P L D 1984 Lahore 363 (PLP)

IJAZ NISAR, J.‑This Intra‑Court Appeal is directed against the order dated 1.5.2‑1981 passed by the learned Single Judge of this Court in Writ Petition No. 841 /S of 1981.

2. The facts in brief are that the appellant was employed as Sanitary Inspector in Town Committee, Shahkot, District Sheikhupura. Vide Resolu tion No. 11, dated 29‑1‑1981 he was compulsorily retired from service by imposing a major penalty on him on the ground of absence from duty without leave. He challenged his removal from service through constitutional petition which was dismissed in limine by the learned Single Judge of this Court on 15‑2‑1981 on the ground that since an alternative remedy of appeal under rule 40 of the Municipal Servants (E & D) Rules, 1963 (hereinafter referred to as the rules) was available to him, the Writ petition was not entertainable.

3. Learned counsel for the appellant contends that an appeal would be available only if the Municipal Authority takes or purports to take action under the ibid rules and as the appellant's removal was not in pursuance of the said rules but on the basis of a resolution which term does not figure anywhere in the rules, therefore, the appellant was not in a position to avail of the said remedy.

4. The important question that calls for determination is as to whether the resolution in question could be treated as an order as envisaged by the rules. The rules provide a specific procedure for inquires, for inefficiency, misconduct or corruption. They also provide for explanation of the concerned official, enquiry, framing of charge‑sheet and personal hearing. Rule 36 provides that if upon consideration of the report of the Enquiry Officer or the Enquiry Committee, as the case may be, the authority is of opinion that a major penalty should be imposed upon a municipal servant, it shall provisionally determine the penalty to be imposed and shall so inform him, and supply to the municipal servant concerned a copy of the report, of the Enquiry Officer and shall call upon him to show cause within a reason able time which shall not be less than seven days or more than fourteen days, why the penalty proposed should not be imposed. Rule 40 states that a municipal servant on whom a penalty has been imposed under rules 36, 37 or 38 may, within ninety days of the order in question, appeal to the appellate authority.

5. The respondents were required to show that the appellant's retirement bad been preceded by due observance of all the legal formalities and the resolution in question was an order of the competent authority against which an appeal was competent. They have failed to do so.

6. The resolution by which a major penalty was imposed on the appellant cannot be equated with an order as contemplated by the Municipal Servants (Efficiency & Discipline) Rules, 1963. If the municipal servants were to be dealt with in a manner like this the rules and procedure prescribed for enquires and imposition of penalties would be a mere redundancy and superfluity. It is a settled proposition that if the law provides a particular mode of doing a thing, it must be done in the said manner and no other. The rules which enjoin the Authority to impose a penalty after an enquiry , framing of charge sheet, giving personal opportunity to show cause against the proposed penalty etc. have not been followed without any legal excuse. Hence, the action of the respondent being ultra vires of the rules cannot be allowed to stand: Accord ingly, we accept the appeal with costs, set aside the order of compulsory retirement of the appellant and direct that he shall be treated to be in service from the date the impugned order was passed and shall be entitled to all the past benefits. M.Z. M. Petition accepted.