M. SALEEM CHAUDHRY (CHIRMAN).-By these five appeals, three ex-- P.C.S. Officers, an ex-Divisional Forests Officer and an ex-Executive Engi--neer (Public Health Engineering Department) seek to assail their retirement orders dated 30th of October, 1976, passed by the Government of the Punjab, under the Punjab Government Servants (Efficiency and Discipline) Rules, 1975 (hereinafter referred to as E. & D. Rules, 1975). They are also aggrieved by the order of the Government of the Punjab rejecting their Review Petitions against the same. Since these appeals involve the com--mon questions of law and somewhat similar facts, the same are, therefore, disposed of by one common judgment. The facts so far as relevant and material to these appeals are that on 13th of October, 1976, the Government of Pakistan, vide letter No. 1661/JSF/76, dated 13th October, 1976 deputed Mr. Abdul Aziz, Joint Secretary, Establishment Division, who passed on the information received by the Federal Government, against various officers including the appellants to the Government of the -- Punjab, with the following directions: "2. You are advised to take appropriate disciplinary action against these officers. Where an officer has completed 25 years' service qualifying for pension or other retirement benefits, he may be retired under the Civil Servants Act.
This letter is being sent through Mr. Abdul Aziz, Joint Sec--retary, Establishment Division, to ensure safe delivery and due secrecy. He will also render such assistance as may be requir--ed of him for expeditious action in these cases."
The details of the allegations relating to the present appellants as contained in annexure to the aforesaid letter were as under :-
(1) Mr. Muhammad Aslam Virk.(i)Notoriously corrupt, drun--kard and a womaniser.
(ii) Released an accused involv--ed in charges/opium smuggl--ing case after accepting Rs. 60,000 and a Toyota Car, as illegal gratification.
(iii) Accepted Rs. 20,000 as bribe in a murder case and released the accused.
(iv) Is mixed up with bad-char--acters. The allegations are under enquiry with A. C. E., Punjab.
(2) Mr. M. R. Khalid (i) Reputed to be corrupt.
(ii) Presently serious allegations of corruption, misuse of official position and accep--tance of bribe for allotment of land, in the names of fictitious persons, are under enquiry with the A. C. E., Punjab.
(3) Mr. Muhammad Ishaque Mr. Aslam Sahee, District Engineer, Jhang (NOT APPELLANT)(i) In collusion these two officers have misappropriat--ed large Government funds.
(ii) Ch. Muhammad Ishaq transferred rupees 22 lacs to Habib Bank from P. W. D. Funds in contravention of Government instructions.
(4) Ch. Muhammad Zafarullah Khan(i) He is involved in case F.I.R. No. 15, dated 28th October, 1975 under section 409/ 109 P. P. C. and 5(2) 47 P.C.A. P. S/A.C.E. Sargodha. The allegations pertain to misappropriation of Govern--ment property amounting to Rs. 1,65,000. Case is un--der investigation with A.C.E., Punjab.
(5) Mr. Mubarik Ahmad MalikMisappropriated G.I. Pipes of the value of Rs. 1,15,805. Case is under investigation with A.C.E., Punjab.
3. Since none of the appellants had completed 25 years service, the action, against them was initiated under the Efficiency and Discipline Rules, 1975, and they were straightaway served with show-cause notices dated 16th of October, 1976, presumably under rule 6 (3) (a) of the Efficiency and Discipline Rules of 1975, proposing the imposition of a major penalty upon each of them. They filed the replies in which the allegations were denied, but these appeared to have failed to find favour with the authorities. Initially, vide notice dated 28th October; 1976, they were called upon to appear on 3rd November, 1976 for personal hearing before the Chief Secretary to Government, Punjab. But by another notice even dated, the date for personal hearing was accelerated to 30th October, 1976. They appeared before the Chief Secretary, Punjab, on 30th October, 1976, and on the same day by the impugned orders, they were compulsorily retired from service, with immediate effect. It appears that they approached the Government in Review which was also rejected. Hence these appeals before us. As regards their service details, Mr. Muhammad Aslam Virk joined service as a Lawyer Magistrate in February, 1954, and was retired on the 30th of October, 1976 when he was holding the Senior Scale admissible to the members of the Civil Service of Pakistan. Similarly, Mr. M.
R. Khalid and Ch. Muhammad Ishaque, were appointed to the Provincial Civil Service, through the Public Service Commission, on 19th August, 1955 and in 1960 respective--ly. At the time of retirement on 30th of October, 1976, they were also in the Senior Scale admissible to the members of the Civil Service of Pakistan. Mr. Muhammad Zafarullah Khan, ex-Divisional Forests Officer, joined service as Assistant Conservator of Forests in 1963. He was holding the rank of Divisional Forests Officer, at the time of his retirement, on 30th of October, 1976. The last officer Mr. Mubarik Ahmad, ex-Executive Engineer, Public Health Engineering Department, was appointed as Sub-Divisional Officer, on 25th October, 1960, in the Punjab Health Engineering Department and was promoted as Executive Engineer on the 14th of October, 1965, which rank he held till the date of his retirement, i.e. 30th of October, 1976. These appeals were sought to be supported inter alia on the following contentions :-
(1) That the impugned orders were passed by the Provincial Government at the behest of the Central Government, who had detailed Mr. Abdul Aziz, Joint Secretary, Establishment Divi--sion, Government of Pakistan, with the pre-ordained result. According to the appellants the course adopted by the Federal Government besides being illegal and un-precedent betrayed lack of bona fide. The above apprehension was fully confirmed by Mr. Abdul Aziz's unauthorised participation on 18th October, 1976, in the proceedings against the appellants and also by the fact that he did not leave Lahore until the task was accomplished in entirety. Thus it is submitted that the Provincial Government simply complied with the complied received from the Central Government. As such, there was no order passed by the Provincial Government in the eye of law.
(2) That the proceedings against the petitioner had been initiated, conducted and concluded by the Chief Secretary himself who was neither the Competent Authority, nor the Authorised Officer, under the provisions of the Punjab Government Servants (E. & D.) Rules, 1975. It constituted the violation of rule 5, which vitiated the impugned orders ;
(3) That it was incumbent under rule 6(3) of the Efficiency and Dis--cipline Rules to pass speaking order consciously indicating the reasons for dispensing with the enquiry. In this case the enquiry had been dispensed with arbitrarily and without complying with the requirements of rule 6(3) of the E. & D. Rules which render--ed the entire proceedings as void.
