Justice (R) Rayed Zahid Hussain, Chairman --Zulifiqar Khan was EEXP under EFO when he was ordered to be relieved on 24.01.2014 on attaining the age of 60 years. This was vide notice dated 02.01.2014. On 23.05.2014 after about four months he was served with a Show Cause Notice that he was guilty of misconduct and liable to disciplinary action under the Government Servants (Efficiency and Discipline) Rules, 1973 and that the Authorized Officer had decided that it was not necessary to have an inquiry conducted in terms of Rule 5(1)(iii) of the Government Servants (Efficiency and Discipline) Rules, 1973. He was thus called upon to show cause within seven .Days as to why major penalty of dismissal from service under Rule 4k1)(b)(iv) of the Rules should not be imposed on him. The statement of charges disclosed that there was a complaint dated 26.01.2014 as to the "fakeness of documents/School Certificates" about which a Committee was constituted for an inquiry whose report found him responsible for committing fraud of producing fake matriculation certificate and that he had changed actual date, of birth from 25.01.1951 to 25.01.1954 and thus would have retired on 24.01.2011. It also disclosed the amount of Rs, 7,95334/- he had illegally/fraudulently received, he was thus directed to explain why he should not be proceeded against under the rules to recover the amount of Rs, 7,95334/.. By filing reply to the notice he refuted the allegations and reiterated that his date of birth was 25.01.1954. Without holding any inquiry he was informed that his explanation/defence had been considered by the Authorized Officer and that he had been: imposed penalty that he will stand retired on the basis of his date of birth as 25.01.1951 and an amount of Rs, 907153/-will be recovered from him. The departmental appeal filed by him was "regretted" on 16.09.2014.. He has thus filed this appeal under S.4 of the Service Tribunals Act, 1973.
2. Objections have been filed on behalf of the respondents, inter alia, restating that his correct date of birth was 25.01.1951 but through fraudulent means he succeeded to prolong his service on the basis of incorrect date of birth i.e, 25.01.1954. It is, however, admitted that the change in his date of birth was done by the department itself and was 25.01.1954.
3. The learned counsel has taken us through the material on record to show that his correct date of birth was 25.01.1954 and he had rightly served the department till 24.01.2014. He has referred to the copy of birth Register to show his date of birth as 25.01.1954; the extract of Register, Government Primary School, Kundian showing his date of birth as 25.01.1954, copy of Form "B" and NIC issued on 16.01.1975 showing his age as 21 years. With reference to the initial entries in the Service Book it is contended that such date of birth i.e, 25.01.1951 was corrected by the competent authority vide Notice dated 24.01.2011 and it was thus that he continued to serve till 24.01.2014. He has made reference to PLD 1969 SC 407, (Pakistan, through the Secretary, Ministry of Finance vs. Muhammad Himayatullah Fandehi). PLD 1991 SC 973 (Chief Secretary, Government of Sindh and another vs. Sher Muhammad Makhdoom and 2 others), 1992 SCMR 1420 (Muhammad Nawaz vs. Federation of Pakistan and 61 others), 1996 SCMR 413 (Secretary to Government of N.W.F.P. ZakatlSocial Welfare Department. Peshawar and another- vs. Sadullah Khan), 2002 SCMR 911 (Parwince of Sindh vs. Malik Ghulam Hussain) and 2003 SCMR 1128 (Pakistan International Airlines Corporation through Chairman vs. Inayat Rasool) that order once passed by the competent authority dated 24.01.2011 and implemented and executed cannot be cancelled or withdrawn to ,the detriment and disadvantage of the appellant and that the order impugned has been passed in violation of all norms of justice and the rules, as through a summary manner, the appellant has been imposed a major penalty after his retirement from service.
4. The learned counsel representing the respondents has reiterated the stance of the department reflected through the objections that the appellant was guilty of commission of fraud who had maneuvered the change of his date of birth from 25.01.1951 to 25.01.1954 and thus continued to serve the respondents for about three years and received salary and allowances. It is contended that the impugned action against him was taken in accordance with law.
5. The respective contentions of the learned counsel for the parties have been considered in the light of the material on the record.
