ABDUL HAMID CHAUDHRY (MEMBER).-Mansur Ali Khan has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded Mr. Ahmad Sadiq, Secretary to Government of Punjab, Education Department, Civil Secretariat, Lahore, Prof. Nazir Ahmad Awan, D.P.I. (Colleges) Punjab, Lahore and Prof. Aziz-ur-Rehman's, Government F. C. College, Lahore as respondents.
2. By virtue of this appeal the appellant has prayed that the impugn--ed memo. No. 12661 dated 30-10-1982, copy at Annexure --L' together with memo. No. 9830/PA, dated 25-8-1982, copy at Annexure `A' and Notification No. S.O. (Sch.) 8-60/61, dated 16-8-1982 be declared null and void ab initio and quashed /struck down under rule 2, sub-rule (3) of the E & D Rules, 1975, being of no legal effect and without lawful authority. He has also prayed that the appointment of respondent No. 2 by respon--dent No. 1 as an "Authorised Officer" and the charge-sheet served by him upon the appellant and appointment of respondent No. 3 by respondent No. 2 as an Enquiry Officer, be declared a nullity and without lawful authority.
3. Brief facts of the case are that the appellant who is presently serving as subject specialist Government College for Elementary Teachers, Mianwali, in the Punjab Education Department was served with a charge--sheet having six counts by the respondent No. 2 as the "Authorised Officer".
He also appointed respondent No. 3 as the Enquiry Officer. The appellant was not satisfied with the appointment of D.P.I. (Colleges), respondent No. 2 as an "Authorised Officer" as accord--ing to him the appointment was mala fide and void ab initio under rule 2, sub-rule (3) of the Punjab Civil Servants (Efficiency & Discip--line) Rules, 1975. His grievance against the appointment of respondent No. 3 as an Enquiry Officer, is that this is violative of the instructions contained in S&GAD letter No. SC-II-84 (G)/75 dated 13-10-1975 (Annexure ---D').
4. The precise objection is that in view of serious allegations against him, the enquiry should have been entrusted to the Enquiry Officer in S&GAD through the Chief Secretary as per instructions mentioned above. The appellant filed a representation/appeal before the Government of Punjab through proper channel and copies endorsed to Governor Punjab/ Chief Secretary/Minister of Education/Education Secretary and others concerned, alleging mala fide against the Secretary, Government of the Punjab, Education Department and praying for quashing of Government of the Punjab, Education Department Notification No. SO(Sch)8-60/81, dated 16-8-1982.. This appeal/petition dated 2-9-1982 (Annexure 'E') was forwarded by Director of Education (Schools), Lahore Division, Lahore to the quarter concerned for necessary action. Instead of redressing his grievances, the appellant was transferred by respondent No. 1 to Mianwali from Lahore. Feeling that this action of respondent No. 1 was mala fide, he made a representation dated 8-9-1982 to M.L.A.
Zone ---A' (Punjab) Lahore, which was forwarded to the Chief Secretary, Government of the Punjab, Lahore, for consideration and disposal on merits. The appellant kept on making representation/petition/appeal to the higher authorities for pro--tection against Secretary to Government of the Punjab, Education Department but no relief was granted to him. Rather, the respondent No. 2 has directed respondent No. 3 vide his memo. No. 12661 dated 30-10-1982 (Annexure `L') to proceed further in the matter and complete the enquiry in accordance with the rules. Hence this appeal.
5. The appeal of the appellant was heard by us at the preliminary stage on 7-12-1982 and was admitted for regular hearing. The impugned order was also suspended till the next date of hearing with the direction to the respondents to file any objection, if so advised, and this case was finally heard by us on 4-1-1983.
6. The appellant has argued that D.P.]. (Colleges) who has been appointed as an "Authorised Officer" is not the competent "Authorised Officer" in his case under rule 2 (3) of Punjab Civil Servants (E & D) Rules, 1975, read with delegation of powers (Annexure III') and Govern--ment Notification No. SO(SE)-1-135/77, dated 15-9-1981 (Annexure `I1I'). The appellant further submitted that normally only the D.P.I. (Schools) can be the competent and lawful "Authorised Officer" in his case, as such the proceedings conducted against him by the present "Authorised officer" will be illegal. It will add to his agony and incurring of un--necessary public expenditure. He further submitted that as the allegations raised against him are about serious irregularities and gross misconduct, an Enquiry Officer from the S&GAD should have been appointed in view of the directive contained in S&GAD letter No. SC-II-84(G)/75, dated 13-10-1975 (Annexure --D') This plea is further supported on the ground that as he had alleged mala fide against respondent No. 1 i.e. Secretary Government of the Punjab, Education Department, no officer working under the Secretary would be in a position to act justly, fairly and im--partially as Enquiry Officer. Concluding his arguments, the appellant prayed that he is seeking justice from the Tribunal and injunction issued by the Tribunal already, suspending the operation of the impugned order, be confirmed.
