1. M. SALEEM CHAUDHRY (CHAIRMAN).------In this case Muhammad Sharif ex-Patwari, is aggrieved of the order of Collector/Deputy -Commissioner and Commissioner, .Lahore Division and Member Board of Revenue, Punjab, dated 18-12-1975, 12-6-1975, 8-7-1975 and 11-12-1975, respectively, removing the appellant from service. Briefly the facts of the case are that the appellant was employed as Patwari in Tehsil Qasur and was proceeded against on the following charges: "(1) That on 22-8-1966 the Additional Deputy Commissioner, ordered the cancellation of allotment of land from the names of Sharfu and Sher Din sons of Saudagar in Khatas Nos. 275 and 276 of village Sindhu of Tehsil Chunian. The said land was allotted to Muhammad Ibne Ali Alvi on 5-10- 1966 but this order was not implemented in the record without any cogent reasons and ultimately this order was implemented in March, 1969.
(2) That the Collector, Lahore vide his order dated 7-3-1967 directed the review of Mutations Nos.
2. 461 and 462 of village Sindhu Tehsil Chunian, District Lahore. This order was received by him on 25- 4-67, but instead of taking any action on the said order, he ignored the same and entered Mutations Nos. 474 and 475 in respect of the land in dispute on 27-4-1967 and got favourable reports from the girdawar and the A. C. O.
(3) That he also received the orders of the High Court on 25-4-1967 for maintaining status quo in respect of the said land but he did not enter these orders in the Roznamcha till 2-5-1967 and ignoring Nos. 474 and 475 on 27-4-1967."
3. The reply filed by the appellant to the charge-sheet having been considered unsatisfactory, it was decided to institute an inquiry against the appellant. In enquiry held against him 14 witnesses were examined in support of the allegations levelled against him. The Inquiry Officer reported that the charges were proved. After the receipt of the enquiry report the appellant was served with a show- cause notice dated 10-3-1973, for a major penalty, provided in the E & D Rules, 1960. On receipt of his reply and after hearing the appellant in person, the Collector/Deputy Commissioner, Lahore, vide his order dated 18-3-1975, decided to remove the appellant from service. The appellant filed an appeal before the Commissioner, which appears to have been heard by Malik Jehangir Khan, Additional Commissioner (Revenue), Lahore Division, who dismissed the same on 12-6-1975. Further the appeal to the Board of Revenue was rejected on 8-7-1975 by Member Board of Revenue, Mr. M.
4. S. Chaudhry, holding that no appeal or revision against the order of Additional Commissioner, was competent under the E & D Rules. He further observed that there was no irregularity in the proceedings of the lower Court nor there was any miscarriage of justice. He accordingly observed as under :- "This is a revision petition against the order dated 12-6-1975 passed by the Additional Commissioner (Revenue), Lahore, whereby he dismissed the appeal preferred by the petitioner against his removal from service while working as a patwari of village Sindhu, Tehsil Chunian, District Lahore.
2. The Board of Revenue, Delegation of Powers Rules, 1958 do not provide for any appeal/revision against the order of the Additional Com--missioner (Revenue) in service cases involving a patwari.
5. In the present case the petitioner has already been heard in appeal by the Additional Commissioner (Revenge), Lahore. The inherent revisional jurisdiction of this Court can be invoked only in very special cases, where there is an illegality, material irregularity or manifest failure of justice patent on the face of it.
3. I have heard the counsel for the petitioner, examined the record and have also considered the contents of the revision petition, I find no illegality or irregularity in the proceedings of the lower Courts. Nor is there any miscarriage of justice in this case.
4. For the reason stated above I decline to interfere with the orders of the lower Court. The petition is, therefore, dismissed.
6. KHALID FARUQ (MEMBER).------A further Review petition was moved which was also rejected on 11-12-1975 on the ground that nothing new was put forth which had not already been considered.
