1990 PLP 1783 (CLC)

(5) you were not competent to leave headquarter without the permission of the competent authority."

8. The first point for determination is whether the show‑cause notice was to be issued under section 12 (8) clause (iv) as argued by the learned counsel for the petitioner and learned Advocate‑General or it has been rightly issued under section 14 (2) of the Act, 1970 as maintained by Ch. Ijaz Ahmad, learned Advocate appearing for the respondents? Therefore, before proceeding further it is worthwhile to refer to the two provisions of law. The same read as under:‑ Section 12 (8). clause (iv): "The Controlling Authority may remove from service any employee of a Board: Provided that no such employee shall be removed, from service without being given an opportunity of being heard: . Provided further that where the Controlling Authority has initiated any such proceedings against any such employee, no other person including the Board shall have power to initiate any proceedings or take any steps in the matter:" Section 1.4 (21: "The officers of the Board shall hold office for a term of three years from the date of notification of their appointments and shall be eligible for re appointment for such further period, not exceeding three years, as may be specified in the order of re‑appointment: Provided that the Controlling Authority may, at any time review the work of the officers of the Board and if on such review it is satisfied that in the interest of the Board, or for any other sufficient cause, it is necessary to do so, it may, after giving an officer, an opportunity of showing cause against the proposed action, dismiss or remove him from service or reduce the term of office of any such officer by such period as it may determine:" 8‑A. Section 12 deals with the powers of the Controlling Authority which amongst others include disciplinary action against the `employees' as is clear from proviso to subsection (8) (iv). The same has been referred to and relied by the learned Advocate‑General as well as counsel for the petitioner. While section 14 deals with the `officers' of the Board and their tenure etc. it is clear from proviso to subsection (2) that Controlling Authority is vested with the powers to initiate s disciplinary proceedings against the Officers of the Board; The scope of sections 1A 12 and 14 is quite distinct. There is no overlapping between the two provisions. It is clear from the Scheme of the Act that the legislature has used two different terms for members of staff of a Board, namely, `officers' and `employees'. This matter becomes crystal clear if reference is made to clause (i) of subsection (8) of section 12 which reads as under; "(1) place the services of any of the officers or other employees of any Board at the disposal of the Government or any other Board or institution for such period and on such terms and conditions as may be determined by him provided that such terms and conditions shall not be less favourable than those admissible to him immediately before his transfer:" The legislature has used the term `officers' and `other employees' in this clause whereas in proviso to clause (iv) the word `employee' has been incorporated and in contradistinction to this the legislature in proviso to subsection 14 (2) of Act, 1976 has used the term `officer'. This provision has already been reproduced. The officers of the Board have been specified in section

13. It is therefore, clear that disciplinary proceedings against the officers have to be initiated under section 14. 1 am fortified in my view by the judgment of this' H Court in the case of Ch. Muhammad Bakhsh v. Government of Punjab through Secretary, Education, Government of Punjab and 2 others (P L D 1989 Lahore 175). In this case the petitioner, who belonged to the Education Department was on deputation with Sargodha Board of Secondary Education as Controller of Examinations. There were certain allegations against him as a result, thereof, notification curtailing 3 year's; tenure and ordering his repatriation was issued. The notification was struck down because it was issued without complying with the mandatory requirement as to showing cause. The Board otherwise was held competent to take action under section 14 (2) ibid. Therefore, there is no merit in the argument of the learned counsel for the petitioner as well as of the learned' Advocate‑General that no action can be taken against the petitioner under section 14 (2) of Act, 1976 and proceedings are coram non judice.

9. The next submission on behalf of the petitioner was that the whole proceedings are mala fide and even earlier he was retired on the pretext that he has attained the age of superannuation. The petitioner successfully challenged this order through Constitutional petition. The respondents Nos.1 and 2 have now started disciplinary proceedings. On the other hand learned counsel for respondents No.l and 2 submitted that the respondents are simply discharging their official duty strictly in accordance with law and there is no malice or mala fides. In this behalf he has referred to the case of East Pakistan v. AI‑Haaj Maulvi Muhammad. Yasin Qureshi and another P L D 1964 S C

438. The action against the petitioner prima facie appears to be taken in good faith and in exercise of', powers lawfully vested in the respondents. Even the question of mala fides can be raised by the petitioner before the Deptt. authorities and ultimately in the appeal before Punjab Service Tribunal.

10. Now coming to the merits of the charges forming part of show cause, it is clear from the arguments of both sides and reference to provisions of law and regulation that at least some of the charges subject‑matter of show‑cause notice are prima facie actionable but any deliberation by this Court at this juncture is neither desirable nor legal because on the one hand it will prejudice the case of the either party and on the other hand it will amount to pre‑empting the jurisdiction of the departmental authorities. It is for this reason that 1 have avoided to record any findings as to the merits of the charges forming part of the show‑cause notice. It is made clear as abundant caution that any observation as to the merits of the charges shall not be binding on the departmental authorities. I again may refer in this behalf to the judgment of this Court in the case of Ch. Muhammad Bakhsh. The relevant portion reads as under: "13 I have purposefully desisted from commenting upon the merits of the allegations levelled against the petitioners, to avoid any observation which may prejudice the case of either side. It is for the Inquiry Officer or the Authorities, which are dealing with the disciplinary action, to decide the question of truth or falsehood of the allegations on the basis of material before them."