6. There are some shocking features of this case manifest from the material on the record. The date of birth of the appellant as shown in the Birth Register, duly attested by the District Health Officer, Mianwali, shows his birth on 25.01.1954. The report of which, as entered in the Register, was lodged on 27.01.1954. The School Certificate issued and verified by the Headmaster of the Government Elementary School, Railway Colony, Kundian (Mianwali) shows his date of birth 25.01.1954. The date of admission in the School is shown as 20.10.1961 and date of leaving the School after passing Fifth Class on 31.03.1966. Copy of the B-Form, duly attested also makes mention of his year of Birth as 1954 and in the NIC issued on 16.01.1975, instead of giving exact date, his age was mentioned as 21 years, which again goes bck to the year 1954. These are the basic documents meant to show particulars of a person as also his age or date of birth. The confusion, however, possibly arose from Secondary School Certificate Examination issued by the Board of Intermediate & Secondary Education, Sargodha, which showed his date of birth as 25.01.1951 but a similar certificate with same serial number and Roll number, issued bST-the same Board showed date of birth as 25.01.1954. It was perhaps this confusion of which a clarification wee sought from the Board of Intermediate & Secondary Education, Sargodha. The clarification certificate issued by the Board on 24.12.2010 showed his date of birth as 25.01.1964. It was thus that the Divisional Personnel Officer, Pakistan Railways, Peshawar made an entry in his service record affixing his own signatures and also issued an order in the form of Notice about his date of birth as 25.01.1954. It is dated 24.01.2011.
The appellant thus continued to serve the department and was retired from service by means of order/notice dated 02.01.2014 effective from 24.01.2014. This order was again passed by the Divisional Personnel Officer, Pakistan Railways, Peshawar.
7. The appellant is said to have retired without any slur or objection but to his astonishment, he receives a show cause notice dated 23.05.2014 informing him that he was guilty of misconduct and liable to disciplinary action under the Government Servants (Efficiency and Discipline) Rules, 1973 and that it had been decided that "holding of inquiry was not necessary". He was called upon to show cause within seven (7) days as to why the major penalty of dismissal from service should not be imposed on him. The statement of charges annexed thereto alleged that in an internal inquiry he had been found responsible for committing fraud of producing fake matriculation certificate and had his date of birth not been changed from 25.01.1951 to 25.01.1954, he would have retired on attaining the age of superannuation on 24.01.2011. It also mentioned an amount of Rs, 795,334/- [which he had drawn in the shape of monthly salary etc. And GPF subscription] to be recovered from him. The reply submitted to the show cause notice refuted all the allegations but on 21.08.2014, the Divisional Personnel Officer, Pakistan Railways, Peshawar, conveyed him that the explanation/defence had been "considered by the Authorized Officer (DAEFROWER/PSC) and in accordance with his orders, the following penalty has been imposed on you": "1 Calculated/involved amount viz Rs, 907153/- in total will be recovered from your settlement dues, as worked out by the concerned branches.
' You will be retired from service (on superannuation) as per your original date of birth viz 25.01.1951.
3. All concerned should fulfill necessary codal & procedural formalities in this regard."
He was the same person who had issued him the shim cause notice, as Authorized Officer. The departmental appeal filed by him was dealt with in a one sentence: "Subject: APPEAL AGAINST THE PUNISHMENT AWARDED vide FORM-C/NOTICE NO.E123/MISV/P/PSC/ 2014 (LOOSE) DATED 21.08.2014 ' Your appeal dated 09.09.2014 against punishment & decisions conveyed through this office form- c/notice of even number dated 21.08.2014 has not been considered and REGRETTED.
' Sd/- Divisional Personnel Officer, Pakistan Railways, Peshawar"
8. It is thus to be seen as to whether the appellant has been dealt with in accordance with law, the Rules and the Instructions on the subject.
9. The action taken against the appellant is founded upon the proceedings under the Government Servants (Efficiency and Discipline) Rules, 1973. Under the said Rules, 1973 "the Authority" and "the Authorized Officer" have defined functions and the duties. These Rules create a clear distinction in the "Authority" and the "Authorized Officer".
10. 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 11.5 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.
11. 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" It shows that the Authorized Officer is not the functionary who can impose major penalty, which is the exclusive domain of "the Authority".
