1998 PLP 2029 (SCMR)

No order for costs. Parties be informed accordingly."

5. After that he filed a petition for leave to appeal in this Court, which was granted to consider the questions; whether the loan advanced to Messrs Resource International, a firm owned by Shahzad Ali, brother-in-law of the appellant, did not constitute misconduct in terms of Rule 10 of the Government / Servants (Conduct) Rules, 1964, hereinafter referred to as the Conduct Rules, read with Rule 2(4) of the Government Servants (Efficiency & Discipline) Rules, 1973, hereinafter referred to as the Rules; whether the Chief Secretary, Government of the Punjab, was Authorised Officer of the Government Servants in BPS-17 to BPS-20; and whether the entire enquiry proceedings initiated by him against the appellant and order of his removal from service passed on the basis thereof stood vitiated being illegal and void ab-initio.

6. In support of the above appeal Mr.Anwar Kamal, learned ASC appearing for the appellant, has vehemently urged that the Chief Secretary, Government of Punjab, was not competent to act as the Authorised Officer. To reinforce the above submission, he has invited our attention to SRO No.615(1)/79 dated 5-7-1979 issued under sub-rules (2) and (3) of Rule 2 of the Rules in supersession of Establishment Division's Notification No.1562(1)/73 dated 7-11-1973 by the President of Pakistan, in which under the caption 'TABLE' at S.No.3, for the government servants in Grades 17 to 20 (Section Officer, Deputy Secretary, Joint Secretary and equivalent), the Secretary has been shown as the Authorised Officer. Whereas under Explanation 2 to the aforesaid SRO, the following was provided:-- Explanation

2. For a Government servant serving outside the Federal Secretariat, whether in a Provincial Government or in an autonomous body, who is serving in a post, or belongs to a service or care, administratively controlled by a Ministry or Division, the Secretary, Additional Secretary, Joint Secretary, Deputy Secretary or Section Officer designated as authority or authorized officer means the Secretary, Additional Secretary, Joint Secretary, Deputy Secretary or Section Officer of that Ministry or Division. Additional Secretary, where there is no Secretary. Joint Secretary, where there is no Additional Secretary or where the Additional Secretary is the 'authority in the absence of Secretary . After that, under the aforesaid provision of the Rules, another SRO, namely, SRO No.1011(1)/85 dated 20-10-1985 was issued, whereby under item No.3 for Government servants in Basic Pay Scales 17 to 20, the Prime Minister was substituted for the President as the Authority and the Secretary remained as the authorised Officer. According to Mr.Anwar Kamal, the above position remained up to the issuance of a fresh SRO on 29-12-1997. Then he submitted that the requirements of Rule 9 of the Rules were not complied with inasmuch as no approval was obtained from the President under proviso 2 to sub-rule (1) thereof and, secondly, the removal order of the appellant was not passed by the lending authority as per sub-rule (2). It will be advantageous to reproduce Rule 9 of the Rules, which reads as under:--

9. Procedure of inquiry against officers lent to Provincial Government, etc.

(1) where the services of a Government servant to whom these rules apply are lent to a Provincial government or to a local or other authority, in this rule referred to as the borrowing authority, the borrowing authority shall have the powers of the authority for the purpose of placing him under suspension or requiring him to proceed on leave and of initiating proceedings against him under these rules: Provided that the borrowing authority shall forthwith inform the authority which has lent his services, hereinafter in the rule referred to as to lending authority, of the circumstances leading to the order of his suspension or the commencement of the proceedings, as the case may be: Provided further that the borrowing authority *[ .] shall obtain prior approval of the President before taking any action under these rules against a member of an All-Pakistan Service or a Class I Service or a holder of a Class I post. (2) If, in the light of the findings in the proceedings taken against the Government servant in terms of subrule (1), the borrowing authority is of opinion that any penalty should be imposed on him, it shall transmit to the lending authority the record of the proceedings and thereupon the lending authority shall take action as prescribed in these rules. "

7. It will not be out of context to point out that to the second proviso to sub-rule (1) of Rule 9 of the rules the Provincial government was excluded inasmuch as after the words "borrowing authority", the words "other than a Provincial Government" were employed. The latter words had been omitted by SRO 246(1)/89 dated 16-3-1989. Be that as it may, it will be advantageous to Reproduce aforesaid approval granted by the Federal Government on 3-2-1991, which reads as follows:-- "Subject: DISCIPLINARY PROCEEDINGS AGAINST SYED JAVED IQBAL BOKHARI. Reference S&GAD, Government of Punjab letter No.SO(C-III) 12 24/90. dated the 31st Jan, 1991, on the subject mentioned above.

2. The Competent Authority has approved for initiating disciplinary proceedings against Syed Javed lqbal Bokhari (BPS-20) present posted as Secretary, Cooperatives Department, Government of Punjab. The Chief Secretary, Government of Punjab is the Authorised Officer in this case. 3 Necessary disciplinary proceedings under the Government Servants (E&D) Rules, 1973 may be initiated against the officer and the findings of the inquiry be reported to the Establishment Division at the earliest. However, it was contended by Mr. Anwar Kamal that the adovequoted approval did not provide that the Chief Secretary was to act as the Authorised Officer but it stated that the Chief Secretary, Government of Punjab, was the Authorised officer in this case.

8. The above contention is devoid of any force. Under abovequoted sub rule (1) of Rule 9 of the Rules, Provincial Government which was the borrowing authority , was required to obtain approval of the President before taking any action. The above approval indicates that the competent authority had accorded the requisite approval. 1t may be observed that at no point of time either before the Enquiry Committee or before the Tribunal, it was the case of the appellant that the required approval was not obtained.