7.Controverting these arguments, the learned District Attorney, assisted by the representative of the Department, argued that the Authorised Officer" was appointed under rule 2 (1) (c) of the Punjab Civil Servants (Efficiency. & Discipline) Rules, 1975 and he is the proper "Authorised Officer" appointed by the Authority and thus no exception can be taken to this by the appellant.
Furthermore, it is for the "Authorised Officer" to appoint Enquiry Officer of his choice. Thus, the contentions of the appellant are not correct and no injustice has been done to him.
8. We have heard the parties and have also perused the parawise comments offered by the respondents and other material placed by them on the record.
9. We may first deal with the two preliminary objections raised in the parawise comments of the respondents :- "(1) That there is no final, original or appellate order impugned in the present appeal. Thus, the appeal is not competent.
(2) That the appellant has not exhausted the remedies available to him against the impugned orders and as such the appeal is not maintainable."
But under paras. 5-6, ON FACTS, in the same parawise comments, the following has been mentioned :- (5-6) Admitted to the extent that the appeal dated 2-9-1982 was filed by the appellant, which was considered and necessary instructions were issued to the D. P. I. (C) to proceed in the matter and complete the enquiry as Authorised Officer vide Government Notification dated 16-8-1982 (copy enclosed)", Thus, the comments given at paras. 5-6 by the respondents contradict their own preliminary objections. In view of these facts the preliminary objections raised by the respondents do not stand.
10. As per request of the appellant, he is only asking for the appoint--ment of a competent "Authorised Officer" so that the proceeding under the Punjab Civil Servants (Efficiency & Discipline)
Rules, 1975, are con--ducted against him by a lawful and qualified "Authorised Officer" as laid down under rule 2 (3) of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 and also the enquiry by an independent Enquiry Officer.
11. A perusal of 1st proviso to rule 2 (1) (c) read with rule 2 (3) of Punjab Civil Servants (E & D) Rules, 1975, would make it absolutely clear that where an "Authority" has been empowered to award minor punishment under the Delegation of Powers Rules in respect of a civil servant, the same authority shall be the "Authorised Officer" for that civil servant under these Efficiency and Discipline Rules. Furthermore, the proviso clarifies it further to say that if no "Authorised Officer" has been designated or authorised, the Authority shall have the power to appoint an officer to act as "Authorised Officer" in that case. Admittedly that situation does not arise in this case. In order to facilitate the appreciation of the above view, we reproduce here below the relevant provision mention-- ed above :- ---2. Definitions.-(1) In these rules, unless the contexts otherwise requires :-
(c) "authorized officer" means an officer authorized or designated by Government to perform the functions of an authorized officer under these Rules : Provided that where in the case of a civil servant no authorized officer has been so' authorised or designated, the authority shall have power to appoint an officer to act as autho--rized officer in that case.
(3) The various authorities empowered to award major punishments under the various Delegation of Powers Rules, shall, in respect of civil servants to whom they are competent to award major punishment, exercise the powers of the authority, under these rules and the authorities empowered to award minor punishment under the said Delegation of Powers ;,Rules fare in respect of the civil servants to whom they are competent to award minor punishment, authorised to exercise the powers of `Authorised Officer' under these rules."
12. The above conclusion is further supported by the Departmental interpretation as mentioned at page 3 under the heading "Authority and Authorized Officer" as given in the "Guide Book" for Departmental Inquiries under the Efficiency & Discipline Rules, 1975, by the Services and General Administration Department ; which is as under :-- "Authority and Authorized Officer: According to Rules `authority' and `authorized officer' have been defined as the Government or any officer authorized to perform the functions of authority' and `authorized officer'. The `authority' is empowered to impose major penalties whereas 'autho--rized officer' can impose minor penalties.
