JUDGMENTMUNIR A. SHEIKH, J;- In this constitutional petition, Dr. Naeem- ul-Zaman, the petitioner prays that the impugned order dated 3.1.1988 passed by respondent No.1 for his removal from service of Pakistan Atomic Energy Commission as also the proceedings for suspending him from service taken under the Efficiency and Discipline Rules be declared to have been passed and taken without jurisdiction, without lawful authority and of no legal effect and as a consequence thereof the petitioner be directed to be reinstated in service with full back benefits.
2. The facts relevant for the disposal of this writ petition in brief are that according to photo copies of various order/letters placed on file by learned counsel of respondent No.1 on the direction of the Court, the petitioner in March, 1965 joined service in the Pakistan Atomic Energy Commission as Assistant Scientific Officer at a pay of Rs.455 P.M in the scale / of Rs. 350-35-525-EB- 40-925 plus usual allowances as per office memorandum dated 9.3.1965. The petitioner was a probationer and according to office memorandum dated 16.4.1966 his probation period as Assistant Scientific Officer was terminated w.e.f. 10.3.1966. Subsequently vide office order No. 349/66 dated 25.8.1966 the petitioner along with others was appointed as Assistant Scientific Officer Class-I Scale from the date of his joining the Commission i.e. 11.3.1965. The petitioner was promoted as Senior Scientific Officer in the year 1970 at which post he was made permanent vide office memorandum of the Commission dated 8.11.1976. In the year 1977 he was promoted as Principal Scientific Officer in G.P- 10(NSP No.19) PABC Group-10 and was posted at Dera Ghazi Khan as Manager.
3. The respondents decided to take disciplinary action against the petitioner and as an initial step through order dated 20.10.1986 Muhammad Aslam Project Manager intimated the petitioner advising him with the ( approval of the competent authority, to proceed on leave w.e.f 19.10.1986. | The petitioner was advised not to leave the Station without his prior approval and make himself available for an inquiry which was likely to be initiated shortly. It was stated in this order that the inquiry was being conducted to look into the reported misuse of his powers. The Chairman of the PA.E.C who was then the authorised Officer qua the petitioner, it appears passed an order for establishment of an inquiry Committee comprising Director (DTP) as Inquiry Officer and Director (Finance) as Member which is evident from the note written by S.N.Burney, Member (Power) dated 5.11.1986 a photo copy of which has been placed on record by learned counsel for the respondents in pursuance to directions given by the Court during the hearing of the writ petition. Through order dated 11.5.1987, the petitioner was suspended from PA.E.C service w.e.f, and untill further orders, with the direction to him to remain present at the station of duty. On 5.7.1987 directly a show cause notice was issued to the petitioner by the Chairman of the Commission as Authorised Officer accusing him to have committed acts of mis-conduct mentioned in the said notice and called upon him to show cause within 14 days of the receipt of the said notice as to why disciplinary action should not be taken against him under the Efficiency & Discipline Rules, 1973 as applicable to the employees of PA.E.C by virtue of Regulation 26 of PA.E.C. Employees (Service) Regulation, 1974 and why a major penalty should not be imposed upon him. To determine the question of legality of this notice, it would be beneficial to reproduce the alleged acts of misconduct mentioned in this notice which are as follows.
1. That Dr. Naeem-ul-Zaman, Pr. Scientific Officer, Manager Plant, | BC-1 Project had been abusing the inside information leading to the award of contracts worth Rs.40/- lacs for fabrication of items to M/S Paramount Engg. Company partly owned by his brother having hardly any experience and workshop facilities to undertake the fabrication of the sophisticated items.
