ABDUL RAZZAQ A. THAHIM (CHAIRMAN)---The facts of this appeal are that Mr. Kazi Wali Muhammad was appointed as Research and Reference Officer (BPS-18) by direct recruitment on 26th July, 1984 in the Supreme Court of Pakistan. Certain adverse remarks were recorded in his ACR for the year ending 31st December, 1987 and the overall assessment was `Below Average' in the following columns: PART IV: ---PROFICIENCY IN JOB'
3: Analytical ability.
4. Supervision and Guidance.
5. Quality of Work.
ASSESSMENT OF PERFORMANCE "He has yet to pick up what is required of him:"
The above remarks were conveyed to the appellant by the Registrar, vide D.O. Letter dated March 9, 1988. The appellant made a representation against these remarks on 26th March, 1988, which was not responded. In the meanwhile, disciplinary proceedings were. Initiated against the appellant by serving on him show-cause notice under rule 5 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, '1982, on June 21,1993 and it reads as under:-- "Whereas you, Kazi Wali Muhammad, were appointed to officiate as Research and Reference Officer with effect from 26-7-1984; And whereas since then your work and conduct have not been found up to the mark. You were posted with several Hon'ble Judges but your performance was never found satisfactory. Several times you were transferred from Karachi to Rawalpindi, Rawalpindi to Karachi, Rawalpindi to Lahore and Lahore to Karachi; And whereas, adverse remarks were recorded in your reports, against which you made representations and were rejected after due consideration; And whereas you were found guilty of preparing of forged bills in your TA. Claim; And whereas, you had been trying to go to some other departments and your 9 applications have so far been forwarded; And whereas many times you proceeded on long leave; And whereas since your posting in Karachi from April, 1991 you are doing practically no work there and dissatisfaction has been expressed about your work and conduct; In view of your bad record of service, inefficiency and proved misconduct, it prima facie appear that you are not fit to be retained in this Court; Notice is, therefore, hereby given to you under rule 5 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982 to show cause as to why you should not be removed from service immediately.
Your reply should reach the undersigned within seven days from the date of receipt of this notice."
The appellant submitted his reply dated 28th June, 1993 to the show-cause notice and finally the competent authority, the Hon'ble Chief Justice of Pakistan, by order dated 1st September, 1993, removed him from service, under Rule 4 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982. The appellant made a review petition dated 8th September, 1993 to the Hon'ble Chief Justice, Supreme Court of Pakistan, under Rule 11 of the Rules but the same was dismissed by order dated 9-11-1993 which reads as under: "Review is without merit. Dismissed."
The appellant filed appeal before the President of Pakistan on 7th November, 1993. He then preferred this appeal before this Tribunal under section 4 of the Service Tribunals Act, 1973 on 13-12- 1993.
2. We have heard Mr. Syed Fasahat Hussain Rizvi, the learned counsel for the appellant. His contention was that this Tribunal has jurisdiction to entertain appeals against any order passed against the employees of the Supreme Court as a civil servant within the meaning of section 2(1)
(6) of 'Civil Servants Act, 1973. It is argued that there is no provision of appeal in the Supreme Court Rules, therefore, employees have no other alternate remedy but to file appeals before this Tribunal.
In support of his submissions, the learned counsel has referred to cases reported in 1993 SCMR 715 and PLD 1993 SC 375. It is also argued that the appellant being a civil servant within the meaning of section 2(1)(6) of the Civil Servants Act, 197'3, regular inquiry into the allegations against hum was mandatory which has not been done, therefore, the order is liable to be set aside.
