1988 PLP (C (PLC(CS))

R.22--Constitution of Pakistan (1973), Art. 199 Constitutional jurisdiction, exercise of--Dismissed employee of Local Council re-instated by appropriate authority--Authority remanded case under revisional powers for proceeding afresh against such employee on ground that appropriate procedure had not been adopted in inquiry proceedings--Effect--Order of Authority remanding case of petitioner, held, suffered from misreading and misconstruction of record of acute nature--Entire procedure prescribed by rules was observed before order of dismissal was passed against petitioner--Petitioner was also opportunity of personal hearing--Where it was established by record of unimpeachable character that all legal requirements were completed and complied with, before order of dismissal was passed, such case could not be remanded on findings that said formalities were not observed--Order of remand suffered from error apparent on face of the record and could not be sustained--Order of remand by Authority was set aside by High Court in constitutional jurisdiction in circumstances. Syed Aga Asif Jaffery for Petitioner. Assistant Advocate-General for Respondents Nos.l and

4. Mirza Aziz Akbar Baig for Respondents Nos.2 and

3. Date of hearing: 24th October, 1987. In this writ petition, the petitioner has called in question the legality of the order dated 11-6-1987 passed by respondent No.l, in exercise of his revisional powers in connection with service matter of the petitioner.

2. The facts of the case in brief are that the petitioner who is an employee of Town Committee Sarai Sidu and posted as Octroi Inspector was dismissed on 11-11-1985 through resolution passed in the meeting held by the said Local Council. The petitioner agitated against the said decision by filing appeal before Assistant Director, Local Goverdment and Rural Development, Khanewal, who accepted the same by order dated 27-7-1986 and set aside the order of dismissal and re-instated the petitioner in service with all attending benefits. The period of unemployment of the petitioner was directed to be treated on duty. The said Local Council passed resolution No.5 on 4-9-1986 through which it was resolved that a revision petition be filed against the said order of Assistant Director Local Government and Rural Development, Khanewal, before the Government of Punjab and also that the petitioner be not re-instated in service till the disposal of the said revision petition nor he be paid his dues. In pursuance to the said Resolution a revision petition was lodged on 7-9-1986 before Secretary, Local Government and Rural Development Department Punjab, Lahore. The revision petition was still pending when on 5-11-1986, the Commissioner in exercise of powers vested in him under section 156 of Punjab Local Government Ordinance, 1979 as delegatee of Government of Punjab, quashed resolutions Nos.5 and 7 dated 4-9-1986 of, the Local Council in public interest. In spite of the said resolution having been quashed on the authority of which revision petition was filed, the Local Council concerned prosecuted the said revision petition but it was held by the revisional authority that the revision petition became non-existent after the quashment of said resolution No.5 but proceeded to decide the revision petition on merits and vide order dated 11-6-1987 impugned in this writ petition, the respondent No.l remitted the case to the Local Council for taking fresh proceedings as suggested in the said order for disposal of the matter afresh.

