P L D 1965 (W (PLP)

(a) Government servant

[Colonization Staff engaged under Colonization of Government Lands (Punjab) Act (V of 1912)] Senior Clerk‑Colony later wound up and staff" placed under administrative control of Settlement Officer, no "Colonization Officer" being in existence any longer‑Reduction in rank by such officer after inquiry and notice, held, valid‑Dismissal by Commissioner, in proceeding taken by way of appeal by Government servant concerned, held, valid‑Constitution of Pakistan (1956), Art. 181‑No bar against authority superior to appointing authority to dismiss or reduce in rank‑Article 181 does not require that order initiating inquiry or inquiry itself must be made by, appointing authority‑Civil Services Rules (Punjab), Vol. I, Rr. .I, 14'15 Punjab District Subordinate Service Rules., r.

21. When the impugned orders reducing the petitioners [originally members of Colonization ' Staff engaged under Colonization of Lands (Punjab) Act, 1912)] in rank were passed, they were under the administrative control of the Settlement Officer. On the question as to which authority could be compe tent to impose on the petitioners the penalties of dismissal or reduction in rank: Held that the punishing authority, for Senior and Junior Clerks in the Colonization Staff working under the Colonization of Lands (Punjab) Act, 1912, according to Rule 14'15 read with Rule 1, Civil Services Rules (Punjab), Vol. I and Punjab District Subordinate Service Rules, rule 21, was, of course, the Colonization officer. The question, however, remained as to who could, under the circumstances, take action against the petitioners when (after winding up the Colony) there did not exist any officer with the rank of Colonization Officer. It may be mentioned that there is no reference to the term "Colonization Officer" in the Colonization of Government Lands Act, 1912. The Colonization Officer was, therefore, not a statutory authority. It seems that for convenience of reference a person invested with the powers of Collector under the said Act was designated as a "Colonization Officer". The Colony was wound up with effect from the 31st of August 1956, and there was no person with the designation of "Colon" station Officer" from the 1st of September 1956. The staff was placed under the administrative control of the Settlement Of.5cer. He was also invested with the powers of Collector. For the purposes of the Act there was, therefore, no difference in the exercise of the powers or functions of the Colonization Officer or the Settlement Officer. Both performed the functions of the Collector under the Act. It is true that under Rule 21 of the Punjab District Subordinate Service Rules the Colonization Officer is the punishing authority, but in the context of things and in all reasonableness the Settlement Officer could, with effect from the 1st of September 1956, exercise all the powers which earlier vested in the Colonization Officer. The action which could be taken against the petitioners by the Colonization Officer could, therefore, be taken by the Settlement Officer. The petitioners, under the circumstances, cannot take any exception to the order passed by him. The fact remained that the ultimate orders of dismissal were passed against the petitioners by the Commissioner. The Commissioner was superior in authority to the Settlement Officer. Under Article 181 of the late Constitution, read with the Laws (Continuance in Force) Order, 1958, a person who was a member of civil service of the Federation or a Province or who held a civil post in connection with the affairs of the Federation or a Province could not be dismissed or removed from service or reduced in rank by an authority "subordinate" to that by which he was appointed. Under the, said provision, an action could not be taken by an authority subordinate to the appointing authority. There was, however, no such bar for an authority superior to the appointing authority. The order therefore could not be invalid. It may as well be noticed that this Article did not require that the order should be passed by the very same authority who made the appointment or by his direct superior. There as a compliance with the Article if the dismissing authority is not lower in rank or grade than the appointing authority. Mahesh Parshad v. State of U. P. A I R 1955 S C 70 ref. On behalf of the petitioners it was argued that the order initiating the inquiry should have been made by the appointing authority and that the orders made by the Settlement officer in this behalf were a nullity: Held, that such a contention was not warranted by the provisions of Article .181 of the late Constitution. What the Article requires is that the order of dismissal, etc., must be made by an authority not subordinate to the appointing authority. It does not require that the order initiating the inquiry or the inquiry itself must be made by the appointing authority himself. Further, in the case of the petitioners, the action was taken by the Commissioner. The Settlement Officer had passed the orders of only reduction in rank. Even if it be assumed that the orders of the Settlement Officer were without jurisdiction, then too there still would remain the orders of the Commissioner. The Commissioner, no doubt, passed the orders in appeals preferred against the orders of the Settlement Officer, but the action taken by him was based on the inquiry reports. He came to a tentative decision of dismissal and thereupon called upon the petitioners to show cause against the proposed action. It was, therefore, in accordance with the provisions of Article 181 of the late Constitution. The orders of dismissal having been passed by an authority superior to the appointing authority of the petitioners, are valid in law. (b) Government servant

