JUDGMENTFAZL-I-MAHMOOD, J.- This writ petition is directed against tin order of Controlling Authority whereby the fixed tenure of the petitioner was purportedly reduced and he was required to be repatriated to the Education Department.
2. The brief facts of the case are that the petitioner was serving as an officer in the Education Department and was appointed as Controller of Examinations, Board of Intermediate & Secondary Education, Sargodha in exercise of the powers under section 14 of the Punjab Boards of Intermediate and Secondary Education Act, 1976(Punjab Act No.XIII of 1976). It is an admitted position of the case that the petitioner was appointed with effect from 19th November, 1985.
However, there cropped up troubles for the petitioner and on the basis of some allegations regarding the marks obtained by petitioner's daughter, his case was moved for taking proceedings against him by the Specisl Secretary Education, Government of the Punjab. According to the said Secretary, since there was a prima facie case against the petitioner for the mis-use of authority and indulging in influencing the Sub-examiners to act dis-honestly in the marking of the papers, the Fducation department vide para 4 of the summary for the Chief Minister proposed the following action against the petitioner :-
(i) He may immediately be repatriated to the parent Department (Education Department).(ii) He may be proceeded under the University and Board of Intermediate and Secondary Education Malpractices Act, 1950, (Section 3 (xi-xii), which states "whoever is guilty of-(xi) approaching or influencing any .... Employee to act corruptly or dishonestly in the conduct of any examination, declaration of any examination result, or marking of papers or obtaining secret information relating to any examination; or(xii) attempting or abetting the commission of any of the aforesaid acts; shall be punished with imprisonment for a term which may extend to one year or fine which may extend to Rs.1000 or both."(iii) Department proceedings may be also initiated against him under E&D Rules.Apart from the above, it was further proposed that the Director Public Institutions(Schools) may be appointed as Authorised Officer to proceed against him under Efficiency and Discipline Rules. It was further submitted that since the preliminary probe was conducted by the DPI(Colleges), in keeping with the requirement of the propriety DPI (Schools) may be appointed as Authorised Officer. A further recommendation couched in para 6 of the said Summary was to the effect that the Sub-examiners guilty of wrongly marking the papers under the influence of the Controller may also be subjected to action under Efficiency and Discipline Rules and may be proceeded against by the Board in accordance with its own Rules and also in accordance with University and Board of Intermediate and Secondary Education Malpractices Act, 1950.
3. The approval of the Chief Minister was solicited for the proposals contained in paras 4, 5 and 6 of the Summary.
4. Learned counsel for the petitioner has based his case on the provisions of seel ion 14(2) of Punjab Act No.XIII of 1976 which reads as under :- "14. (1) The officers of the Board.............. (2) The officers of the Board shall hold office for a term of three years from the date of notification of their appointments and shall be eligible for re- appointment for such further period, not exceeding three years, as may be specified in the order of re-appeintment; provided that the Controlling Authority may, at any time review the work of the officers of the Board and if on such review it is satisfied that in the interest of the Board, or for any other sufficient cause, it is necessary to do so, it may, after giving an officer an opportunity to show cause against the proposed action, dismiss or remove him from service or reduce the term of office of any such officer by such period as it may determine."
5. The mainstay of submission of the learned counsel for the petitioner is based on the fixed tenure prescribed for the officers of the Board by section 14 of Punjab Act No-XIII of 1976. The Controller of Examinations happens to be one of those officers. There is no dispute that the officers of the Board shall hold office for a period of three years from the date of notification of their appointment and even they are eligible for reappointment for such further period not exceeding three years as may be specified in the order of re-appointment. However, the provision, in controversy, is proviso to sub-section(2) of section 14 of Act XIII of 1976. According to the learned counsel, there is undoubted power vested in the Controlling Authority to dismiss or remove an officer from service or reduce the tenure of his office by such period as it may determine but this is preconditioned by the absolute legal requirement that this can be done after giving the officer an opportunity to show cause against the proposed action. This was not done and according to learned counsel for the petitioner, the competent Authority was therefore not clothed with jurisdiction to pass an order in terms of proviso to sub section (2) of section 14 without first complying with the pre-condition spelt therein.
6. On behalf of respondent No.3, Learned counsel Mr. Inayatullah Cheema wanted to justify the action taken against the petitioner relying on the dictum of the Supreme Court in the case of Sawid Abul A'la Maudoodi and others vs. The Government of West Pakistan and others (P.L.D. 1964 S.C.
673). He, in particular, wished to rely on the observations of one of the learned Judges of the Supreme Court in the cited precedent to the effect that there may be conceivable circumstances in time of emergency in which it might be necessary for the Authrorities to take immediate action, for example, the activities of an association may be subversive to Government and a serious menace to the country. In such circumstances it will be unrealistic to impeach the action of the Government on the ground that the association was not heard "Hence taking action in an emergency without observing the maxim audi alteram partem would be a valid exercise of plenary administrative discretion. In other words in such exceptional cases the safeguard of fair hearing can be relaxed."
