P L D 1962 (W (PLP)

FAIZULLAH, J.‑This order will govern Writ Petition No. 305 of 1960 and Writ Petition No. 358 of 1960, as identical questions are raised in both these petitions. Syed Anwar Ali Shah (hereinafter referred to as petitioner No. 1) is the petitioner in Writ Petition No. 305, while Abdur Razzaq (hereinafter referred to as petitioner No. 2) is the petitioner in Writ Petition No.

358. Both the petitioners were employees of the West Pakistan Road Transport Board, Lahore, and both of them have been dismissed from service in pursuance of proceedings conducted against them under the Public Conduct (Scrutiny) Ordinance, 1959.

2. Petitioner No. 1 was recruited in 1947 in the Lahore Omnibus Service under the orders of the General Manager, Lahore Omnibus Service. After fourteen years' service, he was transferred to the Provincial Transport Service, Lyallpur, by the order of the Regional Manager, West Pakistan Road Transport Board, Lahore, where he resumed his duties as Head Cashier.

3. Petitioner No. 1 was directed by Mr. Fiaz All Khan, District Manager, Provincial Transport Service, Lyallpur, respondent No. 1, as Convenor, Screening Committee `E', Provincial Transport Service, Lyallpur, to show cause not later than the 15th of September 1959 as to why disciplinary action should not be taken against him for corruption and inefficiency. The petitioner submitted his explanation for the charges leveled against him and also personally appeared before the Screening Committee comprising three members with respondent No. 1 as its Convenor. The petitioner received a letter No. Screening/PF/ 179, dated the 15th of September 1959, from the Convenor, Screening Committee B', Provincial Transport Service, Lyallpur, and the letter reads thus: ‑ "The Screening Committee having carefully examined your explanation dated 14‑9‑59 In response to the show‑cause notice served on you vide No. PF/32 dated 8‑9‑59 has found you guilty of the charges against you as mentioned in the show cause notice and has recommended your removal from service. If you wish to appeal against the findings and recommendations of the Screening Committee, you may appeal to the District Manager, P. T. S., Lyallpur, on or before 29th September 1959."

4. Petitioner No. 1, in pursuance of the directions of the Convenor, Screening Committee, indicated above, filed an appeal against the findings and recommendations of the Screening Committee to the District Manager, Provincial Transport Service, Lyallpur. The appeal, however, proved Infructuous, as the District Manager (respondent No. 1), purporting to act as appointing authority, dismissed the appeal on the 29th of September 1959 and ordered petitioner No. 1 to be removed from service.

5. Petitioner No. 2 was recruited in 1947 as conductor in the Lahore Omnibus Service, Lahore, and his appointment was made by the General Manager, Lahore Omnibus Service, Lahore. Petitioner No. 2 received a notice from the Screening Committee, of which Mian Iftikhar Ali, District Manager, Lahore Omnibus Service, (respondent No. 1), was the Convenor with two other members, namely, M. Ibne Husain, Traffic Manager, Lahore Omnibus Service, Lahore, and Mr. G. H. Rangoo, Works Manager, Lahore Omnibus Service, to show cause not later than the 17th of September 1959 why action should not be taken against him for unsatisfactory service. The Screening Committee, after considering the explanation of petitioner No. 2, recommended the removal of the petitioner from service. The Convenor of the Screening Committee (Mian Iftikhar Ali, respondent No. 1) directed the petitioner to appeal against the findings and recommendations of the Screening Committee to the District Manager, Lahore Omnibus Service. Petitioner No. 2 filed an appeal to the District Manager, Lahore Omnibus Service, Lahore, but the same was dismissed on the 30th of September 1959 by respondent No. 1 purporting to act as appointing authority, and petitioner No. 2 was ordered to be removed from service.

6. Both the petitioners have prayed for the issue of writs of mandamus, or any other appropriate writs, for setting aside the orders of removal from service passed by respondent No. 1, namely, Fiaz Ali Khan, District Manager, Provincial Transport Service, Lyallpur, in case of petitioner No. 1, and Mian Iftikhar All, District Manager, Lahore Omnibus Service, Lahore, in case of petitioner No. 2.