(4) That if the allegations were subjected to proper investigation the same could have been proved totally baseless ;
(5) That according to the appellants, in most of the cases the same allegations had, in fact, been the subject-matter of departmental enquiries which had already been held and in which the appel--lants stood exonerated or were eventually exonerated after pro--per enquiries. In view of the above factual background the enquiry envisaged by rule 6 was rather indispensible and the failure- of the authorities in this regard rendered the proceedings illegal and void ;
(6) That the show-cause notice served upon the appellants was vague as it did not contain the details of the allegations which resulted in material prejudice to the appellants while defending themselves against the same. The notice also failed to specify the penalty proposed against the appellants. There were number of major penalties specified in rule 4(1) (b) of the E. & D. Rules and any of them was required to be specified in the notice in terms of rule 6(3) (a) of the said rules.
(7) That the appellants were denied the reasonable opportunity to defend themselves. It was reiterated that failure to hold an enquiry or to specify the precise penalty proposed in show-cause notice has resulted in the denial of reasonable opportunity to the appellants. It was further submitted that the notice failed to disclose the grounds of action as required under rule 6 (3) (a) of the E. & D. Rules. The appellants also made the grievance that initially on 28th of October, 1976, the notice was issued for personal hearing by the Chief Secretary to Government, Punjab, for 3rd of November, 1976, but on the same day, without any justification, the date of hearing was advanced to 30th of Octo--ber, 1976, which was too short a notice. It was alleged that even the hearing was a mere farce which hardly lasted for the minutes in each case and also they were not provided any details or access to the records to know the real case against them despite persistent demands. In some cases they were simply told the information was secret and the same could not be dis-- closed to them. According to the appellants, the hearing was mere formality and in fact the orders were handed over to them as if the same were lying ready for delivery ;
(8) The appellants argued that in fact there was no material avail--able on record to substantiate the allegations levelled against them. It was submitted that they had been condemned on the basis of mere allegations ; and
(9) Lastly, the appellants alleged mala fide on the part of Govern--ment or against their superior officers.
4. In elaboration of the first point, it was submitted that the direction issued by the Federal Government was uncalled for inasmuch as the Federal Government under the law had no powers to decide the fate of the Civil Servants of the Punjab. Thus the action of the Federal Govern--ment fell beyond the scope of the lawful authority vesting in them. According to the appellants none of the Provincial Civil Servants whose names were included in the list escaped removal or retirement which left no doubt that the Provincial Government complied with the directions of the Central Government without applying their own mind to the merits of each case. According to the appellants, the direction of the Government dated the 13th of October, 1976, left no choice for the Pro--vincial Government. In fact, the presence of a Joint Secretary from the Central Government fully endorsed the apprehension of the appellants that he had been commissioned to see that the directive of the Federal Government was tamely complied with. Thus the order passed by the Provincial Government was no order in the eyes of law. In fact before the Provincial Government could be taken into confidence, the Chief Secretary, Punjab, on the behest of the Federal Government had already initiated the action which was totally in excess of the aforesaid authority.
The following extract from (pages 75-76) the White Paper Published by the Federal Government of Pakistan was also relied upon: "Mr. Bhutto decided in 1976 to resort to large scale dismissals as part of his election strategy to break the morale and spirit of the services well in time for the general elections, The details of this operation are of some interest. This was the second purge of his six-year old regime. He indicated that 200 persons should be retired/removed from service. Sub--sequently, this figure was reduced to 100. The actual 'bag' was about an exact/mean of these two targets, and eventually 158 persons were served with orders of retirement/ termination of service or show-cause notice in October, 1976. It is characteristic that he was concerned not with the merits or demerits of the unfortunate individuals involved but only with a round figure of casualties.
The plan prepared by the Establishment Secretary under Mr. Butto's orders was that all retirement orders, as well as the show-cause notices, and also the orders of termination of service be served simultaneously on 16th October, 1976, on selected employees of the Federal Government as well as the Provincial Government and autonomous corporations. The retirement orders were to become effective forthwith, while 7 days were; given for replies to the show-cause notice. The cases falling in show-cause category were to be retired on. October 30th, 1976, and, except for a few cases, these deadlines were duly observed. The lists of Provincial Government officers who were to be retired were taken to the Chief Secre--taries concerned at Lahore, Karachi and Peshawar (there were no names from Baluchistan) by officers specially deputed for the purpose by the Establishment Secretary. On 14th Octo--ber, 1976, the Establishment Secretary had informed the Chief Secretaries on telephone about the retirement plan (without giving the names) and asked them to be on the alert. The officers deputed for the purpose reported to the Chief Secre--taries on 15th October, 1976, and the whole exercise was gone through with clock-like precision. The retirement orders and show-cause notices were served on all 158 officers on 16th October, 1976 either early in the morning at their residences, or in their offices before 1200 hours. In case of some outlying stations, orders were delivered through special messengers or express telegrams or wireless messages. The anxiety of the Establishment Secretary that the exercise should go through smoothly and the stipulated time-table be fully observed was made known to the concerned quarters, and they all reacted accordingly.
Why this sizable `sack' was rushed through at top speed with such meticulous care and secrecy and why certain dead--lines had been fixed, can well be surmised. This time-table was not conceived in isolation. It formed part of an overall election strategy which, from October, 1976 to December, 1976, included observance of various `weeks' (Service Week, Students Week, Women's Week, Labour Week etc.). These weeks were, actually, Mr. Butto's pre-election mass contact campaign. The retirements, too, had to be attuned to this campaign ; timed neither too near, nor too far away from the elections. They were to be just at the right time, so that everyone in the administration got the priorities clear and could play his part in getting the appropriate results at the poll."
5. In this behalf the following observations of Lahore High Court in Syed Fayyaz Hussain Qadri v. The Administrator, Lahore Municipal Cor--poration, Lahore (PLD 1972 Lah. 316), were cited :- "When a statute confers a certain duty on an officer it is that officer who has to make up his mind and pass the order in accordance with law and exercise his discretion uninfluenced by any opinion of his superior officers. It was held in B. S. Industries v. Deputy Registrar, Trade Marks that even an Executive Officer when he performs a statutory function is not to be influenced by any direction from any quarter."