3. Mr. Niaz Ahmed Khan, the learned Standing Counsel for the Government, who was incidentally present in other cases, was asked to assist us in this matter, otherwise there was no appearance from respondents. He submitted that the Supreme Court Rules of 1982 have been framed under Article 208 of the Constitution, with the approval of the President and the Supreme Court being an independent organisation, the Tribunal has no jurisdiction to entertain this appeal. In the comments, the Registrar of the Supreme Court has referred to a judgment of this Tribunal in Appeal No.107(R)/88 (Muhammad Matloob v. Registrar, Supreme Court of Pakistan, Rawalpindi) wherein it has been held that the employees of the Supreme Court are not civil servants within the meaning of Civil Servants Act, 1973, therefore, they cannot invoke the jurisdiction of this Tribunal. On merits, it has been stated that Kazi Wali Muhammad was removed from the service of Supreme Court in accordance with the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982, i.e. a show-cause notice was given to him, and was also granted a lengthy personal hearing by the Hon'ble Chief Justice of Pakistan and a detailed order was recorded by his Lordship. On the review petition of the appellant, as provided in rule 11 of the Rules, the Hon'ble Chief Justice was pleased to pass the following order on 9-11-1993: "Review is without merit. Dismissed."
4. Before we come to the merits of the case, we propose to deal with the legal objection about the jurisdiction of the Tribunal. For the sake of convenience, we would like to reproduce Article 208 of the Constitution hereunder: "208. Officers and Servants of Court .---The Supreme Court (and the Federal Shariat Court) with the approval of the President and a High Court, with the approval of the Governor concerned, may make rules providing for the appointment by the Court of officers and servants of the Court and for their terms and conditions of employment."
Under this Article, the superior Courts, i.e. The Supreme Court and the Federal Shariat Court, with the approval of the President and the High Courts with the approval of the Governors concerned, respectively, can make rules providing the terms and conditions of their employees. In pursuance of this Article, the superior Courts framed rules for their employees, with the approval of the President or the Governor, as the case was. The moot point before us is whether the rules framed under this Article regulating the terms and conditions of their employees, are amenable to jurisdiction of this Tribunal. It is relevant to mention here that under Article 212 of the Constitution, the civil servants as defined under section 2(1)(6) of the Civil Servants Act, 1973, have got the only remedy to come to the Service Tribunal against an order affecting their terms and condition of service, which also includes punishments imposed consequent to the departmental disciplinary proceedings taken against them. The first case relied upon by the appellant is that of Abbas v. The Honourable Chief Justice through the Registrar, High Court of Sindh, Karachi and 2 others (1993 SCMR 715). The appellant in this case challenged the order of the Honourable Chief Justice dated 29-6-1976 whereby he was reverted from the post of Superintendent to that of Assistant. The appellate authority, the Chief Justice, under Schedule-II of the Rules nominated two Judges to examine the case. The Hon'ble Judges after considering the merits of the case came to the conclusion that injustice was done to appellant Abbas and strongly recommended that if it is possible his grievance may be redressed or in the alternate as and when question of next promotion arises, the case of the appellant be considered. The Hon'ble Chief Justice, Sindh High Court accepted the recommendations of two Hon'ble Judges to some extent and appellant was promoted as Officiating Superintendent in a leave vacancy and seniority was not allowed.
However, the appellant was not satisfied and as such he approached the Sindh Service Tribunal on 28-3-1988 claiming seniority over one Mr. Sultan Nasir, Superintendent. The appeal was not entertained by the Sindh Service Tribunal on legal grounds. The appellant challenged the decision of the Tribunal before the Supreme Court by filing Civil Appeal No. 570-K of 1990. Their Lordships of the Supreme Court in paragraphs 19 and 20 of the Judgment observed as under:-- "19. In recording the finding that the order challenged by the appellant did not relate to the terms and conditions of service arising from the Act and the rules framed thereunder, section 26 of the Act was ignored. Section 26 of the Act reads as hereunder:-- "26. Rules.--(1) Government or any person authorised by it in this behalf, may make such rules as appear to be necessary or expedient for carrying out the purpose of this Act.
(2) Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act."