7. The petitioners assail their dismissal on two‑fold grounds: ‑ (1) That respondent No. 1 was not an appointing authority and as such the order of dismissal purported to have been made by him in the capacity of appointing authority was ultra vires. (2) That the Public Conduct (Scrutiny) Ordinance, 1959, and the relevant rules clearly contemplated two separate authorities each of which had to function Independently of the other. The first authority to be constituted under the Public Conduct (Scrutiny) Ordinance, 1959, and the relevant rules is the "Screening Committee". The function of the Screening Committee is restricted to recording of findings or making recommendation as to the punishment or other actions proposed to be taken against the officers concerned. The second authority has been designated as the "appointing authority" which authority is vested with the function of passing orders on the recommendations of the Screening Committee according to law. It was complained that the function of the Screening Committee, and that of the appointing authority could not be performed by one and the same authority. It is important to observe here that respondent No. 1 has acted in three different capacities, (1) as Convenor of the Screening Committee, (2) as District Manager of the Transport, and (3) as an appellate authority.

8. The pleas raised by the respondents are that respondent No. I was the appointing authority and as such he was competent to order the dismissal of the petitioner and that section 10 of the Ordinance III of 1959 barred the jurisdiction of this Court to call into question any orders or proceedings or findings of the Screening Committee or of an appointing authority. In order to appreciate the nature of the attack and the defence, it would be necessary to reproduce certain provisions of the Public Conduct (Scrutiny) Ordinance, 1959, the rules framed thereunder and certain provisions of the West Pakistan Road Transport Board Rules, 1957.

9. The West Pakistan Road Transport Board Rules, 1957, came into force on the 27th of December 1957 vide Extraordinary Gazette, dated the 27th of December 1957, Rule 7 reads thus: ‑ "7. (i) The Board shall, with the prior approval of the Government, appoint officers to all posts carrying the initial pay of Rs. 250 per mensem and above. (ii) The Board may appoint such other officers and servants as it may consider necessary for the efficient performance of its functions. (iii) The conditions of appointment and service and the scales of pay of officers and servants of the Board shall‑ (a) as respects the officers mentioned in sub‑rule (1) be such as may be prescribed by the Board with the prior approval of the Government; (b) as respects other officers and servants be such as may be prescribed by the Board. (iv) The officers and servants of the Board shall hold office at the discretion of the Board. (v) Subject to the provisions of sub‑rule (i) the power of appointing, promoting, suspending, fining, reducing, removing or dismissing for misconduct or granting leave to the officers and servants of the Board shall be exercised by the Board. (vi) An appeal shall lie to‑ (a) the General Manager (Traffic), or the Chief Technical Officer or the Chief Accountant, as the case may be, when the order Is made by any officer subordinate to him ; (b) the Chairman, when the order Is made by the General Manager (Traffic), the Chief Technical Officer or the Chief Accountant ; (c) the Board, when the order Is made by the Chairman ; Provided that no appeal shall lie against an order passed by the Chairman In Second Appeal; Provided further that in case of officers mentioned in sub -rule (i) an appeal against the order of the Board shall lie to the Government." Rule 12 empowers the Board to frame regulations. The said rule Is In the following terms:‑ "(12) Subject to the provisions of rule 7, the Board may frame Regulations‑‑ (a) for the determining the qualifications required for the recruitment of officers and servants of the Board and prescribing terms and conditions of their employment; (b) for determining the conditions under which bonus, gratuities and compensation may be paid to such officers and servants ; and (c) for authorising the payment of contribution at certain prescribed rates and subject to certain conditions to any provident fund which may be established by the Board for the benefit of its officers and servants or which, with the Board's approval, may be established by its officers and servants themselves." Rule 13 pertains to application of the powers and reads thus: ‑ "(13) The Board may, subject to such conditions and limitations as it may specially; delegate to any of the following such of its powers and duties as it may deem necessary for the efficient carrying on of its day to day administration :‑ (i) Chairman and Members of the Board; (ii) Sub‑Committees of the Board ; and (iii) Officers and servants of the Board."

