P L D 1980 Supreme Court 310 (PLP)

ASLAM RIAZ HUSSAIN, J.-This appeal is directed against the Order dated 9-7-1976 of the Sind Service Tribunal, Karachi, whereby the appellant's appeal before it was dismissed.

2. Facts giving rise to the present appeal are, briefly stated, as follows Zarar Khan appellant was recruited as an A. S. I. do 16-3-65. Sub. sequently, in 1972 he was promoted as S. 1. and was confirmed in that post. Thereafter he served as S. H. O., Kandiaro, District Nawabshah and then as S. H. O. at P. S. Babarloi, District Khairpur. A number of allegations relating to corruption, misconduct, negligence, inefficiency and disobedience of orders were made against him in relation to his service at these two police stations, Ten departmental inquiries were initiated against him before S. P., Nawabshah and two :pore before the S. S. P., Khairpur., While these departmental inquiries were still pending, the Government of Sind, in a drive to eradicate corruption and inefficiency, prepared a list of unwanted Police Officers. The name of Zarar Khan petitioner was included amongst them. He was placed under suspension by order of the Government dated 17-5-1974. A' notice was issued to him by the Chief Secretary, Government of Sind, giving him an option either to retire voluntarily or to face departmental action. The petitioner has to face the departmental inquiries. A showcause notice was then sent to him by the D. L.G. Police, Sukkur, on 26-11-1974. The allegations in that notice were the same as in the 12 -depart. mental inquiries already pending against him. The appellant sent a lengthy reply to the said show-cause notice to the D. I. G. The latter forwarded it to the I: G. Police who in turn, submitted it to the Additional Chief Secretary and the same was ultimately put up before the Chief Minister, Sind. The Chief Minister in his capacity as the "Authority" ordered the compulsory retirement of the appellant, on 7-4-1975 and a Notification in that respect was subsequently issued by the S. P. Khairpur on 11-4-75. It may be mentioned that the 12 departmental inquiries against the appellant continued before the Superintendents of Police, Nawabshah and Khairpur. He was exonerated in all the said inquiries in March, 1975. Ten inquiries were dropped while in the remaining two the allegations against him were not proved.

3. Feeling aggrieved by his compulsory retirement the appellant filed an appeal before the Sind Service Tribunal which was dismissed vide the impugned Order. Thereupon the appellant filed an appeal before this Court and leave was granted by a Division Bench of this Court on 8-1-77 to consider, inter alga, the following points: (i) that since 12 departmental proceedings were already pending against him under sub-rule (2) of rule 5 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 and Inquiry Officers had already been appointed for the purpose it was not open to the `Authority' to nullify, the said action and to proceed against the appellant under sub-rule (3) of rule 5 on the same charges as were the subject-matter of the departmental inquiries pending against him, of which he was subsequently exonerated; (ii) that at the relevant date the `Authority' was the Officer competent to appoint the concerned civil servant, who, in the appellant's case, was the Superintendent of Police. Retrospective effect could not have been given to the amendment dated 21-8-1975 in clause (2) of rule 2 of the Sind Civil Servants Act, 1973 whereby the Chief Minister was designated as the `Authority' and thus validating the Order of petitioner's compulsory retirement passed by the Chief Minister four months earlier on 11-4-1975.

4. We have heard the learned counsel for the parties at length and gone through the impugned judgment as well as the relevant documents and have considered the relevant provisions of law in the light of the contentions of the learned counsel for the parties.

5. The counsel for the petitioner reiterated the same contentions that were raised before this Court at the Leave granting stage namely, that it was not permissible to proceed against him in a summary manner and order his compulsory retirement when 12 departmental inquiries on the same charges were already pending against him and that the Order of the Chief Minister directing his compulsory retirement was all the more anomalous in view of the fact that be was subsequently exonerated in all the 12 inquiries. The learned Assistant Advocate-General. who appeared on behalf of the State relied on sections 4 and 24 of the Sind Civil Servant Act, 1973 and also reiterated the stand taken by the counsel for the Government before the Service Tribunal, namely that the Order of compulsory retirement was absolutely legal as it had been passed by the Chief Minister of Sind, who as defined by sub-rule (2) of rule 2 of the Sind Civil Servants (E & D) Rules, 1973, was the `Authority' for all Provincial Government servants. He submitted further that the action in question had been taken by the Chief Minister under the sub-rules (3) and (4) of rule 5 which authorise him to pass such an order without any inquiry whatsoever.

