KH. GHULAM QADIR (MEMBER).-Above captioned three service appeals emerged in identical circumstances and involve common legal objections, so, all the three appeals are taken together and will be disposed of by one judgment. However, for the sake of convenience and proper comprehen--sion of the matter facts of each appeal are laid down separately.
2. In Appeal No. 89, at the time of passing the impugned order appellant Hanif Akhtar Ranja was serving under the respondent (Azad Kashmir Government) and was employed as Executive Engineer Rural Development and Project Director (World Food Programme aided pro--jects).
3. The appellant in Appeal No. 84, Mr. Mahmood Ahmed Lodhi was serving under the respondent as Deputy Director, Local] Government and Peoples Works Programme and in addition to duties he worked as Project Director Food Programme from 8-5-1976 to 12-3-1977.
4. The appellant in Appeal No. 85, Mr. Ghias-ul-Haq was employed as Supervisor .Local Government and People Works Programme and was posted as Storage Officer at Rawalpindi in the World Food Programme from 11-12-1975 to September, 1976.
5. Thus, all the three appellants were connected with the affairs of receipt and distribution of goods received through the Organization of World Food Programme.
6. The Azad Jammu & Kashmir Government (hereinafter called respondent) having received general complaints of gross misappropriation and embezzlement in various funds and grants decided to make inquiries into the allegations and for this purpose appointed two Commissions of Inquiry under section 3 of Commission of Inquiry Act, 1956 as applicable in Azad Kashmir.- Inquiry into the affairs of Peoples Works and World Food Programme fell within the purview of Commission of Inquiry No. 2 headed by Brig. Muhammad Arif Khan. This Commission conducted inquiries accordingly and found all the three appellants involved in corrup--tion and embezzlement of wheat and milk etc. Provided by the W. F. P. And ultimately submitted its report in respect of the appellants to the respondent. The respondent felt satisfied by the report of the Commission and consequently decided to initiate proceedings against the appellants under the A. J. K. Civil Servants (Efficiency and Discipline) Rules, 1977 hereinafter to be referred (Efficiency and, Discipline Rules) and in pursuance thereof three separate show-cause notices under rule 6; 3 (b) of the said rules were issued by the Services and General Administration Department on 29th April, 1978 to the appellants to show cause as to why they should not be dismissed from service for the reason that they appeared to be guilty of misconduct and inefficiency under rule 3(a) and (b) of the Effi-- ciency and Discipline Rules, 1977. Show-cause notice to Mr. Hanif Akhtar Ranja appellant in Appeal No. 89 contained the following 6 charges :--
(1) That you presented a fake stock register knowing it to be such.
(2) That you misappropriated jointly with .M/s. Mahmood Ahmad Lodhi, Ghias-ul-Haq and Saeed Ullah 2,650 maunds of wheat shown less in the fake register.
(3) That you ordered writing of 4,238 Maunds of wheat without pro--per authority and misappropriated the same.
(4) That you ordered writing of 311 bags (7,775 Kilograms) of milk powder without proper authority and misappropriated the same.
(5) That you misappropriated jointly with M/s. Mahmood Ahmed Lodhi and Saeed Ullah 4 wagons of wheat (approximately 2,000 maunds) received by the department but not entered in the stock register.
(6) That you have been found guilty of lack of administrative and financial control resulting in a number of incomplete projects, work done not being commensurate with the money and food-- stuff, utilized, and large scale mismanagement at all levels.
7. The show-cause notice issued to Mr. Mahmood Ahmed Lodhi appellant in Appeal No. 84 contained the following 6 charges :-
(1) That you ordered the preparation of a fake stock register.
(2) That you misappropriated jointly with M/s. Hanif Akhtar Ranja, Ghias-ul-Haq and Saeed Ullah 2,650 maunds of wheat shown less in the fake stock register.
(3) That you ordered writing of 284 maunds of wheat without proper authority and misappropriated the same.
(4) That you have been found guilty of lack of administrative and financial control, resulting in n6n- completion of schemes and mis--management on a large scale at all levels.
(5) That you misappropriated jointly with M/s. Hanif Akhtar Ranja and Saeed Ullah 4 wagons of wheat received by the Department but not entered in the stock register.
(6) That you accepted inferior clothing in case of Winter Clothing Project.
