P L D 1974 Lahore 921 (PLP)

In exercise of the powers conferred by rule 11 of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, the Governor of West Pakistan is pleased to suspend from service Captain Muhammad Azhar, Development Officer, Basic Democracies, Ghotki with effect from 13‑12‑1966. During the period of suspension, he is allowed to draw subsistence allowance of 1/3rd of his pay which he was drawing before suspension plus compensatory allowances, if any, as admissible under the rules. By Order of the Government of West Pakistan. S. M. Wasim, C. S. P. Dated the Secretary to Government of 15th July, 1967 Lahore. West Pakistan. No. S O (B D IV)‑5‑91/62 Dated the 15th July, 1967. (Sd.) K.B. Qureshi. Section Officer IX."

4. On the dissolution of On, Unit, .the petitioner was allocated to the Province of Baluchistan by the Government of West Pakistan by means of his Order No. Misc. S.O. (B D IV)/69‑70; dated 25‑5‑70 issued under sub clause (e) of clause (1) read with clause (2) of Article 20 of the Province of West Pakistan (Dissolution) Order I of 1970. It is to be mentioned that the Government of Baluchistan by means of its letter No. 2‑49/71 (L.G.) dated 27‑8‑1971, addressed to the Secretary, Government of Punjab, Lahore, has requested the Punjab Government to allocate the petitioner to the Province of Sind. A ‑copy of this letter is Annex. 'C'. It reads as follows :‑ "No. 2.49/71 (L.G.) Government of Baluchistan Education, Health, L.G., Social Welfare Department (L.G. Wing) Dated Quetta, the 27th August, 1971. To The Secretary, Government of Punjab, B. Ds. S. W. and Local Government Department, Lahore. Sub : (1)‑Allocation of Officers of B.Ds. Department on the dissolution of One Unit. (2)‑Departmental action against Captain Muhammad Azhar formerly Development Officer, B. Ds, Ghotki (under suspension). Sir, I am directed to refer to your letter No. S O I(B D-IV)‑5/91‑62 Prov., dated 3‑8‑1971 on the above cited subject and to state that the personal files of Captain Muhammad Azhar, Development Officer, B. Ds. bearing Nos S O (B D IV)‑5/91‑62 and SO B D‑5/10‑66 have been consulted As already explained in this Department letter No. 2‑49/71(LG), dated 24‑3‑1971 these do not contain any correspondence beyond February, 967 and, therefore, it is well neigh impossible for this Department to proceed further to finalise the enquiry pending against the officer since 1966. .

2. Your letter is also silent about the grounds on which Captain Muhammad Azhar', Development Officer, B.Ds. was allocated to this Province on the dissolution of One Unit. He is a Post Integration Officer, having been recruited by the Karachi Administration in 1960. At the time of his appoint ment Captain Muhammad Azhar declared Karachi as his Home District. It will, therefore, be appreciated that in accordance with the criteria laid down for the allocation of officers to various Provinces on the dissolution of One Unit he< ought to have been allocated to the Province of Sind.

3. In the circumstances explained above, I am to request you kindly to‑ (a) have a search for the file/record of Captain Muhammad Azhar covering the period from February, 1967 to June 1970 carried out and make it available to this Government for proceeding further in the case, and (b) communicate the grounds on which Captain Muhammad Azhar formerly Development Officer, B.Ds. Ghotki (under suspension since 1966) was allocated to Baluchistan.

4. The favour of an early action is solicited. Your Obedient Servant, (Muhammad Din) Section Officer (4 Government) for Secretary to Government of Baluchistan. Endst : No. 2‑49‑71(LG)/9213 dated Quetta the August, 1971. A copy is forwarded to Captain Muhammad Azhar, Development Officer B.Ds (under suspension) C/O Bungalow No. 140‑A‑1, Gulberg‑11, Lahore, Punjab for information. (Sd.) (Muhammad Din) Section Officer (L.G.) for Secretary to Government of Baluchistan.

