P L D 1964 (W (PLP)

ANWARUL HAQ, J.‑A charge‑sheet was served on the petitioner, Mian Muhammad Hayat, Superintending Engineer (under suspension) of the Irrigation Department, and while submitting his reply to the charge‑sheet he desired to be heard in person. The Government first appointed Mr. H. J. Asar, Chief Engineer, Re‑modelling. Irrigation, Lahore, to conduct the inquiry against the petitioner, but subsequently a fresh order was passed appointing Mr. Moiz‑ud‑Din Ahmad. C. S. P., Member, Board of Revenue, West Pakistan. as Inquiry Officer. By means of the present petition, the appointment of Mr. Moiz‑ud‑Din Ahmad, as Inquiry Officer. has been challenged as being illegal, void and ultra vires and a prayer has been made that the proceed ings against the petitioner be quashed.

2. The grounds urged in support of the petition are: (a) That when the petitioner intimated to the Government, while furnishing his explanation to the charge‑sheet, that he wanted to be heard in person, the procedure to be adopted was the one described in rule 6 (iv) (c) of the West Pakistan Govern ment Servants (Efficiency and Discipline) Rules, 1960, (herein after referred to as the Rules), but instead the Government have ordered an inquiry under rule 8, thereby depriving the petitioner of the benefits of the inquiry mentioned in rule 6 (iv) (c) ; (b) that, in any case, Mr. Moiz‑ud‑Din Ahmad, although an officer of the C. S. P. and a Member of the Board of Revenue, cannot be regarded as an officer senior in rank to the petitioner as required by rule 8, as he belongs to an entirely different class of officers, not being a member of the Engineering Service or the Engineering Department ; (c) that the inquiry ordered by the Government is vitiated for the reason that the Government has not anywhere recorded the decision, as required by sub‑rule (ii) of rule 6, that the allegations against the petitioner, if proved, will call for a major penalty; and (d) that as the allegations arises out of a first information report recorded by Inspector Muhammad Asghar of the C. I. A. under Martial Law Regulations Nos. 20‑A and 32 on the 4th of September 1960 against certain officers of the Irrigation Department, and as the Government intends to rely on certain admissions alleged to have been made by the petitioner while appearing as a prosecution witness at that trial, the petitioner is protected by sections 7 and 8 of the President's Order No. 26 of 1962.

3. The first three contentions raised by the learned counsel for the petitioner clearly relate to the terms and conditions of the petitioner's service under Government, and the question is whether for that reason the case is not hit by the prohibition contained in clause (b) of sub‑Article (3) of Article 98 of the Constitution. It will be seen that the power given to this Court under sub‑Article (2) of Article 98 of making orders in respect of cases mentioned in clauses (a) and (b) of that sub‑Article is trot to be exercised "on an application made by or in relation to any other person in the service of Pakistan in respect of his terms and conditions of service, except a term or condition of service that is specified in this Constitution". The terms and conditions of service of persons in the service of Pakistan are mentioned in Part VIII of the Constitution. The two main guarantees given to such persons, contained in Article 177, are to the effect ; (a) that no person in the service of Pakistan shall be dismissed or removed from service or reduced in rank by an authority subordinate to that by which he was appointed unless that subordinate authority has been expressly empowered to do so by an authority not so subordinate, and (b) that he shall not be dismissed or removed from service or reduced in rank unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken with respect to him.

4. In the present case, the stage of dismissal or removal etc., has not yet been reached and, therefore, no question of infringement of the first guarantee mentioned above arises. As regards the second guarantee, it is clear that unless and until the proceedings against the petitioner are finalised, it cannot be ascertained whether any order which may be made against him directing his dismissal or removal from service or reduction in rank has or has not been made after giving him a reasonable opportunity of showing cause against the proposed action. The departmental proceedings against the petitioner are yet at a preliminary stage in the sense that only a charge‑sheet has been served and he has furnished his explanation to that charge‑sheet, but the inquiry has not yet commenced. We consider, therefore, I that the present application by the petitioner, in so far as it relates to the first three contentions raised on his behalf, is hit by the prohibition contained in clause (b) of sub‑Article (3) off Article 98 of the Constitution of 1962, with the result that this Court is not in a position to make any order on this application.

