1991 PLP (C (PLC(CS))

(c) Constitution or Pakistan (1973)

Art. 199

Judicial decision

Courts should not make a judicial decision the effect of which can be frustrated by an administrative order. Atiqur Rehman Qazi for Petitioner. J.D. Akbar Ji, A.-G. for Respondents. Date of hearing: 29th October, 1990. NAZIR AHMAD BHATTI, J.--Ghulam Rasool petitioner was serving as Patwari Circle Chak Turangzai, Tehsil and District, Charsadda, when he was suspended on 19-10-1989 for misconduct and embezzlement of Government dues. The petitioner was served with a charge-sheet dated 12-11-1989 and E.A.C. Charsadda was appointed Inquiry Officer. The petitioner submitted his explanation to the Inquiry Officer, who conducted and completed the inquiry and submitted report and recommended a minor punishment. The Deputy Commissioner instead of making an order on the said report under the N: W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, set aside the report of the Inquiry Officer and ordered a fresh inquiry against the petitioner and appointed Assistant Commissioner, Charsadda, as new Inquiry Officer. The petitioner claims that he is also being kept suspended without approval of the competent Authority beyond the period of three months. By the writ petition in hand, he has claimed that the order of second inquiry and his continued suspension after the expiry of the initial period of suspension are illegal and without lawful authority.

2. The respondents filed their written statement and we have heard learned counsel for both the parties at length.

3. The learned counsel for the petitioner has raised two points; firstly, that a second inquiry could not be held under the provisions of the N: W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the Rules); and secondly, the continued suspension of the petitioner beyond the period of three months was violation of rule 5 (1) of the Rules as the approval of the authority had not been obtained for his continued suspension after the initial period of his suspension was over.

4. In so far as the first ground taken by the learned counsel for the petitioner is concerned, it has now become a settled principle of law and there is also a wealth of case law on the point that more than one inquiry is permissible and if the competent authority is not satisfied with the first inquiry, it has got the right to set aside that report and those proceedings and order a second inquiry to be conducted in the matter. Even otherwise, the learned counsel for the petitioner gave up this ground when it was pointed out to him that the order for making second inquiry was perfectly valid and was not a negation of any law or rule.

5. In so far as the ground about continued suspension of the petitioner without the approval of the competent Authority beyond the initial period of suspension is concerned, it may be pointed out that under the provisions of rule 5(1) of the Rules an authorised officer is competent to require the Government servant accused of subversion, corruption or misconduct to proceed on leave or, with the approval of the authority, suspend him but any continuation of such leave or suspension requires approval of the authority after every three months. The petitioner was placed under suspension on 19-10-1989 and he continues to be under suspension upto date but the period of suspension has been extended without approval of the competent Authority; although under the aforesaid provisions of the Rules the period of suspension should have been extended with the approval of the competent Authority. Any how, this lapse can also not be held illegal or without lawful authority for the reason that the authorised officer cat, still obtain approval of the competent Authority and can order the continued suspension of the petitioner from service. If we hold that suspension of the petitioner beyond the initial period of three months was irregular or against the provisions of the Rules still our order can be frustrated by an administrative order of the Authorised Officer made with the approval of the competent Authority. The Courts would not and should not make a judicial decision, the effect of which can be frustrated by an administrative order. We will. therefore, refrain from making any judicial pronouncement with regard to this point as well but we will suggest that the competent Authority should, in the matter of suspension of the petitioner, proceed in accordance with the provisions of the Rules. We do not find any ground to interfere in the matter and finding the writ petition without any merit, we would dismiss it with no order as to costs. The order of status quo made on C.M. No. 104/90, on 8-4-1990 is withdrawn and the C.M. is also dismissed. M.Y.H./1149/P??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.