SHAFI-UR-REHMAN, J.-This appeal by a civil servant under Article- 212(3) of the Constitution has come up for examining, inter alia, the two main ques--tions of law raised by the appellant. The first concerns the Constitution and the functioning of the Service Tribunal which dismissed the service appeal filed by him. The objection being that under rule 24 of the Service Tribunals (Procedure)
Rules, 1974 the Chairman bad to be shown, and his opinion obtained, on the judgment delivered by the Tribunal. The second ground was that the appellant being a Grade 16 officer the authorised officer for taking action against him was the Secretary of the Department and not the Director of Audit Defence Services.
2. The appellant joined Defence Audit Directorate as a lower division clerk. After having qualified in the SAS examination he was promoted by the Auditor-General of Pakistan as a Grade 16 Officer. On 26-12-1975, the Deputy Director Audit, Defence Services asked for his explanation on certain charges. The Director of Audit Services thereafter gave a final show-cause notice to the appellant on 7-5-1976 giving the details of six charges and calling upon him to explain why one or more of the penalties laid down in rule 4 of the Government Servants (Efficiency and Discipline) Rules, 1973 be not imposed on him. The appellant claims to have sent a reply under postal certificate but, as a fact, it has been held that it was not received in the office or by the officer. The result was that by an order passed by the Director, Audit and in terms of rule 4 referred to, the appellant was removed from service with effect from 2-6-1976. An appeal was filed by the appellant to the Auditor-General who without affording personal hearing to the appellant substituted the order of removal from service by an order of reduction of the appellant to the next lower grade in the office i.e. Grade No. 7.
3. The appellant filed an appeal in the Service Tribunal which examined all the contentions raised by the appellant and dismissed the appeal. Two members of the Tribunal signed the order:
4. The learned Advocate on Record Mr. S. M. Abbas for the appellant took up the following grounds in support of the appeal :-
(i) There was non-compliance with rule 24 of Service Tribunals (Procedure) Rules, 1974 is so far as the Chairman of the Tribunal was not shown the order nor his opinion was got recorded. This, according to the learned counsel, vitiated the order of the Tribunal ;
(ii) The appointment of the appellant as Grade 16 Officer having been made by the Auditor- General, the Director of Audit had no authority to inflict any departmental punishment on the appellant.
(iii) The show-cause notice, the charges or the statement of allegations at no stage indicated to the appellant the specific penalty or the action proposed to be taken against him. It was generally stated to be one of the penalties enumerated in rule 4 of the (Efficiency and Discipline) Rules in which were included the minor as well as the major penalties, and a number of them under both the heads.
(iv) The departmental appeal was disposed of by the Auditor-General without personally hearing the appellant and as such adequate opportunity to show cause was not afforded to him.
5. It is a matter of considerable regret that the learned counsel for the appellant has raised the first two legal grounds, which are expressly mentioned in the leave granting order, in the absence of an up-to-date study or knowledge of the law applicable to the case. By Ordinance No. X of 1978 (Service Tribunals Amendment Ordinance, 1978) section 3-A was added on 18-3-1978. It enabled the Tribunal to function in Benches consisting of not less than two members of the Tribunal as constituted by the Chairman. We were shown the orders passed by the Chairman constituting the Tribunal which decided the matter. The amendment being already in the field on 18-3-1978 the decision suffered from no such infirmity as may be referable to rule 24 relied upon by the learned counsel for the appellant.
6. We also find that the delegation of powers for the purposes of (Efficiency and Discipline) Rules on which the appellant relied related to Government Servants employed in the Central Secretariat.
The appellant was admittedly not one employed in the Central Secretariat. He was employed in a subordinate office. The delegation of the powers or the designation of the Authority or Authorised Officers under the (Efficiency and Discipline) Rules in respect of the appellant is contained in the Government order dated 5-7-1974. In respect of Grade 16 SAS Accountants, which the appellant happened to be, Head of the Department in Grade 19 or 20 was declared as an Authority and Head of the Department in Grade 19 or 20 was declared the Authorised Officer. As in the present case the orders challenged by the appellant were passed by the Head of the Department as defined in Fundamental Rule 10, Appendix 14 and he happened to be a Grade 20 officer he was possessed of the necessary powers to deal with the appellant. In the Department and before the Tribunal the contention of s the appellant was that as his appointment had been made by the Auditor General the same authority should have dealt with him and not anyone subordinate to him. This line of argument omits to take note of the delegation of powers for the purposes of (Efficiency and Discipline) Rules under which the action was taken.
7. It is true that the specific penalty sought to be imposed was not indicated in the notice calling for the explanation or in the charge-sheet. The rule providing the penalties was referred to. The object was at that stage to elicit a reply to the charges with a view to arrive at their correctness or otherwise. The specific penalty could be determined only when the proved charges were known. In the very process of determining the correctness of the charges, the specific penalty could not be decided upon even provisionally for it would have been premature. The attention of the, appellant was drawn to the rule prescribing the various penalties. He had full notice of it. The penalty imposed was one of these which could appellant was thereby in any manner imposed. We do not find that the appellant was thereby in any mannerprejudiced.
8. As regards the personal hearing in appeal, we find that the departmental appeal filed by the appellant was decided on 21-10-1976, that is before the enforcement of the Civil Servants (Appeal)
Rules, 1977. It had, D therefore to be decided in accordance with Civil Services (Classification, Control and Appeal) Rules, 1930. Under rule 63 "every appeal preferred under these rules shall contain all material statements and arguments relied on by the appellant", and was required to be "submitted through the head of the Office to which the appellant belongs or belonged". Under rule 64 an Appeal could be withheld on certain grounds. Rule 66 required that "every appeal which is not withheld under these rules shall be forwarded to the appellate authority by the authority from whose order the appeal is preferred with an expression of opinion". In rule 59 the duties of the appellate authority are prescribed in the following words :- "In the case of an appeal against an order imposing any penalty specified in rule 49, the appellate authority shall consider-
(a) whether the facts on which the order was based have been established ;
(b) whether the facts established afford sufficient ground for taking action : and
(c) whether the penalty is excessive, adequate, or inadequate and aftersuch consideration shall pass such order as it thinks proper."
9. These provisions of the Appeal rules by necessary implication excluded a right of personal hearing. Such could be the effect consistently with the requirement of principles of natural justice, as held in the case of Abdul Latif Niazi v. Government of West Pakistan (PLD 1967 SC 62).
10. On none of the grounds the appeal has any merit. It is dismissed. No order as to costs.