1. ABDUL MAJID MALLICK, J.-The petitioner was serving as a Supervisor, Peoples Works Programme under the respondent when he was served with a show-cause notice dated 29th April, 1978, issued by the Secretary, Services and General Administration Department, under rule 6 (b) of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977. The charges against the petitioner were that he prepared a fake register showing loss of wheat to the extent of 2,650 maunds. The shortage in the register, was actually misappropriated, that about 200 maunds of wheat was not shown in the Stock Register and the same was misappropriated. Fifty bags of milk- powder .Were also misappropriated by the petitioner. There was also an accusation of lacking control of stores. An inquiry was conducted by Inquiry Commission No. II, on the basis of which the petitioner was dismissed from service on 24th June, 1978. The dismissal order was passed in view of the provisions of rule 6 (3) of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline)
2. Rules, 1977. The petitioner was debarred from all future employments under the Government or autonomous agencies or Bodies working under the Government. The total loss suffered by the Govern--ment on account of misappropriation of aforesaid goods was to be recovered from the petitioner as arrears of land revenue. The petitioner submitted his reply to the show-cause notice on 9th May, 1978 and 22 July, 1978 respectively. The petitioner was also given personal hearing by the Chief Executive.
3. The impugned order has been attacked primarily on the ground that it was based on an invalid and void provision of law. Other grounds taken in the petition were not raised in arguments.nd Mr. Saeed, the learned counsel for the petitioner pointed out that the order of dismissal of the petitioner was based on the provisions of sub-rules (3) and (4) of rule 6 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977. Under rule: t2), in case of a disciplinary matter, an Authorised Officer was to be appointed by the Government to look into the charges and accusation against a civil servant. The authorised Officer was empowered to decide as to whether in the light of facts of a case, the inquiry was to be conducted through an Inquiry Officer or Inquiry Committee consisting of two or more persons among whom one of them being a senior in rank to the accused, under the procedure laid in rules 7 and 8. In case the Authorised Officer was of the view that it was not essential to appoint an Inquiry Officer or Committee, as stated above, he was authorised to proceed under sub-rule (3) of rule 6. The mode of inquiry and procedure provided under sub-rule (3) of rule 6 was summary in nature and 'as such distinguishable from the procedure laid down in rule 7. In order to appreciate the distinction between the provisions of rule 6 and rule 7, the same are reproduced as under:------ '16. Inquiry procedure to be observed by the Authorised Officer.-The following procedure shall be observed by the Authorised Officer when a civil servant is proceeded against these rules :--
(1) in case where a civil servant is accused of subversion, corrup--tion or misconduct, the Authorised Officer may require him to proceed on leave, if due, or, with the approval of the authority suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months;
(2) The authorised Officer shall decide whether in the light of facts of the case in the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee.
(3) If he so decides, he shall appoint an Inquiry Officer or Inquiry Committee consisting of two or more persons who or one of whom shall be of the rank senior to the accused or all of the co- accused and the procedure indicated in rules 7 and 8 shall apply.
(3) If the Authorised Officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee he shall-
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of action; and
(b) give him a reasonable opportunity of showing cause against that action; Provided that no such opportunity shall be given where the authority is satisfied that is tile interest 9f the security of Pakistan or Azad Jammu & Kashmir or any part thereof it is not expedient to give such opportunity.
(4) On receipt of the explanation of the accused, if any, the Authorised Officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority along with the explanation of the accused, and his own recommendations regarding the penalty to be imposed. The authority shall pass such order as it may deem proper.
7. Procedure to be observed by the Inquiry Officer and Inquiry Com--mittee.-Where an Inquiry Officer or Inquiry Committee is appointed, the authorised officer shall-
(1) frame a charge and communicate it to the accused together with statement of allegations explaining the charge and any other relevant circumstances which are proposed to be taken into consideration.
(2) require the accused, within a reasonable time, which shall not be less than seven days or more than fourteen days, from the day the charge has been communicated to him, to put in a written defence and to state, at the same time whether he desires to be beard in person.
(3) The Inquiry Officer or the Committee, as the case may be, shall enquire into the charge and may examine such oral or docu--mentary evidence in support of the charge or in defence of the accused, as may be considered necessary, and the accused shall be entitled to cross-examine the witnesses against him.
