P L D 1964 Supreme Court 321 (PLP)

CORNELIUS, C. J.

The appellant in this appeal by special leave is Mian Muhammad Hayat, a permanent member of an estab lished Provincial Service, namely, the Public Works Department (Irrigation Branch) West Pakistan. His substantive post is that of an Executive Engineer, but he was officiating as Superintending Engineer, when on the 28th March 1963, he was suspended from his office by order of the Governor. We are informed that he has been placed under enquiry on charges of misconduct and corruption, and that an Enquiry Officer has been appointed. On the 4th April 1963, a few days after his suspension, Mian Muhammad Hayat moved a writ before the High Court of West Pakistan for quashment of the order of suspension on the ground of its being without lawful authority. He was governed by the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, of which rule 11 makes express provision for suspension of Provincial Government employees from their office. This rule will be quoted presently, but it may be said at once that the argument raised on behalf of the petitioner was that an order of suspension under rule 11 could not be passed without taking action under rules 6, 8 and 9 of the Rules. From the order made by the Division Bench dismissing the petition, it would appear that the learned Judges understood the contention to be that an order of suspension could not be passed "before framing a charge and communicating it to the petitioner." In fact, the last-mentioned rule only comes into operation after the report of the Enquiry Officer has been received, and has been considered by the relevant authority, and such authority has provisionally determined the penalty to be imposed. Thereupon the accused is to be informed as to such provisional determination and to be supplied with a copy of the report and asked to show cause why the proposed penalty should not be imposed. The learned Judges in rejecting the argument however stated that they could not "agree with the contention that a charge-sheet must first be delivered to the officer before he can be suspended," while adding that they could not also agree that an order of suspen sion must be " preceded by consideration of all the relevant facts under rules 6 and 8". After obtaining from the Provincial Government a report as to the nature of the charges which it was proposed to prefer against Mian Muhammad Hayat, this Court granted leave to appeal in the case on the ground that it raised a question of the true construction of rule I1 aforesaid and it was for considera tion what was "the appropriate stage at which under rule 11 a Government servant may be suspended when a departmental enquiry is decided upon against him". We have heard Mr. Mahboob Elahi for the appellant and the Advocate-General of West Pakistan in support of the order. The new West Pakistan Rules have been made in super session of all previous rules on the subject including Part XII of the Civil Services (Classification, Control and Appeal) Rules, arid certain rules relating to penalties in the Civil Service Rules (Punjab), but not the Fundamental Rules of which Part III has been thought to be relevant in some earlier cases. A rule governing the suspension of public servants generally, such as is rule 11 in the present case, is an innovation, although from several of the authorities placed before us it would appear that express rules on the subject are contained In a number of separate service rules. The Civil Services (Classification, Control and Appeal) Rules and the Punjab Civil Services Rules, both provided suspension as one of the penalties which might be imposed a public servant. Suspension is also mentioned in these Rules in connection with allowances payable during a period of suspen sion. However, in the long period during which the Services in the sub-continent have been governed by rules, including those mentioned above, there have been innumerable cases in which, pending enquiry, public servants have been placed under suspen sion. In a large number of cases after enquiry, such persons have been reinstated, and it would seem clear that the effect of suspension in these circumstances was a temporary severance from office only, and did not involve any form of severance from membership of a service or from being a civil servant, in any sense. The question has been before the Courts on numerous occasions. It was considered by the Dacca High Court in the case of East Pakistan Government v. Husain Ali (P L R 1958 Dacca 820). There, a Government employee had been suspended by order dated the 31st March 1952, but with effect from an earlier date, namely, the 20th August 1951. This action was challenged by the employee in a civil suit and the matter coming before a Division Bench of the Dacca High Court, it was held that there was no contraven tion of any rule governing the service of the plaintiff in the order of suspension made against him, that the suspension was clearly not a punishment, but had been ordered pending an enquiry, that a power to order suspension for purposes of enquiry was implicit in every contract of service, and that no violation of natural justice was involved since the suspension merely involved "temporary privation of office or privilege". It was, however, held that the order of suspension could not be made with retrospective effect. It is useful also to refer to a passage from an earlier case on the same subject cited as Secretary of State v. Surendra Nath (A I R 1938 Cal. 759) reading as follows :-- "The question in this case is whether there was power to suspend. The express clause in the plaintiff's contract dealing with suspension (clause 2) may not be helpful to the defendant, on the ground that the charge of misconduct was not finally established, he being finally acquitted, and he was suspended on the ground of negligence. But clause 3 made him bound by all general rules and regulations of Government service. The rules in Part III of the Fundamental Rules gave to his superiors, in this case the Divisional Superintendent, a power to suspend pending an enquiry into his alleged misconduct. A recent case of suspension of an officer of the Public Works Department (Irrigation Branch) is that of Muhammad Ayub v. The West Pakistan Government (P L D 1957 Late. 487), which is instructive. The judgment of the Division Bench reproduces rule 13'25 in the Manual of Administration of the P. W. D. (Irrigation Branch) relating expressly to suspension and reading as follows :- "13,25. (i) When the investigating officer is satisfied that only `reduction', 'removal' or `dismissal' will meet the case, he must take action under rule 55 of the Civil Services (Classifica tion, Control and Appeal) Rules or rule 1413 of Civil Services Rules (Punjab) Volume I, Part

