P L D 1969 Peshawar 147 (PLP)

FAIZULLAH KHAN, J.

This is a writ petition by Muhammad Said Khan, a retired Additional Chief Engineer, P. W. D. under Article 98 of the Constitution of Islamic Republic of Pakistan against the Government of West Pakistan through Secretary to the Government of West Pakistan, Communications and Works Department, Lahore and Secretary to Government of West Pakistan, Irrigation and Power Department, Lahore, in which the petitioner has among other prayers asked for the following prayers :‑ "(i) A declaration to the respondents that the charges framed against him under Rule 1.8(a) of the West Pakistan Civil Services Pension Rules, 1963 are without lawful authority as no departmental proceedings can be instituted against the petitioner under rule 1.8 of the said Rules as the same are time‑barred." 2‑ The material facts so far as they are necessary for the disposal of this writ petition are that the petitioner is a retired Addl. Chief Engineer of the West Pakistan P. W. D., B. & R. having retired on 4‑10‑1964. During the period between 1‑12‑1959 and 4‑1‑1962, the petitioner was incharge of the Peshawar Region as an Additional Chief Engineer. The work on Mingora Bridge in Swat State was taken in hand in August 1959, before the petitioner took charge and was completed on 15‑3‑1962 after he had given the charge to his successor.

3. In June 1964, two pillars of the Mingora Bridge collapsed. The Governor's Inspection Team held fact‑finding enquiry in regard to the causes of collapse of the pillars and the report appears to have been submitted to the then Governor, Malik Amir Muhammad Khan, who on 28‑8‑1964 recorded an order (copy of which is Annexure R. A. and has been placed on the file), which reads as follows :‑ "This report reveals a very sad state of affairs and both the President and I take a very serious view of the matter. The explanation of all the officers said to be at fault should be obtained without delay and suitable action ‑taken against those found guilty. Even if some of the officers concerned have retired and their guilt is established, the question of a suitable reduction in their pensions should be examined. Meanwhile action as proposed should be initiated imme diately."

4. On 14‑12‑1965, the charge‑sheet was drawn up against the petitioner for the acts of "grave misconduct" alleged to have been committed by him which resulted in the collapse of a part of Mingora Bridge. The charge‑sheet was served on the petitioner on 21‑12‑1965 (copy Annexure B). The petitioner submitted his reply to the charge‑sheet on 1‑1‑1966 (copy Annexure C).

5. On 16‑3‑1966 (copy Annexure D), the Governor of West Pakistan directed that a "Departmental Enquiry" shall be held against the petitioner and two Superintending Engineers in connection with, the collapse of the Mingora Bridge in Swat State. In paragraph 3 of the order, under rule 8 (1) of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 (hereinafter to be referred to as Discipline Rules), Mr. A. R. Kazi, respondent No. 2, was appointed "as Enquiry Officer to bold the Departmental Enquiry against the above mentioned officers".

6. The petitioner had challenged the order of the institution of the enquiry on several grounds. Mr. Zahurul‑Haq, learned counsel for the petitioner, assailed the order of the Governor instituting "departmental enquiry" against the petitioner on two‑fold ground, namely "(1) No action can be taken against the petitioner under the West Pakistan Civil Services Pension Rules, 1963 (hereinafter to be referred to as Pension Rules), because the `departmental proceedings' under these rules were instituted more than a year from the date of retirement of the petitioner, and are hence time‑barred. (2) The charges framed against the petitioner under rule 1.8 (a) of the Rules on their very face are not charges of `grave misconduct', any action under rule 1.8 (a) is therefore mala fide and contrary to law."

7. On behalf of the respondents, the order directing the "departmental enquiry" was defended on the grounds (1) That the departmental enquiry against the petitioner was ordered by the Governor as back as 28‑8‑1964, i.e. about one month and 6 days before the retirement of the petitioner. (2) That the time limit prescribed for institution of the "departmental enquiry" within the meaning of rule 1.8 (b) of the Rules was not attracted in that the enquiry against the petitioner was under rule 1.8 (a) which did not prescribe any time limit for institution of departmental enquiries.

8. Since the decision of the writ petition hinges on the interpretation of rules 1.8 (a) and 1.8 (b) of the Pension Rules. It will be convenient to read the said rules "1.8. (a) Good conduct is an implied condition of every kind of pension. Government may withhold or withdraw a pension or any part of it, if the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service, provided, that before any order to this effect is issued, the procedure regarding imposition of the penalty of removal from service shall be followed. (b) Government reserve to themselves the right of recovery from the pension of a Government pensioner on account of losses found in Judicial or departmental proceedings to have been caused to Government by the negligence or fraud of such Government pensioner during his service: provided that such departmental proceedings shall not be instituted after more than a year from the date of retirement of the Government pensioner."

