1996 PLP (C (PLC(CS))

"6‑A. Revision.‑‑‑The authority may call for the record of any case pending before or disposed of by the authorised officer and pass such order in relation thereto as it may deem fit." A perusal of the above‑quoted rule indicates that the authority has been empowered to send for the record of any case pending before or disposed of by the authorised officer and pass such order in relation thereto as it may deem fit. In other words, Rule 6‑A of the Rules does not provide itself the guideline or .parameter within which the same can be pressed into service. Generally revisional powers conferred by statutes are exercisable on the fulfilment of certain preconditions contained in the relevant provisions of the relevant statutes. For example, under section 115, C.P.C., the High Court and the District Court have been conferred revisional jurisdiction exercisable on the fulfilment of the conditions contained therein. It may be pertinent to reproduce section 115, C.P.C., which runs as under:‑‑ "115.‑‑‑(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears‑‑ (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court: Provided further that such application shall be made within ninety days of the decision of the subordinate Court. (2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject‑matter whereof does not exceed the limits of the appellate jurisdiction of the District Court. (3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them. (4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court. " A perusal of above section of C.P.C. shows that under subsection (1) thereof, the High Court has been empowered to call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto and such subordinate Court has acted as under:‑‑ (i) to have exercised a jurisdiction not vested in it by law; or (ii) to have failed to exercise jurisdiction so vested; or (iii) to have acted in exercise of its jurisdiction illegally or with material irregularity. Similar powers are conferred on the District Court under subsection (2j of the above section of C.P.C.

7. There seems to be no such preconditions provided id Rule 6‑A of the Rules as pointed out hereinabove. However, we are of the view that the Authority cannot act arbitrarily or in a capricious manner while exercising the power contained in the above Rule. It is supposed to act fairly, justly and in a manner which does not violate the principles of natural justice. Furthermore, the power under the above Rule is to be exercised by the Authority within a reasonable period from the date of order of the authorised Officer. The question, what is a reasonable period in a particular case will depend on the facts of the case. In the present case, the Authority has not recorded any reason as to why, it was not inclined to agree with the finding of fact recorded by the two competent hierarchy to the effect that the charges against the respondent were not proved. The Enquiry Officer in his report, which runs into eight foolscap pages, referred in detail the 'oral and documentary evidence and concluded‑that the same were not proved. The authorised Officer concurred with the same. The feast which was expected from the Authority was to mention the grounds in the show‑cause notice on the basis of which it was inclined to take a contrary view so that the respondent could have reasonable opportunity to explain his point of view. This was not done. At this' juncture, we may refer to the case‑law on Rule 6‑A of the Rules: (i) Maqsood Ahmad Shaikh v. The Islamic Republic of Pakistan through Secretary, Establishment Division, Government of. Pakistan,. Rawalpindi (1987 SCMR 1562); in which the Service Tribunal had inter alia upheld the departmental order on the basis of above Rule 6‑A. This Court, while setting aside the judgment of the Tribunal, observed as follows:‑‑ "The Service Tribunal has blessed the impugned order before it by invoking the aid of rule 6‑A of the rules which empowers the authority 'to call for the record of any case pending before or disposed of by the authorised Officer and pass such an order in relation thereto as it may deem fit'. This view appears to us to be erroneous. There is nothing on the record to even remotely suggest that the impugned order was passed in exercise of this power. Be that as it may if a case disposed of by the authorised Officer is intended to be reviewed by .the authority in exercise of powers under Rule 6‑A, no order adverse to the interest of the accused officer can be passed without affording him an opportunity of hearing. The rule of natural justice, as is well established, is to be read into of provisions of law authorizing a statutory functionary to pass orders in relation to rights of citizens. It is not the case of the Government that action was taken under the aforesaid rule after notice to the appellant. The Service Tribunal should therefore have allowed the appeal arid set aside the order of compulsory retirement passed against the appellant, leaving it open to the relevant authorities to proceed against him in accordance with law." (ii) Muhammad Younus v. Secretary, Ministry of Communications and others (1993 SCMR 122); In the above case, the view taken in the case of Maqsood Ahmad Shaikh (supra) was reiterated by concluding as under:‑‑ "

3. After hearing the arguments in our view it is not necessary to dilate upon the first question as the (sic) two questions. Mr. Shahanshah Hussain, the learned A.S.C. for the appellant, contended that after censure had been imposed by the authorised Officer who was competent to pass the said order under Rule 5(1)(iv) of the Civil Servants (Efficiency and Discipline) Rules, 1973, the case could not be reopened even under Rule 6‑A without any notice to the appellant. It seems that after the censure was imposed the Authority sought to revise that order as no confirmation was needed from him. The Authority passed the order for fresh enquiry after about five months which was communicated to the appellant about two months thereafter. However, before reopening the case no notice was issued to the appellant. Mr. Shahanshah Hussain referred to Maqsood Ahmed Shaikh v. Islamic Republic of Pakistan, 1987 SCMR 1562. "

8. The view which we are inclined to take is in consonance with the ratio decidendi of the above reports. We would have kept the question open for the Authority,, namely, to re‑examine the case and to pass appropriate order including an order for fresh enquiry but it would not be in the interest of justice to do so as the enquiry was initiated as far back as 12 years ago. The report of the Enquiry Officer seems to be well‑reasoned. We are, therefore, of the view that no purpose would be served by re‑opening the above issue. The appeal is, therefore, dismissed. However, there will be no order as to costs. (Sd.) Ajmal Mian, J, (Sd.)‑Fazal Illahi Khan, J, I agree but appended separate notes. (Sd.) Mukhtar Ahmed Junejo, J. MUKHTAR AHMED JUNEJO, J.‑‑‑The facts have already been given in the leading judgment authored by my learned brother Ajmal Mian, J. It is worthy to note that after inquiry the respondent was exonerated by the Inquiry Officer under his report dated 30‑5‑1'985 which was accepted by the Authorised Officer who passed the order dated 27‑11‑1985 exonerating the respondent from the charges given in the charge‑sheet. While ordering issue of fresh show‑cause notice dated 9‑7‑1986 to the respondent, the Authority only said this much that he on examining the case had been dissatisfied with decision of the Authorised Officer and that the charges against the respondent had not been cleared beyond any doubt. Moreover, before passing of the order dated 4‑8‑1988 the respondent does not appear to have been given an opportunity of being heard. On this point reference to the case of Maqsood Ahmed Shaikh (1987 SCMR 1562) is quite apt. Hence I agree that the impugned order dated 4‑8‑1988 passed by the Authority was rightly set aside by the Federal Service Tribunal. With due respects I am unable, to persuade myself to agree that the Authority cannot be authorised to re‑examine the case to pass an appropriate order by invoking the provisions contained in Rule 6‑A of Government Servants (Efficiency and Discipline) Rules, 1973. The national exchequer has sustained a loss of over Rs, 72.435 which amount appears to have been misappropriated. On the basis of defects in the order dated 4‑8‑1988 and delay in the matter, nobody can be given clean slate. The interests of justice require that the Authority be given a fresh chance notwithstanding delay, to probe into the matter by ordering fresh inquiry so that responsibility for such a criminal act is fixed on somebody, at least for reimbursing the Government exchequer with the amount misappropriated if not for any other purpose. Hence while concurring with the order dismissing the appeal, I am of the view that it should be left open to the Authority to take fresh action under Rule 6‑A of the said Rules after following the principles of natural justice and in light of the principles of equity and good conscience. A.A./C‑166/S Appeal dismissed.