8. Show-cause notice communicated to Mr. Ghias-ul-Haq appellant in Appeal No. 85 contained the following 4 charges: -
(1) That you ordered the preparation of a fake stock register and showed 2,650 maunds less wheat and misappropriated the same jointly with M/s. Hanif Akhtar Ranja, Mahmood Ahmed Lodhi and Saeed Ullah.
(2) That you ordered writing of 1,175 maunds, (137 maunds on 22-4-1976, 42o maunds on 7-5-1976 and 612 maunds on 15-5-76), of wheat without proper authority and misappropriated the same.
(3) That you wrote of 311 bags (7,775 Kilograms) of milk powder without proper authority and misappropriated the same jointly with Mr. Hanif Akhtar Ranju.
(4) That you have been found guilty of shortage of 722 maunds of wheat in stock and misappropriating the same.
9. All the three appellants were charged with misconduct on the basis of the charges levelled against them in their respective show-cause notices.
10. The appellants submitted their written replies in detail in answer to their respective show-cause notices but the same did not find favour with the competent authority and ultimately the competent authority issued the impugned orders dismissing all the three appellants from service with further penalties of recovery of actual pecuniary losses caused to the Government which loss was to be worked out and recovered from each of the appellants. .
11. Feeling aggrieved by these orders of dismissal the appellants availed of the departmental remedy of review before the respondent but their Review-petitions turned out fruitless as the same were rejected. Having failed to seek departmental relief the appellants took recourse to the services Tribunal and filed three separate appeals under section 4 of the A J & K Service Tribunal Act, 1975 alleging that orders of their dis--missal passed on 24-6-1978 were legally and factually incorrect calling for their revocation with resultant re-instatement of appellants with effect from the date of passing of the impugned orders.
The respondent appeared through State Counsel and filed written objections in all the three appeals maintaining that the appellants were rightly found guilty of misconduct by the competent authority and the impugned orders were passed perfectly in accordance with the relevant law and rules and as such the appeals had no force in them and merit dismissal with costs.
12. The appellants got summoned the relevant record but produced no evidence on facts and merits of their respective cases to disprove allega--tions brought against them with the result that counsel for the respondent felt no necessity of leading any evidence in rebuttal and thus the cases were closed for arguments of the parties.
13. The arguments of the learned counsel for the parties were heard at length and then with the consent of the learned counsel for the parties it was decided that, in their own interest and for the convenience of the tribunal, the parties placed their written arguments on record.
14. The perusal of written arguments filed in all the three appeals in band reveals that no arguments were made on the merits and facts of the cases of appellants and rather the learned counsel for the appellants felt contended to raise the following common legal pleas in all the three appeals.
(1) That Commission of Inquiry could be set up for making inquiry into a definite matter only but the notification under which the Commission was set up does not specify any definite matter of public importance for inquiry.
(2) That proceedings of inquiry against appellants were taken by only one member of the Commission, namely, Major Aziz Abbas, which he alone could not do under the law and as such his pro--ceedings were a nullity.
(3) That under law the Commission was bound to administer oath to a person examined by the Commission but no oath was given to any person.
(4) That the report of Commission could not be used against the appellants in any manner while taking disciplinary action but the same was illegally used.
(5) That the Commission of Inquiry violated the rules of natural justice and also did not examine any witness in the presence of appellants.
(6) That no Commission of Inquiry could be set up to initiate dis--ciplinary proceedings against civil servants in the presence of Effi--ciency and Discipline Rules, 1977.' `
(7) That even if it be conceded for the sake of argument that a Com--mission could be appointed in place of an Inquiry Officer or Inquiry Committee as envisaged by the Efficiency and Discipline Rules, 1977, yet the Commission failed to follow the mandatory procedure prescribed under rule 7 of the said Rules.
(8) That the respondent in its capacity as `Authorised Officer' did not apply its independent mind while determining under rule 6 (4) of the Efficiency and Discipline Rules, 1977 whether the charges against the appellants (Civil Servants) were proved or not and the wording of the impugned order shows that the respondent acted under the influence of the report of Commission of Inquiry illegal- -ly as while passing the orders under appeal report of the Commission was also taken into consideration besides the replies or the appellants to the show-cause notice. In support of this contention the counsel for the appellants placed reliance on (1) P I. D 1955 Sind 357 ; (2) PLD 1973 Note 15 at p. 27 ; (31 PLD 1970 Lah. 811: (4) PLD 1977 Lah. 1377 ; (5) PLD 1978 Lah. 1166.
