' MAMOON KAZI, J.---These two appeals, by leave of this Court, are directed against the same judgment of the Federal Service Tribunal, Islamabad dated 24-3-1992 whereby the two appeals filed by respondent Zamir Ahmed were allowed and the order passed against the respondent under Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as "the said Rules") was set aside as being violative of Rule 5(1)(iv) of the said Rules.
2. The brief facts of the case are that the said respondent while working as postmaster at Dharampura and Railway Headquarters' Post Offices, Lahore was said to have commit ted various irregularities thereby causing financial loss to the Government. He was, therefore, proceeded against under the said Rules and awarded punishment by City Superintendent of Post Offices, North Division, Lahore (appellant No, 3) vide order dated 6-2-1988 as follows:-- "In view of my above discussions, it is crystal clear that the accused throughout the period under review has acceded his duty limits and has misused the powers vested in him. Moreover, all the charges levelled against him stand also fully proved on account of which he deserves appropriate major punishment as prescribed under the Government Servants ( E&D) Rules, 1973. However, in consideration of his pretty long service in the Department and the future of his dependent family members take a lenient view of the matter and award him punishment of reduction in pay for two steps for ever with immediate effect. The period of suspension is ordered to be treated ' as it is' ."
3. The respondent filed a departmental appeal on 1-9-1988 against the said order but there being no response from the Appellate Authority he filed his appeal before the Service Tribunal. During the pendency of his appeal he was informed by letter dated 28-3-1989 that his departmental appeal had been dismissed by the competent Authority vide order dated 22-3-1989 and consequently a second appeal was filed before the Tribunal against the said order. Both the appeals were disposed of by the Tribunal by the common judgment dated 24-3-1994 which has now been challenged before this Court:
4. Before the Tribunal the legality of the impugned order was challenged on the ground that respondent No,3 had acted both in the capacity of an "authorised officer'' and "authority" under the said Rules which amounted to violation of the provisions of rule 5(1)(iv). The Tribunal placing reliance upon its earlier judgment in the case of Abdul Kareem Sheikh v. Postmaster-General, Northern Circle, Rawalpindi (1982 PLC (C.S.) 795) accepted the respondent's contention and held that the said Rules did not permit the appointment of the same person as an "authorised officer" and an "authority" and thus the said Rules had been violated by the appellants and consequently the appeal filed by the said respondent was accepted.
4-A. The main contention of the learned Deputy Attorney-General before us has been that although according to the original definition of the expression "authorised officer" occurring in Rule 2(3) there was no express provision whereby the same person could act in the said capacity and also as an "authority" as defined in Rule 2(2) of the said Rules, but Rule 2(3) was subsequently amended by S.R.O. 861/1/78, dated 3rd July, 1978 as under:- "(a) in rule 2, in clause (3), after the word 'rules' at the end, the words and commas 'or, if no officer is so authorised, the authority' shall be added;"
' Consequently, according to learned Deputy Attorney-General a clear error was committed by the Tribunal by not taking into consideration the said amendment incorporated in Rule 2(3). Leave had earlier been granted to examine the said issue.
5. The expressions "authority" and "authorised officer" had earlier been defined by Rule 2 of the said Rules as under:-- "(2) 'authority' means the President or an Officer or authority designated by him to exercise the powers of the authority under these. Rules;
(3) ' authorised officer' means an officer authorised by the authority to perform functions of an authorised officer under these rules;"
' The Tribunal in Abdul Karim's case by its majority view while taking into consideration the said Rules as they stood before the said amendment held as follows:-- "Apparently, the two functions being performed by the same officer would render clause (v) of sub-rule (1) of rule 5 of the Rules as negatory, but then the two provisions have to be reconciled. In our opinion the reconciliation is possible by limiting the combination of authority and authorised officer only in those cases, where the accused officer is not subordinate to any one except the President, for in such a case it would not be proper to name an officer of equal status or a lower status to perform the functions of the authority or of the authorised officer. However, when a person is immediately subordinate to an officer other than the President, then the same functions cannot, in our opinion, be performed by the same person as authority and the authorised officer: for that would negate the provisions of clause (iv) ibid."
' In the present case the appeal filed by the respondent was heard by the Tribunal when the said amendment made in rule 2(3) had already come into force, materially altering the definition of the expression "authorised officer" as pointed out earlier in this judgment. Perusal of the impugned judgment clearly indicates that the Tribunal disposed of the same by relying on its earlier judgment in Abdul Karim's case without taking into consideration the change introduced in the definition of "authorised officer" by the said amendment.
