P L D 1957 (W (PLP)

HABIBULLAH KHAN, ACG. J.‑-This is a writ petition under section 223‑A, Government of India Act, 1935, filed by Asadullah Jan, challenging the legality of his dismissal from Government service. The petitioner was a clerk in the office of the former Revenue and Divisional Commissioner, N. W. F. P. Peshawar. On the 14th of February 1951, he was sent on deputation to the Customs Department, Government' of Pakistan. He was posted at Torkham Custom Station as Head Clerk. He also used to handle money as cashier. It is alleged that on the 8th of April 1952, he encashed some bills relating to the pay of the staff and some travelling allowance from a Bank at Peshawar. He did not disburse the pay and travelling allowance, and on the next day i.e., 9th of April, 1952, he crossed over into Afghanistan and absconded. Nothing was heard of him for several months. The Customs Superintendent on the abscondence of the petitioner discovered that he had run away with Government money and had also cheated some business firms .of cash in the name of the Department by addressing them letters purporting to have been issued from Customs Office, A case was registered against him and some inquiry was held. The petitioner returned to Pakistan on the 19th of December, 1952, after an absence of about nine months. The Customs authorities first suspended him, but then reinstated him and posted him at Khawer. In the meantime the Revenue and Divisional Commissioner directed the Customs authorities to hold a departmental inquiry against the petitioner. Accordingly Mr. I. I. Malik, Deputy Collector Customs conducted a departmental inquiry against him on three main charges:‑ (1) Unauthorised absence from duty for a period of about nine months without leave, (2) Embezzlement of Government money amounting to Rs. 8,345‑8, and (3) Forgery, fraud and embezzlement of money of certain persons in the name of the Department and misuse of his official position. Except for a few items of money such as tea cess, sealing charges and refugee tax, the petitioner was found guilty of all the charges, which according to the Inquiring Officer, had been proved against him. The inquiry was completed on the 12th of July, 1955. On receipt of the report of the Inquiring Officer the then Revenue and Divisional Commissioner (Mr. Mussarat Hussain Zuberi) passed an order on the 2nd of August, 1955, dismissing the petitioner from service. From the record it appears that information of the dismissal order was com municated to the petitioner on the 6th of August 1955. The petitioner filed an appeal against the order of dismissal, which was heard by Mr. Muhammad Farid Khan, the then Minister for Local Self Government, who temporarily was also officiating as Revenue Minister in place of Salar Muhammad Ayub Khan, who had gone on leave, because of his illness. Muhammad Farid Khan set aside the order of dismissal and accepted the appeal on the 12th of October 1955. It is claimed by .the petitioner that the order was passed by the Minister in his presence and he was informed of it verbally by him. The respondents deny this fact and contend that they are not aware of any such information having been conveyed to the petitioner about the order passed by Muhammad Farid Khan, Minister. Mr. Mussarat Hussain Zuberi, who by this time had been appointed Divisional Commissioner of Peshawar Division in West Pakistan, sent a detailed report to the Chief Minister, Doctor Khan Sahib, regarding the acceptance of the appeal of the petitioner by Muhammad Farid Khan, Minister on the 4th of November 1955. On the 19th of November 1955, under the orders of the Chief Minister, Doctor Khan Sahib, his Secretary Mr. Sher Bahadur Khan, wrote an order dismissing the appeal of the petitioner. Information of the dismissal of his appeal by the Chief Minister was despatched from the office of the Divisional Commissioner to the petitioner on the 1st of December 1955. Doctor Khan Sahib and his Secretary Mr. Sher Bahadur Khan have filed affidavits in support of the fact that the order was passed by the former, though recorded in the hand of the latter. The main ground urged in the writ petition against the dismissal order is that Muhammad Farid Khan, who was officiating as Minister Incharge of the Revenue Department passed a legal order on the appeal of the petitioner and that the Chief Minister, Doctor Khan Sahib, had no power or authority to reverse the order of Muhammad Farid Khan and as such he was entitled to be reinstated to his post. We find some difficulty in accepting the contention of the learned counsel for the petitioner that Muhammad Farid Khan passed a legal order on any legally presented appeal. Rule 14 of the North‑West Frontier Province Civil Services (Punishment and Appeal) Rules, 1943, lays down that:‑ "... .Every such appeal or application for revision .shall be submitted through the bead of the office to which the appellant or applicant belongs or belonged and through the authority from whose order the appeal or application for revision is preferred." It will have been observed that the Rule is mandatory and it requires two things, viz. (1) that the appeal shall be submitted through the head of the office to which the appellant belonged; and (2) through the authority from whose order the appeal is preferred. In the present case the head of the office to which the appellant belonged was the Revenue and Divisional Commis sioner, and also the authority from whose order the appeal was preferred. was the same gentleman: It is an undisputed fact and has been also expressly admitted by the petitioner before us that he preferred the appeal directly to the then Revenue Minister Muhammad Farid Khan and not through the head of his office or the authority from whose order he was appealing. Therefore, it is obvious that the so‑called appeal was not a proper appeal, as contemplated by Rule 14, and to put the petitioner's case at its best, it was no better than a representation against the order of dismissal made in an improper manner. Therefore, we have no hesitation in holding‑ that the petitioner did not file any proper appeal as required by the Rules. It is also doubtful whether Muhammad Farid Khan, the then Officiating Revenue Minister, was competent to hear the appeal. We asked the learned counsel for the petitioner to show us any rule under which the appeal lay to the Revenue Minister. He failed to quote any law or rule, under which B the appeal could be heard by the Revenue Minister. Accord ing to annexure of North‑West Frontier Province Civil Services (Punishment and Appeal) Rules, 1943, appeal from the order of the Revenue and a Divisional Commissioner lay to the Hon'ble Member and a second appeal to the Local Government, which is now synonymous with the Provincial Government. It is conceded that now there is no Hon'ble Member in the Provincial Government. As such the appeal should have been addressed to the Provincial Govern men and not the Revenue Minister, who is not shown to be com petent to entertain it. It is not disputed that every order passed by the Provincial Government is done so in the name of the Governor and then the same is communicated to the aggrieved person through the appropriate authority. In the present case it is not shown that the order of Muhammad Farid Khan either purported to have been passed by the. Governor or the Provincial Government, or even communicated to the petitioner through the hold that the order of Muhammad mad Fan d agency was f not the order of a competent authority. Our attention was drawn during the course of arguments by the learned counsel for the petitioner to an affidavit purporting to have been subsequently filed on the 19th of April 1956, in which some other objections were raised and we were asked to treat it as an amendment of the origins writ petition, but we cannot accept the request for the obvious reason that this affidavit is not shown to have found its way to the file of the case in the normal course, and it was never brought to our notice throughout the several hearings of the petition. Moreover the affidavit is not accompanied by any application to amend the original writ petition. An affidavit has little value unless it is filed in support of an application for a certain purpose. Therefore, we are unable to attach any importance to this affidavit or to entertain it as an application for the amendment of the original writ petition. No other point was raised on behalf of the petitioner and, therefore, the writ petition is dismissed with costs. Pleader's fee Rs.

200. A. H. Petition dismissed.