' S. ABDUL JABBAR KHAN (CHAIRMAN).-Azam Khalil, Assistant Director Public Relations, Sargodha, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded (1) Secretary to Government, Punjab, S G A & Information Department and (2) Chief Secretary to Government, Punjab, as respondents, By virtue of this appeal he has prayed that the impugned order dated 1st June, 1981 by which he has been dismissed from service, with the observation that he would be debarred from future Government service also, be set aside as being without lawful authority and thus of no legal effect.
2. Brief facts of the case are that the appellant was appointed as Assistant Director Public Relations in March, 1975 on selection by the Punjab Service Commission. He completed the probationary period of two years successfully. The appellant has been working on portent assignments like Public Relations Officer to the Punjab Governor, F R 0 to the Chief Minister and In charge of Protocol Section. In the year 1977 the appellant divorced his wife in accordance with the law but the divorcee filed a suit for dissolution of the marriage in the Court of Civil Judge, Lahore, in addition to large number of other complaints against him. The suit was, however, dismissed when it was brought to the notice of the Court that the lady stood already divorced. His wife then took recourse to criminal proceedings and filed a complaint in the Court of Allaqa Magistrate Lahore, that the appellant had entered into second marriage without divorcing her and was, therefore, guilty of bigamy. On the date of hearing of the said case an ugly situation developed which ultimately ended in his conviction before a Summary Military Court. The said Summary Military Court sentenced the appellant on 15th November, 1979 to four months, rigorous imprisonment on the charge of rowdyism and assaulting a woman in the premises of the District Courts.
3. The appellant was suspended from service on 17th January, 1980. This was challenged in the Lahore High Court through Writ Petition No, 1303/S of 1980. The learned Chief Justice was pleased to suspend the operation of the suspension order with the direction that the Government should be restrained from taking any action against the appellant on the basis of "convicting order by some Military Court". When confronted with this situation, the Government (respondent) chose, to withdraw the order of suspension on 11th February, 1981. The appellant, continued in service and it was on 2nd June, 1981 that the appellant was dismissed again vide impugned order and also debarred from future Government service on the basis of conviction ordered by the Summary Military Court No,
45. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as the learned District Attorney and have perused the record of this case carefully with their assistance. It has been submitted by the learned counsel for the appellant that the impugned order is totally without jurisdiction as under the Delegation of Powers Rules approved by the Government for the Public Relations Department on 11th May, 1981 the Authority in the case of the appellant is respondent No, 1 whereas the respondent No, 2 is the Appellate Authority only. The Appellate Authority by passing the impugned order itself has deprived the appellant of his right to appeal. It was argued that the impugned order has been passed in exercise of the powers conferred by rule 9 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, whereas the said rule 9 does not bestow arty powers of punishment but in fact withdraws the same. It has been further urged that rule 19 of the said Rules provide that West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, had been repealed in their application to the Civil Servants to whom 1975 Rules were applicable. Since according to rule 9, 1975 Rules are not applicable to such Civil Servants the only conclusion would be that according to rule 19 of the Punjab Civil Servants (E & D) Rules, 1975, Rules of 1960 are applicable. By this the learned counsel has elaborated that under the 1960 Rules where a Civil Servant has been convicted by a Court of Law he is entitled to a show-cause notice before any punishment is awarded to him. Even otherwise under the Government instructions, which have the force of law, the appellant was entitled to show-cause notice. A grievance has been made that the respondent No, 2 has erred in equating the words 'Court of Law' with the Military Court. It was pointed out that the wording of rule 9 of the Punjab Civil Servant (E & D) Rules, 1975 gives limited power to the competent authority by using the phrase "ground of conduct which has led to a sentence". According to the learned counsel no grounds for conviction were mentioned by the Summary Military Court and, therefore, the action taken by respondent No, 2 was violated of the rule itself. On the other hand the learned District Attorney has stoutly defended the order of respondent No, 2 as perfectly in order being issued under the rules. According to him, rule 9 of the Punjab Civil Servants (E & D) Rules, 1975 empowers the competent authority to dispense with the procedure proposed to be adopted under the Efficiency & Discipline Rules in case one is dismissed/removed from service or reduced in rank on the ground of conduct which has led to a sentence or fine or of imprisonment. It has also been submitted that rule 19 of the Punjab Civil Servants (E & D) Rules, 1975 repeals the Rules of 1960 to the extent the former are applicable to the Civil Servants. According to him since the Rules of 1975 are applicable to the officer the question of application of 1960 Rules does not arise. He has also denied that under rule 9 of the Punjab Civil Servants (E & D) Rules, 1975 the appellant was entitled to a show-cause notice/charge sheet, etc. He has finally argued that as the order of the Summary Military Court convicting the appellant for four months has not been set aside by any other Court or authority and the appellant has undergone the said sentence, therefore, he was liable to be dismissed by respondent No, 2.