7. He accordingly rejected the review petition. Ultimately the present appeal was filed before this Tribunal by the appellant on 14-1-1976. The Departmental Representative has raised a prelimi-- nary objection that the order passed by the Additional Commissioner, Lahore Division on 12-6-1975, being final in terms of section 4 of the Punjab Service Tribunal Act, the appeal filed on 14-1-1976, was clearly time-barred and the subsequent petition filed by the appellant to the Board of Revenue on 15-7-1975, did not save the limitation.
8. The learned counsel for the appellant filed an application under section 5 read with section 12 of the Limitation Act which contained the contention that the petition dated 5-7-1975, preferred before the Board of Revenue, was in fact a representation under rule 14.18 of the Civil Service Rules, Vol. I, Part I which right was still available to the appellant not--withstanding the provisions contained in the West Pakistan Government Servants E. & D. Rules, 1960, in which the appellant was proceeded against. He also placed original representations photostat copy as made to the Board of Revenue. The learned counsel also raised the contention that the Additional Commissioner (Revenue) had no powers to dispose of the appeal which was made to the Commissioner and his order was without jurisdiction. The appeal filed by the appellant was still pending before the Commissioner, Lahore Division. Thus the order of the Additional Commissioner and the consequent order of Member Board of Revenue being without any jurisdiction, there was no question of limitation. Reliance was placed in this behalf on the decision of the Lahore High Court reported as PLD 1970 Lah. 6 which was to the following effect "In some circumstances, in spite of the fact that prima facie the appeal would appear to be time- barred, the Appellate Authority can entertain and decide it on merits."
9. He placed before its the Delegation of Power Rules, 1958 relating to the B. O. R. According to Entry No. 24, the Commissioner is the Appellate Authority and not the Additional Commissioner. He also invited our attention to the entries appearing against items Nos. 16, 17 and 18 where the Additional Commissioner (Consolidation) has been expressly shown as the Appellate Authority. Thus the appellant endeavoured to show that the Additional Commissioner (Revenue) having no special powers in the Delegation of Power Rules, as Appellate Authority could not decide the appeal. His order was, therefore, nullity in law and merited to be ignored. The learned Government Pleader submitted that so far as the representation in terms of e rule 14.18 of the Punjab Civil Servants, Act was concerned the same was misconceived. In the first instance, his contention was that it was not applicable. He relied upon the text of the rule which was to the following effect: "14.18. The Government or the head of a Department may call for and examine the records of any case in which a subordinate authority has inflicted any of the penalties specified in rule 14.10 or in which no penalty has been inflicted and after making further investigation, if necessary, may confirm, remit, reduce or, subject to the provisions of sub-clause (1) of rule 14.15, increase the penalty or subject to the provisions of rule 14.13, inflict any of the penalties specified in rule 14.10. (xi)
10. Prohibition as to collective appeals."
11. He also submitted that after the promulgation of the West Pakistan Govern--ment Servants (E & D)
12. Rules, 1960 the aforesaid provision was no longer applicable to the departmental appeals by Government servants and in fact the same was superseded. The learned counsel referred the following observations in Sh. Muhammad Nawaz v. Secretary, Irrigation & Power Deptt., Govern-- ment of Baluchistan (PLD 1973 Quetta 14): "6. It may also be pointed out that the rules of the various integrating Units of the Province of West Pakistan relating to departmental inquiries, the penalties that may be imposed therein and rights of appeal and review were superseded and replaced in 1960 by the Disciplinary Rules. It was under the latter rules that proceedings were taken against the appellant and penalty of dismissal awarded to him by the Chief Engineer. It is, therefore, not permissible to have resort to or place reliance on rules which in the first place did not apply to the petitioner and which in any case stood superseded when the proceedings against him were taken and the two impugned orders passed by the Secretary, Irrigation. The Disciplinary Rules, while providing for appeal against an order imposing a penalty, do not confer any powers of revision."
