Tauqeer Ahmed Khan, Member. This appeal under Section 4 of the Service Tribunal is filed by the above-named appellant assailing the order notification dated 16.02.2021, thereby imposing upon him major penalty of "reduction to a lower post for a period of one year". His departmental appeal against the said penalty was also rejected vide order dated 14.06.2021.
2. Brief facts of the case, as enumerated in the memo of appeal, are that the appellant was appointed as a Member of Sindh Police as DSP (BS-17) on 15.10.1995; promoted, to the rank of SP (BS-18) vide notification dated 13.02.2010. His services was, thereafter, merged into Police Service of Pakistan (PSP) Cadre in BS-18, vide Establishment Division's notification dated 17.12.2012. He had served in various positions in the Police from time to time and, has never, during his entire career, been involved in any inquiry proceedings (apart from the one referred to in the appeal).
3. The appellant was appointed as Deputy Director Anti-Corruption Establishment (ACE), Hyderabad on 16.09.2013 and was posted there until 01.02.2018. During the entire time at ACE, Hyderabad, the appellant has been working diligently and has performed many investigations. It was stated that at no time, the appellant was involved in any inquiry proceedings, nor any complaint of high-handedness or abuse/excess of power was ever made against him except the complaint referred to in the instant appeal. On 26.01.2018, he was directed, in writing, by the ACE Headquarters, to ensure registration of FIR No. 01/2018 against one Aghal Jan Akhtar, Ex-Secretary Agriculture Department, Government of Sindh and others and to ensure investigation of the same and to take measures for discovery and arrest of the accused persons. The said FIR was registered in relation to multi-million rupee Tractor Scam, discovered in the Agriculture Department. Challan has also been submitted in the matter and the case is pending. On 28.01.2018, the appellant, instructed by his senior officers, to conduct a raid at the residence of accused Agha Jan Akhtar as there was information that he was present there. The appellant, alongwith other ACE personnel, reached the premises where he was permitted to enter by the staff present but was informed that the accused was not present and, thereafter, he left the premises. However, as the said accused is extremely powerful bureaucrat, enjoying immense support in the higher echelons of power, he used his contacts to have the appellant immediately transferred from the post of Deputy Director, ACE, Hyderabad on 01.02.2018, as a punishment for raiding a high profile and connected bureaucrat. The appellant, abided by the orders, joined his new post as Deputy Director, ACE, Shaheed Benazirabad, however, after only one month, he was again transferred and was posted as ADIGP (Admin), Technical & Transport, Sindh, on 05.04.2018.
That more than two months (60 days), after the raid was conducted, mother of the accused Agha Jan Akhtar, filed a complaint dated 05.04.2018 against the appellant, falsely alleging that the appellant, while conducting the aforementioned raid at the house of accused, had ignored the fact that she (an elderly 89-years old woman) was living there and had acted in excess of his powers and even stolen items from the house. It was submitted that the said compliant was motivated with a desire to make an example out of the appellant and punish him for daring to act against the accused Agha Jan Akhtar so as to get him some relief in the criminal case pending against him.
Vide letter dated 24.01.2019, the Secretary Establishment, in his capacity as 'Authority' has appointed Mr. Abdul Khliaque Sheikh (PSP/BS-20), DIG Headquarters, Government of Sindh, as authorized officer to initiate disciplinary proceedings against the appellant (PSP/B5-20), requesting therein to conduct formal disciplinary proceedings against the accused officer under E&D Rules, 1973. It was further stated in the said letter that, if the authorized officer exercises his power in terms of Rule-5(1)(ii) of the Rules ibid, he may nominate an inquiry officer, senior to the accused officer.
Thereafter, vide order dated 01.07.2019, Capt (R) Faisal Abdullah, PSP, AIGP Operations, CPO, Sindh, Karachi was nominated to act as inquiry officer to initiate disciplinary proceedings against the appellant.