(9) That the appellants were charged with the allegations of inefficiency and misconduct but were punished for misconduct and corruption. Thus the ground of corruption was not com--municated to the appellants and punishment on this score was illegal.
(10) That reasonable opportunity of showing cause was not afforded to the appellants because report of the Commission was not sup--plied to the appellants and that the charges furnished to the appellants were vague and lacking essential particulars in dis--regard to the requirements of clause (b) to sub-rule (3) of rule 6 of the said Efficiency and Discipline Rules, 1977.
Reliance was placed on the following rulings :-
(1) PLD 1970 Lah. 811 (first para. On page 817) shorn of details.
(2) PLD 1978 Lah. 972 (975) B (copy of preliminary enquiry not supplied). 976 C (order of punishment not tenable in law).
(3) PLD 1960 Kar. 500 (503)C.
(4) PLD 1957 Kar. 54 (60)E.
(5) PLD 1957 Kar. 363 (365) A.
(6) PLD 1977 A J & K S. T. 127 (130).
(7) PLD 1961 Kar. 285 (295)G.
(8) 1982 SCMR 126 (Islamabad Club v. Muhammad Alsam etc.).
(9) Rashid Butt case (A J & K S. T.) Appeal No. 100 pages 15-16. (10) 1981 PLC (C. S.) 743. (11) 1981 PLC 700.
11. That the respondent as `Authorised Officer' did not decide consciously that the facts of the case or the interests of justice demand that instead of elaborate procedure laid down under sub-rule
(7) the shorter procedure prescribed under sub-rule 6(3) would be followed to the matters of the appellants. Mere issuance of show-cause notice under rule (b) cannot be deemed to be a substitute for a decision of Authorised Officer. In support of his contention the learned counsel referred to PLD 1966 Dacca 569 (d) and also 1981 PLC (C. S ) 877-879.
12. That the impugned orders were not self-speaking as it was not mentioned as to which of the charges were proved against the appellants.
13. Lastly, that the procedure provided under rule 6 of the E & D Rules, 1977 is arbitrary, capricious, whimsical and unjust and as such being uncontrolled by any guideline is capable of being misused. Thus, this rule does not provide any reasonable classification or rational basis and is a complete negation of Fundamental Right No. 15 of the Interim Constitu--tion, Act 1974 which provides a right of equality to every citizen before law.
This contention was based on :---
(1) PLD 1957 SC (Pak.) 157 and PLD 1957 Pesh. 100.
(2) PLD 1975 SC 506 app. 66 (153-155).
(3) AIR 1952 SC 75.
(4) AIR 1961 SC 1715.
(5) PLD 1958 Pesh. 73 and PLD 1958 Quetta 12.
(6) PLD 1965 Lah.229
15. In Appeal No. 85 entitled "Ghias-ul-Haq v. Azad Government" an additional argument was raised that impugned order was passed by the respondent without lawful authority as under rules the 'Authorised Officer' and 'Authority' in respect of appellant, who was an officer in N. P. S. 19; were the Assistant Director Local Government and the Director Local Government respectively who could pass any order under rules but instead the respondent assumed the powers of both the Authorised Officer and Authority and passed the impugned order in contravention of mandatory provisions of rules.
16. Thus on the basis of above-mentioned contentions the appellants have prayed that orders of their dismissal from service be set aside as illegal and they may be ordered to be re-instated into their respective services with effect from the dates of the impugned orders with all the consequential back service benefits.
17. The counsel for the respondent-Government in his written argu--ments has repelled all the contentions of appellants as un-founded and without any substance and supported the impugned orders to have been passed by the competent authority correctly and in accordance with law and rules after having afforded due and reasonable opportunity to all the appellants to show cause as to why the proposed orders of punishment be not passed against them on the grounds of having committed the charges of misconduct as proved from record. The learned counsel for the respondent has cited certain rulings which will be discussed later while deciding the relevant points in issue.
18. Now we proceed to take up the contentions advanced by the learned counsel for the appellants one by one for discussion and deter--mination in the light of the record and relevant law and rules.
19. Arguments of the learned counsel for the appellants based on points Nos.1 to 7 mentioned above revolve round the constitution of the Commission of Inquiry and legality of its final report submitted to the Government-respondent qua appellants.
