1. ' NASIR ASLAM ZAHID, J.---These two Civil Appeals arise out of the judgment dated 18-5-1983 of the Peshawar High Court. Briefly the facts are that on account of leakage of question papers of the Intermediate Examination 1978 (Annual) of the Board of Intermediate and Secondary Education, Peshawar (hereinafter referred to as the Board), the Board constituted an Enquiry Committee in its meeting held on 7-8-1978 to conduct an enquiry into the matter. The Enquiry Committee comprised Professor Muhammad Raza Khan, Miss Asif Jalil, Principal, Government College for Women, Abbottabad, and Professor Dr. Jamal Khan. The Enquiry Committee conducted a detailed enquiry and recorded statements of several witnesses and submitted their report. In its meeting held on 18-10-1978, the Board considered the report of the Enquiry Committee and decided to charge sheet the private respondents, employees of the Board. Professor Ilyas was appointed as an authorised officer, who served the respondents with Show Cause Notices and after affording them an opportunity to explain and defend themselves, submitted his report on 27-1-1979 finding the respondents responsible and recommended imposition of certain penalties. The Board accepted the report regarding involvement of the respondents but did not agree with the recommendations of the authorised officer regarding the quantum of punishment, as it was of the opinion that their retention in the Board in any capacity would be prejudicial to the working of the Board. The Board, therefore, ordered their removal from service with effect from the date they were suspended. Being aggrieved, respondent Dost Muhammad, filed Writ Petition No,120/1979, respondent Sher Haider filed Writ Petition No,121/1979 while respondent Muhammad Iqbal filed Writ Petition No,259/1979 in the Peshawar High Court. In these petitions, which were heard together, Peshawar High Court set aside orders of removal from service of the respondents holding that the Board was not the competent authority.
2. ' Chapter VI of the Calendar of the Board of Intermediate and Secondary Education, Peshawar, of 1978 contains rules of service. Rule 8 of such Rules inter alia provides that appointments, suspension and removal of the employees of the Board in the case of Class B employees shall rest with the Chairman of the Board. Rule 9 made provision for an appeal against the orders passed by the competent authority in the case of employees of Class B to the Board. Admittedly the respondents were Class B employees and in view of Rules 8 and 9, the competent authority in respect of respondents was the Chairman and the appellate authority, the Board. The Peshawar High Court allowing the said Writ Petitions held as follows:-- "In these circumstances the impugned order of the Board dated 12-2-1979 does not carry any weight in that the only competent authority who could pass any order will be the Chairman. We, therefore, accept this writ petition holding that the Board was not competent to pass the impugned order. The impugned order is, therefore, set aside. It is the Chairman of the Board of Intermediate and Secondary Education, Peshawar, who was competent to pass any order. In the instant case, now, it will be for the Chairman to pass any order."
3. ' In compliance with the aforesaid judgment of the Peshawar High Court, the respondents were reinstate in service of the Board with immediate effect by order dated 20-11-1979. However by separate orders passed on the same day respondents were placed under suspension. Thereafter the Chairman of the Board, by orders dated 13 1-1980, ordered the removal of the respondents from service with immediate effect and also forfeiture of their salaries excluding subsistence allowance already paid to them during the period of suspension. In his order dated 13-1-1980, the Chairman recorded that the respondents were accused of corruption and misconduct in leakage of question papers of Intermediate Examination 1973 (Annual) and were accordingly proceeded against departmentally and the authorised officer Professor Ilyas had served them with Show Cause Notices and had also afforded them adequate opportunity to explain their position and defend themselves but the respondents were found guilty of the charges and the authorised officer then forwarded the case to the Chairman alongwith record and his recommendations for imposing a major penalty on the respondents.
4. ' Being aggrieved by the Chairman's order dated 13-1-1980, respondents filed appeals before the Board but the same were dismissed. The respondents then approached the Peshawar High Court for the second time. Respondent Iqbal filed Writ Petition No,368/1980 and respondents Sher Haider and Dost Muhammad filed Writ Petition No,369/1980 alleging that action was taken against them without issuance of Show Cause Notices and without granting them any hearing on the basis of the report of the Enquiry Committee and the recommendations of the authorised officer. According to the respondents, the proceedings previously taken and orders passed by the Board were set aside by the High Court in the earlier round of the litigation.
5. ' In the impugned judgment dated 18-5-1983, Peshawar High Court held as follows:--
(a) N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973 are applicable to the employees of the Board in matters of disciplinary action against them.
(b) Professor Ilyas had been appointed authorised officer by the Board but this was invalid inasmuch as the authority in respect of the respondents, class B employees, being the Chairman, the Authorised Officer should have been appointed by the Chairman. According to the High Court, the appointment of Professor Ilyas as Authorised Officer was not valid and any report/recommendation made by him are without lawful authority.
(c) Under the Rules of 1973, three distinct persons, namely, "Authority", "Authorised Officer", "Enquiry Officer" and "Enquiry Committee" are envisaged and these three persons have to perform separate, independent and distinct functions but in the instant case the authorised officer also held a formal enquiry and this amounted to combination of two offices in one person which occasioned grave prejudice and injustice to the respondents.