4. A charge sheet dated 01.07.2019 alongwith statement of allegations, with the following allegations was issued to the appellant by the authorized officer Mr. Abdul Khalique Shaikh: "An enquiry report conducted by Capt. (R) Asim Khan, PSP (BS-20), DIGP/Administration, Karachi Range vide No. DIGP/Admin/75, dated: 03.05.2018, was received from AIGP/Operations, CPO, Sindh Karachi through letter No. AIGP/OPS/RDR/2018, Kyc, dated 11.05.2018, on the complaint submitted by 89 years old Mrs. Feroza Agha resident of Bungalow No. 20/1. Khayaban-e-Sehar, Phase VI, DHA, Karachi against you regarding illegal/unwarranted raid conducted by you being former Deputy Director Anti-Corruption alongwith your team at 04:30 am on 28.01.2018.
2. The enquiry officer reported that:
(i) It had been proved that you while posted in Anti- Corruption had conducted an unwarranted raid on the house of 89 year old complainant Mrs. Feroza Agha situated at Bungalow 20/1, Khayaban-e-Sehar, Phase VI, DHA, Karachi on 04:30 am on 28.01.2018.
(ii)Further, there are illegalities in the late night raid conducted by you as you had used excessive force and brutality in attempting to arrest the accused Mr. Agha Jan Akhtar (Ex-Secretary Agriculture Department), nominated in case FIR No. 01/2018, u/s 420/409/467/466/471/34, PPC, of P.S. ACE Hyderabad. Most particularly, no warrant was issued for the arrest of the accused and as such you bad no authority conduct the raid.
(iii) Moreover, there was a irrefutable evidence on record that you and your team were responsible for damage of private property in the house of the complainant valuable items were taken from house, such as, mobile phones and wallets for harassment and intimidation of the complainant, her immediate family and household members. It is also noted that despite the fact that the complainant is an elderly women, no restraint was shown by you in the conduct of your raid. There were no female searchers of female policeman present and no regard was taken for the privacy, safety and health of the complainant, who could have suffered tremendous damage to her health from the shock of such actions. Hence through your conduct it was evident that you had ignored all professional standard in the raid conducted".
The said inquiry officer issued a notice of hearing on 22.11.2019 and directed the appellant to appear before him on 23.11.2019 i.e. one day after the notice (despite the fact that 7-days' time must be allowed for reply as per Rule-6). The appellant, nonetheless, submitted a written reply on 23.11.2019 before the inquiry officer. It was stated that disciplinary proceedings was to be completed within 60 days, however, the same was not done. Moreover, the procedure provided under Rules 5 & 6 of the E&D Rules, 1973 have also not been complied with in its true letter and spirit. The appellant was then issued a show cause notice dated 31.12,2019 by the Authorized Officer Mr. Abdul Khalique Shaikh. The appellant submitted his reply to the said show cause notice. It was stated that without prejudice to the appellant's original stance regarding all actions, being without jurisdiction, the inquiry officer in his recommendations, did not recommend any penalty, even major or minor. The authorized officer issued a notice dated 17.01.2020 for hearing on 20.01.2020, which the appellant attended and submitted his written statement as well as questioned by the authorized Officer.
To the utter shock and surprise, the authorized officer Mr. Abdul Khalique Shaikh in his findings and recommendations dated 27.06.2020 recommended (without proper reasoning) that the appellant may be awarded major penalty of reduction to a lower post' and be posted outside the Province for minimum of three years. It was submitted that this recommendations is beyond the recommendation submitted by the inquiry officer who did not even recommend a minor penalty.
After more than two years since the initiation of inquiry report of imposing and endorsing the recommendations of the authorized officer, the respondent vide impugned notification dated 16.02.2021, imposed the impugned penalty upon the appellant, which is neither based on any reason nor communicated to the appellant for such a penalty.
Pursuant to the aforesaid notification, the appellant filed a departmental appeal on 12.03.2021, which was simply rejected vide order dated 14.06.2021 without any reason and a bare perusal of the same, makes it clear that the same is a non-speaking order. Hence this appeal.