‑Appeal against penalty (reduction in rank) imposed after inquiry‑Appeal cannot be with drawn Duty of appellate authority to dispose of appeal as provided by R. 14.15, Civil Services Rules (Punjab) Vol. I‑Appellate authority has power to enhance penalty‑‑Appellant not entitled to make such power nugatory by choosing to withdraw appeal‑Civil Procedure Code (V of 1908), O. XXIII, r. 1 confers specific right of with drawal. According to Rule 14 15, Civil Services Rules (Punjab), Vol. I, once an appeal is preferred by a Government servant against a penalty (reduction in rank) imposed against him after inquiry, the appellate authority assumes jurisdiction either to uphold or set aside the order or reduce the penalty or to increase it. If the right of withdrawal had been conceded to an appellant, the power of the appellate authority to increase the penalty could always be rendered nugatory. Any inherent right to withdraw an appeal will be contrary to the very tenor of the Rule, because the appellate authority on the filing of the appeal assumes jurisdiction not only to accept it but also to enhance the penalty. Once such a jurisdiction is assumed; there can be no right in the appellant to withdraw the appeal. The appellate authority is under an obligation under the rule to apply his mind to the facts of the case and to dome to his own decision as to the different aspects mentioned in clauses (a), (b) and (c) of the said Rule. By filing an appeal, therefore, the appellant creates not merely an opportunity but also a duty for the appellate authority to perform a public task, which may have an effect entirely opposite to that contemplated or desired by the appellant. He cannot, therefore, claim, either by not appearing before the appellate authority or by withdrawing the appeal, that the latter should not proceed further with it. Commissioner of Income‑tax v. Shah Nawaz Khan A I R 1938 Lah. 741; The King v. Income‑tax Special Commissioners, Ex parte Elmhirst (1936) 1 K B 487 and Emperer v. Ghulam Muhammad A I R 1942 Lah. 296 ref. There is no provision in the Civil Services Rules (Punjab), Vol. 1, enabling the appellant to withdraw the appeal like rule 1, Order XXIII, of the Code of Civil Procedure (which also applies to appeals), whereby the plaintiff can, at any time after the institution of his suit, withdraw his suit. JUDGMENT SARDAR MUHAMMAD IQBAL, J.‑

This judgment will dispose of Writ Petitions Nos. 182 and 18 3 of 1962. 'The points for determination in both the cases are identical.

3. Nazar Muhammad, petitioner in Writ Petition No. 183 of 1962, was confirmed by the Colonization Officer as a Junior Clerk in 1948. He was promoted as officiating Senior Clerk by him in 1952. After the wounding up of the Nili Bar Colony in 1956, the petitioner came under the administrative control of the Settlement Officer, Montgomery. On an inquiry held against him for having received illegal gratification, the Settlement Officer, by his order dated the 19th of March 1959, reduced him from the post of officiating Senior Clerk to that of the Junior Clerk. On appeal to the Commissioner, the petitioner was dismissed from service on the 11th of April 1956 after a notice was given to him by the appellate authority to show cause why the penalty of dismissal from service should not be imposed on him. The petitioner, however, on receipt of the notice, had applied to the Commissioner for the withdrawal of the appeal. The permission was not granted. His revision petition was rejected by the Member, Board of Revenue, on the 20th of May 1961.