(d) Copies of the preliminary enquiry report and the enquiry conducted by the authorised officer were not supplied to the respondents.
(e) The authorised officer had recommended in the case of Sher Haider and Dost Muhammad their reversion to the substantive posts as being promotees and on probation and further to keep them under report for some time. According to the High Court, such penalties had not been prescribed under the rules and as such the authorised officer could not have made recommendations for imposing of any penalty under the rules in case of Sher Haider and Dost Muhammad. In case of Muhammad Iqbal, according to the High Court, the authorised officer simply recommended extension of the probation and stoppage of increments. According to the High Court extension of probation was not a penalty while stoppage of increments was a minor penalty which the authorised officer was himself competent under the rules to impose upon Muhammad Iqbal.
(f) The Chairman of the Board did not independently apply his mind but misunderstood the import of the order of the High Court passed in the previous Writ Petitions by reinstating the respondents and simultaneously placing them under suspension and passing the impugned orders dated 13-1- 1980 of their removal from service without conducting the proceedings afresh.
6. ' We heard the arguments of Qazi Attiqur Rahman, learned counsel appearing for the appellants.
7. No one appeared on behalf of the respondents. Mr. Nur Ahmed Khan, A.O.R. Remained absent.
8. Judgment was reserved. Counsel for the parties, were, however, permitted to submit written arguments which they did.
9. ' From the judgment of the High Court passed in the earlier writ petitions filed by the respondents it follows that the writ petitions were allowed on the ground that the Board was not the competent authority. The operative part of that judgment has been reproduced earlier. The High Court, after holding that the Chairman of the Board was competent to pass any order, then observed that now it would be for the Chairman to pass any order. The Enquiry Committee constituted earlier had already conducted an enquiry into the matter and in the light of the judgment dated 12-11-1979 in the earlier writ petitions, the Chairman, after considering the replies of the respondents to the Show Cause Notices issued by the authorised officer passed orders for removal of respondents from service. Competency of the Chariman to pass such orders could not be questioned. Under the relevant regulations contained in the Calendar of the Board issued in 1978, the Chairman was the competent authority as had also been held by the High Court in its judgment in the earlier writ petitions filed by the respondents.
10. ' From the judgment dated 12-11-1979 of the High Court in the earlier writ petitions it is apparent that on behalf of the respondents the only ground urged against the adverse action taken by the Board was that the orders should have been passed by the Chairman and not by the Board which was the appellate authority and as a consequence the respondents were deprived of the right of appeal. Para. 3 of the judgment in the earlier petitions is reproduced here:- "Learned counsel for the petitioner states that only the Chairman of the BISE was competent to pass an order in the case of the petitioner, and the Board was the appellate authority against the order of the Chairman, but that in the instant case, the Board took upon itself the responsibility, which was to be performed by the Chairman and instead they proceeded with the case themselves and pronounced the impugned order and in this way the petitioner was deprived of the right of appeal, which was available to him."
11. ' The High Court did not direct that fresh proceedings were to be initiated against the respondents in case the Board wanted to take action against the respondents even after the judgment dated 12-11-1979 but directed that, as the Chairman was the competent authority, it was for the Chairman to pass any orders. The import of that order was that orders be passed by the Chairman and the right of appeal to the appellate authority, the Board, should remain available to the respondents and that was the grievance of the respondents. While passing judgment in the earlier petitions, if the High Court was taking the view that the Chairman should appoint an authorised officer, a fresh enquiry held and thereafter further action taken without reference to the previous proceedings, the High Court would have given such directions in their previous judgment. But as observed earlier, the High Court did not give any such directions but dealing with the plea raised on behalf of the respondents that they had been deprived of the right of appeal to the Board, held that the Chairman of the Board was competent to pass any orders in the matter. The operative part of the judgment in the previous writ petitions is unambiguous. The Chairman acted in accordance with the directions/observations in the said judgment.
12. ' It has also been noticed that the respondents filed appeals before the Board against the orders of the Chairman but the appeals were dismissed by the appellate authority, the Board. No grievance had been made before the High Court that the Board acted in an illegal manner in disposing of the appeals filed by the respondents. In fact the orders of the Board rejecting the appeals of the respondents were not even challenged before the High Court.
13. In the instant case, apart from the enquiry held by an Enquiry Committee comprising three Professors, show-cause notices had also been issued to the respondents to which replies had been given and, after considering all such material, orders of removal from service were passed by the Chairman, the competent authority under the Rules. There could be no better case for the High Court to deny relief in its writ jurisdiction.
14. Civil Appeals No,11-P of 1984 and 12-P of 1984 are accordingly allowed and the judgments of the Peshawar High Court dated 18-5-1983 in Writ Petitions Nos.368 and 369 of 1980 are set aside.
15. Pursuant to the judgment of the Peshawar High Court, the respondents were reinstated. In the interest of justice, it is ordered that respondents will not be liable to make any reimbursement for the salaries, emoluments and other facilities received/enjoyed by them in case they have been working against their posts after reinstatement.
16. ' The parties will bear their own costs.