' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).- Briefly, the facts leading to this appeal, as revealed by the record, are that while the appellant was posted as Superintendent, Passport Office, Nazimabad, Karachi, two criminal cases were registered against him, being F.I.R. No,86 of 1999 under sections 419, 420, 468, 471/109, 34, P.P.C. And 3(2)(A), 13/14 of the Immigration Act, 1946 and 5(2) P.C.A.-II of 1947 Police Station F.I.A. Immigration, Karachi, and F.I.R. No,118 of 1999 under sections 419, 420, 468, 471/109, 34, P.P.C. And 3(2)(A), 13/14 of Immigration Act, 1946 and 5(2) P.C.A.-II of 1947, Police Station F.I.A. Immigration, Karachi. Subsequently, the appellant was arrested by the F.I.A. And he remained confined in jail during which period also other cases were registered against him vide F.I.Rs, Nos.262 of 1999, 263 of 1999 and 25 of 2000. The criminal cases against the appellant pertained to applications for Passports entertained and Passports issued by him to non- nationals/non-entitled persons on the basis of fake/forged documents. In the wake of registration of criminal cases against him, the appellant was suspended vided order, dated 27-7-1999, which is reproduced as under:-- "No,13/7/73-Estt 25 67/99 Government of Pakistan Southern Zone South Directorate Directorate-General of Immigration and Passport, Karachi, dated the 27th July, 1999 Office Order No,193 of 1999 ' Mr. Nasir Abbas Sherw,ani, Superintendent, Immigration and Passports, Karachi is hereby placed under suspension with effect from 9-6-1966 until further orders.
(2) This issues in compliance of the order of the Competent Authority.
(Sd.) (Khalid Sharif)
Deputy Director (Southern Zone)"
' The appellant was granted bail by Senior Special Judge (Central-1), Karachi vide order, dated 9- 10-2000 and he was released on 12-10-2000. He belatedly, filed a departmental appeal on 23-5- 2002 against his continuous and illegal suspension which was not responded to; hence he tiled the present appeal before the -Tribunal on 13-9-2002, praying as under:- "(a) To hold and declare that the order of suspension dated 27-7-1999 passed/issued by the respondent No,2 is arbitrary, illegal and unjust.
(b) To declare and order that as the order of suspension dated 27-7-1999 was not extended after every three months as such the appellant shall be deemed to have been released from suspension with effect from 27-7-1999 and entire period w,e,f, 27-7-1999 may be treated as spent on duty.
(c) Costs of the appeal, as suspension of the appellant was ordered on 27-7-1999 for indefinite period/prolong period in violation of the rules and regulations.
(d) Any other relief as the Honourable Court may deem proper and fit under the circumstances of the case."
' Along with the memo. Of appeal, application for condonation of delay under section 5 of the Limitation Act had also been filed.
2. Since the appeal was time-barred, pre-admission notice was issued to the respondents and, after hearing the counsel for the parties, the appeal was admitted subject to all just and legal exceptions.
3. We have heard the learned counsel for the parties and perused the record including the written comments filed on behalf of the respondents, as also, the authorities cited at the Bar.
4. The learned counsel for the appellant assailed the impugned order of suspension of the appellant on the grounds that the said order was illegal for the reasons that the suspension of the appellant was ordered retrospectively; hence, it was liable to be set aside. He relied on 1996 SCMR 201, 1985 SCMR 1178, PLD 1979 Lah. 699, 1984 SCMR 1578, PLD 1964 Dacca 647, PLD 1973 SC 236, 2002 PLC (C.S.) 1027 and 2005 SCMR 492. The next contention of the learned counsel for the appellant was that the suspension of the appellant was void in the eye of law because period of suspension of the appellant which should be initially for three months extendable with the approval of the Competent Authority after every three months, as required under Regulation 5 of the Government Servants (Efficiency and Discipline) Rules, 1973, was not done and the appellant had been kept under suspension continuously for a A period of about six years, without approval of the competent authority, therefore, the suspension of the appellant was liable to be set aside and he was to be treated on duty with all back-benefits. In connection with the application for condonation of the delay in filing the appeal, the learned counsel for the appellant argued thht the order suspension of the appellant, being void no limitation would run against him. He relied on 1996 SCMR 856, PLD 1976 SC 37, PLD 1967 SC 294, PLD 1965 SC 68, 1987 SCMR 1543, 1986 SCMR 962 and PLD 1969 SC 582.
