MR. JUSTICE SHAH ABDUR RASHID (CHAIRMAN).-The appellant Attaur Rehman's while working as Upper Division Clerk in the Income-tax Depart--ment was removed from service by the respondent Commissioner of income-- tax, Rawalpindi Zone, by his order dated 26-7-1975. He appealed against the order to the Central Board of Revenue but having received no reply he challenged the order of his removal by way of present appeal before the Tribunal under section 4 of the Service Tribunals Act, 1973, on 31-1-1976. Alongwith the appeal he filed an applica--tion for condonation of delay under section 5 of the Limitation Act, 1908.
2. The order of removal from service was received by the appellant on 28-7-1975. He appealed to the Central Board of Revenue on 25-8-1975, In view of. Proviso (a) of subsection (1) of section 4 of Service Tribunals Act, 1973, the appellant could come to the Tribunal after exhausting period of ninety days. That period expired on 25-11-1975. Under sub--section (1) of section 4 of the aforesaid Act the appellant could have filed the appeal before the Tribunal on or before 25-12-11975, but his appeal having been filed on 31-1-1976 was prima facie barred by time.
3. As far as the application for condonation of delay is concerned, the learned counsel for the appellant half-heartedly argued that there was sufficient cause for not preferring appeal in time as the appellant had no legal advice available to him. It was also urged that it is not incumbent upon the appellant to come within thirty days after the expiry of ninety clays waiting period and that he could come at any time if reply to the appeal is not received within ninety days. When his attention was drawn to the fact that larger Benches of this Tribunal in so many cases have held that the statutory period of limitation of thirty days provided for in subsection (1) of section 4 of the Service Tribunals Act, 1973, is applicable when the period of ninety days expires, he did not press the point further. He also could not convince us that there were sufficient reasons for delay of about forty days.
4. The learned counsel has pointed out that after the filing of appeal the appellant received an order dated 5-8 1978 from the Central Board of Revenue informing him that his appeal had been rejected. Another order dated 13th of August 1978 was then received by him which cancelled the order of 5-8-1978, but finally by order dated 25th January, 1979 his appeal was again rejected. He contends that the final order having been passed on 25-1-1979, the appellant could come to the Tribunal on 25-2-1979 and that the present appeal having been filed earlier on 31-1-1976 the question of bar of, limitation did not arise. '
5. The learned counsel for the respondent Syed Muhammad Shahudul Huque argued that after the passing of the order of appeal, the appellant got a fresh cause of action to the Tribunal but he could not pursue the appeal which had been filed prior to the passing of the final order. In his opinion, the appellant immediately after the receipt of the appellate order, should have withdrawn the present appeal and should have filed a fresh appeal as his grievance was now against the appellate order and not the order originally passed by the respondent Commissioner of Income- tax.
6. On the above particular issue we have heard counsel for the parties at length. The appellant's case is that right to appeal in the present case matured during the pendency of the appeal and it should. Have been futile exercise to withdraw the appeal practically repeating the same grounds with the only variation that his appeal has been rejected. His counsel vehemently urged that the cause of action having matured during the pendency of appeal should be heard by the Tribunal and disposed of as if it was filed against the final order passed during the pendency of appeal.
7. Reliance has been placed by the learned counsel for the appellant on the case of Abdullah Bhai v. Ahmad Din (PLD 1964 SC 106) wherein the view taken was that if a cause of action acrues during the pendency of the suit and was not mature when the suit was filed the suit could continue on the occurring of the cause of action. The relevant part of the order of the Supreme Court is as under:- "An argument had been addressed to us that the suit was premature and should have been dismissed on that ground. The suit had been filed on 17-1-1958 that is long before 3i-12-1959 on which date the period of the licence was to terminate. The trial Court had dismissed the suit. The Additional District Judge on appeal had decreed it on a date when the period of the licence had expired and the appellants had a right to possession. It was open to the appellate Court to have decreed a suit which was premature when it was filed but the cause of action respecting which had arisen during the pendency of the suit. We would not be prepared at this stage to dismiss the suit on this technical ground and to direct the appellants to file a fresh suit. It is also urged that even in respect of a licence there should be a notice of its termination. We are unable to entertain this plea for two reasons. In the first place even the filing of a suit was sufficient termination of a licence and in the second place this plea had not been raised by the respondent though the suit was based on a licence."
Reliance was also placed by the learned counsel for the appellant on the case of Baj Din v. Din Muhammad (PLD 1972 Lah. 567) wherein it was held that a suit which was not competent on the date of sale because of a statutory bar would not remain incompetent after the removal of the bar and that the suit which was premature could be continued after its maturity. The learned judges in this respect made the following observations: "There is no law or principle of law that a suit for pre-emption which was not competent on the date when the part of cause of action arose, would remain incompetent even after the removal of the bar against that suit. What a pre-emptor has to show is only this much that he was invested with the right of pre-emption on the date of sale and continues to remain so invested on the date of suit and the date of decree. The preferential right that a person possesses at the, time of the sale and retains, till the institution of the suit, entitles him to file a suit within the period of limitation provided by law. This right cannot be curtailed by a reference to a bar of jurisdiction of the Court on the date when the sale was effected. Even a premature suit can be continued after maturity although initially the suit may be susceptible of being thrown out as being premature.''