2. That emergency powers were given only to manager plant to meet emergent requirements for day to day operation of the Mill but Dr. Naeem- ul-Zaman widely misused his powers for building up stocks in store and due to his intentional slackness the following irregularities were committed during such emergency purchases. i) That no set procedure was followed by him for the emergency purchases but instead it was made an appeasement package for the employees and the local suppliers to gain undue advantage.Ii) That verbal orders were given by him to selected and known firms mostly owned by certain relatives of the employees of BC-I without enquiring and settling rates in advance.Iii) That more than one orders were given for the same items on the same day mainly to keep their procurement within the emergency powers of Rs.3,000/.Iv) That no method for determining the reasonableness of prices was followed but instead it was made an established practice to allow 10-15% more than the prevailing market prices which caused the loss and misuse of public funds.v)
That the emergency powers were limited upto Rs.3,000/- but in certain cases the suppliers though supplied material for lesser amount but charged the said amount of Rs.3,000.00 and sometimes the suppliers had been reducing the price to Rs.3,000.00 to avoid reference to next higher authorities.Vi) That the procurement procedure and other formalities for such supply orders were used to be completed after supply of the material in total disregard of the rules on the subject.Vii)
That purchases under emergency powers were made in some cases from fictitious firms.Viii) That most of the supply orders under emergency powers were placed for items which were already available in the stores in large quantities and there was not any emergency for such items".The petitioner contested this notice by filing elaborate and detailed reply dated 22.7.1987 in which he also claimed the personal hearing. It may be mentioned here that in the meantime, the Chairman of the PAEC who issued show cause notice as authorised officer was designated as the authority whereas Member (Admin) as the authorised officer. The petitioner was informed through office order No. 8/88 under establishment No. 21(1258) 86 dated 3.1.1988 that consequent upon disciplinary action taken against him as aforementioned and having found him guilty of the charges of mis-conduct mentioned in the show cause notice dated 5.7.1987, the competent authority was pleased to impose upon him the major penalty of removal from service w.e.f.
31.12.1987 in terms of rule 4(1) (b) (iii) of the Government Servants (Efficiency & Discipline) Rules, 1973. The petitioner was allowed compassionate allowance equivalent to two-third of the pension which would have been admissible to him had he been invalidated from service on the date of his removal, under the provisions of Sections 19(3) of the Civil Servants Act, 1973, which has been challenged in this writ petition.
4. Before entering upon the adjudication on merits, it would be appropriate to dispose of the preliminary objections raised by the learned counsel for the respondents to the jurisdiction of the Court and also the maintainability of the writ petition. It was maintained by learned counsel for the respondents that the PAEC being an Autonomous Body as such was not a person performing functions in relation to affairs of Federation, Province or Local Authoirty within the contemplation of Article 199 of the Constitution therefore, was not amenable to the jurisdiction of this Court in respect of performance of its functions and that the relationship between the Commission and its employees in the matters of service was governed by the principle of Master and Servant as such the petitioner could not invoke the constitutional jurisdiction under Article 199 and if his grievance was that he was wrongfully removed from service, the only remedy available to him was to maintain a suit for damages.
5. I have given anxious consideration to the argument. The Pakistan Atomic Energy Commission, has been created under the Pakistan Atomic Energy Commission Ordinance 1965 (Ordinance No. XXVII of 1965) Section 3 (2) of this Ordinance provides that the Commission shall be a body corporate by the name of the Pakistan Atomic Energy Commission having perpetual succession and a common seal with powers, subject to the provisions of Ordinance, to acquire and hold property, both movable and immovable and shall by the said name sue and be sued. From this provision it is manifestly clear and no doubt can be entertained that the commission has been constituted as a legal/juristic person having a regular name, common seal and capable of suing or being sued in its own name. It is thus a 'body corporate' and an artificial person established for preserving in perpetual succession certain rights. The next question which remains to be decided is as to whether the commission is a person within the contemplation of clause (v) of Article 199 of the Constitution performing functions in connection with the affairs of the federation within the meaning of sub clause (i) and (ii) of clause (a) of Sub Article (1) thereof and1 from that point of view this Court could give declaration about its order or proceedings or issue any kind of directions to it. In order to determine this, reference to the relevant provisions of constitution shall have to be made. Under Article 97 of the Constitution the Executive Authority of the Federation extends in the matters with respect to which Majlis-e-Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan. The Majlis- e-Shoora (Parliament) has exclusive authority to make laws in respect of matters enumerated in part I and part II of Lagislative lists given in 4th schedule. Items 18 of Part I of this list is as under:- "18 Nuclear energy, includinp:-
(a) mineral resources necessary for the generation of nuclear energy;(b) the production of nuclear fuels and the generation and use of nuclear energy; and(c) Ionizing radiations.Item 2 of Part II of this list relates to mineral oil and natural gas; liquids and substances declared by federal law to be dangerously inflammable. These two items in the Legislative list if read with Article 97 of the Constitution leaves no doubt that the executive authority of the federation extends to all these matters and the matters connected therewith and as such they are primarily the functions of the Federation. Section 6 of Ordinance 1965 prescribes the functions of the Commission which are, to do all acts and things, including the research work necessary for the promotion of the peaceful uses of Atomic Energy in the fields of agricultural medicines and industry and for the execution of development Project nuclear power station and the generation of electric powers thereat.
