' Petitioner in this case was granted an authorisation for a depot in October, 1977. This authorisation was cancelled by respondent No, 1 on the 25th of March, 1978. Petitioner filed an appeal before the Deputy Director (Food) but the same was dismissed on 27th of April, 1978. The petitioner then filed a revision petition under section 6, subsection (3) of the Foodstuffs Distribution Order, 1967. This revision was heard by Deputy Secretary (General), Government of Punjab, Food Department and the same was dismissed on 19th of August, 1978.
2. The petitioner has assailed the order of revisional authority in this writ petition.
3. It is submitted that power of revision under section 6, subsection (3), has been given to the Government. This power can be exercised by the Government through Secretary of the relevant department. It is further submitted that Secretary cannot further delegate or assign this power to an officer subordinate to him by means of a 'Standing Order'.
4. Mr. Tanvir Ahmad Khan, learned Assistant Advocate-General, who has appeared on behalf of the Government has relied upon the Rules of Business of the Government of Punjab and argued that the Secretary was competent to issue Standing Orders specifying the cases or class of cases which may be disposed of by an officer subordinate to him. He argued that the delegation of authority to the Deputy Secretary (General) in the instant case was valid.
5. Relevant section 6 of West Pakistan Foodstuffs Distribution Order, 1967 is reproduced below:- "6. (1) The Director, the District Magistrate, the Deputy Director or the District Food Controller may for reasons to be recorded in writing, pass an order suspending or cancelling an authorization and direct that the security deposit or any part thereof may be forfeited to Government.
(2) Any person aggrieved by an order passed under sub-clause (1) may prefer an appeal-
(a) to the Commissioner, if the order not being an order in appeal is passed, by the District Magistrate or the Deputy Director.
(b) to the Deputy Director if the order is passed by the District Food Controller or Rationing Controller.
(3) Government may, at any time, either on its own motion or on an application made to it in this behalf call for the record of any case relating to any of the purposes of this Order which is pending before or has been disposed of by a District Food Controller, Deputy Director, District Magistrate or Commissioner for the purpose of satisfying itself as to the proprietary or correctness of any order passed in the case and may after perusal of the record, pass such orders, in relation thereto as may think fit.
'Provided that Government shall not under this sub-clause pass an order revising or modifying an order affecting any person without giving such person an opportunity of being heard.
(4) Government, Commissioner, Director, Deputy Director, District Magistrate or District Food Controller may, after giving notice to the parties concerned, review its or his own order to correct errors or supply omissions which are apparent upon the face of the record.
(5) The period of limitation for an appeal shall be thirty days from the date of announcement or communication of the order.
(6) Subject to the provisions of sub-clause (2) of clause (5), sub-clause (2) of clause (6) and sub- clauses (3) and (4) of clause (6) any order passed by Government, Director, Commissioner, Deputy Director, and District Magistrate shall be final."
' The Director, District Magistrate, Deputy Director or the District Food Controller are authorised to pass an initial order suspending or cancelling the authorisation or directing that the security deposited by a depot-holder may be forfeited to the Government by subsection (2) and appeal is provided against the aforesaid order passed under section 1 to the Commissioner if the order is passed by the District Magistrate or the Deputy Director and to the Deputy Director if order is passed by the District Food Controller or the Rationing Controller.
6. By means of subsection (3) it is provided that the Government may, at any time, either on its own motion or on an application made to it in this behalf call for the record of any case relating to any of the purposes of this Order which is pending or has been disposed of by any of the Officers mentioned above in order to satisfying itself as to the propriety or correctness of the order passed therein. It is also provided that such a revisional order would not be passed without giving such person an opportunity of being heard. Thus the power of revision either suo mote or on an application made to it by a petitioner is available to the Government.
7. Government has not been defined in the West Pakistan Foodstuffs Distribution Order, 1967.
Government is, however, defined in Articles 129 and 139 of the Constitution of Pakistan. Articles 129 and 139 of the Constitution of Pakistan read as- "129. The Provincial Government.-(1) Subject to the Constitution, the executive authority of the Province shall be exercised in the name of the Governor by the Provincial Government, consisting of the Chief Minister and Provincial Ministers, which shall act through the Chief Minister.
