1994 PLP 852 (SCMR)

AJMAL MIAN, J.‑‑‑This is an appeal with the leave of this Court against the judgment dated 27‑6‑1992 passed by a learned Single Judge of the Lahore High Court in Writ Petition No. 650‑S of 1990 filed by respondent No. 1 against the order of dismissal from service of appellant No. 1 dated 29‑7‑1990, allowing the same by declaring the said order to be null and void and of no legal effect.

2. The brief facts are that respondent No. 1 joined service of appellant No. 1 as a Manager Grade‑I (equivalent to BPS‑17) in 1963. He was promoted from time to time, inasmuch as in 1988 as a Senior Director/Senior Grade Officer (equivalent to BPS‑20). It is the case of respondent No.l that in the 137th meeting of the Board of Directors, the Board while acknowledging the excellent record and performance of respondent No. 1, was pleased to recommend him alongwith two others, viz. respondents Nos. 1 and 2 in the writ petition, who are respondents Nos. 2 and 3 in the present appeal i.e. Pakistan through the Secretary, Establishment Division and Secretary, Ministry of Finance, Government of Pakistan, for further promotion as Executive Directors. It is also the case of respondent No. 1 that the above recommendations of the Board of Directors were processed and communicated further by the then Chairman, Syed Munir Hussain Shah, of appellant No. 1 to respondent No. 3 on 19‑2‑1989. It is further the case of respondent No.l that after Ch. Ahmed Saeed took over as the Chairman of appellant No. 1 (who was respondent No. 4 in the writ petition), he through mechanism got the above recommendations in cold storage. Thereupon, respondent No. 1 filed Writ Petition No. 388 of 1990 in May, 1989, for getting the above recommendations implemented. While the above writ petition was pending, respondent No. 1 was suspended from service on 26‑5‑1990. The above order was impugned by respondent No.l in Writ Petition No.407 of 1990, in which interlocutory order restraining the appellants from passing any adverse order against respondent No. 1 during the pendency of the above writ petition was passed on 2‑6‑1990 till 3‑6‑1990, then on 3‑6‑1990 till 11‑6‑1990 and on the latter sate, the learned counsel for appellant No. 1 gave an assurance that there would be no order adverse to respondent No.

1. It appears that while inter alia that above writ petitions were pending, Muhammad Sarwar, Joint Director Legal of respondent No.l, submitted a note dated 7‑7‑1990 for information to the Director, E & D, in which in para. 3 he stated as under:‑

"

3. After attending the Court proceedings in the above Writ Petitions, when I was placing the files in the car of Raja Muhammad Akram, Advocate, with the help of his Clerk, Mr. Muhammad Anwar Bajwa, who was standing in front of the High Court Auditorium loudly called my name' Server' Since he is senior officer of the Bank, I went to him and said " Gee Sir ". He stepped forward by saying angrily `you always brief the Counsel actively through words and official documents' and with waiving fist with the intent to assault me. I stepped back and escaped‑myself. Thereafter while I was leaving the place of occurrence, he threaten d me of dire consequences and further gave me threat "Mai tumain muqadama ki pervi ka maza chakha doon gha

3. On the basis of the above note, the then Chairman, Ch. Ahmed Sated, initiated disciplinary proceedings against respondent No. 1 inasmuch as a show‑cause notice dated 11‑7‑1990 signed by one Abdul Salam describing himself as Senior Executive Director (Authorised Officer) was issued to respondent No. 1 for the misconduct referred to in the above‑quoted para. 3 of the above note. It is the case of the appellants that the above notice was offered to respondent No. 1 in the office who asked the person concerned to give him after some time. After that, he left the office. The above notice was sent, according to the appellants, through L.M.C., T.C.S. and Telegraphically etc., but respondent No. 1 refused to receive. It is the further case of respondent No. 1 that on 25‑7‑1990, the Authorised Officer submitted his report to Mr. Ahmed Sated Awan, the then Chairman, who sent notice dated 26‑7‑1990 for appearance on 28‑7‑1990 to respondent No. 1, but this notice was also refused by respondent No. 1 when offered by the Assistant Director. Consequently, the same was sent through registered acknowledgement due, TCS and Telegraphically but respondent No. 1 did not appear. After that, Ahmed Saeed Awan passed the order dated 29‑7‑1990 dismissing respondent No. 1 from service. However, it is the case of respondent No. 1 that he had not received any of the above notices nor he was offered. Be that as it may, respondent No. 1 filed above writ petition against the above dismissal order. While the above writ petition was pending, an objection was raised by appellant No. 1 to the effect that respondent No. 1 had not availed of the remedy of appeal before the Board of Directors. It appears that on the direction of a learned Single Judge, an appeal was filed, which was heard by the Board of Directors presided by the then Chairman. Respondent No. 1 also appeared but the appeal was dismissed on 5‑11‑1990. After that, the above writ petition was heard and was disposed of by the learned Judge in Chambers in the above terms. Thereupon, the appellants filed a petition for leave to appeal, which was granted to consider the points noticed in the leave granting order. 4. ' In support of the above appeal, Raja Muhammad Akram, learned counsel for the appellants, has vehemently contended that the following reasons found favour with the learned Judge in Chambers are not sustainable:‑

