P L D 1968 Lahore 786 (PLP)

MUHAMMAD GUL, J.‑--Shorn of unnecessary details, the facts leading to this writ petition are that the petitioner is em ployed as S. A. S. Accountant in the office of the Accountant General, West Pakistan. On 1st June 1966, he was suspended from service on a complaint made by one Abdul Malik, an Upper Division Clerk, alleging that the petitioner had received Rs. 1,000 from him partly to be paid as bribe to certain officers to gain advantage for certain relatives of Abdul Malik and partly as loan to the petitioner to be repaid by him. The Accountant General appointed Mr. Najjam Hussain Sayyed, Deputy Accountant‑General to enquire into the charge. He, vide his report (Annex. `A'), found that the charge of misconduct against the petitioner was not proved. Nevertheless, the Accountant‑General issued a notice to the petitioner to show cause why he should not be dismissed from service. The petitioner in his representation questioned issuance of the notice on the ground that the report of the Enquiry Officer absolved him of the charge of misconduct. He also demanded his re‑instatement and arrears of pay. The petitioner later also gave notice under section 80, C. P. C., demanding his re‑instatement in service and arrears of pay for the period of his suspension. As a result, the petitioner was re‑instated on the 13th March 1967, and the question of payment was left to be decided later. Against this order she petitioner addressed an appeal to the Auditor‑General and Comptroller which, however, was withheld because no order of punishment had so far been passed against the petitioner. He was further informed that the Accountant‑General has directed a fresh enquiry on the allegations made by Abdul Malik and that Mr. M. A. Mumtaz, Deputy Accountant‑General has been appointed as the Enquiry Officer before when he shall have to appear as and when required. The communication is dated the 22nd of May 1967. (Annex. `K' to the Writ Petition). The petitioner vainly protested against the fresh enquiry on the ground that the Rules do not permit a fresh enquiry on a charge of which he had already been exonerated. Then there was exchange of some correspondence and ultimately by another Memorandum dated the 26th of June 1967 (Annex. 'N') the petitioner was informed that a second enquiry shall be conducted and unless he submits to the fresh enquiry he shall be proceeded ex parte.

2. Aggrieved by the Accountant‑General's order for fresh enquiry against him, the petitioner has moved this writ petition, under Article 98 of the Constitution for a declaration that the aforesaid order of the Accountant‑General for fresh enquiry is without lawful authority. The prayer is also made for the payment of arrears of pay and allowances due for the period the petitioner remained under suspension.

3. Learned counsel argued that after a proper enquiry by Mr. Najam Hussain, the petitioner was absolved of the charge of misconduct and the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, do not in terms permit fresh enquiry on the same charge. It was also contended that the principles of natural justice also forbid the holding of a fresh enquiry against him on the same allegations. It was stressed that in the absence of any rules permitting, fresh enquiry in the circumstances of the instant case, the proposed fresh enquiry by Mr. M. A. Mumtaz would be wholly devoid of legal validity. In support of the argument, learned counsel cited Muhammad Hayat v. The Province of West Pakistan (P L D 1964 Lah. 264) and Dawarkachand v. State of Rajistan (A I R 1958 Raj. 38).

4. In the case of Muhammad Hayat, the main question that came up for consideration of a Bench of this Court concerned the interpretation of rules 6 (1) (iv) (c) and 8 of the 1960 Rules. The petitioner in that case questioned the validity of his suspension from service on the ground that it was necessary for the punishing authority to come to a tentative decision on the basis of a preliminary enquiry under rules 6 (1) (iv) (c) of the Rules, that in the event of a finding of guilty, the delinquent would be liable to major penalty and unless such a preliminary enquiry is held and a tentative decision is reached, the delinquent cannot be suspended from service. The contention was, however, repelled and it was held that, on a proper construction of rules 6 (1) (iv) (c) and 8, only one enquiry against the delinquent is contemplated. It is thus clear that the question in that case arose entirely in a different context and the case of Muhammad Hayat would not be authority for the proposition that it is beyond the competence of the punishing authority to order fresh enquiry after a civil servant had once been exonerated of the charge of misconduct, if the authority is for some reasons not satisfied with the conduct of the enquiry proceedings.

5. The Rajistan case, however, does support learned counsel's contention. It was held in that case that once a departmental enquiry is over and a civil servant has been exonerated, no second enquiry on the same facts can be ordered unless there is a specific provision for reviewing the previous order of exoneration. It was further observed by learned fudges in that case that to hold a fresh enquiry after the exonera tion of a civil servant would also offend against the principles of justice, equity and good conscience and, therefore, it would not be permissible in the absence of some provisions in the service rules to hold a second departmental enquiry. It was, however, conceded by the learned Judges that the Government by a suitable amendment of the Rules can provide or a second enquiry on the same facts. Therefore, even according to the learned Judges rule permitting fresh enquiry would furnish a valid basis for such enquiry in which the application of rule of natural justice would be extended.

