P L D 1959 (W (PLP)

WAHIDUDDIN AHMED, J.‑By this writ petition the petitioner has challenged the order of respondent No. 2 dated 17th November 1952, under which he has been suspended from service. The petitioner was employed on 1‑4‑1948 as Lower Division. Clerk in the Central Stamp Office Karachi. On 31‑8‑1950 he was promoted as an Upper Division Clerk in the same office. Pending an inquiry on 17‑11‑1952 he was suspended from service. The C. I. D., Crime Branch (2) Karachi, submitted an interim charge sheet against 5 employees of the Stamp Office Karachi including the petitioner under sections 409/466 and 468, P. P. C., in the Court of the Special Judge, Anti‑corruption. This case was ultimately registered as Case No. 6/ 1954. The case did not proceed till 17th January 1956. On that date an application for the with drawal of the abovementioned case was moved. Accordingly on 7th February, 1956, Mr. Ghaznavi the learned Special Judge Karachi, acquitted the petitioner and other accused. Consequently the petitioner made several representations to respondents calling upon them to reinstate him. He was informed by the Assistant Secretary of Respondent No. 1 on 8th October, 1956, that the matter is under consideration of the Karachi Administration, but in spite of that uptill now it is pending and the petitioner has not been reinstated. The present petition was filed on 15th July 1957. It was admitted on the 30th of July 1957 by me and Qadeeruddin, J. It came up for hearing on 9th January 1958, before Inamullah and Lari, JJ. It was ordered that the petition should be put up after 4 weeks. The learned counsel for the petitioner has informed us that in this way the respondents were given another opportunity to complete the departmental inquiry against the petitioner. But the respondents have not taken any action even now. Mr. Fazeel the learned counsel for the respondents, has produced before us a letter sent to him by the respondent No. 2 on 8th February 1958, to the effect that .the Government has decided to hold a departmental inquiry against the petitioner. There is thus no end of the matter and the petitioner is still in suspense. The learned counsel for the petitioner has strenuously argued that the order of suspension of the petitioner from service for an indefinite period violates the principles of natural justice. He urged that there is no provision in the rules under which the petitioner can be suspended for an indefinite period and that as the respondents have failed to proceed with the departmental inquiry, the order of suspension in effect amounts to a removal order, and, therefore, it is in contravention of the provisions of Article 181 of the Constitution. There is no doubt that under Rule 49 of the Civil Service (Classification, Control and Appeal) Rules, suspension is provided as one of the penalties, but it d9es not amount to removal or dismissal within the meaning of the said rule. This penalty, however, can be imposed upon the members of the service for good and sufficient reasons. In the present case the petitioner, along with some other employees of the Karachi Stamp Office, was suspected of misappropriation, forgery and cheating. The matter was handed over to the Police for investigation. A criminal case was registered against him and others in the Court of the Special Judge Karachi, which resulted in the acquittal of the petitioner. In our opinion, therefore, there was some justifica tion to continue the order of suspension against the petitioner till the criminal case was disposed of. But the learned counsel for the respondent has not been able to satisfy us of the justifica tion for the continuance of the said order of suspension after 7th February 1956. The learned counsel for the respondent is perfectly correct that although the petitioner has been acquitted, there is no bar in law to take appropriate departmental proceed ing against him. Such departmental action, however, must be taken at the earliest possible opportunity, and should be disposed of within the shortest possible time. Unfortunately in the present case, neither the petitioner has been furnished with any grounds, nor charge sheeted. The matter is still in abeyance and one does not know how long the respondents will take to complete such an inquiry. Under these circumstances it becomes necessary for us to consider whether a suspension order for an indefinite period, which has remained in operation for more than 6 years, can be considered to be a fair and just order contemplated under the terms and conditions of service of the Government servant. The learned counsel for the petitioner has drawn our attention to the instructions issued by the Cabinet Secretariat incorporated in a memorandum issued on 21st July 1949 to all the departments. They were informed that no Government servant should be placed under suspension except when it was found to be necessary. They also laid down certain principles for the guidance of the authorities to pass orders of suspension. It is not necessary for the purpose of this decision to reproduce these directions. It will, however, be noticed that the Cabinet Secretariat did not approve of cases in which suspension order has extended for over 6 months subjecting the Government servant to unnecessary mental and other hardships. They therefore suggested that where docu mentary and oral evidence has been collected and where risk of an official tampering with evidence, documentary or oral, ‑ no longer exists, the order of suspension should be cancelled. Where, however, there is still' such a risk, the Government servant concerned should be transferred to another department. This Memorandum