2001 PLP (C (PLC(CS))

1.This judgment will dispose of Appeals Nos. 1297 of 1999 and 1561 of 1999 as those were filed by the same appellant and identical questions of law and of fact, are involved in them.

2. The appellant, Sub-Engineer, who was working in the Water Management Wing of the Agriculture Department; was deputated by respondent No.3 for temporary duty in Bagh-i-Jinnah, Lahore vide, order, dated 9-2-1982 (Annexure 'A'). Later, he was transferred and posted as Sub-Engineer, Bagh-i-Jinnah, by respondent No.1 vide order, dated 24-5-1987 against a vacant post for improvement of Bagh7i-Jinnah for a period of three years (Annexure 'B').

3. It was on 15-7-1992 that respondent No.3 called for the option of the appellant if he wanted his permanent transfer to Extension Wing of the Agriculture Department and if so, he would not retain his lien with the Water Management Wing (Annexure 'C'). In pursuance of the option given by the appellant for permanent transfer, he was so adjusted against a vacant post of Sub-Eneineer in Bagh-i-Jinnah vide order, dated 26-9-1992 by respondent No.2. It was clearly envisaged in this order that he was being adjusted permanently against a vacant post under respondent No.2 in Bagb-i-Jinnah and will not -retain lien in the office of Director-General, Water Management, Lahore (Annexure 'E')-.

4. While posted as Sub-Engineer; Bagh-i-Jinnah, he was placed under suspension on 30-10-1997 by respondent No.2 on the charge of embezzlement of government property i.e. removal and misappropriation of timber of dry trees from Bagh-i-Jinnah and was ordered to- be repatriated to Director-General, Water Management, Punjab vide order, dated 8-11-1997 in disregard of the fact that he had already been permanently absorbed under respondent No.2 and had no lien with respondent No.3 (copy of repatriation order is Annexure 'G''). The Inquiry Officer completed the inquiry and submitted his report on 19-9-1998. He could not establish any corruption or corrupt practices on the part of the appellant, particularly qua misappropriation of trees.

5. On receipt of inquiry report, the Authorised Officer imposed a minor penalty of "Censure" under Rule 7-A of the Punjab Servants (E&D; Rules, 1975 vide order, dated 26-2-1999 (Annexure 'L'). Respondent No. 1, however, by order, dated 15-4-1999 suo motu set aside the aforesaid penalty of censure and appointing another Authorised Officer directed au inquiry de novo, invoking rules 8 of the Punjab Civil Servant; (E&D) Rules, 1975

6. The appellant filed a review petition before respondent No. 1 under rule 16 of the Rules (ibid) which was rejected by a non-speaking order.

7. Appeal No. 1297 of 1999 was filed to challenge the order, dated 15-4-1999 on the ground that respondent No. l had over-stepped hi jurisdiction because the inquiry proceedings were never reported to him either under rule 6(4) or rule 7-A of the Punjab Civil Servants (E&D Rules, 1975 and that, therefore, there was no occasion for respondent No.: to order, an inquiry de novo under rule 8 of the Rules (ibid). It was adder that respondent No.1 could not have invoked the revisional power of the Government under rule 18 of the said rules either because the Secretary Agriculture (respondent No.1) himself being the "Authority" in this case could not act as "Government". It was claimed that tenor of the said rule would show that the "authority" envisaged thereunder must be lower than the Government.

8. In Appeal No.1561 of 1999, the case of the appellant was that he having been permanently adjusted in the office of respondent No.4, his repatriation and suspension were without lawful authority and that likewise he could not have been deprived of the residential quarter allotted to him by the competent Authority. . .

9. The defendants admitted the factual position stated in the appeals. However, it was claimed that the transfer of the appellant from one Wing to another was within the competence of the administrative department and that respondent No. l in his capacity as government, could invoke the revisional powers available under, rule 18 of the Punjab Civil Servants (E&D) Rules,1975.