(4) The Inquiry Officer or the Committee, as the case may be, shall hear the case from day to day and no adjournment shall be given, except for reasons to be recorded in writing. However, every adjournment, with reasons thereof, shall be reported forthwith to the authorised officer. Normally no adjournment shall be for more than a week.
(5) Where the Inquiry Officer or the Committee as the case may be, is satisfied that the accused is hampering or attempting to hamper the progress of the inquiry, he or it shall, record finding to that effect and proceed to complete the inquiry in such manner as he or it thinks best suited to do substantial justice.
(6) If the accused absents himself from the enquiry on medical grounds, he shall be deemed to have hampered or attempted to hamper the progress of the enquiry, unless medical leave, applied for by him is sanctioned on the recommendation of a Medical Board. Where, in view of the serious condition of the accused, it may not be possible for him to appear before the Medical Board, the Board shall examine him at his residence of which complete address must always be given in the leave application and at which he must be available ; Provided that the Authorised Officer may, in his discretion, sanction medical leave up to seven days without the recommendation of the Medical Board.
(7) The Inquiry Officer or the Committee, as the case maybe, shall, within ten days of the conclusion of the proceedings or such longer period as may be allowed by the Authorised Officer submit his or its findings and the grounds thereof to the Authorised Officer.
(8) On the receipt of the report of Inquiry Officer or Inquiry Committee, the Authorised Officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority along with the charge-sheet, a statement of allega--tions served on the accused, explanation of the accused, the findings of the Inquiry Officer or the Inquiry Committee and his own recommendations regarding penalty to be imposed."
4. Under Rule 7, an Inquiry Officer or Inquiry Committee, as the case may be, was authorised to frame a charge against an accused civil servant. The charge along with the statement of allegations was to be communicated to the accused. A reasonable time was provided, which was not less than 7 days, for submitting reply and explanation to the charges by the accused person. During the inquiry all evidence was to be taken in presence of the accused and he was allowed to cross- examine the witnesses and put up his case in defence. The accused person was also allowed to lead evidence in defence. The procedure and mode of inquiry provided under rule 7 was reasonable and equitable one. There was no reasonable apprehension of any prejudice to an accused civil servant. As compared to this, an inquiry provided under sub-rule (3) of rule 6 was summary in nature wherein an accused person was not provided grounds of charges along with the statement nor he was given opportunity for leading evidence in defence. No evidence was to be recorded in presence of an accused person nor was he allowed to cross-examine the witnesses appear--ing against him. The authorised Officer had to inform the accused civil servant of the proposed action being taken against him. However, the accused civil servant was allowed to submit his explanation against the proposed action. On submission of reply to show-cause notice, the Authorised Officer was empowered to take action against the civil servant in case a minor penalty was to be imposed. If the Authorised Officer was of the view that keeping in view the nature of the allegations and facts of the cases, a major penalty ought to be imposed, the matter was to be forwarded to the authority along with the recommendation for action accordingly. The analysis and scrutiny of the provisions of sub-rule (3) of rule 6 and rule 7 shows that the two systems provided in disciplinary matters relating to civil servants were quite different and independent of each other. There was no provision of classification or categories relating to a case or number of cases which were to be covered by each procedure laid therein. The fact of the matter was that any case or class of cases could be decided either in view of the provisions of sub-rule (3) or rule 6 or rule 7. The discretion to take action under either of the Rules vested in the Authorised Officer.
5. Inother words, the Authorised Officer was empowered to pick and choose between the cases of the same class or the similar charges and adopt one of the modes for disposal. This being the position, it was evident that the provisions of sub-rule (3) of rule 6 were discriminatory in nature. Under Article 4 (15) of the interim Constitution, all State subjects were guaranteed equality before law and equal protection of law. In. Order to test the provisions of sub-rule (3) of rule 6 on the yardstick of the provisions of the Constitution, Article 4 is reproduced below:- "4. Fundamental rights.-(i) Any law or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this section, shall, to the extent of such inconsistency, be void.
(2) No law shall be made which takes away or abridges the rights so conferred and any law made in contravention of this sub--section shall, to the extent of such contravention, be void."
6. Clause 15 of Article 4 is reproduced as under:- ---15. Equality of State Subjects.-All State Subjects are equal before law and are entitled to equal protection of law."
