1990 PLP (CS (PLC(CS))

3‑A. On 11‑4‑1981, the Deputy Director, Health Services, Bahawalpur made an order transferring the petitioner from Jubilee Family Hospital, Bahawalpur to Integrated Rural Health Complex, Uch Sharif, District Bahawalpur. This transfer order was despatched on 17‑4‑1981 and is alleged to have been received by the petitioner on 29‑4‑1981. She made a representation against the transfer on the grounds of health. On 21‑5‑1981, her representation was forwarded to the Director by the Deputy Director, Health Services, Bahawalpur, who later made an order cancelling the transfer of the petitioner from Jubilee Family Hospital, Bahwalpur to Health Complex, Uch Sharif on 21‑7‑1981.

4. It has been averred that the petitioner remained ill from 22‑4‑1981 to 20‑9‑1981 and during this period medical certificates duly countersigned by the Medical Superintendent, Services Hospital were procured and sent to the competent authority. On 21‑9‑1981, she was declared medically fit for light duty and on the same day she reported for duty.

5. Thereafter she made several representations for issuance of her posting orders but without success. She then filed Writ Petition No. 6012 of 1981 before this Court. In that writ petition on 25‑1‑1983, the learned counsel representing the respondent namely Syed Iftikhar Hussain Shah made a statement that the petitioner was treated on medical leave upto 21‑9‑1981 and from thereafter she was being treated absent from duty for which she was being proceeded against under Efficiency and Discipline Rules. It was observed by this Court that on account of having been treated on leave till 21‑9‑1981, one of her grievances disappeared and in regard to the second part of her grievance the writ petition was pre‑mature as she would have enough opportunity to substantiate her pleas and put up her defence during the course of disciplinary proceedings sought to be initiated against her. With these observations that writ petition was disposed of.

6. On 21st November, 1982, Director, Health Services, Punjab, Lahore, served a show‑cause notice (Annexure `A') on the petitioner intimating her that he (Director, Health Services, Punjab) in his capacity as Authorised Officer has been directed by the `Authority' to proceed against her under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 on the following allegations:‑‑ (1) "You were transferred from J.F. Hospital, Bahawalpur on 11‑4‑1981 and posted at Rural Health Complex, Uch Sharif but you did not join your new place of posting and instead sent an application for leave from 12‑4 1981 to 21‑4‑1981 which was rejected by the Deputy Director, Health Services, Bahawalpur Division, Bahawalpur. (2) You submitted a Medical Certificate for the period from 12‑4‑1981 to 20‑9‑1981 which was countersigned by the Medical Superintendent, Services Hospital, Lahore. After 20‑9‑1981 you sent no application and continued to remain absent from. duty without proper sanction, which amounts to misconduct under Rule 6(3) (misquoted for Rule 2(1)(d)] of the E & D Rules, 1975." She was, therefore, called upon to show cause in writing within 10 days of the receipt of the communication as to why one or more of the penalties as prescribed in Rule 4 of the Punjab Civil Servants (E&D) Rules, 1975, should not be imposed upon her.

7. The petitioner submitted reply in writing (Annexure 'B') to the show -cause notice on 10‑1‑1983. After considering the reply to the show‑cause notice given by the petitioner, the Authorised Officer viz. the Director, Health Services, Punjab, observed that it appeared that all that had happened was due to some misunderstanding. The petitioner was sufficiently senior officer. She had joined duty at the Integrated Rural Complex at Uch Sharif. The case was, therefore, referred to the Authority with the recommendations that the petitioner might be exonerated of the charge and the period from 21‑4‑1981 to 31‑1‑1983 might be treated as leave on due basis. It was further recommended that she might be warned to be careful in future. The relevant portion of the recommendations of the Authorised Officer as contained in his letter dated 21‑2‑1983 (Annexure `C') reads:‑ "I have given due consideration to her reply and statement at the time of personal hearing. From the position explained by her in her reply to the show‑cause notice and the facts stated by her at the time of personal hearing it appears that all this happened due to some misunderstanding. She is a sufficiently senior officer. She has now joined duty at the Integrated Rural Health Complex, Uch Sharif, Distt: Bahawalpur on 1‑2‑1983, and has thus complied with the orders of her transfer. Therefore, the case is referred to the Government (Authority) with the recommendations that she may be exonerated of the charge and the period from 12‑4‑1981 to 31‑1‑1983 may be treated as leave on due basis. However, she may kindly be warned to be careful in future."

