' SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-The facts forming background to this service appeal are that Muhammad Amin appellant while serving as Girdawar in the Revenue Department informed his department that he had passed the Matriculation Examination and in support of his plea produced a Matriculation Certificate issued by Board of Intermediate and Secondary Education Lahore. The appellant on the basis of said Certificate was promoted to the post of Naib- Tehsiidar by the Commissioner vide his order dated 15th November, 1975. Later on it was brought to the notice of the department that the said certificate was not genuine one whereupon the department with a view to verifying its correctness or otherwise contacted the said Board which confirmed the certificate produced by the appellant to be forged one. Consequently the proceeding under Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter to be called (Efficiency and Discipline Rules) were initiated against the appellant. On the charge of misconduct for having produced forged Matriculation Certificate in proof of his educational qualifications by the Commissioner who issued show-cause notice to the appellant requiring him to put in his written reply thereto. The appellant put in his written representation and did not submit any explanation to the show-cause notice within the stipulated period whereupon he was directed by the respondent No, 2 to appear before him for his defence but this opportunity was also availed of by the appellant. The respondent then finding the appellant guilty of misconduct under Efficiency and Discipline rules passed an order of his compulsory retirement from service on 13th May, 1979. The appellant filed a departmental appeal against the said order before the Government-respondent but it was rejected. Feeling aggrieved of the above-stated orders of the respondents the appellant has now come to this Tribunal by way of filing this appeal in which he has requested for setting aside of the impunged orders on the following grounds :
(1) That the impugned orders are illegal, without lawful authority and mala fide.
(2) That the impugned order of Commissioner has been passed in violation of the principle of natural justice as well as of the provisions of the Efficiency and Discipline Rules as no reasonable opportunity of showing cause was afforded to the appellant.
(3) That the impugned order of rejection of his appeal is illegal as the same has been passed by the respondent No, 1 without applying its own mind.
(4) That it was not necessary for the appellant to be a Matriculate for being promoted to the post of Naib-Tehsildar.
(5) That the rule 6 (3) of the Efficiency and Discipline Rules under which the proceedings were taken against the appellant is void being violative of the provisions of the Azad Jammu & Kashmir Constitution Act, 1974 as it is discriminatory in nature.
2. The respondents have contested the appeal both on legal grounds as well as merits. On point of Law, it is contended in written statement that the appeal is time-barred. On factual side, it is alleged that the appellant was proceeded against departmentally for submitting forged Matriculation Certificate with a view to getting promotion to the post of Naib-Tehsildar and that it was after serving show-cause notice upon him to which he gave no explanation that the order of his compulsory retirement was made by the competent authority,
3. We have heard the learned counsel of the parties and have also perused the relevant record. We first take up the preliminary objection of the counsel for the respondent in regard to the non- maintainability of the appeal on the ground of its being time barred. In the memorandum of the appeal, it is alleged that appellant received the intimation from the Commissioner regarding the rejection of his appeal by respondent No, 1 on 16th August, 1979. On the other hand the contention of the respondents in this respect is that the appellant was informed of the said order on 25th July, 1979. From the evidence produced by the appellant and the examination of the relevant record. We have come to the conclusion that the version of the appellant in this regard is correct one. The appellant has placed on record a photo stat Exh. PH of the letter of the Commissioner addressed to him through Tehsildar Mirpur dated 25th July, 1979 containing intimation of the rejection of his appeal against the impugned order of his compulsory retirement by respondent No,
1. On this document the date of receipt of the said letter by the appellant is shown as 16th September, 1979.
This Photostat is testified to be a true copy of the document attached on the relevant file kept in the Commissioner's office by the Senior Clerk of the Commissioner's office who produced the record and got his statement recorded as witness before the Tribunal. Neither any evidence has been produced nor there is any on the concerned file to show that the information regarding the rejection of the appeal of the appellant by respondent No, 1 was communicated to the appellant earlier than the said date. It is, therefore, proved that the impugned order of the respondent No, 1 was communicated to the appellant on 16th August, 1979 and thus computing the period of limitation fixed for filing an appeal against the final order of the competent authority before this Tribunal from the said date, the appeal is perfectly within time. Anyhow, if there is any delay in filing the appeal, the same is condoned in view of the circumstances mentioned above.