(2) In the performance of his functions under the Constitution, the Chief Minister may act either directly or through the Provincial Ministers.
(3) The Chief Minister and the Provincial Ministers shall be collectively responsible to the Provincial Assembly."
"139. Conduct of business of Provincial Government.-(1) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Provincial Government, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(2) The Provincial Government may regulate the allocation and transaction of its business and may for the convenient transaction of that business delegate any of its functions to officers or authorities subordinate to it.
8. By virtue of Laws (Continuance in Force) Order, 1977 (C. M. L. A. Order No, I of 1977) the Constitution of Pakistan is in abeyance, therefore the provisions regarding the Chief Minister and Provincial Ministers are no longer available. Article 6 of the said C. M. L. A. Order, however, lays down that the powers of a Governor shall be those which he would have had, had the Federal Government directed him to assume on its behalf all the functions of the Government of the Province under the provisions of Article 232 of the Constitution.
9. Article 129 of the Constitution lays down that the executive authority of the Province shall be exercised in the name of the Governor by the Provincial Government, consisting of the Chief Minister and Provincial Ministers, who would act through the Chief Minister. In Article 139 of the Constitution it is provided that orders and other instruments made and executed in the name of the Governor would be authenticated in such manner as may be provided in the rules to be made by the Provincial Government and the validity of an order which has been so authenticated would not be called in question on the ground that it was not an order or instrument made or executed by the Governor. Sub-Article (2) of this Article provides that the -Provincial Government may regulate the allocation and transaction of its business and may for the convenient transaction of that business delegate any of its functions to officers or authorities subordinate to it. Rules of Business have been framed by the Provincial Government under this Article. Business of the Government has been distributed amongst several departments mentioned in Schedule II of the Rules. Food Department is one of the Departments mentioned therein. Rule 4 of these Rules provides that each Department shall consist of a Minister, a Secretary and of such other officials as the Government may determine provided that the same person may be Secretary to more than one Department.
Sub-rule (2) of rule 4 provides that the Secretary by means of a standing order distribute the work of the Department among the Officers Branches and/or Sections of the Department. Rule 9deals with the duties and functions of a Secretary which reads as follows:- "9. (1) A Secretary shall-
(a) assist the Minister in formulation of policy and bring to the notice of the Minister cases which are required to be submitted to the Chief Minister under the rules;
(b) duly execute the sanctioned policy;
(c) be the official head of the Department and be responsible for its efficient administration and discipline, and for the proper conduct of business assigned to the Department under rule 3;
(d) submit all proposals for legislation to the Cabinet with the approval of the Minister;
(e) be responsible to the Minister for the proper conduct of the business of the Department and keep him informed about the working of the Department and of any important cases disposed of without reference to the Minister;
(f) keep the Chief Secretary informed of the important cases disposed of in the Department;
(g) where the Minister's orders appear to involve a departure from rules, regulations or Government policy, resubmit the case to the Minister inviting his attention to the relevant Rules, regulations or Government policy and if the Minister still disagrees with the Secretary, the Minister shall refer the case to the Chief Minister for orders;
(h) subject to any general or special orders of Government in this behalf, issue standing orders specifying the cases or class of cases which may be disposed of by an officer subordinate to the Secretary; and (0 be responsible for the careful observance of these rules in his Department.
(2) While submitting a case for the orders of the Minister, it shall be the duty of the Secretary to suggest a definite line of action.
10. Thus it would appear that the executive authority of the Province would be exercised in the name of the Governor by the Provincial Government through the Secretary. Therefore the use of the word 'Government' in section 6. Subsection (3) of the Foodstuffs Control Order here implies that the power of the Government would be exercised through the Secretary. Thus it would appear that a Secretary being Head of the Department would be responsible for its efficient administration and discipline and for the proper conduct of business assigned to the Department under rule 3 and accordingly use of word 'Government' in the context of section 6, subsection (3) of the West Pakistan Foodstuffs Distribution Order, 1967 would mean Government acting through the Secretary of the Department. It has been provided in rule ?(1)(h) that subject to any general or special order of the Government in this behalf a Secretary would be competent to issue Standing Orders specifying the cases or class of cases which may be disposed of by an officer subordinate to the Secretary. In the exercise of powers conferred upon the Secretary under clause (h) of sub-rule (1) of rule 9 of the Rules of Business, 1974 the Secretary has authorised Deputy Secretary (General) to hear and adjudicate on the revision petitions filed with the Government under section 6 of subsection (3) of West Pakistan Foodstuffs Distribution Order, 1967. The relevant order passed by the Secretary in this case is reproduced.
