MUHAMMAD IRSHAD KHAN (MEMBER).-The relevant background of the present appeal is that the appellant was appointed on the 8th August, 1956, as Assistant Blood Bank Officer in the Jinnah Post-Graduate Medical Centre Karachi and, later on, he was promoted, with the concurrence of the Federal Public Service Commission, as Blood Bank Officer on the 25th August, 1962. On successful completion of his probationary period he was confirmed against the post of Blood Officer, Jinnah Post-Graduate Medical Centre, Karachi, and was working there as such when, on the 30th April, 1975, an order was issued telegraphically by the Health Division, transfer--ring him to the Central Government Hospital, Rawalpindi, and in his place, posting Dr. Sultan Ahmad Khan, Blood Bank Officer, Central Government Hospital, Rawalpindi. The appellant applied on the 2nd May, 1975, for grant of one week's medical leave (according to him before he came to know of his transfer order) on the ground of his sickness and later on vide his application dated the 8th May, 1975, he requested for a further leave of fifteen days. A perusal of the departmental file shows that the Joint Secretary of the Health Division had suggested to the Secretary, Health, that grant of leave, applied for by the appellant, could be considered if he fulfilled the conditions of furnishing; the medical certificate about his sickness and the lease admissibility certificate of Audit. However, the Secretary, Health, ordered on 20-5-1975 that the leave application of the appellant was to be rejected and he was to be required to move Rawalpindi to take charge as Blood Bank Officer, Central Government Hospital, by the 26th May, 1975. Before this order, rejecting his leave, was conveyed to the appellant he, vide his another application dated the 20th May, 1975, reiterated that he was still bed-ridden, due to lumbago, and requested that he may be allowed to avail of the two months' leave on average pay which stood sanctioned to him from the date of availing vide Health Division's letter dated the 19th September, 1974. It. However, appears that no orders were passed on this application. On the other hand, the appellant did not comply with the said orders and rather had been trying foe the cancellation of his transfer by means of pressurizing the Government through Pakistan Medical Association. The stand of the appellant was that he was Secretary, General of the Pakistan Medical Association which, at the relevant time, came in conflict with the persons then at the helm of affairs in the Ministry of Health on the question of formulation of a National Health Policy. The appellant had to run the Central Office of the Pakistan Medical Association situated at Karachi and had to carry on its functions according to the policy laid down by the Central Council of the Association. His transfer orders were issued with a mala fide intention to thwart the will of the medical profession and to stop the functioning of the Pakistan Medical Association. The functionaries of the Pakistan Medical Association, therefore, had agitated against the transfer of the appellant and thereon it was assured by the Federal Health Minister that his transfer would be cancelled. Therefore, the appellant first did not join his new place of posting. In the meantime vide order dated 25-8-1975 Dr. Sultan Ahmad Khan was retransferred to Central Government Hospital, Rawalpindi, but no orders were passed in respect. Of the appellant and he ultimately, on the 21st October, 1975, went to the Central Government Hospital, Rawalpindi, to join there. He was, however, told by the Medical Superintendent of that Hospital that as Dr. Sultan Ahmad Khan had been retransferred to the Central Government Hospital, Rawalpindi there was no post in that Hospital which the appellant could join. The appellant brought this fact to the notice of the Director General, Health, Government of Pakistan, but no orders were passed and rather on 18- 11-1975 an order was passed suspending the appellant from the post of Blood Bank Officer, Jinnah Post-Graduate Medical Centre, Karachi. He was then charge-sheeted vide charge-sheet dated 14- 1-1976 for disobeying the transfer order and also remaining absent from duty without any authority.
An enquiry was thereafter conducted by Mr. Abdul Latif Anwar, Joint Secretary, Establishment Division, who, in his enquiry report dated the 24th June, 1976, held the appellant guilty of the charge and thereon vide Notification dated the 10th September, 1976, it was ordered that the competent authority had imposed upon the appellant a major penalty of removal from service. The appellant filed a departmental appeal against the said order which was rejected as conveyed to him vide intimation received by him on 7-2-1977. He then preferred the present appeal under section 4 of the Service Tribunals Act, 1973.