The Rules under which the orders were passed related to the terms and conditions of the service of the appellant. The High Court had a statutory authority to frame those rules. Article 241 of the Constitution also made a provision for continuance and applicability of such rules in the following words:-- "241. Existing Rules, etc. To continue.---Until the appropriate Legislature makes a law under Article 240, all rules -and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government.
20. Reading section 26 of the Act and Article 241 of the Constitution together, the High Court Establishment Rules would be deemed to be rules framed under the Act and for that reason any violation of it justice able before the Service Tribunal."
Consequently the appeal was accepted and the order of the Sindh Service Tribunal declaring appeal to be incompetent was set aside and the case was remanded to the Tribunal having jurisdiction for decision on merits.
5. The other case relied upon by the appellant is that of Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others (Civil Appeal No. 78 of 1991)
(PLD 1973 SC 375); Province of Baluchistan v. Javed Iqbal, Registrar and 17 others (Civil Petition for Leave to Appeal No. 52 of 1992) and Government of N.-W.F.P. v. Bashir Muhammad and 10 others (Civil Petition for Leave to Appeal No. 26-P of 1992). The case is reported in PLD 1993 SC 375. The point for consideration in this case was whether the employees of the High Court s would fall in the definition of `Service of Pakistan' and the establishment of the High Court was entitled to Secretariat Allowance, and it was held that the employees of the High Courts are civil servants. Paragraph 13 of the judgment deals with the particular question and is reproduced below:-- "13. In the Constitution of Pakistan, 1973 "service of Pakistan" has been defined in Article 260, as hereunder:-- "Service of Pakistan means any service, post or office in connection with the affairs of the Federation or a Province, and including an All-- Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act or Majlis-e---Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate-General, Parliamentary Secretary or Chairman or Member of a Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Advisor to the Prime Minister, Special Assistant to the Chief Minister, Advisor to a Chief Minister or Member of a House or a Provincial Assembly.
This definition of "service of Pakistan" itself divides those included into it into two broad categories i.e., one of those employed in connection with the affairs of the Federation and the other of those employed in connection with the affairs of a Province. Applying this definition, the employees of the High Court establishment would fall within the definition of service of Pakistan and have been taken to be employed in connection with the affairs of a province."
Similar question of law also came up for adjudication before the Hon'ble Supreme Court in the case of Hadi Bux v. Government of Sindh and another (PLD 1994 SC 532). In this case appellant Mr. Hadi Bux was appointed as Additional Secretary in the Provincial Assembly of Sindh on the recommendations of the Selection Committee. On completion of probationary period, he was confirmed in that post but his services were terminated by the Speaker of the Assembly. He brought his grievance before the Sindh Service Tribunal but his appeal was dismissed on the ground that he was neither a member of the civil service of the Province nor he was holding any civil post in connection with the affairs of the Province, therefore, appeal before the Tribunal was not competent. The appellant filed Civil Appeal No. 50 of 1993 before the Supreme Court, decided on 22-2-1994. The Hon'ble Supreme Court after examining the provisions of the Constitution, the Sindh Civil Servants Act, 1973 and the Sindh Assembly Secretariat (Recruitment) Rules, 1974 and considering judgments reported in 1993 SCMR 715 (Abbas v. The Honourable Chief Justice through the Registrar, High Court of Sindh, Karachi and 2 others) and PLD 1993 SC 375 (Government of Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others), gave an authoritative judgment holding that the employees of the Provincial Assembly of Sindh are civil servants and amenable to jurisdiction of the Sindh Service Tribunal. The relevant paragraphs 5 to 9 are reproduced here in below in extenso:-- "5. Before dealing with the above contentions, it maybe pertinent to refer to the relevant provisions of the Constitution. It may be observed that Article 127 of the Constitution inter alia provides that Articles 87 and 88 shall apply to and in relation to a Provincial Assembly or a committee or member thereof or the Provincial Government. It also provides that any reference in those provisions to Majlis-e-Shoora (Parliament), a House or the National Assembly shall be read as a reference to the Provincial Assembly. It may further be observed that clause (1) of Article 87 envisages that each House shall have a separate Secretariat but it has also proviso to the effect that both the Houses may have common posts. Whereas clause (2) of the above Article provides that the Parliament may by law regulate the recruitment and conditions of service of persons appointed to the Secretariat staff of either House. It may also be pointed out that clause (3) of the above Article empowers the Speaker or as the case may be the Chairman with the approval of the President, may make rules regulating the recruitment and conditions of service of persons appointed to the secretariat staff of the National Assembly or the Senate until provision is made by the Parliament under above clause (2) of Article 87."
