' MUHAMMAD IRSHAD KHAN (MEMBER).-- The appellant then working as Headmaster, F.G. Primary School No,5, Lahore, was placed under suspension vide order, dated 31-5-1978, issued on behalf of the Director, Cantt./Garrisons Educational Institutions, which is reproduced below:-, "With immediate effect and until further orders Mr. Syed Muhammad Yaqoob Shah, Headmaster, F.G. Primary School No,5, Lahore is hereby suspended from his duty on account of misconduct under Government Servants (Efficiency and Discipline) Rules, 1973.
2. During suspension he will draw the half pay plus usual allowances."
' Simultaneously he was charge-sheeted. The charge-sheet dated the 31st of May, 1978, and the statement of allegation annexed thereto are reproduced below:- "CHARGE SHEET ' Mr. S. Yaqub Shah, Headmaster, F.G. Primary School No, 5, Lahore Cantt. Is hereby charge-sheeted as under:- ' He is guilty of misconduct within the meaning of the rule 2(4) of the Government Servants (Efficiency and Discipline) Rule, 1973.
(2) A statement of allegation against him is on attached sheet.
(3) Mr. S. Yaqub Shah, is required within 10 days from the date of receipt of this charge-sheet by him to put up written defence to the charge-sheet and also state whether he is desirous to be heard in person. He is also required to show cause as to why he may not be removed from service under Government Servants (Efficiency and Discipline) Rules, 1973.
(4) Mr. S. Yaqub Shah must know that in case he fails to put up his written defence within the prescribed time limit, ex parte action will be taken against him without affording any further opportunity to which he will not have any right of appeal."
"STATEMENT OF ALLEGATION ' Mr. S. Yaqub Shah, Headmaster, F.G. Primary School No, 5, Lahore Cantt. Tried to persuade Mr. Salam Butt by all possible ways to disobey the orders given to him for moving to Hyderabad. Thus he has tried to create hinderance in the smooth functioning of the administration."
2. The appellant submitted on 8-6-1978 a reply to the charge-sheet whereby he denied and controverted the charges levelled against him and also requested for supplying him the relevant documents, if any which formed the basis of the charge-sheet and the name of the informer or witnesses, if any. It appears that the department had supplied a copy of the statement of Mr. Muhammad Salam Butt to the appellant. Whereupon the appellant again vide his application, dated 12-7-1978 refuted and denied the charges. According to the appellant neither any enquiry was held nor any other steps as required under the Government Servants (Efficiency and Discipline) Rules, 1973, was taken until vide order, dated 16-7-1980 he was compulsorily retired. The said order is reproduced below: "Subject: RETIREMENT FROM SERVICE ' Having completed twenty-five years service qualifying for pension Mr. Yaqub Shah, MTT, Headmaster (under suspension) of F.G. Boys Primary School No,5, Lahore Cantt. Is retired from the service with effect from 20th July, 1980. He is entitled to pension/gratuity as admissible under the rules.
(2) his name will therefore, be struck off from the strength of the said institution w,e,f, the same date."
3. The appellant after exhausting departmental remedy, filed the present appeal before this Tribunal whereby he had prayed that the order of his suspension and compulsory retirement be declared illegal and without lawful authority and be set aside.
4. It is contended on behalf of the appellant that his initial suspension was effected without the approval of the competent authority and, in any case, the order of suspension was valid for three months only and if it was intended to continue the suspension thereafter, the respondent- department was required under the law, to obtain and communicate the approval of the competent authority to the extension of the period after expiry of every period of three months.
Since no such action was taken, the appellant stood automatically reinstated into service. But instead of reinstating him into service and allowing him to perform his duties, the respondent- department illegally and incompetently imposed upon him punishment of compulsory retirement.
The respondents though could not show us anything to indicate that the initial suspension was ordered by the competent authority yet even if it is presumed, giving benefit of doubt to the respondent-department, that the initial suspension order was passed by the competent authority, it is undisputed that the appellant remained suspended for a little over two years but approval of the authority, after every three months, as required by rule 5(1) of the Government Servants (Efficiency and Discipline) Rules, 1973, was never obtained. The said rule 5(1) makes it quite clear that not only the contemplated suspension but its further continuation also must be preceded by approval of the "authority" after every three months. The official interpretation of this provision is given in Office Memo. Of the Establishment Division, dated 22-2-1975 printed at page 262 of the Estacode. The relevant portion may be reproduced with advantage:- "(a) ...
(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 re-instated unless "authority to the Government Servant continuing to be under suspension or on leave has been obtained. (Underlining is ours.)
5. It is thus evident that, according to the Government's own official interpretation, the appellant stood automatically re-instated into service on 1-9-1978, on expiry of three months of his suspension as upto that date no approval of the competent authority for extension of suspension was obtained and notified. We may observe in this context that the Government itself is not only bound by the instructions if issued for the guidance of its officers but is also obliged to follow and implement its own interpretation of a particular provision of law, unless the same are found to be in clear violation of any law. This view appears to have universal following. It may be pertinent to quote a passage from 92 - 93 of Legal Control of Government by Bernard Schwartz and H.N.R.
