P L D 1960 Dacca 854 (PLP)

The learned Advocate‑General has conceded and indeed, the affidavit‑in‑opposition filed on behalf of the Government does not dispute that so far as the charge of inefficiency was concerned, it was never before the Screening Committee. The Screening Committee did not have any occasion to apply its mind to the said charge of inefficiency, nor was the petitioner ever furnished any opportunity of meeting the said charge. The charge was, for the first time, as revealed in the affidavit‑in‑opposition, introduced by the Advisory Committee. Nothing, of course, has been said in the affidavit‑in‑opposition as to how the said charge came to be introduced for the first time before the Advisory Committee. It is also admitted that the findings of the Advisory Committee were never even communicated to the petitioner ; but it is maintained that since ; the rules do not provide for the issuance of any show‑cause notice by the Advisory Committee, there was no necessity to do so and the petitioner cannot make any grievance on that account. In support of this contention the learned Advocate‑General has also relied upon a decision of this Court, to which one of us is a party, namely, the case of Muhammad Taiyab Ali v. The Province of East Pakistan and others, (P L D 1960 Dacca 842) disposed of on the 11th of May 1960. In this case the petitioner had been charged by the Screening Committee for misconduct and the ground of such misconduct was that he had attended and addressed a political meeting held in the Bar Library, Dacca, in August 1958, under the auspices of the East Pakistan Peace Com mittee. The Screening Committee in t e said case exonerated him of the said charge after considering his explanation ; but, nevertheless, recommended that he may be proceeded against departmentally by the department concerned, if it thought fit. Thereafter the matter was referred by the appointing authority to the Advisory Committee. The Advisory Committee considered some further item of evidence, namely, his conduct at certain meetings of the Epidemic Control Committee and that the meeting referred to by Screening Committee was not the only meeting of a political nature which the petitioner in that case had attended but that he had attended other meetings of the said organisation also and taken part in their deliberations. Upon those grounds, the Advisory Committee advised the appointing authority that the petitioner therein should be removed from service, and the appointing authority, accepting the said advice, removed the said petitioner. It is also a significant fact that in that particular case the findings and recommendations of the Advisory Committee were actually communicated to the petitioner concerned and he was asked to prefer an appeal or offer his explanation thereto if he so desired and indeed, the petitioner in the said case did so. The petitioner in that case contended, inter alia, that he should have been informed of the additional evidence that was going to be used against him and given a further opportunity of calling evidence in rebuttal thereof‑by the Advisory Committee. This Court, however, took the view that since the petitioner had been substantially informed of the charges against him, it was not necessary to give him notice of each and every item of evidence that such an executive body may have utilised in support of the said charge. Therefore, in substance, the petitioner had not been denied any opportunity of making any effective representation against the finding of the Advisory Committee in the said case, and as such, he could not make a grievance on that account merely. The said decision does not, in our view, support the contention that even if the officer concerned has never been furnished with a charge‑sheet and never at any stage been given an opportunity to meet the charges against him yet he can be punished on that ground ; nor do we think that any such wide principle has been laid down by their Lordships of the Supreme Court in the case of Zafarul Ahsan v. The Republic of‑ Pakistan, where the Government servant concerned was only compulsorily retired from service after any, enquiry was held by the Screening Committee. In the latter case his Lordship the Chief Justice of Pakistan has elaborately pointed out at page 118 of the reports that the scheme of the Laws (Continuance in Force) Order and the Public Conduct (Scrutiny) Ordinance appears to be that there should be two different kinds of punishment one by which the penalty to be imposed would be of a considerably lighter kind and in a case where a penalty of the latter kind was sought to be imposed, more plenary powers had been given to the appointing authority. Indeed, his Lordship pointed out that the difference in the phraseology of sub‑clauses (a) and (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, was "deliberate and the obvious reason for it seems to be that retirement was