CH. HASAN NAWAZ (MEMBER).--We are concerned, in this judgment, with the disposal of an appeal under section 4 of the Service Tribunals Act, 1973, filed by the appellant to challenge the validity of order of his dismissal from service passed by respondent No, 1 on 29-2-1984 and order dated 7-4-1985 made by respondent No, 2 rejecting his departmental appeal.
2. The order of dismissal from service dated 29-2-1984 reads that as a result of service of show- cause notice upon the accused Muhammad Rafiq Akhtar Bhatti, Line Superintendent-I, Talagang Sub-Division, which was not responded to by him, the undersigned (respondent No, 1) in the capacity of competent authority under Pakistan WAPDA (Efficiency & Discipline) Rules, 1978 is satisfied that it is not reasonably practicable to give him an opportunity to show-cause in terms of Rule 5 of the aforesaid rules" and that he is, therefore, dismissed from service with immediate effect under Rule 8(b) of the Rules.
3. As we see from the record, the appellant's dismissal from service came about on account of misconduct resulting from his long unauthorised absence from duty for the period from 6-3-1982 to the date of dismissal from service. He was on casual leave from 1-3-1982 to 5-3-1982, but he failed to join his office on the expiry of leave and remained continuously absent without leave during the ensuing period till 29-2-1984. His case in support of the relief sought by him is that he could not attend the office because of prolonged serious illness and that the medical certificates issued by the competent "medical practitioner" regularly despatched through registered cover by him to the Sub-Divisional Officer, Talagang went without any response; which justified the inference that leave applied for on medical ground had not been refused by the competent authority. He, eported for duty on 5-6-1984 to the Sub-Divisional Officer, who directed him to the Area Electricity Board, Islamabad, whence he came to know that he had already been dismissed from service.
4. The receipt of medical certificates has not been denied and the defence in the main is that the certificates received from time to time were returned to the appellant for counter-signatures of WAPDA Medical Officer, because they had been issued by a private practitioner and that he was directed to appear before WAPDA Medical Officer, Sunny View, Lahore for medical examination. He failed to comply with this direction and the respondents were within authority t disbelieve the certificates issued by the private practitioner. The appellant's long absence without leave, under the circumstances, amounted to misconduct warranting his dismissal from service.
5. Reliance in support of their case has been placed by the respondents on Rule 21 of the Pakistan WAPDA Leave Rules for WAPDA Employees, 1982 which makes the following reading: "Leave on medical certificate.--
(a) Leave applied for on medical certificate upto 30 days shall not ordinarily be refused provided the medical certificate is signed by one of the following:
(i) WAPDA Medical Officer;
(ii) Medical Officer authorised by WAPDA as Medical Attendant on part time basis; and
(iii) Medical Officer of Government Hospital/Dispensary/C.M.H.
(b) In cases involving leave on medical certificate exceeding 30 days, the competent authority may refer the employee to a WAPDA Medical Board comprising three Medical Officers or where such Medical Board cannot be constituted, to Civil Surgeon/Medical Superintendent of District Hospital or Medical Specialist/Officer Commanding of C.M.H. as the case may be, for opinion/recommendation. Orders for the sanction of leave exceeding 30 days on medical certificates or otherwise will be passed by the competent authority in the light of the opinion/recommendations referred to above.
(c) No WAPDA employee who has been granted leave on medical certificate may return to duty without first producing a medical certificate of fitness in the form attached to these Rules as Annexures VI and VII as the case may be.
Note:--Medical Officer/Board as mentioned in (a) and (b) above shall issue medical certificate on the Proforma Annexures VI and VII to these Rules."
6. There is no dispute about the fact that the medical certificates despatched by the appellant had been issued by a private practitioner. The respondents had, therefore, every justification for disregarding those certificates on the ground that they had not been signed either by WAPDA Medical Officer or a Medical Officer authorised by WAPDA as Medical Attendant on part-time basis or Medical Officer of a Government Hospital/Dispensary/C.M.H. The respondents have placed on record letter No, 10610-13.EP, dated 25-5-1983 addressed to the appellant by the Executive Engineer, WAPDA Operation Division, Pindigheb. It made a reference to his letter dated 30-4-1983 and directed him to appear before Director, Medical Services, WAPDA, Sunny View, Lahore for medical check-up and then submit a report to the Executive Engineer's office through S.D.O. (E) Talagang so that his case for leave on medical ground may be considered. He was told in very clear terms that no medical certificate was acceptable unless it was countersigned by the WAPDA's authorised Medical Officer.