8. The Authority viz. the Government of the Punjab instead of acting upon the recommendations of the Authorised Officer imposed major penalty of compulsory retirement on the petitioner through the impugned order, of course, after affording her an opportunity of personal hearing. Thus the present writ petition.

9. It has been urged on behalf of the petitioner that jurisdiction of the Authority in the petitioner's case was not attracted as the Authorised Officer did not take a decision that major penalty should be imposed on the petitioner and he did not make such recommendations to the Authority.

10. In case the Authorised Officer decides not to hold an enquiry and serves a show‑cause notice on the accused officer as has been done in this case under sub‑rule (3) of Rule 6 of the Punjab Civil Servants (E & D) Rules, 1975, he is required to forward the case to the Authority only in the eventuality of arriving at the conclusion that the circumstances warranted imposition of major penalty on the accused official/officer. In case a minor penalty is sought to be imposed or no penalty is required to be imposed the case is not to be referred to the Authority as the Authorised Officer himself is competent to impose the minor penalty. If the Authorised Officer finds that major penalty is required to be imposed he has to obtain the explanation in writing of the accused officer after intimating him that he intended to recommend imposition of major penalty on him. Thereafter the case is to be referred to the Authority alongwith written explanation of the accused officer thus obtained. In the present case no such explanation has been obtained. As a matter of fact the Authorised Officer did not recommend imposition of major penalty on the petitioner. He only recommended that the petitioner should be warned to be careful in further. Warning is not even a minor penalty within the meaning of the Punjab Civil Servants (E & D) Rules, 1975, although `censure' is a minor penalty under the said rules.

11. In a case where enquiry officer/enquiry committee is appointed by the Authorised Officer to enquire into the allegations levelled against an accused officer/official then after receipt of the report of the enquiry officer/enquiry committee as the case may be, the case has to be referred to the Authority in case major penalty is sought to 6e enforced or even ' it is recommended that the enquiry should be dropped. This is so provided in Rule 7‑A ibid. It is noteworthy that Authority as also the Authorised Officer are two different entities under the p Punjab Civil Servants (E&D) Rules, 1975, and they have to exercise jurisdiction exclusive of each other. Authority's jurisdiction is attracted only if the case of an accused officer is reported to the Authority by the Authorised Officer for imposition of major penalty particularly in a case where instead of holding the enquiry a show‑cause notice is served on the accused under sub‑rules (3) of Rule 6 ibid. In the circumstances of this case when the Authorised Officer, after obtaining written reply to the show‑cause notice served on the petitioner under Rule 6(3), found that no major penalty was required to be imposed, the Authority could not exercise jurisdiction in the matter of imposition of major penalty of compulsory retirement, particularly, when the Authorised Officer had not obtained explanation of the petitioner, after informing her that he proposed to recommend imposition of major penalty on her. No such explanation was forwarded by the Authorised Officer to the Authority alongwith the petitioner's case. In such circumstances, the Authority could not lawfully impose major penalty on the petitioner only after affording her an opportunity of personal hearing. The impugned action taken against the petitioner is, therefore, violative of the Punjab Civil Servants (E&D) Rules, 1975 and is without lawful authority.

12. It has also been noticed that the petitioner has since been made payment of salary for the period from 1‑7‑1981 to 24‑1‑1983 as transpires from the contents of certificate issued by the District Accounts Officer, Kasur. This has been done pursuant to a communication bearing No. SOII/M.O/2‑22/77, dated 19‑1‑1987 of the Health Department, Government of the Punjab. This means that the period for which major penalty has been imposed upon the petitioner through 1 the impugned order on the ground that during this period she remained absent from duty has, in fact, been treated as period spent on duty and she has already been made payment of salary for that period. Therefore, the question of imposition of major penalty for that period does not arise.

13. Needless to add that when the order has been made by the Authority without jurisdiction and without lawful authority, the order is virtually coram‑non judice and in regard to such order jurisdiction of the High Court is not barred under Article 212 of the Constitution of Pakistan, 1973, on the ground that the matter being the one pertaining to the terms and conditions of service of a civil servant fell within the exclusive purview of the Services Tribunal. 13‑A. For the foregoing conclusions, this writ petition is allowed and the impugned order is held to be without lawful authority and of no legal effect. There shall, however, be no order as to costs. M.Y.H./S‑577/L Petition allowed.