KHALILUR RAHMAN KHAN, J.-Abdul Majid Khan, Assistant Director (Mineral Development), Directorate of Industries and Mineral Develop--ment, Government of the Punjab, Lahore, was placed under suspension under the order of Secretary Industries dated 28-6-1.980 in pursuance of a complaint filed by one Muhammad Sarwar who is stated to be maternal-uncle of the wife of the petitioner.
The Secretary, Industries under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, hereinafter to be called `the Rules' authorised the Director, Industries, Lahore, to act as Authorised Officer and directed him in terms of rule 5 of the Rules to proceed against the petitioner. The Director, Industries (Authorised Officer) vide order dated 7-10-1980 (Annex. F) with the writ petition appointed Mr. Muhammad Siddique Chaudbry, Deputy Director (Supply) as Enquiry Officer under Rule 6(2) of the Rules to enquire into and conduct proceedings in respect of the allegations levelled against Abdul Majeed Khan, petitioner, in the charge-sheet already served on him. The Enquiry Officer submitted to the Director, Industries, the Authorised Officer his report with the finding that the prosecutiorf has not been able to substantiate its allegations. The Authorised Officer, however, remitted the inquiry to the Enquiry Officer for recording the evidence which was not earlier produced by the prosecution before him as be was of the view that full evidence with regard to Charges Nos. 1, 2, 3, 4(a), 5(i)(ii)(W) as mentioned in the charge-sheet was not produced. The Enquiry Officer, therefore, vide memo. Dated 28-2-1981 required the petitioner to appear before him and to join the inquiry on the date fixed.
2. The petitioner, feeling aggrieved of the order passed by the Authorised Officer directing the Enquiry Officer to hold further inquiry into the matter of alleged misconduct of the petitioner and the orders of suspensions passed from time to time, has challenged the same in this constitution petition. As regards the grievance pertaining to suspension from service, it will be noted that first order of suspension was passed on 28-6-1980 and then the period of suspension was extended from 26-9-1980 to 27-12-1980 by issuing an order on 24-11-1980. Thereafter another order dated 8- 8-1981 was passed whereunder the period of suspension was extended for the consecutive periods of three months each. The first three months covered the period from 28-12-1980 to 27-3-1981 the second period extended from 28-3-1981 to 27-6-1981 and the third period mentioned in the order covered the period from 28-6-1981 to 27-9-1981. The suspension period so extended has been called into question and the plea of the petitioner was that the suspension ordered in the above manner is illegal being violative of the provisions of rule. E(1) of the Rules. It was further argued that under rule 6(1) of the Rules, no extension of the suspension period can take place by issuing orders having retrospective effect. In other words the contention was that no extension of the suspension period can take place by issuing an ex post facto order. Reference was made to Mian Munawar- ud-Din v. The Federation of Pakistan (1). Learned counsel further argued that Secretary, Industries was not competent either to pass order of suspension or to authorities and designate Director of Industries as "Authorised Officer" to take disciplinary action as required under rule 5 of the Rules as Governor, Punjab is the Authority under the Rules in the case of the petitioner as he is holding a post in Grade 17. It was empbasised that the order authorising the Director as Authorised Officer should have been passed by the Governor himself and not by the Secretary of the Industries Department. Reliance was placed on Province of Punjab through Chief Secretary v. Sardar Abdul Rehman Khan Durrani (2). Lastly, it was argued that the power to remand the inquiry does not vest under the Efficiency and Discipline Rules, 1975 in the Authorised Officer as he is authorised to perform only those functions which have been prescribed and specified in the Rules themselves and that the power to remit the inquiry for further proceedings cannot be spelt out from any of the Rules. In support of this plea reference was invited to rule 15 and it was. Contended that the power to direct further and fresh inquiry has been given to the appellate authority only. It was asserted that if the rule-maker had intended to give this very power to the Authorised Officer, the mention of the same could easily be made in sub-rule (8) of rule 7 of the Rules.
3. I propose to take up first the question whether the orders of suspension as well as the order appointing the Director, industries as Authorised Officer passed by and issued under the signatures of the Secretary, Industries and Mineral Development, Government of Punjab were made competently and were legal and valid. According to the learned counsel for the petitioner all these orders were incompetent as Governor Punjab and not the Secretary of the Department was the "Authority" competent to pass such orders in respect of a civil servant holding a post of Grade 17.
Learned counsel was further of the view that the orders of the kind impugned herein to be competent and valid in law are to be passed by the Governor personally. This submission has no substance as under the Punjab Government Rules of Business, 1974 (See rule 5(2)], the matters which are mentioned in Part A of Schedule VII to the Rule require the approval of the Chief Minister (now Governor) and that the matters mentioned in Part B of the same Schedule are to be submitted for information of the Chief Minister (now Governor). The other matte including the one in hand are not to be referred to him at ail as these matters are to be dealt with and disposed of by the Secretary of the con--cerned Department. Moreover, rule 11(2) of the Business Rules provide that "save in cases where an officer has been specifically empowered to sign an order or instrument of Government, every order or instrument shall be signed by the Secretary . . . . . . . . . And such signature shall be deemed to be proper authentication of such order or instrument." At this stage, definition of `authority' given in the Efficiency and Discipline Rules, 1975 may be noticed. Rule 2(b) of the Rules defines the word "authority" as the Government or an officer or authority designated by it to exercise the powers of the authority under these Rules.