7. An endorsement on the face of this letter bears out that it was sent by registered post, with 705 as number, on 25-5-1983. This is supported by the relevant entries of 25-5-1983 made in Register of Services Postage maintained in the office, a photostat copy whereof has been placed by the respondents on the record. They bear out that letter No, 10610-13.EP, dated 25-5-1983 was sent to the appellant by registered post on his address furnished by him to the office. In addition, we find a photostat copy of Receipt No, 705 issued by the Postal Authorities pasted on the face of aforementioned entries of the register. This receipt also shows that the letter was despatched to him by registered post. We feel no hesitation in holding that in the presence of these documents, nothing more is required to establish that the appellant was directed to appear before the Director, Medical Services, WAPDA, Sunny View, Lahore for examination and submit a report to the office to enable them to consider his request for leave on medical ground. As already noticed before, he was informed by this letter that no medical certificate without the counter-signatures of WAPDA's authorised Medical Officer was acceptable. This evidence incidentally falsifies the assertion that the appellant did not receive any "communication about the rejection of his medical certificates". It also belies the claim made in paragraph No, 2 of the appeal that leave on medical ground had not been refused by the respondents. Letter dated 25-5-1983 proves beyond all reasonable doubt that the leave requested by him had not been granted by the respondents and that he remained absent irrespective of the awareness that the veracity of medical certificates despatched by him in support of his illness remained a matter of doubt. He even did not care to appear before WAPDA's Medical Officer as directed by the office.
8. The evidence produced by the respondents in support of their case is sufficient and convincing enough to give a lie to the appellant's case to the effect that he was not aware of the fate of medical certificates despatched by him and that his request for leave on medical ground had not been refused. The record provides us with every reason to believe that he knew that his request for leave on medical ground had not found favour with the respondents and that he had been directed to get himself examined by the WAPDA's Medical Officer. His absence in the presence of these circumstances, therefore, was apparently in disregard of office discipline justifying the initiation of disciplinary proceedings.
9. We might as well make a reference to the appellant's pleadings on this point with some advantage. As already noticed before, he pleaded that while being on casual leave, he fell seriously ill on 5-3-1982. The nature of ailment has not been mentioned and we feel no hesitation in observing that the pleadings are rather evasive, considering that he remained absent for about two years and the description of ailment would certainly have been a material factor to give a colour of genuineness to his case. His failure to do so would lead a person of an ordinary prudence that his illness was not of a serious nature, as could have been sufficient to prevent him from attending his duties, and this too only if it be presumed that he in fact had been suffering from any ailment; which conclusion is also supported by medical certificates placed by him on the record stating that he was "suffering from PUO and Lumbago".
10. This was regarding merits of the case. As for objections of legal character against the impugned order, one of the grounds in support of the appellant's case that he was not given an opportunity to explain the circumstances under which he was prevented from performing his duties. It was averred that necessary requirements of the WAPDA Efficiency and Discipline Rules, 1978 were not fulfilled before awarding extreme penalty of dismissal from service and that the impugned order was arbitrary in the absence of an opportunity to defend against the proposed action.
11. On the basis of certain documents produced by the respondents, however, we are constrained to hold that even this ground is not available to the appellant. It is factually incorrect that he was not served with any show-cause notice as alleged by him in paragraph No, 4 of the appeal. Letter No, 4342- 44/I&O-710, dated 13-12-1983, placed on the record by the respondents bears out that a show-cause notice (in duplicate) was sent alongwith it to the appellant by the Director (Admn.)
Electricity Board, Islamabad with the request that he should return one copy to the office with his signatures in token of having received the notice. He was informed that he should submit his explanation within fourteen days of the receipt of the notice, failing which ex parte action will be taken against him. It was alleged in the show-cause notice that while serving as Line Superintendent-I in Talagang Sub-Division, during the year 1982, he absented himself from duty from 5-3-1982 without any intimation to his immediate officer. There is an endorsement on the face of this letter, like in the case of other mentioned before, indicating that it was sent to the appellant by registered post acknowledgment due. A photostat copy of relevant entries of Despatch Register also bears out that the letter alongwith the notice was despatched by registered post acknowledgment due, with 491 as registration number. Further, we find a photostat copy of relevant receipt issued by the Postal authorities pasted on the leaf of the register bearing out that letter dated 13-12-1983, accompanied by the show-cause notice (in duplicate) was sent to the appellant at his home address.