7. The civil servants, as a class, were entitled to equal protection of law. Here the law relating to civil servants was provided, in matters of disciplinary actions, under rules 6 and 7. The civil servants, being one class could not be given discriminatory treatment in any matter of disciplinary actions.
8. In presence of rule 7, the provisions of rule 6 (3) which were more drastic and severe in nature, could not be applied in case of one civil servant facing accusation of a nature similar to the other in whose case inquiry was held under rule 7. Moreover, the Authorised officer was not guided by any principle or set of principles, on the basis of which one case might be decided under one provision of law and the other under the second law. This being the position, the provisions of sub- rule (3) of rule 6 were violative and repugnant to the provisions of the rule of equality before law.
9. This view is supported by Waris Meah v. The State (PLD 1957 SC (Pak.) 157). This was a case wherein the appellant was tried under Foreign Exchange Regulation Act. The accused appellant had pleaded guilty on the basis of which he was convicted but the learned Judges of the Supreme Court granted leave to appeal to consider the vires of sections 23-A and 23-B of the Amendment Act, 1956 and ultimately acquitted accused. Under section 23, the accused person was to be tried under ordinary law. Under section 23-A, by an Adjudication Officer, under section 23-B by a Tribunal. The three sections prescribed three different forums for the adjudication of a matter covered by it. The provisions of the Act were challenged being ultra vires to Article 5 of the Constitution of 1956. Mr. Justice Muhammad Munir, C. J. (as then was) observed as under:- "It was contended on behalf of the State that in the present cases, it could not be said that discretion had not been exercised in a fair and reasonable manner by the State Bank, in electing to send the cases to a Tribunal. On the allegations, the cases were of serious character, and merited severe punishment. The mischief of the Act is, however, not susceptible of so simple a cure. It confers discretion of a very wide character upon stated authorities, to act in relation to subjects falling within the same class in three different modes varying greatly in severity. By furnishing no guidance whatsoever in regard to the exercise of this discretion, the Act, on the one hand, leaves the subject, falling within its provisions, at the mercy of the arbitrary will of such authority, and, on the other, prevents him from invoking his fundamental right to equality of treatment under the Constitution.
10. The Constitution declares in Article 5 (1) that "All citizens are equal before law and are entitled to equal protection of law" and Article 4 (I) provides that "Any existing law ..................... In so far as it is inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void." That duty of declaring that a law is void, for violating a Fundamental Right defined in Part I1 rests on the Courts. That duty cannot be performed, so as to ensure that a law operates equally in relation to all persons within its mischief, if the law itself provides for differential operation in relation to such persons, not in accordance with any principle expressed or implicit in the law, not on the basis of any classification made by or under the law, but according to the unfettered discretion of one or more statutory authorities ........ In our view such a law has the effect of doing indirectly, i.e. By leaving the discrimination within the unguided and unfettered discretion of statutory authorities, what it could not do directly, i.e. To treat unequally persons falling within the same class, upon a basis which bears no reasonable relation to the purposes of the law. The Act is, therefore, in our opinion; in relation to its discriminatory provisions, inconsistent with the declaration of equality in Article 5 (1) of the Constitution."
11. In Progress of Pakistan Co. Ltd. v. Registrar, Joint Stock Companies, Karachi (PLD 1958 Lah. 887), Mr. Justice B. Z. Kaikaus, J. Dealing with a matter under the provisions of Undesirable Companies Act, 1958, observed as under:- "According to Article 5, all persons are equal before the law and are entitled to the equal protection of law. Equal protection of law has been interpreted as meaning that there shall be no arbitrary discrimination, that classification shall be reasonable and that to similar circumstances the same' law will apply. This appears to be the accepted meaning of this phrase which means that two sets of circumstances shall not have different legal effects unless the difference of circumstance between the two sets is sufficient, in reason, to justify the difference in effect, or that if a law applies to one set of circumstances and does not apply to another, the difference between the two sets should not apply to another, the difference between the two sets should be material enough to support the discrimination. All law implies classification for when it applies to a set of circumstances, it creates thereby a class, and equal protection means that this classification should be reasonable."