The following observations from 1977 PLC (C.S.T.) 99 were also cited to support the contention :-- "The impugned order was admittedly passed by the Director. Agriculture, and not by the Agricultural Engineer who was the competent authority for passing such an order and the law provided mutual independence of views and action between the Agricultural Engineer and the Director, Agriculture, by designating the latter as the appellate authority from the orders of the Agricultural Engineer. We have reached the conclusion that the impugned order dated 27th March, 1972 passed by the Director, Agricultural Engineer, Lyallpur, was bad in law and as such is void and of no effect ab initio."
6. The decision of Peshawar and of West Pakistan High Court, PLD 1961 Pesh. 152, was also relied upon. The following extract for the above authority was cited to support the contention: "When the law requires that an order should be made by a parti--cular authority, the requirements are that that authority must exercise its own independent judgment while giving the decision and not blindly follow a line laid by some other extraneous authority, however higher in rank and status it may be. If an official functionary, who is under a legal obligation to come to his own judgment to a matter allows himself to be completely swayed by someone else and accepts his verdict by towing the dotted line without giving his own independent thought to the matter, the only safe conclusion to be drawn is that such official functionary has allowed his will to be sub--stituted by that of the other. The decision thus made is not his decision, having been imposed on him by an extraneous authority which he has not been able to resist."
7. In support of the second contention raised by the appellants, they argued that the Chief Secretary was not the Authority or the Authorised Officer, as defined in rule 2 of the E. & D. Rules, 1975, which is as follows :-- "2.-(1) In these rules, unless the context otherwise requires- (a)
(b) "authority" means the Government or an officer or authority designated by it to exercise the powers of the authority under these rules.
(c) "authorised officer" means Government or an authorized officer under these rules.
(2)
(3) The various authorities empowered to award major puni--shments under the various Delegation of Powers Rules, shall, in respect of civil servants to whom they are competent to award major punishment, exercise the powers of `the authority' under these rules and the authorities empowered to award minor punishment under the said Delegation of Powers Rules, are in respect of the civil servants to whom they are competent to award minor punishment authorised to exercise the powers of (Authorised Officer) under these rules."
8. Relying upon the above, it was submitted that in absence of any notification specific authorisation the Chief Secretary could not exercise the powers of Authorised Officer, unless as laid down in rule 2(3) above, he 'was empowered to levy minor punishment under the relevant Delegation of Powers Rules, relating to the appellants. According to the provisions in the Delegation of Power Rules, in the case of P. C. S. Officers, Government alone were competent to award major as well as minor penalty. As regards Ch. Muhammad Zafarullah Khan, ex-Divi--sional Forests Officer, the competent authority to impose a minor penalty was the Chief Conservator of Forests, Punjab, and the major punishment could be imposed by the Government. Similarly, in the case of Mr. Mubarik Ahmad, the Chief Engineer, was competent to impose a minor penalty and the Government was the competent authority to impose a major punishment. Thus in no case the Chief Secretary, Punjab, was the authority' or the "Authorised Officer". The appellants also argued that the Chief Secretary, Punjab, was not the Government. In this behalf, reliance was placed on the description of the Government, as contained in Article 129 of the Constitution of Pakistan of 1973, which was to the of lowing effect :-- "(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)
9. We were also taken through the provisions contained in section 49 of the Government of India Act, 1935, Article 73 of the Constitution of Pakistan, 1956, Article 80 of 1962 Constitution and Article 102 of the Constitution of Pakistan 1972 that the aforesaid provisions authorised the exercise of the executive authority of the Province concerned even through the subordinate authorities. But Article 139(2) made significant depar--ture as the `Delegations of Powers' as distinct from its functions was not permissible. Argument was sought further to be reinforced by drawing a contrast from the Notification No. S.R.O. 1562(1)(73, dated 10th October, 1973, issued by the Federal Government empowering Mr. Vaqar Ahmad, Establishment Secretary to act as Authorised Officer to respect of Grade 17 to 20 officers of the Federal Government. The appellants argued shat it clearly established the necessity of a Notification apart from the provisions in the Rules of Business, for vesting the Establishment Secre--tary with the status of Authorised Officer although the Rules of Business of the Central Government were identical as framed by the Provincial Government. Thus according to the appellants, the Chief Secretary, Punjab, could not act as Authorised Officer or as Authority.
Since he had not been authorised as such, the show-cause notice issued and the proceedings initiated at his instance, were without jurisdiction. The appellants also argued that since the entire proceedings had been incom--petently initiated, therefore, the consequent final orders passed were a nullity.
10. With regard to points 3, 4 and 5 the appellants, in the first instance, relied upon the text of rule 6 of the Efficiency and Discipline Rules, 1975, which provided that the Authorised Officer "shall decide" whether in the light of facts of the case or in the interest of justice, an en--quiry should be conducted. According to the appellants the word `shall' enjoined a duty upon the Authorised Officer to pass an order in writing with reasons so as to show that he had applied his mind in an objective manner. The appellants further submitted that since the ultimate order passed by the competent authority, or the Authorised Officer, as the case may be, was appealable both at the departmental level as well as before the Service Tribunal concerned, therefore, it was all the more imperative that justification for dispensing with the enquiry should be readily traceable on the record, to enable the appellate forum to appreci--ate the hypothesis of the same. Thus the discretion vested in the depart mental authorities was a reasonable one and not arbitrary. In this behalf a decision of this Tribunal reported as In re : Dost Muhammad v. Deputy Commissioner, Multan, etc. (1978 NLR 10) was relied upon in particular wherein the following observations were made :- "However, on the other issue as to the necessity of the enquiry we do feel that the grounds disclosed by the Authorised Offices in his order, having already been disproved, were not avail-- able. In particular with regard to the charge of corruption against the appellant which was definite in nature and was supported by the evidence of the named persons there could have been no difficulty in holding the enquiry. Moreover, the proof of this fact depended mostly on the oral evidence and could not be established solely from the documentary evidence on record, therefore, in our opinion, it was necessary that the same should have been proved by a proper enquiry: We do not see as to how the interest of justice could be served other--wise. We also find a great deal of merit in the contention of the appellant that the result of enquiry about the previous charges and the criminal proceedings against the appellant also lend considerable force to the arguments of the appellant that the interest of justice rather warranted the enquiry. No doubt the rules conferred discretion upon the Authorised Officer but it was not altogether arbitrary or completely capri--cious power conferred upon him. He was required to disclose his mind and the reasons for the same, as it otherwise took away the valuable protection available to the defaulter to dis--prove the charges against him more particularly when the saws in most are based on the oral testimony."