Alongwith the memo of appeal, an application (Misc. Petition No. 57/2021) has also been filed duly supported by an affidavit, praying to suspend the operations of the impugned orders i.e. 14.06.2021 and 16.02.2021. Notice of the same was also issued to the respondents for replication.
5. Written objections, report and parawise comments on behalf of the respondents have been filed signed by Mr. Miraj Muhammad, Section Officer, Establishment Division, Government of Pakistan, Islamabad. It was pleaded that IGP, Government of Sindh, Karachi, vide letter dated 16.05.2018, forwarded the departmental inquiry report to the Establishment Division with request to take necessary action against the appellant for ignoring all professional standards while conducting an un-warranted raid on the house of 89 years old complainant Mrs. Feroza Agha at Karachi. The Secretary, Establishment Division, in his capacity as Authority under Rule-2(2) of the Government Servants (Efficiency & Discipline) Rules, 1973 designated Mr. Abdul Khalique Shaikh, (PSP/BS-20) as Authorized Officer on 24.012019 who appointed Capt (R) Faisal Abdullah, AIGP (Operations) as inquiry officer on 01.07.2019 to conduct the inquiry. The authorized officer served charge sheet/statement of allegations upon accused officer on 01.07.2019. The accused officer submitted his written defence on 23.11.2019 denying the allegations pertained to violation of professional standards while conducting a raid on the house of 89 years old lady at Karachi. The inquiry officer presented report on 02.12.2019 with the findings, as mentioned in the report. On receipt of inquiry report, the authorized officer served show cause notice upon the appellant on 31.12.2019, to which the appellant submitted his reply. Based on the findings of the inquiry officer, response of the inquiry officer to the charge sheet/show cause notice, personal hearing, cross examination and other relevant documents, the authorized officer, inter-alia, held as follows: "It has been proved that the officer failed to take any lady constable with him. He showed no regard for the professionalism and legal requirements. The way the raid was conducted it would amount to trespass and the subsequent search of the house and other houses in neighbourhood would be an illegal act."
"It has further been established that he did not carry any warrant of arrest with him."
"Even if he was acting on orders of his superiors, it was incumbent upon him to exercise his judicious mind and observe the norms of decency, adherence to the standards of conduct laid down in Police Rules, 1934 and the Criminal Procedure Code of Pakistan. Unfortunately, the officer behaved irresponsibly, unprofessionally and is found involved in gross misconduct, harassment, intimidation, violation of human rights, disregard for respect to an 89 years old lady, damage to property and intrusion into privacy."
Based on the above findings, the AO recommended that the appellant might be awarded major penalty of "reduction to a lower post". The Secretary, Establishment Division in his capacity as Authority afforded an opportunity of personal hearing to the accused officer on 29.10.2020. The Authority after considering all relevant documents on record, recommendations of Authorized Officer and view point of the accused officer during personal hearing, imposed the major penalty of "Reduction to a lower post for a period of one year" upon the appellant, vide notification dated 16.02.2021. The appellant submitted a departmental appeal dated 12.03.2021 to the Prime Minister being Appellate Authority against the penalty vide notification dated 16.02.2021, which was rejected by the appellate authority vide order dated 14.06.2021.
6. We have heard the learned counsel from both sides and perused the record minutely including the citations, relied upon at the bar.
7. The action taken against the appellant is founded upon the proceedings under the Government Servants (Efficiency and Discipline) Rules, 1973. Under the Government Servants (Efficiency and Discipline) Rules, 1973 "the authority" and "the authorized officer" have defined functions and the duties. The Rules create a clear distinction in the "authority" and the "authorized Officer".
8. Rule-3 empowers the "Authority" to impose on a Government Servant one or more penalties Rule 4 makes a mention of minor and major penalties. Under Rule 5 inquiry procedure is laid down which is to be observed when a Government servant is proceeded against under the Rules. Its clause (i) make mention of the "Authorized Officer" and the "authority". It says that "In case where e 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 Authorize& 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. Its proviso again defines the role of the "authority" "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".
9. 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 recomendations 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".