9. We first address ourselves to the question whether the charge‑sheet drawn up against the petitioner amounts to "misconduct" within the meaning of rule 1.8 (a) of the Pension Rules. The learned counsel for the petitioner strenuously argued that the charge‑sheet served on the petitioner would not come within the definition of the term "misconduct" within the meaning of rule 2 (5) of the Discipline Rules much less "grave misconduct", in that event if the allegations contained in the charge‑sheet are taken to be correct, the same do not fall in any one of the three limbs of the said rule, and that the expression "grave misconduct" would connote act or omission in the nature of an "offence", i.e. of a crime and that the expression would not embrace mere negligence or carelessness and that the charge‑sheet does not indicate that the petitioner was accused of having committed any offence or crime, but at worst it was suggested that he has been careless or negligent in not carrying out the work according to the required standard or specification. Reliance was placed on the decision of Poad v. Scarborough Guardians (1914 K H D 959) in which the expression "grave misconduct" within the meaning of section 7 of the Poor Law Officers' Superannuation Act, 1896 (hereinafter to be referred to as the Superannuation Act) was interpreted not to include negligence or carelessness.

10. Sardar Fakhre Alam Khan, Additional Advocate- General, on the other hand, argued that the charge‑sheets Nos. 1 to 6 would constitute "misconduct" within the meaning of rule 2(5) of the Discipline Rules in that the petitioner instead of construc ting the piers of the bridge at the depth of 40.08 ft. and 27.08 ft. altered the depth of the piles below pier No. 1 as 13'‑15', and that the petitioner had also infringed the Government instructions in obtaining the formal approval of the design or technical sanction in disregard to the Code Rules etc. etc. It will be profitable here to reproduce the definition of the word "misconduct" within the meaning of rule 2 (5) of the Discipline Rules :‑ "2 (5) `Misconduct' means‑ (i) violation of Government Servants Conduct Rules; (ii) breach of service discipline or instructions issued by Government ; (iii) committing offences involving moral turpitude;"

11. As already stated, the learned Additional Advocate -General tried to argue that since the petitioner had constructed the piers contrary to the design and the depth and had also not obtained the previous approval for change of design etc. he had committed breach of "instructions issued by Government" within the meaning of rule 2 (5) (ii) of the said Rules.

12. On a careful perusal of the definition of the word "misconduct" and after giving the arguments addressed at the Bar our careful thoughts, we have formed the opinion that the allegations contained in the charge‑sheet even if assumed to be correct do not fall within the definition of "misconduct" much less "grave misconduct". On a careful reading of rule 2 (5)(ii) of the Discipline Rules, the words "instructions issued by Government" are not to be read separately, but must be read with the preceding words "breach of service discipline", i.e. to constitute breach of instructions issued by the Government, the instructions must be relatable to the "service discipline" and do not embrace the other Government instructions not so relatable to "service discipline." The expression grave misconduct" occurs in section 7 of the Superannuation Act and the King's Bench Division interpreted it to "indicate something which must be in the nature of an `offence', that is, of a crime If there is no guilty intent, but only negligence or carelessness, there ‑cannot be an offence or grave misconduct within the meaning of section 7". The term "misconduct" of the Government servants was also interpreted by a Division Bench of the Kerala High Court in M. V. Ittycheria v. State of Kerala (A I R 1958 Ker. 374) to mean "positive acts and not mere neglects or failures."

13. This brings us to the question whether the words "provided that such departmental proceedings shall not be instituted after more than a year from the date of retirement of the Government pensioner" govern only rule 1.8 (b), or also rule 1.8 (a). The learned Additional Advocate‑General strenuously argued that since the words referred to above occur in rule 1.8 (b), therefore these words could not be tagged to rule 1.8 (a). Mr. Zahurul‑Haq, learned counsel for the petitioner, on the other, with equal vehemence contended that the proper way of construing the true meaning of rule 1.8 was to read clauses (a) and (b) together and not separately.