12. Procedure for service of show-cause notice or charge-sheet in certain eventualities has been laid down. in Rule 6-A of the WAPDA Efficiency and Discipline Rules, 1978. It provides that the letter calling for explanation of the accused under Rule 5 or the letter communicating the charges to the accused under Rule 6, shall be sent to him at the last known address under registered cover acknowledgment due and that in case the letter is received back with a report of refusal, or with a report that it has been received by a member of the family or it is not returned within a period of ten days from the date of its issue, it shall be presumed that the notice has been duly served on the accused. In the present case, as we have it from reliable documentary evidence produced by the respondents, the letter of explanation under Rule 5(iv) of the Rules was sent to him by registered post acknowledgment due and it shall be presumed to have been served on the appellant because it was not received back in the office with any report. This notice shows that he was informed of the action proposed to be taken in regard to him alongwith the grounds of action and that he was given an opportunity to submit a written explanation against the proposed action within a period of not more than fourteen days from the date of communication of explanation letter. It further shows that he was required to state at the same time in his written explanation whether he desired to be heard in person. In the presence of this documentary evidence, we are convinced that the requirements of Rule 5(iv) of the Rules were fulfilled in this case and that the appellant was given full opportunity to defend himself against the proposed action. The service of show-cause notice and compliance with the requirements of rules is a very material factor in this case; in the context of the allegation that he was not served with any show-cause notice and that opportunity of defence contemplated by the relevant provisions of the rules had been denied to him. The appellant's pleadings cause an impression and if his entire case is built on the allegation that he was not served with any show-cause notice and that an opportunity of defence was denied, thereby making the impugned order an arbitrary exercise of powers. Since this is convincingly proved to have been factually incorrect, we feel inclined to hold that nothing remains to be dealt with in his case, in so far as the facts are concerned.
13. It was contended by his learned counsel that even final show-cause notice in terms of Rule 5(v)
(b) of the Rules had not been served in this case. This rule provides that the procedure regarding provisional determination of penalty to be imposed, asking the accused to show cause and affording him an opportunity of personal hearing shall also apply to cases where the accused was issued explanation letter under Rule 5(iv) and the explanation submitted by him was found unsatisfactory. In this case, after he failed to respond to the letter of explanation, a show-cause notice was published in WAPDA 'Khaabernama' where it was announced that he was absent without permission or intimation since 5-3-1982 and that he was finally directed to appear within fourteen days of the publication of the notice and explain why proceedings against him should not be carried out in accordance with the relevant provisions of WAPDA Efficiency and Discipline Rules, 1978. This notice further said that in case he failed to appear, it shall be presumed that he has got nothing to say in his defence and then proceedings against him will be taken ex parte. We are of the opinion that this publication, under the circumstances of the case, amounted to service of final show-cause notice in compliance with the Rule 5(v)(b) of the Rules.
14. In expressing any opinion about this aspect of the matter, we must not lose sight of the fact that he had been served with a letter of explanation under Rule 5(iv) of the Rules and that he failed to submit any written explanation. Whether requirements of Rule 5(v)(b) of the Rules were duly fulfilled, has to be seen and determined in the light of the fact that he failed to explain his long absence from duty and that he was an absconder, a circumstance which obliged the respondents to have recourse to constructive service of notice by publication. In any case, we would not hesitate to say that under the aforementioned circumstances, the appellant was given full opportunity to defend and that there has been no miscarriage of justice, as would persuade us to strike down the impugned order. Reliance may be placed on the case of Muhammad Hameed Dervaish v. The Chairman WAPDA, Lahore and two others 1989 SCMR 617 where it was held by the Supreme Court that there could possibly be no vested right in second show-cause notice and that the case of Syed Mir Muhammad had peculiar features of his own and unless actual prejudice is shown, the benefit of second show-cause notice cannot be claimed, as was held in the case of Chairman Employees Old Age Benefit Institution and others v. Muhammad Ismail Munawar 1984 SCMR 143.
15. Another ground on which validity of the impugned order has been challenged is that "the service of the appellant is governed by the West Pakistan WAPDA (Power Wing) Technical Subordinates (Line Staff) Service/ Recruitment Rules, 1971 (hereinafter called the Recruitment Rules) and that according to the provisions of Rule 18 of these Rules, the appellant could not be dismissed from service without service of proper charge-sheet, giving reasonable opportunity of hearing, holding a proper and independent inquiry and service of show-cause notice alongwith a copy of inquiry report. It was contended that since these requirements had not been fulfilled before dismissing the appellant from service, the impugned order was ab initio void.
16. Importance of the question raised by the appellant's learned counsel and its effective determination requires a detailed address to the provisions of Rule 18 of the Recruitment Rules.