11. It was also contended that in all the cases due probes were conducted by the departmental authorities including the Anti-Corruption Establishment, Punjab, Martial Law Teams and other like Agencies which had resulted in exoneration of the appellants. Thus, it was all the more incumbent upon the authorities to hold enquiry which should have resulted in the acquittal of the appellants. It was thus contended that the enquiry in this case had been dispensed with in gross violation of the provisions of rule 6 of the E. & D. Rules, 1975. The appellants next made the grievance that the show- cause notice was issued to them by the in--competent authority, viz. The Chief Secretary to Government, Punjab, without the approval of the Chief Minister, Punjab, who was the com--petent authority. In this behalf, reliance was again placed upon the decision of the Lahore High Court reported as Law Notes 1971 Lah. 395. It was also argued that the lack of approval by the Chief Minister, Punjab, could not be valid ex post facto as held in PLD 1977 Lah. 442, accord--ing to which even after its confirmation by the competent authority, the action remained a nullity. It was thus argued that there being no valid show-cause notice in the eye of law, the impugned orders were void ab initio. The decision of this Tribunal reported as In re : Muhammad Mazhar v. Secretary Agriculture, Punjab (NLR 1978 Service 314) was relied upon. The following passage from the aforesaid decision was relied upon in particular :- "The charge-sheet dated 21st May, 1976 does not even qualify to be construed as the show-cause notice required under rule 6 (3) as it fails in the basic requirement of informing the appellant of the particular action proposed to be taken against him. The charge-sheet merely informs the appellant of the nature of the charges raised against him without disclosing as to what punishment the appellant is likely to face."
The appellants went on to argue that the show-cause notice served upon them was vague and lacked details. It materially lacked in the facts supporting the allegations levelled in the notice. The notice was also assailed on the ground that it failed to specify any penalty. It was argued that a number of major penalties were specified in rule 4 of the E. & D. Rules, 1975 and it was essential for the departmental authori--ties to specify any one of the penalties specified therein. An authority from the Lahore High Court reported as In re : Haq Nawaz v. Province of the Punjab (PLD 1976 Lah.
1013) was relied upon to invalidate the notice and consequently the impugned order. The appellants also alleged that the show-cause notice was issued on the basis of the allegations which already stood dis--proved against the appellants by the departmental enquiries. Thus the notice was void ab initio. The appellants also alleged that the notice as issued on 28th of October, 1976 was initially for hearing on 3rd of November, 1976, but the hearing was suddenly advanced to 30th of October, 1976 and in some cases the revised notice was served on the 29th of October, 1976.
Thus the notice could not be said to be adequate or reasonable in the circumstances of the case.
With these submissions, the appellants alleged that the show-cause notice was defective and was in breach of rule 6(3) (a) and (b) of the E. & D. Rules, 1975. The appellants also submitted that they had been denied reasonable opportunity to defend themselves in terms of rule 8 of the E. & D.
Rules, 1975. It was reiterated that the proceedings were not preceded by any charge-sheet or inquiry and the show-cause notice dated the 16th of October, 1976 was also defective on the grounds already disclosed above and they were refused access to any material proposed to be taken into consideration against them. Rather in some cases the request was turned down with the observation that the same was secret. In the circumstances, the hearing was nothing more than a farce. Even otherwise, the hearing was merely symbolic and hardly lasted for more than two minutes in each case. The appellants submitted that in the circumstances, proceedings were: sham in which the appellants were not provided any opportunity to defend them--selves. Thus the contention was that the impugned orders were vitiated due to lack of proper opportunity. In this behalf, the following authori--ties were cited by the appellants :-- PLD 1955 Sind 250 ; PLD 1957 Lah. 925 and PLD 1963 Lah. 295.
12. The appellants also submitted that in fact the allegations against them either already stood disproved by the departmental enquiries, or they were subsequently exonerated by the proper departmental enquiries. Thus there was no material whatsoever available against them. However, each one of them explained the allegations against them, as follows :.- Mr. Muhammad Aslam Virk argued that so far as the charges of corruption and womanising are concerned, there was no evi--dence to substantiate the same. He was served with a notice on identical charge in February, 1976 and after proper enquiry it was held on 12th April, 1976 that no further action was called for. He submitted that this conclusion was arrived at after making a thorough probe by the D. I. G. (Crimes) and other Agencies, who stated that nothing was available against him. He also brought to our notice that in fact the case was even examined at the level of the Provincial Anti-Corruption Committee, who on 23rd June, 1977, finally decided to drop the enquiry on merits as nothing was available against him. Similarly so far as the charges regarding the release of accused involved in charges/opium smuggling case after accepting Rs. 60,000 and a Toyota car as illegal gratification was con--cerned, he submitted that the same was equally untenable. This case was decided in 1970. No appeal or revision was filed by the State against his decision. Similarly, so far as the allegation regarding the acceptance of Rs. 20,000 as bribe in a murder case is concerned, it was also baseless as in the aforesaid case the persons were placed in column No. 2 (challan) by the Police which means that according to police investiga--tion they were not guilty nor their names figured in the F. I. R. The High Court in Revision also upheld the decision given by the appellant. Mr. Virk also explained that so far as the purchase of car was concerned, he had purchased a car with prior permission of the Government on 22nd April, 1970, and the payment was made through cheques. The purchase order was booked on 22nd April, 1970 whereas the delivery was taken` in September, 1970. The alleged smuggling case was decided in December, 1970 and the murder case in 1971. Thus the purchase of car could have no relation to the alleged bribe on the part of the appellant. He submitted that in fact he happened to order the arrest of a Police S. I. Who remained in Jail for seven months. For the reasons above, the Police Department became hostile and concocted these false accusa--tions against him. The other charges were not supported by any particular evidence and appeared to be corollary of the charges Nos. (i) and (ii) and were hopelessly vague. In fact on the basis of same allegations the appellant, as already stated, was served with a show-cause notice in February, 1976, for being corrupt or having the resistant reputation of corrupt person, but both the charges were dropped by the Provincial Government on 12th April, 1976, in the first instance, and finally in June, 1977 on merits.