It will, therefore, be seen that authority tinder the Rules does not mean the Governor of Punjab. It is the Government or an officer or authority designated by the Government to exercise the powers of the authority.
(1) PLD 1979 Lah. 699(2) PLD 1979 SC 711 The Secretary of the Industries Department in view of the position obtaining under the Rules of Business, was competent to act as Government and ash such was the authority under the Efficiency and Discipline Rules, 1975 qua the petitioner.. In case of Abdul Rehman Khan relied upon by the counsel for the petitioner, it was held that the Government of West Pakistan was the authority competent to dismiss a Deputy Superintendent of Police and the Chief Secretary which term included the Additional Chief Secretary being the head of the Services and General Administration Department represented the Government of West Pakistan and as such could deal with the disciplinary cases of this type. It was further observed by the learned Judges of the Supreme Court that the charge-sheet in the precedent case the draft whereof was vetted and approved by the Additional Chief Secretary was thus authorised by a competent authority on the subject. Resultantly the orders issued under the signatures of Secretary, Industries, Government of the Punjab, suspending the petitioner and designating Director, Industries, as Authorised Officer under the Efficiency and Discipline Rules, 1975 were competently made and issued. The appointment of Enquiry Officer by the Director in his capacity as Authorised Officer was also valid and legal. This brings me to the second point regarding legality of the order passed by the Authorised Officer directing the Enquiry Officer to record further evidence in respect of the allegations contained in the charge-sheet. The arguments addressed in support of the point have been noted above. The submission precisely was that according to the Scheme of the Efficiency and Discipline Rules, the Authorised Officer is to perform only those functions which have been detailed in the Rules themselves and as such any power which does not vest in him under the Rules cannot be allowed to be exercised. This submission again is without merits. Firstly, on principle mere omission cannot give rise to an inference of prohibition as every procedure is not to be taken to be prohibited unless it is expressly so provided as otherwise grave injustice will result in many cases, if from any such omission alone, a prohibition is spelt out. The accepted principle in this respect is that every procedure which advances and furthers administration of justice is permissible even if there is no express provision permitting the adoption of the same. Secondly the findings of an Enquiry Officer are neither final nor binding as was held in Shafqat Mahmood Lodhi v.
The Accountant --General of West Pakistan PLD 1968 Lah. 786. Relevant observations made are quoted hereunder :- "There is no provision making the findings of the enquiry officer final and, indeed, any such provision would be derogatory to the provision of the Constitution which constitutes the appointing authority as the punishing authority. To hold the findings of enquiry officer to be final would-be tantamount to substituting the enquiry officer for the appointing authority to decide whether or not to punish the delinquent servant. Furthermore, whenever, it is intended to forbid fresh enquiry or trial on the same facts, an express prohibitory provision is invariably made. Section 403 of the Code of Criminal Procedure, 1898, and section 11 of the Civil Procedure Code, 1908 are instances in point.
Conversely, it is well established that in the investigation of criminal offences, there is no legal limit to the number of investigations which can be held into a crime and when one has been completed by submission of a report under section 173, Cr. P. C. Another may begin on further information received."
Thirdly, it was pointed out that the Governor of the Punjab vide Notification No. SORI (S & GAD) 1- 71/1978, dated 26-2-1979 amended rule 7(8) of the Efficiency and Discipline Rules, 1975 and the provision added to the existing sub-rule (8) of rule 1 reads as under :- "In case it is proposed to drop the proceedings initiated with the prior orders of authority the authorised officer shall submit the case with all relevant material/documents to the authority for appropriate orders."
Mr. Khalil Ramdey, Assistant Advocate-General on the basis of the amended rule submitted that with this amendment no scope is left now to argue that the Enquiry Officer cannot be directed to hold further inquiry in the matter on account of any alleged omission in the unamended sub-rule
(8) of rule 7 of the Rules. The Authorised Officer under the sub-rule as it stands after amendment cannot himself drop the proceedings even if he comes to the conclusion that the charges levelled against a delinquent Civil Servant -have t not been substantiated before the Enquiry Officer. The power to determine whether the allegations have been proved at the first instance vests in the Authorised Officer. In case the charge, in his opinion, stands established and if further it is proposed to impose the minor penalty he is authorised to pass order accordingly. However, if it is proposed to. Impose a -major penalty the case is to be forwarded to the authority with his own recommendation regarding penalty to be imposed along with the record mentioned in the sub- rule. The amendment introduced seems to be in accord with the Scheme of the Efficiency and Discipline Rules as the direction to proceed against a civil servant is to be passed by the authority after framing the opinion that there are sufficient grounds for proceeding against the civil servant.