6. Although the error committed by the Tribunal is apparent on the face of the judgment as it has been just pointed out but, the contention of the learned counsel for the respondent is that the amendment in Rule 2(3) of the said Rules could only be invoked under special circumstances but in case the Rule is applied generally in all cases, the same may result into serious prejudice to the accused. Perusal of the new definition of the expression "authorised officer" and the definition of the term "authority" indicates that the latter expression in the first instance means "the President". The definition further indicates that it would also include an officer or authority designated by the President to exercise the powers of the authority under the said Rules. As distinct from the definition of the word "authority", the expression "authorised officer" means an officer authorised by the authority to perform functions of an authorised officer under the said Rules. The definition further indicates that if no officer is so authorised the expression in that event would mean the authority. It consequently follows that "authorised officer" may either be a person, authorised by the President himself to perform the functions of the authorised officer under the said Rules or he may be authorised by a person, designated by the President to exercise the powers of the authority under the Rules. Learned Deputy Attorney-General has placed before us Notification No, S.R.O. 919(1)/83, dated 28-9-1983 published in the Gazette which indicates that although no officer had been authorised to perform the functions of the authorised officer in respect of the category of Government servants which included the respondent but an officer to act as authority had been designated under the said rules. Such officer in the case of the respondent was "Deputy Postmaster-General/Controller of Post Offices/ Chief Postmaster/Director, Postal Life Insurance".
Although, the said notification indicates that appellant No, 3 had not been designated by the President to exercise the powers of the authority under the said Rules but it is pertinent to point out that this question was neither raised before the Tribunal on behalf of the respondent nor the Tribunal appears to have addressed itself to this question. As is further clear from the impugned judgment, the Tribunal did not even take into consideration the said notification although, in our opinion, it was imperative to verify whether any officer had been authorised in this case to perform the functions of the authorised officer. The new definition of the said expression clearly indicates that it is only in case where no officer has been so authorised that, the authority designated under the Rules can perform such functions.
6-A. So far as the contention raised on behalf of the respondent is concerned, reference to some relevant Rules would be necessary. Rule 3 of the said Rules provides for grounds for penalty which may be imposed on a Government servant and clause (b) thereof indicates that a Government servant may be proceeded against under the said Rules if, in the opinion of the authority, he is guilty of misconduct. In that case the authority may impose on him one or more penalties as enumerated in Rule 4. The said Rule provides for minor as well as major penalties that can be imposed on the accused. Rules 5 and 6 of the said Rules provide for enquiry procedure as follows:- - "5. Inquiry procedure.---(1) The following procedure shall be observed when a Government servant is proceeded against under these rules:-
(i) In case where a Government servant is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave or, with the approval of the authority, suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months.
(ii) The authorised officer shall decide whether in the light of facts of the case or the interests of justice an inquiry should be conducted through an Inquiry Committee. If he so decides, the procedure indicated in rule 6 shall apply.
(iii) If the authorised officer decides that it is not necessary to have an inquiry conducted through an Inquiry Committee, he shall --
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the ground of the action; and
(b) give him a reasonable opportunity of showing cause against that action: Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity.
(iv) On receipt of the report of the Inquiry Officer or Inquiry Committee or where no such officer or Committee is appointed, on receipt of the explanation of the accused, if any, the authorised officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty he shall pass orders accordingly. If it is proposed to impose major penalty, he shall forward the case to the authority along with the charge and statement of allegations served on the accused, the explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendation regarding the penalty to be imposed. The authority shall pass such orders as it may deem proper.
(2) The exercise of powers under clauses (i) and (iv) of sub-rule (1) by the authorised officers in the Pakistan Missions abroad shall, unless already so provided, always by subject to the approval of the authority.