3. Learned counsel for the petitioner argued that after the order of Commissioner by which resolution NO.5 alongwith resolution No.7 were quashed in pursuance of which revision petition was filed, respondent NO.1 was left with no authority or jurisdiction to deal with the revision petition which became non-existent and was a dead matter and could not be treated to be pending before respondent No.1 to be dealt with and disposed of. He has further contended that even otherwise, the respondent No.1 had no jurisdiction to pass any order in exercise of his so-called revisional jurisdiction under rule 22 of the Punjab Local Council Servants (Efficiency and Discipline) Rules, 1981 inasmuch as the order impugned in the revision petition was the order passed by A. D. L. G. dated 27-7-1987 on appeal filed by the petitioner whereas under the said rule 22, the revisional jurisdiction of respondent No.1 extends only to examine the record and proceedings of the authority which, according to rule 2, sub-clause (W) of the said rules means, the appointing authority of the accused, as such order of A.D.L.G. could not have been interfered with. According to the learned counsel for the petitioner, only order of appointing authority could be examined by respondent No.l in exercise of his revisional jurisdiction under rule 22 thereof and not that of the appellate authority. He further stressed that even if respondent No.l is held to be possessed of legal authority under the said rule 22 to examine the case in his revisional jurisdiction the same could not have been done for, under section 156 of the Local Government Ordinance, 1979, the Government through its delegatee i.e. the Commissioner had already decided not to pursue the matter any further therefore order dated 11-6-1987, passed by the Commissioner quashing the resolutions Nos.5 and 7 by which it was decided by the Local Council to file revision petition against the order of A.D.L.G. before the Government, amounted to decision by the Government that it was not in the public interest to examine the case further which created a valuable right in the petitioner to reep the fruits of order of A.D.L.G. dated 27-7-1987 which exonerated him from the charges and the petitioner was ordered to be re-instated with all benefits. To amplify his argument, the learned counsel for the petitioner argued that the exercise of power by the Government under rule 22 of the said rules would amount to review the earlier order passed by the Government through Commissioner dated 5-11-1986 quashing the resolution to file revision whereas there is no such power of review exercisable either under the provisions of Local Government Ordinance 1979 itself or under the said rules. It has further been argued that even on merits the impugned order of respondent No.l suffers from misreading and misconstruction of the record apparent on the face of the record therefore, the same is liable to be quashed in exercise of constitutional jurisdiction of this Court. Learned counsel has pointed out that it has been held by respondent No.l that proper procedure under the Punjab Local Council Servants (Efficiency and Discipline) Rules, 1981 had not been followed and the alleged defects pointed out by respondent No.l are that authorised officer, was not appointed according to rules and the Chairman who acted as authorised officer did not observed the rules inasmuch he did not issue a show-cause notice to the petitioner (respondent before respondent No.l), did not submit his recommendation to the competent authority and he also did not afford any opportunity of personal hearing to the present petitioner. Learned counsel argued with reference to documents placed on the record that the said findings are contrary to the record as well as based on misconstruction of the relevant rules. He pointed out that under Efficiency and Discipline Rules, vide rule 2(c)(i) the Chairman of the Local Council in question is himself an authorised Officer therefore, no authorised officer was required to be separately appointed. He also pointed out that show-cause notice was issued to the petitioner by the Chairman on 20-10-1985 Annexure 'S' which was replied by the petitioner vide Annexure 'T'-and vide Annexure 'U' which is a copy of resolution passed by the Local Council. The petitioner was also given opportunity of personal hearing and thereafter the order of his dismissal was passed on 11-11-1985 by the Local Council itself which was the authority in this matter. Learned counsel on the basis of this material laid a great deal of stress upon his argument that the procedure as prescribed by the said rules was fully complied with and respondent No.l could not have remanded the case for fresh exercise.

4. Learned A.A. -G. appearing on behalf of respondent No. l argued that the petitioner was not aggrieved person to maintain the writ petition inasmuch as the order passed by respondent No.l was not only just and fair but was also in favour of petitioner himself as the same requires an opportunity to be provided to the petitioner to defend his case. He further argued that rule 22 of the said rules fully authorises respondent No.l to examine the record of not only the authority. as defined in rule 2(1)(b) but any other authority and as such the order of A. D.L. G. passed on appeal filed by the petitioner could also be examined and interfered with. He pointed out that first part of rule 22 is very wide in scope' so as to bring within its ambit the power to examine the record of proceedings of any authority which would certainly include appellate authority created under the same rule to deal with and dispose of the appeal to be filed by the Servants of the Local Council against order passed by the authority.