7. I have asked learned counsel for respondent No.3 to show, in the circumstances of this case existence of an emergency of the kind visualised in the precedent case so as to justify non- observance of the absolute requirement of sub-section(2) of section 14. He was unable to spell out any emergency of that nature. On this case the alleged event had already taken place. There was nothing contained in the summary to show emergency conditions warranting a departure from the normal rule of obedience to law. The mere bald argument of the learned counsel, therefore, is wholly insufficient to bring this case within the exceptions visualised in the cited precedent.
8. Learned counsel for respondent No.3 wants to supply the omission of the departmental functionaries by making his own observation that may be it was warranted on the basis of any approaching examination. I do not think that the ingenuity of a learned counsel can persuade this Court to imagine a state of facts which factually are not found to exist at the relevant time on a perusal of the departmental record. It appears to be a case of becoming wiser after the event.
9. The matter does not end here. What is worst is that while making the proposal for repatriation of the petitioner, the Special Secretary, Education did not draw the attention of the Controlling Authority to the observance of absolute requirements of a statute before following such a course. A contrary course was adopted in respect of the recommendation for proceeding against the petitioner under section 3 of the University and the Board of Intermediate and Secondary Education Malpractices Act, 1950 while quoting the legal provisions .Pressed into service. The learned counsel for the respondents did not offer any explanation for this visible failure on the part of Special Secretary and for adopting a different yardstick in similar situations. On a fair reading of the proposal of the Secretary as well as order of the Controlling Authority it cannot be said that the Controlling Authority was made aware of the fact that the proposal was for taking action to the detriment of the petitioner in violation of and through infraction of the law. No such words are to be found nor even such an insinuation can be spelt out from the Summary. In the above set of circumstances this Court is of the view that the impugned action against the petitioner in terms of provisions of subsection^) of section 14 of Punjab Act No. XIII of 1976, as amended, could only be taken with lawful authority after giving him an opportunity to show cause as required by the aforesaid mandatory statutory provision. I must observe here that whenever a statute ordains in clear terms that the statutory functionary is authorised to take certain action or to do certain acts or exercise powers after complying with certain absolute legal requirements then these requirements must be shown to have been fulfilled in a given case so as to clothe the action, acts or exercise of power with validity. Such legal requirement are like pre-conditions and it is only on the fulfilment of these pre-conditions alone that the authorities become competent to exercise power or to pass order in terms thereof. These pre-conditions are like a link in the chain and once a link is missing, there is no chain. As I have already observed, there was nothing to show that the Controlling Authority blessed the proposal of repatriation in violation of law. Therefore, even after proposal was approved, it was incumbent upon the Secretary of the Education Department to observe the law which he was bound to follow. I may with advantage here refer to a Division Bench judgment of this Court in the case of Major Muhammad Nawaz vs. Pakistan through Secretary.
Communication. Government of Pakistan. Islamabad (P.L.D. 1970 Lahore 811). This was a case in which a Director of the Telephones and Telegraphs Department had been proceeded against under the Government Servants(Efficiency and Discipline)Rules, 1960 and his removal bom service was ordered. He then approached the High Court for relief on uie principle grievance raised therein that the action against him was taken on the report of the inquiry officer who was biased. The observations which are relevant for the purpose of the present case are contained in para 34 of the judgment which read as under "We have had a look at the order passed by the competent authority in this case and that has left us with the impression that the Authority just passed an order on the basis of the biased report before it without consciously applying its own independent mind to the matter. A perusal of the files, shown to us by the learned counsel for respondent, has convinced us beyond any shadow of doubt that at the time when the file was placed before the President for his final orders he was not even apprised of the fact that the inquiry had been held in the absence of the petitioner and in- spite of repeated allegations made by him that the Enquiry officer was a biased person who could not hold an independent enquiry against him."
This was one of the grounds for the decision.
10. In the present case the serious omission which I have already noticed is that when the file was put up before the competent authority for final orders he was not apprised of the fact that proposal in the summary was designed to deviate from the manadate of law. If the intention was to take action against the petitioner on the supposed plea of emergency, without observance of the law, then it should have been so mentioned in the summary for the consideration of the competent authority. No such thing was done. The competent authority, thus failed to consciously apply its own independent mind to the matter. It is, therefore, very difficult to spell out a circumstance in favour of the respondents' impugned action or to justify a departure or deviation from the absolute requirement of the statute.
11. Learned counsel for the petitioner has also cited before me a Single Bench judgment of this Court in the case of Ala-ud-Din Akhtar versus Government of Paniab and others (P.LJ. 1978 Lahore 508) decided by Mr Justice Shafi-ur-Rehman(as the honourable Judge then was). In the cited case, the question involved was that of interpretation of section 14 of Board of Intermediate & Secondary Education, Lahore Ordinance, 1960. The only difference in the previous statute and present section 14(2) of Act XIII of 1976 is that of a proviso. It was held in the cited precedent as under "The case of the Government itself is that the appointment was under sub-section(2) of section 14.