Thus the allegations stood already disproved against the appellant. The last allegation for mixing with the bad characters was too vague and was never heard before. Thus the appellant submitted that the allegations were factually incorrect and stood disproved by a departmental probe and as such could not be made the basis for his retirement in October, 1976. Similarly Mr. M. R. Khalid submitted that he was served with a show-cause notice on the 28th of August, 1975, for being guilty of misconduct and for being inefficient. He replied to the notice in September, 1975 and the matter was also explained personally in October, 1975 whereafter nothing was heard. He was served with another show-cause notice on 16th October, 1976, on the charges of corruption, misuse of official position, acceptance of bribe for which enquiry was with the Anti-Corruption Establishment, Punjab.
He filed reply on 23rd October, 1976 denying the charges and demanded an enquiry into the allega--tions. But no such enquiry was ever held. He claimed that his reputation was excellent except for a single report by the Commissioner, Sargodha Division Mr. Raza Ali and nothing was disclosed to him at any stage. He, however, argued that he was maintaining 1967 Model Opel Car which was the same as maintained by the Deputy Commissioner, Jhang, himself who was in the same scale of pay and who later on as Commis--sioner, Sargodha Division gave him the aforesaid adverse report. He submitted that he was drawing Rs. 2,000 and was not living beyond his means.
Moreover, he had not obtained any bribe. Rather the inspection note of Member Board of Revenue Raja Saleem Akhtar contained definite observation that there was no corruption at Bhakkar under appellant's charge. The appellant relied upon R/5, 7, 8 and 9 to his rejoinder to show that he was living within his known means of income and there was nothing against him. No doubt in 1957, his uncles, cousin and brother got allotments of land in Jhang Distt. Which is his native place, under Grow More Food Scheme which of course was made by drawing lots but at that time the appellant had hardly two years' service and was not posted in Jhang District. There was dispute between the rela--tives of the petitioner and one Riaz Hussain Shah who has been maligning the petitioner by making false anonymous complaints. Riaz Hussain filed a Writ Petition No. 1320/69 before Lahore Bench of the West Pakistan High Court forging signature of appellant's brother. When detected, he desired that the brother of appellant should own the same but he declined. Even his complaints were found without substance by the Government in repeated probes made in 1969, 1970 and 1972.
He alleged mala fide against the Deputy Commissioner, Jhang, Mr. Raza Ali, who was called upon by the Lahore High Court in writ petition No. 441 of 1971, filed by Mr. Bashir Ahmad (appellant's brother) to justify his order dated 24th February 1971, cancelling the allotments made in favour of appellant's brother and making ex parte observations against appellant's conduct. As regards Ch. Muhammad Ishaq, he submitted that the allegations regarding the purchase of a car were dropped against him on 30th May, 1975. With regard to the rest of the allegation, show-cause notice for major penalty was issued to him on 25th February, 1976, but after a thorough scrutiny by the Chief Minister's Inspection Team and other Agencies on 27th July, 1976, it was proposed to censure him only. Moreover, it was submitted on his behalf, that he was issued a show-cause notice for the misappropriation of Rs. 26,000 for which there was no evidence or material whatsoever. His reputation was entirely free from any blemish. He also argued that assuming, without conceding, any solitary instance was not sufficient to sustain the reputation for corruption.
He placed reliance upon the Supreme Court case reported as PLD 1977 SC 24. He had only one adverse report during whole of his career extending over 16 years which too was not conveyed to him. The adverse report was given to him in 1971, but he was promoted to the Senior Scale to 1973. In any case, if the aforesaid report was sufficient to sustain the allegations of his being corrupt, his case could have been referred under rule 9 (A) of 1960 E. & D. Rules to the Tribunal to be constituted under rule 9 (B) which was not done. In fact after 1971, he consistently earned five good reports.
With these submissions, he argued that there was nothing serious against him. Similarly, Ch. Muhammad Zafarullah submitted that the allegation against him was that he misappropriated Rs.
1,65,000 whereas the real loss account of the alleged misappropriation of 22 bags of Tarameera carrying the value of Rs. 180 each bag, was Rs. 3,960. It was even conceded by the department that the actual charge was for Rs. 1,65,000 to which one zero had been added due to clerical error.
However, the Anti-Corruption Department, after thorough investigation on 29th May, 1976, had already recommended that no action was called for, and finally exonerated him which fact was not disputed by the department. He also submitted that he had never been Divisional Forests Officer, Sargodha. Thus the allegations were totally misconceived. With these submissions, the appellant pressed for the acceptance of his appeal. Likewise Mr. Mubarik Ahmad also pointed out that the allegations against hint as to the so-called mis--appropriation relating to the loss of pipe during carriage to the New Lahore Township, were wholly false. He submitted, that in the first instance, his responsibility was merely in a supervisory capacity. The actual carriage was conducted by Ghulam Hussain, Overseer and Bashir Ahmad Sub-Divisional Officer, through a Contractor. For sometime, Mr. Aftab Ahmad was the Executive Engineer incharge of the Division during the carriage of the pipe. He thus submitted that he was not responsible at all. The appellant further submitted that he had been only victimised. Thus he held no responsibility in the so called loss of pipes, if any. The allegations contained in paras 2-7 of his appeal pertained to victimisation.
Even other--wise, the matter was still pending investigation with the Anti---Corruption Establishment, Punjab, for the last many years. Thus nothing could be proved against the appellant. The appellant also alleged mala fide against the Govern--ment.
13. The learned Government Pleader Mr. A. G. Humayun, on the other hand, vehemently opposed the appeals. In the first instance he submitted that Article 139 (2) of the Constitution of 1973 authorised the Provincial Government to delegate their functions in favour of the subordinate authorities. The Punjab Government framed the Rules of Business in 1974 pursuant to Article 139 of the Constitution of 1973. According to rule 2 (3) of the said rules, "business means all work done by Government".
