Justice (R) Sayed Zahid Hussain, Chairman. Muhammad Asif, Ex-Executive Engineer, Director General's Office, Pak. PWD, Islamabad was proceeded against for disciplinary action and was charge sheeted on 19.12.2012 by Secretary (H&W)/ "Authorized Officer". It was accompanied by the statement of allegations On the same date Mr. Gulab Zamir, Chief Engineer, Pak. PWD, Islamabad was appointed as Inquiry Officer under Rule 6 of the Government Servants (Efficiency and Discipline) Rules, 1973 by the same Secretary/ "Authorized Officer". The said Inquiry Officer was however, replaced by the new Inquiry Officer Engr. Hasan S. Haqqani, Managing Director, M/s National Construction Limited (NCL). The appellant submitted his written defence denying the allegations. Inquiry was held and as a sequel to the Inquiry Report, he was issued Show Cause Notice dated 25.10.2013 by the Secretary (H&W)/ "Competent Authority" to show cause as to why the major penalty of dismissal from service should not be imposed. He again denied the allegations and refuted the charges by filing reply Maserati, but vide Notification dated 09.07.2014 he was informed that "the Authority i.e, Secretary (H&W) has been pleased to impose major penalty of Dismissal from Service" under Rule 4(1)(a)(b) of the Government Servants (Efficiency and Discipline) Rules, 1973. The departmental appeal filed under Rule 10 of the Government Servants (Efficiency and Discipline) Rules, 1973 read with Rule 3(4) of Civil Servants (Appeal) Rules, 1977 remained undecided, hence he filed this appeal under. S. 4 of the Service Tribunals Act, 1973.
2. By filing para-wise comments the appeal is being opposed and contested.
3. The learned counsel has taken us through the Rules viz Government Servants (Efficiency and Discipline) Rules, 1973 and Instructions issued by the Government [printed in the ESTACODE] to contend that the whole process of disciplinary proceedings against the appellant is tainted with illegalities inasmuch as combination of functions of "Authorized Officer" and of the "Authority", in one functionary i.e, Secretary was contrary to law and the rules which vitiates the entire process. He has placed reliance upon 1982 PLC (CS) 795 ((Abdul Karim Sheikh vs. Post Master General, Northern Circle, Rawalpindi), 1987 PLC (CS) 73 (Sharif Ahmad Khan vs. Secretary, Ministry of Defence), 1995 PLC (CS) 116 (Younas Masih vs. Deputy Director, Food, Lahore and another), 1991 PLC (CS) 109 (Malik Lal Khan vs. District and Sessions Judge, Rawalpindi) and 2006 PLC (CS) 741 (Muhammad Sana Ullah Malik vs. Punjab Employees Social Security Institution and another) (the later two judgments are by the Lahore High Court). As to the contents of the allegations and their worth it is contended that the appellant had performed the duty and got the work executed within the budgetary limits and within the contract period the 100% work was completed. According to the learned counsel the alleged deviation was approved by the higher authority i.e, the Superintending Engineer and he only got the work executed by saving the Government money/funds. It is contended that during his long service career there had never been any adverse entry or inquiry against the appellant.
4. The learned standing counsel while vehemently opposing the appeal has contended that the entire proceedings were conducted in a just and fair manner by affording full opportunity of defence and in accordance with law and the rules and it was only on the basis of the Inquiry Report that the appellant was dismissed from service. He has drawn our attention to Para 7.18 of Pakistan Public Works Department Code that there is a prohibition for commencing the construction of any work expending public funds without the sanction of competent authority or making deviations from any sanctioned design.
5. The respective stance of the parties need to be considered in the light of the material on record and the law on the subject.
6. The action taken against the appellant is founded upon the proceedings under the Government Servants (Efficiency and Discipline) Rules, 1973. Under the Government Servants (Efficiency and Discipline) Rules, 1973 "the authority" and "the authorized officer" have defined functions and the duties.
The Rules create a clear distinction in the "authority" and the "authorized Officer".
7. Rule-3 empowers the "Authority" to impose on a Government Servant one or more penalties. R.4 makes mention of minor and major penalties. Under R.5 inquiry procedure is laid down which is to be observed when a Government servant is proceeded against under the Rules. Its clause (i) makes mention of the "Authorized Officer" and the "authority". It says that "where a Government servant is accused of subversion, corruption or misconduct, the authorized officer may require him to proceed on leave, or with the approval of the authority suspend him and that any continuation of such leave or suspension shall require approval of the authority after every three months".
Clause (ii) of Rule 5 empowers the Authorized Officer to take decision whether an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. Its Clause (iii) is meant for an eventuality when the Authorized Officer decides that it is not necessary to have an inquiry conducted through any Inquiry Officer or Inquiry Committee. In that case he is obliged to inform the accused of the action proposed to be taken against him and the grounds of the action and to give him a reasonable opportunity of showing cause against such action. Its proviso again defines the role of the "authority" "Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity".