20. In our opinion it would be futile to discuss these points and to give any findings on them because all these questions are irrelevant and in--effective for the purpose of determining the factum of proof or disproof of the charges brought against the appellants and in consequence thereof com--mission of the guilt of misconduct under the Efficiency and Discipline Rules for which the appellants were ultimately penalised. The fact of the matter remains that the Azad Kashmir Government had received general complaints of corruption, misappropriation and misuse of certain funds and grants in its certain departments and in order to satisfy itself about the genuineness or otherwise of the complaints so received, the Government decided to make probe into such allegations through some responsible agency so that if it was satisfied on the report of the Commission that in fact some department or its functionaries were found to be connected with or involved in the charges of corruption and misconduct then disciplinary proceedings could be initiated under the relevant rules applicable to the concerned civil servants. As such the Government appointed two Com--missions under the Commission of Inquiry Act, 1956 to make necessary inquiries about the specified matters and to submit its report to the Government. This exercise was undertaken by the respondent Government only to satisfy itself before taking any disciplinary action against any civil servant on any charge that there were prima facie sufficient to initiate proceedings. Thus such an inquiry by the Commission was a preliminary inquiry in nature and could be conducted by the Commission in any manner it deemed fit in the circumstances of each case. The Com--mission would have done well if such an inquiry was conducted in accor-- dance with the principles of natural justice thereby examining witnesses on oath in presence of the concerned officials and even had afforded them reasonable opportunity to explain the matters and to defend themselves. But if the Commission failed to act, as indicated above the appellants have no legal ground of grievance on this score because civil servants are governed only by the Civil Servants Act, 1976 and the Efficiency and Dis--cipline Rules, 1977 made thereunder insofar as their any liability in consequence of any disciplinary proceedings is concerned and no proceeding or report independent of the abovementioned law or rules can in any manner affect adversely a Civil Servant in respect of his service rights. In this view of the matter we attach no importance to the pleas raised under points Nos. 1 to 7 mentioned above and thus these objections are rejected as irrelevant and without any substance for the purpose of deciding the appeals in question.
21. Now, adverting to the other objections of the learned counsel for the appellants, we would like to take up those points first which relate to the validity of Rule 6 of the Efficiency and Discipline Rules, 1977 and the procedure adopted by the Authorised Officer in connection with the disciplinary proceedings initiated against the appellants. In this regard the contention of the learned counsel for the appellants is that the pro--cedure provided under rule 6 (2 and 3) of the Efficiency and Discipline Rules, 1977 is arbitrary, capricious, whimsical and unjust and being not controlled by any guideline, is capable of being misused. Moreover, as the Rule does not provide any reasonable classification or rational basis, it is a complete negation of Fundamental Right No. 15 guaranteed under the Azad Jammu & Kashmir Interim Constitution Act, 1974, which provides the right of equality before law to every citizen of the State. In support of his contention the learned counsel has relied on PLD 1957 SC (Pak.) 157 ; PLD 1957 Pesh. 100; PLD 1957 Quetta I ; PLD 1975SC506;AIR1952SC75;AIR1961SC1715;PLD 1931 Pesh. 73 ; PLD 1958 Quetta 12 and PLD 1965 Lah. 229.
22. The learned counsel for the respondent has repelled the conten--tion of the learned counsel for the appellants with the argument that by providing two procedures in the rules the intention of the Legislature was to provide for speedy disposal of the proceedings which was to be adopted by the Authorised Officer only in case where in his discretion the circum--stances of the case or ends of justice so demanded. Such a classification by the Legislature in the law or rules is permissible and does not offend against the equality provision of the constitution if the classification is rational and reasonable. The learned counsel placed reliance on AIR 1955 SC 166 AIR 1953 SC 404 ; AIR 1958 SC 538 in support of his contention.
23. In order to properly appreciate the delicacy and implication involved in the issue contested by the learned counsel for the parties we have gone through the relevant provisions of the rules and the authorities cited at bar by both the parties.
24. For the sake of thorough appreciation of the matter the relevant provisions of the Efficiency and Discipline Rules, 1977 under assail are reproduced below :- Rule 6. -Enquiry 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).........