10. The material sections of Ordinance III of 1959 are sections 3, 4, 8 and

10. Section 3 pertains to the power to appoint Committees and is in the following terms: ‑ "

3. If the Central Government sees fit to do so, it may constitute or direct to be constituted one or more Committees, sole or corporate, to scrutinize the conduct of any person to whom this Ordinance applies and record a finding thereon and to make a recommendation as to punishment or other action." Section 4 prescribes an appropriate authority, who is to pass orders upon a finding recorded by the Screening Committee and reads as follows: ‑ "

4. Every finding recorded by a Committee under section 3 shall together, in the case of a finding against the person concerned, with the recommendation provided for in that section be submitted to the authority by which the person concerned was appointed, hereinafter called the appointing authority, and that authority shall pass orders thereon according to law." Section 8 authorised the Central Government to frame rules to carry out the purposes of this Ordinance. Section 10 is in the following terms: ‑ "

10. No order, proceeding or finding of a Committee or of an appointing authority shall be questioned in any Court."

11. We now come to the Public Conduct (Scrutiny) Rules, 1959. Rule 2 authorises the Committee to serve notice on Government servants to whom the Ordinance applies to call upon them to explain for any fact or circumstance appeared against them. The other material rules are rules 3, 4, 5, 6 and

7. They are reproduced below "

3. Such explanation shall by word of mouth or in writing as the Committee may direct and within such time as the Committee may appoint. "

4. Having considered the explanation, if any, made under rule 3 of the Committee shall record a finding on the matter of which the person concerned has been informed under rule 2, and submit the finding to the appointing authority. "(5) The finding submitted under rule 4 shall be accompanied by the recommendation of the Committee as to punishment or other action. "(6) Where the finding is against the person concerned a copy of the finding and the recommendation shall be furnished to him forthwith and he shall be entitled within fifteen days of the receipt thereof to appeal against it to the appointing authority. "(7) Having considered the finding, the recommendation and the appeal, if any, the appointing authority shall forthwith either pass an order or refer the proceedings to such advise s as he may think fit and pass an order after considering their opinions. No appeal shall lie against the order so passed."

12. On the 14th of May 1959, an amendment was effected by the Central Government in rule 6 and the following words were added at the end, namely‑ "or where the appointing authority is the Chairman or a Member of the Committee which recorded the finding, then the appeal shall lie to the next higher authority instead." It is important to observe here that from the 14th of May 1959, in cases where the appointing authority was the Convenor of Screening Committees or its members, the appeal against the recommendations of such Screening Committee was to lie to the next higher authority instead of the appointing authority. The reason for this amendment is obvious in that the appoint ing authority could not sit in appeal against its own recommendations pr findings,

13. On behalf of the petitioner, the learned counsel forcefully argued that the order of dismissal was passed by respondent No. 1 (in both the petitions), who was not at all he appointing authority, and as such the order offended the provisions of the Public Conduct (Scrutiny) Ordinance, 1959, and the relevant rules, as also rule 7 of the West Pakistan Road Transport Board Rules, 1957, where under the power of dismissal of officers and servants of the Board was to be exercised exclusively by the Board. It was also complained that under rule 7, sub‑clause (vi) at least one appeal was provided to an officer against the dismissal and that in the instant cases both the petitioners had virtually been denied the right of appeal in that the appeal was heard by the Convenor of the Screening Committee and that the functions of the Screening Committee and the appellate authority could not be exercised by the same authority.

14. On behalf of the respondent, it was argued that under rule 12, the Board was authorised to frame regulations and that under regulations framed by the Board, the Board had delegated, purporting to act under rule 13, the power of dismissal to the District Manager. It was also contended that under section 10 of the Public Conduct (Scrutiny) Ordinance, 1959, the jurisdiction of this Court was barred to call into question any order passed by‑ the Screening Committee or appointing authority.

15. The first point which calls for consideration is whether the regulations framed by the Board under which it delegated the power of dismissal to subordinate authorities is ultra vires. This very point came up for decision in Writ Petition No. 934 of 1957, decided on the 30th of September 1957. B. Z. Kaikaus J. (as his Lordship then was), delivering the judgment, held that the delegated authority cannot further delegate the power of dismissal to a subordinate authority and that the regulation framed by the Board authorising delegation of this power was ultra vices. In para. 4 of the order, his Lordship observed: "The point to consider is whether this regulation is infra vices. It is contended that it is within the powers granted by rule