9. The contention, that factully there was no compliance of sub-rule (2) of Rule 9 of the rules, is also devoid of any force. According to the above provision of the Rules, the lending authority is to take action for imposing penalty. The notification dated 14-11-1992 had been issued by the Establishment Division. The same reads as follows:-- "NOTIFICATION No. 4/1/91-D:4 Consequent upon the finalization of disciplinary action under Government Servants (Efficiency and Discipline) Rules, 1973, the competent authority is pleased to impose the major penalty of removal from service under rule 4 (1) (iii) of the Government Servants (Efficiency and Discipline) Rules, 1973 on Mr. Javed lqbal Bokhari, a BPS-20 officer of Secretariat Group; presently posted as Officer on Special Duty, Services, General Administration and Information Department, Government of the Punjab with immediate effect." This objection was also not raised by the appellant either in the review petition submitted to the President or in the memo of appeal before the Tribunal.

10. It was also urged by Mr. Anwar Kamal that since there was no compliance of rule 9 of the Rules, the Enquiry Committee was not competently constituted. We find that this objection was also not raised by the appellant prior to the filing of petition for leave to appeal before this Court. On the contrary, the appellant in his review petition filed before the President prayed that the matter may be remitted to the Enquiry Committee. The relevant portion of the same reads as under:-- "It is the petitioner's earnest and humble prayer that allegation A-I be remanded to the Inquiry Committee for fresh consideration on merits after recording the oral and documentary evidence to be produced by the petitioner. " I

1. However, it was vehemently contended by Mr. Anwar Kamal that the question of jurisdiction could be raised at any stage. In support of his above submission, he relied upon the case of Mansab Ali versus Amir and 3 others (PLD 1971 SC 124) and the case of Rashid Ahmad versus The State (PLD 1972 SC 271). In the first case, it has been held that if the mandatory conditions for exercising of jurisdiction by a Court, tribunal or authority are not fulfilled, all proceedings which follow become illegal and suffer from want of jurisdiction. This case involved inter alia interpretation of Sections 3 and 18 of the West Pakistan Criminal Law (Amendment) Act, 1963 (Act VII of 1963). Whereas in the second case, it has been held that if a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction and that any order pa6sed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. This case also related to a criminal trial. Sh. Anwarul Haq, learned Deputy Attorney-General, has referred to the case of Karim Bakhsh and 4 others versus Riaz Hussain and another (1993 SCMR 1667), in which this Court while dismissing an appeal in a pre-emption case observed that void order is only against a person directly affected by it; if he does not question its validity according to law and rather acts upon the same, practically the order stands legitimised. It is not necessary to go into the question, whether the above principle is applicable to the present case.

12. We may point out that there is a marked distinction between want of authority of an officer to act as Authorised Officer and want of jurisdiction on the part of a Court, Tribunal or authority execising judicial or quasi judicial powers. A question, as to whether a particular officer has been competently appointed as Authorised Officer, is a question of fact. Similarly, a question as to whether an enquiry officer or an Enquiry Committee has been competently constituted, is also a question of fact. The above questions of facts are to be agitated at the earliest opportunity so that if there is any defect in such an appointment, the same may be cured. Whereas the question, whether a Court, tribunal or authority has the jurisdiction is a. question of law, which can be raised at any stage if the dictates of justice so demand.

13. In the present case, as pointed out hereinabove at no point of time the appellant contested the status of the Chief Secretary as the Authorised Officer nor he contested the status of the Enquiry Committee on the grounds which have now been urged by him. In our view, it cannot be allowed at this stage.

14. Lastly it was submitted by Mr. Anwar Kamal that advancement of loans by the cooperative financial institution/corporation to the firm belonging to the appellant's brother-in-law did not constitute misconduct in terms of Rule 10 of the Conduct Rules.

15. The above contention is not tenable, rule 10 of the Conduct Rules reads as under:--

10. Lending and borrowing: (1) No Government servant shall lend money to , or borrow money from, or place himself under any pecuniary obligation to, any person within the local limits of his authority or any person with whom he has any official dealings: Provided that the above rule shall not apply to dealings in the ordinary course of business with a joint stock company, bank or a firm of standing. (2) When a Government servant is appointed or transferred to a post of such a nature that a person from whom he has borrowed money or to whom he has otherwise placed himself under a pecuniary obligation will be subject to his official authority, or will reside, possess immovable property, or carry on business within the local limits of such authority, he shall forthwith declare the circumstances to the Government through the usual channel. (3) Non-gazetted Government servants shall make the declaration referred to in sub-rule (2) to the head of their office. (4) This rule, in so far as it may be construed to relate to loans given to or taken from co-operative societies registered under the Co-operative Societies Act, 1912 (II of 1912), or under any law for the time being in force relating to the registration of Cooperative Societies, by the Government servants, shall be subject to any general or special restrictions or relaxations made or permitted by the Government."

16. A perusal of the abovequoted rule clearly indicates that it prohibits lending or borrowing of money by an officer on account of his official authority. The above cooperative financial institution/corporation would not have granted C the financial facility to the firm of appellant's brother-in-law to the tune of about six crore of rupees without exploitation by the appellant of his official position. In our view in any case, it is not a fit case where this Court should interfere with the finding on the question recorded by the Enquiry Committee and the Tribunal.

17. The upshot of the above discussion is that the aforesaid appeal is dismissed, with no order as to costs. M.B.A./J-17/S W. Appeal dismissed.