5. The petitioner has come up in writ petition against the aforesiad suspension order (Annex. 'A') and the Communication of the Baluchistan Government (Annex. 'C') reproduced above. The prayer contained in the writ petition is as follows :‑ "The petitioner, therefore, humbly prays that this Honourable Court may be pleased to hold and declare that the impugned suspension order Annexure 'A' issued by the Government of West Pakistan, Basic Democracies, Social Welfare Local Government Department, Lahore, No. S O(BDIV)‑5/91‑62 dated 15th July, 1967, having retrospective effect from 13‑12‑1966 is illegal, ab intio, ultra vires and of no legal effect and thus quashed and the petitioner most humbly further prays to hold and declare that the period of suspension be treated as having been actually spent on duty and that he continues in service and that he is entitled to receive the arrears of his pay and allowances from the period‑of 13‑12‑1966 and pending disposal of this petition, the Government of Punjab kindly be restrained from taking an action as required by Government of Baluchistan per Annexure .C.

6. The first point argued by the petitioner, who is a law graduate and who argued his case himself, was that the order of suspension as contained in Annexure 'A' was dated 15‑7‑1967 but it purported to take effect retros pectively from 13‑12‑1966. He submitted that an Executive Authority possesses no power to pass retrospective orders and as such the aforesaid suspension order was without lawful authority. The contention has no merit. Learned Advocate‑General Baluchistan who appeared in this case alongwith relevant record brought to my notice that actually a suspension order had been passed earlier on 13‑12‑1966 which was conveyed telegraphically to all concerned. The office copy of that telegram which was contained in the relevant file‑(and which has been filed in the form of Annexure 2 alongwith the written statement of the Government of Baluchistan) ‑reads as follows:‑ Commissioner, Khairpur Deputy Commissioner; Sukkur Captain Muhammad Azhar, Development Officer, Ghotki suspended from service with immediate effect(.) Formal orders with charge‑sheet follow (. )" BEDSWLG. Not to be teleprinted. (K.B. Qureshi) Section Officer No. S O(BDIV).5/91‑62, Dated 13th December 1966. A copy by post in confirmation. (Sd.) (K. B. Qureshi) Section Officer IX." It appears that this telegraphic order was duly served on the petitioner who lodged a protest and himself sent a telegram which was received, as is clear from various endorsements thereon, in the office on 10‑12‑1966. It reads as follows :‑ "Mr. S. M. Wasim C. S. P., Secretary to the Government of West Pakistan Department of Basic Democracies, Lahore without compliance to the provisions of sub‑rule (1) of rule 6 (1) Government could not decide whether a formal inquiry should be held nor could opinion be formed under sub‑rule (11) and (111) of rule 6 of West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 (. ) Therefore pre conceived suspension ordered by your honours illegal and could not operate(.) Request withdraw (.) Pray issue transfer order as required under rules while inquiry (.) Pray intimate your decision for further legal action Captain Muhammad Azhar, Development Officer (Basic Demo cracies), 126/2 Intelligence School, New Queens Road, Karachi." Thereafter on 12th January 1967 the petitioner wrote a detailed letter which is contained at page 669 of the relevant official file and reads as follows : "Urgent Express Registered A‑D No. B D‑F‑3(ii)/67 Dated 12th January 1967. From Captain Muhammad Azhar, Development Officer (Basic Democracies) 126‑2, Intelligence School, Officers Mess, New Queens Road, Karachi : To : ‑The Secretary to Government of West Pakistan, Department of Basic Democracies, Social Welfare and Local Government, Lahore. Subject :‑ Wrongful Suspension. Sir, Your kind attention is solicited to a Telegram bearing No. 1430‑AL/84 dated nil said to have been issued from your Department and endorsed to me by the Deputy Commissioner, Sukkur, whereby a formal order and charge‑sheet was to be served upon me. In this connection I have received no charge‑sheet or any formal order as disclosed from your aforesaid alleged Telegram till to date. This inordinate delay indicates that the suspension order is mats fide.

2. The aforesaid suspension order has exhausted itself as no formal order of enquiry, charge‑sheet and subsistence allowances has been intimated to me ; although the suspension order had been passed with immediate effect from 12th December, 1966. When no formal order of suspension through a official Gazette had been published, nor any charge‑sheet served upon me and, I am still without the subsistence allowances, even one month had lapsed, from the date of suspension. Therefore, the information of suspension given vide your‑aforesaid Telegrame ceased to exist.