(2) The authorised officer shall decide whether in the light of facts of the case or interests of justice an inquiry 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 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 Com--mittee, 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 action, and
(b) give him a reasonable opportunity of showing cause against that action.
Thus, from the perusal of sub-rule (2) of rule 6 it is clear that if the authorised officer decides that in the light of facts of the case or the interests of justice an inquiry should be made then he will appoint an inquiry Officer or Inquiry Committee for the purpose and in pursuance of the procedure laid down under rule 7 of the said rules frame a charge and communicate the same to the accused alongwith a statement of allegations and any other relevant circumstances proposed to be taken into consideration. After this the role of the Inquiry Officer or the Inquiry Committee, as the case may be, starts who under sub-rules (3) and (4) of rule 7 shall enquire into the charge and may examine the evidence in support of the charge or in defence of the accused and the accused shall be entitled to cross examine the witness appearing against him. But in case the authorised officer decides that no inquiry as en--visaged under sub-rules (3) and (4) of rule 7 as indicated above is necessary then the procedure prescribed under clauses (a) and (b) to sub-rule (3) of rule 6 shall be followed by him with the result that neither any evidence, oral or documentary, shall be examined in the presence of accused nor such evidence shall be subject to any scrutiny through cross-examination. In result the accused is deprived of a valuable right of cross-examination which right ordinarily in the system of administration of justice, is a cardinal and indispensable ingredient of -justice and without exercise of which dispensation of justice becomes only a force.
Thus, here is the main difference in the two procedures prescribed for conducting enquiries against the accused civil servants. Now, the question which needs serious determination and answer is whether such a discrimination in procedure offends against the general principles of administration of justice and whether legislation to this effect is legal and valid in the eye of law.
25. Before dwelling upon the issue involved in detail it would be expedient to bear in mind the relevant expression used in the rule forming basis for the discretionary decision of the authorised officer as regards the procedure to be adopted in disciplinary proceedings against an accused civil servant. The relevant words of the rule are reproduced as under :- "Rule 6 (2).-The authorised officer shall decide whether in the light of facts of the case or in the interests of justice an enquiry should be conducted."
26. It is evident from the language used that 'facts of a case or interests of justice are the touchstones on the basis of which the authorised officer has got to make a decision whether an inquiry should be made or not through an Inquiry officer or Inquiry Committee. The facts of cases differ from case to case and no specific nature or situation of facts is laid down in the rule which may guide the authorised officer in making his decision whether an Inquiry Officer or Committee should be appointed or not. Similarly, the expression 'interests of justice' is a were term and its meaning cannot be restricted to a particular situation or a case and the words used leave a good deal of room for the authorised officer to use and interpret the same in any manner he may please.
So no hard and fact line has been drawn by the rule which may specify or characterise the cases in which inquiry by an Inquiry Officer or Inquiry Committee may or may not be made leaving it entirely to the good sense and discretion of the authorised officer to decide in which case an Inquiry Officer or Committee be appointed. An authorised officer is always expected to act judiciously in making his decision but if an authorised officer intentionally and wilfully wishes to act arbitrarily or wants to favour or disfavour any person at his whim or tries to make discrimina--tion by pick and choose then where is that guideline or clear cut policy which will act as an automatic check or control upon such unscrupulous authorised officer who may like to misuse the unfettered discretionary powers which the above quoted rule confers upon him and might be exercised according to his whim or fancy. In the absence of any clear and unmistakable guideline there is every possibility of misusing the discretion and meeting out a discriminatory treatment to any accused civil servant thereby flagrantly violating the fundamental provisions of the Interim Constitution Act, 1974 which under Article No. 15 undoubtedly guarantees equality before law to every citizen of the State without any discrimination in the following words:----- Article No. 15, Equality of State Subject :- All State subjects are equal before law and are entitled to equal protection of law.