10. Rule 6 lays down the procedure to be observed by the Inquiry Officer and the Inquiry Committee.
Its sub-rule (6) is as follows:
(6) The Inquiry Officer or the Committee, as the case may be, shall within ten days of the conclusion of the proceedings or such longer period as may be allowed by the authorized officer, submit his or its findings and the ground thereof to the authorized officer".
It shows that the "Authorized Officer" is to frame the charge and to serve it to the accused alongwith the statement of allegations. Under Clause (6), the findings of the inquiry are also to be submitted to the "authorized Officer". Rule 6-A is again of importance and reads as follows: "6-A. [Revision.-(1) Subject to sub-rule (2), the authority may call for the record of any case pending before, or disposed of by, the authorized officer and pass such order in relation thereto as it may deem fit"; It shows beyond any doubt that the proceedings before the "Authorized Officer" are subject to revisional jurisdiction of the "Authority". Thus the authority is accorded a higher status and duty. The two have distinct role and duty under the Rules. In the scheme of Rules the Authorized Officer is conferred/defined powers including the power to recommend to the authority the award of any of the major penalties prescribed in the Rules after due process of law.
11. This much is the importance of the parameters mentioned for inquiry proceedings in relation to any proposed action against the Government Servant creating distinction in the "authorized Officer" and the "authority". Its importance is further highlighted in the ESTACODE (Edition 2007)
Volume-H by further interpreting and elucidating through Instructions. It also finds mention in the ESTACODE that "the matter has been recently examined in the Establishment Division in consultation with the Law Division. The conclusion reached is given below ad-seriatim:
(a) Since under rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973 (SI.No. 85), the `authorized officer' can only suspend a government servant after obtaining the approval of the "authority", on the basis of the principle embodied in Section 25 of the General Clauses Act, 1897 the "authorized officer" would be competent to reinstate the government servant only with the approval of the "authority".
(b) Since continuation of forced leave or suspension beyond a period of three months again requires the approval of the "authority" it would appear that on expiry of the said period of three months the government servant who has been placed under suspension or forced to proceed on leave would be deemed to have been reinstated unless before the expiry of the said period the approval of the "authority" to the government servant continuing to be under suspension or on leave has been obtained".
Likewise is an elucidation of the subject at Page 868 Sl. No. 100. "Authority Competent to Suspend Officers of Grade-17 and Above.
It has been brought to the notice of the Prime Minister that some officers of the rank of Grade-17 and above have been suspended by the Ministers as a measure of disciplinary action. While it is not the intention that action should not be taken against a government servant guilty of misconduct, corruption or for inefficiency, it is a matter of some importance that the correct procedure should be followed in each case. Observance of correct procedure is essential not only in the interest of justice but also to ensure that Government Servants (Efficiency and Discipline)
Rules, 1973 (SI.No. 852 are complied with".
It has further been explained at Page 867 SI.No. 109.
"Powers of the Authority under Rule-6-A of the Efficiency and Discipline Rules.
Under the provisions of rule 6-A of the Government Servants (Efficiency and Discipline) Rules, 1973 (SI.No. 85), the authority may call for the record of any case pending before or disposed of by the authorized officer and pass such order in relation thereto as it may deem fit.
2. To enable the "Authority" to perform its function more effectively under the provision of said rule, it has been decided that in future, whenever the disciplinary proceedings are completed against a civil servant of the Federal Government in BPS-17-and above, copies of the record of the proceedings viz charge sheet alongwith statement of allegations; show cause notice, if issued instead of charge sheet; report of the Inquiry Officer and the final Orders, be endorsed to Establishment Division, joint Secretary (Discipline)".
12. Again vide S1.No. 116 at Page-873 by highlighting the importance of the due observance of the procedure a Check List has also been added for guidance to be followed: "Disciplinary Action--Need to Observe Strictly the Rules and Procedure Relating to Check List It has been observed that in dealing with disciplinary cases, care is not generally taken to observe the procedure laid down in the Government Servants (Efficiency and Discipline) Rules, 1973 (SI. No. 85). Such omissions vitiate the case and if the government servant concerned goes in appeal to the Service Tribunal, the appeal is sometime accepted on this account. It is therefore, necessary that extreme care is taken to ensure that the cases are dealt with accordance to the prescribed rules and procedure".
