P L D 1966 (W (PLP)

These were framed by the Governor in exercise of the powers conferred by section 47 of the B. D. Order (P. O. 18'of 1959) read with section 29 of the Municipal Ordinance, 1960. (iv) West Pakistan Municipal Committee Business Rules, 1960." These were framed by the Governor in exercise of powers conferred on him by sections 22 and 23 read with section 121 of the Municipal Administration Ordinance of 1960 and were published in the Gazette of West Pakistan Extraordinary on the 21st of June 1960. The only relevant rule is sub‑rule (f) r.f rule 2 which reads as under:

2. Executive Powers.‑The following Executive Powers of Municipal Committee shall vest in the Chairman: (a) . . . . . . . . . . . . (b) . . . . . . . . . . . . (c) . . . . . . . . . . . . (d) . . . . . . . . . . . . (e) . . . . . . . . . . . . (f) The appointment, promotion, leave, transfer, punishment and removal of the members of the staff of the Municipal Com mittee whose pay does not exceed such limit as may be specified by the Municipal Committee with the approval of the Control ling Authority. Rule (f) was subsequently amended by the Government Notification No. SO. XI‑27/EHR/60, published in the Gazette of West Pakistan Part A of 17th March 1961. The relevant amendment reads as follows: "In rule 2 for clause (f ) the following clause shall be substi tuted, namely: (f). (i) the appointment, transfer, promotion and punishment (including dismissal, reduction in rank and removal from service) of Municipal Officers or servants whether temporary or permanent, the minimum of whose, scale of pay does not exceed: (a) Rs. 250 in the case of Municipal Committee, Lahore. (b) Rs. 150 in the case of Municipal Committees of Peshawar, Rawalpindi, Lyallpur, Multan, Hyderabad and Sukkur, and (c) Rs. 100 in the case of other Municipal Committees. (ii) The grant of leave, transfer, suspension and punishment (other than dismissal, removal from service or reduction in rank) in respect of all other Municipal Officers and servants. (iii) The holding of departmental enquiries, provided that the Chairman may nominate one or more Municipal Officers by whom such enquiries or such of them or such classes of them, as the Chairman may specify in this behalf, may be held."

6. In fact there is not much difference in the first and third set and they are almost identical. Even the expression "autho rity", "Controlling Authority" and "Penalty" have the same definition. Both consist of sixty‑two rules each running into six chapters, on the same pattern and with identical provisions, except that the expression "Local Council" and "Local Council Servants" used in one have been substituted by "Municipal Com mittee" and "Municipal Servants" in the other.

7. Having carefully gone through these rules, we have come to a two‑fold conclusion, firstly, that suspension is not consi dered to be a penalty within the scheme of rules and secondly, that rules 13 to 17 deal with the departmental enquiries for inefficiency, misconduct or corruption and have no relevancy to suspension ordered in consequence of registration of a case on criminal charges. For proper appreciation of the point, rules 13 to 17 are reproduced below: "

13. When there is an allegation of inefficiency, misconduct, or corruption against a municipal servant, and in the opinion of the Authority the Municipal servant against whom such allegation made should be proceeded against, it shall by an order in writing call upon the municipal servant to furnish an explanation in writing about the allegation within a specified period, which shall not be less than seven days or more than fourteen days, from the date the order is communicated to him.

14. As soon as may be after the receipt of the explanation under rule 13, the authority shall examine the allegation in the light of the explanation furnished, and if in its opinion there is a prima facie case against the municipal servant it shall make an order in writing for the holding of an inquiry.

15. Where no explanation is offered under rule 13, within the period specified, it shall be assumed that the municipal servant has no explanation to offer, and the authority may proceed accordingly.

16. When an inquiry is ordered under rule 14, the authority shall‑ (a) frame the charges on the basis of which the enquiry is to be held; (b) appoint an officer of the municipal committee under which the municipal servant to be proceeded against is serving, to hold an inquiry.