4. After disposing of the question of the limitation, we now proceed to take up the first contention on point of Law raised by the learned counsel for the appellant. It is argued by the learned counsel for the appellant that the Disciplinary Proceedings against the appellant have not been conducted in accordance with the procedure prescribed in relevant service rules and as such the impugned order of compulsory retirement of the appellant passed on the basis of such unlawful proceedings is unlawful and needs to be set aside. The above contention of the Counsel for the appellant has much substance in it. The Disciplinary Action against the appellant was to be taken under the Efficiency and Discipline Rules framed under the Civil Servants Act which regulated the terms and conditions of the civil servant. After going through Efficiency and Discipline Rules, we have formed the opinion that the procedure prescribed in the said rules has not been followed in the present case. Chapter-III of the said rules prescribes the procedure for enquiries and imposition of penalties on civil servant, whose rules 5, 6 and 8 are relevant for our purposes which are reproduced below :
5. Initiation of proceedings.-If in the opinion of the authority, there are sufficient grounds for proceeding against a civil servant, it shall direct the authorised officer to proceed against the said civil servant.
6. Inquiry procedure to be observed by the authorised Officer.- The following procedure shall be observed by the authorised officer when a civil servant is proceeded against under these rules :
(1) 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.
(2) The authorised officer shall decide whether in the light of the facts of the case or the interest of the justice an enquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, he shall appoint an Inquiry Officer or Inquiry Committee consisting of two or more persons who or one of whom shall be of the rank senior to the accused or all of the co-accused and the procedure indicated in rules 7 and 8 shall apply.
(3) If the Authorised Officer decides that it is not necessary to have an Inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall-
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action ; and
(b) give him a reasonable opportunity of showing cause against the action : 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.
(4) On receipt of the explanation of the accused, if any, the Authorised 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 alongwith the explanation of the accused, and his own recommendations regarding the penalty to be imposed.
8. Action by the authority.-In the case of any proceedings the record of which has been reported for orders under sub-rule (4) of rule 6 or sub-rule (8) of rule 7 the authority shall, after affording the accused an opportunity of being heard in person, pass such order as it may deem tit.
5. The perusal of the aforequoted provisions of rules would show that in disciplinary proceedings against a civil servant two persons, namely, "Authority and Authorised Officer" are indispensable.
Out of them the powers of the authority are limited who after taking decision for initiating disciplinary action against the civil servant and giving direction to the Authorised Officer to proceed against him severs all his connections with further proceedings and goes into the background to reappear on the scene only for the purpose of imposing major penalty if the same is decided and recommended by the Authorised Officer to be imposed on the accused civil servant. But in comparison to the authority the Authorised Officer after receiving the direction from the authority for proceeding against the civil servant comes to occupy the position of prominence and importance enjoying the wide range of powers and performing the important and vital role and functions in the conduct of the remaining Disciplinary Proceedings. It is the "Authorised Officer" who has been given the power to make fundamental and basic decision as to whether or not the inquiry should be conducted through an Enquiry Officer/Inquiry Committee. In case the regular inquiry through Inquiry Officer/Inquiry Committee it dispensed with it lies within his competence to inform the accused civil servant of the action proposed to be taken in regard to him and the grounds thereof. Even in the event of Inquiry being conducted through Inquiry Officer/Inquiry Committee the powers to appoint the Enquiry Officer/Inquiry Committee and to frame the charge sheet and communicate the same to the accused civil servant, also fell within the purview of the jurisdiction of the 'Authorised Officer'. Again it is for the Authorised Officer to see as to whether or not the charges have been proved against the accused civil servant. Not only that but he is also empowered to decide the nature of the penalty to be imposed upon the civil servant and can himself award the minor penalty if it is so proposed.
6. Before proceeding to decide as to whether or not the disciplinary action in this case has been taken in accordance with the relevant rules it become necessary to first determine the 'Authority and Authorised Officer' in the case of the appellant. The "Authority and Authorised Officer" are defined under clauses B and C respectively of sub-rule (i) of rule 2 of the Efficiency and Discipline Rules according to which the authority" means the Government or an Officer or authority designated by it to exercise the powers of the authority under the rules "and authorised Officer" means "an Officer to perform functions of an authorised Officer under these rules provided that in relation to certain civil servants, the authority may be authorised to act as authorised Officer". At the time of the initiation of the disciplinary proceedings against the appellant the Government had not as yet designated the Authority and authorised officer in respect of any of the Employee of the Revenue Department and it was only subsequent to the passing of the impugned 'order dated 13th May, 1979 that the authority and authorised officer in respect of Civil Servants of various Departments including Revenue Department were designated by the Government vide its Notification No, S & GAD/R-80/S.0-1/21864-924/79 dated 7th October, 1979 in exercise of its power under the above-stated provision of Efficiency and Displine Rules. Thus in the absence of any designation of authority and authorised Officer under the aforesaid sub-rule the provisions of sub- rule (4) of the rule 2 of the Efficiency and Discipline Rules were applicable for ascertaining the authority and authorised Officer in the case of the appellant. The above sub-rule reads as follows
(4) The various authorities empowered to award major punishments under the various delegation of powers rules, shall, in respect of civil servants to whom they are competent to award major punishment, exercise the powers of the authority under these rules and the authorities empowered to award minor punishment under the said delegation of powers Rules are in respect of the civil servants to whom they are competent to award minor punishment, authorised to exercise the powers of "Authorised Officer" under these rules.