considered to be a lighter penalty than reduction in rank, removal and dismissal: Since servants of the State hold their offices during the pleasure of the Head of the State, by enacting sub‑clause (b) the President intended to confer on the Central Government the power to retire a Government servant without the formality of an enquiry if it were of the opinion that the servant concerned was guilty of corruption or misconduct or had the reputation of being corrupt." With regard to the punishment provided in sub‑clause (a), however, it is necessary to point out that his Lordship was definitely of the opinion that "such enquiry as the Central Government may direct is a sine qua non under sub‑clause (a)." The use of these words, to our mind, indicates that the Supreme Court considered the enquiry provided under the rules in cases referred to under sub‑clause (a) as a condition precedent to the imposement of the said penalties. Their Lordships were of the view that in cases dealt with under sub‑clause (a) it was incumbent on the authority concerned to follow the provisions laid down in the rules, although a mere irregularity in procedure would not be sufficient to render the action taken altogether invalid. We are unable to agree that their Lordships of the Supreme Court held in the case of Zafar‑ul‑Ahsan v. Toe Republic of Pakistan that the ouster of the jurisdiction of the Courts provided for under stub‑clause (4) of Article 6 of the Laws (Continuance in Force) Order or section 10 of the Public Conduct (Scrutiny) Rules, 1959 was complete or absolute in the sense contended by the learned Advocate‑General. Indeed, reading the penultimate paragraph of their Lordships' judgment the impression that we have formed is that their Lordships did not wish to depart from the traditional view taken with regard to such provisions providing for the exclusion of the jurisdiction of Courts, namely, that the jurisdiction of the Courts can only be excluded by express words or necessary implication and even where so excluded, the Courts would still retain the jurisdiction to question acts committed in excess of jurisdiction, i.e., acts which are clearly ultra vires or acts committed mala fides or where the statute is used for a collateral purpose. Such a right, as pointed out by their Lordships in the said case, has been upheld in a long line of decisions both in England and this sub continent which, to use the language of his Lordship the Chief Justice, have not treated such orders or acts as being made or done "under the statute." It is interesting to note the similarity between the principles laid down by his Lordship the Chief Justice and Lord Thankerton of the Judicial Committee in the case of Secretary of State represented by the Collector of South Arcot v. Mask & Company (67 I A 222) where the latter observed: "It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the funda mental principles of judicial procedure." Reading the judgment of their Lordships of the Supreme Court in Zafar‑ul‑Ahsan's case, we feel that their Lordships were not laying down anything which constituted a departure from this settled rule of law. It is in the light of these principles, therefore, that we purpose now to examine the facts of the present case and the relevant law applicable thereto. We have set out earlier in this judgment the charge that the Screening Committee communicated to the petitioner. In this charge only two grounds were specified that (a) he had a general and persistent reputation for corruption and (b) that he was guilty of conduct contrary to the rules regulating the conduct of Government servants and/or unbecoming his office. The conduct which was alleged to be unbecoming his office, was said to be that in order to get a transfer order cancelled, he had sent his wife to Dacca to approach senior Officials and Ministers. So far as the law is concerned we find that the Laws (Continuance in Force) Order, Article 6, provides :‑

"(1) All persons who immediately before the Proclamation were in the service of Pakistan as defined under clause (1) of Article 218 of the late Constitution and those persons who immediately before the Proclamation were in office as Governor, Judge of the Supreme Court or a High Court, Comptroller and Auditor‑General, Attorney‑General or Advocate‑General, shall continue in the said service or in the said office on the same terms and conditions and shall enjoy the same privileges, if any. Explanation.‑-- (2) . . , . (3) Notwithstanding anything in clause (1) a person in the service of Pakistan may, if he is found inefficient or guilty of subversive activities, corruption or misconduct, under rules made in that behalf by the President or a Governor be suspended, compulsorily retired (whether he has reached the age of retirement or not), reduced in rank, removed or dismissed in accordance with those rules by an authority not subordinate to that by which he was appointed. (4) No rule made under clause (3) or order expressed to be made in accordance with any such rule shall be called in question in any Court. (5) Nothing in this Article or in any law, rule or instrument having the force of law shall prevent a person mentioned in clause (1) from being‑ (a) suspended, reduced in rank, removed or dismissed for being corrupt or for misconduct, or for inefficiency after such enquiry as may be held under the orders of the Central Government. (b)