10. Arguments have been heard and record has been perused, with the assistance of learned counsel for the parties. 11 The pivotal question which falls for determination in Appeal No. 1297 of 1999 is whether the Secretary Agriculture (respondent No. l) was competent to order de novo inquiry in the circumstances of this case. The plain answer is 'No'. In this case, respondent No. 1 was the "Authority" in terms of rule 2 (1)(b) of the Punjab Civil Servants (E&D) Rules, 1975: He could have disagreed with the findings of the Authorised Officer and ordered an inquiry de novo only in two situations, namely, (i) when proceedings were reported to him under rule 6(4) of the said Rules with the recommendations for imposition of major penalty and (ii) when proceedings were forwarded to him under rule 7-A with the recommendations for imposition of major penalty or for dropping the proceedings. The difference between the two aforesaid rules is that proceedings under the former are forwarded when it is considered by the Authorised Officer that no regular inquiry in a given situation would be necessary whereas under the latter, the proceedings are reported by the Authorised Officer when he determines the charges for imposition of major penalty or recommends for dropping of the proceedings, after getting a regular inquiry done through an Inquiry Officer: Here, the proceedings were never reported to the "Authority" by the Authorised Officer either under rule 6(4) or rule 7-A of the said Rules. There was, therefore, no occasion for the Authority (respondent No. l) to have ordered de novo inquiry under rule 8 of the E&D Rules, 1975. Equally,, there was no warrant for invoking the revisional powers available to the Government under rule 18 of the aforesaid Rules. The reason is that the Secretary Agriculture was himself the "Authority" in this case and consequently he could -not invoke the revisional powers of the Government under rule 18 (ibid). The minor penalty of "censure" awarded to the appellant by the Authorised Officer was final in itself and the same could not have been tinkered with by respondent No. l under the revisional powers which only lay with the Government. Undoubtedly, the. Secretary Agriculture would be "Government" under the Punjab Government Rules of Business, 1974 but where he himself is the "authority", it would be against all canons of justice if he is allowed to exercise revisional powers. It -is noteworthy that, power of revision is always exercised by a higher authority/forum. For facility of reference rules 18 of the P.C.S (E&D) Rules, 1975 may be reproduced in verbatim:-- "(18) Revision.--(I) The Government may call for and examine the record of any proceedings before any authority for the purpose of satisfying as to the correctness, legality or propriety of any findings of penalty or order recorded or passed and as to the regularity of any proceedings of such authority. (2) On examining any record under this rule, the Government may direct the authority to make further inquiry into the charges of which the accused has been acquitted or discharged, and may in its discretion, exercise any of the powers conferred on an appellate authority. Provided that any order under this rule made prejudicial to the accused shall not be passed unless he has been given an opportunity to show cause against the proposed action. Provided further that an order imposing punishment shall not be revised suo motu or otherwise after the lapse of period of one year from the date of its communication to the accused if no appeal is preferred. (3) No proceeding by way of revision shall be entertained at the instance of the accused who has a right of appeal under these Rules and has not brought the appeal. " The terms "any authority" used in sub-rule (1) and "the authority". used in sub-rule (2) of the aforementioned rule 18, means an authority below the Government, otherwise it would be unconscionable if the same very authority passes a direction against itself to "make further inquiry" etc. I, therefore, hold that respondent No. l in the circumstances of this case had no authority either under rules 6(4) and 7-A or 18' of the Punjab Civil Servants (E&D) Rules, 1975 to set aside the penalty of censure awarded by the authorised officer and to direct a de novo inquiry by appointing another authorised officer. The impugned orders, dated 15-4-1999 are, therefore, held to be per incuriam and are thus set aside.

11. Let us now take up the proposition involved in the ether Appeal No. 1561 of 1999. Whether in the given circumstances, respondent No. l was competent to order repatriation of the appellant to the Water Management Wings" It is borne out from the record that after taking option from the appellant, Director Floriculture had passed the following order on 26-8-1992:-- "Mr. Sohail Iqbal; Sub-Engineer (Water Management Wing) who was transferred and posted in Bagh-i-Jinnah, Lahore, for 3 years by the Government vide No.SO(A-II) 18-4/85, dated 24-5-1987, is hereby adjusted in the office of the Superintendent, Government Garden, Bagh-i-Jinnah, Lahore, permanently against vacant post of Sub-Engineer, with immediate effect. He will not retain any lien in the office of Director-General Agriculture (Water Management) Punjab, Lahore. "

12. When the appellant stood permanently absorbed in the Directorate of Floriculture and it was made clear that he would not retain any-lien in the Directorate of Agriculture (Water Management), Lahore, how could he be sent back in the manner he had been ordered to be repatriated by respondent No.

1. It was obviously an order which was devoid of any legal sanctity inasmuch as he was adjusted permanently and his lien with the Water Management had come to an end.

13. As a natural corollary to the above discussions and findings, the orders impugned in both the appeals are set aside with the result that the appellant shall stand reinstated in service from the date of his suspension and shall also be entitled to retain the official residence as before. There shall be no order as to costs. H.B.T./11/(Sr. Trib) Appeal allowed.