6. In reply the learned counsel for the appellant submitted that in the first place at the relevant date i.e. 11-4-75 when the Order for compulsory retirement of the petitioner was passed by the Chief Minister, he was not the `Authority' under sub-rule (2) of rule 2 of the Sind Civil Servants (E & D) Rules because the Chief Minister had been made the 'Authority' under the said rule by virtue of an amendment made on 21-8-75 and that prior to that date the 'Authority according to the aforementioned sub-rule, was the Officer competent to appoint the appellant namely the Superintendent of Police of the concerned District.

7. For better understanding the contentions of the learned counsel for the parties it would be useful to reproduce sub-rules (2) and (3) of rule 2 which define the 'Authority' and the 'Authorised officer' and sub-rules (1) to (5) of the Sind Civil Servants (E & D) Rules, 1973 which relate to the procedure of inquiry ?"2 (1) as it stood originally 'authority' means the officer competent to appoint any civil servant to be the 'authority' for such civil servants for the purposes of the said rules." 2 (2) after its amendment vide Notification date 21-8-1975 " `authority' means the Chief Minister or any officer or authority designated by him to exercise the powers of the authority under these rules; 2(3) 'authorised Officer' means the Chief Secretary or an officer authorised by the authority to perform functions of an 'authorised Officer' under these rules Rule 5.-'(1) In case where a civil servant is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave or, with the approval of the authority, suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months; (2) the authorised officer shall decide whether in the light of facts of the case or the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, the procedure indicated in rule 6 shall apply; (3) if the authorised officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall (a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action, and, (b) give him a reasonable opportunity of showing cause against that action Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity. (4) On receipt of the report of the Inquiry Officer or Inquiry Committee or where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the authorised officer shall determine whether the charge bas been proved, and (a) if it is proposed to impose a minor penalty, he shall pass orders accordingly ; (b) if it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement. of allegations served on the accused, the explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed, and the authority shall pass such orders as it may deem proper. (5) The orders passed by the authority will be communicated to the accused or notified in the official gazette by the authorised officer of the Department concerned (6) If two or more civil servants . . . . . : . ."

8. It would also be useful to point out at this stage that the 'Authority' as defined by sub-rule (2) of rule 2 is a person different than the 'Authorised Officer' as defined by sub-rule (3) of that Rule. These persons were designated by Notifications issued by the Provincial Government from time to time. By Notification No. S. VII. (S & G A D)1/123/73 dated 19-10-73 published in the Sind Government Gazette dated 23rd October, 1973 soon after the enforcement of the Sind Civil Servants (E & D) Rules, the 'Officer competent to appoint any civil servant' was designated the 'Authority' under sub-rule (2) of rule 2 with respect to the Provincial Government servants. Subsequently, by another Notification No. S. IX. R F G/S & G A D/2/E/1/7,1 dated 21-8-75 an amendment was made in sub-rule (2) of rule 2 of the Sind Civil Servants (E & D) Rules, 1973 whereby the Provincial Chief Minister was, by definition. constituted as the `Authority' for the purposes of the said Rules.

