1983 PLP (C (PLC(CS))

Chan Pir Shah v. Congothene Chemical Industries Ltd. ete. 1981 P L C 984 and Rehmat Elahi v. Government of West Pakistan P L D 1965 Lab. 112 distinguished. Sher Muhammad v. Bashir Ali Khan P L D 1962 (W.P.) Lab. 172 and Muhammad Anwar v. M. A. Bajwa, Collector, Sargodha and another P L D 1962 (W.P.) Lah. 935 ref. Ross Husain Shamsi for Petitioner. Syed Fayyaz Husain Kadri for L. M. C. Date of hearing : 31st May, 1982. This writ petition calls in question the validity of the order dated 26th October, 1970 of the Commissioner, Lahore Division, Lahore.

2. The facts relevant for the disposal of the writ petition may be briefly stated. The petitioner was employed as Clerk in the Octroi Branch of the Lahore Municipal Corporation, Lahore. He was charge-sheeted on 4th February, 1970 on the allegation that he lost Book No. 11467 which contained two blank transit passes. It was further alleged that the peti tioner was guilty of carelessness as he failed to keep the proper custody of the departmental record which meant misappropriation for ulterior purposes as its illegal use could cause financial loss to the Municipal Cor poration. The petitioner replied to the charge-sheet which was not found satisfactory. Inquiry proceedings were held against him in which he was found guilty of the charges. Thereafter, a second show-cause notice was issued to the petitioner which was duly received by him on 13th August, 1970, to show cause as to why he should not be removed from service as contemplated by rule 5 of the West Pakistan Municipal Servants (Efficiency and Discipline) Rules, 1963 (hereinafter called the Rules). The petitioner gave his reply which was not found satisfactory. Eventu ally, the Administrator, Lahore Municipal Corporation, Lahore, by order dated 8th September, 1970 dismissed the petitioner from service. Being aggrieved with this order, the petitioner filed an appeal before the Com missioner, Lahore Division, Lahore, which was also dismissed by order dated 26th October, 1970.

3. Learned counsel for the petitioner contends that two prosecution witnesses namely, Abdul Khaliq and Inayat Khan, were examined in the. absence of the petitioner during the enquiry proceedings and as such that petitioner was not provided an opportunity to cross-examine them which has resulted in grave miscarriage of justice and also violative of rule 21 of the Rules. The appellate Authority, on re-appraisal of the evidence gave a finding of fact that no specific allegations have been levelled against the petitioner by the said prosecution witnesses and that the petitioner failed to join the proceedings on 24th September, 1970, when the statement of these prosecution witnesses were recorded. This finding of fact cannot be interfered with in the exercise of writ jurisdiction. The petitioner is also estopped by his conduct to agitate this point in these proceedings.

4. It is next contended that even if it is proved that the transit book in question, was lost due to carelessness of the petitioner, he was at best quality of inefficiency for which extreme penalty of dismissal could not have been imposed, in view of the provisions contained in rule 10 read with rule 8 of the Rules. This contention is misconceived. The petitioner has committed a breach of service discipline by not keeping proper custody of the transit book in question, which comes within the purview of rule 5 (b) of the Rules for which penalty of dismissal can be inflicted.

5. It is further contended that the impugned order of the Adminis trator, Municipal Corporation, is wholly without jurisdiction, inasmuch as, extraneous considerations relating to past service performance of the' petitioner had been taken into account while passing the order of dis missal although no such allegation was levelled in the charge-sheet served on him. Reliance was placed on Chan Pir Shah v. Congothene Chemical Industries Ltd., etc. (1981 P L C 984) where it was held that if out of three charges on the basis of which an order of dismissal had been passed against an em ployee under subsection (3) (a) of section 15 of the West Pakistan Indus trial and Commercial Employment (Standing Orders) Ordinance, 1968 did not amount to `misconduct', the action of dismissal on the assump tion that all three charges stood proved, vitiated entire order. Reference was also made to Sher Muhammad v. Bashir Ali Khan (P L D 1962 (W.P.) Lah. 172) and Rehmat Elahi v. Government of West Pakistan (P L D 1965 Lah. 112) wherein it has been held that if extraneous considerations have been taken into account while passing an order, the entire order is liable to be quashed. These judgments were else referred in Chan Pir Shah's case. Reliance was also placed on Muhammad Anwar v. M. A. 8ajwa, Collector, Sargodha and another (P L D 1962 (W.E.) Lah. 935) in which the same principle was reiterated and the order of dismissal passed against the Secretary, Town Committee, Sillanwali, was declared without lawful authority on the ground that it was based on considerations of matters some of which could not be taken into consideration. In this judgment, it was also observed that it may be open to an appellate or a revisional, authority to hold that even if the material which could not have been taken into consideration but was taken into consideration be excluded from consideration, the order against which the appeal or revision was presented, would be justified but such a plea cannot be examined in the exercise of writ jurisdiction.