14. On a careful perusal of rules 1.8 (a) and 1.8 (b) and after giving the arguments addressed at the Bar ‑our serious consideration, we have formed the opinion that the correct way of interpreting rules 1.8 (a) and (b) is to read both the clauses B together and not separately. The following considerations have weighed heavily with us in reaching this conclusion:‑ (1) The time lag inserted in rule 1.8 (b) that "departmental proceedings shall not be instituted after more, than a year from the date of retirement of the Government pensioner" is mani festly intended to safeguard the interest of the pensioners so that the sword of Damocles should not hang over them for an indefinite period if the interpretation sought to be placed by the Additional Advocate‑General were to be accepted, it would mean that where Government servant is "convicted of serious crime or be found to nave been guilty of grave misconduct", notwithstanding the fact that the offence or the grave misconduct may not be relatable to the sphere of his duties, his pension can be withheld or withdrawn after conviction, but, on the other hand, where a Government pensioner is found guilty in judicial "or departmental proceedings" have caused losses to the Government "by the negligence or fraud of such Government pensioner during his service," the Government servant can get away with the losses if the departmental proceedings are not instituted within one year of the retirement. Surely the Legislature which is always presumed to be wise could not have intended such a situation. To illustrate our point, a Government servant with a long unblemished record for honesty and efficiency after retirement is convicted of a serious crime say murder, he renders himself liable for withdrawal of his pension or withholding of his pension notwithstanding the fact that the crime may have taken place after several years of his retirement, but on the contrary if a Treasury Officer or some high functionary of State Bank were to defraud the Govern ment say of several lacs of rupees they would get away with the fraud if the fraud is detected after one year of his retirement. (2) The other reason is that in rule 1.8 (a) notwithstanding the conviction of the pensioner of a serious crime or having been found to have been guilty of grave misconduct, the pension cannot be withdrawn or withheld unless the procedure prescribed by the proviso to that clause is observed, namely, "that before any order to this effect is issued, the procedure regarding imposition of the penalty of removal from service shall be followed." The procedure for imposition of the penalty of removal from service is prescribed in rule 6 of the Discipline Rules and the relevant provisions are rule 6 (iv) (a) to (e) which are to the following effect :‑ 6 (iv) (a) In cases calling for a major penalty, the authority having power to impose the panalty shall frame a charge and communicate it to the accused together with a statement of the allegations on which it is based and of any other circumstances which the authority proposes to take into consideration when passing orders on the case. (b) The authority shall require the accused, within a reasonable time, which shall not be less than seven days nor more than fourteen days from the day the charge has been communicated to him, to put in a written defence, stating at the same time whether he desires to be heard in person: (c) If the accused so desires, or if the authority so directs, an oral enquiry shall be made by an Inquiry Officer to be appointed under rule 8 at which oral evidence shall be heard as to such of the allegations as are not admitted and the accused shall be entitled to cross‑examine the witnesses against him, to give evidence in person and to have such witnesses called for the defence as he may wish Provided that the Inquiry Officer may, for reasons to be recorded in writing, refuse to call a particular witness or to summon or admit particular evidence. (d) No person who is called upon to produce his defence as to charges which form the subject‑matter of an enquiry against him shall be allowed to engage counsel Provided that if the charge or charges are likely to result in the dismissal of such person he may, with the sanction of the Enquiring Officer, be represented by counsel: Provided further that if in an enquiry, counsel is engaged on behalf of any department of Government, the person against whom the charges are being inquired into, shall be entitled to engage counsel. (e) The proceedings shall contain a sufficient record of the evidence led at the enquiry and the Inquiry Officer's report of his findings and the grounds thereof." It will be manifest from reading rule (6) (iv) (a) to (e) repro duced above that even in cases falling under rule 1.8 (a), regular departmental proceedings are to be instituted against the Government Officer as required in cases falling under rule 1.8 (b). This being the position we are of the view that the time lag of C one year after retirement provided in rule 1.8 (b) also governs the cases falling under rule 1.8 (a).

15. So far we have been discussing the question whether proviso to rule 1.8 (b) governs also rule 1.8 (a) untrammelled by any authority. We were, however, able to lay our hands on a decision in Saradambal v. Sheethalakshmi (A I R 1962 Mad. 108) which, in our view, is most opposite to the facts of the instant case. In this authority it was ruled that‑ "Unless there are special indications to show that a proviso to a section is limited to one part of it, normally the proviso governs the entire section. Secondly, it is not necessary for the purpose of making a proviso applicable to the entire section to repeat it after each clause of that section. The proviso is really in the nature of an exception which takes a class out of the operation of the main section." The observations of Chagla, C. J. in Broach Co‑operative Bank v. Commissioner, Income‑tax (A I R 1950 Bom. 45) may also profitably be referred to in this connection. It was contended in this case that section 8 of the Indian Income‑tax Act must be construed in the light of proviso 1 and that provisos 2 and 3 must be given effect to after due effect has been given to proviso. I. Chagla, C. J. repelling the contention said : But to my mind the proper canon of construing a section which has several provisos is to read the section and the provisos as a whole, try and reconcile them and give a meaning to the whole of the section along with the provisos which is a comprehensive and logical meaning.