"In exercise of the powers conferred under clause (h) of sub-rule (1) of rule 9 of the Rules of Business 1974, I, Muhammad Akram, Secretary to Government of the Punjab, Food Department, hereby authorise Deputy Secretary (General) to Government of the Punjab, Food Department, to hear and adjudicate on the Revision Petitions filed with the Government under the Provisions of the West Pakistan Foodstuffs Distribution Order, 1967."
11. The precise question which calls for determination in this case is whether Secretary could validly delegate or assign his power of hearing a revision under the aforesaid section 6(3) to a Deputy Secretary (General) of his Department. It is the case of the petitioner that the Rules of Business relate to the disposal of administrative work of the Secretariat and would not cover cases of revision, and the "case" or "cases" contemplated by Rules of Business would not include a case cases involving the application of a judicial mind.
12. The word "case" as used in Article 9, sub-Article 1(h) has been defined in the Rules of Business in the following manner: "Case' means a particular matter under consideration and includes all papers relating to it and necessary to enable the matter to be disposed of, viz. Correspondence and notes and also any previous papers on the subject or subjects covered by it or connected with it."
' A perusal of the aforementioned definition of `case' would show that it clearly relates to the administrative/executive function of the Secretariat. The words "correspondence" and "notes" here have reference to administrative papers and policies and decisions of the Government in the relevant Department. This becomes all the more clear if rule 4, sub-rule (2) and rule 9(1), sub- clause (h) are read together. The first reads: 4(1) Each Department shall consist of a Minister, a Secretary and of such other officials as the Government may determine provided that the same person may be Secretary to more than one Department.
(2) The Secretary shall, by means of a Standing Order, distribute the work of the Department among the Officers, Branches and/or sections of the Department.
While the later reads as under:-9. (1) A Secretary shall.
(h) Subject to any general or special orders of Government in this behalf, issue Standing Orders specifying the cases or class of cases which may be disposed of by an officer subordinate to the Secretary ; ' Thus the "case" or "cases" referred to in these Rules of Business relate to the administrative affairs of the State. They pertain to administration and can be classed among those governmental powers properly assigned to the executive Department. Administration may also be defined as the exercise of political powers within the limits of the Constitution as the total concrete and the manifoldly changing activity of the State, in particular cases, and as the functions or the activity of the sovereign power. Thus the revision petition under section 6, subsection (3) of the Foodstuffs Distribution Order would not come within the ambit of an administrative act or administration. The exercise of powers under the said section is essentially a judicial act which involves the exercise of a judgment or discretion as distinguished from a ministerial or executive act. A judicial action may be defined as an adjudication upon rights of parties who in general appear or are brought before a tribunal by notice or process and upon whose claim some decision or judgment is rendered. The act of an administrative or ministerial officer does not become judicial simply because it requires some discretion and judgment, but it becomes judicial only when there is an opportunity to be heard, and the production and weighing of evidence and a decision therein. In the present case section 6(3) specifically provides that the Government shall not pass any order under this law revising or modifying an order affecting any person without giving such person an opportunity of being heard.
13. The essence of judicial function has been formulated by Professor S. A. De Smith in his "Judicial Review of Administrative Action (Second Edition) in the following words:- "An authority acts in a judicial capacity when after investigation and deliberation, it performs an act or makes a decision that is binding and conclusive and imposes obligations upon or affects the rights of individuals."