4. Both the petitioners challenged the validity of the orders of the respondents as being without lawful authority and prayed for their quashment.

5. The first contention raised 'on behalf of the petitioners was that Mr. Rizvi was not the appointing authority of the petitioners and his orders reducing the petitioners in rank were ultra vires and without jurisdiction and that the subsequent orders passed by‑ the Commissioner, Multan Division, and by the Member, Board of Revenue, had no legal existence as the original order was legally incompetent. According to the petitioners, the action could be taken against them only by the Deputy Com missioner. The contention, in our opinion, is not supported by the facts of the case. The petitioners were appointed by the Colonization Officer, Nili Bar Colony, Pakpattan, which Colony was wound up with effect from the 31st of August 1956, and with that the office of the Colonization Officer also came to an end. According to the petitioners, the existing staff of Nili Bar and Haveli Project Colonies had been observed in the district establishments of Montgomery and Multan and the petitioners, therefore, came under the control of the Deputy Commissioner, Montgomery. They placed reliance on Letter No. 3939/56/1610‑P, dated the 25th of August 1956, from the Secretary to the Board of Revenue (Colonies), West Pakistan, to the Secretary to the Government of West Pakistan, Revenue Department, which reads as follows "I am directed to refer to this office Letter No. 2773/56/1369‑P, dated the 16th July 1956, on this subject and to state that the Commissioner Multan Division has proposed distribution of the existing office staff of the Nili Bar and Haveli Project Colonies in the manner indicated in his Memorandum No. 14654, dated the 13th August 1956, read with its en‑ closures (copies enclosed). The entire staff, except the incumbents of 7 posts of temporary Junior Clerks, will be absorbed in the district establishment. The existing field staff is prepared to be retained up to the 28th February 1957, by which time the Deputy Commissioners will be in a posi tion to frame an accurate estimate of their requirements. "The Board of Revenue recommends that the proposal of the Commissioner may be accepted and orders of Government to this effect may please be conveyed immediately‑" Doubtless, it is not an order of amalgamation of the existing staff of Nili Bar Colony with the district establishment of Montgomery. The letter is only a recommendation made to the Government based on the proposal of the Commissioner. The Government has not accepted the proposal referred to in the above letter so far and no order of amalgamation has been passed: Reliance was also placed on Memo. No. L & F. 13/34‑56, dated the 4th of July 1957, from the Secretary to the Govt. of West Pakistan to the Board of Revenue whereby the Governor of West Pakistan had accorded sanction to the provisional payment of salaries to the staff of the former Nili Bar and Haveli Project Colonies retained in the offices of Deputy Commissioners, Multan and Montgomery. An attempt was made to draw an inference from this letter that the petitioners were the members of the staff of the Deputy Commissioner, Montgomery. No such inference can be drawn, firstly, for the reason that the letter refers to a provisional arrangement and, secondly, the established facts are to the contrary. The relevant facts are that the Settlement Of‑racer, Montgomery District, was conferred on the 6th of June 1956 by the Governor of West Pakistan all the powers of the Collector under the Colonization of Government Lands Act within the local limits of Montgomery District. It was further directed that he was not subject to the control of the Collector, Montgomery District. In a letter dated the 22nd of June 1956 the Board of Revenue intimated to the Commissioner that the Settlement Officer was to take over the Colony work; and that `the Colony Assistant and the other Colony staff will henceforth work under him. This order was duly implemented, and the Board of Revenue informed about it to the Government on the 27th of July 1956. The Colony staff, including the petitioners, has all along remained under the administrative control of the Settlement Officer, and this fact is borne out by Letters Nos. 3061‑C/BC, dated the 2nd of August 1957, 4399‑C/BC, dated the 16th of November 1957, 499‑C/BC dated the 10th of February 1958 and 1688‑C/BC dated the 10th of February 1958 from the Deputy Commissioner, Montgomery, to the Commissioner, Multan Division. There is, however, no doubt as to the fact that on the relevant date when the impugned orders were passed, by the Settlement Officer on the 19th of March 1960, the Colony Staff had not been amalgamated with the district establishment of Montgomery. The Settlement Officer, by his Letter No. 6247‑6/SO‑BC, dated the ''2nd of September 1959, requested the Commissioner, Multan Division for the amalgamation of the staff of the former Nili Bar Colony, Pakpattan, with the district establishment of Montgomery. The Commissioner, in his letter dated the 3rd of October 1959 addressed to the Deputy Commissioner, Montgomery, admitted that the Colony staff of the former Nili Bar Colony had not been integrated with the district establishment of Montgomery. It appears that the amalgamation could not take place for the reason that the Government had not passed any final orders in the matters, although the proposal had been submitted to them ride Commissioner's Office Memos. Nos. 4399‑C/BC, dated the 16th of November 1957 and 2493‑C/BC, dated the 18th of August 1959. This fact is also admitted in the letter of the Deputy Commissioner, No. 723‑C/BC, dated the 13th of February 1960, to the Commissioner, wherein it is stated that the question of the retention of posts of Nili Bar on permanent basis has not so far been decided despite repeated references issued by the Settlement Officer, Montgomery. The matter is pending with the Government for the last two years and in the absence of Government decision, .the amalgamation of both the establish ments would be premature. Mr. Saeedur Rahman on behalf of the Government stated that no order had till then been passed by the Government for the amalgamation of the staff of the Nili Bar Colony with that of the district establishment of Montgomery. It is thus clear that on the 19th of March 1959, when the impugned orders reducing the petitioners in rank were passed they were under the administrative control of the Settlement Officer. The question is as to the authority which could be com petent to impose on the petitioners the penalties of dismissal or reduction, in rank.