6. In the present case, the Speaker of the Assembly in exercise of the power conferred by the above clause (3) of the Article 87 read with Article 127 of the Constitution framed Sindh Assembly Secretariat (Recruitment) Rules, 1974, hereinafter referred to as the Rules. The Rules provide as to the strength of the Secretariat Staff, method of recruitment which includes recruitment by promotion, recruitment by transfer and appointment by direct recruitment. The same also provide qualifications for appointment, appointing authority, probationary period etc. However, Rule 13 of the Rules provides as follows:--
13. Matters not specifically provided for.---In respect of all other matters including recruitment policy, eligibility for appointment to a post and the rank, status, seniority, prospects of promotion, privileges and the conduct and discipline of the employees for which no provision has been made in these rules the employees shall be governed by such rules and orders as are for the time being in force and applicable to the employees holding corresponding posts in the provincial secretariat subject to such modifications variations or exceptions, if any, not amounting to amendments, in such rules and orders as the Speaker from time to time by order specify'."
7. It may be appropriate at this juncture to refer to Article 240, the definition of the term "service of Pakistan" given in Article 260 of the Constitution and section 3 of the Sindh Civil Servants Act, which read as follows:-- Section 240 of the Constitution "240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined:--
(a) In the case of the services of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament); and
(b) In the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly."
Definition of "Service of Pakistan" given in Article 260 "Service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis--e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate-General, Parliamentary Secretary or Chairman or member of a Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Advisor to the Prime Minister, Special Assistant to a Chief Minister, Advisor to a Chief Minister or Member of a House or a Provincial Assembly."
Section 3 of the Sindh Civil Servants Act 1973: Terms and conditions.---The terms and conditions of service of a civil servant shall be as provided in this act and the rules."
8. It may be noticed that under above Article 240, it has been provided that subject to Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined in case of the services of the Federation -and posts in connection with the affairs of the Federation and All-Pakistan Services by or under the Act of the Parliament, whereas in the case of the services of a Province and posts in connection with the affairs of a Province by or under Act of the Provincial Assembly. It also provides that "service of Pakistan" includes post or office inter alia of a Provincial Assembly but does not include Speaker, Deputy Speaker etc. It may be noticed that section 3 of the Sindh Civil Servants Act lays down that the terms and conditions of service of a civil servant shall be as provided in the said Act and the rules.
9. The reasoning which found favour with the Tribunal seems to be that since the recruitment of the appellant in service of the Assembly has not been made under any Act of the Assembly and as the terms and conditions of his service are not determined by the above Act or the rules framed thereunder as required under Article 240 of the Constitution, the appellant cannot be treated a member of a civil service of the Province or a person who holds a civil post in connection with the affairs of the Province. The above reasoning does not seem to be relevant for the purpose of present controversy. However, in our view, in order to determine, whether the Tribunal has jurisdiction in the matter in hand, we will have to refer to the definition of the term "civil servant" given in clause (a) of section 2 of the Act, which reads as follows:-- "(a) civil servant' means a person who is or has been a member of the Civil Service of the Province, or holds or has held a civil post in connection with the affairs of the Province, and for the purpose of any proceeding under this Act includes a person who is or has been, dismissed, discharged, removed or retired from such service or post as a consequence of the order of the departmental authority, but does not include--
(i) a person who is on deputation to the Province from the Federation or any other Province or authority; or
(ii) a person who is employed on contract, or on work-charged basis, or who is paid from contingencies; or
(iii) a person who is a `worker' or `workman' as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923);"
According to the above definition, a person who is or has been a member of the civil service of the Province or holds or has held a civil post in connection with the affairs of the Province and for the purpose of any proceeding under the Act includes a person who is or has been dismissed, discharged, removed or retired from such service or post as a consequence of the order of the departmental authority but it does not include the persons mentioned in sub-clauses (i) to (iii).