According to sub section 2 of this Section the Commission is to perform such other functions with the approval of the Federal Government relating to the peaceful use of Atomic Energy. Under Sub Section 2(a) of this Section it has been provided that the powers of the Federal Government under regulation of Mines and Oil Fields and mineral development (Government control) Act of 1948 in relation to Mines of nuclear substances and development of Sub Station shall be exerciseable by the Commission. If the functions performed by the Commission are studied with reference to various items of the federal lists, it is explainably clear that the functions of the Commission are co- related to various affairs of State indicated in numerous items of Federal list mentioned above and as such no room is left to entertain any doubt that Commission can safely be held to be a person performing functions in connection with the affairs of Federation. The objection of want of jurisdiction raised by the learned counsel for the respondents on the ground that Commission was not a person performing functions in connection with affairs of the Federation within the contemplation of Article 199 of the Constitution has thus no merit and the same is hereby repelled.
6. Adverting to the second limb of the argument viz, that the relationship between the petitioner- and the Commission in respect of his employment is governed by principle of Master and Servant, it may be stated that this subject has been dealt with by superior Courts in a number of reported cases and the principle of law governing such cases has been clearly laid down and no ambiguity has been left as such there is no difficult to answer this question in the light of the law settled in these cases. Learned counsel for the respondents mainly relied upon judgment reported as Ch. Abdul Rashid Versus Capital Development Authority Islamabad and another (P.L.D 1979 Lahore.803) in support of his contention that the relationship of an employee of a statutory Corporation even if such Corporation frames regulations making provisions for appointment and dismissal of its employees from service, providing for application of Efficiency & Discipline) Rules, would still be governed by principle of Master and Servant. I have undertaken detailed scrutiny of the ratio of this authority and find that the provision of Capital Development Authority Ordinance, 1960 and the Regulations framed by the Authority thereunder were examined and the learned Judge arrived at the conclusion that keeping in view the provisions of the Ordinance, the Regulations framed thereunder by the Authority were non-statutory in character, therefore, it was held that relationship of an employee of Capital Development Authority and the Authority was governed by Principle of Master and Servant. The reason for arriving at that conclusion are contained in para 11 of the judgment which is reproduced as under: PARA 11 " Coming back now to the provisions of the Ordinance which have already been reproduced in this judgment we find that by enacting section 50 the Legislature in express terms made provision for the framing of statutory rules by empowering an authority (Government, outside) the Capital Development Authority, to frame rules and by indicating the manner of doing so that is by notification in the Gazette. What is, however, peculiar to this section is the manifest intention of the legislation that no rule shall be~ PAMflno mnttorc frvr u/liirK tllP Pan lt5l1 Dp.VP.InnmftfltAuthority was alone competent to frame regulations.
The only meaning that can be given to this express provision is that the Authority was the sole arbiter of the terms and conditions of employees for which if it chose, it could frame regulations".
7. It may be pointed out that, as has been noticed in this reported judgment, the power of Government to frame rules in respect of service matters of the Capital Development Authority was specifically excluded, therefore, due to this provisions it was held that the authority was the sole arbiter of the terms and conditions of the employee for which if it chose it could frame regulations.
On the other hand, section 13 of the Pakistan Atomic Energy Commission, empowers the Commission to appoint such officers advisors and employee as it considers necessary for efficient performance of his functions on such terms and conditions as it may deem fit subject to such general or special orders as the Federal Government may give from time to time. It is thus clear that contrary to the provisions of the Capital Development Authority, Ordinance, 1960 the Federal Government has been fully empowered under section 13 to control the power of the Commission in respect of appointment of its officers and employee which may include their terms and conditions and the Commission is bound to carry out such general or special orders which may be issued by the Federal Government in this respect therefore, in the case of employees of Commission the Commission has not been made the sole arbiter regarding appointment, Terms and Conditions of its officers and employees. Under section 20, the Commission has been given the power to frame regulations with the previous sanction of the Federal Government not inconsistently with the provision of the Ordinance or the rules made thereunder. Whereas section 19 confers powers on the Federal Government to frame rules by notification in the official Gazette. From the perusal of regulation making power of the Commission under section 20 of the Ordinance it is also plainly clear that the same is controlled by the Federal Government, as it requires prior approval of Federal Government. The principle of law decided in Capital Development Authority's case supra is therefore not attracted to the present case, in view of substantial difference in the provisions of Capital Development Authority Ordinance and Pakistan Atomic Energy Commission, Ordinance, 1965.