Another important feature of this Rule is mentioned in Clause (iv) which reads as follows: "(iv) On receipt of the report of the Inquiry Officer or Inquiry Committee or, where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the authorized officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority along with the charge and statement of allegations served on the accused, the explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed. The authority shall pass such orders as it may deem proper".
It again distinguishes the functions and the duties of the "authorized Officer" and of the "authority".
8. Rule 6 lays down the procedure to be observed by the Inquiry Officer and the Inquiry Committee.
Its sub-rule (6) is as follows:-
(6) The Inquiry Officer or the Committee, as the case may be, shall within ten days of the conclusion of the proceedings or such longer period as may be allowed by the authorized officer, submit his or its findings and the ground thereof to the authorized officer".
It shows that the "Authorized Officer" is to frame the charge and to serve it to the accused alongwith the statement of allegations. Under Clause (6), the findings of the inquiry are also to be submitted to the "authorized Officer".
Rule 6-A is again of importance and reads as follows:- "6-A. [Revision.-(1) Subject to sub-rule (2), the authority may call for the record of any case pending before, or disposed of by, the authorized officer and pass such order in relation thereto as it may deem fit"; It shows beyond any doubt that the proceedings before the "Authorized Officer" are subject to revisional jurisdiction of the "Authority". Thus the authority is accorded a higher status and duty. The two have distinct role and duty under the Rules. In the scheme of Rules the Authorized Officer is conferred defined powers including the power to recommend to the authority the award of any of the major penalties prescribed in the Rules after due process of law.
9. This much it the importance of the parameters mentioned for inquiry proceedings in relation to any proposed action against the Government Servant creating distinction in the "authorized Officer" and the "authority". Its importance is further highlighted in the ESTACODE (Edition 2007)
Volume-II by further interpreting and elucidating through Instructions. It also finds mention in the ESTACODE that "the matter has been recently examined in the Establishment Division in consultation with the Law Division. The conclusion reached is given below ad-seriatim:-
(a) Since under Rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973 (Sl.No, 85), the 'authorized officer' can only suspend a government servant after obtaining the approval of the "authority", on the basis of the principle embodied in Section 25 of the General Clauses Act, 1897 the "authorized officer" would be competent to reinstate the government servant only with the approval of the "authority".
(b) Since continuation of forced 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 reinstated 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".
Likewise is an elucidation of the subject at Page 858 Sl.No, 100.
"Authority Competent to Suspend Officers of Grade-17 and Above.
It has been brought to the notice of the Prime Minister that some officers of the rank of Grade-17 and above have been suspended by the Ministers as a measure of disciplinary action. While it is not the intention that action should not be taken against a government servant guilty of misconduct, corruption or for inefficiency, it is a matter of some importance that the correct procedure should be followed in each case. Observance of correct procedure is essential not only in the interest of justice but also to ensure that Government Servants (Efficiency and Discipline)
Rules, 1973 (SI. No, 85) are complied with".
It has further been explained at Page 867 Sl.No, 109.
"Powers of the Authority under Rule6-A of the Efficiency and Discipline Rules.
Under the provisions of Rule 6-A of the Government Servants (Efficiency and Discipline) Rules, 1973 (SI.No, 85), the authority may call for the record of any case pending before or disposed of by the authorized officer and pass such order in relation thereto as it may deem fit.
2. To enable the "Authority" to perform its function more effectively under the provision of said rule, it has been decided that in future, whenever the disciplinary proceedings are completed against a civil servant of the Federal Government in BPS-17 and above, copies of the record of the proceedings viz charge sheet along with statement of allegations; show cause notice, if issued instead of charge sheet; report of the Inquiry Officer and the final orders, be endorsed to Establishment Division, joint Secretary (Discipline)".
10. Again vide Si. No, 116 at Page-873 by highlighting the importance of the due observance of the procedure a Check List has also been added for guidance to be followed: "Disciplinary Action - Need to Observe Strictly the Rules and Procedure Relating to Check List It has been observed that in dealing with disciplinary cases, care is not generally taken to observe the procedure laid down in the Government Servants (Efficiency and Discipline) Rules, 1973 (SI.No, 85). Such omissions vitiate the case and if the government servant concerned goes in appeal to the Service Tribunal, the appeal is sometime accepted on this account. It is, therefore, necessary that extreme care is taken to ensure that the cases are dealt with according to the' prescribed rules and procedure".
