P L D 1969 Dacca 250 (PLP)

SALAHUDDIN AHMED, J.‑The petitioner before us is an Assistant Estate Officer under the Khulna Development Authority (hereinafter referred to as the authority). He was first appointed as an upper Division Assistant under the Authority sometime in June 1962, and was promoted as Head Assistant in January 1963. He was promoted to the post of Assistant Estate Officer in the early part of 1964 and drew a monthly salary of Rs. 295 at the relevant time. On the 11th of December 1965 the petitioner was with an order passed by Mr. M. Keramat Ali, C. S. P., Chairman of the Authority containing eight charges against the petitioner asking the petitioner to show cause why he should not be removed from his post on the grounds stated in the said Order. Pending further enquiry, the petitioner was put under suspension. The said order is Annexure `A' to the petition. It is the petitioner's case that no rules have been framed by the Provincial Government under East Pakistan Ordinance No. II of 1961, namely the Khulna Development Authority Ordinance, 1961 (hereinafter called the Ordinance) and that no rules were ever adopted by the Authority which may be said to apply to any disciplinary action taken against its Officers and employees by the Authority. The petitioner has therefore challenged the validity of the disciplinary proceedings started against him on the ground that, in the absence of any rules pres cribed by the Provincial Government in this behalf, the Authority is unable to exercise its powers of taking disciplinary action against the petitioner under section 19 (1) of the Ordinance. The petitioner has also characterised the aforesaid order of the Chairman of the Authority as mala fide and has also made certain allegations against that officer. The allegation of mala fide is unfounded inasmuch as no materials have been placed before us in support of the allegation. On behalf of the respondents, namely, the Chairman Khulna Development Authority, Khulna and Mr. H. Karamat Ali, Ex‑Chairman of the Khulna Development Authority and now Commissioner, Khulna Division, affidavits‑in‑opposition have been put in separately refuting the allegations made against the Chairman of the Khulna Development Authority by the petitioner as well as the allegation of mala fide made against the aforesaid order of Mr. Karamat Ali. The affidavits‑in‑opposition put in on behalf of the respon dents betray a lack of uncertainty as to the stand the respondents have taken in regard to the framing of the rules by the Provincial Government under the Ordinance as well as the applicability of the precise rules to the petitioner regarding the disciplinary action taken against him. It has been asserted on the one hand that the petitioner had been appointed on terms and conditions contained in the East Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 and the said rules were made applicable to employees of the said Authority till regular rules were framed under section 83 of the Ordinance. It has been asserted that the letter of appoint ment issued to the petitioner supports this position. We may at once dispose of this last‑mentioned assertion by saying that this is not supported by the production of any document. The respondents have also stated in their affidavits that since the initiation of the impugned proceeding against the petitioner draft rules framed under section 83 of the Ordinance have been duly published as required under section 84 of the Ordinance and all formalities in regard to their final publi cation have been completed. It is, however, admitted that the said draft rules have not yet been finally published as required, under section 85 of the Ordinance. Nevertheless, the respondents have asserted that these draft rules are applicable to the petitioner and they are now being applied to him In continuation of the impugned proceeding against him inasmuch as these rules are good rules under the law, Respondent No. 2 has categorically denied the various allegations of mala fide directed against him and the order passed by him whereby the impugned proceeding against the petitioner was initiated. On behalf of the petitioner, Mr. Meser Ali has challenged the validity of the impugned proceeding against the petitioner as well as the order of suspension passed against him. He has argued that in the absence of any rules prescribed by the Pro vincial Government under section 83 (2) of the Ordinance, the Chairman had no power to initiate the impugned proceeding or pass the order of suspension against the petitioner. In support of this contention, Mr. Meser Ali has relied on a Division Bench decision of this Court reported in M. Noman v. Dacca Improvement Trust and ethers (P L D 1964 Pupa 671). Section 19 (1)(a) of the Ordinance reads as follows: - "19. (1) Subject to any rules which may be prescribed by the Provincial Government in this behalf, the power of making appointments and promotions to posts in the service of the Authority of granting leave of officers and other employees of taking disciplinary action against such officers and employees, shall be exercised by the under mentioned authorities‑ (a) In the case of posts, the monthly salary or the maximum monthly salary of which does not exceed five hundred rupees, and officers and employees holding such posts by the Chairman. The other portions of section 19(1), are not relevant" for our purpose. It has been contended on behalf of the petitioner that section 19 (1) (a) makes it clear that the power given to the Chairman in regard to matter mentioned therein have been made "subject to any rules which may be prescribed by the Provincial Government in this behalf". Section 83 of the Ordinance empowers the Provincial Government to make rules for carrying out the purposes of this Ordinance and in particular the Government make rules for appointment, pension, leave and disciplinary matters of employees of the Authority under sub section (1) of section