They make the following reading: "18. Compulsory retirement or removal or dismissal from service.--
(1) Notwithstanding anything contained to the contrary in any other Rules, orders or instructions already issued by the Authority, no member of the service, who has satisfactorily completed the period of probation and has also fulfilled all other terms and conditions of probation, shall be subjected to any major penalty of compulsory retirement, removal or dismissal from service, except on the following grounds (defined in the Efficiency and Discipline Rules applicable to him), namely:-- GROUNDS PENALTY
1. Misconduct.
1. Compulsory retirement or removal or dismissal from Service.
2. Inefficiency by reasons of infirmity of mind or body.2. Removal from Service
3. Inefficiency by reasons of-- -3. Compulsory retirement or removal from service.
(a) having on two or more consecutive occasions, failed to pass in a departmental examination prescribed for the purpose of maintaining or raising general efficiency;
(b) having, without reasonable cause failed to appear at any such examination as aforesaid or otherwise is not likely to recover his efficiency.
4. Corruption or subversion.
4. Compulsory retirement or removal or dismissal from service.
(2) Subject to the provisions of sub-rule (1) above, no order of compulsory retirement or removal or dismissal from service shall be passed without first completing the following necessary formalities prescribed in the Efficiency and Discipline Rules, namely:--
(i) Service of a proper charge-sheet on the accused, accompanied by a statement of allegations against him, giving a reasonable time (not less than 7 days and not more than 14 days) for submitting reply thereto; and
(ii) Giving a reasonable opportunity to the accused for being heard in person in connection with the charge-sheet served on him and his reply thereto; and
(iii) Holding a proper and independent inquiry by an Officer senior in rank to the accused (to be nominated by the appointing authority or any other authority authorised to do so under the Efficiency and Discipline Rules applicable to the accused) who is not directly subordinate to a Senior Officer who initially had, adversely to the accused, expressed a definite opinion on matters to be investigated in the inquiry.
(iv) Service of a proper show-cause notice (except when, in the opinion of the appointing authority, for reasons to be recorded in writing, it is not reasonably practicable or, in the case of allegation of subversion, it is not in the interest of security of Pakistan or any part thereof, to give the accused an opportunity for showing cause) alongwith a copy of the inquiry report to the accused indicating the ground on which the penalty is proposed to be imposed on him, and giving a reasonable time (not less than 7 days and not more than 14 days) for submitting reply thereto.
(v) Subject to clause (iv) above, giving consideration to any cause shown by the accused before imposing the penalty.
Any order of removal or dismissal passed without completing the above-mentioned formalities shall be considered as null and void, except where the accused is compulsorily retired, removed or dismissed from service on the ground of conduct which has led to a fine or imprisonment by a Court of law."
17. The provisions of Rule 21(ii) are also relevant. They are that in other matters relating to discipline, punishments and appeals, directly recruited members of the service shall be governed by the West Pakistan WAPDA (Efficiency and Discipline) Rules, 1966, as amended from time to time. Rule 22(2) is also in point. It says that every rule, order or instruction, already issued by the Authority in pursuance of section 18 of the Act, in respect of any matter not covered by these rules, shall continue to remain in force and shall be deemed to be incorporated with and to form part of these rules. Rule 25 of these Rules is also in point. It provides that in all matters not expressly provided for in these rules, members of service shall be governed by such rules as have been or may hereafter be prescribed by the Authority and made applicable to them.
18. As it has been seen before, under Rule 21(ii), the directly recruited members of the service were to be governed by the 1966 Rules in other matters relating to discipline, punishments and appeals.
Reference in Rule 18(1)(2) of the Recruitment Rules, to the Efficiency & Discipline Rules, is evidently to those enforced in 1966. It will, therefore, be worth its while to take notice of the relevant provisions of 1966 Rules, regarding inquiry procedure. Rule 5 prescribes as follows:-- "5. Inquiry Procedure.--
(1) Before one or more penalty is imposed on an employee, the competent authority shall frame a charge, communicate it, and call upon the employee to render a written explanation within a specified time, which shall not be less than seven days nor more than fourteen days from the date the charge is communicated to him, as to why disciplinary action should not be taken against him.
(2) The competent authority may either inquire into the case or appoint an officer, senior in rank to the person proceeded against, and direct him to conduct the proceedings and submit his findings and the grounds thereof within a specified time.
(3) The competent authority shall then consider the matter and pass such orders as it deems necessary.
(4) The competent authority shall convey its orders in writing to the employee concerned."
19. The procedural provisions of Rules 5 and 6 of the Pakistan WAPDA Employees (Efficiency & Discipline) Rules, 1978 (hereinafter called the 1978 Rules) may also be mentioned with advantage to embrace the entire gamut of the subject under examination. They are as under:-- "5. Inquiry Procedure:-- The following procedure shall be observed when a WAPDA employee is proceeded against under these rules:
(i) ............................