The question for determination is, as to whether, the appellant can be said to have held a civil post in connection with the affairs of the Province. In this regard, it may be pertinent to refer to the case of Begum Tahira Fazal Ahmad v. Home Secretary, Government of West Pakistan PLD 1966 Lahore 446, wherein a Division Bench of the erstwhile High Court of West Pakistan while considering the status of a Provincial Minister quoted with approval of following definition of the word "Government" given in the Black's Law Dictionary, Third Edition: "The whole class or body of office-holders or functionaries considered in the aggregate, upon whom devolves the executive, judicial, legislative and administrative business of the State."
It cannot be denied that the appellant was holding a civil post and as the meaning of the word "Government" includes legislative functions, the appellant was holding civil post in connection with the affairs of the Province. In this regard reference may be made to a recent judgment of this Court in the case of Abbas v. The Honourable Chief Justice through the Registrar, High Court of Sindh, Karachi and 2 others 1993 SCMR 715, in which the question of consideration before this Court was, whether the appellant who was an employee of the High Court and who was appointed under the High Court Establishment (Appointment and Conditions of Service) Rules was entitled to invoke the jurisdiction of Sindh Service Tribunal under the Act. It was held that by reading section 26 of the Sindh Civil Servants Act and Article 241 of the Constitution together the High Court Establishment Rules would be deemed to be rules framed under the Act and for that reason any violation of it would be justifiable before the Service Tribunal: Strictly speaking, the facts of the above report are distinguishable as in the present case rules have been framed in 1974 after the enforcement of the Sindh Civil Service Act and, therefore, the present rules cannot be deemed to be rules framed under the above Act. However, under Rule 13 of the Rules quoted hereinabove, it has been provided that in respect of all other matters, including Recruitment Policy, eligibility for appointment to a post and the rank, status, seniority, prospects of promotion, privileges and the conduct and discipline of the employees for which no provision has been made in the rules, the employees shall be governed by such rules and orders as are for the time being in force and applicable to the employees holding corresponding posts in the Provincial Secretariat subject to such modifications, variations, if any, not amounting to amendment, in such rules and orders as the Speaker from time to time by order specify. In view of the above rule it can be said that the rules framed under the Sindh Civil Servants Act have been incorporated in the rules by reference. In this view of the matter, the reasoning adopted in the above case can be pressed into service in the case in hand.
Additionally, it may be pointed out that the Act does not provide any precondition that only a civil servant or a person holding civil post in connection with the affairs of the Province, who has been appointed under an Act of the Assembly and whose terms of service have been determined under the Sindh Civil Servants Act, 1973, can invoke the jurisdiction of the Tribunal. If a person is covered by the definition of "civil servants" given in the Act, he can invoke jurisdiction of the Tribunal. Since the appellant holds a civil post in connection with the affairs of the Province, he is covered by the definition of the section 2(a) of the Act for the purpose of invoking the jurisdiction of the Tribunal.
