1981 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN). In this case the appellant, Muhammad Suleman, is aggrieved against an order dated 16‑10‑1977 issued by the Deputy Director of Agriculture, Sargodha Division dismissing the appellant from service as Field Assistant with immediate effect, and seeks to get this order set aside as being void and incom petent. After his dismissal, the appellant filed an appeal with the Director of Agriculture (Extension), Punjab, which was rejected on 7‑3‑1978. A revision petition made before Secretary, Agriculture resulted in an order dated 3‑7‑1978 directing the appellant to appear before the Deputy Director, Agriculture (Extension) but apparently no‑ decision has followed that personal appearance. 2. Brief facts of the case are that on 12‑9‑1977 when the D. D. A from the office of the D. G., Agriculture, visited Jaranwala in connexion with an enquiry against the appellant on account of sale of pesticides to the Local Municipal Committee, he found the appellant absent from duty, on which the D. D. A. Sargodha, placed the appellant under suspension. Subsequently, one Abdul Ghafoor lodged a complaint with the D. D. A., Sargodha accusing the appellant of tampering with the loan vouchers of wheat seed. The Assistant Publicity Officer in the Headquarters Office at Sargodha, was deputed to enquire into the matter, who found that the charge of tampeding was proved. It was also found that the appellant had pocketed a sum of Rs. 1,000 in consequence of such tampering. Thereafter the appellant was served with a show‑cause notice of 10 days' duration by the D. D. A., Sargodha, which was acknowledged by the appellant on 5‑10‑1977. These 10 days expired on 15‑10‑1977. The next day, h e. on 16‑10‑1977, the appellant having failed to submit his written defence, the impugned order of dismissal was issued. However, the appellant's reply too reached the same day at 2 p.m. but was taken to be late and of no avail. 3. The parties were heard and the contents of documents submitted by the parties perused. We have purposely refrained from referring in detail to the charges against the appellant because, during the hearing of arguments, points of procedure took precedence over the merits of the case and we had to ground this judgment on these points. It was contended on behalf of the appellant that; once, he was absent on 12‑9‑1977on leave duly sanctioned and, two, that the charges of tampering with loan vouchers and obtaining Rs. 1,000 were frivolous in that their subject did not at all concern the appellant. The learned counsel for the appellant impugned the dismissal order on the ground that under the West Pakistan Agriculture Department Delegation of Powers Rules, 1962, under Serial No. 11‑F, Column 3, the competent authority for punishment, to the Field Assistant was the Extra Assistant Director of Agriculture and not the Divisional D.D.A. The learned Government Pleader informed the Court that, by an amendment, the D. D. A. had been made appointing authority and could, therefore, proceed under the E & D Rules against the appellant. This argument was vigorously contested by the learned counsel for the appellant who emphasised the distinction between appointing authority and punishing authority and maintained that the power of appointment and the power of punishment flowed from different sections of the Civil Servants Act. To this the learned Government Pleader's answer was that the Service Rules applicable to the appellant were promulgated in 1963 and superseded the Delegation of Powers Rules, and 'since, in these Service Rules, there was no mention of the punishing authority and the D. D. A. was named as the competent authority, therefore, under section 15 of the General Clauses Act the appointing authority and the punishing authority will be the same unless a different intention appears which was not there in the present case. This contention too was challenged by the learned counsel for the appellant as misconceived because, according to him, Service Rules govern recruit ment to a Service and conditions of that Service and are not concerned with punishments; that is why there was no mention of punishments in the above mentioned Service Rules. In this context the learned counsel cited case‑law to bring home to the Court the point that the appointing authority and the punishing authority do not necessarily have to be the same. 4. Having heard both sides we feel that the impugned order of dismissal must be struck down as having been made by an incompetent authority. But before we give reasons for this we think it proper to say something about the timing of the impugned order. The appellant claims that his reply to the show‑cause notice was submitted to the D. D. A., Sargodha, through the E. A. D. A., Faisalabad, but the latter refused to accept it, as reported to the appellant by the postal authorities. However, a copy addressed to the D. D. A., Sargodha, is said by the appellant to have reached the Sargodha office on 15‑10‑1977. It is stated by the respondents that this copy reached the office of the D. D. A., at 2 p. m., on 16‑10‑1977 but earlier, the same day the impugned order was passed. According strictly to rules the act of the D. D. A., is unexceptionable, but in service matters we wonder if it is a quality to be so punctilious that in the face of the reply received at 2 p.m. the order issued a couple of hours earlier could not be withheld and the appellant given the opportunity of personal hearing. After all, an order is in the form of a letter meant for someone and, in. Government Offices it takes some hours to be typed, signed, addre3sed and despatched, It is not like an arrow which takes only a second to be shot and cannot be retrieved. We believe that the D. D. A., Sargodha, on his office hat showed improper haste, in the matter. Even the act of cutting down a person can be done with some grace. ' 5. Reverting to the competency of the impugned Order, we find ourselves in agreement with the arguments put forth by the learned counsel for the appellant. Among the citations, we feel particularly attracted by In re: Abrar Hussain Kazmi, etc. v. Inspector‑General of Registration (N L R 1978 Service 306) wherein this Tribunal has aushoritatively laid down that the, appointing authority cannot be the punishment authority unless provide 1d by the Delegation of Powers Rules. The Delegation of Powers Rules in l their capacity as the guiding rules for punishments are also mentioned as such in rule 2(3) ‑of the E & D Rules themselves. True, as submitted on behalf of the respondents, that the Service Rules for Field Assistants etc., of the Agri culture Department were amended in 1963 and that two cadres, district and divisional, were created, and that the appellant belonged to the Divisional Cadre and has thus come under the direct jurisdiction of the D. D. A., instead of the E. A. D. A., but this change was not correspondingly reflected in the Delegation of Powers Rules, which should have been done as a matter of course. We find, therefore, that the impugned order was not properly made i.e., it was made by an authority not competent to do so. We need not give any finding about the merits of the appellant's case. 6. In view of above, tire appeal is accepted. The case is remanded to the Deputy Director of the Agriculture, Sargodha, for initiating de novo pro ceedings according to the rules. The appellant shall be considered to be under suspension, as he was on the day the impugned order was issued, and entitled to subsistence allowance under the relevant rules till the matter is decided by the authority competent to do so. There will be no order as to costs. Appeal accepted.