SYED JAMSHED ALI, J.- The order dated 3.3.2003 of the Board of Revenue directing transfer of a departmental inquiry under the Punjab Removal from Service (Special Powers) (Ordinance No. IV), 2000 has been assailed in this Constitutional petition.
2. The, petitioners made complaints before Deputy District Officer (Revenue), the competent authority, against respondent No. 3 with the allegations that while posted as Patwari, Chak No. 214 R.B. City District, Faisalabad, he had committed fraud and forgery in the land Revenue Record pertaining to square No. 48, Kila No. 24, belonging to the petitioner and others. Proceedings under the Punjab Ordinance No. IV of 2000 were initiated against respondent No. 3 and Assistant District Officer (R) was appointed as an Inquiry Officer. In his report dated 11.11.2002 he found that the said respondent was guilty of the charges warranting a major penalty. On 27.2.2003 the Deputy District Officer (R), Faisalabad the competent authority, issued notice for personal hearing to respondent No. 3 for 4.3.2003. Instead of appearing before the competent authority, the petitioner approached the Punjab Revenue Minister with the recommendations of a Member of the Punjab Assembly and the Private Secretary to the Speaker of the Punjab Assembly for transfer of the inquiry to some other District and on 3.3.2003 the Revenue Minister directed Secretary (Revenue) as follows:- "Please conduct impartial enquiry out of Faisalabad District preferably Jhang."
On the basis of the aforesaid order, the Board of Revenue, passed order dated 3.3.2003 which has been assailed in this writ petition, primarily on the ground that the Revenue Minister had no authority whatsoever to direct transfer of the inquiry from Faisalabad to Jhang.
3. The learned counsel for the petitioner also brought to my notice that the petitioner was under suspension and on the application of one Dr. Zafar Paimi of the daily 'Jang' for re-instatement of respondent No. 3 in service, the Revenue Minister directed as follows on 3.4.2003:- "Please reinstate him without prejudice to out come of the inquiry proceedings and post him as per request."
4. The writ petition was admitted to regular hearing to consider the questions whether the Revenue Minister was competent to direct transfer of the pending inquiry even without ascertaining facts from the competent authority and even without recording any reason, whether the Member Board of Revenue was bound to comply with such a direction of Revenue Minister and whether the Board of Revenue was competent to direct transfer of the inquiry and that too without recording any reason?
5. The learned counsel for the petitioner has contended that not only the Minister was not competent to direct transfer of the inquiry but also that the basis of Minister's order was the recommendation of an MPA, it was thus based on political consideration. The Minister did not even try to ascertain the relevant facts particularly that the inquiry had already been completed and the matter was pending for personal hearing of the petitioner. About the order dated 3.3.2003 of the Board of Revenue he submits that the said order was passed on dictation of the Minister without independent application of mind. He submitted that respondent No. 3 not only got the inquiry transferred from Faisalabad District after its completion but got orders for his reinstatement and posting of his choice. This, according to the learned counsel for the petitioner, only shows helplessness of the competent authority in the matter. He further submits that by directly approaching the Revenue Minister with the recommendation of an MPA, respondent No. 3 was guilty of mis-conduct.
6. The learned Addl. Advocate General has . However, opposed this petition. He maintains that the Revenue Minister is the over all incharge of the Revenue Department and, therefore, such directions could be competently issued by him.
7. Malik Noor Muhammad Awan, Advocate appears for respondent No. 3. He submits that the impugned order has been passed by the Board of Revenue which was competently passed because according to Rule 20 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, the powers of revision vest in the Government for the purpose of satisfying as to the correctness, legality or propriety of any finding, penalty or order recorded or passed and as to the regularity of any proceedings of such authority. According to him, the Member Board of Revenue is ex officio, Secretary to Government of the Punjab in the Revenue Department and, therefore, the order of the Board of Revenue directing the transfer of the inquiry was fully backed by Rule 20 of the aforesaid Rules. He however, conceded that the Revenue Minister had no authority to direct transfer of the pending inquiry.
8. The submissions made by the learned counsel for the parties have been considered. The impugned order dated 3.3.2003 was issued under the signature's of the Deputy Secretary (R). It does not even show that it had the approval of the Member Board of Revenue, In the report and parawise comments submitted by the Deputy Secretary (R), it has been stated that the Board of Revenue, after fulfilling the code formalities transferred the inquiry. Again the office who had passed the order conveyed to the DDO(R), Jhang through the memo, dated 3.3.2003 of the Board of Revenue was not identified. The legal position that Minister was not competent to transfer the inquiry has been conceded, rightly so, by the learned counsel for respondent No. 3, in view of the observations of the Hon'ble Supreme Court in the case of Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others (PLD 1995 S.C.
530). In the said case it was also held that under Rule 21(2) of the Rules of Business (Punjab Government), it was the duty of the Secretary Local' Government and Rural Development to have pointed out to the Minister, concerned, the extent of his authority, It was further observed that compliance of illegal or incompetent direction/order could not be justified on the plea that the same had been issued by the superior authority nor it could be urged that noncompliance thereof could have exposed the concerned Government Servant to the risk of disciplinary action, In the Punjab Ordinance No. IV of 2000, the Minister does not figure anywhere and, therefore, direction by him to transfer the inquiry was patently without lawful authority.
9. Neither the impugned order nor the parawise comments submitted by the Deputy Secretary, Board of Revenue show that the learned Member (Revenue) had passed the order dated 3.3.2003.
In any case it was mechanical in nature and passed only in compliance with the direction of the Minister. However, the question which survives for consideration is whether even the learned Member (R), Board of Revenue, acting as- Secretary to Government of the Punjab, in the Revenue Department, could direct transfer of a departmental inquiry. Perusal of the record shows that the disciplinary proceedings are being taken against respondent No. 3 under the Punjab- Ordinance IV of 2000. Thus, reliance of the learned counsel for respondent No. 3 on Rule 20 of the (Efficiency and Discipline) Rules, 1999 is misplaced, In the said Ordinance, there is no provision similar to Rule 20 of the Punjab Civil Servants (Efficiency and Discipline). Rules, 1999 which vests the revisional powers in the Government.
10. For what has been stated above, this petition is allowed and the impugned direction of the Revenue Minister and the impugned order dated 3.3.2003 of the Board of Revenue are declared as without lawful authority and of no legal effect. The application made to the Minister by respondent No. 3 shall be treated as representation by the learned Member Board of Revenue, who will consider the same in accordance with law. He will first examine the question of his jurisdiction to transfer an inquiry being done under the Punjab Removal from Service Special Powers (Ordinance No. IV), 2000 and will pass a fresh order un-influenced by the direction of the Minister.