5. It was, however, contended by Mr. Muhammad Shafi, the learned counsel for the petitioner, that if the inquiry is not conducted in accordance with the service rules applicable to the petitioner, it is possible that ultimately the result may well be a denial to the petitioner of a reasonable opportunity of showing cause against the action proposed to be taken against him ; and in that event the time and labour spent in conducting the inquiry now under challenge and the hardship undergone by the peti tioner during this process will all have been to no purpose. This submission of the learned counsel is not entirely without force and we, therefore, proceed to examine the various contentions raised by him even with reference to the service rules.

6. As regards the first contention, we consider, with great respect to the learned counsel for the petitioner, that it is based on a misunderstanding of the true scope of rules 6 and

8. Rule 6 is divided into several parts which lay down the procedure to be observed in case an inquiry is to be held against a Govern ment servant on charges of inefficiency, misconduct and corrup tion. Sub‑rule (i) of rule 6 lays down that the authority may, if it thinks fit, appoint an officer of the Department to examine the report on the allegations against the Government servant concerned so as to enable the authority to decide whether a formal inquiry should be held or not. This sub‑rule permits the informal examination of the accused offices. It will be seen that this inquiry is in the nature of a Preliminary inquiry so as to enable the competent authority to make up its mind whether a formal inquiry is necessary or not into the allegations against the Government servant concerned. Sub‑rule (ii) of rule 6 then takes the matter a step further and it enjoins that if the authority decides that a formal inquiry should be held, then the authority must decide further whether the allegations, if established, would call for a minor or a major penalty. Once this decision is taker, then in a case calling for a minor penalty the procedure to be observed is that contained in clauses (a), (b) and (c) of sub‑rule (iii) of rule

6. But if the case calls for a major penalty then the authority is to proceed in accordance with the various clauses of sub‑rule (iv) of rule

6. The first step in such a case is to frame a charge and commu nicate it to the accused together with a statement of the allega tions on which it is based and of any other circumstances which the authority proposes to take into consideration when passing orders on the case. This step has been taken in the present case and a charge‑sheet has been served on the petitioner. Clause (b) of sub‑rule (iv) then comes into play and the accused person is to be required to furnish his explanation within a reasonable time which shall not be less than seven days nor more than fourteen days from the day the charge has been communicated to him. Along with this explanation or written defence, the accused officer is also required to state whether he desires to be heard in person. The petitioner has submitted his explanation to the charges framed against him and has also expressed his desire to be heard in person. Thus the requirements of clause (b) of sub‑rule (iv) have also been met.

8. Now comes the stage contemplated by clause (c) of sub rule (iv). It will be useful to reproduce verbatim this clause, as the contention raised by the learned counsel concerns the interpretation which is to be placed on this clause as well as on clause (c) of sub‑rule (b) of rule 6 runs as under :‑ "If the accused so desires, or if the authority so directs, an oral enquiry shall be made by an Inquiry Officer to be appointed under rule 8 at which oral evidence shall be heard as to such of the allegations as are not admitted, and the accused shall be entitled to cross‑examine the witnesses against him, to give evidence in person and to have such witnesses called for the defence as he may wish ; provided that the Inquiry Officer may, for reasons to be recorded in writing, refuse to call a particular witness or to summon or admit parti cular evidence."

9. Clauses (d) and (e) of sub‑rule (iv) are not directly rele vant but, however, a brief mention may be made of their contents. Clause (d) relates to the question whether the accused officer shall be allowed to engage a counsel or not and clause (e) directs that the proceedings of the Inquiry Officer shall contain a sufficient record of the evidence led at the inquiry and the Inquiry Officer's report of his findings and the grounds thereof.