Wade:- "American law has not made any distinction between substantive and procedural rules in respect of their legally binding effect. There are numerous cases in which agencies are held legally bound by their own procedural rules, even when made informally. This principle has been applied to procedural rules governing discharges of Government employees, deportation proceedings, tax proceedings, and other cases. It makes no difference that the procedures established by the agency are more generous than is required by Constitution or statute. Agency's violation of its own procedures is considered arbitrary action, which 'cannot be reconciled with the fundamental principle that ours is a Government of laws'.
' The American Courts have not limited their application of this principle to cases where the procedures are promulgated under statutory authority, formally labelled 'rules' or 'regulations' and adopted with strict regard to the requirements of the Administrative Procedure Act. Thus the Supreme Court has held an agency bound by its own internal 'order', and other Courts have done the same with regard to a Federal Communications Commission 'rule' which, though not formally promulgated, had been established by the F.C.C's. 'usual practice', a Department of Defence 'Directive', and even a procedure enunciated in a 'New Release'. Thus there are certain kinds of rule- making which can have legal effect without any statutory authority whatever. It might almost be called legislation by estoppel."
' In view of the foregoing there is no escape from concluding that the respondent-department acted in violation of law and the Government's instructions in continuing to place the appellant under suspension beyond 1-9-1978 when, as said above, his three months period of suspension expired and no approval of the competent authority for extension proceeded.
7. 'We will now advert to the order of the appellant's compulsory retirement. We may first reproduce below the office noting whereon the impugned order was passed:- "This case relates to compulsory retirement of Mr. Yaqub Shah, Headmaster (under suspension), F.G. Primary School No,5, Lahore Cantt: after completion of 25 years of service qualifying for pension.
(2) Mr. Yaqub Shah was suspended by GSO-1, Lahore on 31-5-1978. Later on GSO-1, Lahore appointed Mr. A.K. Bhatti, Principal, F.G. Public School, Sargodha as Inquiry Officer to investigate in the matter. As a result of inquiry, the following charges were established:-
(a) He was found guilty of serious misconduct.
(b) He was found guilty of spreading discontentment/hate against the present organisation.
(3) The court of inquiry had recommended his compulsory retirement as he had completed 25 years of service. Accordingly the case was put up to DAE and his compulsory retirement was approved by the DAE. Meanwhile Mr. Yaqub Shah filed an appeal against his suspension in the court of Senior Civil Judge, Lahore. As such the retirement orders of Mr. Yaqub Shah were pended.
(4) The case is still undecided for the last two years. This case is lingering on because at the date of hearing, he gets a fresh date and it appears that court will take its own time for the decision of the case. The retention of Mr. Yaqub Shah in service is not desirable as it is evident from his past record that he is not fit for 'teaching profession'. He was active rabble rouser and the President of Teachers Union, Lahore.
(5) It is, therefore, recommended that he may be compulsorily retired from the service immediately because the Civil Court has no jurisdiction to try such suit. This case can be taken to Service Tribunal. The case is similar to Mrs. Nasim Humayun at Multan where the DAE decided to terminate her services when her case was still sub judice. Ultimately, we won the case. His date of appointment is 2-12-1952 and he has completed twenty-five years of service qualifying for pension on 2-12-1977.
(6) Case is put up for DAE's decision please.
(Sd.) Col. DDEI (M.A. Saleemi) 08 July, 80.
' DAE
(7) Please issue retirement orders.
(Sd.) Illegible 9/7"
' A bare reading of the noting and the sequence of events narrated above would clearly show that by the impugned order the appellant was stigmatised and punished for the charges levelled against him in the charge-sheet though the impugned order does not very specifically say so yet there can be no denying that the impugned order was passed on the re-commendation of the "Court of enquiry" which held that as a result of enquiry the appellant was found guilty of serious misconduct. Significantly, there is no mention in the impugned order nor it has been averred in the objection/parawise comments submitted by the respondent-department that the appellant was retired in the public interest. This lends further support to our conclusion that punishment of compulsory. Retirement was imposed upon the appellant by the impugned order which although not-saying so, yet facts revealing that he was being punished for misconduct. Needless to say that retirement which is based on a finding of misconduct carries with it a stigma and is quite different in its effect from simple order of retirement. It follows, therefore, that the appellant's retirement was undoubtedly a penal measure and not a retirement simpliciter.
8. When a public authority is directed under a law to make an 'enquiry' and the competent authority has to take action on the basis of its report and recommendation, it cannot carry out a grotesque caricature of it but, on the contrary, has to conduct it in a manner which does not violate the basic rules of natural justice and does not disregard the mandatory provisions of the prescribed procedure. In this case enquiry was not conducted in accordance with the Government Servants (Efficiency and Discipline) Rules; no witness was at all examined; no record of evidence/proceedings was maintained and above all the appellant was not provided a fair opportunity for showing cause against the impugned action. Such being the position, we have no option but to hold that the impugned order is illegal, arbitrary and capricious.
9. In the result the appeal is accepted, the impugned order is set aside and it is directed that the appellant shall be reinstated into service with effect from 1-9-1978, with all consequential benefits.
It E may, however, be clarified that it is open to the relevant authority to proceed afresh for the charges against the appellant in accordance with law and following the prescribed procedure.
10. No order as to costs.