11. This is not all. The petitioner is admittedly an officer of the Board and the matter pertains to Terms and Conditions of his service, therefore if any adverse order is ultimately made against him then he can assail such adverse order in a departmental appeal etc. The learned counsel for the petitioner tried to justify the resort to present Constitutional petition with the submission that the petitoiner cannot maintain an appeal against the impugned show‑cause notice. This will not change the legal position. I 'am fortified in my‑view by the judgment of Supreme Court of Pakistan in. the case of Abdul Wahab Khan v. Government of Punjab and 3 others (P L D 1989 S C 508). In this case, civil servant was facing departmental enquiry under Punjab Civil Servants (E&D) Rules, 1975. The then Additional Chief Secretary, Government of Punjab was appointed as authorised officer in relation to the enquiry but he did not want to act as such, therefore, reported the matter to the authority for appointment of another authorised officer. Thereafter Secretary, Services was appointed as an authorised officer. The civil servant objected to this appointment but without success. He thereafter challenged this order in the Constitutional jurisdiction of this Court but the same was dismissed. Thereafter he filed I.C.A. No.l/88. The same was also dismissed. He being still not satisfied took up the matter to the Honourable Supreme Court. His petition was dismissed and relevant portion of the judgment reads as under:‑‑ "Even without such observation, the petitioner is entitled to seek remedy in regard to the filing of appeals. The petitioner would have to satisfy all the conditions for filing such an appeal. One of the conditions being that the order impugned before the Tribunal should be such which is appealable in accordance with relevant Service Tribunals Act. But the order impugned before the High Court vis‑a‑vis the stage at which it has been passed, is not appealable, the petitioner would have to wait till such an order is passed against him which is appealable before the Tribunal. With these observations, this petition is liable to be dismissed. Before closing, it needs to be observed that the bar of jurisdiction of the High Court in service matters, contained in Article 212 of the Constitution, has also been spelled out by this Court in a recent decision in the case of S.P. Lahore v. Muhammad Latif A S I (Civil Appeal No. 677 of 1984, decided on 19‑4‑1988) P L D 1988 S C 387." The learned counsel for the petitioner was the author Judge of the judgment passed in I.C.A. No. 1/88 filed by Abdul Wahah Khan. The relevant portion of the same reads as under: "He, therefore, contends that the Secretary (Services) could not be appointed as an Authorised officer and cannot act as such. The petitioner is yet to face the inquiry and if he is penalised he has a statutory right of appeal before the Punjab Services Tribunal. Therefore, if the authorised officer or the authority does not act in accordance with law the petitioner can challenge the penalty, if imposed, before the appellate authority not only on merits but also on this legal objection and similar right and opportunity will be available to him if he has to go to the Services Tribunal. As the petitioner will have the said remedies available to him the writ petition is not maintainable and has rightly been dismissed. The I.C.A. is, therefore, dismissd in liming." I therefore, hold that this petition is legally not competent.

12. The learned, counsel further submitted that conduct of the petitioner is not fair firstly because he himself represented to the Controlling Authority that he has got the casual leave sanctioned and secondly his only effort is to avoid the consequences of his illegal action. It is, therefore, submitted by him that this petition should be dimissed. In this behalf he has referred to Chief Settlement Commissioner v. Raja Mohammad Fazil Khan and others (P L D 1975 S C 331), Wali Muhammad and others v. Sakhi Muhammad and others (P L D 1974 S C 106), Tufail Muhammad and others v. Muhammad Zia Ullah Khan and others (P L D 1965 S C 269) and Abdur Rashid v. Pakistan and others (1969 S C M R 141).

13. Suffice it to observe that the petitioner is being dealt with in accordance with law. Therefore, question of mala rides does not arise and in any case if he suffers any illegality at the hands of the departmental authorities, then he can E ‑‑make grievance of the same before the authorities specified under the law. The respondents cannot be restrained from discharging their legal functions under the law.

14. Before parting with the judgment it is worthwhile to mention here that respondents Nos.1 and 2 in obedience to the orders of this Court submitted reports wherein they clearly contested the petition. This is not all. They engaged Ch. Ijaz Ahmad, Advocate, to defend their action but the learned Advocate‑ General while appearing on behalf of the respondent No.2 argued that the action is illegal. It is for the Government to take measures that in future such situation does not recur. The issues have been decided on their merits, firstly, because there is no estoppel,' against law, secondly it is the duty of the Court to decide the causes in accordance with law and conicessional statements cannot furnish valid basis.

14. The other matter which also requires attention is that the petitioner requested for issuance of `No Objection Certificate' to proceed for Umra. While Mr. Muhammad Rafiq Bajwa, Section Officer (Board) issued the memo dated 20‑12‑1989 for grant of International Passport. The concerned official is clearly guilty of inefficiency and gross negligence. The request of the petitioner was only spread over five lines, therefore, there was no question of any misgivings as to the request of the petitioner. It clearly shows the inefficiency and lack of interest in the discharge of the duties by the concerned official. This is not all. The petitioner did proceed and perform Umra but Immigration. authorities failed to check whether the petitioner has been granted `No‑Objection Certificate' to leave Pakistan or not. This way they also failed to discharge their duty. If the grant of `No‑Objection Certificate' is to be given this importance by the concerned officials, then it is better to do away with this formality. Let copy of this judgment be sent to the Chief Secretary, Govt. of Punjab, as well as Secretary, Interior, Government of Pakistan.

15. The upshot of the above discussion is that prima facie there is nothing wrong with the show‑cause notice. The petitioner can raise all sorts of pleas in defence‑before the concerned authorities and in case of any adverse Finding being made against him he will have other adequate remedy by way, of departmental appeal etc. Where he can agitate all these points. The result is that this petition is misconceived and incompetent, therefore, dismissed in limine. H.B.T./G‑350/L Petition dismissed.