7. In view of the above provisions of sub-rule (4) reproduced above the authority and authorised Officer in the instant case were determinable tinder the delegation of power rules applicable at the relevant time relating to the powers of the various authorities of awarding punishment on the civil servants. At time of the passing the original impugned order administrative powers including the powers of imposing penalties on various categories of the Government Servants were contained in Schedule V Part III appended to the Rules of Business, 1975 framed under section 58 of the Azad Jammu & Kashmir Interim Constitution Act, 1974. According to the said Schedule the category 1 Officer and 'Head of Office' were empowered to award the major and minor punishments respectively on the employees of their Department falling within grade 9 to 15 of the National Pay Scale. The appellant being an official of grade 9 and posted as Accountant in the Office of Deputy Commissioner Kotli, The Commissioner and Deputy Commissioner being administrative head of office were authority and authorised Officer respectively in his case.
8. After determining authority and authorised Officer we now proceed to decide the preliminary objection regarding the impugned order of compulsory retirement having been passed in contravention of the relevant service rules. From the perusal of the record of the case one 'cannot help in coming to the conclusion that in the disciplinary proceedings, taken in the present case which ultimately resulted in the passing of the order of compulsory retirement of the appellant the procedure prescribed in the relevant rules has altogether been disregarded so much so that even certain important and basic functions and powers have been performed and exercised by a person not legally authorised under the relevant rules. In this case the whole of the proceedings right from the beginning to the end have been taken by the Commissioner who, as seen above, was only the authority and the authorised Officer does not make its appearance at any stage of the proceedings to discharge his functions and to exercise his powers assigned to him under the Efficiency and Discipline Rules. Here it was the Commissioner who took the decision to commence disciplinary action against the appellant, served show-cause notice on him dispensing with the regular inquiry and finally passed the order compulsorily retiring him from service whereas the right and correct procedure to be adopted as envisaged by the Efficiency' and Discipline Rules, was that the Commissioner in his capacity as authority should have confined himself to giving direction to the authority Officer for proceeding against the appellant leaving the further proceedings to be conducted by him (authorised Officer) . Then it fell within the domain of the jurisdiction of the authorised Officer to decide as to whether or not the facts of the case or the interest of justice demanded the regular enquiry into the charge against the appellant to be conducted through the Enquiry Officer or Enquiry Committee. In the event of the decision in favour of the enquiry to be conducted through Enquiry Officer or Enquiry Committee it was also the Authorized Officer who was equipped with such fundamental powers as to the appointment of Enquiry Officer, framing of charge-sheet and communication of the same to the appellant and after receiving the Enquiry Report affording him the opportunity of personal hearing. Even in the case of the regular enquiry against the appellant being considered unnecessary, it was again the authorised Officer who should have informed the appellant in writing of the action proposed to be taken in regard to him and the grounds thereof and given him the reasonable opportunity of showing cause against the same. Nature of the penalty to be imposed was also to be decided by the authorised Officer and it was only when major penalty was called for, he was required to submit the case to the authority for the proper orders alongwith his recommendation regarding penalty to be imposed on the appellant. But in this case the Commissioner perhaps due to inadvertence did not confine himself within the four corners of his authority conferred on him by Efficiency and Discipline rules and rather travelling for beyond them and assuming for himself the duties and responsibilities of the authorised Officer performed and exercised functions and powers which exclusively fell within the jurisdictional competence of the authorised Officer. This intrusion into the sphere of jurisdiction of the authorised offices and rather his elimination all together from the field constitutes the clear infraction of the mandatory provisions of the service rules for which reason alone the whole of the disciplinary proceedings against the appellant have become null and void and stands vitiated and resultantly the order of the compulsory retirement from service impugned in this appeal is rendered unlawful, inoperative and unsustainable. The original order having been found illegal, the impugned order of the Government made in a petition for review automatically falls to the ground.
' For the foregoing reason the impugned orders are set aside with no order as to cost. Since the impugned orders are being vacated merely on the technical ground of non-compliance with the relevant service rules, it would be open to the competent authority to take fresh disciplinary proceedings, if so desired, against the appellant in accordance with the law keeping in view the above observations.