muhammad Aslam Virk joined service as a Lawyer Magistrate in February, 1954, and was retired on the 30th of October, 1976 when he was holding the Senior Scale admissible to the members of the Civil Service of Pakistan. Similarly, Mr. M. R. Khalid and Ch. Muhammad Ishaque, were appointed to the Provincial Civil Service, through the Public Service Commission, on 19th August, 1955 and in 1960 respective ly. At the time of retirement on 30th of October, 1976, they were also in the Senior Scale admissible to the members of the Civil Service of Pakistan. Mr. Muhammad Zafarullah Khan, ex‑Divisional Forests Officer, joined service as Assistant Conservator of Forests in 1963. He was holding the rank of Divisional Forests Officer, at the time of his retirement, on 30th of October, 1976. The last officer Mr. Mubarik Ahmad, ex‑Executive Engineer, Public Health Engineering Department, was appointed as Sub‑Divisional Officer, on 25th October, 1960, in the Punjab Health Engineering Department and was promoted as Executive Engineer on the 14th of October, 1965, which rank he held till the date of his retirement, i.e. 30th of October, 1976. These appeals were sought to be supported inter alia on the following contentions :‑
(1) That the impugned orders were passed by the Provincial Government at the behest of the Central Government, who had detailed Mr. Abdul Aziz, Joint Secretary, Establishment Divi sion, Government of Pakistan, with the pre‑ordained result. According to the appellants the course adopted by the Federal Government besides being illegal and un-precedent betrayed lack of bona fide. The above apprehension was fully confirmed by Mr. Abdul Aziz's unauthorised participation on 18th October, 1976, in the proceedings against the appellants and also by the fact that he did not leave Lahore until the task was accomplished in entirety. Thus it is submitted that the Provincial Government simply complied with the complied received from the Central Government. As such, there was no order passed by the Provincial Government in the eye of law.
(2) That the proceedings against the petitioner had been initiated, conducted and concluded by the Chief Secretary himself who was neither the Competent Authority, nor the Authorised Officer, under the provisions of the Punjab Government Servants (E. & D.) Rules, 1975. It constituted the violation of rule 5, which vitiated the impugned orders ;
(3) That it was incumbent under rule 6(3) of the Efficiency and Dis cipline Rules to pass speaking order consciously indicating the reasons for dispensing with the enquiry. In this case the enquiry had been dispensed with arbitrarily and without complying with the requirements of rule 6(3) of the E. & D. Rules which render ed the entire proceedings as void.
(4) That if the allegations were subjected to proper investigation the same could have been proved totally baseless ;
(5) That according to the appellants, in most of the cases the same allegations had, in fact, been the subject‑matter of departmental enquiries which had already been held and in which the appel lants stood exonerated or were eventually exonerated after pro per enquiries. In view of the above factual background the enquiry envisaged by rule 6 was rather indispensible and the failure‑ of the authorities in this regard rendered the proceedings illegal and void ;
(6) That the show‑cause notice served upon the appellants was vague as it did not contain the details of the allegations which resulted in material prejudice to the appellants while defending themselves against the same. The notice also failed to specify the penalty proposed against the appellants. There were number of major penalties specified in rule 4(1) (b) of the E. & D. Rules and any of them was required to be specified in the notice in terms of rule 6(3) (a) of the said rules.
(7) That the appellants were denied the reasonable opportunity to defend themselves. It was reiterated that failure to hold an enquiry or to specify the precise penalty proposed in show‑cause notice has resulted in the denial of reasonable opportunity to the appellants. It was further submitted that the notice failed to disclose the grounds of action as required under rule 6 (3) (a) of the E. & D. Rules. The appellants also made the grievance that initially on 28th of October, 1976, the notice was issued for personal hearing by the Chief Secretary to Government, Punjab, for 3rd of November, 1976, but on the same day, without any justification, the date of hearing was advanced to 30th of Octo ber, 1976, which was too short a notice. It was alleged that even the hearing was a mere farce which hardly lasted for the minutes in each case and also they were not provided any details or access to the records to know the real case against them despite persistent demands. In some cases they were simply told the information was secret and the same could not be dis closed to them. According to the appellants, the hearing was mere formality and in fact the orders were handed over to them as if the same were lying ready for delivery ;
(8) The appellants argued that in fact there was no material avail able on record to substantiate the allegations levelled against them. It was submitted that they had been condemned on the basis of mere allegations ; and
(9) Lastly, the appellants alleged mala fide on the part of Govern ment or against their superior officers.