27. The Constitution of a country or State is always a Supreme Law which is the fountain of all sub- legislation and no law can be made which runs parallel or counter to the parent law. As provided under Article 15 of the Interim Constitution Act, 1974 every citizen is entitled to equal treatment and protection under law and no discrimination is permissible between man and man in any field of life. However, it is legitimate for the State to make a reasonable and rational classification among the people for the purposes of providing equal and similar treatment in law within the classified group. A reasonable and rational classification would mean such a division of people or class of persons as would leave no room for doubt or mistake as to which person or persons fall to a particular class for purposes of administering identical treatment before law. For instance, among Government servants classification of gazetted and non-gazetted officials can legally be made because it would a reasonable classification as it would be easy for any person to determine as to which class a particular official belongs so as to give him identical and equal treatment without any discrimination. Similarly, classification among people on the basis of defined areas or occupations may be permissible in order to subject a defined class of persons to a particular law without any ambiguity or misunderstanding. But any law, whether substantive or procedural, which creates or makes room for creating distinction or discrimination by any authority whether executive, administrative or judicial, among persons belonging to the same class or group of persons would undoubtedly be a bad law as it will be offending against the constitutional provision of equality before law. Even if a Statute on the face of it is not discrimina--tory it would be so in its effect and operation if it vest unregulated official discretion in the authority so as to misuse the same at its whim and wish.
28. Our these views find full support from the following authorities cited at Bar.
"It is now well-settled that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (1) that the classification must be found on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary that tyre must be a nexus between the basis of classification and that o: the Act under consideration. It is also well-established by the decisions of Supreme Court ............ That Article 14 condemns discrimination not only by a substantive law but also by a law of procedure."
29. In AIR 1952 SC 75 it was held that speedier trial of offences may be the reason and motive for the legislation but it does not amount either to a classification of offences or cases. The necessity of a speedy trial is vague, uncertain and inclusive criterion to form the basis of a valid and reasonable classification. In the case of the impugned Act the discrimina--tion arises on the terms of the Act itself. The fact that it gives unrestricted power to the State Government to select in any way it likes the particular c4ses or offences which should go to a special tribunal and withdraw in such cases the protection which the accused normally enjoy under the criminal law of the country is on the face of it discriminatory.
30. In AIR 1953 SC 409, upholding the principles of reasonable and rational classifications for legislation as discussed in detail in AIR 1952 SC. 75, it was held that Article 14 does not insist that legislative classification should be scientifically perfect or logically complete. Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of Article 14 must be determined in each case as it arises, for no general rule applicable to all cases can safely be laid down, After considering the background of the legislation and its preamble, and the purpose of speedy disposal of special cases it was held that distinguishing AIR 1952 SC 75, section 4 of West Bengal Criminal Law Amendment (Special Courts)
Act (21 of 1949) was not violative of Article 14 of the Constitution.
31. AIR 1955, P. 166 also endorses the basic principles of class legislation enuniciated in authorities referred to above and in no manner justifies unreasonable or whimsical classification for legislative purposes.
32. The legal issue whether a particular law or rule of procedure is violative of the Constitutional provision of equality before law or equal protection of law came up before the Superior Courts of Pakistan for consideration a number of times and the Courts in their authoritative judgments have upheld the principles enunciated in the judgment of superior Courts of India quoted above. In this respect PLD 1975 SC 157, PLD 1965 Lah. 229, PLD 1957 Quetta 1, PLD 1958 Pesh. 73 and PLD 1975 SC 506 were cited at Bar in support of the view that Courts have always struck down a law or rule as invalid if the same was shown to be offending against and contrary to the fundamental right of equality before law or equal protection of law guaranteed to every citizen under the constitution. In these rulings it has been held that though reasonable classification in legislation is permissible but such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained and classification cannot be made arbitrarily and without any substantial basis. Thus, from the study of the above rulings of the august superior Courts of India and Pakistan it is established beyond an iota of doubt that where the law makes a classification in legislation which is unreasonable and vests an unguided and unfettered power in the authority to enable it to make discriminative decisions in its application to the subjects of the State at its discretion and will, the Courts of law will never hesitate to undo the wrong and will at once strike down the law as obnoxious and void.
33. Keeping in view the vital principles and policy on the bass of which a reasonable classification in legislation can be validly made as discussed exhaustively in the various judgments of superior Courts of Indo-Pak two tests can be applied to adjudge the validity of a law, viz. (1) Is the classification rational and based on intelligible differentia, and (2) has the basis of differentiation any rational nexus with its avowed policy and object.
