' A. CHOUDHRY (MEMBER).-The appellant, Khawaja Mahmood Ahmad was serving as Head Master, Federal Government Technical High School, Chaklala, and was transferred to Boys' High School Gujranwala Cantt. On 19th December, 1975, on the basis of some confidential enquiries of complaints received against him. He was placed under suspension under the orders of the Secretary, Ministry of Education, dated 10th February, 1976. He was charge-sheeted under the orders of the Secretary, Education, on 25th February, 1976 for misconduct and disobedience of orders of transfer and certain charges of embezzlement of public money. The order, of suspension after expiry of three months initial period was not extended in time, as required under the rules. He was also informed under the orders of the Education Secretary, dated 15th March, 1977 that being under suspension he was not entitled to normal annual increment. The appellant represented to the Ministry of Education on 26th November, 1976 and on 6th April, 1977 to the Establishment Secretary. He did not receive any reply to his representations. He, therefore, filed this appeal on 26th May, 1977 to the Service Tribunal for redress. The appeal was admitted for regular bearing on 28th August, 1977.
2. Before the learned counsel for the appellant could start arguments on the merits of the case, the learned counsel for the State raised a preliminary objection regarding the jurisdiction of the Service Tribunal to adjudicate this case on the point of limitation. He pointed out that the last representation was addressed to the departmental authority by the appellant on 6th April, 1977.
Under section 4 (1) (a) of the Service Tribunals Act, ninety days waiting period is statutory and no appeal lies to the. Tribunal before the expiry of that period. The appeal was, therefore, premature.
3. The learned counsel for State also argued that a suspension order cannot be a final order and also it does not constitute punishment. As such, no appeal lies to the Tribunal against the orders of suspension.
4. The learned counsel for the appellant pointed out that the appeal was, no doubt, filed before the expiry of ninety days statutory period of waiting, but during the pendency of the appeal, the period has been completed. The appeal was, therefore, not premature. He also argued that the order of suspension is final inasmuch as it takes away the right of the individual Government servant to serve on a particular post. As such, the order of suspension was appealable within the meaning of section 4 (1) of the Service Tribunals Act, 1973. In support of his arguments, he quoted various authorities from the High Court and the Supreme Court.
5. The learned counsel for the appellant also pointed out that the order, of suspension was not issued by the competent authority and also not extended after the expiry of three months initial period, as required under section 5 (1) of the Government Servants (Efficiency and Discipline) Rules, 1973. He further invited a reference to para. 2 (b) of the Establishment Division's Office Memorandum dated 22nd February, 1975. The relevant portion of which runs as follows :- "Since continuation of leave or suspension beyond a period of three months again requires the approval of the 'Authority', it would appear that on expiry of the said period of three months, the Government servant who has been placed under suspension or forced to proceed on leave would be deemed to have been re-instated unless before the expiry of the said period the approval of the Authority to the Government servant continuing to be under suspension or on leave has been obtained."
' He, therefore, argued that since orders of the competent authority for extending the initial three months period of suspension were not obtained before the expiry of this period, the said order of suspension automatically stands vacated and consequently the appellant stands re-instated with effect from 1st November, 1976 because the initial period of suspension expired on 31st October, 1976.
6. The learned counsel for the appellant also argued that the withholding of increment during the period of suspension which fell due in the normal course constitutes a penalty contemplated under the Efficiency and Discipline Rules. Since no show-cause notice or a charge-sheet, as required under rule 5 and rule 6 of Efficiency and Discipline Rules, was issued, the action of the Ministry of Education to withhold the increment was illegal and void.
7. The learned counsel for the State argued the case on merits and pointed out that the order of suspension of the appellant was issued by the Secretary Education, on behalf of the competent authority. It was extended by the Minister for State for Establishment, under his orders dated 20th November, 1977, apparently with retrospective effect. He also pointed out that the Minister for State accorded ex post facto sanction of the suspension initially issued by the Education Secretary. In the circumstances, he argued, that the order of suspension was valid and also extended after three months by the competent authority.
8. The learned counsel for State also brought to the notice of the Tribunal that subsequent to passing the order of suspension and extending it, the Government retired the officer from service after completing the necessary procedure for disciplinary action under the rules. He, therefore, argued that the present appeal against the order of suspension had become infructuous and should be dismissed.