4. In elaboration of the first point, it was submitted that the direction issued by the Federal Government was uncalled for inasmuch as the Federal Government under the law had no powers to decide the fate of the Civil Servants of the Punjab. Thus the action of the Federal Govern ment fell beyond the scope of the lawful authority vesting in them. According to the appellants none of the Provincial Civil Servants whose names were included in the list escaped removal or retirement which left no doubt that the Provincial Government complied with the directions of the Central Government without applying their own mind to the merits of each case. According to the appellants, the direction of the Government dated the 13th of October, 1976, left no choice for the Pro vincial Government. In fact, the presence of a Joint Secretary from the Central Government fully endorsed the apprehension of the appellants that he had been commissioned to see that the directive of the Federal Government was tamely complied with. Thus the order passed by the Provincial Government was no order in the eyes of law. In fact before the Provincial Government could be taken into confidence, the Chief Secretary, Punjab, on the behest of the Federal Government had already initiated the action which was totally in excess of the aforesaid authority. The following extract from (pages 75‑76) the White Paper Published by the Federal Government of Pakistan was also relied upon:
"Mr. Bhutto decided in 1976 to resort to large scale dismissals as part of his election strategy to break the morale and spirit of the services well in time for the general elections, The details of this operation are of some interest. This was the second purge of his six‑year old regime. He indicated that 200 persons should be retired/removed from service. Sub sequently, this figure was reduced to 100. The actual 'bag' was about an exact/mean of these two targets, and eventually 158 persons were served with orders of retirement/ termination of service or show‑cause notice in October, 1976. It is characteristic that he was concerned not with the merits or demerits of the unfortunate individuals involved but only with a round figure of casualties.
The plan prepared by the Establishment Secretary under Mr. Butto's orders was that all retirement orders, as well as the show‑cause notices, and also the orders of termination of service be served simultaneously on 16th October, 1976, on selected employees of the Federal Government as well as the Provincial Government and autonomous corporations. The retirement orders were to become effective forthwith, while 7 days were; given for replies to the show‑cause notice. The cases falling in show‑cause category were to be retired on. October 30th, 1976, and, except for a few cases, these deadlines were duly observed. The lists of Provincial Government officers who were to be retired were taken to the Chief Secre taries concerned at Lahore, Karachi and Peshawar (there were no names from Baluchistan) by officers specially deputed for the purpose by the Establishment Secretary. On 14th Octo ber, 1976, the Establishment Secretary had informed the Chief Secretaries on telephone about the retirement plan (without giving the names) and asked them to be on the alert. The officers deputed for the purpose reported to the Chief Secre taries on 15th October, 1976, and the whole exercise was gone through with clock‑like precision. The retirement orders and show‑cause notices were served on all 158 officers on 16th October, 1976 either early in the morning at their residences, or in their offices before 1200 hours. In case of some outlying stations, orders were delivered through special messengers or express telegrams or wireless messages. The anxiety of the Establishment Secretary that the exercise should go through smoothly and the stipulated time‑table be fully observed was made known to the concerned quarters, and they all reacted accordingly.
Why this sizable `sack' was rushed through at top speed with such meticulous care and secrecy and why certain dead lines had been fixed, can well be surmised. This time‑table was not conceived in isolation. It formed part of an overall election strategy which, from October, 1976 to December, 1976, included observance of various `weeks' (Service Week, Students Week, Women's Week, Labour Week etc.). These weeks were, actually, Mr. Butto's pre‑election mass contact campaign. The retirements, too, had to be attuned to this campaign ; timed neither too near, nor too far away from the elections. They were to be just at the right time, so that everyone in the administration got the priorities clear and could play his part in getting the appropriate results at the poll."
5. In this behalf the following observations of Lahore High Court in Syed Fayyaz Hussain Qadri v. The Administrator, Lahore Municipal Cor poration, Lahore (P L D 1972 Lah. 316), were cited :‑
"When a statute confers a certain duty on an officer it is that officer who has to make up his mind and pass the order in accordance with law and exercise his discretion uninfluenced by any opinion of his superior officers. It was held in B. S. Industries v. Deputy Registrar, Trade Marks that even an Executive Officer when he performs a statutory function is not to be influenced by any direction from any quarter."
The following observations from 1977 P L C (C.S.T.) 99 were also cited to support the contention :‑‑
"The impugned order was admittedly passed by the Director. Agriculture, and not by the Agricultural Engineer who was the competent authority for passing such an order and the law provided mutual independence of views and action between the Agricultural Engineer and the Director, Agriculture, by designating the latter as the appellate authority from the orders of the Agricultural Engineer. We have reached the conclusion that the impugned order dated 27th March, 1972 passed by the Director, Agricultural Engineer, Lyallpur, was bad in law and as such is void and of no effect ab initio."