According to rule 9, a Secretary of the Department is the official Head of the Department.
According to rule 5, Chief Minister is the Head of the Cabinet to whom cases specified in Schedule VII Part (A) only were to be sent for approval and cases mentioned in Part (B) of Schedule VII were to be submitted for information only. It thus clearly implied that the cases other than those as specified in Part (A) of Schedule VII could be dealt with by the Secretary concerned without the approval of the Chief Minister, who was to be informed only of the same later on. The definition of a Secretary as contained in rule 2 (xx) includes the Chief Secretary. Thus the Chief Secretary is the Secretary and being the Head of the Department under rule 9, was entitled to initiate the action without any prior approval from the Chief Minister. The observations from the authority of Pakistan v. Amjad Ali Mirza, were also relied upon as reproduced in para. 17 of the judgment.
14. In the above, case, the show-case notice was issued by the Defence Secretary as designate officer under the Defence Services (Classi--fication, Control and Appeal) Rules, 1961. He further submitted that the file was submitted on the 18th of October, 1976, to the Chief Minister who on 21st of October, 1976, did authorise the Chief Secretary to pro--ceed with the matter which fulfilled the requirements of rule 5 of E. & D. Rules, 1975 read with Entry No. 14, Schedule VII, Part (A) of the Rules of Business, 1974, which was to the following effect :- "All cases relating to appointments and promotions and disciplin--ary action against the officers in Grade 17 to 20 officers or of equivalent rank and status and above."
He went on to contend that the "authority" and the `Authorised Officer' no doubt were defined by rule 2 of the E. & D. Rules, 1975, but the Government has the power to act as Authorised Officer even without any specific authorization. According to the learned Government Pleader the Chief Secretary, Punjab, was the Government, and, therefore, he need not be authorised specifically, as the Government is the ultimate source of power. In this regard, he relied upon PLD 1973 Lah. 220.
This contention was advanced by the Government Pleader to cover the cases of Mr. Muhammad Zafarullah Khan, ex-Divisional Forests Officer, Mali k Mubarik Ahmad, ex-Executive Engineer, in which the relevant Delegation of Power Rules, designated the Chief Conservator of Forests, and the Chief Engineer as competent authority to impose minor penalties and in terms of rule 2 (3) of the Punjab Government Servants (E. & D.) Rules, 1975 only they were competent to act as Authorised Officers.
He next argued that the expression `function' used in Article 139 (2) of the Constitution also included powers. He also argued that the Central Efficiency and Discipline Rules were different in terms than the Provincial E. & D. Rules of 1975. He submitted that in the corresponding Central rule 2 there was no provision corresponding to sub-rule (2) (3) of the Provincial Rules, and the effect of the aforesaid omission was that the Authorsied Officer had to be appointed by the Authority specifically. Thus the existence of a Notification in favour of the Establishment Secretary in case of Federal Government was obviously understandable. The learned Government Pleader, also argued that rule 5 of the Efficiency and Discipline Rules, 1975, was not violated as the same did not require authorization in writing and even oral direction from the Authority was enough to initiate the proceedings. According to the learned Government Pleader, the Chief Minister, Punjab, had authorised the Chief Secretary. Punjab, on the 18th of October, 1976, though there was nothing in writ--ing on the file. He also submitted that there had been no violation of rule 6 of the E. & D. Rules, as argued by the appellants. He relying upon rule 6 (2) submitted that the case was rather the reverse and the decision to hold an enquiry had to be in writing. He also argued that the reasonable opportunity had been duly afforded to the appellants inasmuch as they were served with a show-cause notice, they filed the reply thereto and were also heard in person. He also submitted that the allegations against the appellants were sufficiently clear, as the same were distinctly specific as per list of, charges received from the Federal Government along with the letter dated 13th of October, 1976. The show-cause notice could not be said to be tentative inasmuch as it communicated each of the charges proposing major penalty and the appellants were under no misapprehen--sion in this regard. He relied in this behalf on the decision of this Tribunal reported as 1975 PLC (C.S.T.)
99. He also submitted that the previous departmental proceedings were not formal but informal, thus the exoneration of the appellants in the aforesaid proceedings did not bar fresh proceedings against them. He also submitted that the Central Government did not issue any command but merely passed on information and it was for the Provincial Government to take appropriate action. The objection raised by the appellants was wholly unjustified. He also con-- tended that it was neither practicable nor possible to grant personal hear--ing to the appellants by the Government. It is always given by the Secretary concerned. He relied, in this behalf, upon PLD 1977 SC 182 relevant at page 192. He also brought to our notice that there was a Notification issued by the Government of the Punjab, dated 20th October 1965 under the West Pakistan Government Servants E. & D. Rules, 1960, authorising the Chief Secretary to Government, Punjab, to grant personal hearing to the Civil Servant concerned. He submitted that although E. & D. Rules, 1969 were repealed by the 1975 E. & D. Rules. But by rule 19(2) (b) any Notification or instructions issued under 1960 E. & D. Rules so far as they were not inconsistent with 1975 Rules, were saved. As such the Chief Secretary, Punjab, had the powers of an Authorised Officer. He also brought to our notice that in January, 1976, the Law Department was consulted in the case of Ch. Muhammad Ishaq, who observed that the Chief Secretary, Punjab, was competent to proceed in the matter as `Government'. He submitted that before issuing the order dated 30th of October, 1976, the matter was duly got approved by the Chief Minis--ter, Punjab. Thus the objection, if any, against the Chief Secretary, Punjab, ceased to be of any significance inasmuch as the matter stood validated ex post facto. As regards the complaint of mala fade he sub--mitted that the Supreme Court has held in In re: Federation of Pakistan v. Saeed Ahmad (PLD 1974 SC 151), that the allegation should be in minute details and against the competent Authority alone. Since nothing against the Competent Authority has been placed on record, the plea of mala fide in none of the cases under appeal, could be sustained.