17. Where the charges framed under rule 16 are for miscon duct or corruption, the authority may, by an order in writing place the municipal servant under suspension, if in its opinion such suspension is necessary or expedient." Rule 17 empowers the authority which is defined in rule 2(a) as the authority competent to appoint a municipal servant, to place a municipal servant under suspension if considered necessary or expedient. Chapter V of these rules consisting of rules 35 to 39 deals with the imposition of penalties on consideration of the report of the inquiry officer, or the inquiry committee as the case way be, inquiring into the allegations of inefficiency, misconduct or corruption, while the latter into allegations of subversion. Rules 37 and 39 are particularly important as they refer to conviction of municipal servant. Rule 37 reads as follows: "

37. Where a municipal servant has been awarded a sentence or fine on a criminal charge involving moral turpi tude, the authority shall provisionally determine the penalty to be imposed upon such municipal servant and shall so inform the municipal servant and call upon him to show cause within a reasonable time which shall not be less than seven days or more than fourteen days why the penalty proposed should not be imposed." From a plain reading of the Rule, it becomes abundantly clear that it is after a municipal servant has been convicted and awarded a sentence of fine on a criminal charge involving moral B turpitude that the authority has to provisionally determine a penalty imposed on him. Rule 39 reads as follows: "

39. Any municipal servant who has been awarded a sentence of imprisonment by a Court on a criminal charge involving moral turpitude shall be deemed to have been dismissed from municipal service from the date; of such imprisonment, and the authority shall pass orders accor dingly." It clearly refers to the penalty of dismissal, which should follow as an inevitable consequence of a municipal servant's conviction and sentence of imprisonment awarded by a Court on a criminal charge involving moral turpitude. It is pertinent to point out that the imposition of fine is not in the category of penalties mentioned in parts (a) to (g) in the relevant rule

6. The sentence of fine referred to in rule 37 clearly means a fine imposed by a Court of law, although unlike rule 39, the word "Court" has not been specifically mentioned. An analogy may also be drawn out with some advantage as support is lent to this view by a perusal of Departmental Instructions contained in letter No. S.O. XII (St. GAD) 5‑7/62, dated 24th August 1962, addressed by Syed Fida Hasan, Chief Secretary, Government of West Pakistan to Secretaries and Heads of Departments. It is included in No. 5 of Part IV section 2 of the Establishment Manual Volume I, at pages 327 and 328 and a copy of the same is also placed on the file as Annexure `C'. The reproduction of the letter would be helpful for the proper appreciation of the point. "