34. Now, testing sub-rules (2) and (3) of rule 6 of the Efficiency and Discipline Rules, 1977 on the above two principles, we have to decide whether a rational and reasonable classification has been provided in the rules or not. The words used in sub-rule (2) of rule 6 are that "The Authorised Officer shall decide whether in the light of facts of the case or interests of justice, an inquiry should be conducted through an Enquiry Officer or an Enquiry Committee." "Thus" the facts of the case" or "interest of justice" have been made the touchstone for the decision of the Authorised Officer and an obligatory duty is cast upon the Authorised officer to decide whether in a particular case, the facts of the case or interests of justice demand that any enquiry should be got conducted or not.
Although this guideline by itself does not provide a clear cut classifi--cation of cases in general, yet the Authorised Officer is duty-bound to make a judicious consideration of the facts of the case and to decide whether the facts of the case in a particular matter before him, warrant holding of an enquiry in the interests of justice and the Authorised Officer is supposed to exercise his judgment fairly and impartially so as to arrive at a correct decision. Ordinarily, the Authorised Officer would be supposed to act fairly in the interests of justice but if for one or the other reason the Authorised Officer commits error in deciding about holding of an enquiry, this mistake of procedure can be rectified by the appellate Tribunal or the Supreme Court- which is the final Court in the matter of services. Thus, if any injury is caused to any civil servant by the Authorised Officer by taking a wrong decision deliberately or inadvertently, the aggrieved person has got a legal right to challenge the decision of the Authorised Officer it, appeal and get his grievance redressed. Thus, keeping in view the broad principles of rational and reasonable classification in legislation we have come to the conclusion that the words "facts of the case or interests of justice" used in sub-rule (2) of rule 6 of the Efficiency and Discipline Rules, 1977 do provide a criteria for the Authorised Officer to decide whether in a particular case, the facts of the case warrant holding of an enquiry or not. It is quite possible that in a particular case the material on which the allegations have been based is contained in the official record or the same is even admitted by the accused civil servant. In such a case it would be a futile exercise to hold a formal enquiry into the facts and would amount to sheer waste of time and energy with no advantage. In such like cases, the Authorised Officer would certainly decide that no enquiry is justified by the facts of the case. On the other hand, if the facts of the case are such that some evidence, oral or documentary, would be required to prove the allegations, naturally the Authorised Officer would come to the conclusion that a formal enquiry needs to be held for which he may appoint an Officer or a Committee. Thus, facts of each case would be adjudged by the Authorised Officer on its own merits with the result that facts of the case or interests of justice would by itself make a classification which surely would be reasonable and rational. In this view of the matter. We reel the contention of the learned counsel for the appellants as without force and hold that the provisions of rule 6 of the Efficiency and Discipline Rules, 1977 are valid and perfectly in conformity with Fundamental Right No. 15 guaranteed in the Azad Jammu & Kashmir Interim Constitution Act, 1974.
35. Now, having come to the above finding, we would proceed to determine the next objection of the learned counsel for the appellants as to whether the Authorised officer had made an erroneous decision in their cases as regards holding of enquiries into the allegations keeping in view the facts of each case. We have carefully examined the charges levelled against each appellant which are almost of identical nature. The charges relate to the preparation of fake registers and misappropriation of certain amounts of wheat and dry milk in such like charges, generally, the accused---Officer would deny the allegations with the result that the charges would need to be proved by leading some sort of evidence in support of the allegations. The real matter can come to light only after holding the enquiry wherein necessary evidence will have to be led in support of the charges and the accused-Officer would also be entitled to an opportunity of defence by cross- examining the witnesses and also producing his defence, if any. Thus, we feel that in the case of the appellants, the facts of the cases as well as the interests of justice surely necessitated and warranted holding of enquiries but the Authorised Officer failed to exercise his discre--tion judiciously in deciding not to hold enquiries. This lapse on the part of the Authorised Officer has certainly resulted in miscarriage of justice which ultimately resulted in passing the impugned orders without first holding proper enquiries. As a result the impugned orders cannot be sustained in view of our above conclusions which are hereby set aside and the cases are remanded back to the competent Authority with the direction that enquiry in each case may be got conducted through an Enquiry Officer or Enquiry Committee, as the case may be under rule 6 (2) of Efficiency and Disciple Rules, 1977.
As the final orders of the competent Authority have been set aside on the ground of procedural defect and the cases are to be remanded back, we need not discuss the other legal issues raised by the learned counsel for the appellants or the merits of the cases which were not even argued before the Tribunal by the learned counsel for the parties.
(ii) No order as to costs.
(i.e) The parties shall be informed accordingly,