6. The decision of Peshawar and of West Pakistan High Court, P L D 1961 Pesh. 152, was also relied upon. The following extract for the above authority was cited to support the contention:
"When the law requires that an order should be made by a parti cular authority, the requirements are that that authority must exercise its own independent judgment while giving the decision and not blindly follow a line laid by some other extraneous authority, however higher in rank and status it may be. If an official functionary, who is under a legal obligation to come to his own judgment to a matter allows himself to be completely swayed by someone else and accepts his verdict by towing the dotted line without giving his own independent thought to the matter, the only safe conclusion to be drawn is that such official functionary has allowed his will to be sub stituted by that of the other. The decision thus made is not his decision, having been imposed on him by an extraneous authority which he has not been able to resist."
7. In support of the second contention raised by the appellants, they argued that the Chief Secretary was not the Authority or the Authorised Officer, as defined in rule 2 of the E. & D. Rules, 1975, which is as follows :‑‑
"2.‑(1) In these rules, unless the context otherwise requires‑
(a) * * * *
(b) "authority" means the Government or an officer or authority designated by it to exercise the powers of the authority under these rules.
(c) "authorised officer" means Government or an authorized officer under these rules.
(2) * * * *
(3) The various authorities empowered to award major puni shments under the various Delegation of Powers Rules, shall, in respect of civil servants to whom they are competent to award major punishment, exercise the powers of `the authority' under these rules and the authorities empowered to award minor punishment under the said Delegation of Powers Rules, are in respect of the civil servants to whom they are competent to award minor punishment authorised to exercise the powers of (Authorised Officer) under these rules."
8. Relying upon the above, it was submitted that in absence of any notification specific authorisation the Chief Secretary could not exercise the powers of Authorised Officer, unless as laid down in rule 2(3) above, he 'was empowered to levy minor punishment under the relevant Delegation of Powers Rules, relating to the appellants. According to the provisions in the Delegation of Power Rules, in the case of P. C. S. officers, Government alone were competent to award major as well as minor penalty. As regards Ch. Muhammad Zafarullah Khan, ex‑Divi sional Forests Officer, the competent authority to impose a minor penalty was the Chief Conservator of Forests, Punjab, and the major punishment could be imposed by the Government. Similarly, in the case of Mr. Mubarik Ahmad, the Chief Engineer, was competent to impose a minor penalty and the Government was the competent authority to impose a major punishment. Thus in no case the Chief Secretary, Punjab, was 4the authority' or the "Authorised Officer". The appellants also argued that the Chief Secretary, Punjab, was not the Government. In this behalf, reliance was placed on the description of the Government, as contained in Article 129 of the Constitution of Pakistan of 1973, which was to the of lowing effect :‑‑
"(1) Subject to the Constitution, the executive authority of the Province shall be exercised in the name of the Governor by the Provincial Government, consisting of the Chief Minister and Provincial Ministers, which shall act through the Chief Minister.
(2) In the performance of his functions under the Constitution, the Chief Minister may act either directly or through the Provincial Ministers.
(3) * * * *
9. We were also taken through the provisions contained in section 49 of the Government of India Act, 1935, Article 73 of the Constitution of Pakistan, 1956, Article 80 of 1962 Constitution and Article 102 of the Constitution of Pakistan 1972 that the aforesaid provisions authorised the exercise of the executive authority of the Province concerned even through the subordinate authorities. But Article 139(2) made significant depar ture as the `Delegations of Powers' as distinct from its functions was not permissible. Argument was sought further to be reinforced by drawing a contrast from the Notification No. S.R.O. 1562(1)(73, dated 10th October, 1973, issued by the Federal Government empowering Mr. Vaqar Ahmad, Establishment Secretary to act as Authorised Officer to respect of Grade 17 to 20 officers of the Federal Government. The appellants argued shat it clearly established the necessity of a Notification apart from the provisions in the Rules of Business, for vesting the Establishment Secre tary with the status of Authorised Officer although the Rules of Business of the Central Government were identical as framed by the Provincial Government. Thus according to the appellants, the Chief Secretary, Punjab, could not act as Authorised Officer or as Authority. Since he had not been authorised as such, the show‑cause notice issued and the proceedings initiated at his instance, were without jurisdiction. The appellants also argued that since the entire proceedings had been incom petently initiated, therefore, the consequent final orders passed were a nullity.
10. With regard to points 3, 4 and 5 the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.