further lays down that in cases where the police have intervened and the official is under arrest, the order of suspension must remain in force until the official is released on bail or until the sentence has been pronounced. It further enjoins on the officer concerned the responsibility for seeing that disciplinary cases are disposed of expeditiously, and called upon the heads of the departments concerned to check it. It is, therefore abundantly clear that the Central Government under which the Karachi Administration is functioning, has definitely instructed the t departments that suspension orders should not remain in operation ' longer than they are necessary. The object of suspending an officer from duty during the pendency of an inquiry is that he should not be allowed to tamper with documentary and oral evidence likely to be produced in his case. This object, as has been observed above, can be achieved in a very short time and if the case is likely to take more time then the easiest way to avoid it is to transfer him to some other department, so that he may not be able to tamper with the evidence that may be produced against him. In our opinion there is nothing in the terms and conditions of service of the Government servant which authorises the Government to issue a suspension order for an indefinite period. Such suspension orders should not be allowed to remain for a longer period than is necessary in the circumstances of particular case. The learned counsel for the respondents has not been able to satisfy us of the justification to continue the suspension order passed in the year 1952. He has not been able to point out any rule or terms and conditions of service under which the action of the respondent can be justified. It appears to us that in these circumstances, the order in dispute, at least from 7th February 1956, is clearly against the fundamental principles of natural justice. The learned counsel for the petitioner has invited our atten tion to a decision in Syed Muhammad v. The Government of West Pakistan (P L R 1951 Lah. 487). In that case, a Division Bench of this Court consisting of Rahman, C. J., and Akhalque, J., considered the effect of a suspension order which had kept the Government servant under suspension for 10 months without having been furnished any opportunity of explaining the allegation against him. They held such an order as an arbitrary exercise of the powers of suspension in disregard of all principles of fairness and justice, and observed :‑ " At the hearing we enquired from the learned Assistant Advocate‑General whether the Government were prepared even now to lift the suspension and he informed us, after consulting the authorities concerned, that the Government are not willing to do so and they want a clear ruling from this Court regarding their power to suspend public servants from service. "We have no hesitation in saying that the power is not absolute and unfettered. The Constitution gives no recognition to despots arid despotism. Every power,, if not controlled by a statutory provision, is in the last resort subject to fundamental principles of justice and fairplay. The present petitioners are being deprived of, 3/4th of their pay for the last ten months in an unquestionably unfair manner. 1n view of the circumstances of the present case we are constrained to hold that the suspension orders were arbitrary and manifestly unfair and must be set aside. We therefore direct the respondent. to withdraw them with effect from the dates they were made". The learned counsel for the respondents has tried to distinguish it on the ground that in the present case the respondents are not anxious to get a ruling of this Court regarding their power to suspend public servants from service, and that they would try and dispose of the pending inquiry against the petitioner as soon as possible. We are not satisfied with the explanation given by the learned counsel, for the respondents. The respondents have failed to complete the departmental inquiry against the petitioner during the last six years. They have failed to utilise the opportunity provided to them by' this Court on 9‑1‑1958, and, therefore, the matter must be decided on merits. Undoubtedly under, the Service Rules there is ample power with the Government o suspend a Government servant both as a measure of penalty and during the pendency of the departmental enquiry. But all actions taken under these rules must be based can the principles of natural justice, otherwise there was no need to frame them. The power of suspension, therefore, must be exercised in a reasonable and fair manner. The moment the effect of the exercise of such power is found to be unfair and unjust, the Government servant ,will be entitled Lo challenge it, and Courts of law if satisfied that such orders are based on arbitrary exercise of power will not hesitate to set them aside as they will be in clear violation and breach of statutory rules. On careful consideration of the facts of this case, we are clearly of the opinion that the continuance of the suspension order passed in 1952, has resulted in great hardship. Its continuance cannot be justified on any ground. The petitioner ought to have been reinstated long ago and the departmental enquiry could have easily continued and completed even after his reinstatement. We would, therefore, direct the respondents to withdraw the suspension order with effect from the date it was made. It will, however be open to the Government to proceed with the departmental inquiry against the petitioner and to take suitable action in accordance with law. The petition is allowed with costs. Petition allowed.