5. Suspension of Government servants.‑(1) I am directed to refer to this Department's instructions for the speedy disposal of ‑ disciplinary cases issued in this Department's Memorandum No. S(R)21‑43/57‑SOXIII, dated the 16th November 1957. The position has been reviewed by Govern ment in the light of experience gained during this period. It has been found that a large number of Government servants remain suspended for periods longer than 6 months and most of them get reinstated, which results in financial loss to Government and causes unnecessary inconvenience to Govern ment servants concerned. Suspension should only be resorted to where it is essential. (2) Suspension in the case of Departmental Enquiry.‑Recourse to suspension should not be made at the time of preliminary inquiry as the situation can be met, if necessary, by transfer of a Government servant from the station of posting. The question of suspension should only be considered when a formal inquiry is to be undertaken by the Inquiry Officer under rule 8 of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960. The suspension for corruption or misconduct should only be ordered where it is likely that one of the following penalties can be imposed:‑ (a) Reduction to a lower post or time‑scale or to a lower stage in time‑scale. (b) Compulsory retirement. (c) Dismissal from service. (3) Suspension in the case of Police challans.‑Suspension need not be ordered in all cases when a Government servant is challaned. The criterion should be the same as in the case of departmental inquiry. Normally, in Court cases, it should follow conviction .and should be discretionary at other stages. Moreover, a Government servant need not be suspended merely for being in Police custody unless he is convicted and the conditions as laid in the case of departmental inquiry are fulfilled. (4) A Government servant may, however, be suspended on obstinate refusal to carry out an order. This provision is essential. Otherwise, there will be no peremptory remedy available to Government in such cases. (5) The existing policy about station leave as mentioned in paragraph 4 of the letter under reference, may be maintained. (6) Government servants remain suspended for a period of 3‑4 years. This needs a careful check. The quarter consoli dated statement prescribed in accordance with paragraph 5 of the letter under reference, is not being received in this Department from the Administrative Secretaries. Once an officer is suspended, than the matter is generally allowed to drift. It is necessary that a careful watch about the finaliza tion of these cases should be kept. Both in the case of judicial inquiry and the Police prosecution, the authority competent to suspend a Government servant should, on the expiry of three months period from the date of suspension, place the matter before the appellate authority regarding the advisability of retaining the person under suspension any more. The appellate authority will fix the further period of suspension and review the case on the expiry of the period so fixed. This check has to be reflected in the quarterly form which has been amended accordingly. I am to request that Administra tive Secretaries should regularly obtain the quarterly state ments (copy enclosed) from the subordinate authorities and transmit these to this Department in the month following at the end of each quarter. The statement for the quarter ending in September 1962, should reach this Department by October 1962." The second paragraph is headed as Suspension in Cases of Departmental Inquiry and refers to an inquiry envisaged by rule 8 of the Government Servants (Efficiency and Discipline) Rules, 1960. It is pertinent to mention that the procedure laid down in these rules is very much similar to the one laid down in the West Pakistan Municipal Servants (Efficiency, and Discipline) Rules, 1963, and even the expressions used are more or less similar. Rule 6 deals with inquiry procedure in cases of ineffi ciency, misconduct and corruption. There is, however, one significant difference, and that is that rules 11 and 13 of the former specifically deal with suspension and re‑instatement respec tively, there being no corresponding provision in the latter rules. But, this is not the point before us at the moment, all that we are trying to impress is that if the inquiry envisaged by rules 13 to 17 had also covered the cases of police challans, then a separate discussion of these would not have been called for in the Government letter, and would be a mere redundant superfluity. We are thus in no manner of doubt that the rules whose contravention is alleged by the learned counsel for the petitioner do not apply to the case of suspension of an employee against whom a case is registered on a criminal charge. The argument thus stands repelled.

7. Having held so, the next question which falls to be deter mined by us is whether there are any other relevant rules which are applicable to and govern the instant case. The answer is not far to seek. As stated by us earlier part (4) of Article 45 of the Basic Democracies Order (P. O. 18 of 1959), dealing with the servants of Local Councils and made applicable to Municipal employees by virtue of section 29 of the Municipal Administr ation Ordinance does empower the Controlling Authority to suspend, remove, dismiss or otherwise punish his Secretary or a principal officer, and the Local Council to deal similarly with any other employee whom it has appointed. 7‑A. In order to determine whether the Chairman who had passed the first impugned order of the petitioner's suspension purely on his own, was competent to do so or not, all the rele vant provisions in the various statutes and rules shall have to be considered. In Article 3(1)(10), the expression "Controlling Authority" as defined in Basic Democracies Order (P. O. 18 of 1959), made applicable to the instant case under section 29 of the Municipal Administration Ordinance, means: "(i) Government in the case of all Divisional Councils and such other Union Councils as are within the jurisdiction of Municipal Bodies or Cantonment Boards at Karachi, Dacca and Lahore. (ii) Commissioner in the case of a District Council, (iii) Collector in the case of other Local Council except Union Council in East Pakistan, (iv) Sub‑Divisional Magistrate in the case of a Union Council in the case of a East Pakistan. The same expression "Controlling Authority" as defined in )(10) of Municipal Administration Ordinance X of 1960, means:

"In the case of such Municipal Committee or class of Munici pal Committees as the Government may from time to time by notification in the official Gazette specify in this behalf, the Government and in all other cases the Commissioner." Relevant Notification No. SOH(L)1‑15/60, published in the West Pakistan Gazette Extraordinary, dated 1st May 1960, reads as follows: "No. SOH(L)1‑15/60.‑In pursuance of the provisions of clause (10) of subsection (1) of section 3 of the Municipal Administration Ordinance, 1960, the Governor of West Pakistan is pleased to specify the Municipal Committees of Peshawar, Rawalpindi, Lahore, Lyallpur, Multan and Hyderabad ‑as the Municipal Committees in respect of which Government shall be the Controlling Authority." This would show that Government is the Controlling Authority in respect of the Municipal Committee of Lahore, alternatively known as the City of Lahore Corporation, and the petitioner being neither the Secretary nor the principal officer could be suspended only by the Local Council, i.e., the Corporation and not by the Chairman, unless there was some provision in the Rules investing him with such a power.

