1. M. SALEEM CHAUDHRY (CHAIRMAN).-In this appeal instituted on 4-5-1976 the appellant was a permanent Senior Clerk in the office of Deputy Commissioner, Lyallpur and was transferred under the direction of the Board of Revenue, Punjab by the Commissioner Sargodha Division to the Office of Deputy Commissioner, Mianwali from where he was dismissed on the charge of willful absence from duty. The transfer of the appellant was effected on the ground that during the audit inspection by the Audit Officer (Colony Branch), Board of Revenue, Punjab of the Office of Assistant Commissioner, Jaranwala whore the appellant had been working for some time, revealed some embezzlement as a result of which certain enquiries were instituted against Abdul Haq and others.
2. On 18-12-1973 the Board of Revenue Punjab issued a directive to the Commissioner, Sargodha Division to transfer the appellant from the Office of Deputy Commissioner, Lyallpur to the Office of Deputy Commissioner, Mianwali to facilitate enquiry. In compliance with this directive the Commissioner Sargodha Division on 4-3-1974 ordered the transfer of the appellant to Mianwali in place of Mr. Anwar Hussain Tirmazi, a clerk of the Office of Deputy Com--missioner, Mianwali. The appellant was accordingly relieved on 7-3-1974 from Lyallpur, but he failed to join at Mianwali and instead represented that if he joined at Mianwali there was serious apprehension of his being murdered. He accordingly applied for leave which appears to have been rejected. However he was found present in that High Court premises on 4-3-1974 and was assumed to be assisting Mr. Abdul Haq in obtaining bail in embezzlement case. On the failure of the appellant to join at Mianwali an enquiry was initiated against him on 8-6-1974 and Malik Mumtaz Ahmad, Extra-Assistant Commission-.r was appointed Enquiry Officer under rule 6 of the Efficiency & Discipline (Rules), 1960. The aforesaid Enquiry Officer was transferred before he could conclude the enquiry and Mr. Mohammad Javaid Gill another Assistant Commissioner was appointed as Enquiry Officer who submitted the Enquiry Report on 20-2-1975 holding the appellant guilty of wilful absence. The appellant was served with a show-cause notice for major penalty by the Deputy Commissioner, Mianwali on 20-4-1975. He replied to the show-cause notice on the 13th of May, 1975 treating his inability to join at Mianwali. Ultimately the Deputy Commissioner Mianwali on 2-6-75 after hearing the appellant dismissed him from service. The appellant filed a Writ Petition No. 1587/8/75 which was rejected on the ground that the appellant had adequate alternate remedy by way of departmental appeal. The appellant accordingly preferred an appeal to the Commissioner Sargodha Division against his dismissal which was rejected on 20-1-1976. After rejection of the departmental appeal he again moved the High Court in Writ Petition No. 514/5 of 1976 which was declared as incompetent as the remedy lay before this Tribunal by a statutory appeal under Punjab Service Tribunal Act, 1974, hence the present appeal was filed before us on 4-5-1976.
3. The appellant in the first, instance contended before us that the Deputy Commissioner, Mianwali was not competent to pass the order in question as the appellant was a permanent employee of the Office of Deputy Com--missioner, Lyallpur. He being the holder of District Cadre post his lien remained in the aforesaid office and only Deputy Commissioner Lyallpur was the competent authority to take action against him, if any. Reliance was placed in this behalf upon the instructions issued vide letter No. SC H I (S&GAD)/15-8/9, dated 17-11-1969 by the Additional Chief Secretary to the Government of West Pakistan to all Commissioners and Deputy Commissioners in West Pakistan which dealt with the transfer of ministerial staff within the Division. The following extract from the letter was relied upon in particular "(1) It was decided that the Commissioners any be given powers to transfer members of the ministerial staff from one district to another on temporary basis. Since the Ministerial cadre of each district is separate and a member of one cadre is not transferable to another, as such transfer should only be ordered in very rare cases. The transfer should be in public interest, where it is not possible to post an official within his own District.
(2) the persons transferred under these instructions will continue to be borne on the parent cadre and will be considered on deputation so long as they remain outside their home districts. They will only be eligible for promotion to the vacancies occurring in their home districts."