According to the Check-List the requirements to be noted while taking action under Government Servants (Efficiency and Discipline) Rules, 1973 (S1.No. 85) inter-alia are:
12. In the show cause notice issued under Rule 5(1)(iii), the proposed action and the grounds of the action including particular or particulars of charges and substance of evidence in support of the charges has been specified, the grounds for penalty in terms of rule 3 have been specifically mentioned; the penalty or penalties which would be called for if the charges are established have been specified and no general mention has been made by reference to all minor or major penalties. The description of penalties should conform to the description given in the rules. The show cause notice must be signed by the authorized officer.
13. On receipt of the report of the Inquiry Officer or Inquiry Committee or on receipt of explanation of the accused officer under rule 5(1)(iii) the Authorized Officer has determined whether the charge or charges against the accused officer has been proved or not (rule 5 (1)(iv)].
14. .........
15. In case the Authorized Officer has proposed imposition of a major penalty on the accused officer, he has referred the case to the Authority with his recommendation and with all the documents mentioned in the rule [rule 5 (1)(iv)].
16. When the accused has desired to be heard in person, the authorized officer has duly heard him in person before deciding to impose a minor penalty or make recommendations to the authority for a major penalty. [Rule 6(2)]".
13. The above detailed procedure and Instructions speak of the value accorded by the Government itself to the due and strict observance of the rules and procedure in the departmental proceedings against a Government servant.
14. The perusal of the above Rules and Instructions would go to show beyond any room for doubt that the functions of the "authorized Officer" and of the "authority" are distinct in their scope as some of the duties and functions are within the domain of the authorized officer and some vest in the "authority". The "authority" is at a higher level as certain actions like suspension etc are subject to its approval and is also a revisional body within the scheme of the Rules. It is thus clear that the recommendations of the authorized officer for imposing major penalty of reduction to a lower post" upon the appellant is against the Rules, therefore, liable to be set aside on this score alone, as such, the whole process stand vitiated. It may be mentioned that apart from the above position of the Rules and ESTACODE Instructions, the Service Tribunals and the Courts have also viewed such infraction of Rules vitiating the proceedings and the ultimate action.
15. In PLD 1981 Supreme Court 176 (Syed Mir Muhammad vs. N.W.F.P. Government through Chief Secretary) the Senior Civil Judge, Hazara was proceeded against by the Peshawar High Court and was removed from service after due inquiry but his removal was set aside due to non-observance of the rules, holding: "It appears to be the salutary requirement of rule 5 that the accused Officer must be given a reasonable opportunity of showing cause against the action proposed to be taken against him. If the shorter procedure is followed and inquiry is dispensed with, then this stage is reached when the grounds of the proposed action and the allegations are conveyed to him; but this stage is reached in the case of a formal inquiry only after the inquiry has been completed and the authorized Officer has formulated his views in the light of the inquiry report. It seems to us, therefore, that on a proper construction of rules 5 and 6 read together, it is statutory requirement that if a formal inquiry, is held, then the authorized Officer should, after he has tentatively decided upon the action he proposes to recommend the Authority, give an opportunity to the accused officers to offer his explanation against the proposed action in the light of the finding of the Inquiry Officer or Inquiry Committee, before sending his recommendations to the Authority".
(underlined for relevance)
16. In 1981 PLC (C.S) (LHC) 194 (Muhammad Nawaz us. Secretary to the Government of the Punjab Agriculture Department) it was observed that "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 form the wording of rules 5 and 6".
16A. 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".
17. 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.