10. Rule 8, under which Mr. Moiz‑ud‑Din Ahmad has been appointed as Inquiry Officer, is to the following effect :‑ "(1) Where a Government servant is proceeded against under clause (a), or clause (b) or clause (c) of rule 3, and the authority decides that the allegations against him, if proved, call for a major penalty, the authority shall appoint an officer, senior in rank to the person proceeded against, to be Inquiry Officer and to conduct the proceedings against him. (2) The Inquiry Officer shall bear the case from day to day, and no adjournment shall be given except for reasons to be recorded in writing. Every adjournment, with reasons therefor, shall be reported forthwith to the authority. No adjournment ordinarily shall be given for more than a week. (3) If the Inquiry Officer is satisfied that the Government servant proceeded against Is hampering or attempting to hamper the progress of the inquiry he shall administer warning to him and if thereafter he is satisfied that the accused is acting in disregard of the warning he shall record a finding to that effect, and proceed to complete the inquiry in such manner as he thinks best fitted to do substantial justice. (4) The Inquiry Officer shall, within ten days of the conclu sion of the proceedings, or such longer period as may be allowed by the authority submit his findings and the grounds thereof to the authority."

11. The contention put forward by the learned counsel for the petitioner is that once the accused officer intimates under the provisions of clause (b) of sub‑rule (iv) of rule 6 that he desires to be heard in person, then an inquiry is to be imme diately held under clause (c) of this sub‑rule, and that this inquiry is different from the one contemplated under rule

8. It is argued that in the present case, by ordering that the inquiry shall be under rule 8, the Government has deprived the petitioner of his valuable right of having the first inquiry held under clause (c) of sub‑rule (iv) of rule

6. It will be observed that the inquiry mentioned in sub‑rule (c) is to be held by an Inquiry Officer to be appointed under rule

8. Clause (c) does not say that the inquiry is to be held by an Inquiry Officer to be appointed in the same manner as an Inquiry Officer under rule

8. This clause refers particularly and specifically to the Inquiry Officer to be appointed under rule

8. If the inquiry contemplated by clause (c) of sub‑rule (iv) was different from the one contemplated by rule 8, it appears to us that it could not have been entrusted to the same officer who is to be appointed under rule 8, for it is clear that it would be useless to ask the same officer to conduct the same inquiry twice, one after the other, into the same allegations and against the same accused person. Further, rule 8 does not mention any different inquiry, but only lays down the procedure to be observed by the inquiry Officer appoint ed under this rule. The opportunity to be given to the accused officer and the rights which he shall enjoy during such an inquiry are contained in clause (c) of sub‑rule (iv) of rule 6, and there is no mention of them in rule

8. If the inquiry contemplated in clause (c) of sub‑rule (iv) of rule 6 was different from the one under rule 8, then the same provisions would have been repeated in the body of rule 8 as well. It is clear, therefore, that the enquiry, which is mentioned in clause (c) of sub‑rule (iv) or rule 6, is the inquiry which is to be held in such cases, once the accused officer has furnished his explanation and desires to be heard in person or if the authority so directs ; and there is no question of holding a further inquiry under rule 8 which merely makes provision for the manner of appointment of the officer who is to conduct the inquiry is question, and lays down some more procedural formalities which are not mentioned in clause (c) of sub‑rule (iv) of rule

6. The last sub‑rule of rule 8, i.e., sub rule (iv), then prescribes the final stage in the inquiry proceedings, namely, that the Inquiry Officer shall within the specified period submit his findings and the grounds therefor to the competent authority. Reading rules 6 and 8 together, no doubt is left in our mind that there is only one formal inquiry contemplated by the rules, and it is fallacious to argue that these rules contemplate two successive inquiries before the same forum. It is immaterial, therefore, whether this inquiry is described as one under rule 6 (iv) (c) or rule 8 of the rules. 12 We may now turn to the second contention raised on behalf of the petitioner, namely, that the Inquiry Officer appointed in this case is not an officer senior in rank to the petitioner, as required by rule