." Now, it will be seen from Rule 2 of the Public Conduct (Scrutiny) Rules (only portions relevant are quoted), that: "Where a Committee is of the opinion that there is reason to believe that person to whom the Ordinance applies‑

(a) is corrupt, or may reasonably be considered corrupt because‑ (i) he has the general and persistent reputation of being corrupt ; or (ii)

. . (iii)

(b) is guilty, in the case of a Government servant, of conduct contrary to the rules regulating the conduct of Government servants, and in any other case of conduct unbecoming his office ; or (c) is inefficient, or has ceased to be efficient and is, not likely to recover his efficiency‑‑ it may so inform that person and call upon him to explain any fact or circumstance appearing against him." This rule thus specifies the offences for which action can be taken. Under this, the offence of general and persistent reputation of being corrupt is an offence which is distinct and different from that mentioned in sub‑clause (b), namely, misconduct or conduct unbecoming his office and lastly, inefficiency is a separate offence by itself. Again under clause (b) of this rule a difference appears to have been made between the offences with which "Government Servants", on the one hand and persons holding the other offices specified in clause (1) of Article 6 of the Laws (Continuance in Force) Order on the other hand, may be charged. These rules were framed in exercise of the powers given by section 8 of the Public Conduct (Scrutiny) Ordinance, 1959 and appear to be the rules referred to in clause (3) of Article 6 of the Laws (Continuance in Force) Order, 1958. So far, therefore, as the punishments mentioned in sub -clause (a) of clause (5) above quoted are concerned, the enquiry is that which is provided by the Public Conduct (Scrutiny) Rules and the scheme thereof appears to be that where there is reason to believe that a Government servant is guilty of offences mentioned in clause (3) of Article 6 of the Laws (Continuance in Force) Order, he should fist be called upon to explain "any fact or circumstance appearing against him." Then by rule 4 the Screening Committee shall, after considering the explanation, if any, record a finding on the matter "of which the person concerned has been informed under rule 2" and then submit that finding to the appointing authority. Such finding under rule 5 is to 'be accompanied with the recommendation as to punishment, if any, made by the Screening Committee. Under rule 6 if the finding is adverse to the person concerned, a copy of the finding and the recommendation has to be furnished to him to enable him to make an appeal against that adverse finding and recommendation. Lastly, the appointing authority, after considering the finding, the recommendation and the appeal; if any, shall pass an order thereon or refer the proceeding to such advisers as he thinks fit and in the latter event, pass an order after considering their opinion. On behalf of the petitioner our attention is also drawn to section 4 of the Public Conduct (Scrutiny) Ordinance, 1959 to point out that the jurisdiction that has been given to the appointing authority is merely to pass orders upon the findings and recommendations of the Screening Committee "according to law", which must also necessarily include the rules framed under that Ordinance. Reference is also made to sections 5 and 6 of the Ordinance to support the contention that the legislature had vested these Screening Committees with almost all the powers of civil and criminal Courts and in effect, constituted them Courts and their proceeding3 judicial proceedings. Hence, it is argued, the appointing authority being in the position of an appellate authority, had no power to punish for an offence with which the officer concerned was never charged and which could, by no stretch of imagination, be regarded as an offence cognate to the offences actually charged. The Advisory Committees could not also, it is said, acquire any jurisdiction to investigate into a new charge or a new offence, for their function under rule 7 of the Rules was merely to advise the appointing authority as to the order that he should pass upon the findings and recom mendations and the appeal before him. Although we are unable to subscribe to the view that because under the Ordinance certain powers of Courts, namely of summoning witnesses, enforcing their attendance, discovery of documents, issuing of commissions etc. have