(ii) ..................................
(iii) The competent authority shall decide whether in the light of facts of the case or in the interest of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, the procedure indicated in Rule 6 shall apply.
(iv) If the competent authority decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, 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 the action; and
(b) give him an opportunity to submit a written explanation against the action proposed to be taken, within a period of not more than 14 days from the day the explanation letter has been communicated to him, and will also require the accused to state at the same time in his written explanation whether he desires to be heard in person: Provided that no such opportunity shall be given where the competent authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity.
(v)(a) On receipt of the report of Inquiry Officer or Inquiry Committee, the competent authority shall consider the same and if on such consideration he is of the tentative opinion that a penalty be imposed upon the accused he shall provisionally determine penalty to be imposed, and shall so inform the accused, supply him a copy of the report, and call upon him to show cause within a reasonable time not less than seven days and not more than fourteen days from the day the notice has been served on him, why the penalty proposed be not imposed. The competent authority shall take into consideration the cause shown by the accused, hear him in person, and determine whether charge has been proved and then notwithstanding anything contrary in any other rule, office order or instructions shall pass such orders as he may deem proper.
(b) The above procedure of determining provisionally penalty to be imposed asking the accused to show cause, and affording him an opportunity of personal hearing shall also apply to cases where the accused was issued explanation letter under rule 5(iv) and the explanation submitted by him was found unsatisfactory."
6. Procedure to be observed when an Inquiry Officer or Inquiry Committee is to be appointed.
Where an Inquiry Officer or Inquiry Committee is to be appointed, the competent authority shall:--
(1) Frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration.
(2) Require the accused within a reasonable time, which shall not be less than seven days or more than fourteen days from the day the charge has been communicated to him, to put in a written defence and to state at the same time whether he desires to be heard in person.
(3) The Inquiry Officer or the Committee, as the case may be, shall inquire into the charge/or circumstances and may examine such oral or documentary evidence in support of the charge/plea or in defence of the accused, as may be considered necessary, and the accused shall be entitled to cross-examine the witness evidence 'against him.
(4) The Inquiry Officer or the Committee, as the case may be, shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing. However, every adjournment with reasons therefor shall be reported forthwith to the competent authority.
Normally, no adjournment shall be for more than a week.
(5) Where the Inquiry Officer or the Committee, as the case may be, is satisfied that the accused is hampering, or attempting to hamper the progress of the inquiry, he or it shall administer a warning and if thereafter he or it is satisfied that the accused is acting in disregard of the warning, he or it shall record a finding to that effect and proceed to complete the inquiry in such manner as he or it thinks best suited to do substantial justice.
(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 competent authority, submit his or its findings and the grounds thereof to the competent authority."
20. As we can see from the provisions of Rule 1(2) of the Efficiency & Discipline Rules, 1966, they apply to all employees of WAPDA directly recruited by the Authority. However, the Recruitment Rules of 1971 are limited in their scope and under Rules 2(1) and 4 of these Rules, they apply only to directly recruited members of Pakistan WAPDA (Power Wing) Technical Subordinates (Line Staff)
Service which consists of the posts of Line Superintendents Grades I and II, Linemen Grades I and II, Assistant Linemen and such other equivalent posts as the Authority may from time to time by general or special orders specify. The 1978 Rules apply to all WAPDA employees, with the exception of those on probation and borne on work charged establishment. The probationers have been excluded also from the purview of 1966 Rules under Rule 6 which provides that nothing in these rules shall apply to the discharge or termination of the service of a person during the period of probation.
21. Further analysis shows that the inquiry procedure prescribed in Rule 5 of 1966 Rules was rather sketchy and lacking in certain material requirements. Although it provided for the formality of framing a charge, there was no provision that it shall be accompanied by a statement of allegations. Certain other formalities were also missing and it was precisely this circumstance which seems to have led the Rule-making Authority to the placement of Rule 18 regarding inquiry procedure on the Rules of 1971, although they primarily and basically were concerned with recruitment of a special class of members of the service in Power Wing of the WAPDA. As we see, the provisions of Rule 18 are elaborate, with the addition of certain procedural formalities which were not in 1966 Rules. It was prescribed for the first time that (a) "a proper charge-sheet" shall be accompanied by a statement of allegations against the accused; that (1) he shall be given a reasonable opportunity to be heard in person in connection with the charge-sheet served on him and his explanation; that (c) a proper and independent inquiry shall be held, not by the competent authority itself like in the case of 1966 Rules, but by an officer senior in rank to the accused to be nominated by the appointing authority or any other authority authorised to do so, who is not directly subordinate to a Senior Officer who initially had expressed a definite opinion adversely to the accused on matters to be investigated in the inquiry and that (d) a proper show-cause notice shall be served on him, with the exception of certain cases, alongwith a copy of the inquiry report indicating the ground on which the penalty is proposed to be imposed, with reasonable time for submitting an explanation. It further prescribed that competent authority shall give due consideration to any cause shown by the accused before imposing the penalty. It is also in the rules that any order of removal or dismissal passed without completing the above mentioned formalities shall be considered as null and void, except where the accused is compulsorily retired, removed, or dismissed from service on the ground of conduct "which has led to a fine or imprisonment by a Court of law".