8. But the matter does not end here. In this regard our attention was drawn by the learned counsel for the Corporation to the West Pakistan Municipal Committees Business Rules of 1960, framed under sections 22 and 23, and 121 of the Municipal Administration Ordinance, 1960, as amended. The relevant sub‑rule (f) of rule 2 which deals with the executive powers of a Municipal Committee has already been reproduced in the earlier part of this judgment and it would be pertinent to refer. to it again. According to this rule, the Chairman of the City of Lahore Corporation is competent to appoint, transfer, promote or punish, which includes dismissal, reduction in rank and removal from service a Municipal Officer or servant whether temporary or permanent, the minimum of whose scale of pay does not exceed Rs.

250. In respect of all other Municipal Officers or servants, he can grant leave, transfer, suspend and punish, except ordering dismissal, removal from service and reduction in rank. A closer analysis of this provision would clearly show that the Chairman of the Lahore Municipal Corpora tion is competent to order dismissal, reduction in rank and removal from service of a Municipal Officer or servant, the minimum of whose scale of pay does not exceed Rs. 250, but he cannot pass such an order in respect of employees whose minimum scale of pay exceeds Rs. 250, but can nevertheless order suspension in respect of an employee falling in the latter category, although the word "suspension" is not specifically mentioned in sub‑1 rule 2 (f )(i) as done in sub‑rule 2(f)(ii), the power to suspend is impliedly included in the power to appoint and dismiss. In other words under this rule, the Chairman of the Lahore Municipal Corporation is competent to suspend all the Municipal Officers and servants irrespective of the fact whether the minimum of their scale of pay does or does not exceed Rs.

250. This leads to the irresistible conclusion that the Chairman was competent to pass the first impugned order and to place the petitioner under suspension. In that view of the matter, the order was, therefore, perfectly legal and its validity cannot be called in ques tion.

9. We now proceed to consider the validity or otherwise of the second order of suspension dated the 7th of April 1965, which in fact was passed in implementation of an order passed by the Chief Secretary to Government of West Pakistan, as would be clear, from the Memorandum No. A‑VI‑84‑A/3261, addressed by the Commissioner to the Chairman on the subject and reproduced in paragraph 2 of this judgment. Paragraph 2 of the aforesaid memorandum clearly shows that it was a decision taken by the Chief Secretary and even the expression used is "as decided by the Chief Secretary". We are in no manner of doubt that left to himself, the Commissioner, who had earlier turned down the recommendation of the Chairman for the extension of the petitioner's period of suspension, vide his memorandum dated the 5th of January 1964, Annexure B', and had instead ordered the petitioner's reinstatement, would not have passed such a fresh order of suspension. It is thus clear that the Commissioner, and the Chairman did not exercise their own judgment or discretion in the matter, but merely acted in compliance with the orders of the Chief Secretary, who under the relevant law was not competent to make such order.