8. In the present case the Commission has framed regulations with the previous approval of the Federal Government named as the P.A.E.C. Employees (Service) Regulations, 1974. Regulation 3 of this Regulation is very significant and has material bearing upon the determination of the question whether the relationship of the employees with the Commission was governed by the principle of Master and Servant. This regulation provides that the Federal Government shall be the final authority for interpretation of these regulations and supplementary instructions issued in connection with these regulations and under this regulation even the authority of the Federal Government to apply these Regulations in respect of employees refered to in clause (b) or sub section (1) of Section 23 of the Ordinance to their prejudice which may be derogatory to the terms and conditions of the service applicable to such employees before coming into force of the Ordinance has been prohibited. In these regulations detailed provisions have been made regarding employees and officials of the Commission prescribing procedure for their initial appointments upto the stage of retirement, regarding probationary period, pay, pay scales, allowances, travelling allowances, retirement, pension, promotions and disciplinary actions. Under Regulation No.26, it has been provided that employees shall for the purpose of conduct and discipline be governed by the Government Servants (Conduct) Rules, 1964 and the Government Servants (Efficiency & Discipline) Rules, 1973. These regulations as discussed above having been framed with the prior approval of the Government and under Regulation No.3 as noted above, the Federal Government being the exclusive authority to interpret these regulations which can safely be construed to be general direction of the Federal Government under section 13 of the Ordinance that terms and conditions of the employees and the officers of the Commission be regulated accordingly and not in any other manner therefore, it is possible to hold that the Commission has been left with no power, authority or discretion regarding the terms and conditions of its employees or officers who are to be dealt with as provided in these regulations. The plea of applicability of principle of Master and Servant has no force in the peculiar facts and circumstances of this ease as discussed above. One of the essential principles for the concept of relationship of Master and Servant is that there should be freedom of contract both for Master as well as Servant so as to act freely that is to say unfettered by any legal disability and where Master's pleasure to terminate service of his employees is curtailed or controlled by another authority by virtue of some law or otherwise then the case is no longer of a contract of service simplicilor and Master and Servant concept. As has been discussed above, the Regulations having been p.Omulgatcd with the prior approval of the Federal Government and Federal Government under Regulation No.3 has the exclusive authority to interpret the said Regulations and under section 13 the same have the force of directions issued to the Commission regarding appointment and other service conditions 'of employees, no descrclion has been left with the Commission to terminate the service of the employee at its convenience as such the rule of Master and Servant is not attracted to this ease. It may be pointed out here that under section 3-A of the Pakistan Atomic Energy Commission Ordinance, 1965, it has been provided that every employment under the Commission shall for the purpose of Pakistan Essential Services (Maintenance) Act 1952 be deemed to be employment under the Federal Government and the said Act has been made applicable accordingly. This view which 1 have taken is in accord with the principle of law laid down in the judgment of Supreme Court reported as The Evacuee Trust Property Board and another Versus Muhammad Nawaz (1983 S.C.M.R 1275). In the light of the above discussion the argument of the learned counsel for the respondent that the relationship between the parlies was governed by principle of Master and Servant is found to be without any substance.
9. Now I revert to the merits of the ease. The main burden of the argument presented by the learned counsel for the petitioner was that the procedure as prescribed in the Efficiency & Discipline Rules 1973 under which the Disciplinary proceedings against the petitioner were taken was not followed as such the dismissal of the petitioner from service is thus rendered without lawful authority. He also maintained that the allegations against the petitioner as mentioned in show cause notice were vague and the petitioner was deprived of valuable right to defend the case properly, had the allegations been made specific and detailed with necessary particulars His precise argument was that the procedure as prescribed in rule 6 of Government Servants (Efficiency & Discipline) Rules, 1973 was not followed which resulted in mis-carriage of justice.
10. The decision of the case on merits centres around the question whether the procedure prescribed in rule 6 of the Efficiency & Discipline Rules, 1973 was required to be followed or not.
Learned counsel for the respondents submitted that the argument was mis-conccived inasmuch as the respondents in exercise of their powers decided to apply the shorter procedure under rule 5(1) (iii) (a & b). This submission gives rise to a further question whether in fact the respondents decided to do away with procedure.Prescribed in rule 6 and instead to follow the procedure under rule 5 as aforementioned. Under Rule 5(1) (ii) of the said rules the authorised officer is required to deck1. Whether in the light of the facts of a case or in the interest of justice an enquiry should be conducted through an Enquiry Committee, and once it decides to do so then the procedure as prescribed in rule 6 shall apply. In order to determine as to whether the Authorised Officer decided that inquiry be conducted through an Enquiry Committee or to proceed against the petitioner under clause (iii) of the said rule 5(1). I directed the learned counsel for the respondents to placed on record copies of the relevant proceedings. The original order of the Authorised Officer i.e, the Chairman of the Commission as he then was has not been place on the record. However, a copy of note dated 5.11.1986 recorded by Mr.S.M.N Zaidi Membcr(Powcr) has been produced and it will be useful to reproduce the said note in extenso for facility of ready reference.