' Reference may also be made to the following cases in this regard:-
(1) R. v. Dublin Corporation 2 L R Ir. 371 at pp. 376-377 ;
(2) R. v. Local Government Board (1902) 2 I R 349 at pp. 373-374 ;
(3) R. v. Electricity Commissioners (1924) 1 K B 171 at p.
205.
' Thus whenever any body or persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, acts in excess of their legal authority, they are subject to the controlling jurisdiction of this Court under Article 199 of the Constitution of Pakistan. g Writ of prohibition restrains the tribunal from proceeding further in excess of jurisdiction, certiorari requires the record of the order of the Court to be sent up to the Court, to have its legality enquired into, and if necessary, to have the order quashed. Both these Writs deal with questions of excessive jurisdiction. The powers given to this Court under Article 199 cover both the writ of prohibition as well as writ of certiorari, as understood in the Common Law of England. The expression "responsibilities of a judicial nature" is not defined anywhere. But the following observation of Lopes, L. J. In Rayal Aquarium and Summer and Winter Garden Socy. v. Parkinson (1), are pertinent-- "The word 'judicial' has two meanings. It may refer to the discharge of duties exerciseable by a judge of justices in Court, or to administrative duties which need not be performed in Court, but in respect of which F it is necessary to bring to hear a judicial mind-that is, a mind to determine what is fair and just in respect of the matters under consideration."
' This passage has been quoted with approval by Professor J. F. Garner in his Book "Administrative Law" (4th Edition, 1974) at p. 285).
14. There is yet another aspect of the case which must also be noticed. The scheme of West Pakistan Foodstuffs Distribution Order, 1967 is that the initial order can be passed by a Director, the District Magistrate, the Deputy Director or the District Food Controller. Thereafter an appeal lies at the instance of an aggrieved person to the Commissioner if the order under appeal is passed by District Magistrate or Deputy Director and to the Deputy Director if the order under appeal is passed by District Food Controller or
(1) (1892) 1 Q B 431 Rationing Controller. A revision is available against the aforesaid order in appeal before the Government. Thus according to this scheme of section 6 of the said Order, an appeal is heard by an officer who is higher in rank to the officer who passed the initial order and revision is to be heard by an authority still higher in the hierarchy of administrative set-up of the Government. By assigning the power of revision to a Deputy Secretary, the Secretary has created a situation where revision (against the order of Commissioner) is being heard and disposed of by a Deputy Secretary whose status in the hierarchy of the administrative set-up is that of the District Magistrate. In these circumstances it can be said and with some justification that it is difficult for a Deputy Secretary/District Magistrate to hear and adjudicate on a revision filed against the order of Commissioner impartially. He is apt to be impressed by the order of the Commissioner and would not be expected to defy or go against the order of an officer superior in rank to him. The impugned "standing order" of the Secretary whereby he has assigned the disposal of these revision petitions to a Deputy Secretary is bad in law on this account as well. It negates the entire scheme of the Act.
15. The judgment of this Court delivered in Nasim Fatima v. Government of West Pakistan (1), is clearly distinguishable. It does not relate to cases where the responsibilities are of a judicial nature.
16. In the light of above discussion it is clear that the responsibilities of the Secretary while hearing a revision petition under section 6, subsection (3) of the West Pakistan Foodstuffs Distribution Order, 1967 are responsibilities of a judicial nature. They are not covered by the Rules of Business. Rules of Business are applicable to cases of administrative or ministerial nature. These rules relate essentially to the administration of the Secretariat. They refer to making of decisions, issue of orders or the execution of acts in which the element of judgment or discretion is either absent or relatively very small.
17. I accordingly hold that the Secretary to Government of Punjab, Food Department, cannot delegate or assign his power to hear and adjudicate on the revisions filed under section 6, subsection (3) of the West Pakistan Foodstuffs Distribution Order, 1967 to the Deputy Secretary (General), and that the said delegation is without lawful authority and of no legal effect.
18. This writ petition is accepted, the impugned order passed in revision by Deputy Secretary (General) is declared to be illegal and without lawful authority. The revision petition shall be deemed to be pending before the Secretary Food Department, Government of Punjab, who will dispose of the same in accordance with law.
(1) PLD 1967 Lah. 103