6. Procedure to be observed by the Inquiry Officer and Inquiry Committee.---Where an Inquiry Committee is appointed, the authorised officer shall--
(1) frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and of any other relevant circumstances which are _proposed to be taken into consideration;
(2) require the accused within a reasonable time, which shall not be less than seven days or more than fourteen days from the day the charge has been communicated to him, to put in a written defence and to state at the same time whether he desired to be heard in person;
(3) the Inquiry Officer or the Committee, as the case may be, shall inquire into the charge and may examine such oral, or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him;
(4) the Inquiry Officer or the Committee, as the case may be, shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing. However, every adjournment, with reasons therefor, shall be reported forthwith to the authorised officer. Normally no adjournment shall be for more than a week;
(5) where the Inquiry Officer or the Committee, as the case may be, is satisfied that the accused is hampering or attempting to hamper, the progress of the inquiry he or it shall administer a warning and if thereafter he or it is satisfied that the accused is acting in disregard of the warning, he or it shall record a finding to that effect and proceed to complete the inquiry in such manner as he or it think best suited to do substantial justice;
(6) the Inquiry Officer or the Committee, as the case may be, shall within ten days of the conclusion of the proceedings or such longer period as may be allowed by the authorised officer, submit his or its findings and the grounds thereof to the authorised officer."
' Rule 6-A which confers revisional powers on the authority further provides as under:-- ' Revision.---The authority may call for the record of any case pending before or disposed of by the authorised officer and pass such order in relation thereto as it may deem fit."
7. The Rules reproduced above clearly indicate that different powers and functions have been conferred upon or assigned to persons who may be designated under the said Rules as the authority or the authorised officer. For example, in case where a Government servant is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave or order his suspension. But in case of continuation of such leave or suspension, approval of the authority shall be required after every three months. The authorised officer has also been vested with power to decide whether an enquiry should be conducted through an Inquiry Committee. He has also been authorised under rule 5(1)(iv) to pass an order imposing penalty on an accused, in case a minor penalty has been proposed. However, in any other case, the authority has been empowered to impose any one or more penalties on a Government servant in case he is found guilty under any of the clauses embodied in rule 3. Rule 6-A further indicates that the authority has been vested with revisional powers whereby it may call for the record of any case pending before or disposed of by the authorised officer and pass such order in relation thereto as it may deem fit.
However, a critical examination of the said rules indicates that except for the power conferred on "authority" by rule 6-A, the functions assigned to the authority and the authorised officer under such rules can nevertheless be performed by the same person. However, the provisions of rule 6-A are only enabling provisions and they appear to vest the authority with suo motu powers of revision over any order passed by the authorised officer. However, in case no person has been designated to act as an authorised officer, the question of invoking the rule in that case would hardly arise. But we cannot visualise a situation where any prejudice may be caused to an accused when the functions of the authority and the authorised officer are combined in one and the same person. No doubt, if a rule is found to be harsh, unreasonable or unjust or for any other similar reason the rule may be struck down by the Court but in the present case, neither rule 2(3) was struck down as such nor the Tribunal was authorised in view of its limited powers to strike down any rule on such grounds. It is, however, pertinent to point out that, amendment in the provisions of rule 2(3) appears to have been introduced to meet an unusual situation where for some reason, no person has been designated by the "authority" to act as "authorised officer". The amendment therefore, cannot be taken to have intended to dispense with the requirement of bifurcation of the functions assigned by the said 'rules to "authority" and "authorised officer". On the other hand, nothing can be spelt out from the different provisions of the said Rules, earlier referred to by us, to indicate that the said amendment in rule 2(3) was not intended to be invoked in every case where no officer had been authorised under the said rules to perform the functions of the authorised officer. In fact, nothing could be pointed out by the learned counsel for the respondent in this regard to support his contention that the amendment incorporated in rule 2(3) cannot be generally invoked notwithstanding the fact that no person has been designated as the authorised officer. No doubt, the said rules indicate bifurcation of the functions of the authority and the authorised officer, and the nature of the two functions clearly shows that the person who may be designated as an authority would be higher in rank than the person who may be authorised to perform the functions of the authorised officer but, notwithstanding rule 6-A, as the person to be designated as the authority has not been vested with any kind of appellate powers over the latter, possibility of prejudice being caused to the accused by overlapping of the two functions appears to be remote. The learned counsel for the respondent has also failed to spell out anything that may lead to an inference that any prejudice has been caused to the respondent in the present case.
The contention of the learned counsel for the respondent, therefore, appears to have little merit.
However, the Tribunal has simply relied upon its earlier judgment, which was not applicable in the present case, as was pointed out earlier. We are, therefore, clearly of the view that the view taken by the Tribunal is not correct and the judgment of the Tribunal is liable to be set aside.
8. In the result, the appeals are allowed and the case is remanded to the Tribunal for a fresh decision in the light of this judgment. The 'Tribunal may also consider the question whether respondent No, 3 was empowered under Notification No, DRO.919(I)/83, dated 28-9-1983 to act as the authority in the present case.