"Chairman, PAEC had desired the establishment of an Inquiry Committee comprising Director (DTP) as Inquiry Officer and Director (Finance) as Member. The inquiry to be completed expeditiously.
Please issue a formal office order including terms of reference".Sd/-(S.M.N Zaidi)
Mcmbcr(Powcr)5.11.1986.It is manifestly clear from this note that the Chairman i.e, the Authorised Officer took a decision that inquiry should be conducted through an inquiry Committee comprising Director (D.T.P as Inquiry Officer and Director (Finance) as Membcr.Rulc 6 of the Efficiency & Discipline Rules speaks of inquiry committee and Inquiry Officer to inquire into the charge therefore, this decision of the Chairman for appointment of Inquiry Committee comprising Inquiry Officer and another Member clearly establishes that the Authorised Officer took a positive decision to proceed under rule 5 (1) (ii) assuch the provisions of rule 6 of the Efficiency & Discipline Rules were to regulate all subsequent disciplinary proceedings and they were to be complied with. It was not the case of respondents nor it was argued by their learned counsel that the procedure as laid down in rule 6 of the said rules was followed as their case had throughout been as also reiterated during arguments was that Authorised Officer had decided not to conduct inquiry through Inquiry Committee as he decided in his discretion to follow the shorter procedure as envisaged by rule 5(1)
(iii) (a & b) of the Efficiency & Discipline) Rules 1973, therefore in my opinion the disciplinary proceedings taken as also the consequential order of dismissal of petitioner from the service were not taken and passed in accordance with law.11. Learned counsel for the respondents when faced with this difficulty tried to over-come it by arguing that the Inquiry Committee constituted was not a regular Inquiry Committee as envisaged by rule 5(1)(ii) but was a committee constituted for holding preliminary inquiry into the charges and was merely fact finding committee therefore, rule 6 of the disciplinary rules was not applicable. I am afraid, the argument in my opinion is plainly unsound.As a matter of fact as pointed out by the learned counsel for the petitioner, the findings of this inquiry Committee if read as a whole did not clearly find beyond reasonable doubts that the petitioner was guilty of charges levelled against him therefore, in order to justify action against the petitioner the stand was taken that in fact the authority d'd not decide to adopt the procedure of inquiry through Inquiry Committee so that provision of rule 6 may be circumvented, is not without force. Learned counsel for the respondents feebily argued that even if initially the Authorised Officer had decided to hold inquiry through Inquiry Committee as a result of which rule 6 became applicable, it was open to the Authorised Officer subsequently to take a decision that instead of following the procedure of rule 6 the disciplinary proceedings should be regulated under rule 5(1)
(iii). This argument has been successfully met with by the petitioner on the strength of judgment reported as Ghulam Hadi Baloch Versus Collector of Customs (Preventive! And others (1987 S.C.M.R.
602) in which their Lordships have taken the view that after having initially taken decision that regular inquiry should be conducted, the Authorised Officer could not adopt other procedure.
Inspite of directions nothing has been produced on the record of this case whether the Authorised Officer in fact had passed an order for recalling his earlier order for constitution of an Inquiry Committee consisting of an Officer and a Member and once an Inquiry Committee was appointed, the provisions of rule 6 as per its own force were attracted and it provides that where an Inquiry Committee is appointed the Authorised Officer shall comply with the provisions of Sub Rule (1) (2)
(3) (4) (5) and (6). According to rule 6 a regular charge is required to be framed and communicated to the accused with statement of allegations requiring him to put in a written defence. The Inquiry Officer or the Committee was required to examine such oral and documentary evidence in support of the charges or any defence of the accused as may be considered necessary and the accused in entitled to cross-examine.The witnesses to be examined against him. The petitioner thus was deprived of the benefit of provisions of rule 6 as such the disciplinary proceedings and consequential orders of removal of the petitioner from service were rendered without lawful authority.