1. If dismissal is likely to result or it is advisable, in order to prevent the official from tampering with documentary or other evidence, he should be suspended by competent authority (See Fundamental Rules 53-55 or Rules 7,2-7'4, Civil Services Rules (Punjab) Volume 1, Part 1, and Punjab Public Works Department Code, Paragraph 1-34.) (ii) Action under rule 55 of the Civil Service: (Classification, Control and Appeal) Rules, or Rule 14- 13 of Civil Services Rules (Punjab), Volume 1, Part I, should not be taken unless there is a clear case, and the investigating officer is reasonably satisfied that he can establish the charge." This rule would be clearly and directly applicable in the present case as well, were it not that rule 16 of the new West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, states that "these rules supersede all the existing rules and instructions in regard to matters dealt with in these Rules" and proceeds to specify, in particular, certain rules and sets of rule3 which are superseded, but the following observation in the judgment of Akhlaque Hussain, J., will show that the learned Judges did not find the power of suspension pending enquiry to be based upon this rule alone :- "The relevant rule, quoted in the beginning of this judgment expressly gives the Government the power to suspend its servants during the pendency of enquiry into charges against them ; but even in the absence of such a rule we should have found no difficulty in holding that such of the pleasure of the Government which has not been taken away by the Constitution or by the rules thereunder must be deemed to include the power of suspension within reasonable limits." It is provided by Article 176 of the present Constitution that, subject to the Constitution, a member of a Civil Service of a Province "shall hold office during the pleasure of the Governor of the Province." There seems to me to be no difficulty in supposing that an order of suspension pending an enquiry falls within the complete power of the Governor of the Province to decide whether or not such member shall hold the office, which he was occupying immediately before a matter was brought up which might render his further retention in the public service undesirable. As was said in the B3ston Deep Sea Fishing and Ice Company v. Ansell (L R (1888) Ch. D 339), by Cotton, L. J. :- "When a man is suspended from the office he holds, it is merely a direction, that so long as he holds the office, and until he is legally dismissed he must not do anything in dis charge of the duties of his office." It is true that as the judgments in the case of Ansell show, he did not suffer any disability in point of his salary from having been placed under suspension, whereas under the Civil Services Rules (Punjab) which are applicable in the case of the appellant, he is only receiving one-third of his emoluments during his period of suspension. The mere reduction in emoluments is however not to be deemed as a punishment. It is a part of the Service Rules which are accepted by all employees when they accept employment in the public service, and the reduction can be justified on the basis that during the period of suspension, the employee is not serving the Government, and it Is in the interests of the public exchequer that he should not receive his full salary. Under some of the rules obtaining at one time in the sub-continent, the allowance paid during suspension was described as a subsis tence allowance, and was fixed at one-fourth of the salary, which was probably thought, in relation to the prices then prevailing, to be sufficient for mere subsistence. That assumption is probably impossible to make today. I am unable to regard the diminution of remuneration as sufficient to constitute an order of suspension as a penalty, for the simple reason that it is provided by the rules of the services, which every public employee accepts that in the event of suspen sion, his remuneration shall be at such a level. As to the question whether suspension is within the power of the Government, I entertain no doubt that it is within the responsibilities of the executive in respect of the public services, namely, to maintain their standards by ensuring that there are no black sheep among them, and at the same time to maintain the efficiency of the public services and the confidence of the public in those services by eliminating persons whose conduct has tended to lower standards a below those required, that there should be a power to ensure the temporary severance of a member of the public service whose conduct has been such as to demand an enquiry, from the dis charge of his functions, until the enquiry has been completed. The power is relatable both to the general duty of maintaining high standards in the administration, as well as to the require ments of service management. Therefore, I can see no difficulty in supposing that the executive authority acts within the pleasure of the Governor, when it suspends a public employee from the discharge of the duties of his office, pending an enquiry into his actions. The question is however raised in the present case that on the wording of rule 11 aforesaid and the whole scheme of the new Rules of 1960, an order of suspension can only be made in respect of a Government servant when the enquiry has been completed, an adverse report has been made, and a penalty has been provisionally determined. In order to appreciate the nature of this contention, it is necessary to make a survey of the new Rules. Rule 2 contains definitions, and rule 3 provides that the relevant authority may impose one or more penalties upon a Government servant in the following cases, namely :- (a) Where he is inefficient or has ceased to