8. It has already been stated that, in this connection, the argument put forward is that Mr. Moiz‑ud‑Din Ahmad belongs to an entirely different class of Government servants and, therefore, he cannot at all be treated as being senior in rank to the petitioner as the two cannot be compared. In support of this contention, the learned counsel has referred us to the definition of the word "rank" in the Oxford English Dictionary. According to this definition, "rank" means (a) An aggregate of individuals classed together ; a social class ; an order ; a division ; (b) relative position or order as one in a group, series etc. relative standing ; (c) Grade of official stand ing as in the army, navy or nobility ; (d) Degree of dignity, eminence, or excellence, also relative position in civil or social life or in any scale of comparison ; status ; grade ; as a writer of the first rank.

13. According to the learned counsel, the first part of this definition makes it clear that a comparison of rank can take place only between individuals classed together. Applying this definition to the present case, it is submitted that only an officer of the Engineering Service or the Engineering Department can be treated as being senior in rank to the petitioner for the reason that officers of other departments cannot be said to be individuals classed together with the petitioner. In order to strengthen his submission, the learned counsel referred us to the entries in the Civil List of the Government of West Pakistan which show Mr. Moiz-ud‑Din Ahmad in a separate cadre of the C. S. P., whereas the petitioner is shown in a different cadre of Engineers on a different page of the Civil List.

14. It will be observed that the word "rank" has two distinct connotations. In the first place, it is used to describe collectively a group of individuals classed together as distinct from another group or class. In this sense it does no, necessarily and directly involve a comparison of the degree of "eminence, dignity or excellence" attaching to these groups. for instance, the phrase "among the ranks of politicians or lawyers" is frequently used to refer to these classes of persons collectively. In the second sense the word "rank" is used to denote the relative position of a person in a group or class or social order. It seems to us that it is in this sense that the word "rank" has been employed in rule

8. It is common knowledge that officers of Government have always been regarded as a class or a distinct group, irrespective of their sub divisions into different categories like Doctors, Engineers, Teachers, Members of the C. S. P. or of the P. C. S. and so on. In many countries they are collectively spoken of as "Civil) Servants". In Pakistan, one frequently hears the phrase "Officer) Class" being used to describe the upper categories of Government employees. There is nothing in rule 8 to indicate that the choice of the Inquiry Officer must be limited to the department to which the accused officer belongs. If that was indeed the intention, then we see no reason why it should not have been, made clear as his been done, for instance, in clause (i) of sub‑rule (1) of rule 6, where it is especially enjoined that the) authority may appoint an officer of the department to which the) Government servant belongs to examine the allegations against him. Another aspect of the matter is that if rule 8 is interpreted so as to mean that "an officer senior in rank" can only be from the same department to which the accused officer belongs, then it will become impossible to find such an officer if the accused officer happens to be the senior most in his own department. It is thus clear to us that the words "an officer senior in rank" to the person proceeded against, used in rule 8, mean that the Inquiry Officer must be an officer of Government and that in the heirarchy of Government Officers he must occupy a position or grade higher than the accused officer.

15. Now the question is how to determine whether "an officer is senior in rank" to another. One obvious criterion is the salary drawn by the two officers who are being compared. Another guide is furnished by what is known as the "warrant of precedence" prescribed by the Central Government, indicating the relative position or seniority enjoyed by officers inter se, and vis‑a‑vis the holders of representative offices and other members of the public occupying high social rank. Judged by both these criteria, Mr. Moiz‑ud‑Din Ahmad, who is a Member of the Board of Revenue, is clearly an officer senior in rank to the petitioner who is a Superintending Engineer, drawing less pay and occupying a much lower position in the "Warrant of/ Precedence". Thus we see no illegality in the appointment o if Mr. Moiz‑ud‑Din Ahmad as Inquiry Officer in this case.