6. We have considered the view taken by the learned Judges in the case of Dawarkachand with great care and respect, but we are of the opinion that the learned Judges overlooked certain material aspects of the question. It is not disputed that under the Constitution both in Pakistan and India the appoint ing authority is the punishing authority. The enquiry officer appointed under the relevant Rules is only to report to the punishing authority the result of his enquiry. There is no provision making the findings of the enquiry officer final and, indeed, any such provision would be derogatory to the provision of the Constitution which constitutes the appointing authority as the punishing authority. To hold the findings of enquiry officer to be final would be tantamount to substituting the enquiry officer for the appointing authority to decide whether or not to punish the delinquent servant. Furthermore, whenever, if it is intended to fobid fresh enquiry or trial on the same facts, an` express prohibitory provision is invariably made. Section 403 of the Code of Criminal Procedure, 1898, and section 11 of the Civil Procedure Code 1908 are instances in point. Conversely, it is well‑established that in the investigation of criminal offences, there is no legal limit to the number of investigations which can be hold into a crime and when one has been completed by submission of a report under section 173, Cr. P. C. another may begin on further information received. Cf. : Divarkar v. Ramamurthi (35 M L J 127) and Muhinder v. Crown (33 P L R 891).

7. The above principle shall apply with greater force to the case of a civil servant who under the Constitution holds office "at pleasure" cf. : Article

176. It is an inseparable incident of holding office at pleasure, that service is terminable at any time without any cause being assigned. However, vide Article 177 of the Constitution the pleasure of the State is abridged in the sense that the civil servant shall, before his dismissal, removal or reduction in rank, be afforded "reasonable opportunity" of showing cause against any of the above punishments. To this extent the pleasure is abridged, but it remains unqualified in other respects. It is implicit in holding office at pleasure, that the t desirability of further retention in service of a civil servant can be assessed at any time. To hold otherwise, would impinge upon the pleasure of the State, which, as observed above, is abridged only to affording reasonable opportunity to a delinquent civil servant, an opportunity of showing cause against the proposed action. The rules regulating inquiry proceedings before the inquiry officer against civil servant merely lay down an objective standard of what shall be reasonable opportunity and are not intended to override the pleasure of the State.

8. The question can also be viewed in another perspective. The whop; object of initiating disciplinary proceedings against a civil servant is to maintain purity of public servant which, indeed, is in the highest public interest. The object is certainly not to punish an erring civil servant to the crimi nal sense : that would require his trial in a criminal Court. It is because of this that when the facts alleged against a delin quent also constitute a criminal offence, he is separately tried by the criminal Court and the disciplinary action to adjudge his fitness for further retention in public service can proceed simultaneously or follow the result of the criminal case. No question of "double jeopardy" can arise in such case and, indeed, Article 177 (2) (a) of the Constitution envisages dismissal from service. without any formal enquiry, after a delinquent servant has been convicted by a Court. Conversely, a civil servant, notwithstanding his conviction, may be retained in service and instances of such cases rare though are not wanting. Therefore, the principle of autrefois acquit or the principle of res judicata which is perhaps the sole basis upon which the view taken fn the case of Dawarkach and proceeded‑can have no applica tion to disciplinary proceedings against a civil servant which are initiated for an object entirely different from dispensing criminal justice or deciding a civil dispute. To support the above view, we may aptly reproduce the following observations of their Lordships of the Supreme Court in The Province of East Pakistan v. Muhammad Abdu Miah (P L D 1959 SC 276) :‑ " . . . . And in matters affecting the public service, result deleterious to the public interest can readily follow if questions of application of service rules are approached as if the duty is merely to assert rights vested in the public servant who is the complainant. The paramount purpose and principle in the matters, applicable to the complainant . . . is that the integrity and efficiency of that section shall be maintained, in the interests of the public service and of the public generally. The due dispensation of justice in respect of claim of an individual public servant is possible only if the question of his private right is approached from the point of view of the larger public interest of which such private right forms only a small part." Needless to say, that the proposed enquiry against the petitioner is Wholly in public interest which cannot be throttled by principles of natural justice which are not attracted for the present case for the petitioner, we have no doubt will be afforded opportunity to defend himself as on previous occasion.

9. It would also be instructive to refer to the facts of the celebrated case of High Commissioner for India and Pakistan v. I. M. Lall (P L D 1948 P C 150). In that case of I. M. Lall, a member of the former I. C. S. was charged with misconduct on eight counts. The enquiry against him was entrusted in the first instance to Mr. J. D. Anderson, before whom he admitted the first two charges and denied the remaining six. Mr. Anderson without any further examination of witnesses made his report finding hint guilty of the first two charges, The Government did not act upon the report Mr. Anderson and appointed Mr. F. L. Brayne to hold another enquiry against I. M. Lall. It is true that the order of dismissal was set aside, but that was on the interpretation of section 240 (3) of the Government of India Act, 1935, And it is significant to point out that in that case, I. M. Lall did pot question the order of his dismissal on the ground that the second enquiry by Mr. F. L. Brayne was incompetent.

10. For the foregoing reasons, we regret not to be able to subscribe to the view taken by the learned Judges in the case of Dawarkachand and dismiss the writ petition in limine, as wholly misconceived in the circumstances of the case. A.H. Petition dismissed in limine.