9. A reading of rule 5 reproduced above clearly shows that where a civil servant is accused of corruption or any kind of misconduct, it is the 'Authorised Officer, who shall decide whether or not it is necessary to have any inquiry conducted through an Inquiry Officer or Committee or no inquiry was needed at all. If he decides that the inquiry should be conducted through an Inquiry Officer or Inquiry Committee, then the procedure provided in rule 6 shall apply and inquiry shall be conducted in accordance with the provisions thereof. If, however, the 'Authorised Officer' decides that an inquiry through an Inquiry Officer or Committee is not necessary then it is he who shall inform the accused Government servant of the action proposed to be taken with regard to the accused and the grounds of the said action. Again it is he who is required by the Rules to give the accused a show-cause notice except where the 'Authority' is satisfied that it would not be expedient to give the accused such an opportunity to show cause. Sub-rule (4; of rule 5 provides that on receipt of any explanation or reply from the accused it is the 'Authorised Officer' who shall determine whether the charge has been proved and if he proposes to impose a minor penalty, be is authorised by clause (a) of sub-rule (4) to pass the Order himself, But in case it is proposed to impose a major penalty, he shall forward the same to the 'Authority. In that case the 'Authority' shall pass any order which i~ may deem proper.

10. It. is evident from reading of the aforementioned provision that the procedures provided by sub-rule (2) and sub-rule (3) are in the alternate . if the 'Authorised Officer' chooses to adopt one procedure, he cannot adopt the other and vice versa. In the present case, 12 departmental inquiries, -under rule 5(2), on-the same allegations had already been initiated against the petitioner and even the Inquiry Officers had been appointed. According to sub-rule (2) therefore, further proceedings could only be taken according to the procedure provided by rule 6, and it was not open to the `Authorised Officer' to simultaneously adopt the alternate course and proceed against the petitioner under sub-rule (3). Moreover, while purporting to take action under sub-rules (3) and (4) even then provisions were not followed strictly and hardly any act was done by the `Authorised Officer' except issuing the Notification dated 11-4-1975. For the above-noted reasons the proceedings culminating in the petitioner's compulsory retirement were in contravention of the rules on the subject and as such were without lawful authority. They were also rendered anomalous in view of the subsequent exoneration of the petitioner by the `Authorised Officer' in all the 12 departmental inquiries. Moreover, as rightly pointed ot7t by the learned counsel for the petitioner; on the date when the impugned Order of his compulsory retirement was passed by the Chief Minister i.e. 7-4-75 he (the Chief Minister) was not the `Authority'. At that time Notification dated 23-10-73 held the field whereby the `Officer competent to appoint a Civil servant' was designated to be the `Authority' for the purpose of the Sind Civil Servants (E & D) Rules. It was only subsequently, by Notification dated 21-8-75 that the rule 2(2) itself was amended to redefine .the `Authority' and the Chief Minister of the Province was designated the `Authority' by definition. As such it is obvious that on the relevant date (i.e. 7-4-75) the Chief Minister was not empowered to pass the order in question.

11. Relying on section 4 of the Sind Civil Servants Act, 1973 the learned Additional Advocate-General also submitted that every Civil servant holds his office during the pleasure of the Government and as such the Chief Minister could have terminated the petitioner's service or ordered his compulsory retirement as and when he pleased. We are afraid we cannot bring ourselves, round to agree with this proposition. No doubt, every civil servant is to; hold his office during the pleasure of the Government but this does not mean that his service shall depend on the arbitrary whim and caprice of the Chief Executive.

12. The learned Additional Advocate-General also relied on section 24~ of the said Act which provides that nothing in that Act or any rule, shall be construed to limit or abridge the powers of the Government to deal with the, case of any civil servant in such manner as may appear to it to be just and' equitable and contended that in view of this provision, the 'chief Minister' could at any time take whatever action he liked against any civil servant. But this contention overlooks the fact that the proviso to that very section provides that "where this act or any rule is applicable to the case of a civil servant the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rules.

13. For the foregoing reasons we are of the view that the order of compulsory retirement of the appellant passed by the Chief Minister on 7-4-75, notified in the Notification dated 11-4-75 by the S. P., Khairpur, is illegal and the impugned order of the learned Tribunal, dismissing the appeal of Zarar Khan, is not based on proper construction of the relevant rules. The result is that this appeal is allowed with costs and the impugned Orders of the Sind Service Tribunal and Chief Minister are set aside. s. A. H. Appeal allowed.