16. The next contention raised on behalf of the petitioner is that before ordering the inquiry under rule 8, the Government had to decide whether the allegations, if proved, would call for a major penalty, but no such decision has been taken in this case. In support of this contention, the learned counsel referred us to Muhammad Abdul Rashid v. D. I. G. Police (PLD 1963 B J 37), in which the learned Judges observed as follows in paragraph 4 of the judgment:‑ "The petitioner was charged with a major penalty but the charges were not conveyed to the petitioner by `the authority' as laid down in rule 6 (iv) (a). The authority also did not decide before ordering a formal inquiry whether the allegations, if established, would call for a major or minor penalty. These illegalities go to the root of the legality and competence of the proceedings. As the proceedings were not conducted in accordance with the rules which govern the case the inquiry must be set aside as illegal.

17. It may be stated here that the case before their Lordships was of an Assistant Sub‑Inspector of Police of the District of Rahimyar Khan against whom a disciplinary inquiry had been held under the rules of the former Bahawalpur State, and the main contention put forward on his behalf was that Bahawalpur Police Rules had been superseded by the West Pakistan Government Servants (Efficiency and Discipline) Rules 19‑

0. This contention prevailed with their Lordships and they concluded that the inquiry should have been held in accord ance with the procedure laid down in the new rules and not under the Bahawalpur Police Rules. It will also be observed that in the case before their Lordships the charges were not at all communicated to the petitioner. Now, in the present case, before us, the charges have been communicated to the petitioner and he has already submitted his reply and has also intimated that he wants to be heard in person. We have already discussed at some length the contention raised by the petitioner with reference to clause (iv) (c) of sub‑rule (1) of rule

6. The assumption underlying that contention of the petitioner is that his case is governed by clause (c) of sub‑rule (iv) of rule 6, or, in other words, it is a case calling for a major penalty ; because otherwise this clause would not come into play. Although, therefore, we do not have before us the specific order passed by the Government to the effect that the case of the) petitioner calls for a major penalty, yet the case is being fought out by the petitioner on that basis throughout. Finally, the order of Government appointing the Inquiry Officer is specifically stated to be under rule 8 and that rule does not apply unless the authority decides that the allegations, if proved, shall call for a major penalty. Considering all these factors, we are left in no doubt that in this case a decision has been taken that the allegations against the petitioner call for a major penalty. On this view of the matter, inquiry proceedings cannot be said to be vitiated due to any illegality on the part of the competent authority,

18. We now turn to the last contention raised on behalf of the petitioner, namely, that he is protected under sections 7 and 8 of the President's Order No. 26 of 1962. For facility of reference these two sections may be reproduced here:‑ (7) Protection.‑No Court and, except as provided by this Order, no other authority shall call in question the validity, legality or propriety of anything done or any action or proceed ing taken in connection with the administration of Martial Law by any Martial Law Authority or by any person on behalf of a Martial Law Authority during the Martial Law period. (8) Immunity.‑No Court or other authority shall entertain any suit or any other proceedings whatsoever, against any Martial Law Authority or any person acting on behalf of a Martial Law Authority, in respect of anything done, or purporting to have been done, in connection with the admin istration of Martial Law during the Martial Law period."

19. It will be seen that section 7 reproduced above has no relevance at all in the present context. By starting disciplinary proceedings against the petitioner, the Government is not calling into question the validity, legality or propriety of anything done or action or proceeding taken in connection with the adminis tration of Martial Law by any Martial Law Authority or by any person on behalf of a Martial Law Authority during the Martial Law period. It is true that the petitioner did appear as a prosecution witness in a trial held under Martial Law Regulations or under the orders of the Martial Law Administrator Zone B, but the inquiry against him does not, in any way, seek to call in question the validity; legality or propriety of the petitioner's appearance as a prosecution witness in that trial ; nor do the present proceedings, in any way, question the propriety or legality of that trial itself or the conclusions reached therein.

20. As regards section 8, we are again of the view that it has no application either. This section comes into play if the act challenged was done or purporting to have been done by a Martial Law Authority or on behalf of a Martial Law Authority in connection with the administration of Martial Law during the Martial Law period. The petitioner was obviously not a Martial Law Authority and, therefore, he can be entitled to the immunity granted by section 8 only if it can be shown that he was acting on behalf of a Martial Law Authority. Now the question is whether a person, who appears as a prosecution witness in a trial under Martial Law Regulations, can be said to be acting on behalf of Martial Law Authority.