5. On the other hand, learned counsel for the respondents 2 and 3 contended that according to rule 9(k) of Punjab Local Council Business Rules 1980, the Chairman of the Local Council was authorised to initiate or prosecute the cases by or on behalf of Local Council and to enable him to do that a resolution of the Local Council itself was not required and as such even if the Commissioner had quashed the resolutions Nos.5 and 7 of the Local Council deciding that revision petition be filed, the revision petition could be independently prosecuted by Chairman in pursuance of his own authority under the said rule and the said quashment by the Commissioner did not legally make any difference and could not have adversely affected the prosecution of revision petition by the Chairman, or deprived him of his authority to do so.

6. I have considered the arguments advanced on behalf of learned counsel for the parties. I am not in agreement with the argument of the learned counsel for the petitioner that under rule 22 of the said rules the respondent No.l was authorised to pass an order in exercise of his revisional jurisdiction only in respect of the proceedings of the authority as defined in rule 2(1)(b) of the said rules which according to this definition means only the appointing authority. A bare reading of sub-rule (1) of rule 22 of the Punjab Local Council Servant (Efficiency and Discipline) Rules, 1981 amply bears it out that the Government was authorised to call for and examine the record of any proceedings before any authority and this power is not restricted to examine the record of the authority, only. The use of term any authority in this sub-rule as against the word "the authority" is intentional and on proper construction of sub-rule (1) of rule 22, according to well-settled rules of interpretation of statute and statutory rules, it can safely be held that the application of the said provision is not restricted and limited in its scope as is being canvassed by the learned counsel for the petitioner. This view finds support from E sub-rule (2) of the same rule which provides that on examining the! record under this rule the Government may direct the authority to' make further inquiry into the charges on which the accused has been acquitted and discharged and on doing so the Government in its discretion has been authorised to exercise any of the powers conferred on an appellate authority. Rule 17 provides a right of appeal to the aggrieved Servant of the Local Council and different officers have been nominated therein before whom such an appeal could be lodged and the term appellate authority has been used in this rule as such the arguments of the learned A.A.-G. that in sub-rule (1) of rule 22, ibid while using the term any authority the rule-maker was very much aware of the definition of 'The authority' which was limited in its scope which included only the appointing authority, therefore, the term 'any authority' was employed so as to bring within the scope of the revisional jurisdiction of respondent No-1 such other matters and proceedings decided or taken by any authority under the said rules which would include the appellate authority also, to examine their correctness and legality. The contention of the learned counsel for the petitioner that the revisional jurisdiction was not vested in respondent No.l is hereby repelled.

7. The next question which falls for consideration is as to what is the legal effect of order dated 5-11-1986 passed by Government through its delegatee i.e. Commissioner under section 156 of Local Government ordinance, 1979 by which resolutions Nos.5 and 7 of the Local Council by which it was decided to get the matter reconsidered by the Government in exercise of its revisional powers were quashed. The scope of section 156 is very wide. It is this section under which the Government has got overall overriding powers of prohibiting doing of anything proposed to be done by the Local Council. Once the Government took the decision that resolutions Nos.5 and 7 should be quashed, it legally amounted to a decision by the Government prohibiting the matter from being taken further and its examination by the Government in revision and this order was passed in the public interest as is clear from the said order of the Commissioner. The Commissioner while passing the said order was aware of the resolutions which were quashed, the contents of which specifically discussed in detail, the matter in issue which was required to be got examined by the Government in exercise of revisional power. The Government after having once taken a decision that the matter was not such which should be examined any further, in revision in my view the same could not have been re-opened and again examined in exercise of powers under rule

22. The powers under the rules framed in pursuance to provision of the Parent Act could not be exercised over and above the powers exercised by the Government under section 156 which is the Parent law, the exercise of which powers could not be annulled by an order passed under the subordinate lagislation i.e. the rules. The argument of learned counsel for the petitioner that the Government was left with no power to re-open the matter in exercise of its revisional jurisdiction under the rules in the presence of order passed by the Government under section 156 of the Act has force. I hold that the impugned order cannot be sustained on this score as the same has been passed without lawful authority. The argument of the learned A.A.-G. that the petitioner was not an aggrieved person has no force. The petitioner stood exonerated and re-instated by the order of A.D.L.G. dated 27-7-1987 with all benefits and by the impugned order he has been deprived of the said legal rights and the matter has been reopened which is certainly calculated to cause grievance to the petitioner.