4. On the basis of aforesaid instructions it was vehemently argued that the appellant was to be treated on deputation in District Mianwali and the major penalty, could be imposed upon him only by him parent Office, i.e. Deputy Commissioner, Lyallpur. The appellant also argued that his transfer to District Mianwali was totally unwarranted that in any case he was not involved in the matter at all as subsequently he had been exonerated altogether. It was also argued that he apprehended fatal injury to his very existence and it was because of the aforesaid danger that he did not join at Mianwali and the authorities had failed to appreciate the plight of the appellant. The appellant also submitted before us that on 7-5-1975 the Board of Revenue had directed the re-transfer of the appellant to his parent office as by that time he had been exonerated of his com--plicity in the embezzlement charge. He has placed on record the letter dated 9-5-1975 issued by the Secretary (Colonies) Board of Revenue, Punjab in which it was stated that the appellant was not involved in the embezzle--ment and therefore Board of Revenue had no objection if he is transferred back to Lyallpur. The appellant also placed on record the letter dated 7-6-1975 issued in continuation of the aforesaid letter which was to the following effect : "(1) Member (Colonies), Board of Revenue is pleased to order that Messvs Mohammad Rafique Shah, Senior Clerk and Bashir Ahmad Junior Clerk originally belonging to Deputy Commissioner, Lyallpur's office who were transferred to Mianwali and Jhang respectively, should be transferred back to their parent office immediately;
(2) All enquiries instituted against Mr. Mohammad Rafiq Shah should also be transferred to Deputy Commissioner, Lyallpur who is his competent authority in service matters."
5. The contention of the appellant was that the order of dismissal passed by Deputy Commissioner, Mianwali and the Commissioner, Sargodha Division were in clear violation of the above directions of the superior authority who had directed his transfer and the transfer of enquiries to Deputy Commissioner, Lyallpur. With this submission the appellant pressed for the acceptance of this appeal.
6. Mr. A. G. Hamayun, the learned counsel for the respondent argued that the appellant was liable to be transferred anywhere in West Pakistan and in view of the provisions contained in rule 10 of the West Pakistan Revenue Ministerial Establishment Rules, 1964, the transfer of the appellant to Mianwali was justified. He also argued that there was sound ground for his transfer inasmuch as the enquiries involving serious charges were pending against him. He further argued that after the transfer according to the letter No. S O R I (S&GAD) 7-47/69 dated 15-8-1972 issued by the Secretary by the Government of the Punjab, S&GA Department, the authority who exercised the administrative control over the civil servant at the relevant time, was competent to institute and take disciplinary action against him and he will have to be deemed to be the authority competent :o act whether the change has come about by the transfer of the authority or that of the accused.
7. He thus argued that in view of the aforesaid instructions the Deputy Commissioners, Mianwali was evidently competent to institute an enquiry and take action against the appellant. He further pointed out that the absence of the appellant from Mianwali without any concrete evidence as to apprehension of being murdered appears to be imaginary and a pretext to persist in his unauthorized absence. He also argued that the conduct of the appellant has been objectionable inasmuch as he failed to appear before the Enquiry Officer despite repeated directions. With regard to the retransfer orders issued by the Board of Revenue on 9-5-1974 and 7-6-1975 respectively the Government Pleader argued that the first order was sort of `no objection' and was not really an order of transfer and 2nd order was issued on a date when the appellant was no longer in service. With these submission he argued that the appeal had no force and merited to be rejected.
8. After hearing both the parties we have no doubt in our mind that the Deputy Commissioner, Mianwali was not competent to take action it, this case. No doubt the appellant was liable to transfer as argued by the Government Pleader but after the transfer the status of the appellant was governed by the instructions issued on 17-11-1969 which specifically related to the situation in hand. According to the instructions aforesaid the appellant had to be treated on deputation. He being a permanent hand his lien continued to be retained in District Lyallpur and therefore Deputy Commissioner, Lyallpur was the only competent authority to impose the major penalty against the appellant. In our view the letter, dated 17-11-1969, governed the case of the appellant. The letter dated 15.8-1972 as relied upon by the Government Pleader was inapplicable in this case. The aforesaid letter related to the situation where the civil servant was transferred from the jurisdiction of one competent authority to the jurisdic--tion of another competent authority during the subsistence of the Departmental proceedings against him. The aforesaid letter proceeds upon the assumption that both the authorities equally had the jurisdiction and the only question was as to whether the proceedings already instituted should be continued by the same authority or should be transferred to the other authority. Presumably there was no dispute as to their powers to take disciplinary action against the civil servant concerned. There could be many illustrations that where as incumbent was holding a post in the Divisional cadre but under the delegations of power Rules, the District Head was the authority empowered to take action against him and during the pendency of the proceedings if he were to be transferred from one District to another, in that situation the letter in question provides guidance namely that the authority which initiated the disciplinary proceedings can, rather should, carry them to the finalization and impose the punishment even if during the course of disciplinary proceedings the accused has been transferred to the jurisdiction of another authority of the same rank and and status. However, the situation may be different in case of a person promoted to a higher rank in which it was directed that the new authority must initiate the disciplinary proceedings afresh. The case in hand is different inasmuch as the appellant was holding permanently a District Cadre post and in his case even after his transfer to ex-District the Deputy Commissioner, Lyallpur alone continued to be the competent authority.
9. In view of our findings above the order passed by the Deputy Com--missioner, Mianwali is without jurisdiction and is a nullity and is therefore quashed. Likewise the order of the then Chairman is also set aside.
10. In view of our conclusions above, we do nest feel inclined to express any views on the rest of the contentions raised before us. Consequently the appeal succeeds and is accepted.