According to the Check-List the requirements to be noted while taking action under Government Servants (Efficiency and Discipline) Rules, 1973 (Sl.No, 85) inter alia are:-
12. In the show cause notice issued under Rule 5(1) (iii), the proposed action and the grounds of the action including particular or particulars of charges and substance of evidence in support of the charges has been specified; the grounds for penalty in terms of Rule 3 have been specifically mentioned; the penalty or penalties which would be called for if the charges are established have been specified and no general mention has been made by reference to all minor or major penalties. The description of penalties should conform to the description given in the rules. The show cause notice must be signed by the authorized officer.
13. On receipt of the report of the Inquiry Officer or Inquiry Committee or on receipt of explanation of the accused officer under Rule 5(1) (iii) the Authorized Officer has determined whether the charge or charges against the accused officer has been proved or not [Rule 5 (1) (iv)].
14....................
15. In case the Authorized Officer has proposed imposition of a major penalty on the accused officer, he has referred the case to the Authority with his recommendation and with all the documents mentioned in the rule [Rule 5 (1) (iv)].
16. When the accused has desired to be heard in person, the authorized officer has duly heard him in person before deciding to impose a minor penalty or make recommendations to the authority for a major penalty. [rule 6 (2)]".
11. The above detailed procedure and Instructions speak of the value accorded by the Government itself to the due and strict observance of the rules and procedure in the departmental proceedings against a Government servant.
12. The perusal of the above Rules and Instructions would go to show beyond any room for doubt that the functions of the "authorized Officer" and of the "authority" are distinct in their scope as some of the duties and functions are within the domain of the authorized officer and some vest in the "authority". The "authority" is at a higher level as certain actions like suspension etc are subject to its approval and is also a revisional body within the scheme of the Rules. It is thus that the learned counsel for the appellant has laid great emphasis that the Secretary Ministry of Housing and Works firstly acted as the authorized officer in issuing and serving the charge sheet, then issuing him show cause notice as the "authority" and then imposing major penalty of dismissal from service by combining all the functions in one and the same functionary which is not contemplated by the Rules and thus the whole process stand vitiated. It may be mentioned that apart from the above position of the Rules and ESTACODE Instructions, the Service Tribunals and the Courts have also viewed such infraction of Rules vitiating the proceedings and the ultimate action.
13. In PLD 1981 Supreme Court 176 (Syed Mir Muhammad vs. N.W.F.P. Government through Chief Secretary) the Senior Civil Judge, Hazara was proceeded against by the Peshawar High Court and was removed from service after due inquiry bat his removal was set aside due to non-observance of the rules, holding: "It appears to be the salutary requirement of Rule 5 that the accused Officer must be given a reasonable opportunity of showing cause against the action proposed to be taken against him. If the shorter procedure is followed and inquiry is dispensed with, then this stage is reached when the grounds of the proposed action and the allegations are conveyed to him; but this stage is reached in the case of a formal inquiry only after the inquiry has been completed and the authorized Officer has formulated his views in the light of the inquiry report. It seems' to us, therefore, that on a proper construction of Rules 5 and 6 read together, it is statutory requirement that if a formal inquiry is held, then the authorized Officer should, after he has tentative decided upon t e action he to recommend the Authority, give an opportunity to the accused officers to offer his explanation against the proposed action in the light of the finding of the Inquiry Officer or Inquiry Committee, before sending his recommendations to the Authority".
(underlined for relevance)
In 1981 PLC (C.S) (LHC) 194 (Muhammad Nawaz vs. Secretary to the Government of the Punjab Agriculture Department) it was observed "The important thing to be noted from the above two rules is that the authority and the authorized officer are two different entities. The authority is either the Government or an officer or authority designated by it. The authorized officer is the one who has been authorized to perform the functions of an authorized officer under the rules. It is, therefore, not correct and valid to say that the two functions can be entrusted to or be performed by one person. This is Quite clear not only from the definitions of the two persons as given in Rules 2(b) and 2(c) but form the wording of Rules 5 and 6".
In 1982 PLC (CS) 795 (Abdul Karim Sheikh vs. Post Master General, Northern Circle, Rawalpindi) it was observed that" the two functions if performed by the same officer would render Clause (iv) of sub-rule (1) of Rule 5 of the Rules as nugatory".
In 1987 PLC (CS) SC 446, (Ghulam Sabir vs. Deputy Director Food and another) where the Authorized Officer had issued the charge sheet and he himself imposed major penalty. The order was set aside.
In 1987 PLC (CS) 73, (Sharif Ahmad Khan vs. Secretary, Ministry of Defence)' the charge sheet was framed by the Authority, which was the function of the Authorized Officer under the Rules. It was thus observed that "the intention of the rules is to give protection to accused officer so that his case may be examined at more than one stage and in case of performing functions of the Authorized Officer by the authority though a different officer stood designated as Authorized Officer, the accused officer is to be deprived of that double check provided by law. We are, therefore, of the view that the Respondent No, 2 in framing the charge-sheet, acted incompetently which vitiated the entire proceedings based thereon".