3. Since no departmental proceeding had started prior to the suspension order, thus suspension has automatically terminated, as Government could not pass an order of suspension with retrospective effect.

4. It is further submitted that in spite of large number of Registered Letters with A/Ds. and Telegrams addressed to your honour's no reply has been received on the above‑mentioned subject. Such suspension would be equivalent to a total dismissal, whereas, suspension is certainly not the same as dismissal or rescinding it, during the suspension a connection, however, tenuous, continues between the master and servant. In this case suspension is with retrospective effect, as no inquiry has yet taken place, therefore, illegal and by no legal fiction can the fact be altered. It is, therefore, requested that correct position may kindly be intimated by a telegram and posting order also be issued. Yours Obediently, (Sd.) Captain (Muhammad Azhar) Development Officer (13 D's.)" The petitioner was duly confronted by his aforesaid two communications and he conceded that he had written and sent them to their addressees. This will show that the suspension order was in fact passed on 13‑12‑1966 and the letter dated 15‑7‑1967 was nothing but a repetition of the aforesaid earlier order. At this stage I must observe that since the petitioner had himself sent the telegram and the letter hereinbefore reproduced, it shows that he was aware that suspension order had in fact been passed on 13‑12‑1966 and he deliberately concealed that information and rather gave an unwarranted twist to the whole state of affairs so as to mislead and cheat the Court. Along with the writ petition he had filed an affidavit dated 21‑9‑1971 in which he had deposed "and that nothing has been concealed therefrom". This deposition is incorrect, as the factual narration of events shows that the petitioner deliberately with held the suspension order dated 13‑12‑1966 and his own writings and communications in that behalf. From another point of view, it can even be said that he has not challenged the said order dated 13‑12‑1966 in the writ petition which must fail for this reason as well. It is thus evident that the petitioner has not come to this Court with clean hands and his conduct is such which must adversely affect the fate of his writ petition apart from the fact that the plea of the suspension order being retrospective even otherwise is incorrect and baseless.

