1991 PLP (C (PLC(CS))

I am directed to refer to your endorsement No.584?85/MDP/CEA/FIA.1789, dated 15-5-1989 on the above subject and to forward a copy/copies of Ministry of Interior's Sanction Order(s) No.6/1/(P)89-FIA(II)(4 No.), dated 8-7-1989 for prosecution in a Court of Law of Mr./Messrs Muhammad Ibrahim, Lineman, Muhammad Akram, Muhammad Naseem and Abdul Hameed, Asstt: Lineman, WAPDA, Sub-Division, Manawala.

2. As required under that Ministry's instructions read with the relevant provisions of Efficiency and Discipline Rules, the accused may be placed under suspension under intimation to this Ministry and the Ministry of Interior. The period of suspension may be extended from time to time with the approval of the next higher authority, as required under the rules, till the decision of the Court. Your obedient servant, (Sd.) (Zahoor Ahmed Kiani) ??????????? Section Officer"

7. On 15-8-1989, in consequence of the aforementioned letter dated 19-7-1989, the Managing Director (Distribution), WAPDA House, Lahore addressed the following letter to the Chairman, Area Electricity Board, Gujranwala: . Office of the ?Managing Director (Distribution) WAPDA House, Lahore. No.5179-80/MD(D)/DG(P)A/ENQ/FIA-1788??????????????????????????????????? Dated 15-8-1989 The Chairman, ?Area Electricity Board, ?WAPDA, Gujranwala. Subject CASE F.I.R. No. 44/87-FIA-FAISALABAD Reference correspondence resting with this office letter No even hated 26-6-1988, on the subject noted above. A copy of the Secretary to Government of Pakistan, Ministry of Water and Power, Islamabad's Memo. No.3(1796)/89-Wapda, dated 19-7-1989, with a copy of Prosecution Sanction Order bearing No.6/1/(P)/089-FIA, dated 19-7-1989 issued by the Interior Division for the prosecution of Muhammad Ibrahim, Muhammad Naseem and Muhammad Akram in the Court of Special Judge (Central) is sent herewith. It is requested that the accused may be placed under suspension forthwith (if not already done) under the E&D Rules, applicable to him and his, period of suspension beyond three months be extended after every three months with the approval of next higher authority as required under the said Rules till the case is finally disposed of by the Court. A copy of the suspension order may be supplied to the Ministry under a separate forwarding Memo under intimation to this office. (Sd.) ?Deputy Directress (Enquiries) for Director General (Personnel) Admn."

8. As already mentioned before the orders of suspension were passed in pursuance of these letters. The grounds in support of the appeals are that the appellants having already been exonerated of the charge, could not be placed under suspension on the same allegations under the Efficiency and Discipline Rules; that under the latest instructions of the Authority, respondent No.l was not legally bound to suspend them in compliance with the direction of the' Interior Division; that the orders of suspension could not, under the circumstances, legally be passed under Rule 5 of the Rules and that the orders were void ab initio because of having been passed without any application of mind. The defence, in the main, is that the appellants were suspended in accordance with the direction of the Ministry of Water and Power, after their prosecution had been sanctioned by the Ministry of Interior, in accordance with law and that this was legally feasible irrespective of the fact that they had been exonerated of the charge in consequence of departmental proceedings. It was pleaded that their suspension was ordered in compliance with the instructions issued by the Ministry of Interior through O.M. No. 1/21/74-S.P (P), dated 5-3-1975.

9. This O.M. dated 5-3-1975 shows that instructions regarding investigation of cases of bribery and corruption by the Special Police Establishment had earlier been issued by the Ministry through Memo. No.1-9-67-SP (P), dated 17-3-1971. It further shows that the Special Police Establishment was converted into the Federal Investigation Agency with the enforcement of FIA Act, 1974 and that fresh instructions were accordingly issued, with certain modifications in respect of investigation of such cases by the FIA.