6. The petitioners are admittedly governed by Rule 14.151 of the Civil Services Rules (Punjab) Vol. I. According to note under Rule 1, these Rules apply to the Colony staff also. The, Deputy Commissioner or the Colonization Officer, as the case might be, was the punishing authority for Senior and Junior, Clerks. Under Rule 21 of the Rules the authority competent to take the action was the Colonization Officer. The Deputy Com missioner, in his own right, could not take any action against the staff of Nili Bar Colony. The Deputy Commissioner, how ever, could do so only if the Colony staff had been amalgamated in the district establishment which has, as observed above, not taken place up to this time.

7. The question remains as to who could,, under the circumstances, take action against the petitioners when there did not exist any officer with the rank of Colonization Officer. It may be mentioned that there is no reference to the term "Colonization Officer" in the Colonization of Government Lands Act, 1912. The Colonization Officer was, therefore, not a statutory authority. It seems that for convenience of reference a person invested with the powers of Collector under the said Act was designated as a "Colonization Officer". The Nili Bar Colony was wound up with effect from the 31st of August 1956, and there was no person with the designation of "Colonization Officer" from the 1st of September 1956. The staff was placed under the administrative control of the Settlement Officer, Montgomery. He was also invested with the powers of Collector. For the purposes of the Act there was, therefore, no difference in the exercise of the powers or functions of the Colonization Officer or the Settlement Officer. Both performed the functions of the Collector under the Act. It is true that under Rule 21 of the Punjab District Subordinate Service rules the Colonization Officer is the punishing authority, but in the context of things and in, all reasonableness the Settlement Officer could, with effect from the 1st of September 1956, exercise all the powers which earlier vested in the Colonization Officer. The action which could be taken against the petitioners by the Colonization Officer could, there fore, be taken by the Settlement Officer. The petitioners, under the circumstances, cannot take any, exception to the orders passed by him. 7‑A. Be that as it, may, the fact remains that the ultimate orders of dismissal were passed against the petitioners by the Commissioner. The Commissioner was superior in authority to the Settlement Officer. Under Article 181 of the late Consti tution, read with the Laws (Continuance in Force) Order, 1958, a person who was a member of a civil service of the Federation or a Province or who held a civil post in connection with the affairs of the Federation or a Province could not be dismissed or removed from service or reduced in rank by an authority "subordinate" to that by which he .was appointed. Under the said provision, an action could not be taken by an authority subordinate to the appointing authority. There was, however, no such bar for an authority superior to the appointing authority. The order therefore could not be invalid. It may as well be noticed that this Article did not require that the order should be passed by the very same authority who made the appointment or by his direct superior. There is compliance with the Article if the dismissing authority is no lower in rank or grade than the appointing authority. In this behalf reference may be made to a foreign judgment reported as Mahesh Parshad v. State of U. P. (A I R 1955 S C 70), wherein at page 73 it was observed. "These provisions (the constitutional requirement that a person should not be removed by an authority subordinate to the one by whom he was appointed) cannot be read as implying that the removal must be by the very same authority who made the appointment or by his direct superior. It appears to u:; to be enough that the removing authority is of the same rank or grade." On behalf of the petitioners it was next argued, though very feebly, that the order initiating the inquiry should have been made by the appointing authority and that the orders made by the Settlement Officer in this behalf were a nullity. Such a contention is not warranted by the provisions of Article 181 of the late Constitution. What the Article requires is that the order of dismissal, etc., must be made by an authority not subordinate p to the appointing authority. It does not require that` the order initiating the inquiry or the inquiry itself must be made by the appointing authority himself. In the case of the petitioners, the action was taken by the Commissioner. The Settlement Officer had passed the orders of only reduction in rank. Even if it be assumed that the orders of the Settlement Officer were without jurisdiction, then too there still would remain the orders of the Commissioner: The Commissioner, no doubt, passed the orders in appeals preferred against the orders of the Settlement Officer, but the action taken by him was based on the inquiry reports. He came to a tentative decision of dismissal and thereupon called upon the petitioners to show cause against the proposed action. It was, therefore in accordance with the provisions of Article 1.81 of the late Constitution. The orders of dismissal having been passed by an authority superior to the appointing authority .of the petitioners, are valid in law.