12. In PLD 1975 SC 66, while discussing the vires of Frontier Crimes Regulation, Mr. Justice Anwarul Haq, J. At page 155 of the judgment observed as under :- "It will be seen that the Courts in this country have consistently regarded trial of both civil and criminal cases under the Frontier Crimes Regulation as being violative of the fundamental principles governing such trials under the ordinary law of Pakis--tan. The Courts have taken exception not only to the arbitrary power conferred on the Deputy Commissioner to pick and choose cases for withdrawal from the ordinary Courts for trial by a Council of-Elders, but have also expressed concern at the power enjoyed by the Council-of-Elders to act upon evidence or informa--tion obtained behind the back of the accused person. Finally, we must also take note of the fact that a trial under the Frontier Crimes Regulation cuts at the very root of the principle of separation of the executive, piously embodied in every successive Constitution of Pakistan, by entrusting the trial to a Council-of--Elders chosen by the executive, and by depriving the parties concerned of any right of appeal to the established Courts of the country, including the High Court and the Supreme Court. For all these reasons, it is clear that a trial under the Frontier Crimes Regulation cannot be regarded as a trial in accordance with law, the term "law" being understood in the sense of a valid law in terms of the Constitution as well as the accepted forms of legal process obtaining in Pakistan."
13. Note.--Under Frontier Crimes Regulation, the Deputy Commissioner was authorised to send a case for disposal to the Council of --Elders or ordinary Court, according to his own choice. The Deputy Commissioner was the sole arbiter in the matter.
14. Therefore, the propositions in the aforesaid cases were analogous in nature so much so that in the present case the authorised officer was the sole authority to pick and choose and decide the fate of a civil servant under either of the provisions.
15. The point involved in the present case could be considered from, another angle too. In case where two different provisions of rules were available for inquiry and decision, the consensus of judicial view was that, the rule more liberal and flexible providing adequate remedy, equity ands justice may be applied than the rigid and drastic one. In presence of rule 7, the appropriate and just step would be to hold inquiry against a civil servant under rule 7 and to decide the matter accordingly.
16. Under rule 7, an accused civil servant had sufficient opportunity to defend himself, whereas under sub-rule (3) of rule 6, no such opportunity wall provided: Under sub-rule (3) of rule 6, the authorised Officer, was not obliged to go through the process of evidence and could take action on the material already available to him. There was no hard and fast rule controlling the discretion of the Authorised Officer. In other words, the Authorised Officer could take any action against a civil servant, even in absence of sufficient material. This view is supported by AIR 1961 SC 1715, wherein it was held as under :---
(5) If the two sets of rules were in operation at the material time when the enquiry was directed against the respondent and by order of the Governor, the enquiry was directed under the Tribunal Rules which are "more drastic" and prejudicial to the interests of the respondent, a clear case of discrimination arises and the order directing enquiry against the respondent and the subsequent proceedings are liable to be struck down as infringing Article 14 of the Constitution. We therefore dismiss the appeal.''
17. The last point raised in the case was that the rule 'of procedure was not hit by the provisions of the Constitution and it was only a substantive law which was covered within the purview of clause (l5) of Article 4. The provisions of rule 6 (3) and (4) and rules 7 and 8 of the Azad Jammu & Kashmir Civil Servants Act were procedural and substantive in nature. In our view, it was wrong to suggest that the provisions of the procedural law do not come within the purview of the Constitutional provisions. As a matter of fact, both the procedural and substantive' law were covered by the fundamental rights. As already stated, the provisions of the impugned Rules were both procedural and substantive in nature and as such it could not be argued that the present case did not fall within the purview of clause (15) of Article 4 of the Constitution. In AIR 1952 SC 75 it was held as under:- "A rule of procedure laid down by law comes as such within the purview of Art. 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination."
18. In the aforesaid case, reference was made to Article 14 of the Indian Constitution. Article 14 of the Indian Constitution was analogous to clause (15), Article 4 of the Azad Jammu & Kashmir Interim Constitution of 1974.
19. As we have already observed that the provisions of sub-rules (3) and (4) of rule 6 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, being discriminatory in nature, were inconsistent, violative and repugnant to clause (15) of Article 4 of the Interim Constitution and as such void, we are of the opinion that the impugned order being based on void provisions of law, was illegal, ineffective and inoperative.
20. On this view of the matter, the writ petition is accepted and the impugned prier is set aside. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.