18. There are two points which fall for determination in this contention. The first is whether a delegated authority can be delegated any further, and the second, whether al regulation could be framed which was not consistent with the rules framed by the Government. So far as the first objection is concerned, it is an accepted principle that there can be no further delegation of the legislative power which is granted to executive authorities. It is legitimate for the legislature, after/ providing the framework, to leave the details to be filled in by the Executive, but of this power which is confined within well known limits, there can be no further delegation. The Provincial Government could not, therefore, have empowered the Road Transport Board to frame any rules or regulations which may have the force of law. One way of looking at the matter is this. Section 43‑A (7), (of the Traffic Act), empowers the Provincial Government only to make rules with respect to the functions and the powers of Road Transport Board and these words function and powers are obviously not intended by the legislature to include a power to legislate." His Lordship further observed as follows :‑ "It would still not be open to the Board to frame a regulation which is inconsistent with rule 13 (5) referred to above. Rule 13 (5) has been framed by the Provincial Govern ment under section 43‑A (7) with the concurrence of the Central Government and has the force of law. As long as the rule stands, there can be nothing inconsistent with it in the regulations framed by the Board. Rule 13 (5) says the power of dismissal vests In the General Manager. By the Regulation this power cannot be granted to the District Manager." While discussing rule 19 of 1952 his Lordship summed up the position as follows : "That rule empowers the Board to delegate any of its powers. But the delegation can only be of such powers as remain with the Board after rules have been framed by the Provincial Government. The rules give the power of dismissal of employees like the petitioner to the General Manager, and if a power is vested according to the rules, not in the Board itself but in the General Manager, the Board cannot grant that power to the District Manager. Neither under rule 18 nor under rule 19 can a regulation be framed which is in conflict with a rule framed by the Provincial Government under section 43‑A (7)."

16. The facts of the present petitions admittedly are on all fours with the facts giving rise to the writ petition indicated above and respectfully agreeing with the decision given in that writ petition, we hold that the regulations framed by the Board delegating the power of dismissal to District Manager are ultra vires:

17. Having held that respondent No. 1 was not the appoint ing authority, it follows that the order passed by him,' purporting to act as appointing authority, on the recommendations of the Screening Committee would be without jurisdiction.

18. This brings us to the preliminary objection to the effect that this Court had no power to question the order of the appointing authority by reason of the provisions of section 10 of Public Conduct (Scrutiny) Ordinance, 1959. In support of this contention, reliance was sought to be placed on the decision of the Supreme Court of Pakistan in Zafar‑ul‑Ahsan v. The Republic of Pakistan (P L D 1960 S C (Pak.) 113) and it has been urged that under the provision of section 10, the ouster of the jurisdiction of the Court is complete and absolute. We have carefully read the decision of the Supreme Court of Pakistan mentioned above, but that authority, instead of helping the respondents, clinches the matter against them in that, their Lordships have in very unequivocal terms recognised that the Courts retained jurisdiction to question acts committed in excess of the jurisdiction of the Screening Committee or the appointing authority, i.e., acts which were clearly ultra vires or where the statute was used for ulterior purposes. At page 120 of the above‑cited authority, Monir C. J., delivering judgment, summed up the discussion in regard to the ouster of jurisdiction thus :‑ "If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority 1s provided by the statute, the omission or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a Court of law. Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the Statute, the order will not, in accordance with a long line of decisions in England and in this sub‑continent, be treated as an order under the statute."

19. The action of the appointing authority judged in the light of the above‑quoted observations is clearly without jurisdic tion for two reasons, one that respondent No. 1 (in both the petitions), purporting to act as "appointing authority", was not in fact an appointing authority and as such he could not hear the appeal against the findings and recommendations of the Screening Committee of which he himself acted as Convenor ; and the other objection, the one which in our view goes to the root of the case, is that assuming that respondent No. 1 was the appoint ing authority, he, under the amended rule 6, was specifically disqualified to hear the appeal in view of the fact that he had acted as Convenor of the Screening Committee and thus the appeal against the findings and the recommendations of the Screening Committee should have been heard by the next higher authority, namely, the Board itself.

20. It follows from the above discussion that in both the petitions under discussion, the final orders of dismissal have been passed by an authority which was not legally competent to pass such orders.

21. In the result, the orders of dismissal passed against the petitioners are without jurisdiction. We accordingly accept both the writ petitions and issue writs of mandamus, as prayed for, against the respondents with costs. The costs will be borne by the West Pakistan Road Transport Board, respondent No.

4. K. B. A. Petition accepted.