The question, whether he will be able to get any relief by showing violation of any statutory rules, would be a matter for determination by the Tribunal. It will not be out of context to refer another judgment of this Court in the case of Government of Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375 in which this Court while considering the question, whether the employees of the Lahore, Baluchistan and Peshawar High Courts were entitled to secretariat allowance, held that the employees of the High Court establishment would fall within the definition of "service of Pakistan" and have been employed in connection with the affairs of the Province. The relevant observation reads as follows:-- "The definition of `service of Pakistan' itself divides those included into it into two broad categories i.e. One of those employed in connection with the affairs of the Federation and the other of those employed in connection with the affairs of a Province. Applying this definition, the employees of the High Court establishment would fall within the definition of service of Pakistan and have been taken to be employed in connection with the affairs of a Province."
Reference may also be made to the case of Inspector-General of Police, Punjab, Lahore and others v. Mushtaq Ahmad Warraich and others (PLD 1985 SC 159), in which it was held that the Police Rules framed under the Police Act, 1861, continued to be applicable in-spite of the enactment of the Punjab Civil Servants Act, 1974, and the rules framed thereunder. The case proceeded on the assumption that the Punjab Service Tribunal had jurisdiction in the matter.
The upshot of the above discussion is that the' appeal is allowed the case is remanded to the Tribunal to decide the appellant's appeal on merits after notice to the parties. However, there will be no order as to costs.
Before parting with the above discussion we may record our appreciation for the service rendered by Mr. Sabihuddin Ahmed, learned ASC, who has appeared as amicus curiae."
For the reasons stated above, we are of the view that employees of Supreme Court are civil servants under the Civil Servants Act, 1973 and Federal Service Tribunal has jurisdiction to take cognizance of their appeals under section 4 of the Service Tribunals Act, 1973.
6. Furthermore, if we revert to `The Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982' (hereinafter referred to as the Rules), published in the Gazette of Pakistan dated 20th July, 1982 vide SRO. 711(1)/82, there is no provision of appeal. Rule 3 thereof provides as under: "3: -(1) Subject to any special provisions contained in these Rules, the rules and orders for the time being in force and applicable to civil servants of corresponding BPS of the Federal Government shall regulate the terms and conditions of service of officers and servants of the Supreme Court: Provided that the powers exercisable under the said rules and orders by the President or by any authority subordinate to the President, shall be exercisable by the Chief Justice of Pakistan or by such person as he may, by general or special order, direct.
(2) Any question arising as to which rules or orders are applicable to the case of any person serving on the staff attached to the Supreme Court shall be decided by the Chief Justice."
Rules 5 and 6 relate to procedure for taking disciplinary action against the employees of the Supreme Court. Rule 5 provides for summary procedure of show cause while Rule 6 relates to inquiry proceedings. Rule 11 provides for appeal and review and appeal has been provided against an order passed by the Registrar, but provision for review has been contemplated against an order passed by the Hon'ble Chief Justice and there is no provision for appeal. In this case, admittedly, proceedings against the appellant have been taken under Rule 5 although appellant was awarded a major punishment of removal from service. If we refer to the Rules framed by the Federal Shariat Court and the High Courts under Article 208 of the Constitution, there is provision for appeal. The order of the Hon'ble Chief Justice, Federal Shariat Court can be challenged before the Appellate Bench consisting of three Judges of the Federal Shariat Court and the High Courts, but in the Supreme Court Rules, there is no such provision for appeal, although in Rule 12 it is clearly laid down that appeal or review may be filed within thirty days. It may also be pointed out that in identical circumstances, there was no provision for appeal in the Pakistan Army Act and the vires of the Act were challenged before the Federal Shariat Court, and it was decided that doors of Courts cannot be shut for litigants and such provision for appeal was suggested to be incorporated in the Pakistan Army Act by the Federal Shariat Court, and reference is made to PLD 1985 FSC 365. In view of the above discussions, the employees of the Supreme Court are civil servants and they can bring their grievances before the Federal Service Tribunal by way of appeal, especially when there is no such provision for appeal in the Rules and impugned order of removal has been passed by the Hon'ble Chief Justice and review has also been dismissed by His Lordship himself, when under Article 212, remedy to the civil servants by way of appeal is provided under section 4 of the Service Tribunals Act, 1973.