22. It is quite clear from this comparative study that more safeguards were provided to the members of Technical Subordinates (Line Staff) Service in the Power Wing, than were available in the 1966 Rules. As already mentioned, the Disciplinary Rules in vogue at the time of promulgation of 1971 Rules were lacking in various formalities and this explains the reason for making provisions for a more detailed procedure adding certain formalities to rule out the possibility of any miscarriage of justice and the passage of an arbitrary order. We emphasize the fact that there was certainly quite some room for improvements which were accordingly made in 1971 by enacting Rule 18, although, as already mentioned before, they were primarily concerned with recruitment of members of the service.
23. There was further improvement in 1978 Rules which, as already noticed, applied to all WAPDA Employees except those on probation and work charged establishment, including members of Technical Subordinates (Line Staff) Service in the Power Wing of WAPDA, who had been separately dealt with in the 1971 Rules in matters of procedure in Disciplinary cases. They provided for the first time in Rule 5(iii) that the competent authority shall decide whether in the light of the facts of the case or the interests of justice, an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. In these Rules, the disciplinary cases were divided in two broad categories. First consists of those cases where it was decided by the competent authority that no inquiry need be conducted in the interests of justice or in the light of their facts. The procedure laid down in Rule 5(iv)(v)(b) was applicable to this category. The other category was of those cases where the procedure indicated in Rule 5(v) and Rule 6 of the rules was to be applied in consequence of a decision that an inquiry was necessary. Details may be avoided for fear of repetition and it will be enough to say that the inquiry procedure laid down in Rule 6 of these rules is even more elaborate than devised earlier in Rule 18(2) of 1971 Rules. Noticeable departure is only in one respect where the competent authority was given the power under. rule 5(iii) of 1978 Rules to decide whether an inquiry should or should not be conducted under the circumstances of a case and in the interests of justice. The need for such a differentiation seems to be the result of an obvious consideration that it was not necessary to frame a charge-sheet with the statement of allegations and hold an inquiry in every case and that there could be cases justifying a decision that no inquiry need be held in the interests of justice.
24. The point raised by the appellant's learned counsel, in the background of these rules, was that the procedure laid down in Rule 18(2) of the Recruitment Rules has to be followed in every case, regardless of its facts and that the provisions of this rule have the effect of taking away the competent authority's power to decide whether in the light of the facts of the case or the interests of justice, an inquiry should or should not be conducted. Although the learned counsel did not make a mention of Rule 5(iii) of 1978 Rules, reference can justifiably be presumed to have been made to the provisions of this rule, on the premise that this power became available to the competent authority for the first time under these provisions and that it was not in existence before their enforcement in 1978. The argument was that in disciplinary cases against directly recruited members of the service, the competent authority does not have the power to decide whether an inquiry is necessary and that the procedure laid down in Rule 18(2) of the Recruitment Rules, must be observed irrespective of the facts of a case, to avoid the passage of an arbitrary order.
25. It may be pointed out that 1978 Rules were not in existence at the time of the enforcement of Recruitment Rules in 1971. Therefore, reference to the competent authority's power under Rule 5(iii) of 1978 Rules, does not appear to be in place and the learned counsel should have taken us to the Efficiency & Discipline Rules of 1966 which were in vogue at that time. It was quite material to find out whether the power under rule 5(iii) of 1978 Rules was available to the competent authority even under Disciplinary Rules of 1966 in the context of the learned counsel's arguments, considering that only that power could be taken away which was in existence in 1971 at the time of promulgation of Recruitment Rules and that, conversely, something not in existence at the relevant time could not be taken away, by no stretch of imagination can the rules-making Authority be presumed to have intended the obliteration of something which did not exist and which therefore, may or may not have come about in future. We feel no hesitation in saying that the learned counsel's arguments are fallacious and untenable.