5. The respondents did not raise any objection on the point of limitation and the learned Standing Counsel did not address any argument before us about the appeal being time-barred. However, that would not have prevented us from considering the question of limitation, but there is considerable force in the arguments of the learned counsel for the appellant that the suspension order of the appellant was illegal and void and his arguments have been supported by the authorities cited at the Bar, which do apply to the case of the appellant.
6. We agree with the learned counsel for the appellant that no executive order could be made effective retrospectively as has been done in the case of the appellant vide impugned order of his suspension which was issued on 27-7-1999 and the suspension was made effective retrospectively w,e,f, 9-6-1999. Secondly the appellant, being a Government servant disciplinary proceedings had to be taken against him under section 5 of the Government Servants (Efficiency and Discipline)
Rules, 1973, which is reproduced as under:-- "[5. Inquiry Procedure.--- (1) The following procedure shall be observed when a Government servant is proceeded against under these rules:--
(i) In case where a Government servant is accused of subversion, corruption or misconduct, the Authorized Officer may require him to proceed on leave 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: [Provided further that where the authority is President [or Prime Minister the powers of the authority under this clause shall be executed by the Secretary, Establishment Division.]
(ii) The Authorized Officer shall decide whether in the light of facts of the case or the interest of justice an inquiry should be conducted through an Inquiry Committee. If he so decides, the procedure indicated in Rule 6 shall apply.
(iii) If the Authorized Officer decides that it is not necessary to have an inquiry conducted through an 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 the action; and
(b) given him a reasonable opportunity of showing cause against that action.
(iv) .
[(2) ..]."
' There is nothing on record and it is 'an admitted position also that the appellant had been placed under suspension continuously for an indefinite period, and. During a long period stretching over six years, no disciplinary proceedings had been initiated against him.
7. The learned Standing Counsel, basing his arguments on the written comments, contended that the suspension of the appellant continuously over years was quite legal and justified, as it was in accordance with Regulation 194 of the Civil Service Regulations (C.S.R.) under which there was no need to seek repeated approval of the competent authority for keeping him under suspension for the reasons that he was to be kept under suspension until the termination of the proceedings against him. According to him, the criminal cases against him had since been pending decision the continuous suspension of the appellant was legally justified.
8. The learned counsel for the appellant rebutted the arguments of the learned Standing Counsel by stating that the Regulation 194 of the Civil Service Regulations did not override the Government Servants (Efficiency and Discipline) Rules, 1973.
9. We find ourselves in agreement with the contention of the learned counsel for the appellant for the reasons that the Civil Service Regulations do not override, the Government Servants (Efficiency and Discipline) Rules, 1973. This is supported by the C.S.R.1, which is reproduced as under:-- "1.(a) These Regulations are intended to define the conditions under which salaries, and leave and pension and other allowances, are earned by service in the Civil Departments, and in what manner they are calculated. They do not deal otherwise than indirectly and incidentally with matter relating to recruitment, promotion, official duties, discipline or the like. From the C.S.R.-1 quoted above, it is clear that Civil Service Regulations do not directly apply to disciplinary proceedings against a Government servant, hence, the contention of the learned Standing Counsel has no force.
10. On the. Other hand there cannot be any cavil about the contention of the learned counsel for the appellant that suspension of a Government Servant is governed under Rule 5 of the Government Servants (Efficiency and Discipline), Rules, 1973, which has already been reproduced above. The respondents have clearly not followed the above Rule 5 of the Government Servants Rules, 1973 and had kept the appellant continuously under suspension since' 9-6-1999 vide order dated 27-7-1999 for a period of about six years. Regulation 194 of the Civil Service Regulations dealt only in pay of the Government servant committed to prison, but the appellant has been on bail since 9-10-2000. 'Though criminal proceedings against the appellant are admittedly still pending before the concerned Court, but the funny side of the matter is that the appellant is now entitled to the benefit of full salary, which has, perhaps, been paid to him without taking any work from him.
We do not know how long the appellant would be paid his full emoluments without any work.
11. For all the reasons, mentioned above, and in view of the legal position enunciated 'above, the order of suspension of the appellant cannot be substantiated. We, therefore, allow' this appeal set aside the impugned suspension order. Of the appellant and direct the respondents to treat the appellant on duty for the entire period of the suspension with all consequential benefits.
12. No order as to costs.
13. Copies of this judgment be sent to the parties under registered cover and to the relevant quarters as per Rule 21 of the Service Tribunals (Procedure) Rules, 1974.