be efficient ; (b) Where lie is guilty of misconduct ; (c) Where he is found to be corrupt or may reasonably he considered corrupt ; and (d) Where he is suspected of subversive activities. Rule 4 prescribes penalties ranging from censure to dismissal from service, and here a marked distinction appears between the new Rules and the earlier Rules, namely, that suspension is no longer included among these penalties. In a way that might operate to the detriment of public servants who are placed under suspen sion, because they may no longer appeal against the order of suspension, but as will presently be seen there are specific pro visions laid down in rules 5 and 6 which may be read as obliging the Government to constitute an enquiry, and in a case where the enquiry is unreasonably delayed after the making of an order of suspension, there is clearly a possible remedy, namely, by writ of mandamus to require the authority to commence an enquiry. Rule 5 lays down a special enquiry procedure for cases of sub version, which is somewhat more peremptory than that provided in rule 6 for cases of inefficiency, misconduct and corruption. The details of rule 5 are not of material importance for this judgment, but it may be mentioned here that this rule contains a specific provision enabling the Government to require the employee who is being proceeded against for subversion "to proceed on such leave as may be admissible to him, and from such date as may be specified in the order." It should be remembered that it is open to the Government to grant leave not due, so that it would seem that this provision in rule 5 is designed to make the officer under enquiry utilize his earned leave or other leave during the period that the enquiry continues. In a case of re-instatement he would re-commence his service with a reduced balance of leave to his credit. It is also to be noted that the power of suspension given by rule 11 is expressly not applicable to cases of subversion or even of inefficiency. Under rule 6, there is to be a preliminary enquiry to enable the authorities to decide whether a formal enquiry should be held. If a positive decision is made, then it is to be decided whether on the allegations a major or minor penalty has been deserved. Major penalties are (1) recovery of pecuniary loss by deduction from pay (2) reduction to a lower post or time scale, (3) compulsory retirement, (4) removal from service, and (5) dismissal from service. Minor penalties are censure and withholding of increment. The procedure in cases calling for minor penalties is that when the charge is framed the accused will be called upon to show cause and if the authority is satisfied that there is prima facie case, the accus ed is to be given an opportunity to be heard in person and to lead evidence in defence. It would seem that in such a case evidence in support of the charges need not be led. Where a major penalty is called for, a charge with a statement of allegations is to be communicated to the accused and after an opportunity to put in a written defence, an oral enquiry shall be held in which evidence in support of any allegations not admitted may be led, and evidence in defence will also be heard. Rule 7 relates to inefficiency by reason of mental or bodily infirmity, which is not the case here, and rule 8 relates to the appointment of an Enquiry Officer when "a Government servant is proceeded against under clause (a), or clause (b) or clause (c) of rule 3". It also specifies certain powers which be exercised by the Enquiry Officer, how he should conduct the proceedings and that he shall submit a report to the relevant authority. Rule 9 has already been mentioned as providing that the accused is to be given an opportunity of showing cause against the penalty proposed in his case by the authority, after it has seen the report and formed the opinion that a penalty, and what penalty, should be imposed. Rule 10 requires that there should be a reference to the Public Service Commission before final orders are passed on the case. Then follows rule I1 relating to suspension, which reads as follows :- "A Government servant against whom action is proposed to be taken under clause (b) or clause (c) of rule 3 may be placed under suspension if, in the opinion of the authority, suspension is necessary or expedient." It is argued with reference to the sequence of the rules and on the basis of the expression "against whom action is proposed to be taken under clause (b) or clause (c) of rule 3" that the power given by rule I 1 can only be exercised in sequence to the procedure up to the point when the authority has provisionally determined the penalty to be imposed. It would of course be absurd to suspend a public servant if the provisionally determined penalty is one which does not involve his severance from his service, further, it was urged that "action proposed to be taken under clause (b) or clause (c) of rule 3" must, if reference be made to rule 3, be read as relating to the imposition of one or more penalties. Rule 9, it was pointed out also relates to a. proposed penalty, and therefore, rule 11 when it speaks of "action proposed to be taken" must have reference to the penalty which is proposed. This argument involves a denial of the general power of the executive authority 1n relation to management of the service and proper conduct of the administration in a particular Department which has been considered earlier in this judgment. It seems to impose upon the Government a duty to retain a public servant against whom there may be allegations of the most serious nature, in the full discharge of his functions until after the enquiry is completed and a decision to remove him from the public service has been provisionally