26. We propose to see the point from another aspect in the light of the provisions of Rule 21(2) of the Recruitment Rules, 1971 mentioned in the earlier part of this judgment. Rule 21(2) says that in other matters relating to discipline, punishments and appeals, directly recruited members of the service, shall be governed by 1966 Rules as amended from time to time. This being so, the 1978 Rules being an amended form of 1966 Rules, will be equally applicable to the members of the service in other matters relating to discipline, punishments and appeals. Therefore, reference to Efficiency and Discipline Rules in Rule 18(2) can as well be taken to have been made to those made in 1978. In this view of the matter, it is not possible to agree that the provisions of Rule 18(2) excluded the procedure laid down in Rules 5 & 6 of 1978 Rules. They are rather suggestive of the fact that these rules are applicable to the disciplinary proceedings, because the formalities mentioned in this sub-rule are the same as prescribed in Efficiency and Discipline Rules of 1978.
Both provide for communication of the charge-sheet, alongwith statement of allegations to the accused, reasonable opportunity for being heard in person in connection with the charge-sheet served on him and his explanation thereto, holding of a proper and independent inquiry and service of final show-cause notice alongwith the inquiry report indicating the grounds on which the penalty is proposed to be imposed against him. The only difference made by subsequent 1978 Rules is that this elaborate and self-sufficient procedure is to be applied only in cases where the competent authority decides that an inquiry is necessary either in the interests of justice or in the light of the facts of the case. This being the situation, we are of the considered view that the formalities mentioned in sub-rule (2) of Rule 18 of the Recruitment Rules, will have to be observed only in those cases where the competent authority had decided under Rule 5(iii) of 1978 Rules that an inquiry need be conducted under the circumstances of a particular case or in the interests of justice, particularly when those formalities are the same as prescribed in Efficiency and Discipline Rules, and moreso when there seems to be no logic behind the assertion that service of charge- sheet and holding of inquiry is unavoidable in every case regardless of its facts. As already pointed out before, the emphasis is on the fact that sub-rule (2) of Rule 18 of 1971 Rules does not have, even by implication, the effect of ousting or overriding the provisions of Efficiency and Discipline Rules, 1978, partly because of exactly identical nature of those provisions and in particular because those of 1978 Rules are later in date. The cumulative effect of these provisions is that identical procedure laid down in Rule 18(2) of the Recruitment Rules and Rules 5(iii) and 6 of 1978 Rules shall be observed in appropriate cases where an inquiry is necessary in the interests of justice or under the circumstances of a case. In this manner, the provisions of relevant Rules of 1971 and Disciplinary Rules, 1978 can be harmonised and made effective; which must have been the intention of the Rule-making Authority. We hold that there is no inconsistency in these rules and they can simultaneously be carried into effect.
27. In coming to this conclusion we have been motivated by the consideration that it is the duty of the Court to construe the provisions of a statute in such a manner so as to forbid one provision to stultify the other, and if possible the provisions in one section shall be read as qualification of others, so that same effect may be given to both in furtherance of the intention of the Legislature AIR 1928 Sind 149. One of the cardinal principles of interpretation is that different provisions of law should be interpreted in such a manner that they are saved rather than destroyed. The construction put upon the rules under discussion is in consonance with this principle and effect can be given to the provisions of both the sets of rules by reconciling their provisions.
28. Even if it be assumed, for the sake of ratiocination, that both sets of rules are conflicting, inasmuch as the power provided by Rule 5(iii) of 1978 Rules to decide whether an inquiry is necessary in the interests of justice, is alien to Rule 18 of the Recruitment Rules 1971, we hold the view that Disciplinary Rules, 1978 will take precedence and have the effect of overriding the earlier Recruitment Rules of 1971 to the extent of inconsistency. It should, in this eventuality, be taken as a case of implied repeal. The Court has to suppose that the Rule-making Authority has "a consistent design and policy and intends nothing that is inconsistent or incongruous. Though as a rule, a prior special statute is not taken to be repealed by a later general enactment, this proposition cannot be pressed too far". If we find any inconsistency in special rules and subsequent general rules, we have no alternative but to hold that the prior special rules on the subject stand impliedly repealed by the subsequent general rules.