21. The answer to this question depends on what is meant by the phrase "any person acting on behalf of a Martial Law Authority". This is familiar terminology and usually indicates the setting up of a relationship of principal and agent or principal and delegate. The agent or delegate does not act in his own right or by virtue of his own powers or privileges, but merely does acts on behalf of, or in the name of the principal‑‑acts which the principal may well have performed himself, but chooses to have them performed through or by another person. It is clear that the acts spoken of in this context are those which appertain to the functioning of the Martial Law Authority as such and thus necessarily involve the exercise of power which has either been expressly vested in, or assumed by, the Martial Law Authority, or is to be deemed to reside in that authority by virtue of the situation arising on the imposition of Martial Law. Such being the case, it becomes necessary on the lifting of Martial Law to extend the same protection to "this other person" as is being granted to the Martial Late Authority itself in respect of such acts.

22. The ordering of Martial Law trials was one of the many acts which were being performed by Martial Lax Authorities, but these authorities could not possibly also appear as prosecution witnesses at these trials, for the facts might no have been within their personal knowledge. Thus other person had to be called as witnesses. These other persons might have either appeared voluntarily, of had to be compelled to attend, They could, no doubt, in common parlance, be described as appearing on behalf of the prosecution or even the Martial Law Authority, but they could not be said to be acting on behalf of the authority ordering the trial, for the reason that their appearance as a witness at the trial did not involve the exercise of any power vested in the Martial Law Authority and also because in the majority of cases it was not an act which the Martial Law Authority itself could have performed. To put it differently, a person who appears as a witness at the trial for either the prosecution or defence, cannot be said to be acting on behalf of the side which calls him as he is not performing any act as an agent of delegate of the party concerned. He is no exercising any power or authority on behalf of the party calling him, but merely disclosing what may be within his knowledge regarding the subject‑matter of the trial. We consider, therefore, that the mere fact that ;he petitioner appeared as a prosecution witness in a Martial Law trial against certain Irrigation Officers does not bring his case within the ambit of section 8 of the President's Order No. 26 of 1962.

23. Even if we assume, for the sake of argument, that the appearance of the petitioner as a prosecution witness was an act on behalf of the Martial Law Authority, yet we find that there is no charge against the petitioner in respect of his appearance as such witness at the Martial Law trial in question. All that the Government has done is to cite the petitioner's statement at that trial as a piece of evidence against him in support of the charges which relate to his functioning as a Superintending Engineer, and have nothing to do with the administration of Martial Law as such. The charges framed against the petitioner are confined solely to his functioning as an Engineer and do not seek to punish him in any manner for his act of appearing as a prosecution witness at a Martial Law trial. It was contended by the learned counsel that the evidence given by the petitioner at the Martial Law trial cannot be used against him as it comes within the purview of the immunity granted by section 8, referred to above. We are unable to accept this contention. The immunity given by section 8 is intended to protect the Martial Law Authority or persons acting on its behalf from any penalties or claims for damages which may be brought against them after the lifting of Martial Law, but the immunity clause does not say a word as to whether the records of Martial Law trials can subsequently be used for any collateral purpose or not. The petitioner's evidence recorded on oath during the Martial Law trial appears to us to be a piece of evidence in the nature of his previous admissions, which would be admissible in any subsequent proceedings in accordance with the law of evidence by which those proceedings are governed. All that we wish to say at this stage is that the immunity section does not appear to us to extend to the petitioner or to the petitioner's evidence given before the Martial Law Court. Our observations should not, therefore, be regarded as concluding the question of the admissibility of this piece of evidence in the departmental proceedings. It will be open to the petitioner to agitate that point before the Inquiry Officer, if he is so advised.

21. In view of the foregoing reasons, we do not see any merit in this petition which is dismissed in limine. A. H. Petition dismissed.