taken. Reliance was placed upon the words in rule 16 repealing the earlier rules for the argument that the new rule of suspension must be construed within its terms to the maximum advantage of the Government servant. It is clear that a question which, as has been seen already, is vitally concerned with the major responsibilities of the public administration and service management, cannot be allowed to be determined exclusively on the basis of loss or gain to a particular member of the service or to a particular public servant, the more so when such person is under an accusation of actions which may be of the greatest danger to the Government, and in any case are actions involving examination of the question whether he Ii fit for retention in the public service at all. A clue to the true meaning of the new rule is furnished by the instructions issued by the Chief Secretary to the West Pakistan Government on the subject of suspension of Government servants. These instructions are contained in a letter No. SOX1I (S & GAD) 5-7/62, dated the 4th August 1962, from which the following passage is extracted :- "It has been found that a large number of Government servants remain suspended for periods longer than 6 months and most of them get reinstated, which results in financial loss to Government and causes unnecessary inconvenience to Government servants concerned. Suspension should only be resorted to where it is essential. Suspension in the case of Departmental Inquiry. Recourse to suspension should not be made at the time of preliminary inquiry as the situation can be met, if necessary by transfer of a Government servant from the station of posting. The question of suspension should only be considered when a formal inquiry is to be undertaken, by the Inquiry Officer under rule 8 of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960. The suspension for corruption or misconduct should only be ordered where it is likely that one of the following penalties can be imposed :- (a) Reduction to a lower post of time-scale or to a lower stage in time-scale. (b) Compulsory retirement. (c) Removal from service. (d) Dismissal from service." The quotation furnishes a departmental construction of the rule. It is clearly worded in terms showing the maximum possible sympathy towards a Government servant placed under the pre dicament of an enquiry. At the same time, these instructions lend no support to the view that suspension under the new Rule is only possible after a decision of unsuitability for retention in public service has been taken. It is laid down that it is only when the formal enquiry is to be undertaken that the question of suspension should be considered, and then only after the formation of a judgment that a major penalty, that is to say, severance from the service or reduction to a lower post of time scale, is likely to be found appropriate. These instructions which preserve the right of Government servants to the maximum extent, serve to confirm the view that it was not intended by the new Rules that merely by virtue of being a Government servant, a person should have a vested right to hold an office and to perform the functions of that office, but ins respect of the holding of office, the pleasure of the executive authority was still to be paramount, although, by virtue of the instructions, that pleasure was to be exercised under restriction. The wording of rule 11 must in my view, be read in the light o this and other germane considerations, which have already been detailed. So read, it seems clear that in rule 11, the reference to action proposed to be taken under rule 3" cannot be understood to mean exclusively, the imposition of one or more penalties as provided in the rules, but must include also the prescribed procedure which precedes the decision to impose such penalty. Accordingly I have come to the conclusion that the view pressed for on behalf of the appellant is not one which, on a true construction of the Rules and in particular rule 11 thereof, can be maintained, and I would accordingly dismiss this appeal. As the judgment delivered in the High Court did not deal in detail with all the matters presented in the writ petition, and also partly proceeded on misconception, I would leave the parties to bear their own costs. B. Z. KAIKAUS, J.

I agree. HAMOODUR RAHMAN, J.

I agree. S. A. RAHMAN, J.

I concur in the construction of the rules adopted by my Lord the Chief Justice in this case and agree that the appeal be dismissed. I only wish to add a few words. The choice of the phrase "against whom action is proposed to be taken" by the draftsman of rule 11 is unhappy. In view of the inter pretation of this phrase sanctified by constitutional instruments, by the Privy Council in I. M. Lal's case (P L D 1948 P C 150=75 I A 225), it was contended by learned counsel for the appellant that it should be construed in the same sense in the context of rule 11 and should be held to mean that the stage at which suspension is possible under the rule, would only arrive after an inquiry is completed and a tentative decision taken, in respect of the penalty proposed to be inflicted, on the public servant concerned. I think, the expression in question was used somewhat loosely in this rule and its connota tion was not the same as that of the phrase "penalty proposed" occurring in rule

9. As has been pointed out by my Lord, the departmental construction of the rules is consistent with this view. FAZLE-AKBAR, J.

I concur in the judgment and in the reasons which have been assigned for it by my Lord the Chief Justice. I cannot advantageously add anything to it. ORDER OF THE COURT We dismiss this appeal, but leave the parties to bear their own costs. A. H. Appeal dismissed.