18. In 1987 PLC (CS) 73, (Sharif Ahmad Khan vs. Secretary, Ministry of Defence) the charge sheet was framed by the Authority, which was the function of the Authorized Officer under the Rules. It was thus observed that "the intention of the rules is to give protection to accused officer 80 that his case may be examined at more than one stage and in case of performing functions of the Authorized Officer by the authority though a Different officer stood designated as Authorized Officer, the accused officer is to be deprived of that double check provided by law. We are, therefore, of the view that the Respondent No. 2 in framing the charge sheet, acted incompetently which vitiated the entire proceedings based thereon",
19. In 1991 PLC (CS) 109 (Malik Lal Khan vs. 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".
20. In 1995 PLC (CS) 116, (Youngs 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.
21. 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 with option for the department for fresh proceedings.
22. It has been seen as to how much importance has been accorded to the strict observance of the procedure mentioned in the Rules and also highlighted in the Instructions contained in the ESTACODE. The underlying idea is to afford maximum opportunity of fair treatment at the departmental level by authorities dealing with the disciplinary matter of a Government servant.
This is of utmost importance and also necessary as in case of imposition of extreme major penalty like dismissal from service (major penalty of reduction to a lower post for a period of one year') the whole service rendered and put in by the government servant may not, by a solitary incident/event or lapse, be set at naught. And its consequences may for a person or family be drastic and ruinous.
That is how any deviation from or violation of the Rules in the course of proceedings has been taken serious note and clear Instructions are imparted by the Establishment Division in the ESTACODE. In the instant case it was the one Mr. Abdul Khalique Shaikh, being authorized officer, who purported to have acted as the "Authorized Officer" and "Authority" which gave rise to the valid grievance of the appellant about the proceedings as violative of the Rules.
23. From the scheme of the Rules as elucidated by the Instructions of the Establishment Division contained in the ESTACODE it is absolutely manifest and clear that intermingling of functions of "Authorized Officer" and of the "Authority" is not contemplated, rather the two functionaries are distinct in the performance of their functions under these Rules.
24. It is well settled principle that where the law prescribes the doing of a thing in a particular mode and manner it is to be done in that way and not otherwise. It is also equally settled legal position that where the law empowers a designated functionary to exercise the power it is to be exercised by the said specified authority/person and none other. In PLD 1972 Lahore 316 (Syed Fayya z Hussain Qadri, Advocate vs. The Administrator, Lahore Municipal Corporation, Lahore and 4 others) this principle was stated in the following words: "When a statute confers a certain duty on an officer it is that officer who has to make up his mind and pass the order in-accordance with law.........."
25. The Rules i.e. E&D Rules, 1973 clearly envisaged the powers to be exercised by the authorized Officer and the Authority.
26. Under Rule 5(1)(iv) of Government Servants (E&D) Rule, 1973, the Authorized Officer is required to issue charge sheet, statement of allegations, nominate Inquiry Committee or Inquiry Officer, issue show cause notice and if it is considered that a major penalty has to be imposed, then the Authorized Officer has to forward the case to the Competent Authority along with his recommendations, but in this case as observed above, all the proceedings were conducted by the Authority and the impugned orders were passed by the Authorized Officer. Therefore, the whole proceedings against the present appellants were conducted in violation of the (E&D) Rules, 1973, and the same cannot be sustained.
27. We have also observed that apart from non-observing the codal formalities and misuse of powers by the Authorized Officer as `Authority', the appellant was also not afforded chance to cross examine the witnesses as the persons of the raiding party, who accompanied the appellant to conduct raid upon the house of Agha Jan Akhtar, were the person who could be in a better position to explain E the real position, but in our view they were neither called nor examined, thus the principles of natural justice have also been violated.
28. It is quite astonishing to note here that the raid was conducted by the appellant on 28.01.2018 and the proceedings against him concluded through the impugned order vide notification issued in February, 2021 has also surprised us as to why such a long time was taken to conclude such departmental proceedings against him. The authority concerned should look into the matter and to see that the proceedings against any delinquent is completed within a reasonable time.
29. For what has been discussed above, we are of the considered opinion that the impugned orders, both original and appellant, has no value in the eyes of law, as such, they are liable to be seta-aside especially in view of the fact that the major penalty was imposed against the appellant for a period of one year and that period has since expired till date. Order accordingly. Appeal alongwith the list petition is thus disposed of in the above terms.
30. No order as to costs. Parties may be informed.