7. The next point argued was that under the various departmental instructions, copies of which were filed in court the suspension normally should not exceed a period of six months unless extended by a conscious application of mind but in the instant case, according to the petitioners, the suspension con tinuing uptil now and as such has become illegal and without lawful authority for that reason. He submitted that after suspension there took place no progress in the departmental proceedings against him and if the authorities concerned did not themselves move in the matter there was no justification to keep the petitioner under suspension. Here again I must observe that the plea taken is not correct on the factual plane. The true position is that the petitioner himself deliberately avoided or somehow managed to avoid or delay the delivery of charge‑sheet etc. which the authorities concerned remitted to Trim with the result that the Government had to publish a public notice in the daily 'Dawn' Karachi on 22nd June 1968 CALLING upon him to report to the Secretary to, the Government of West Pakistan B. Ds., S. W. and L. G. Department Civil Secretariat, Lahore within one week of the publication of the said notice to receive the charge‑sheet and statement of allegations etc. A copy of the aforesaid public notice has been placed by the learned Advocate- General, Baluchistan on the file as Annex. '5' and reads as follows :‑ "Public Notice.‑Notice whereas it appears that Captain Muhammad Azhar Development Officer, Basic Democracies (under suspension) is intentionally avoiding to receive communications addressed to him through Registered post, and whereas the Government is satisfied that the said Captain Muhammad Azhar cannot be contacted at his given address. It is hereby notified that he should report to the Secretary to Government of West Pakistan Basic Democracies, Social Welfare and Local Government, Civil Secretariat, Lahore, within one week of the publication of this notice to receive the charge‑sheet, statement of allegations etc. failing which ex parte proceedings will be taken against him. (K. B. Qureshi) Section Officer IX Basic Democracies, Social Welfare and Local Government Department, West Pakistan, Civil Secretariat, Lahore." The Baluchistan Government has depicted the further developments and position in Paras. 8 and 9 of its affidavit which read as follows :‑ "Para. 8.‑Despite publication of the above said Notice Captain Muhammad Azhar did not find it proper to report to the B. Ds. Department, Government of West Pakistan, L. G., Department to receive the charge‑sheet etc. In these circumstances the plea of Captain Muhammad Azhar of not having been served with the charge‑sheet and statement of allegations is baseless. Para. 9.‑The Special Judge‑cum‑Enquiry Officer, Anti‑Corruption, Karachi was appointed as Enquiry Officer in this case vide Government of West Pakistan B. Ds., S. W. and L. G. Department Order No. S O (BD IV)‑5/91‑62, dated 15‑7‑1968 (Annexure '6' ). The case was transferred to the Special Judge‑cum‑Enquiry Officer, Anti‑Corruption, Hyderabad, as he was appointed to conduct the enquiry vide Govern ment of West Pakistan, B. D. S. W. and L. G. Department Order No. S (BD IV)‑5/91‑62, dated 22‑8‑1968 (Annexure'7'). Again the enquiry was entrusted to the Special Judge‑cum‑Enquiry Officer. Anti‑Corrup tion, Karachi by the Government of West Pakistan vide their Order No. S O (BD IV)‑5/91‑62, dated 14‑5‑1970 (Annexure '8'). Finally the enquiry was entrusted to the Special Judge‑cum‑Enquiry Officer, Anti Corruption, Hyderabad on 5‑1‑1971 vide Government of Sind Excise, Taxation and Local Government Department Order No. S O (L C S) 5/91‑62, dated 5‑1‑1971 (Annexure 'D'). The report of the last Enquiry Officer attached as (Annexure '10'), reveals that despite all sorts of efforts it was not possible for him to secure the presence of Captain Muhammad Azhar before him for proceeding further in the matter." The various Annexures mentioned in these paragraphs show that the petitioner did receive the charge‑sheet but did not file any reply thereto and insisted that enquiry should be held without his reply. When, however, the Enquiry Officer called him he did not care to attend. The petitioner on the final date of hearing filed in Court a copy of an appeal which he allegedly had filed on 15‑2‑1969 against an order contained in letter dated 21‑8‑1969 "and various other actions taken prior or subsequent to the aforesaid letter". In this‑ aforesaid memorandum of appeal, it may be mentioned, he has conceded that a charge‑sheet had been served on him. The grievance, therefore, that he had not received any charge‑sheet so far was not correct. The petitioner did not file any rejoinder‑affidavit in reply to the aforesaid pleas of the Baluchistan Government which had been raised in the form of a formal affidavit of its representative. The petitioner did not deny before me the issuance of a public notice in the daily 'Dawn'. This shows that it is the petitioner who is prima facie responsible for prolongation of the departmental proceedings and his period of suspension.

8. He has taken exception to the basic suspension order on the ground that it was passed without hearing him or without issuing him a show‑cause notice or without holding a prior enquiry. Apart from the fact that it was the petitioner who had himself throughout been avoiding the service of various communications on him the pleas even otherwise are baseless in view of the law declared by the Supreme Court in Mian Muhammad Hayat v. Province of West Pakistan PLD1964SC