16. One subsidiary point was also raised by the learned Additional Advocate‑General that the departmental proceedings in the instant case would be considered to have been instituted against the petitioner on 28‑8‑1964 when the Governor on receiving the report of the Chairman Inspection Team directed that "suitable action taken against those found guilty. Even if some of the officers concerned have retired and their guilt is established." The argument cannot be sustained for several reasons. Firstly, the words "departmental proceedings" followed by the word "instituted" are very significant. Any enquiry conducted at the back of a Government servant with a view to enabling the Government whether any regular departmental enquiry is indicated against a particular Government servant cannot at all be equated with departmental enquiry. Any "fact‑finding enquiry" or "preliminary enquiry" conducted at the back of a Government servant is not a "departmental enquiry", and therefore the order dated 28‑8‑1964 of the Governor on receiving the report of the Inspection Team cannot in the eye of law be construed that departmental enquiry was "instituted" against the petitioner.

17. The controversy whether the "departmental proceedings" were instituted against the petitioner by the first order of the Governor dated 28‑8‑1964 stands concluded by reading the two orders. In the former order no reference whatever is made to holding of a "departmental enquiry", while in the latter order dated 16‑3‑1966 (Annexure D), the Governor of the West Pakistan directed that a "Departmental Enquiry" shall be held against the three officers including the petitioner "under the West Pakistan Government Servant (Efficiency and Discipline) Rules, 1960, in connection with the collapse of Mingora Bridge in Swat State." In view of this order, it will be idle to argue that the enquiry in connection with the collapse of Mingora Bridge in Swat State was ordered by the Governor on 28‑8‑1954. This order directing "departmental enquiry" was admittedly passed after one year of the retirement of the petitioner. Again, the departmental enquiry in the eye of law can be taken to be instituted not from the date of the order E of the enquiry by the relevant authority, but from the date when the defaulting officer is charge‑sheeted. This point came up for judicial interpretation in Amulya Ratan Mukherjee v. Deputy Chief Mechanical Engineer, Eastern Rly and others (A I R 1961 Cal. 40). Sinha, J. at page 42 summed up the discussion thus‑ "The position with regard to a `fact‑finding enquiry' is as follows : Before making a charge, the authorities are entitled to have a preliminary investigation or a `fact‑finding enquiry'. This is not a formal enquiry at all, and in such an enquiry, if it can be called an enquiry at all, no rules are observed. There can be an ex parte examination or investigation and ex parte reports. All this is to enable the authorities to apprise themselves of the real facts and to decide whether an employee should be charge‑sheeted. But the Departmental enquiry starts from the charge‑sheet. The charge‑sheet must be specific and must set out all the necessary particulars. It is no excuse to say that regard being had to the previous proceedings, the delinquent should be taken to have known all about the charges, Whether he knew it or not he must again be told of the charges to which he is called upon to show cause and these charges must be specific and all parti culars must be stated, without, which, a man cannot defend himself."

18. In Rasulbakhsh v. Emperor (A I R 1944 Sind 103) the Division Bench while interpreting the expression " Proceedings instituted" within the meaning of section 29 of the Arms Act, 1878, approved the observation of the Patna High Court in Emperor v. Ghulam Nabi and others (A I R 1928 Pat. 146) to the effect that "the mere submission of a charge‑sheet by the police does not amount to institution of proceedings within the meaning of section 29, Arms Act, 1878, and that `proceedings' in section 29 means legal proceedings in Court and not searches, or arrests or investigations made by the police in the exercise of powers conferred upon them by the Code of Criminal Procedure, 1898 or other laws."

19. It follows from the authorities that "departmental proceedings" cannot be said to be instituted against a Government servant before he is charge‑sheeted.

20. To sum up, the order of the Governor directing departmental enquiry to be held against the petitioner is without lawful authority on two‑fold ground (1) that the charge‑sheets framed against the petitioner do not constitute "grave misconduct", and (2) that departmental proceedings could not be directed to be held against the petitioner after more than one year of his retirement. We accordingly accept this writ petition and declare that the order in regard to the departmental enquiry against the petitioner is without lawful authority. We, however, make no order as to costs. A. E./K. B. A. Petition accepted.