12. The charges against the petitioner as reproduced above, also show that they were general in nature and as such were wanting in necessary details which also prejudiced the petitioner's right to defend himself. For example under various charges no details of the contracts were given. The other charges enumerated under para 2 were also in generalized form and vague in nature. No details of the orders of supply under emergency powers allegedly placed by the petitioner as mentioned in para 2(1) (ii) (iii) (iv) (v) (vi) (vii) and (viii) were given. Such a show cause notice requiring the accused to defend himself was nothing but merely a colourable exercise. A valuable right of the petitioner regarding continuance or othewise in service of the Commission was involved. He was not provided with fair opportunity to defend himself properly, due to adoption of shorter procedure illegally by diverting the course of disciplinary proceedings to procedure under rule 5(i) (iii) of Efficiency & Discipline Rules as against rule 6 under which they should have been conducted, as discussed above. The impugned order of removal of the petitioner from service therefore, cannot be sustained.
13. Learned counsel for the petitioner also challenged the legality of order placing him under suspension conveyed to him through letter dated 11.5.1987 on the ground that the same was not passed by competent authority. In support of this plea he argued that the said order (Annexure 'B') was passed by Director Establishment whereas the competent authority was the Commission itself.
This objection was alwo raised by the petitioner in a writ petition No. 760 of 1987 in which the order placing him under suspension was challenged. The record of the Commission was produced in the writ petition from which it emerged that as a matter of fact the Commission on 28.4.1987 approved the initial suspension of the petitioner from service which was conveycd to him through letter dated 11.5.1987 and the period of suspension was extended by the Commission on 17.8.1987. In view of this factual position obtaining on the record, the argument that order dated 11.5.1987 for placing the petitioner under suspension was not passed by competent authority has no force. It is hereby repelled. Nothing turns on this as for the foregoing reasons the disciplinary proceedings as also the consequential order of dismissal of the petitioner arc not sustainable and the petitioner is to be reinstated in service with full back benefits.
14. Before closing this judgment, I would like to dispose of another objection raised by the learned counsel for the respondents which was to the effect that by virtue of rule 10 of Efficiency & Discipline Rules, 1973 the petitioner had a right of departmental appeal against the impugned order of dismissal therefore, the writ petition having been filed without availing of the said remedy which was efficacious and adequate remedy within the contemplation of Article 199 of the Constitution as such, the writ petition should be dismissed. This argument has engaged my serious consideration.
Under rule 10, it has been provided that a person on whom a ocnaliv U imposed shall have such right of appeal as may be prescribed under the Civil Servant (Appeal) Rules 1977. According to Regulation 26 of the Regulations framed by the Commission the employees of the Commission for the purpose of conduct and discipline are to be governed by the Government Servants (Conduct)
Rules, 1964 and the Government Servants (Efficiency & Discipline) Rules, 1973. This Regulation does not itself provide for application and adoption of Civil Servants (Appeal ) Rules, 1977 to employees of Commission. The question which arises for determination is whether by virtue of rule 10 of Efficiency & Discipline Rules 1973 the Civil Servants (Appeal) Rules, 1977 shall automatically become applicable, in my view, the answer is in negative. If they were intended to be applied they must have been mentioned in Regulation 26 as is the case with Civil Servants (Conduct) Rules 1964. Even if it is assumed that Civil Servants (Appeal) Rules 1977 are applicable, the same provides that appeal shall be filed by aggrieved Civil Servant against imposition of penalty before the next higher authority. It has not been successfully demonstrated by learned counsel for the respondents that as against Chairman of the Commission who passed the impugned order of dismissal in this case, the Commission was by any rule or law constituted as the next higher authority.-It may be pointed out that the Chairman is the administrative head of the Commission being its Chief Executive Officer under Section 4(3) of the Ordinance and being constituent part of the Commission itself therefore,-------- -qua the order of the Chairman the remaining members of the Commission cannot be treated to be the appellate authority. Apart from this, as I have noticed above the Commission as such had been approving the suspension of the petitioner from service therefore, even if it was a higher authority, the remedy of appeal if any in view of expression of opinion by the Commission in the case of the petitioner while suspending him was no more an adequate and efficacious remedy within the meaning of Article 199 of the Constitution. It may also be observed that in the proceedings before the Chairman two of the members of the Commission were also joined. Learned counsel for the respondents when questioned submitted that the appeal could be heard by such members of the Commission other than those who were present with the Chairman as merely observer, because the Commission has such number of other members sufficient to constitute the corum. Considering the above circumstances, I am not persuaded to hold that the petitioner had adequate remedy of appeal before the Commission as argued and he cannot be thrown at the mercy of the Commission which had already taken a decision in his case while suspending him.