2. We have heard the learned counsel for both the parties and also perused the record placed before us by the Departmental Representative. The learned counsel for the appellant has assailed the impugned order on several grounds of law and facts. It may first be mentioned that it transpires that the orders suspending the appellant as well as removing him from service, were passed with the approval of the then Minister of State for Establishment while the authority, to respect of the appellant, designated by the President, in exercise of the powers conferred on him by sub-rules (2) and (3) of rule 2 of the Government Servants Efficiency and Discipline) Rules, 1973, was the Prime Minister. It was therefore, only the Prime Minister who could competently impose upon the, appellant the penalty of removal from service. Confronted with this situation the Departmental Representative stated that the authority of the Prime Minister was delegated to the Minister of State for Establishment. He was, however, unable to produce anything to prove his contention. On the contrary, so far as we are aware, the powers of `authority' under the Government Servants (Efficiency and Discipline) Rules, were never delegated to the Minister of State for Establishment. In fact such powers could not be legally delegated by the Prime Minister as he himself was designated by the President to exercise the power of `authority', therefore, he could not delegate the same further. It is also noticeable that vide his D. O. Letter dated the 19th November, 1974, (printed on pages 263 to 265 of the Estacode) it was clarified by the Establishment Secretary that `authority for Officers of Grade-17 to Grade-20 was the Prime Minister and it was specifically emphasized therein that all proposals of suspension of the Officers of Grade-17 to Grade-20 and also the disciplinary cases, in respect of such officers, wherein it is proposed to impose a major penalty, should be submitted to the Prime Minister alongwith the explanation of the accused, the findings of the Enquiry Officer on Enquiry Committee, if appointed, and the recommendation of the authorised officer regarding the penalty: to be imposed. We are, therefore, left in no doubt that the appellant could be suspended only with the approval of the Prime Minister and also the major penalty of removal from service could be imposed upon him by the Prime Minister alone. The Minister of State for Establishment had no lawful authority to do so 'that being so, the suspension of the appellant as well as his removal from service was affected under the orders of an unauthorised person. An irresistible conclusion, therefore, would be that such an unlawful and incompetent order cannot be sustained. It may be pertinently mentioned here that I had noticed in Appeal No. 27 (K) of 1980 that Syed Javed Raza, Assistant Director, Bureau of Emigration and Overseas Employment, the appellant in that appeal, was suspended with the approval of the Adviser to the Chief Martial Law Administrator, who stood authorised by him (the Chief Martial Law Administrator) to exercise all the powers exercisable by the Federal Minister. However, after finalisation of the departmental enquiry, when the case was being submitted by the Establishment Secretary, i.e. The authorised officer, for the orders of the President, it was observed by him (the authorised officer), that the said Syed Javed Raza was suspended with the approval of the Adviser on Establishment Division but without the approval of the `competent authority' i.e. The Chief Martial Law Administrator: The suspension was, therefore, considered unlawful, having been affected with the approval of an incompetent person. It was, therefore, proposed by the Establishment Secretary, though no such plea was ever taken by the appel--lant, that the affect of such incompetent suspension orders should be nulli--fied and the accused office should be treated as on duty during the period of suspension. The said proposal was approved by the President and the Chief Martial Law Administrator. We have, therefore no option but to hold that the order suspending the appellant and the order imposing upon him the penalty of removal from service, having been passed by an unauthorised person were unlawful and void ab initio. The entire proceed--ings against the appellant and the orders passed thereon vitiated on this score alone.
3. Notwithstanding our above conclusion on legal plan, we would like to add a little on the factual plan of the case also. Our perusal of the record has revealed that on the fine morning of 28-4-1975 the Section Officer of the Health Ministry were up and recorded the following note and marked it to the Secretary :---- "Dr. Mir Ali Hashmi, Blood Bank Officer, J. P. M. C., Karachi, may be transferred with immediate effect to Central Government Hospital, Rawalpindi and Dr. Sultan Ahmed, Blood Bank Officer, Central Government Hospital, Rawalpindi be transferred to J. P. M. C., Karachi. Before issue, this may kindly be approved."
The Health Secretary, marking it to the Health Minister, noted that "H. M. May please see for information." It was remarked to the Health Secretary, perhaps by the Private Secretary to the Health Minister, with the remark "H. M. Has seen." Thus the tragic chapter was unceremoniously opened and order of the appellant's transfer was telegraphically issued. It is quite clear to us that, first of all, the Section Officer, who had recorded the note, had no business to suggest the transfer, in the above manner, and secondly his proposal is based on no reason whatsoever. It may, therefore, be safely concluded that the transfer of the appellant was affected in a quite unusual and unwarranted manner, more particularly, when the appellant was confirmed against the post of the Blood Bank Officer, Jinnah Post-Graduate Medical Centre, Karachi, and normally was not transferable from there except for special valid reasons. Most presumably the Section Officer and the then Health Secretary had acted in such unusual and unwarranted manner in order to satisfy malicious whims of the then Health Minister, who perhaps desired the transfer of the appellant not for administrative reasons but for his own personal reasons. It was laid down in Queen v. Rand ((1886) Q B 239) that where bias is alleged, the reviewing court does not decide whether the decision was into fact biased but whether in the circumstances reasonable possibility of bias was established. It is, therefore, quite clear to us that while ordering appellant's transfer the relevant authorities departed from the standard of even-handed justice and fairness which the law requires for those who occupy the position of authority, and thus they acted in a manner unfair to the appellant.
4. Moreover, though the conduct of the appellant in not obeying the transfer order is undoubtedly unapprovable yet it is significant that before the disciplinary action was initiated against him Dr. Sultan Ahmad Khan was retransferred to Rawalpindi and thus the way of the appellant to carry out the transfer order was blocked by the Ministry of Health itself. It is pertinent that even after Dr. Sultan Ahmad Khan was retransferred to the Central Government Hospital, Rawalpindi, the cancellation of the appellant's transfer was not ordered though we feel that Jinnah Post--- Graduate Medical Centre, Karachi, was a more important institution needing badly the services of a Blood Bank Officer. In the circumstances, the stand of the Ministry of Health that the appellant's transfer was ordered on administrative reasons, has no leg at all to stand on. There are rather sufficient reasons to believe that there was no element of good faith in the action of appellant's transfer. We thus find substance in the contention of the appellant that his transfer was ordered with a view to restrain him from functioning as Secretary-General of Pakistan Medical Association.
5. For the aforesaid reasons, we accept the appeal and set aside the order of the suspension of the appellant and the order of removing him from service. It is further directed that the appellant should be re-instated into service forthwith. He should be treated on duty, during the period of his suspension, and be paid accordingly as the suspension order was not passed with the approval of the "competent authority". However, for the period between the date of appellant's removal from service and the date on which he will now take over, in pursuance of this order, he shall be paid only the difference of his earnings, during the said period, and the emoluments which he would have drawn (in case the latter sum is higher) had he not been removed for he has admitted before us that he had been doing private practice during the period in question.
6. There shall be no order as to costs.