10. It was urged on behalf of the petitioner that the Chief Secretary who acts on behalf of the Government and is sometimes synonymously named to represent the latter was not acting in this capacity in the instant case, but on the contrary, the impugned order was. passed by him in his capacity as Head of the Anti‑Corruption Department, and definitely at the instance of the latter, who were inquiring into certain allegations against the petitioner. The Chief Secretary is admittedly the Chairman of the Provincial Anti‑Corruption Council of which the Director, Anti‑Corruption is the Secretary. It was consti tuted by the Government vide Notification No. ACS‑L‑3/62, dated the 5th of July 1962. Vide Notification No. ACS‑L‑2/61, in exercise of the powers conferred by section 6 of the West Pakistan Anti‑Corruption Establishment Ordinance, 1961, the Governor of West Pakistan was pleased to make what are known as the West Pakistan Anti‑Corruption. Establishment Rules of 3965. Besides the Provincial Anti‑Corruption Council mentioned earlier, three Anti‑Corruption Committees at the District, Divisional and Provincial level ware also constituted. Under rule 5 of the aforesaid Rules every inquiry or investigation under the provision of subsection (1) of section 3 of the West Pakistan Anti‑Corruption Establishment Ordinance, 1963, was made subject of the appeal and direction of the Council or the appropriate committee. The mode and procedure of enquiries is contained in these two rules which includes the powers vesting in 'the Chief Secretary of passing certain orders, particularly those of prior approval of inquiries or investigations against public servants at a particular stage. Having carefully gone through these rules, we have no hesitation in coming to the conclusion that nowhere in the scheme of statutes or the Rules is there any provision vesting in the Chief Secretary powers to suspend an employee of Government or for the matter of Municipal G Committee in his capacity as Chairman of the Anti‑Corruption Council. The reason is quite obvious for such a provision would at once combine in the Chief Secretary the powers of the prosecutor and the Judge which would be nugatory for sense of justice. Thus, besides, the absence of any statutory provision, the impugned order of the petitioner's suspension, is also contrary to principles of natural justice and would be difficult to sustain.

11. It was contended by the learned counsel for the respon dent that suspension per se is not considered to be a punish ment and as such the petitioner has no cause of action. Having already considered the relevant law and the rules on the point, we agree with this contention of the learned counsel that suspen sion is not considered to be a penalty as such, nor is it men tioned in Article 177 which protects the rights of civil servants of the Centre or of a Province or holders of civil posts in connection with the affairs of the Centre or of a Province against N arbitrary dismissal, removal from service or reduction in rank, without giving a civil servant concerned a reasonable opportunity of showing cause against the proposed action. The nature and scope of implication of an order of suspension passed in respect of Government servants were considered by their Lordships of the Supreme Court in Mian Muhammad Hayat v. The Province of West Pakistan (PLD 1964 S C 321). In this case, the Chief Justice of Pakistan, who delivered the judgment after discussing the relevant case law on the point, 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 the services, which every public employee accepts that in the event of suspension, his remuneration shall be at such a level. As to the question whether suspension is within the power of the Government, I entertain no doubt that it is within the responsibilities of the executive in respect of the public services, namely, to maintain their standards by ensuring that there are no black sheep among them, and at the same time to maintain the efficiency of the public services and the confidence of the public in those services by eliminating persons whose conduct has tended to lower standards below those required, that there should be a power to ensure the temporary severance of a member of the public service whose conduct has been such as to demand an enquiry, from the discharge of his functions, until the enquiry has been completed. The power is relatable both to the general duty of maintaining high standards in the administration, as well as to the requirements of service management. Therefore, I can see no difficulty in supposing that the executive authority acts within the pleasure of the Governor, when it suspends a public employee from the discharge of the duties of his office, pending an enquiry into his actions."

17. It may be observed with the utmost respect that the facts of the case before their Lordships were quite different from those of the instant case. In that case, the question related to the true construction of the rule 11 of the West Pakistan Govern ment Servants (Efficiency and Discipline) Rules, 1960, which reads as follows: "A Government servant against whom action is proposed to be taken under clause (b) or clause (c) of the Rule may be placed under suspension if in the opinion of the authorities suspension in necessary or expedient." It was the competency of the suspending authority and the expediency of his suspension which was called in question by Mian Muhammad Hayat appellant in that case. On the contrary, the position in the instant case as explained earlier is that the impugned order was in effect passed by the Chief Secretary who had no authority in the matter as representative of the Govern ment, nor was he the Controlling or the Appointing Authority in the case. In point of fact, the action taken by him was resorted to at the instance of the Director, Anti‑Corruption who presumably had approached him in his capacity as Secretary of the Anti‑Corruption Council, of which the Chief Secretary was the Chairman. The two cases are, therefore quite distinguish able.

18. For the foregoing reasons, we uphold the first order of suspension dated the 22nd of February 1964, passed by the Chairman, but declare the subsequent order dated the 7th of April 1964 as without lawful authority and of no legal effect.

19. The petition is partly allowed to the extent indicated above. The parties are left to bear their own costs. K. M. A. Petition partly accepted.