321. In the said judgment it was held that the plea that suspension by virtue of rule 11 read with rule 3(b) (c) and rule 9 of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 was only possible after a decision of unsuitability for retention in public service has been taken was not supported by Government instructions on the subject on suspension and that a Government servant has no vested right, merely by virtue of being a Government servant, to hold office and to perform functions thereof. Cornelius, C. J. on page 325 of the report held :‑ "I am unable to regard the diminution of remuneration as sufficient to constitute an order of suspension as a penalty, for the simple reason that it is provided by the rules of the services, which every public employee accepts that in the event of suspension, his remuneration shall be at such a level. As to the question whether suspension is within the power of the Government, I entertain no doubt that it is within the responsibilities of the executive in respect of the public services, namely, to maintain their standards by ensuring that there are no black sheep among them and at the same time to maintain the efficiency of the public services and the confidence of the public in those services by eliminating persons whose conduct has tended to lower standards below those required, that there should be a power to ensure the temporary severance of a member of the public service whose conduct has been such as to demand an enquiry, from the discharge of his functions, until the enquiry has been completed. The power is relatable both to the general duty of maintaining high standards in the administration, as well as to the requirements of services manage ment. Therefore, I can see no difficulty in supposing that the executive authority acts within the pleasure of the Governor, when it suspends a public employee from the discharge of the duties of his office, pending an enquiry into his actions." At an earlier portion of the same page the learned Chief Justice observed :‑ "The mere reduction in emoluments is however not to be deemed as a punishment. It is a part of the Service Rules which are accepted by all employees when they accept employment in the public service, and the reduction can be justified on the bass that. during the period of suspension the employee is not serving the Government and it is in the interests of the public exchequer that he should not receive his full salary." On page 327 it was held :‑ "It is clear that a question which, as has been seen already, is vitally concerned with the major responsibilities of the public administration and service management, cannot be allowed to be determined exclusively on the basis of loss or gain to a particular member of the service or to a particular public servant, the more so when such person is under an accusation of actions which may be of the greatest danger to the Government, and in any case are actions involving examination of the question whether he is fit for retention in the public service at all." In Abdal Khaliq Bangash v. The Secretary, Government of West Pakistan, Co‑operation Department, Lahore and 2 others 1970 S C M R 103 it was held that :‑ "Assuming that his initial suspension was not in order, at the most, he can make a claim for the balance of his unpaid salary for that period, which cannot be enforced through writ jurisdiction. It was held by this Court in the case of Mian Muhammad Hayat v. The Province of West Pakistan (P L D 1964 S C 321) that the order of suspension is not a penalty and it does not violate any legal right vesting in the suspended officer. The petitioner continues to remain in service in spite of his suspension and if he is ultimately exonerated in the inquiry, he can be re‑instated and paid all the arrears of his salary that may be found due to him." To the same strain is Saif‑ud‑Din Malik v. The Government of West Pakistan through Irrigation and Power Department, Lahore P L D 1969 Lah. 506 where Waheed ud‑Din, C. J. (as then his Lordship was) held in paragraph 10 of the report that :‑ "Before parting with the case, I may point out that the effect of suspension is only a temporary severance from office and does not involve any form of severance from membership of a service or from being a civil servant, in any sense. It is not at all a punishment. It can be awarded under the relevant rules, as has been pointed but by their Lorships of the Supreme Court in Muhammad Hayat v. Province of West Pakistan (P L D 1964 S C 321). The Dacca High Court has even gone to the extent of holding that the appointing authority has inherent power to pass an interim order of suspension. This view finds expression in a Division Bench decision of the Dacca High Court in Mosharrof Hussain v. The .Chairman, East Pakistan School Text‑Book Board, Dacca (P L D 1968 Dacca 133)." In the face of the above law on the subject, any objection to the suspension order which is based on the types of pleas hereinbefore mentioned is of no substance and is hereby, repelled. As regards the suspension having continued for such a long time I have already demonstrated that it is the dilatory conduct of the petitioner himself which if not solely at least to a large extent is responsible for that result. Being a contributory to that situation he cannot take exception to the same in this Court in the form of writ jurisdiction which is not available to persons whose conduct with regard C to the relevant grievance made is not above board. The petitioner took exception to the narration of the particular matter in an interim report of the Enquiry Officer in Annexure'10' where it was written that the petitioner at one time was declared a'goonda'. He submitted that order was quashed by this Court in Writ Petition No. 1924 of 1968 entitled Captain Muhammad Azhar v. S. K. Mahmood and others decided on 14‑3‑1969. I have perused the aforesaid order and I find that the plea of the petitioner regarding invalidity of that order is correct. The said order was quashed by this Court on the ground that the provisions of law, namely (section 13(2) of the Karachi Control of Disorderly Persons Act, 1952) under which it was passed was void to the extent of its repugnancy to 1962 Constitution. All that, however, is besides the point, and does not detract anything from the finding regarding dilatory tactics of the petitioner recorded by me above.