been given to the Committee, the Committee has necessarily become a Civil Court. It is not unusual for such powers to be given to other tribunals vested with the jurisdiction to make decisions in the nature of executive or administrative decisions. Similarly, the application of certain provisions of the Criminal Procedure Code to the proceedings before the Committee was merely intended for the purpose of seeing that persons giving evidence or producing documents before the Committee, may be made liable for certain offences such as, perjury etc. But on the other hand, we find it equally difficult to agree with the learned Advocate‑General that the rules framed under the statute are merely in the nature of administrative directions, the non‑observance of which may be disregarded as a mere irregularity in procedure. It seems to us that these rules were designed to assure to the Government servants concerned that they would not be denied even in these screening proceedings certain basic principles of a fair enquiry commonly followed in the administration of justice, that they would at least be given an opportunity to defend themselves and would not be condemned unheard, particularly, where they were being suspended, reduced in rank, removed or dismissed from service. If, as observed by their Lordships of the Supreme Court, in cases falling under sub‑clause (a) of clause 5 of Article 6 of the Laws (Continuance in Force) Order, the enquiry was a sine qua non then it is difficult to conceive of an enquiry in which the person whose conduct was being inquired into would not even be given the substance of the charge levelled against him, even though the rules framed for the enquiry expressly provide that he should be informed not only of the charge but also of the "facts and circumstances appearing against him." In the category of actions considered to be mala fide the Courts have often included actions which have been variously' described as "misuse of powers" or even "abuse of powers" or as acts done in "colourable exercise of powers." We would, however, the content to say that a total disregard of the pro visions prescribed by the statute or rules framed under the statute may well be characterised as a misuse of powers and bring it at least within the ambit of an act which, in the language of the Supreme Court in Zafar‑ul‑Ahsan's case, "in fact is not taken though it purports to have been taken under the statute." From this point of view, we are of the opinion that since the charge of inefficiency was never communicated to the petitioner and he was never given an opportunity of offering any explanation thereto, his punishment on that ground was illegal and not an order made in accordance with any rule framed under the Public Conduct (Scrutiny) Ordinance or according to law. So far as the punishment on the ground of misconduct is concerned, the Screening Committee, as already pointed out, found him guilty of conduct unbecoming his office. But it is now contended on behalf of the Government that the acts alleged and found by the Screening Committee also constituted misconduct and, therefore, the Advisory Committee was justified in advising punishment on the ground of misconduct. The learned counsel appearing on behalf of the petitioner has, however, urged that Article 6 of the Laws (Continuance in Force) Order, 1958 as amended by the Laws (Continuance in Force (Amendment) Order, 1959, contemplated action, generally described as screening, against two categories of officers, namely, those mentioned in the original clause (6) of the President's Order (Post‑Proclamation) No. I of 1958 as persons who immediately before the proclamation were in the service of Pakistan as defined under clause (1) of Article 218 of the late Constitution and those persons who immediately before such proclamation did not come within the above mentioned category but were nevertheless holding certain offices as that of Governor, Judge of the Supreme Court or a High Court, Comptroller and Auditor General, Attorney‑General or Advocate‑General. Clause (3) of the Amendment Order, 1959, however, provided for the punishment of persons only in the service of Pakistan and not those holding the offices specified, in the original Order. The rules referred to therein also applied to this category. This distinction between the two categories was, therefore, also maintained under clause (b) of rule 2 of the Public Conduct (Scrutiny) Rules under which the guilt in the case of a Government servant consisted of conduct "contrary to the rules regulating the conduct of Government servants" and in any other case "of conduct unbecoming his office." It seems to us that upon the language of the provisions quoted above, this distinction is abundantly clear and must be accepted. A person falling in the category, therefore, of a servant of Pakistan under clause (1) of Article 218 of the late Constitution can only be held to be