7. In the comments filed by the Registrar, reliance has been placed on the judgment of this Tribunal in Appeal No. 107(R)/88, decided on 27-2-1989 whereby the Tribunal dismissed the appeal of Mr. Muhammad Matloob, who was working as Private Secretary in the Supreme Court of Pakistan on the grounds that the employees of the Supreme Court are not civil servants within the meaning of Civil Servants Act, 1973. With due respect, in this judgment the learned Members of the Tribunal have not gone into details of vires of the Constitution, the Act and the Rules and it was a matter of 1989 whereas by this time the law has much developed, as discussed above, and recently this point has finally been thrashed out by the Hon'ble Supreme Court in the cases reported in 1993 SCMR 715; PLD 1993 SC 375 and PLD 1994 SC 532, therefore, the aforementioned judgment of the Tribunal without any cogent grounds, is distinguishable.
8. Adverting to the merits of the case, the disciplinary proceedings against the appellant were initiated by serving him a show-cause notice under Rule 5 of the Rules. Rule 5 reads as under: ".------when an action is proposed to be taken against an officer or servant of the Court under rule 4, he shall be informed in writing of the action proposed to be taken in regard to him and the grounds of the action and he shall be given a reasonable opportunity of showing cause against that action: Provided that no such opportunity shall be given when the Chief Justice or the Registrar, as the case may be, is satisfied that in the circumstances of the case, it is not expedient in the public interest to give such opportunity: Provided further that pending action against an officer or servant of the Court he may be suspended or required to proceed on leave and in appropriate case, an inquiry may be conducted through an Inquiry Officer, who shall be appointed by the Chief Justice or the Registrar, as the case may be."
Rule 4 is also material for the purpose of this case and is reproduced below- "4.--(l) Where in the opinion of the Chief Justice an Officer of the Court in BPS-18 and above or in the opinion of the Registrar any other officer or servant of the Court-- (a)is inefficient or has ceased to be efficient; or (b)is guilty of misconduct; or .
(c)is corrupt, or may reasonably be considered corrupt because-- (i)he is, or any of his dependents or any other person through hum or on his behalf is, in possession (for which he cannot reasonably account) of pecuniary resources or of property disproportionate to his known sources of means; or (ii)he has assumed a style of living beyond his ostensible means; or (iii)he has a persistent reputation of being corrupt; or (d)is engaged, or is reasonably suspected of being engaged, in subversive activities, or is reasonably suspected of being associated with others engaged in subversive activities or is guilty of disclosure of official secrets to any unauthorised person, and his retention in service is therefore, prejudicial to national security, the Chief Justice or the Registrar, as the case may be, may impose on him one or more of the following penalties:--
(a) Minor penalties--
(i) censure;
(ii) withholding, for a specific period, promotion or increment, otherwise than for unfitness;
(iii) stoppage, for a specific period, at an efficiency bar in the time-scale, otherwise than for unfitness to cross such bar;
(iv) recovery from pay of the whole or any part of any pecuniary loss caused to Government by negligence or breach of orders;
(b) Major penalties:
(i) reduction to a lower post or time-scale, or to a lower stage in a time-- scale;
(ii) compulsory retirement;
(iii) removal from service; and .
(iv) dismissal from service.
(2)Removal from service does not, but dismissal from service does, disqualify for future employment.
(3)In this rule, removal or dismissal from service does not include the discharge of a person-- (a)appointed on probation, during or on the expiry of the period of probation; or (b)appointed otherwise than under a contract, to hold a temporary appointment, on the expiration of the period of appointment; or (c)engaged under a contract, in accordance with the terms of the contract."
Under these Rules, there are two authorities to initiate disciplinary proceedings -- one Hon'ble Chief Justice in respect of officers of BPS-18 and above and in case of officers below BPS-18, the Registrar.