These authorities are supposed to be prescribed in the respective Delegation of Powers Rules but in order to cater for cases where such rules have not been framed the authorities which were competent to award major punishments under the Efficiency & Discipline Rules, 1960 are deemed to be `authority' under the 1975 Rules. Similarly the authorities competent to impose minor penalties under 1960 Rules are deemed to be authorized officer' under the 1975 Rules. Where delegation under 1960 Rules also is not available, Government has the inherent power to exercise the functions of `authority' as well as ,authorized officer'."
13. It appears to us that the Governor had not been apprised of the above provisions, before he issued the impugned Notification No. SO(Sch.)8-60/81, dated 16-8-1982, wherein the D.P.I.
(Colleges) has been appointed as "Authorised Officer". A reading of rule 2-A, Punjab Civil Servants (E & D) Rules, 1975 shows that it is in that peculiar situation that the Governor may appoint an "Authorised Officer" different from the one given in the Delegation of Powers Rules. Undoubtedly no situation of that type arose in this case. Here the Secretary Education, Punjab or the Authority did not say that they were interested in the matter. It was rather the accused officer, who alleged mala fide against the Secretary Education, Punjab that too on a later date to pray that the normal rules be applied in his case. No one seems to have given any consideration to that request and , no one realized that the appointment of the "Authorised Officer" as made was in violation of the rule 2 (3).
The rule 2-A makes it quite clew that the departure from rule 2 (3) could be made only in the situation given in that rule which is reproduced below with advantage :- "2-A. Save in cases where Government is to act as `the authority' or 'the authorized officer' notwithstanding anything to the contrary contained in rule 2, where `the authority' or the authorized officer' would personally be interested in the result of proceedings under these rules `the authority' or `the authorized officer' shall not pro--ceed with the case and shall-
(i) in the case of 'authorised officer' report the matter to `the authority' which shall appoint and authorise another officer of the corresponding rank or status to act as `authorised officer' and
(ii) in, the case of 'authority' report the matter to the appellate authority to which the orders passed by `the authority' are ordinarily appealable and such appellate authority shall appoint and authorise another officer of the corresponding rank and status to act as the authority'."
We therefore, conclude that impugned appointment of the "Authorized Officer" was made in violation of the rules and the Governor appears to neither have been apprised of the relevant Rules, nor was he conscious of the fact that an appointment of the 'Authorized Officer" stands already made in the Delegation of Power Rules. Reference be made to Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore (PLD1964SC260). It was further held in Muhammad Farooq Imam v. Claims Commissioner, Lahore (PLD1964SC585) that if the Authority did not apply his mind to the situation of the case the order would not be lawful.
14. The objection of the appellant to the appointment of an Enquiry Officer also appears to be correct. A reference to the paragraph 6 of the charge-sheet would show that the appellant was accused of serious irregularities and gross misconduct. The letter of the Government referred to by the appellant, covers this situation and its relevant portion reads as under :- ---S&GA Department letter No. SC-II-84(G)/75, dated 13-10-1975.
Sub : Enquiries under Civil Servants (E & D) Rules, by Enquiry Officers in S&GAD.
(2) To expedite disposal of serious cases of inefficiency, indiscipline and corruption ; three posts of Enquiry Officers in Grades 18, 19 and 20 have been sanctioned in S&GAD.
(3) Serious cases of departmental enquiries under the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975, and other similar rules will be entrusted to Enquiry Officers in S&GAD. The following procedure will be followed in this connection :-
(a) In respect of officers in Grade 17 and above, when the authorized officer decides that an enquiry should be conducted through an Enquiry Officer or Enquiry Committee, the case shall invariably be sent to the Chief Secretary giving its background alongwith draft statement of allegations/charge- sheet against the accused officer/officers. It will then be decided whether the case should be entrusted to the Enquiry Officer in S&GAD or allowed to be handled by the Departmental Enquiry Officer/Special Judge-cum---Inquiry Officer."
As the functionaries under the Government are bound to follow the law and such instructions which do not contervene it. The above letter was binding on the respondent No. 2 and he was obliged to follow it. In view a of the matter the appointment of the Enquiry Officer being in violation ; of the above-mentioned directive cannot be maintained.
15. Keeping in view the above analysis, the `appeal of the appellant is accepted and the impugned orders are set aside.
There will be no order as to costs.