(i) That the finding that Mr. Abdul Salam was not validly appointed as the Senior Executive Director is contrary to law and record. (ii) That the finding that the show‑cause notice was not served is also contrary to the record. (iii) That the finding that summary procedure for holding enquiry pursuant to the above show‑cause notice dated 11‑7‑1990 was not warranted by law, is not sustainable in view of Regulation No. 5 of A.D.B.P. Service (Efficiency and Discipline) Regulations, 1975, hereinafter referred to as the Regulations. (iv) That the finding of the learned Judge in Chambers that the Board of Directors which was presided by the then Chairman, Mr. Bashir, was not properly constituted, is also not sustainable.

5. On the other, hand, Raja Muhammad Anwar, learned Senior Advocate Supreme Court appearing for respondent No. 1, has urged that respondent No. 1 was unnecessarily harassed and was dismissed from service in spite of the above assurance of the learned counsel for appellant No. 1 given on 11‑6‑1993 in Writ Petition No. 407 of 1990 to the effect that no adverse order would be passed. His further submission was that all the findings recorded by the learned Judge in chambers are sustainable.

6. In our view, the above appeal can be disposed of on the above first point, namely, whether Mr. Abdul Salam was competently appointed as Senior Executive Director (Authorised Officer) on 11‑7‑1990 when the above show -cause notice dated 11‑7‑1990 was issued which was the foundation for the impugned dismissal order. Raja Muhammad Akram has pointed out that the learned Judge in Chambers has wrongly relied upon sections 39(2)(e) & (f) of Agricultural Development Bank of Pakistan Ordinance, 1969, hereinafter referred to as the Ordinance, for holding that Mr. Abdul Salam was not competently appointed. His further submission was that since he was acting as the Senior Executive Director, the doctrine of de facto acting applied to the present case and, therefore, his competency could not have been challenged in a collateral proceedings, to which he was not even a party. Reliance was placed by him in support of the above last submission on the following cases of the Indian Jurisdiction:‑

(i) Gokaraju Rangaraju v. State of Andhra Pradesh (AIR 1981 SC 1473); (ii) Pushpadevi M. Jatia v. M.L. Wadhavan, Additional Secretary, Government of India and others (AIR 1987 SC 1748); and (iii) M/s. Beopar Sahayak (P) Ltd. and others v. Vishwa Nath and others (AIR 1987 SC 2111).

7. On the other hand, Raja Muhammad Anwar has invited our attention to A Hand Book of Administrative and Disciplinary Powers issued by appellant No. 1, wherein Chapter 3 under the caption "Personnel Administration" in para. 3.3., the following has been provided:‑‑

3.3 Promotion of employees ADB Rules 23(c) read with Board's Orders in their 121st meeting held on 31‑1‑1985. Designation Extent of Rowers Chairman All employees except from the post of Senior Grade Officers to Executive Directors and Executive Directors to Senior Executive Directors." He has also invited our attention to pages 32 and 33 of the paper book filed by respondent No. 1.

8. It may be stated that at page 32, Ch. Ahmed Saeed, the then Chairman, issued order dated 14‑2‑1990 redesignating Mr. Abdul Salam from Executive Director to Senior Executive Director with effect from 1‑1‑1990, whereas at page 33 is a letter from the Joint Secretary, Ministry of Finance, dated 3‑10‑1991 addressed to Mr. Bashir Ahmed, the then Chairman of appellant No. 1, inter alia intimating that the competent authority had accorded in order to regularise the matter ex post facto approval to the promotion of ten persons mentioned therein as SGOs. It may further be stated that at Serial No. 6, Mr. Abdul Salam's name has been mentioned with the following words:‑ "with effect from 1‑1‑1986:"

9. Then it may also be stated that para. 4 of the above letter reads as follows:‑ "

4. The competent authority has further accorded, with a view to regularising the matter, ex post facto approval to the re‑designation of the following three Executive Directors as Senior Executive Directors w.e.f. the date indicated against each:‑-- (1) Mr. Abdul Salam w.e.f.1‑1‑1990. (2) Mr. M. Aslam Mian (Since retired from 4‑2‑1991) w.e.f. 23‑5‑1990, (3) Mr. Muhammad Tufail Khan w.e.f. 23‑5‑1990."