10. Paragraph 12 of these instructions provides that when sanction for prosecution is issued, the public servant concerned shall be placed under suspension unless this action had been taken at an earlier stage. There is no dispute between the parties regarding the appellants' status and it was conceded by their learned counsel at the Bar that they are public servants. This being so, they will ordinarily be governed by the instructions. Since their prosecution has admittedly been sanctioned by the Ministry of Interior respondents Nos. 1 and 2 were within their authority to pass an order for their suspension in compliance with the direction of Ministry of Water and Power and there is nothing legally wrong with the impugned orders.

11. Reference in support may be made to the case of Muhammad Sarwar v. State P L D 1969 S C 278 where the effect of instructions issued by the then Central Government was examined by the Supreme Court. The material facts were that in 1953 the Central Government issued instructions to Special Police Establishment for starting the investigation either on its own initiative or on receipt of a complaint or information oral or written. These instructions were issued in pursuance of the powers conferred on the Central Government by subsections (2) and (3) of section 2 of the Pakistan Special Police Establishment Ordinance, 1948. It was ruled by the Supreme Court that these instructions had the force of law and were thus binding. On the basis of this authority, we hold that the instructions issued by the Federal Government for investigation of cases of bribery and corruption by the FIA are legally binding on the WAPDA, particularly when it is conceded that Interior Division is competent to grant sanction for prosecution of the Authority's employee

12. It was contended by the appellants' learned counsel that they had once been suspended by order dated 26-5-1987 with effect from 18-5-1987, in consequence of disciplinary proceedings initiated on the basis of the criminal case registered against them on 30-11-1987 and then subsequently reinstated after a few days. The argument was that under the Federal Governments' instructions they could be placed under suspension if this action had been taken at an earlier stage. I am afraid the learned counsel was reading something in those instructions, which in fact is not there. The provisions relied upon could be attracted if they had still been under suspension at the time of the passage of the impugned orders. The expression "unless this action had been taken at an. earlier stage" is clearly suggestive of a situation where order of suspension passed earlier would still have been in force at the time of impugned action. What the paragraph in fact provides is that fresh order .of suspension is not required if the accused is already under suspension. The aforementioned expression has got no reference to the earlier order of suspension if it had been recalled and the official concerned reinstated.

13. The fact that the appellants were earlier suspended by order dated 26-5-1987 on the initiation of disciplinary proceedings and then reinstated would hardly makes any difference, because the impugned orders do not appear to have been passed under rule 5(i) of the Efficiency and Discipline Rules, 1978. It is true that orders dated 20-8-1989 in respect of the suspension of Muhammad Nasim and Muhammad Akram appellants purport to have been passed under rule 5(i) of the Rules. However, mention of a wrong provision in the impugned orders would not alter their character and they still will be deemed to have been passed under the instructions of the Federal Government in consequence of the sanction for appellants' prosecution.

14. There is another aspect of the matter. The impugned orders would be legally correct even if they were passed under Rules 5(i) of the Rules which provides that in a case where a WAPDA Employee is accused of subversion, corruption or misconduct, the competent Authority may require him to proceed', on leave or suspend him provided that any continuation of such leave or' suspension shall require the approval of the next higher authority after every three months. In the present case, the appellants have no doubt been accused of corruption and misconduct and the orders of their suspension are legally' sustainable under the provisions of Rule 5(i) of the Rules irrespective of the fact that they had earlier been suspended and then reinstated as a result of departmental proceedings; which is so on the consideration that suspension is not a penalty and there is nothing in the Rules to show that the orders of suspension could not be passed for the second time after the appellants' prosecution had been sanctioned by the Ministry of Interior under the provisions of the Pakistan Criminal Law Amendment Act, 1958.

15. For these reasons, we hold that there is nothing legally wrong with the impugned orders of suspension and there is no force in these appeals, which are accordingly dismissed without any order as to costs. M.Y.H./623/Sr.F ??????????????????????????????????????????????????????????????????? Appeals dismissed.