The Authorised Officer is thus an agent acting under the direction of the authority and as such he cannot overrule the authority by himself dropping the discipli--nary proceedings without reference to the authority in whom otherwi3e vest the power to initiate disciplinary action against a civil servant and on who direction he was acting in the matter. The Authorised Officer while determining the question whether the charges levelled had been proved or not can, in my view, consider the question whether the Enquiry Officer appointed by him to collect the evidence has proceeded with the inquiry properly or not' or whether in the circumstances of a case, matter requires further probe. This power has to be conceded as the whole object of initiating is to maintain purity of public service in the highest public interest. By ordering collection o further material against the petitioner no prejudice was caused to the petitioner especially when it was not the case of the petitioner that the direction to collect further material and record further evidence was male fide or was actuated by any ulterior motive or malice. In the absence of any such allegation no valid objection can be taken to the impugned direction. For all these reasons, I hold that the plea of the petitioner that the action of the Director, Industries (Authorised Officer) directing the Enquiry Officer to hold further inquiry in the matter, has no substance.
Now the submission in respect of extension of suspension period may be attended to. It will be recalled that first suspension order was passed by the Secretary, Industries on 28-6-1980 suspending the petitioner from service for three months. This suspension period expired on 27-9- 1980. The next order was passed on 24-11-1980 extending the period of suspension from 26-9-1980 to 27-12-1980. Thereafter, order was passed on 8-8-1981 by the Secretary, Industries whereby the suspension period was extended up to 27-9-1981. These two extension orders were passed by the Secretary, Industries in purported exercise of power given by rule 6(l) of the Efficiency and Discipline Rules, 1975. The rule referred reads as under:- "In case where a civil servant is accused of subversion, corruption or misconduct, the authorised Officer may require him to proceed on leave, if due, or, with the approval of the authority, suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months."
This rule lays down that any continuation of the suspension shall also require approval of the authority after every three months. It is, therefore, clear that rule 6(1) talks and provides for the power exerciseable by the Authorised Officer and not that of the authority. It further provides that the question of extension of suspension period is to receive the attention of the authority after every three months. This approval of the authority] to the continuation of the suspension is also to precede the issuance of the) order extending suspension period by the Authorised Officer as is held in th4 case of Mian Munawar-ud-Din. No doubt the Government as employer of a civil servant has plenary powers to order suspension yet the Punjab Civil Servants Act determines the limits and the mode of exercise of these powers. Section 15 of the Punjab Civil Servants Act, 1974, provides that a civil servant shall be liable to such disciplinary action and penalties and in accordance with such procedure as may be prescribed. The Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, prescribe the procedure according to which the disciplinary action is to be taken and the penalties are to be provided. The matter of suspension of the civil servant proceeded against under the said rules has also been provided and therefore any action taken in violation of the statutory rules cannot be upheld. In the instant case though no objection can be taken against the order dated 28-6-1980 whereby the petitioner was suspended from service for a period of three months but the two orders later passed one on 24-11-1980 and the other on 8--81981 were apparently passed in violation of the spirit and the scheme of Efficiency 'and Discipline Rules. These Rules provide that the question of continued suspension of the civil servant is to receive the attention of the Authorised Officer as well as the "Authority" periodically in the light of the exigencies of the service discipline and the progress made at enquiry. It is for this reason that suspension from service is not treated as a penalty or challengeable as such in Courts but at the same time the observations made in Abdul Khaliq Bangash y. The Secretary Government of West Pakistan Co-operative Department and 2 others (1), may be quoted with advantage: "Assuming that his initial suspension was not in order, at the most, he can make a claim for the balance of his unpaid salary for that period, which cannot be enforced through writ jurisdiction". These observations were made despite the fact that the view taken in Mian Muhammad Hayat v. Province of West Pakistan (2), was reiterated.. It may be noted that the observation that a claim for the balance of unpaid salary cannot be enforced through writ jurisdiction, made in Abdul Khaliq Bangagh's case, no longer holds the field as according to the later view of the Supreme Court the pay or remuneration payable to a civil servant is not now considered to be the bounty of the State. The order of suspension if passed incompetently or in violation of law is, therefore, open to challenge. In this case the suspension period was extended at long intervals apparently in a bid to cover the period spent in the enquiry, and such an exercise of power was not in accord with thepurpose and scheme of the Rules. If, this view of the matter, the orders extending suspension period passed in the case of the petitioner were illegal. In any case, there is no suspension order at present in the filed as the period of suspension extended vide order dated 8-8-1981 also expired on 27-9-1981.
(1)1970SCMR103(2)PLD1964SC321
4. The result of the above discussion is that the orders extending the suspension period are declared to have been passed without lawful authority and as such are of no legal effect. The writ petition is, therefore, accepted to the extent indicated above.
5. The parties are left to bear their own costs.