10. He has also invited our attention to office memorandum dated 20‑7‑1983 issued by the Government of Pakistan, Cabinet Secretariat, Establishment Division, indicating the selection procedure and the approving authority for the appointments. The relevant portion of the above memorandum reads as follows:‑‑

"Nature of case Selection Procedure Approving Authority

(i) Appointment as Selection Board President of Chief headed by the Pakistan. Executive/head of Minister Incharge to organization. Consider and recommend from a panel of 3 names for each vacancy. (ii) Appointment of To be processed ‑do - a Government through the servant in Establishment Grade‑20 or Division. above to any autonomous body. (iii) Appointment to Selection Board Minister posts in headed by the Incharge. management Secretary of the grades, other Ministry/Division than that of concerned to consider Finance and recommend from Member/Direc‑ a panel of 3 names for tor and those each vacancy. Covered by (i) and (ii) above. (b)Appointment to ‑do‑ ‑do‑" posts carrying a minimum pay of Rs. (sic) and above.

11. It seems that the learned Judge in Chambers erred in referring sections 39(2)(e) and (f) of the Ordinance as the above provisions do not deal with the question of appointment or promotion but they relate to the framing of the Regulations on the items mentioned in the above clauses (e) and (f) of subsection (2) of section

39. Proviso to above subsection (2) provides that no regulation with respect to matters mentioned in clauses (e) and (t) shall take effect until it has been approved by the Federal Government. 12: According to Raja Muhammad Anwar, as per above office memorandum of the Cabinet Division dated 20‑7‑1983, Mr. Abdul Salam could not have been promoted as Senior Executive Director without the approval of the Government, which fact is supported by the above‑quoted para. 4 from the Joint Secretary, Ministry of Finance's letter dated 31‑10‑1991. On the other hand, Raja Muhammad Akram submits that there is no provision in the Ordinance requiring appellant No. 1 to obtain the approval of the Federal Government and, therefore, the above memorandum of the Cabinet Secretariat dated, 20‑7‑1983 cannot change the legal position. In our view, it is not necessary to examine the above question as the issue in question can be disposed of on the basis of above‑quoted para. 3.3 of Chapter 3 from the Hand Book of Administrative and Disciplinary Powers quoted hereinabove. The above quoted para. 3.3 indicates that for the purpose of promotion, the Chairman of the appellants is competent for all employees except officers from the post of Senior Grade Officers to Executive Directors and Executive Directors to Senior Executive Directors. In other words, in view of the above para. 3.3, the Chairman was not competent to promote or to redesignate Mr. Abdul Salam from Executive Director to Senior Executive Director. Furthermore, neither the Chairman nor the Federal Government could have promoted Mr. Abdul Salam retrospectively for the purpose of validating the above show‑cause notice dated 11‑7‑1990. It is not necessary for us to go into the question, whether the competent authority could promote Mr. Abdul Salam retrospectively or not. The only question which is required to be considered is, as to whether there could be retrospective promotion for validating the above show‑cause notice. In our view, since on 11‑7‑1990 admittedly Mr. Abdul Salam was not promoted by the competent authority as the Senior Executive Director, he could not have issued the above show‑cause notice.

13. We are also inclined to hold that in the case in hand the de facto doctrine which provides that the defective appointment of a Judge or of any other officer cannot be permitted to be questioned in a litigation between two private litigants, is not applicable to the present case. The question involved is, as to whither on 11‑7‑1990 Mr. Abdul Salam was competent to act as the Senior Executive Director for the purpose of acting as an Authorised Officer. In our view, an employee against whom disciplinary action has been taken, can urge that the show‑cause notice was not issued by the competent Authority. This question has nothing to do with the above de facto doctrine. The appellants failed to show that the competent Authority had in fact promoted Mr. Abdul Salam as Senior Executive Director before 11‑7‑1990. In this view of the matter, the judgment under appeal is sustainable on the above short ground.

14. However, we may observe that the learned Judge in Chambers was not justified in not allowing appellant No. 1 to start fresh proceedings if it so decides against respondent No.

1. We would, therefore, dismiss the above appeal with no order as to costs, with the observation that it will be open to the competent authority to initiate fresh proceedings in case it considers just and appropriate in the present case. M.BA./A‑1133/5 Appeal dismissed.