15. In reply, the appellants submitted that the Chief Secretary, Punjab, could not be considered as Government inasmuch as the Govern--ment of India Act, 1935, section 49, it was distinctly provided that the; Executive Authority of the Government shall be exercised by the Govern--ment or through the officers subordinate to it. Similarly in 1956 Con--stitution, Article 73, in 1962 Constitution Article 80, and in Constitution of 1972, Article 102 made similar provisions. The delegation of functions contemplated under Article 139 (2) was distinct from the powers of the Government. In fact the Government vide Article 129 has been defined to mean the Chief Minister or the Ministers. Relying upon the fact that the Federal Government had to specifically empower in respect of officers of Grade 20 to 23, the Federal Establishment Secretary as Authorised Officer; vide Notification dated 10th October 1973 which implied the necessity of a similar authorization at the Provincial level. The appellants also contended that reading rule 2 of the Punjab Government Servants (E. & D.) Rules, 1975, the intention is very clear that initially the Govern--ment is the Competent Authority and the Authorised Officer, subject to sub-rule (3) according to which if a person other than the Government has been empowered to impose minor penalty, he will be deemed to be the Authorised Officer. As such the power to nominate an authorised officer only arose where the case was not covered by sub-rule (1) or (3) of rule 2 of the E. & D. Rules. In cases of the appellants authorities other than the Chief Secretary stood empowered as Authorised Officer under rule 2 (3) of the E. & D. Rules, 1975, read with the relevant Delega--tion of Power Rules. The appellants also argued that since the E. & D. Rules, 1975 were specific rules and the Rules of Business, 1974 being the general rules, thus the special rules must prevail. Since the Government has been defined as Government of the Punjab in the Punjab Civil Servants Act which definition has to be read with E. & D. Rules, 1975 aide rule 2 (4) and reading the same with Article 129 and Article 139 of the Cons-- titution the expression could only mean the Chief Minister or the Ministers.
16. After hearing both the parties, we are of the view that all these appeals merit to be accepted on all the grounds, except the contentions Nos. 2 and 9 ibid. In the first instance, we are amply convinced that the proceedings in this case were initiated at the instance of the Central Government who under the Scheme of the Constitution and the relevant provisions of law governing the terms and conditions of service of the appellants had no power to supervene in this manner. The Federal Government did not merely feed the incriminating information to the Pro-- vincial Government, but deputed its Joint Secretary. Establishment Divi--sion, Mr. Abdul Aziz, with the positive direction to secure compliance of the letter dated 13th October, 1976 with the stark choice to retire or remove the incumbents mentioned in the list enclosed to the letter dated 13th October, 1976. The facts on the record beamed eloquent indications that the Provincial Government in this case was just complying with the wishes of the Central Government. The White Paper issued by the Central Government which is an authoritative document and is assumed to be based on the record of the Central Government is also a distinct pointer in the same direction. The allegations were not denied that the Joint Secretary, Establishment Division (Mr. Abdul Aziz) who came over to Lahore also took part in the proceedings against the appellants held on 18th of October, 1976, which besides him was attended by the Chief Secre--tary to Government Punjab, Secretary S & GAD and the Director. Anti-Corruption Establishment, Punjab. The contention of the appellants that the action against them had been initiated at the instance of the Central Government who was not the authority in the case of the appel--lants, appears to be well founded. Since the appellants were in the service of the Province exclusively, therefore, the Central Government, under the provisions of the Constitution, or the relevant laws had nothing to do with the disciplinary measures against the appellants. Thus any directive issued by the Central Government was illegal and in excess of, the lawful authority vesting in them. We may observe that Article 149 of the Constitution did not authorise any such action. The Superior Courts of the country did not uphold the supervention by the higher authorities. The following authorities fortify our conclusion above :- PLD 1961 Pesh. 152 ; PLD 1972 Lah. 316 and 1977 PLC (C.S.T.) 99.
We accordingly hold that there had been a clear violation of rule 5 and the proceedings against the appellants were not validly initiated. Similarly, the circumstances of these cases warranted enquiry. The appellants have been able to establish before us that they had been pena--lised on the basis of the charges which either stood disproved by proper enquires held prior to 30th October, 1976, or the charges were eventually held to be baseless in consequence of departmental probes even after their retirements, except in Mubarak Ahmed's case where the proceedings were still at the investigation stage. In the circumstances, there is considerable force in their contention that if an enquiry was held and they been allowed an opportunity to defend themselves, they could have established their, innocence before the competent Authorities. We, no doubt, agree with the contention that the law allowed discretion to the departmental authorities to dispense with the enquiry, but the discretion was not entirely arbitrary. It was rather a reasonable discretion which had to be exercised) objectively. We endorse and reiterate our view" expressed in our earlier decision reported In re : Dost Muhammad v. Deputy Commissioner, Multan. We accordingly uphold this objection of the appellants also.
17. The grievances of the appellants as to the show-cause notice were equally well-founded although we do not agree with them that the same were issued by an incompetent authority, as this part of the contention is not supported by the following observations in the decision of the Supreme Court of Pakistan, PLD 1977 SC 182 at page 192 :-- no serious exception could be taken to the course adopted in the issuance of the final show-cause notice to the respondent particularly when no prejudice appears to have been caused to him which in fact is the crux of the matter. Such formalities as issuance of notice are the business of the Government to be transacted under the statutory Rules of Business framed by the President in the case of the Federal Government and also based on Constitutional source. One cannot lose sight of the practicable difficulties of the President in such matters who can hardly be expected to personally take care of issuance and service of notice which are to be regulated by the Rules of Business or in the event of delegation by such delegatee. A broad and realistic view of the matter has, therefore, to be taken."
Moreover, the grievances of the appellants that the notices were short of material details and was based on allegations which already stood disproved had also good deal of merit in it. Similarly, no justification has been made out before us by the departmental authorities for advancing the date of hearing from 3rd November (as originally fixed) to 30th of October, 1976. In the absence of any proper justification, we are not satisfied that the appellants had due opportunity to meet the charges or to defend themselves adequately. The appellants in some cases alleged that notice was served upon them on the 29th of October, 1976 which narrowed down the time margin barely to a day. We thus hold that the notice was defective which failed to disclose the grounds and the time allowed to the appellants was too short. Thus the show-cause notices failed to comply with the requirements of rule 6 (3) (a) and (b) of the E. & D. Rules, 1975 and were thus legally deficient.