guilty of misconduct if he has committed any act which is contrary to the rules regulating the conduct of Govern ment servants. These latter rules in their turn are contained in a Notification, which was issued on the 24th of October 1949, in supersession of all previous rules, being Notification No. 4920‑F. of that date, and are described as "the Government Servants' Conduct Rules." The learned counsel appearing in support of the petition has taken us through these rules and urges that these rules do not embrace even remotely any action of the kind with which the petitioner was charged, namely, vicarious responsibility for the act of his wife in approaching the then Chief Minister for the cancellation of the order of transfer. The charge of misconduct, as already mentioned, was based, in the present case, upon the alleged conduct of the petitioner's wife in approaching the then Chief Minister and asking him to cancel the petitioner's transfer order from Jessore. The Screening Committee took the view that this must have been done with the officer's full approval, if not at his request and, therefore, amounted to conduct unbecoming a public servant. The interpretation given by the learned counsel as to what is misconduct in the case of Government servants falling within the category which formerly came under Article 218 of the late Constitution, it seems to us, must also be upheld and, therefore, the acts alleged, even if found in the present case against the petitioner, did not amount to misconduct and, therefore, did not also amount to an offence which came within the ambit of the provisions of either the Laws (Continuance in Force) Order or the Public Conduct (Scrutiny) Ordinance, 1959, or the rules framed thereunder. Indeed this interpretation also appears to be supported by the language of rule 2 (b) itself, for, the offence there mentioned is "conduct contrary to the rules regulating the conduct of Government servants." If those acts did not come within the ambit of the above provisions, then the action taken by the appointing authority was not on any ground within the grounds stated In the Statute and, therefore, did not satisfy the fourth condition, laid down by their Lordships of the Supreme Court in the case of Zafar‑ul‑Ahsan v. The Republic of Pakistan, as a necessary condi tion for ousting the jurisdiction of this Court. We have, therefore, come to the conclusion that in either event the action taken against the petitioner is not entitled to the protection of either clause (4) of Article 6 of the Laws (Continuance in Force) Order or section 10 of the Public Conduct (Scrutiny) Ordinance, 1959. Having come to this view, it is not necessary for us to ente in any great detail into the other points urged, for this rule can well be disposed of upon our decision on the above points which were the main questions urged in support of this rule. For the sake of completeness, however, we would like to say that having seen the original order on the file, we accept the contention of the learned Advocate‑General that the substituted notification was not made in review of the original order but that it was issued merely to correct an unfortunate, though deplorable, clerical error committed through oversight in the drawing up of the Notification in the first instance. We are unable also to accept the contention that the appointing authority had no power to impose a punishment in excess of the recommendation of the Screening Committee. We are in agreement with the view taken by this Court in the case of Muhammad Taiyab Ali v. The Province of East Pakistan that the discretion of the appointing authority as regards the punishment to be imposed is not in any way fettered by the recommendation of the Screening Committee. If the appointing authority accepts the findings of the Committee lawfully arrived at, the appointing authority may impose any one of the punishments provided by the Statute. This view is also supported by a recent decision of the West Pakistan High Court in the case of Mirza Muhammad Ali v. Commissioner, Lahore Division and others (P L D 1960 Lah. 641). The contention that the proceedings before the Committee and the appointing authority partook of the characteristics of a judicial proceeding is also not, in our, view, correct for the proceedings are of the same nature as any other proceeding for taking disciplinary action against a Government servant and such proceedings have never been held to be judicial proceedings. The mere fact that the Screening Committees have been vested with certain powers of Courts do not alter their character and convert them into judicial tribunals charged with the duty of proceeding judicially in the conduct of enquiries before them. For the reasons given above, we are of the view that this rule should be made absolute. This rule is, accordingly, made absolute but we make no order as to costs. IDRIS, J.‑I agree. A. H. Rule made absolute.