12. In the instant case, it was decided by the Authorized Officer not to hold an inquiry, he simply called the explanation of the appellant and then the ultimate order dated 21.08.2014 was passed on his consideration of the explanation and imposed the major penalty by himself instead of the "Authority" This is clear negation of violation of Rule 5(iv) of the Government Servants (Efficiency and Discipline) Rules, 1973. It may be mentioned that such a mandatory requirement of observance of procedure and competency of taking action has been bypassed and violated and even the Instructions contained in the Esta Code have been ignored in material respects. The charge sheet was issued/served by the Authorized Officer and the major penalty of antedated retirement with effect from 24.01.2011 was also imposed by the same Authorized Officer whereas under the rules, the imposition of major penalty was within the domain and jurisdiction of the "Authority".
13. The distinct role of the "Authorized Officer" and that of the "Authority" has been highlighted by the Courts that the two are different entities, conferred with the powers to be exercised respectively.
14. 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 from the wording of Rules 5 & 6".
15. 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".
16. 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.
17. In 1991 PLC (CS) 109 (Malik Lal Khan us. 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".
18. 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.'
19. 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 person, 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.
20. The order dated 21.08.2014 having been passed by the Authorized Officer, who was not 'competent to do so, is thus not sustainable and is liable to be set aside for this reason alone. It also cannot be overlooked that the officer, who passed the order of 21.08.2014 is the same person, who issued him show cause notice for the alleged recovery of Rs, 795,334/- but while imposing major penalty he ordered recovery of Rs, 907,135/-. It is either marmalade or result of total lack of application fo mind and unsustainable.
21. Another illegality manifest from the record is the Mode and the manner, the departmental appeal was dealt with. It was an appeal under R. 10 of the Government Servants (Efficiency and Discipline) Rules, 1973 read with R.3\of the Civil Servants (Appeal) Rules, 1977. The contents of the order rejecting his departmental appeal are again astonishing. Its a disposal of appeal with practically one sentence what to say of any reason discernible. Its perusal shows that the departmental appeal "against the punishment and decision conveyed through this office Form- C/Notice of even number dated 2.08.2014 has not been considered and "REGRETTED". It's a, novel way of deciding an appeal of a person who has been imposed major penalty and that too without holding a regular inquiry as is normally the requirement of the rules. Such a disposal of statutory appeal horn of any reason whatsoever is not contemplated by law. It amounts to rendering the right of appeal as merely illusory and nugatory.
22. Another aspect worth noticing in this case is that the order about the verification of his date of birth as 25.01.1954. Dated 24.01.2011 passed by the Divisional Personnel Officer, Pakistan Railways, Peshawar has remained intact and has not been withdrawn or cancelled till date. How in presence of the said order, the appellant could be proceeded against or charge sheered for any, alleged commission of fraud in the service record as the entry was made by the same officer i.e, Divisional Personnel Officer, Pakistan Railways, Peshawar with his signatures thereon. It is thus a question- mark as to how the appellant was proceeded against after his retirement and taken to task, on what basis and for what purposes. It is a sheer case of harassment unwarranted by law.
23. The reliance of the learned counsel upon the precedents cited by him about the principle of locus penitential is not in apt. However, in view of the fact that the basic order of verification of his date of birth dated 24.01.2011 has remained in force and is still in the field, no proceedings whatsoever in the matter were called for.
24. Another aspect worth noting is the fact that he is a retired person. At page 847 of Esta Code Edition. 2007, Vol-II, there are Instructions for dealing such cases, empowering to order recovery from pension if the loss was caused to the Government by commission of fraud. But there is a proviso i.e, "Provided that:-
(1) Such departmental proceedings, if not instituted while the officer was on duty:-
(iii) shall be in respect of an event which took place not more than one year before the date on Which the officer was last on duty; and"
' It definitely makes mention of the eventualities when such departmental proceedings against a retired person can or cannot be taken. In the facts and circumstances of the instant matter clause
(iii) above, seem to be attracted. The appellant was last on duty on 24.01.2014 whereas the event made basis for proceedings against him was of 24.01.2011 i.e, the date of verification and correction of his date of birth by the Divisional Personnel Officer, Pakistan Railways, Peshawar. There was, according to the above Rules/Instructions no competency of any of the departmental authority to have reopened the matter in the year 2014. Thus the very basis of the proceedings was faulty suffering from illegality.
25. For the reasons mentioned above and the view that we have taken in the matter, we set aside the order impugned. The appeal is allowed. No order as to costs.