29. In all such cases, the intention of the Authority is the determining factor, as held by the Supreme Court in Badar-ul-Haq Khan v. Election Tribunal PLD 1963 SC 704. If the intention is to efface the previous rules and to establish others, the latter will have to be upheld to the exclusion of the previous rules. In the present case, there is no difficulty in spelling out the intention of Rule-making Authority. The Rules of 1978, apply to all WAPDA employees not on probation and workcharged establishment, including the Technical Subordinates (Line Staff) in the Power Wing who are members of the Service within the meaning of Rule 4 of 1971 Rules. They constitute a self-sufficient Code and deal exclusively with the subject of Efficiency & Discipline. The provisions of Rules 5(iii) and 6 are identical with those of Rule 18(2) of 1971 Rules, so that they adequately serve the purpose which seems to have led the Rule-making Authority to the prescription of elaborate procedure in Rule 18(2) of 1971 Rules, namely that the interests of members of the Line Staff Service have to be safeguarded against the passage of arbitrary orders. There is no room for any improvements, as seems to have been felt during the prevalence of 1966 Rules, with the result that the argument regarding justification for enactment of Rule 18(2) has become redundant. The only difference is the conferment of power on the competent authority to decide whether an inquiry is necessary in a particular case in the interests of justice, which was logically necessary to avoid lengthy procedure in appropriate cases. We would, therefore, hold that the intention was that the Disciplinary Rules 1978 shall stay in the field to the extent of repugnancy in disregard of the procedural provisions of Rule 18(2) of the Recruitment Rules, especially when they are primarily concerned with matters of recruitment.
30. The test for presuming implied repeal of earlier by subsequent law was stated by Mr. Hamoodur Rahman, J. in Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SC 673 in the following words: "A great deal of argument has been advanced as to the tests to be employed for determining in what circumstances a repeal by implication takes place. One of the tests suggested is that such repeal can only be implied where it is clearly not possible for both laws to be obeyed. This may be a good test in most cases, but it does not apply in all cases. It may be possible in some cases for both laws to be obeyed and yet there may be such repugnancy between the two as would entitle the Courts to hold that there has been an implied repeal. If the inconsistency covers the whole field of legislation, the test suggested may well be sufficient for, the mere existence of two sets of contrary provisions would naturally exclude one. But where the inconsistency does not cover the whole field, as in the present case, it may be necessary to examine and contrast the provisions of the two statutes in more detail in order to discover: "if one enactment makes or acts upon as lawful that which the other makes unlawful, or if one enactment makes unlawful that which the other makes or acts upon as lawful, if so the two must be held to that extent to be inconsistent even though it may be quite possible to obey both simply by not doing what is declared by either to be unlawful." No doubt the Courts should not be too astute in discovering such inconsistency, for, such inconsistency is not to be readily inferred; but where the coexistence of the two sets of provisions would palpably be destructive of the object for which the later statute was passed, the earlier must be deemed to have been impliedly repealed to the extent of the inconsistency. Repeal by implication is merely the consequence of contradictory or inconsistent legislation to which the Courts must give effect if the inconsistency cannot reasonably be reconciled."
31. We are, therefore, inclined to hold that the appellant is governed by the Efficiency and Discipline Rules of 1978, which hold the field irrespective of the provisions of Rule 18(2) of the Recruitment Rules of 1971 and that no illegality stands imparted to the impugned order of dismissal, merely because the competent authority has failed to observe the procedure regarding framing of charge-sheet and holding an inquiry, particularly when no miscarriage of justice has come about on account of this failure. There is no element of arbitrariness in the impugned order and the contention that it is ab initio void is without any substance.
32. Before taking leave of the matter, it may be mentioned that the appellant's learned counsel relied upon this Tribunal's decision in Mukhtar Ahmad v. Chairman, Area Electricity Board, WAPDA, Gujranwala (Appeal No, 82(L) of 1984) where it was held that "1971 Rules also seem to hold field as it has not been shown that they stood repealed or rescinded and that the service of Line Superintendents was regulated by those rules". With respect to the opinion expressed by the learned Tribunal in that case, we are constrained to hold a different view for the reasons mentioned by us. We feel that certain aspects of the question for determination were not brought out and mooted by the parties before the learned Tribunal in that case to enable them to examine it to its full extent.
33. Yet another ground in support of the relief sought by the appellant is that the impugned order is nullity in the eye of law, because the employment is governed by the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1969 and the requirements of Standing Order No, 15(4) of the Ordinance have not been fulfilled. No arguments were, however, addressed by the learned counsel on this point and it should therefore be deemed to have not been pressed.
34. For the reasons mentioned in the preceding paragraphs, we have reached the conclusion that the appellant does not have any case on merits and that his appeal is liable to dismissal. However, we feel that while awarding punishment, lenient view of the matter should have been taken in consideration of the fact that he has got twenty-one years service at his credit and that he seems to have stood in goodstead to the Authority during the course of his employment, coupled with the circumstance that the charge of misconduct emanated not from any malpractice but only from unauthorised absence. The impugned order of dismissal dated 29-2-1984 is, therefore, set aside in partial acceptance of the appeal and substituted by an order of compulsory retirement with effect from that date with all consequential benefit admissible under the rules.
35. Parties to be informed.