The show-cause notice has been issued to the appellant by Registrar. He has nowhere stated that competent Authority, i.e. The Hon'ble Chief Justice, authorised him to issue show-cause notice or he decided to initiate proceedings through Registrar, Supreme Court against a BPS-18 officer, and in the absence of such authorisation, in our view, this show-cause notice by Registrar is a nullity in the eyes of law, as Registrar cannot be termed as competent Authority when it is clearly stated in Rule 4 that in case of officer of the Court in BPS-18 and above, the Hon'ble Chief Justice is of opinion that employee is inefficient etc. And action is to be taken under Rule 5. This action as it appears from the show-cause notice has been taken by the Registrar independently and there is nothing on record that Hon'ble Chief Justice was of opinion or directed him as such. Therefore, the proceedings have been initiated by an officer (i.e. Registrar of Supreme Court) without jurisdiction and consequently all actions taken in pursuance of this notice have no legal force. Let us now deal with the show-cause notice. No statement of allegations showing grounds on taking action were furnished to appellant. The procedure adopted was of summary procedure under Rule 5 for which there is no order under the provisions of Rule 4 therefore, procedure is to be adopted strictly in the spirit of Rule 5 for which notice (show-cause) is to be issued by the competent Authority, i.e. Hon'ble Chief Justice of Pakistan and not the Registrar.
9. The appellant has been punished by imposing on him the major penalty of removal from service on the basis of unsatisfactory performance; adverse ACR; preparing forged TA. Bills; trying to go to some other department proceeding on long leave; bad record of service; inefficiency and proved misconduct. The appellant in the memo of appeal as well as in reply to the show-cause notice had categorically and specifically refuted each charge; but the Registrar while filing parawise comments to the appeal, neither denied the averments of the appellant, nor produced any documents as to controvert the submissions of the appellant, except the order of removal passed by the Hon'ble Chief Justice. The Registrar has also not filed any document to show that the appellant was ever warned, counselled or any displeasure was conveyed to him in the past, which are the basis of the show-cause notice served on the appellant. It may also be observed that disciplinary proceedings against the appellant who was a BPS-18 officer, were initiated by the Hon'ble Chief Justice in the capacity of competent Authority. He passed the order of removal and heard the review petition but the same was dismissed with one sentence without assigning any reasons and it was not in line with the law laid down by the Hon'ble Supreme Court in the case of Aslam Warraich v. Secretary, Planning Division, reported in 1991 SCMR 2330. It is a universally -- accepted principle of law that one cannot be a complainant and a Judge in his own cause, and with utmost regard, we feel that in such circumstances to meet the ends of justice, it was a case where regular inquiry by an independent officer was called for. In the impugned order passed by the Hon'ble Chief Justice, reference has been made to the views of Full Court which includes Hon'ble Judges who, according to appellant, had appreciated his work and in such an eventuality, in my humble view, when there are disputed facts of allegations of forgery etc. In all fairness and to meet the ends of justice, regular inquiry as contemplated under Rule 6 of the Rules was mandatory and we have not been able to lay hands on any document for dispensation or regular inquiry. In this context, we have borrowed wisdom from various judgments of the Supreme Court and we rely on the case reported in 1993 SCMR 603 (Alamgir v. Divisional Forest Officer, Multan and others) and Civil Appeal No. 312/1993 filed by Abdul Hafeez, decided on 15th November, 1993 wherein it has been held that when there are disputed facts, a civil servant cannot be ', denied a regular inquiry.
10. Upshot of the above discussions is that the impugned order dated 1st September, 1993 where under the appellant has been removed from service suffers from legal infirmities and such an order cannot sustain. Consequently, we accept the appeal, set aside the impugned order dated 1st September, 1993 and reinstate the appellant into service. With regard to back benefits for the intervening period, it is the discretion of the Hon'ble Chief Justice of Pakistan to decide, as he may consider fit and proper. No order is made for costs.