In 1991 PLC (CS) 109 (Malik Lal Khan vs. District and Sessions Judge, Rawalpindi) the Lahore High Court noted the functions of the Authorized Officer and the Authority under the Rules and it was observed that "In the appellant's case the D&SJ was the "Authority", but he did not appoint any Authorized Officer and himself took a decision that an inquiry was necessary and then appointed an Inquiry Officer. Thus, the report of the Inquiry Officer, was neither routed by him through any Authorized Officer nor any determination was made by the later that the charge against the accused was proved, nor any recommendation as to the imposition of penalty forwarded to the Authority. In fact the D&SJ combined in himself the role of the Authority and the Authorized Officer, which was wholly illegal".
In 1995 PLC (CS) 116, (Younas Masih vs. Deputy Director, Food, Lahore and another) it was observed that by combining together the functions of two different officers into one was not conducive to administration of fair justice. ..
In 2006 PLC (CS) 741 (LHC),' (Muhammad Sana Ullah Malik vs. Punjab Employees Social Security Institution and another) it was observed that "the rules contemplate the independent application of two minds to concur on the imposition of a major penalty. In the present case where both authorized officer and authority is the same persen, the application of two minds independently in the matter of imposition of major penalty against the accused petitioner did not occur as contemplated by the Rules .... As the authorized officer and authority in the case of the petitioner is one and the same person therefore the imposition of major penalty at his hands amounts to a violation of the right of the petitioner available under the procedural safeguards of Rules". The order was set aside without any comment on merits of the case with option for the department for fresh proceedings.
14. It has been seen as to how much importance has been accorded to the strict observance of the procedure mentioned in the Rules and also highlighted in the Instructions contained in the ESTACODE. The underlying idea is to afford maximum opportunity of fair treatment at the departmental level by authorities dealing with the disciplinary matter of a Government servant.
This is of utmost importance and also necessary as in case of imposition of extreme 'major penalty like dismissal from service the whole service rendered and put in by the government servant may not, by a solitary incident/event or lapse, be set at naught. And its consequences may for a person or family be drastic and ruinous. That is how any deviation from or violation of the Rules in the course of proceedings has been taken serious note and clear Instructions are imparted by the Establishment Division in the ESTACODE. In the instant case it was the one Government functionary i.e, Secretary, Ministry of Housing and Works who purported to have acted as the "Authorized Officer" and "Authority" which gave rise to the valid grievance of the appellant about the proceedings as violation of the Rules.
15. From the scheme of the Rules as elucidated by the Instructions of the Establishment Division contained in the ESTACODE it is absolutely manifest and clear that intermingling of functions of Authorized Officer and of the Authority is not contemplated, rather the two functionaries are distinct in the performance of their functions under these Rules.
16. It is well settled principle that where the law prescribes the doing of a thing in a particular mode and manner it is to be done in that way and not otherwise. It is also equally settled legal position that where the law empowers a designated functionary to exercise the power it is to be exercised by the said specified authority/person and none other. In PLD 1972 Lahore 316 (Syed Fayyaz Hussain Qadri, Advocate vs. The Administrator, Lahore Municipal Corporation, Lahore and 4 others) this principle was stated in the following words:-"When a statute confers a certain duty on an officer it is that officer who has to make up his mind and pass the order in accordance with law..
The Rules i.e, E&D Rules, 1973 clearly envisaged the powers to be exercised by the authorized Officer and the Authority.
17. As has been noted earlier the departmental appeal against his dismissal from service had remained undecided. It was a statutory right and remedy conferred by R.10 of Government Servants (Efficiency and Discipline) Rules, 1973 and R.3 of Civil Servants (Appeals) Rules, 1977, which the appellate authority was obliged under the law to decide under R.6 of Civil Servants (Appeals)
Rules, 1977. By its non-decision the remedy has been rendered futile, illusory and nugatory. Such an indifferent attitude of the departmental authority gives rise to numerous complications including the forced litigation at the cost of unnecessary expense, wastage of time and resources.
18. The non-adherence to the Rules i.e, Government Servants (Efficiency and Discipline) Rules, 1973 and the Instructions contained in the ESTACODE, in the matter of the disciplinary proceedings against the appellant is an established fact vitiating the whole process and ultimate action of his dismissal from service which cannot be sustained. Thus without having recourse to the worth of the allegations and the charges against the appellant he is ordered to be reinstated in service with an option to the competent authority to hold a de-novo inquiry strictly in accordance with law/Rules, if so desired.
19. The appeal is accepted with no order as to costs.