P L D 1962 Supreme Court 22 (PLP)

S. A. RAHMAN, J.‑

This order will dispose of four appeals Nos. 25 to 28 of 1961. The respondents to these appeals were Assistant Teachers of Primary Schools under the control of the Cantonment Board, Rawalpindi. They were screened out of service, as a result of proceedings taken under the Public Conduct (Scrutiny) Ordinance, 1959 (Ordinance III of 1959), as amended from time to time and the rules framed there under. They challenged the action of the relevant authorities by petitions for writs to the High Court of West Pakistan, wherein they prayed that the orders of their removal be quashed. The High Court, by a consolidated judgment, set aside the order passed by the appointing authority in each case and directed that the Chairman and Member of the Screening Committee, who were impleaded as respondents to the petitions in the High Court, should supply copies of the finding and the recommendation of the Screening Committee to the respondents; an opportunity to put in "appeals" as permitted by the Rules framed under section 8 of the Ordi?nance should be allowed to them and then the cases be disposed of in accordance with law. Special leave was granted to the Director of Military Lands and Cantonments and the two Members of the Screening Committee to consider :‑ "(1) Whether the High Court had jurisdiction to interfere with the order of the appointing authority in the circumstances of the case, or to grant the relief to the respondents, which it has actually done ; (2) whether the provisions of rule 6 of the Public Conduct (Scrutiny) Rules, 1959 are mandatory or directory, and (3) whether the High Court has correctly applied the decision of this Court in the case of Zafrul Ahsan v. The Republic of Pakistan, to the facts of the present case. The material facts are these. A Screening Committee was constituted under section 3 of Ordinance III of 1959, for screening the employees serving under the Cantonment Board, Rawalpindi. This Committee consisted of Col. M. A. Durrani, the second appellant, as Chairman, and Mr. Zinda Khan Mahmud, the third appellant, as Member. On the 25th of September 1959, the Committee issued notices to the four respondents to these appeals, calling upon them to show cause why they should not be removed from service for gross inefficiency and misconduct. The notices gave them time to submit their explanations by the 280 of September 1959. These explanations were duly submitted on that date. That very day, the Screening Committee made its recommendation to the appointing authority, the first appellant, that at the respondents be removed from service. The first appellant, ordered their removal from service in each case by order, dated the 29th of September 1959. Various grounds of attack were raised in the High Court against the impugned orders. The main ground of decision in that Court, however, was that the appointing authority had omitted to allow the petitioners fifteen days' time to prefer "appeals" against the recommendation of the Screening Committee, as required by Rule 6 of the Public Conduct (Scrutiny) Rules, 1959. Rule 7 of these Rules again made it incumbent upon the appointing authority to consider the "appeal" submitted by the person concerned, tinder Rule; 6, along with the recommendation of the Screening Committee and then to pass final orders. On account of failure to comply with these Rules, it was said, the impugned order was vitiated and could not be said to fall within the four corners of the Ordinance. The bar of jurisdiction of Courts to interfere with the order passed, provided by section 10 of the Ordinance was therefore, held to be inapplicable. Reliance in this connection was laced on an authority of this Court, reported as Zafrul Ahsan v. The Republic of Pakistan ((1960) P S C R 41 = P L D 1960 S C. (Pak.) 117). The contention of the appellants in the High Court that the Public Conduct (Scrutiny) Rules, 1959, did not have the force of law, was negatived. It was found that the Rules formed an integral part of the Ordinance and their transgression was tantamount to violation of a provision of the Ordinance itself. To appreciate the points raised in this Court, it seems necessary to set out briefly the history of the relevant legislation. Ordinance III of 1959 was promulgated by the President, "in pursuance of the Proclamation of the Seventh Day of October 1958, and in exercise of all powers enabling him in that behalf", on the 21st January 1959 and it was published in the Gazette Extraordinary, dated the 24th of January 19'

59. Originally section 2 of the Ordinance provided that it would apply to "persons in the service of Pakistan, within the meaning of Article 218 of the late Constitution and to persons holding the office of Governor, Judge of the Supreme Court or a High Court, Auditor and Comptroller‑General, Attorney‑General and Advocate General". On the 21st March 1959, section 2 of the Ordinance was amended by the Public Conduct (Scrutiny) (Amendment) Ordinance, 1959. The words "holding the office of Governor, Judge of the Supreme Court or a High Court, Auditor and Comptroller ?General, Attorney‑General and Advocate‑General" occurring in section 2 were replaced, in pursuance of this amendment, by the words "holding by appointment or nomination of the Central or a Provincial Government, an office or employment, in a Public Statutory Corporation". Till this amendment was effected, the Ordinance did not cover the case of any category of employees of "Public Statutory Corporation" like the Cantonment Board. Even this amendment confined the purview of the Ordinance to hose employees of a "Public Statutory Corporation" who had received their appointment or nomination at the hands of the Central or a Provincial Government. By Ordinance XL of 1959, promulgated on the 23rd of July 1959, and published in the Gazette Extraordinary, dated the 24th July 1959, further