13. As regards the contention of the appellant that the Additional Commissioner had no power to dispose of his appeal, he relied upon the definition of Commissioner appearing in West Pakistan Land Revenue Act No. XVII of 1967 according to which Commissioner includes Additional Commissioner for the purpose of Land Revenue Act. Similarly the definition of the Commissioner contained in section 2(17) of the West Pakistan General Clauses Act of 1956, was also relied upon.
14. After hearing both the parties we are clearly of the view that the objection raised by the learned Government Pleader could not be allowed to prevail for the reason that in our view the Additional Commissioner (Revenue) was not empowered to hear the service appeals of the revenue staff against the orders of the Collector concerned. It is a common case that the imugned order in this case was passed by the Collector, Lahore District, under the West Pakistan Government (Efficiency and Discipline) Rules, 1960, who had been empowered as the authority competent to impose major penalty under the Board of Revenue Delegation of Power Rules, 1958 by the Governor of West Pakistan. Both the Efficiency and Discipline Rules, 1960 and the Board of Revenue Delegation of Power Rules have been framed in pursuance of the Presidential Proclamation of 17th October, 1958 and Article 6(3) of the Laws (Continuance in Force) Order, 1958. The Commis--sioner of the Division has been nominated as Appellate Authority in Column No. 5 of the relevant Delegation of Powers Rules. No doubt, the Land Revenue Act. 1967 defined Commissioner to include the . Additional Com- -missioner but the appeal against the order of the Collector concerned by the aggrieved Government servant, was not to be preferred under the Land Revenue Act. The provisions in this regard were to be found in the Government Servants (Efficiency and Discipline) Rules read with Delegation of Power Rules. Rule 16 of the aforesaid Rules provided as under :- "These rules supersede all existing rules and instructions in regard to matters dealt with under these rules, and in particular the following rules in their application to the Government servants. . . : '
15. Admittedly the delegation of power did not mention Additional Commissioner as Appellate Authority. Thus, the Additional Commissioner (Revenue) c notwithstanding the definition contained in the Land Revenue Act, could not act as the Appellate Authority is the matter of service appeals.
16. Similarly, the definition of the Commissioner contained in subsection (2)(17) of the General Clauses Act, 1956 which purported to include the Additional Commissioner was also of no avail to the respondent inasmuch as the General Clauses .Act did not apply to the construction of the Rules as laid down in In re : Chaudhry Salah-ud-Din, M. N. A. v. Haji Ghulam Muhammad Cheema etc. (PLD 1957 Lah. 728). The following observations made by the Division Bench of the Lahore High Court support the view:--- "We do not think that we should be guided for the interpretation of this word by the General Clauses Act, because that Act applies to the phraseology used in other Acts and not in Rules."
17. In the aforesaid decision, the question related to the interpretation of rule 46 of the Punjab District Board Rules, 1952. Following the above authority we are of the view that even the definition of the Commissioner in the General Clauses Act did not empower the Additional Commissioner (Revenue) to hear the service appeals. On the other hand, we find good deal of force in the contention of the appellant that the provisions for empowering the Additional Commissioner as Appellate Authority under the relevant Delegation of Power Rules had to be made expressly as in the case of Additional Commissioner (Consolidation) vide Items Nos. 16 and 17(b) of the Board of Revenue Delegation of Power Rules, 1958. We, therefore, hold that the Additional Commissioner (Revenue) was never empowered to hear the appeals. As such the appellate orders passed by him were without jurisdiction. Since the orders passed by the Additional Commissioner were without jurisdiction, therefore all subsequent orders passed by the Commissioner and Board of Revenue were void ab initio and were nullity in the eye of law. In view of our findings above, the objection as to limitation raised by the learned Government Pleader loses its significance as held in PLD 1970 Lah. 6.
18. The upshot of the above discussion is that the appeal is allowed and the case is remanded to the Commissioner, Lahore Division for disposal on merits. However, there will be order as to costs.