8. Coming now to the arguments of the learned counsel for respondents 2 and 3 that independently from any resolution of Local Council requiring that the revision petition be filed, the Chairman of the Local Council in his own right was competent to initiate or prosecute by or on behalf of the Local Council any proceedings under rule 9(k) of Punjab Local Government Business Rules, 1980. It may be stated at the very outset that the argument is devoid of any force and is also fallacious. A bare reading of said rule 9(k) shows that the Chairman was authorised to initiate or prosecute the proceedings by and on behalf of the Local Council and not of his own. If in a given case Local Council, by a resolution decides that any proceedings in a particular case was not to be initiated or prosecuted, it could not be argued that the Chairman would still be competent to initiate and prosecute the said proceedings under the said rules. The decision as to whether a particular proceedings is to be initiated or not is to be taken by the Local Council itself and once it takes the decision then Chairman has to act accordingly on behalf of Local Council to prosecute the same. Applying this principle in the case in hand the Local Council by resolution 5 decided to initiate proceedings in revision which was to be prosecuted by Chairman on behalf of Local Council and if a higher authority like Government through Commissioner by order dated 5-11-1986 passed under section 156 of the act quashed the said decision, it left no authority with the Chairman still to, insist on, to prosecute the said revision petition on behalf of the Local Council. Leaving apart, the said power of the Chairman, under the provision of section 156 of the Act, the Government had full supervisory powers to direct that no proceedings be initiated on behalf of the Local Council and once it was so done no authority could be claimed by Chairman to be itself vesting in him to initiate the said proceedings in exercise of so-called powers under rule 9(k) as has been urged by the learned counsel for respondents 2 and

3. In view of the foregoing reasons this argument has no legal basis which is hereby rejected.

9. Even on merits, the impugned order of respondent No.l suffers from misreading and misconstruction of the record, of the acute nature. It is clear from the record as has been pointed out by the learned counsel for the petitioner that before the order of dismissal was passed against the petitioner the entire procedure prescribed by rules was observed. The Chairman under the relevant rules is himself an authorised officer therefore, there was no defect as pointed by respondent No.l regarding appointment of an authorised officer in the case. It is also clear from the record that the petitioner was also served with a notice to show cause and he filed a detailed reply on 27-10-1985. From resolution of the Local Council passed on 10-11-1985, it is apparent that the petitioner was given opportunity of personal hearing therefore, it stands established by material on record of unimpeachable character that all legal requirements were completed and complied with before order of dismissal of the petitioner from service was passed. The case could not have been remanded on the findings that these formalities were not observed which suffer from error apparent on the face of the record and cannot be sustained. This is apart from the fact that non-observance of the said formalities even if were there, could afford a cause of grievance to the petitioner and by no stretch of imagination this could be a basis for passing order in favour of Local Council the decision of which to take the matter before the revisional authority expressed through resolution No-5 stood already quashed by the Government. It is pertinent to note that the order of A.D.L.G. dated 27-7-1987 by which the petitioner was re-instated is very detailed order in which the said officer has attended to every aspect of the case and no illegality in it has been pointed out by the respondent in his impugned order and the said order has not even been specifically set aside. I am convinced that respondent No.l passed the impugned order dated 11-6-1987 in utter disregard of material on the record and the same is also based on misconstruction of law.

10. For the foregoing reasons, the writ petition succeeds. I hereby accept the same with no order as to costs. The order dated 11-6-1987 passed by respondent No.l is hereby declared to have been passed without lawful authority and of no legal consequence and the same is hereby quashed. A.A. /L-20/L Petition accepted.