2008 PLP 563 (SCMR)

This C.M.A. has been filed for setting aside suspension order, dated 1-10-2007 passed by Cabinet Secretariat, Establishment Division and Ministry of Interior whereby Capt. (Retd.) S. Morawet Ali Shah, Inspector-General of Police, Islamabad, Mr. Muhammad Naeem Khan, Senior Superintendent of Police, Islamabad and Ch. Muhammad Ali, Deputy Commissioner were placed under suspension with immediate effect and until further orders in terms of section 4 of the Removal from Service (Special Powers) Ordinance, 2000.

2. Briefly stated facts leading to the filing of instant application are that on 30-9-2007 serious clash .took place between lawyers, media persons and members of the civil society with police contingent/law enforcing agencies when they intended to lodge a protest before Election Commission of Pakistan where the nomination papers of General Pervez Musharraf and others for the election of the President of Islamic Republic of Pakistan were being scrutinized. During the above incident lawyers and the media persons were allegedly beaten up and injured as they wanted to move towards the office of Election Commission of Pakistan for registration of their protest. There were also reports that the Minister of State for Information Mr. Tariq Azeem was also manhandled in front of the office of Election Commission of Pakistan. Similarly Dr. Farooq Sattar, M.N.A. met with the same treatment in front of Federal Government Services Hospital, Islamabad. The matter was brought to the notice 'of the then Chief Justice of Pakistan who issued suo motu notice to the Secretary, Interior Government of Pakistan, Inspector-General of Police, Deputy Commissioner/Duty Magistrate and Senior Superintendent of Police, Islamabad. The matter came up for hearing on 1-10-2007 when the Secretary Interior was directed to place Morawet Ali Shah, Inspector-General of Police, Islamabad, Muhammad Naeem Khan, S.S.P. Islamabad and Ch. Muhammad' Ali, Deputy Commissioner, Islamabad under suspension forthwith. Accordingly, all the above three officers were placed under suspension vide Notifications No.2/14/2007/D.1, dated 1st October, 2007 and No.2/47/87-ICT-I, dated 1st October, 2007 and the same were made part of the order of this Court.

3. We have heard Mr. Mujeeb-ur-Rehman, learned Advocate Supreme Court and Raja M. Bashir, learned Advocate Supreme Court for the applicants as well as Malik Muhammad Qayyum, learned Attorney-General for Pakistan at length and have gone through the record and proceedings of the case in minute particulars.

4. Messrs Mujeeb-ur-Rehman, learned Advocate Supreme Court and Raja M. Bashir, learned Advocate Supreme Court contended that no opportunity of hearing was provided to the applicants which being the basic principle of natural justice was violated. It is further contended that while taking impugned action neither any show-cause notice was issued nor statement of allegations was provided to the applicants. The learned counsel referred to S

1. No.126 of the ESTACODE (2000 Edition page 622), which envisages that disciplinary proceedings against Government servants placed under the suspension should be finalized within two months of the date of suspension and if in any case it is not possible to finalize departmental proceedings against the Government servant within said time, the matter should be reported to the Secretary Establishment giving reasons for not completing the proceedings. Then it is for the Secretary Establishment to scrutinize the case and if he finds no justification to continue the proceedings he may recommend the competent authority to cancel the order of suspension.

5. Malik Muhammad Qayyum, learned Attorney-General for Pakistan placed on record concise statement on behalf of Ministry of Interior and stated that in this case no proceedings of any sort have been commenced. According to him, in the instant case, the Ministry of Interior had constituted a fact finding committee for the incident of 30-9-2007. However, after suo motu notice was taken by this Court, the Inquiry Committee delayed its proceedings. He further stated that Ministry of Interior has no objection if the suspension orders are recalled.

6. Ms. Viqar-un-Zeb, Joint Secretary Ministry of Interior also confirmed that no departmental proceedings of any sort have been commenced against above mentioned officers.

7. According to Sl. No.85(2)(b) of the ESTACODE (2000 Edition, page 567), since continuation of forced leave or suspension beyond a period of three months again requires the approval of the "authority", on expiry of the said period of three months, the Government servant who has been placed under suspension or forced to proceed on leave would tie deemed to have been reinstated unless before the expiry of the said period the approval of the "authority" to the Government servant continuing to be under suspension or on leave has been obtained. Since no such approval of the competent authority was obtained in the present case, the suspension order cannot continue any further. Moreover, Sl. No.126 of the ESTACODE (2000 Edition, page 622), provides that disciplinary proceedings against Government servants placed under suspension should be finalized within two months of the date of suspension and if in any case it is not possible to finalize departmental proceedings against the Government servant within such time, the matter should be reported to the Secretary Establishment giving reasons for not completing the proceedings. Rule 5(1) of the Government Servant (Efficiency and Discipline) Rules, 1973 also contains similar provision. It may be advantageous to reproduce the same as under:-- "5.(1) In case where a Government servant is accused of subversion, corruption or misconduct, the Authorized Officer may require him to proceed on leave or, with the approval of the authority, suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months." The plea raised by the learned counsel for the applicants also finds support from the observations made by learned High Court in the case Mian Munawar-ud-Din v. Federation of Pakistan PLD 1979 Lah. 699, relevant portion whereof reads as under:-- "It may further be noted that according to rule 5(1) reproduced above, any continuation of suspension requires approval of the authority after every three months. This provision also makes it further clear that not only the contemplated suspension but the continuation must be preceded by approval. This view is further supported by the official interpretation of the Department, as given in Office Memo. No.7/2/75-DI, dated 22nd February, 1975, issued by the Establishment Division of the Cabinet Secretariat, Government of Pakistan. The relevant portion may be reproduced with advantage:-- (a) Since under rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973, the "Authorised Officer" can only suspend a Government servant after obtaining the approval of the "authority", on the basis of principle embodied in section 25 of the General Clauses Act, 1897, the "Authorised Officer would be competent to reinstate the Government servant only with the approval of the authority". (b) Since continuation of forced leave or suspension beyond a period of three months again requires the approval of the "authority" it would appear that on expiry of the said period of three months, the Government servant who has been placed under suspension or forced to proceed on leave would be deemed to have been reinstated unless before the expiry of the said period the approval of the "authority" to the Government servant continuing to be under suspension or on leave has been obtained." The above judgment follows the law laid down by this Court in the case of Nazir Ahmed v. Pakistan and 11 others PLD 1970 SC 453.

8. In view of above, we direct the concerned authorities to examine the case of the applicants in the light of the above provisions of law and take appropriate action without being influenced by the observations/orders passed by this Court in the present case. Accordingly, C.M.A. 3034 of 2007 stands disposed of. M.H./S-1/SC Order accordingly.