In case of a post having a statutory tenure the rule of interpretation as laid down in case of Abdul Qayyum Qureshi v. Government of the Punjab (1975 S.C.M.R. 457) and (1976 S.C.M.R. 48) is that one has to look at the substance and not at the mere form of terminology used and the use of the word officiating does not have any effect on the true nature of appointment which was to be govrened by section 14 of the Ordinance.
The observation, with regard to the use of the term officiating would also hold good for the use of expressions "on deputation and liable to reversion" used in the terms and conditions handed down to the petitioner.
7. The Principle of construction and validity of an enactment with regard to the statutory tenure has been dealt with in Corpus Juris, Volume 46, page 965 in the following words: "A statute creating an office and fixing its term will be so constructed as to render it consistent with the provisions, if any, of the constitution, where possible.
In case the Legislature provides for a longer term than is permitted by the constitution, the act is ordinarily held to be valid as to the term permitted by the constitution, and void only as to the excess, although there is authority holding it void in toto, or that the office is held only during the pleasure of the appointing power. Where the term of an office is fixed by the constitution, and the appointing power attempts to limit the term to a less time the limitation mil be disregards as surplusage and an appointee's acceptance under such an appointment will not estop him from claiming the entire term. If the language of a statute specifying the term of office of an official is ambiguous, the interpretation which limits the term to the shortest time will be adopted."
On page 985 with regard to power of removal the foilwing statement of law occursThe power of appointment generally carries with it, as an incident, the powers to remove, but the power of removal may be impliedly or expressly restricted by constitutional provisions or statutes, and the general rule does not apply when a definite term is attached to an office by law, or where it is provided that the officer shall hold during good behaviour.
12. It follows therefore that while a power to make anappointment carries, in this case as well, a power to remove in view of the tenure fixed by the Legislature under sub-section(2) of section 14, such a power cannot be exercised by the recourse to expressions "officiating", "deputation", "reversion to his parent department" which in the context of this case are surplusage. Nor is the appointing authority free to assign residuary cause of public interest as an ordinary transfers and postings as a reason justifying interference with the tenure fixed by the statutes. Therefore, in view of the statutory tenure the Government cannot have recourse to the surplusage for interfering with the legislative will. The act, therefore, of terminating the petitioner's tenure by reference to the terms and conditions of his appointment being officiating, on deputation or from a parent department or in public interest cannot hold goad." vI respectfully agree with the reasoning adopted in the cited precedent.
13. The position in my view has now emerged stronger in favour of observance of law by reference to Articles 4 and 5 of the Constitution by virtue of which, to enjoy the protection of law and to be treated in accordance with law, is the inalienable right of every citizen. Similarly, according to Article 5(2) obedience to the Constitution and law is the inviolable obligation of every citizen.
Therefore, to raise the plea of going against the requirements of law or non observance thereof cannot be justified on any reasonable hypothesis or principle of law.
14. After having given my anxious consideration to the whole matter, I feel I am obliged to come to the aid of the petitioner because the proceedings became tainted with illegality inasmuch as the impugned action was taken to his detriment without giving him an opportunity to show cause against the proposed action. The words 'proposed action' is not without significance. This fortifies the word 'after'. Therefore, the "proposed action" cannot follow the action itself and that too without observance of law and its true spirit. In this case what has been done is that the action to the detriment of the petitioner was taken on 24th March, 1988 followed by a show cause notice issued on 28th April, 1988, that is, one month and four days after the event. A respondent, who is raising the plea of action with promptitude, cannot plausibly justify issuance of the show cause notice after one month and four days of the event having taken place.
15. For the reasons listed above, it is declared that the impugned notification, curtailing the three years tenure of the petitioner and ordering his repatriation without first complying with the mandatory requirements of section 14(2) of Act No.XIII of 1976, is without lawftil authority and of no legal effect. I have purposefully desisted from commenting upon the merits of the allegations levelled against the petitioner, to avoid any observation which may prejudice the case of either side. It is for the inquiry officer or the Authorities, which are dealing with the disciplinary action, to decide the question of truth or falsehood of the allegations on the basis of material before them.
16. I permitted some debate as to desirability of the petitioner going back to his seat. Actually, I allowed time to learned counsel for the respondents to brood over the matter and even get instructions lest it may involve elements of being prejudicial to the public interest which, in my view, must ordinarily reign supreme over an individual's interest., The petitioner has himself come out with a voluntary statement that he is not keen to meddle with the affairs of the Board and he is satisfied with the relief thatc he may obtain in accordance with law and he would desist from, in any mariner, putting into peril the conduct of the examinations or the secrecy in respect thereto.
17. The only question that now remains to be resolved is 'that of the petitioner's emoluments. The petitioner is entitled to back benefits from the day he was forcibly severed from his office. This is for the reason that the petitioner has throughout been willing to perform his duties but was illegally prevented by respondents from doing so. Of course, payments which have already been made to the petitioner for the period in dispute would be adjusted against his salary dues. Petitioner's tenure will be over on18.11.1988.
18. The writ petition is accepted in the above terms with no order as to costs.