amend?ment was made in the Ordinance and Its scope was enlarged by substituting the words "by appointment or nomination of the Central or a Provincial Government, an office" occurring in section 2 of the Ordinance, by the words "a whole time paid office". Henceforth, therefore, a whole time paid officer under a Canton?ment Board could be proceeded against, in pursuance of the provisions of the Ordinance. On the same day, another enactment, Ordinance XLI of 1959, came into force and section 2 thereof was expressed in the following terms :‑ "Nothing In any law, rule or instrument having the force of law shall prevent a person holding a whole time paid office or employment in a public statutory corporation, whose conduct has been scrutinised by a committee constituted and empowered under the Public Conduct (Scrutiny) Ordinance, 1959, from being :‑ (a) suspended, reduced in rang, removed or dismissed for being corrupt or for misconduct or for inefficiency, or (b) retired for any cause mentioned in the preceding sub? clause, or for having the reputation of being corrupt, on such pension (if any), as may be admissible to him, pro?portionate or otherwise, by an order of the authority which appointed him, made not later than the thirtieth day of September 1959." By an amendment, effected by means of Ordinance LIV of 1959, promulgated on the 29th September 1959, and published in the Gazette Extraordinary, dated the 30th of September 1959, the terminal date, mentioned in section 2 of Ordinance XLI of 1959, was altered to the 30th day of November 1959. The general scheme of Ordinance III of 1959 may now be briefly surveyed. Section 3 of the Ordinance empowers the Central Government to "constitute or direct to be constituted, one or more Committees, sole or corporate, to scrutinise the conduct of any person to whom this Ordinance applies and to record a finding thereon and to make a recommendation as to punishment or other action". Section 4 enacts that "every finding recorded by a Committee under section 3 shall together, in the case of a finding against the person concerned, with the recommendation provided fur in that section, be submitted to the authority by which the person concerned was appointed, hereinafter called the appoint?ing authority, and that authority shall pass orders thereon according to law". Sections 5, 6, 7 and 9 provide for procedural matters, in respect of the Committee's power to summon witnesses or to procure evidence for the purpose of the enquiry. Section 8 confers powers on the Central Government to make rules to carry out the purposes of the Ordinance, by notification in the Official Gazette Section 10 enacts that no Order, proceeding or finding of a Committee or of an appointing authority shall be questioned in any court Section 11 makes it clear that the Committee would be bound to follow any directions issued by the Central Govern?ment or authority nominated by it, as to policy or procedure. Section 12 shuts out any assistance to the person appearing before a Committee, by a friend, adviser or legal practitioner. The Public Conduct (Scrutiny) Rules, 1959, were framed in exercise of the powers conferred by section 8 of the Ordinance and published in the Gazette Extraordinary, dated the 24th January 1959. It is significant that in rule 2, certain types of misconduct and inefficiency are specified as grounds on the basis of which the Committee could call upon the person concerned to explain the circumstances appearing against him. Rule 4 requires the Com?mittee to consider the explanation, if any, offered under rule 3, by the person whose conduct is under enquiry and to submit a finding to the appointing authority along with its own recommend?ation. The effect of rules 6 and 7 is that where a finding adverse to the person concerned has been recorded, "a copy of the finding and the recommendation of the Committee shall be furnished to him forthwith and he shall be entitled within 15 days of the receipt thereof to appeal against it to the appointing authority?". Having considered the finding, the recommendation and the appeal, if any, the appointing authority would be entitled to pass an order or refer the proceedings to such advisers as he may think fit and pass an order after considering their opinions. The order thus passed would be immune from attack by any appeal. The first point urged before us by the learned Advocate ?General, on behalf of the appellants, is that the Ordinance itself did not provide for an appeal by the person proceeded against and the provision with regard to it, contained in rule 6, therefore, had no statutory force. It is contended that the rule is only of an administrative character and conferred no legal right on the respondents to insist that an "appeal" preferred by them should be considered. As has been pointed out by the High Court, however, the rules have been clearly framed under the authority conferred on the Central Government by section 8 of the Ordi?nance, and without the rules, the scheme of the Ordinance would remain incomplete. The Ordinance by section 4 makes it obliga?tory on the appointing authority to pass orders "according to law". But there is no specification of the law in the Ordinance itself. It is, therefore, to be presumed that the relevant law is contained in the various service rules, pertaining to the persons proceeded against or the constitutional provisions applicable to them. It e seems that with a view to ensure uniformity of treatment of all persons covered by the Ordinance, a shot t procedure was prescribed in the rules in super session of the various sets of service rules or bye‑laws that would ordinarily govern the servants of the State or of the Public Statutory Corporations. The phrase "shall pass orders thereon according to law" in section 4 of the Ordinance would seem therefore to comprehend the rules framed under the Ordinance. A valuable right is conferred on