5. We have given our anxious thought to all the points raised by both the parties and would first of all reproduce rules 9 of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 which is the bone of contention before us :- "9. Rules not to apply in certain cases.-Nothing in these rules shall apply to a case -
(a) where the accused is dismissed or removed from service or reduced in rank, on the ground of conduct, which has led to a sentence of fine or of imprisonment ; or
(b) where the authority is satisfied that, for reasons to be recorded in writing, it is not reasonably practicable to give the accused an opportunity of showing cause."
' In the Punjab Civil Servants (E & D) Rules, 1975, rule 9 finds into place under Chapter III which lays down procedure for enquiry and imposition of penalties. Rules 5, 6 and 7 relate to the proceedings and rule 8 relates to the action to be taken by the authority after affording the accused officer an opportunity in person by the authority. It is interesting to observe that while framing rule 9 the framers of 1975 Rules have intended to omit the application of rules 5, 6 and 7 to a case of the present nature before us. Instead of doing so they used the words "nothing in these Rules shall apply". This is the omission which, inter alia, goes directly to the root of the present case. Rules 5, 6 and 7 are the only enabling rules which bestow powers and by saying that nothing in these rules shall apply to a case of the present nature, the framers of these rule instead of bestowing the powers have withdrawn the same. While reading the West Pakistan (E & D) Rules, 1960 we find that this power is very much there. So in view of this defective phraseology, we have no alternative but to hold that rule 9 did not bestow any power on respondent No, 2 to take any action against the appellant. It would be for the Government to amend the rule, if it so desires.
6. We also find great force in the argument of the learned counsel for the appellant that rule 9, as it is, creates one more impediment in the way of respondent No, 2 while taking action under this rule against the appellant. The words 'on the ground of conduct which has led to a sentence of fine or imprisonment' makes it obligatory to find, before taking any action against a person convicted by a Court of Law as to what were the grounds which led to his conviction when he was proved guilty.
In the present case the perusal of the order of the Summary Military Court would show that no ground whatsoever has been given to justify the sentence so awarded by it. It only says that Mr. Azam Khalil of House No, 20, Gali No, 137, Nisbet Road, Lahore, to undergo R. I. For four months. In this manner the impugned order suffers from another fatal defect. While adverting to another important point raised by the learned counsel for the appellant that the Summary Military Court cannot be equated with a Court of Law as is evident from letter No, SOR-I (S & G A D) 1-71/74, dated 26th June, 1975 from the Government of the Punjab, S & G A Department, we find that the words used in paragraph 3C are "in a Court of Law". Therefore, the Summary Military Court cannot be equated with a Court of Law as the same being established under the Martial Law will definitely be of a different kind than the Court of Law as understood in legal parlance. In this context we will refer to the earlier history of this case when the Government chose to take action against the appellant by suspending him from service in pursuance of the said Summary Military Court decision. We find that when he was suspended on 17th January, 1980 by the Secretary Information and Tourism Department and the same was challenged before the High Court, his Lordship the Chief Justice vide his order dated 12th February, 1980 suspended the operation of the suspension order of the appellant from service. After the passing of this order the impugned order was withdrawn and the appellant was allowed to continue in service. This fact will also reflect on the conduct of the Department and we will be fortified within our rights to assume that the Government had no case to defend at the High Court level otherwise some sort of stand which has been now taken before us could have easily been taken before that Honourable Court. It can be said that the issue was not forced by the Government, rather it was avoided. Similarly, when attending to another argument on the point of jurisdiction we find that Writ Petition No, 4560/S of 1980 before Mr. Justice Gul Muhammad Khan, filed by the appellant in which he impleaded the present respondent No, 2 1. e.
Chief Secretary, Government of the Punjab also, a stand was taken by the Government Pleader which was incorporated in the Interim Order of his Lordship dated 26th September, 1978 as under :- "According to the Efficiency and Discipline Rules the competent authority is the Government or an officer designated by it. In the case in hand the order had been passed by the Additional Secretary.
It is stated by the learned counsel that only the Chief Secretary could pass such an order. There is, however, nothing on this record to show as to who is the designated authority in this case."
' On 18th November, 1978 Mr. Asif Jan, Assistant Advocate-General, appeared before his Lordship and submitted as under :-- "Mr. Asif Jan, the learned Assistant Advocate-General appears to state that according to the amended entry 14 in Schedule VIII of the Services Rules, the Secretary enjoys the same powers as were exercised by a Minister previously and that matters concerning employees of 17 Grade and below are to be dealt with by him under the Efficiency and Discipline Rules. It is further stated that the Additional Secretary was in fact the Secretary (Incharge) of the Information Department and, therefore, enjoys all powers conferred on the Secretary."
7. In view of our finding on the main two issues, we need not enter into the controversy, especially as the document produced before the High Court was only Draft Rules which had not been converted into enactment. We are of the considered opinion that the action taken against the appellant cannot sustain in the eyes of law and thus the impugned order is liable to be set aside.
The result is that we accept the appeal of the appellant and set aside the impugned order for our detailed reasons given above. The appellant, who is already in service due to the stay granted in this case, will continue to remain as such. However, there will be no order as to the costs.