ABDUL HAMID KHAN (MEMBER).---The appellant, Muhammad Sharif was working as Stenographer in the Office of the District Attorney, Lahore in the Sessions Court when as a result of a departmental enquiry held against him he was removed from service vide the Solicitor/Authority's order dated 27-6-1987 on several charges of misconduct. The punishment was upheld vide order dated 30-8-1990 by the Secretary, Law and hence the present appeal before the Tribunal.
2. The main contention of the appellant is that respondent No. 3/District Attorney, Lahore, who acted as the Authorised Officer in this case "was never properly constituted Authorised Officer nor he was/is designated as "Authorised Officer" under delegation of power Rules in case of Steno-- grapher/appellant". The contention has been controverted by the respondent who claim that "as per rule 2 (proviso) (of the E&D Rules) the Authority has the power to appoint an officer to act as "Authorised Officer" where no officer has been so authorised or designated" and that the appointment of "Authorised Officer" in this case "was made strictly in accordance with law and Rules". They have further pointed out that "the appellant should have taken this objection in his reply to the charge-sheet and also at the time the Inquiry Officer was appointed. He also did not raise the objection at the time he filed appeal before the departmental authority".
3. The post of Stenographer is not included in the schedule annexed to the Solicitor's Department, Delegation of Powers Rules, 1979 which means that neither the Authority nor the Authorised Officer have been notified in respect of the Stenographers of the Solicitor's Department. Proviso to rule 2(1)
(c) of the Efficiency and Discipline Rules provides that "where in the case of a civil servant no Authorised Officer has been so authorised or designated, the authority shall have power to appoint an officer to act as authorised officer in that case". The position obtainable in this case is that, as already stated, neither the authorised officer nor the authority have been designated/notified in the case of Stenographers. We are not aware how in the absence of such an authorisation, Secretary, Law has been presumed to be the Authority in respect of the Stenographers. This situation is actually covered by clause (b) under sub-rule (1) of rule 2 ibid which defines the term Authority as "Government or an officer or authority designated by it to exercise the powers of authority under these rules". This means that where the authority has not been notified, it is either the Government itself or an officer or an authority designated by it who could function as Authority.
In the case before us it is an admitted position that no one has been designated/notified as Authority in respect of the Stenographers. Thus in a case like this it could only be the Government who could function as "Authority" and no one else and it was this Authority i.e. Government who alone could designate/appoint an officer to perform the functions of an Authorised Officer.
4. In the light of the foregoing it is apparent that both the Solicitor and the District Attorney could not function as Authority and Authorised Officer respectively nor the Secretary, Law could hear the appeal in this case. This has rendered the entire proceedings invalid ab initio. Reliance is placed on the case reported as NLR 1978 Service 306 wherein the following observations, were made by this Tribunal in a similar situation: "According to the learned counsel the action has been taken under Efficiency and Discipline Rules, 1975 where under the `authority' has been defined by Rule 2(b) means "the Government or any Officer or Authority designated by it to exercise the power of authority under these rules'. The learned counsel further contended that the effect of the above definition of the authority was that primarily the Government was the competent authority unless it chose to delegate its powers in favour of any subordinate authority. Since admittedly in this case no such powers have been delegated in favour of Inspector---General of Registration, therefore the Government themselves - -continue to be the competent authority. He submitted that the aforesaid provisions manifestly expressed a different intention and thus only the `authority' under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 could act as the competent authority which was Government in this case:---
5. The respondents' plea that the appellant should have raised this objection during the course of the departmental proceedings is without any significance as the impugned orders being void ab initio and without jurisdiction, such objection could be raised at any stage.
6. Resultantly, the appeal is accepted, the impugned orders are set aside, the appellant is reinstated in service and the case remanded for conducting the proceedings de novo. The intervening period shall be decided by the competent authority for purpose of payment of salary etc. In the light of the result of the fresh proceedings. There are no orders as to costs.