Keeping in view that circumstances of the case, we are also not satisfied that the appellants had been allowed reason--able opportunity to defend themselves. In this case, the proceedings were admittedly initiated against the appellants without any charge-sheet or enquiry. As already discussed, the show-cause notice was legally deficient and short. The allegation of the appellants that they were not allowed access to the relevant material pretending the same to be secret, remained up-controverted. Similarly, there was no contradiction of the allegation that the hearing did not last for more than two minutes or so in each case. In the circumstances, it was rather difficult to accept that the appellants had been given reasonable opportunity to defend themselves. The judicial precedents relied upon by the appellants, evi--dently support their contention that in such a situation the impugned orders were void and illegal. We are inclined to accept the plea advanced by the appellants that there was practically no material against them.
We have perused the records from which it transpires that there was nothing beyond the allegations reproduced in the earlier part of this judgment, available before the authorities concerned at the time the impugned orders were passed. The appellants have adequately explained which need not be reproduced here that the allegations against them were either dis-- proved by the enquiries already concluded before the 30th of October, 1976, or the same were proved baseless, consequently. In the circum--stances, we cannot hold that there was any reasonable material available against the appellants. In fact the action was taken on wholesale basis by the Provincial Government and it is not mere co-incidence that in no case any civil servant (of Punjab Province) escaped punishment. The authorities appeared to be in an undue haste to complete the proceedings before the 30th of October, 1976. There was no denial that the impugned orders were handed over to the appellants so promptly that as if the same were lying handy even before the conclusion of the hearing. The case of five other persons similarly removed from service was considered in Writ jurisdiction by the Lahore High Court in which Mr. Justice K. M. A.
Samadani, in his reported decision 1978 NLR 302 came to the following conclusion :- The record revealed that there was indeed no material before the authorities concerned on the basis of which any of the peti--tioners could be said to have a persistent reputation for cor-- ruption.
In these circumstances, it is evident that there was no authority in the Government to retire any of the petitioners. The question is not just that the Efficiency and Discipline Rules were not followed strictly in letter and spirit. But in fact the pro--cedure adopted in these cases amounted to a mockery of the rules. It is a matter of great regret that the concerned authorities betrayed an utter disregard for the principles of natural justice as well as for the rights of the employees."
There is nothing before us to hold a different view even in the cases before us, we hold accordingly.
However, we are not inclined to agree with the other two contentions raised by the appellants. So far as the contention of factual mala fide is concerned, the same remained unsubstantiated, as none of the appellants had been able to make out a case to establish the mala fide against the Competent, Authority himself. In this regard we are inclined to agree with the learned Government Pleader that it was essential for the appellants tot allege and establish the allegations of mala fide against the Com--petent Authority himself. On the basis of the material placed before us the plea of mala fide as raised by the appellants could not be accepted in view of the dictum of the Supreme Court of Pakistan in PLD 1974 SC 151 and PLD 1977 SC 182. We respectfully follow the same and reject this plea of the appellants. Similarly, the contention of the appellants that the Chief Secretary, Punjab could not act as `Authorised Officer' in this case, is equally devoid of force.
Since it has been authoritatively laid down by the Supreme Court of Pakistan in In re : Federation of Pakistan v. Amjad Ali Mirza (PLD 1977 SC 182) that issuance of show-cause notice is certainly the business of the Government and the Rules of Business issued under Article 139 of the Constitution of Pakistan clearly authorised the delegation of such functions of the Provincial Government to its sub-ordinate officers. As such the Chief Secretary, Punjab, being the Secretary and Head of the Department by virtue of the relevant provisions of the Rules of Business was duly authorised to act as Government or on behalf of the Government in the matters specified in the Rules of Busi--ness.
Thus he could not act as Government. In view of the findings above, the controversy raised by the appellants that he could not act as `Authorised Officer' loses much of its significance. He could act even as an authority in certain matters. Similarly, the hearing granted by him was also authorised by the Notification issued in 1965 under E. & D. Rules, 1960 which was still valid by virtue of the provisions contained in' rule 19 (3) (xx) of the said rules, which was as follows :- "(3) Any person or authority or the successor of the same authorised to exercise powers by virtue of a delegation made by the Government from time to time subsisting immediately before the commencement of these rules, shall, to the extent of the powers delegated and so far as is not inconsistent with these rules, be deemed to be an authority designated under these rules."
Admittedly the final order was passed in this case by the Chief Minister, Punjab. Thus the order was finally passed by the functionary who was the authority even according to the provisions of Article 139 of the Consti--tution of Pakistan. This objection has no force. Thus the show-cause notice issued or the hearing granted by the Chief Secretary was valid. Nor we are impressed by the objection raised by the appellants that Article 139 contemplated the delegation of `functions' and not "the powers". In fact the functions and powers had been used as interchange--ables as is evident from the provisions of Article 129 itself, which describes the Government of the Province also uses the expression 'functions' and not `powers'. Thus in our opinion nothing turned upon the same. Similarly the plea of the appellants that the provisions in the earlier Constitutional documents, such as Government of India Act, 1935, Con--stitutions of Pakistan 1956, 1962 and 1972 made different provisions, is also misconceived. The closer examination of the said provisions revealed that in the Constitution of 1962, Article 80 dealt with the Authority of the Province vesting in the Governor and Article 81 dealt with the execution or the mode of authentication of the instruments. Corresponding pro--visions in 1972 Constitution could be found in Article 102 and Article 106. In 1973 Constitution the provisions had been incorporated in Article 1391 only. Thus it is a case of mere re-arrangement of the provisions and not a case of substantial change in the Constitutional provisions. The corresponding provisions contained in the earlier Constitutions have been re-enacted in one and the same Article viz. 139 only. Thus it is wrong to suggest that there is any substantial change or departure in the Scheme under the present Constitution. We are, therefore, not impressed by this, contention of the appellants. In fact, the Supreme Court of Pakistan in the authority referred to above while interpreting the present Constitution has clearly laid down that such a course was permissible. We respectfully follow the same. We accordingly repel this contention of the appel--lants.
The upshot of the above discussion is that the appeals succeed and the impugned orders are set aside with costs.