6. Syed Fayyaz Hussain Qadri, learned counsel for the Corporation argued that the impugned order of the Administrator was not based on the past performance of the petitioner, but was in conformity with the procedure laid down in rules 35 and 36 of the Rules. His precise sub mission was that the matter of imposition of penalties is the prerogative of the competent authority. The only requirement of law is that he had to show that the employee was dismissed after calling upon him to show cause as to why major penalty should not be imposed upon him. In the instant case, the provisions of rule 36 have been duly complied with and, therefore, no exception can be taken to the impugned order of dismissal. The contention has great force. Under, rule 35, it is provided that: As soon as the report of the Inquiry Officer under rule 29, or the report of the Inquiry committee under rule 34 has been received, the authority shall consider the report and if upon such considera tion it is of opinion that a minor penalty should be imposed upon the municipal servant, it shall record an order imposing the penalty, and a copy of the order along with copy of the report of the inquiry officer shall be served on the municipal servant." Rule 36 provides that: " If upon consideration of report of the Inquiry Officer or the Inquiry Committee, as the case may be, the authority is of opinion that a major penalty should be imposed upon the municipal servant, it shall provisionally determine the penalty to be imposed and shall so inform the municipal servant, and supply him copy of the report of the Inquiry. Officer but not of the Inquiry Committee 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."

7. From the language of the Rules hereinbefore reproduced, it is clear that the competent authority after considering the report of the Inquiry Officer can provisionally determine the penalty to be imposed upon a municipal servant and require him to show cause why it should not be inflicted. In the instant case, the impugned order of dismissal was passed by the Administrator after considering the report of the Inquiry Officer, the evidence adduced during the course of inquiry proceedings and after providing an opportunity of being heard to the petitioner as to why he should not be dismissed from service. The order of dismissal when read in its entirety does not show that the impugned order was passed on account of unsatis factory service record of the petitioner but that the same was taken, into consideration only for the purpose of determining the nature of punishment to be inflicted. It is not denied that the petitioner had' been punished in the past for various acts and omissions mentioned, in the impugned order of the Administrator. The order of dismissal,' therefore, does not suffer from any legal infirmity and is intra vires. Additionally, no prejudice has been caused to the petitioner merely because the Administrator made a reference to his un-satisfactory past service record while deciding, the question of punishment to be inflicted upon the petitioner. The Appellate Authority after re-appraisal of the entire record pertaining to the disciplinary proceedings and hearing the submissions of the petitioner concurred with the findings of the Admi nistrator that the order of dismissal was valid. This being so, no exception could be taken to a finding of fact recorded by the Appellate Authority wherein, the petitioner was found guilty of the charge levelled against him. In rule 50, it is laid down that:

"When an appeal has been submitted to the appellate authority, it shall consider whether the facts on which the order appealed against was based have been established, whether the facts established afford sufficient ground for taking action and whether the penalty is excessive, adequate or inadequate, and after such consideration shall pass such order as it thinks proper, including an enhancement in the penalty,"

8. It is apparent from the language used in rule 50 that the Appeal late Authority has the jurisdiction to go behind a dismissal order and to see for itself as to whether on the facts and circumstances of the concerned case sufficient grounds existed for taking action and whether the penalty was justified. The words "shall pass such order as it thinks proper" clearly signify that the Appellate Authority is fully competent to enter into all questions of fact and to arrive at its own conclusion. This being so no exception can be taken to the conclusion independently, arrived at by the Appellate Authority. The precedent case of Chan Pir Shah and Rehmat Elahi relied upon by the learned counsel for the petitioner are distinguishable and not attracted to the facts of the present case. Muhammad Anwar's case cited by learned counsel for the petitioner does not support his contention. The ratio. laid down in the precedent case was that applying the principle of severability, it was within the competence of Appellate or Revisional Authority to exclude from con sideration the material which could not have been taken into consideration by the original authority and justified the order passed by it, but the same is not applicable to proceedings in the exercise of writ jurisdiction. Even if it is assumed that the order of dismissal suffered from some defect, the same stood cured in appeal where the whole matter was re-opened in determining afresh the grievance of the petitioner after considering the entire facts and circumstances on which the impugned order was based. The alleged defect in the impugned order was not void ab initio but curable in appeal. The order of the Appellate Authority is based on cogent, reasons and no fault can be found in it by this Court in the exercise of its writ jurisdiction. In view of the above, the writ petition fails and is hereby dismissed with no order as to costs. Petition dismissed.