9. It was next contended that the orders of the Commis sioner were without jurisdiction on the ground that after the petitioners had intimated to the Commissioner their desire to withdraw the appeals, the Commissioner was bound to dismiss the appeals and could not take an action for enhancement of punishment which was dependent upon the pendency of the appeals themselves. In order to appreciate the argument raised it is necessary to refer to Rule 14.15 of the Civil Services Rules (Punjab), Volume I, which is as follows:‑ "14.15 (1) In the case of an appeal against an order imposing any penalty specified in Rule 14.10, the appellate authority shall consider (a) Whether the facts on which the order was based have been established; (b) whether the facts established afforded sufficient ground for taking action; and (c) Whether the penalty is excessive, adequate or inade quate; and after such conclusion shall pass such order as it thinks proper: Provided that no penalty shall ~e increased unless opportunity is given to the person concerned to show cause why such: penalty should not be increased. (2) An authority from whose order an appeal is preferred under these Rules shall give effect to any order made by the appellate authority." There is no provision in the Rules enabling the appellant to withdraw the appeal like rule 1, Order XXIII, of the Code of Civil Procedure (which also applies to appeals), whereby the plaintiff can, at any time after the institution of his suit, withdraw his suit. It appears that this right was not conceded for specific reason, because the said Rule empowers the appellate authority to pass any order as it may think proper. Once the appeal is preferred, the appellate authority assumes jurisdiction either to uphold or set aside the order or reduce the penalty or to increase it. If the right of withdrawal had been conceded to an appellant, the power of the appellate authority to increase the penalty could always be rendered nugatory. The penalty under the said Rule cannot be increased unless an opportunity is given to the person concerned to show cause why such penalty should not be, increased. The appellant in such a case, on receipt of the notice of enhancement, could not withdraw the appeal. Since it would have brought about absurd results, the framers of the Rules advisedly omitted to provide for the withdrawal of such appeals. It was, however, argued that the right of withdrawal inhered in the filing of an appeal and the petitioners had an absolute right to withdraw their appeals at any time before judgment) was pronounced. The argument was that as there was no obligation to appeal, the right to withdraw must always accom pany the right to file an appeal. This proposition cannot be accepted. It will be contrary to the very tenor of the Rule, because the appellate authority on the filing of the appeal assumes jurisdiction not only to accept it but also to enhance the penalty. Once such a jurisdiction is assumed, there, can be no right in the appellant to withdraw the appeal. We are in no doubt that since the framers of the Rules have not contemplated any withdrawal of an appeal once lodged under Rule 14.15, it is not within the right of the appellant to withdraw it, nor is it within the power of the appellate authority to allow such with drawal. The appellate authority is under an obligation under the rule to apply his mind to the facts of the case and to come to his own decision as to the different aspects mentioned in clauses (a), (b) and (c) of the said Rule. By filing an appeal, therefore, the appellant creates not merely an opportunity but also a duty for the appellate authority to "perform a public task G which may have an effect entirely opposite to that contemplated or desired by the appellant. He cannot, therefore, claim, either by not appearing before the appellate authority or by withdrawing the appeal, that the latter should not proceed further with it. The provisions of Rule 14.15 are analogous to the provisions of section 31 of the Income‑tax Act, where while in clause (3) there is a provision for enhancement of assessment on appeal, there is none for withdrawal of appeal. The precise question came up for adjudication in Commissioner of Income‑tax v. Shah Nawaz Khan (A I R 1938 Lah. 741). It was held that the Income‑tax Act is a special piece of self‑contained legislation on a special subject and in the absence of a provision for withdrawal of an appeal, it is clearly intended‑to avoid the absurdity of the, appeal being withdrawn as soon as the appellant fears a possible enhancement of assess ment; and that the extension to the special Act of the general power of withdrawal of appeal would nullify the power of the Assistant Commissioner to enhance assessments. Reliance was placed in this case on The King v. Income‑tax Special Commis sioners, Ex parte Elmhirst ((1936) 1 K B 487), where it was held that the appeal could not be withdrawn without the consent of the Special Commissioners, since, when the notice of appeal was given, it became their duty to arrive at the true assessment, an appeal against an assessment Under the Income‑tax Act, 1918, being on a different basis from an appeal in private litigation. A similar question arose in Emperor v. Ghulam Muhammad (A I R 1942 Lah. 296). In this case the Government had preferred an appeal against acquittal. After the appeal was admitted to hearing, the Advocate‑General applied under section 561-A, Criminal Procedure Code, for permission to withdraw the appeal. Withdrawal, however, was not permitted and the application was rejected. The respondent in that case was neither present nor represented at that stage. Subsequently, when the appeal came up for hearing the Crown was not represented, but the respondent appeared and took up the position that the order refusing withdrawal was without jurisdiction. One this, a reference was made to the Full Bench to consider "whether, when the appellant intimates to the Court his desire to withdraw the appeal, the Court is bound to dismiss the appeal." After noticing that there was no provision in the Criminal Procedure Code for the withdrawal of the appeal, it was held that once an appeal had been admitted, the powers of the appellate Court are limited by section 423, Criminal Procedure Code, which makes obligatory upon the appellate Court to peruse the record and come to whatever decision it would come to on the evidence .led in the case and that it is not in the power of any Court to allow withdrawal of an appeal nor in the power of the appellant to withdraw the appeal. The petitioners con tention raised in this behalf, therefore, is devoid of force, and the Commissioner in having refused to give permission to the petitioners to withdraw their appeals acted well within the scope of his powers conferred on him by Rule 14.15.

10. In the view of the matter we take, the petition has no merit which is accordingly dismissed. There shall, however, be no order as to costs. A. H. Petition dismissed.