83. As we have already indicated, no rules have been framed by the Provincial Government under section 83 of the Ordinance. All that has been claimed on behalf of the respondents is that the draft rules have been made and published as required under section 84 of the Ordinance. These draft rules, however, will not become valid rules under the Ordinance unless and until they have been published in terms of section 85 of the Ordinance. Upon the facts placed before us, it is clear that neither any rules as required under section 19 read with section 83 existed nor any rules such as the East Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 were ever adopted by the Government and the Authority for the purpose of application of section 19 (1) of the Ordinance. We have already stated that the assertions made on behalf of the respondents that the latter rules were made applicable to the petitioner, have not been substantiated. In these circumstances, relying on the principles laid down in the case reported in P L D 1964 Dacca 671 it has been contended that, in the absence of any such rules, there is no power exercisable by the Chairman under section 19(I) of the Ordinance, and therefore the Authority had no power to start departmental proceedings against the petitioner or to frame any charge against him, as has been done in the present case. In the case under report, the matter was governed by the provisions of Town Improvement Act (Act XIII of 1953) and similar provisions as contained in the Ordinance were the subject matter of consideration by the Court in a similar disciplinary proceeding and the Court held that, in the absence of any rules framed by the Provincial Government under section 102 of the Act (corresponding to section 83 of the Ordinance) and notified under section 155 of the Act (corresponding to section 85 of the Ordinance), the Board of Trustees has got no power to draw departmental proceedings against the petitioner or frame any charge against him. The Court, however, held that the Board, being the Appointing Authority, has got the power of suspending the petitioner from service preliminary to or pending the departmental proceeding to facilitate the proceeding. We are in respectful agreement with the decision of the said Division Bench on this point and we feel that the contention raised on behalf of the petitioner is wall supported by this decision. On behalf of the respondents, the maintainability of the application itself under Article 98 of the Constitution has been sought to be assailed on the ground that Article 98, sub‑Article (3)(b), as well as Article 179(2) of the Constitution prevent such an applications. We do not think there is any substance in this contention inasmuch as the question before this Court is not in respect of the enforcement of the terms and conditions of service or is based on any Constitutional guarantee provided to a Government servant under Articles 177 and 178 of the Constitution. The only question before us is: whether a certain proceeding drawn up against the petitioner is authorised under the law or not. Having regard to what we have stated above, and in the light of the observations made by this Court in P L D 1964 Dacca 671 we hold that the impugned Proceeding Case No. 6 of 1965 drawn up against the petitioner and the charges framed against him as contained in the order passed by Mr. Karamat Ali, Chairman of the Khulna Develop ment Authority on the 11th of December 1965, as per Annexure `A' to the petition are without any lawful authority and are of no legal effect, and we declare accordingly. We may however add that this declaration does not affect that portion of the impugned order which has placed the petitioner under suspension. We should like to observe, however that the declaration will not prejudice the right of the Authority to proceed against the petitioner under the rules if and when they are legally prescribed under the Ordinance. We may state that we have not disturbed the order of suspension passed on the petitioner because, in the special facts and circumstances of the case, we felt that the relevant rules will soon be prescribed. The Rule is accordingly made absolute in part without any order as to costs. After we have finished delivering the judgment, it has been stated by Mr. M. N. Huq, learned Advocate appearing on behalf of Mr. Ghulam Hafez who has appeared on behalf of the respondents that the rules have since been finally published. A. M. SAYEM, J.‑I agree. A. E. Rule made absolute.