9. The learned counsel also pointed out that in various judgments issued by the Service Tribunal previously, suspension has not been held as a final departmental order to be challenged in appeal to the Service Tribunal.
10. After hearing both the sides, the correct position regarding the nature of a suspension order becomes clear from the latest judgment of the Honourable Supreme Court in Civil Petition for Special Leave to Appeal No, 951 of 1976 Muhammad Sadiq Khokhar v. Engineer-in-Chief G. H. Q.
Their Lordships have observed as follows :-- ,, .. . The petitioner feels aggrieved from the order of his suspension and in so far as it has taken effect, it has attainzd finalty. It is not disputed either that the petitioner's grievance is germane to the terms and conditions of service and a dispute with regard thereto falls within the exclusive jurisdiction of the Tribunal under clause (2) of Article 212 of the constitution . .. "
We, therefore, hold that irrespective of any judgment issued by any Service Tribunal so far, the correct position in this respect is that after ,, the issue of the above referred judgment of the Supreme Court, an order ' of suspension is a final order within the meaning of the Service Tribunal Act, and is appealable to the Service Tribunal.
11. As regards the preliminary objection raised by the learned State counsel that this appeal has been filed before the expiry of statutory waiting period, it is clear that since the appeal was admitted for regular hearing on 28th August, 1977 when the statutory period for waiting after 6th April, 1977 had already expired, the appeal was no more premature.
12. We do not find ourselves in agreement with the learned counsel for State that the order of suspension does not constitute punishment. In certain cases, where secret period is treated as punishment under the rules, it does constitute punishment which is appealable. Irrespective of this position, since the conditions service of a civil servant other than the punishment are also appealable to the Service Tribunal, the instant appeal is within the jurisdiction of the Service Tribunal for adjudication.
13. As regards the validity of suspension order, the argument of the Government side completely fails to convince us. The admitted position is that the appellant was a grade 17 officer when he was placed under suspension by the Secretary, Education. For a grade 17 officer, the Authority is the Prime Minister, as laid down in the Establishment Division's Notification No, S. R.
0. 1562 (1)173, dated the 7th November, 1973, The Prime Minister enjoys the powers of Authority under delegation from the President. It is obvious that the delegated powers cannot further be relegated to anybody else. The powers for suspension for a grade 17 officer exercised by the Minister for State for Establishment were, therefore, not available to him under the rules. Moreover the provision of rule 5 of the E & D Rules requires prior approval of the competent authority for placing an officer under suspension or forcing him to proceed on leave. There is no scope in this rule for according ex post facto approval of suspension, even by the competent authority. Similarly, the order of extension in period of suspension made by the Minister for State is also not covered by the relevant rules. In addition, this order has been passed after 20 days of the expiry of initial period. Even if this order has been made by the competent authority it stood vacated on the 1st November, 1976 on the expiry of three months initial period of suspension, as contemplated in para, 2 (b) of the Establishment Division's Office Memorandum dated 22nd February, 1971D referred to earlier. We, therefore, have no hesitation to hold that the order of suspension issued with retrospective effect by the Government was ab initio void and without any legal authority.
14. As regards the stoppage of increment, it is not disputed that the same constitutes a penalty and, therefore, requires regular procedure of charge-sheet and show-cause notice, contemplated under the E and D' Rules. A reference is further necessary to FR-24, and the comments contained thereunder, which runs as follows :- ' FR-24 . . An increment shall ordinarily be drawn as a matter of course unless it is withheld . . . "It has been further explained in the Government Servants (Efficiency and Discipline) Rules, 1973, that withholding of an increment for a specific period is one of the minor penalties which is to be inflicted upon a Government servant who is inefficient or has ceased to be efficient, or is guilty of misconduct, or is corrupt. The scope of FR-24 has greatly been enlarged by the provisions of the said Efficiency and Discipline Rules."
Since the withholding of increment has been ordered without affording show-cause notice which is required under the mandatory provision o F the rules, this order is equally void and without legal authority.
15. We, therefore, vacate the order of suspension with effect from the date it was issued. We also vacate the order of withholding increment. The appeal of the petitioner is accepted. He will be entitled to pay and allowances for the period he remained under suspension as if no suspension order had ever been issued and no order withholding the increment had been issued.
16. As regards the orders of retirement issued by the Government in respect of the appellant, the same is not the subject of this appeal and we do not consider it necessary to express our opinion on the merits of the same. .