8. The learned counsel for the respondent contended that the cases relied upon by the learned counsel for the appellant arc not applicable in this particular matter inasmuch as the principle enunciated in those cases is applicable in suits which are based on what is called common law. He contends that this proposition would hold good in cases arising out of contracts, pre-emption, transfer of property but not in the cases which involve the interpretation of a special statute like the Service Tribunals Act, 1973. We are unable to agree with this contention inasmuch as both the cases relied upon by the appellant are not cases of suits based on common law but they arose out of disputes under special enactments.
9. The learned counsel for the appellant leas also relied upon the case under the West Pakistan Urban Rent Restriction Ordinance, 1959, wherein it was held that if the cause of action matures during the pendency of the case, the application can continue without requirement of filing any fresh petition. This case is reported as Mansoor Ahmad v. Bashir Hussain Babri (PLD 1977 Lah. 532).
This case also arose out of special enactment. In any case we are not convinced that the rules of interpretation differ when case under a special statute is to be decided, In our view the rule will be same in interpreting all the Statutes particularly of the, type of issue before us.
10. In view of the above legal position explained before us by counsel for the appellant we are convinced that the present appeal can continue even after the passing of appellate order by the Central Board of Revenue on 25-4-1979, which gave fresh cause of action to the appellant. Since the appeal was already pending the preliminary objection with regard to limitation has become redundant.
11. Coining to facts of the case it may be observed that they are more or less admitted. The appellant was working as Lower Division Clerk in the office of the respondent. He was alleged to have been involved, along with several other employees of the Income-tax Department in the office of the respondent for interfering and causing obstruction to the police party which raided the office of the Commissioner of the Income-tax in connection with an information of receipt of illegal gratification by one of the employees, of the Income-tax Department As a result of this obstruction a case was registered against several employees of the Income-tax Department but the name of the appellant did not appear in the F. I. R. And, therefore, he was not put up for trial before the Magistrate. The appellant was however proceeded against departmentally and a charge-sheet was served on him to which he duly replied. The inquiry Officer was appointed by the respondent Commissioner of Income-tax Rawalpindi and thereafter on the report of the Inquiry Officer the appellant was removed from service.
12. Apart from the merits of the case which we have not examined, the learned counsel for the appellant has taken up the stand that the entire proceedings against the appellant are illegal and invalid on account of non-observance of the provisions of the Government Servants (Efficiency and Discipline) Rules, 1973. The said Rules, in rule 5 provide for the inquiry procedure. Sub-rule (2) thereof would show that it was the authorised Officer who had to decide whether in the light of the facts of the case in the interest of justice, inquiry should be conducted through an Inquiry Officer or Inquiry Committee and if he decides that inquiry should be so conducted, the procedure in rule 6 shall be applicable. Sub-rule (3) of rule 5 provides summary procedure in case the Authorised Officer decides that it was not necessary to conduct the inquiry through an Inquiry Officer or an Inquiry Committee. Sub-rule (4) prescribed that on the receipt of the report of the Inquiry Officer or an Inquiry Committee', as the case may be, the Authorised Officer shall determine whether the charges have been proved or not. The said sub-rule gives power to the Authorised Officer to impose minor penalty in case he is of the opinion that no major penalty is called for. However, if he is of the opinion the major penalty is called for he has to forward the case to the Authority alongwith the charge-sheet and statement of allegation served on the accused together with explanation of the accused, the evidence recorded by the Inquiry Officer and recommen--dation of the Authorised Officer regarding the penalty proposed to be imposed. It is after this procedure that the role of the Authority comes into picture and it can pass such order as it may deem proper.
13. In the present case there has been clear departure from the procedure laid down in rule 5 inasmuch as the Authorised Officer does not at all figure' in the picture. The Authority (Commissioner Income tax) itself served the charge-sheet, appointed the Inquiry Officer an imposed the major penalty. It is settled principle of law that when certain thing is to be done in a particular manner it has to be done in that manner only and not in any other way. In the present case the Authority has itself usurped the power of the Authorised Officer which shows undue haste on its part and clear violation of the relevant rules.
14. The learned counsel for the respondent has contended that since the Authorised Officer is the delegatee of the Authority, Authority itself can exercise his power as there is no bar to the procedure adopted in this particular case. We are unable to subscribe to this view firstly because the Authority which in the present case is the Commissioner of Income-tax did not appoint the Authorised Officer but it was the President who designated the Authorised Officer as well as the Authority, and, therefore, the question of exercising the power of the delegatee by the delegator does not arise. Secondly the departure from rules has naturally prejudiced the case of the appellant,
15. When the Rules provide a particular procedure that procedure has to be observed and side tracking thereof will in our opinion be an invalid act. There can be no doubt that on the facts of the case prejudice has been caused to the appellant by not following the procedure prescribed in the Rules. It was quite possible that if the Authorised Officer had initiated the inquiry, he would have imposed a minor penalty or would have not imposed any penalty whatso--ever.
16. In the above circumstances we are of the view that since the procedure resulting in the removal of the appellant was defective and has caused prejudice to the appellant the entire proceedings are vitiated and the appellant is entitled to the relief prayed for.
17. In the result we accept this appeal, set aside the order of the removal of the appellant from service. He shall be deemed to be in service from the date of his removal with all the consequential benefits.