9. Taking up the question of the move of the Baluchistan Government by writing letter Annexure C to the Punjab Government or initiating other steps for getting the petitioner allocated to some other Province after the dissolution of One Unit all I have to say is that the grievance of the petitioner in that respect is totally misconceived. If any Government for instance is not willing to have a particular officer‑(after dissolution of One Unit)‑and in that respect makes communication with the authorities concerned or as a matter of fact with any other Province its action can hardly be said to be without lawful authority. The matter is essentially of an inter‑Provincial nature and on my part I feel no justification to stop the Punjab or Baluchistan Governments from acting in this particular sphere in such manner as they think best and just in their own interests. Moreover all that has been done so far in that respect is that the Baluchistan Government has simply entered into correspondence with the relevant quarters and no final order or decision in that regard has so far been taken by any authority. The situation and the circumstances of the matter, therefore, are such which do not call for any order from this Court at this stage. The learned Advocate‑General, Baluchistan, had, during the course of hearing filed a miscellaneous application bearing No. 1003 of 1974 submitting that the petitioner had wrongly been repatriated to Baluchistan after dissolution of One Unit and in reality according to his domicile he belonged to Sind Government and should have been sent there. After so pleading it was submitted that I should implead the Province of Sind as a party in this case if at all the question of the repatriation of the petitioner was to be decided by me. It will be evident from my judgment that I have not attended to this matter and have already observed that the case in this respect is still at a "move stage" at the instance of the Baluchistan Government who initiated it by writing Annexure `C' and as such it is for the authorities concerned to attend to it in the first instance. On my part I have, as already indicated, not felt the necessity of resolving this controversy myself and as such there is no justification or need to implead the Province of Sind as a party in this case. The aforesaid application of the learned Advocate‑General, Baluchistan stands disposed of in these terms. The view which I have taken is all the more justified because though the matter was pleaded in somewhat involved form in the writ petition and its prayer but the petitioner when confronted with the aforesaid application of the learned Advocate‑General Baluchistan stated before me that he was not claiming any relief regarding his repatriation and that his case at the moment should be considered to be confined merely to the question of suspension.

10. The petitioner in some half‑hearted form tried to raise the plea of mala fide in the passing of the basic suspension order dated 13‑12‑1966 and in the issuance of the subsequent letter to the same effect dated 15‑7‑1967. The Supreme Court in the case of the Federation of Pakistan v. Saeed Ahmad Khan P L D 1974 S C 151 has given certain valuable guidelines for the purpose of pleading and proving mala fides. In the present case neither the plea raised nor the material placed on record fulfils the ingredients of mala fides as highlighted' by the Supreme Court in the aforesaid reported case and as such I have no option but to reject the said plea which I hereby do.

11. Before parting with this case P must observe that the history of the case shows that the petitioner is involved in departmental proceedings since 1961. Thirteen years have gone by and apparently the end is not yet insight. It is high time that the appropriate authorities should finalise the case of the petitioner early because obviously it is of no use to let such a matter linger on indefinitely. Such delays bring bad name to the authorities and the Government concerned apart from creating a huge burden on the exchequer which invariably if not always has to pay in the end huge sums of money to persons from whom no service had been taken due to their having remained under suspension for long periods. Let copies of my order be sent to the Law Minister and Law Secretary, Government of Pakistan, Law Secretary, Government of Punjab, Lahore, Law Secretary, Government of Sind at Karachi and Law Secretary, Government of Baluchistan at Quetta, who can join their heads to resolve this matter and finalise this case in all respects to avoid any embarrassment at any later stage with particular reference to the point as to which Government or Authority is competent to proceed with it and from which stage a point on which the Govern ment had to lose the case earlier in Captain Muhammad Azhar v. Commissioner of Karachi and another P L D 1966 S C 253, and which as is evident from the attitudes of the various Governments hereinbefore mentioned seems to be still controversial between them. Probably it is for this reason and also for the object of exploiting this controversy later on that the petitioner did not press the point of his repatriation at this stage in this case.

12. The upshot of the above discussion is that this writ petition has no merit and is dismissed with no order as to costs. S. A. H. Petition dismissed.