the person concerned by rules 6 and 7, of making a representation to the appointing authority, against the findings of the Screening Committee though it is described as an "appeal" before his case is finally dealt with Without such a representation, the appointing authority would not be in a position to consider all the relevant aspects of the case. Indeed in its absence, the procedure might savour of arbitrariness, in so far as it would violate the principle of natural justice that no one should be condemned unheard. The Rules, therefore, appear to stand on the same footing as the substantive provisions of the Ordinance and their Infraction would have the effect of taking the order passed, out of the purview of the Ordinance itself. As was held by this Court in Zafrul Ahsan's case, if a statute provides that an order, made by an authority acting under it, was not to be called in question in any Court, the conditions necessary for ouster of the jurisdiction of the Courts would be that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action was taken should be within the grounds stated by the statute and the order made should be such as could have been made under the statute. The first three conditions are satisfied in the present case, but the fourth one has been clearly transgressed. The provision in this behalf appears to be of a mandatory character. An essential part of the procedure, envisaged by the Ordinance designed to ensure a fair hearing to the person concerned, has not been complied with. The impugned order, therefore, could not be said to be immune from challenge, in view of the bar raised by section 10 of the Ordinance, as the appointing authority's order did not strictly fall within the Ordinance. The alternative position was then adopted by the learned Advocate‑General that in any event, the rules framed under section 8 of the Ordinance did not apply to employees of public statutory corporations, as distinguished from State servants. It was argued that the rules were promulgated on the 21st January 1959 by the Central Government, though they were published in the Gazette, dated the 24th January 1959. At that time, the Ordinance applied only to State servants and its scope was extended to include all employees of public statutory corporations, only on the 23rd/24th July 1959. It was suggested that Ordinance XLI of 1959, in any case, had the effect of altering the position so far as employees of statutory corporations were concerned and they henceforth ceased to be governed by the rules framed under the Ordinance., There !s, however, nothing in the language of Ordinance XLI of 1959 to indicate that this Ordinance was intended to displace the rules framed under section 8 of Ordi?nance III of 1959, so far as employees of corporations were concerned. Ordinance XLI of 1959 was apparently designed to enlarge the scope of penalties imposable on persons holding office or employment in public statutory corporations as is expressly mentioned by the preamble to this Ordinance. It did not lay down any different procedure under which such employees could have been dealt with. The supplementary provisions of this Ordinance can stand with Ordinance III of 1959 and the rules framed there ?under as there seems to be no inconsistency between those rules and the provisions of this Ordinance. In the absence of words, expressly excluding the procedure envisaged by the rules framed under section 8 of Ordinance III of 1959, a change could have been only effected in the procedural position qua employees of statutory corporations, if the language of Ordinance XLI of 1959 had that effect by necessary intendment. We can discover no words in that Ordinance, however, , which could lend support to such an argument. Learned counsel then suggested that the interpretation adopted by us would tend to defeat the provisions of Ordinance XLI of 1959, whose force was originally to expire by the thirtieth day of September 1959. As in the present cases the proceedings of the Scrutiny Committee were finalised only on the 28th of September, there was no time left for compliance with rules 6 and 7 of the Public Conduct (Scrutiny) Rules, 1959. The learned counsel contends that the respondents should not be permitted to invoke to their aid the provisions of the rules in these circumstances as, would render the action taken infructuous. It is difficult to appreciate this argument. Ordinance XLI of 1959 was a tempo?rary measure and the authorities concerned had to act under it within the time limit fixed by the legislative authority. If proceed?ings could not be completed within the relevant date, they would become infructuous with the efflux of time. This is the normal incident of a temporary enactment, not peculiar to Ordinance XLI of 1959. The contention raised is without any substance. The learned Advocate‑General then pressed upon us to con‑1 sider that the respondents had an opportunity to put In their "appeals" during the time extended by Ordinance LIV of 1959, even though the appointing authority had already passed his final order. This position again appears to us to be unsound. The final order its‑.elf stood vitiated by the failure of the appointing authority to grant the necessary time required by law for an appeal to be preferred to him. This "appeal" had to be considered by the authority himself prior to the passing of the order. There is no provision in the Ordinance, enabling the authority to review his own order, and it would be idle to contend that after the authority 'lad purported to pass a final order, a representation by way f an "appeal" in the sense contemplated by the Ordinance could till be sent to him. No case has been made out for interference with the order passed by the High Court and these appeals are dismissed with costs. A.H.???????????????????????????????????????????????????????????????????????????????????????????????????? Appeals dismissed.