The petitioner was appointed on 29th September 1960, in the Auqaf Department by the Governor of Punjab. He was working as Deputy Administrator, Auqaf, Multan, on 31st October 1974, when he was suspended due to some allegations of defalcation in the accounts. The order which ,was passed by the Chief Administrator of Auqaf did not specify the period of suspension. Meanwhile, the petitioner applied for earned leave on 5th November 1974, which was refused on 8th February 1975.
The petitioner also filed an appeal for re-instatement on 24th June 1975, but that was also not accepted. He, therefore, filed the present writ petition.
2. It is stated by the learned counsel that originally no period of suspension had been specified in the order. On his agitation, however, ,the Governor on 17th September 1975, passed an order retrospectively extending the suspension for a period of further six months from 30th April 1975. A third order of suspension dated 13th November 1975, has .Also been placed on record extending it to another three months' period.
3. The learned Counsel for the respondent referred to M. S. Khawaja v. Chairman. M. C., Lahore (PLD 1966 Lah. 1006 and cases of Saif-ud-DIN Malik (PLD 1969 Lah. 506) and Musharraf Hussain v. The Chairman, East Pakistan School Text Board, Dacca (PLD 1968 Dacca 133 He also relied on the case of Mian .Muhammad Hayat v. Province of West Pakistan (PLD 1964 SC 321 to support apreliminary objection that an order of suspension being neither a, punishment nor a penalty, this petition is misconceived and should be-- dismissed. In the last case Mian Mohammad Hayat was an Executive Engineer, but was officiating as Superintending Engineer when he was, suspended by the Governor on 28th March 1963. An enquiry on charges of misconduct and corruption had also been initiated against him. The Supreme Court in this case observed as follows :- "I am unable to regard the diminution of remuneration as sufficient to constitute an order of suspension as a penalty, for the simple reason that it is provided by the rules of the services, which every, public employee accepts that in the event of suspension, his remuneration shall be at such a level. As to the question whether suspension is within the power of the Government, I entertain no doubt that it is within the responsibilities of the executive in respect of the public services, namely, to maintain their standards by ensuring that there are no black sheep among them, and at the same time to maintain the efficiency of the public services and the confidence of the public in those services by eliminating persons whose conduct has tended to lower standards below those required, that there should be a power to ensure the temporary severance of a member of the public service whose conduct has been such as to demand an enquiry, from the discharge of his functions, until the enquiry has been completed. The power is relatable both to the general duty of maintaining high standards in the administration, as well as to the requirements of service management. Therefore, I can see no difficulty in supposing that the executive authority acts within the pleasure of the Governor, when it suspends a public employee from the discharge of the duties-- of his office, pending an enquiry into his actions."
4. Learned counsel for the petitioner contested this plea to say that an> order of suspension does impose a penalty in view of para. 14.10(v) of the Civil Service Rules, Vol. I. He further submitted that if an order of suspen--sion is in violation of the rules of service, the petitioner has a locus standi to invoke the constitutional jurisdiction of this Court. He also relied. On a Division Bench of this Court in Syed Muhammad Ayub v. The Govern--ment of West Pakistan (PLD 1957 Lah. 487), in this regard.
The relevant observations of the Court (at page 495) are as follows :- "We have no hesitation in saying that the power is not absolute and: unfettered. The Constitution gives no recognition to despots and despotism. Every power, if not controlled by a statutory provision, is in the last resort subject try fundamental principles of justice and fairplay. The present petitioners are being deprived of 3/4th of their pay for the last ten months in an unquestionably unfair manner. In view of the circumstances of the present case we are constrained to hold that the suspension orders were arbitrary and manifestly unfair and must be set aside. We, therefore, direct the respondent to withdraw them with effect from the dates they were made."
A perusal of the judgment noted above does go to show that the executive authority has an unfettered power to suspend a public employee from discharge of his duties, in accordance with the rules of service, and that the diminution of his remuneration during the period of suspension is not a penalty. It may, however, be noted that their Lordships in that case considered the effect of rules particularly rule 11 of the West; Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, which confers power of suspension on the `authority'. - The case of Mohammad Hayat cited above by the learned counsel for the respondent thus confirms, that the Government does have the power to suspend a Government servant from duties. The case of Mohammad Ayub therefore, did not lay down good law and must be deemed to have been overruled.
5. It was then submitted that as, an employee under suspension does not cease to be an employee and is required to regularly attend his office, he is entitled to challenge an order of suspension which entails withholding of his pay during the suspension. Rule 14.11 of the C.S.R., Vol. 1, which is-- relevant for the purpose lays down :- "When a Government Servant is suspected of being concerned in~ the embezzlement of Government moneys and is placed under suspen--sion, the authority to order his dismissal may direct that, unless he furnishes security for the reimbursement of the said moneys to the satisfaction of his immediate official superior, the payment of any sums due to him by Government on the date of his suspension shall be deferred until such time as the said authority passes final orders on the charges framed against him Provided that such Government servant shall be entitled to the payment of a subsistence allowance in respect of the period for which the pay is withheld."
The quantum that it should be 1/2 of the pay and not 1/3 being paid previously, was determined by the Government vide Circular letter No. 515-SR-VI-70 dated 22nd April 1970. Rule 21 of the Auqaf Service Rules referred to above, on the other hand, guarantees payment of salary and allowances to an employee. There is, however, no rule conferring power to withhold or reduce pay. Thus the order of suspension or the petitioner is to his detriment as it is being used to deprive him of 1/2 or 1/3 of his pay also. It is to be noted here that when their Lordships of the Supreme Court decided the above case, the pay was considered to be the bounty of' the State and withholding of it could not be considered to be a penalty: The contention that in view of the changed view of the Supreme Court on the point, the suspension would be a penalty does not fall for deter--mination in this case even from the point of view of determining petitioner's locus standi to file this petition as would be discussed later. Suffice it to say that if the order of suspension is claimed to be in violation of law or rules. The aggrieved employee will have a right to seek recourse to this Court. Reference may be made to the case of Abdul Razzaq Mallk v. WAPDA through its Chairman and 3 others (PLD 1972 Lah.188 wherein it was observed that the mere fact that a person is not a civil servant of the State and is not entitled to the Constitutional guarantees does not always lead to the result that he as governed by the ordinary and general law of master and servant. Wherever there are statutes or statutory rules governing the relationship between an employer and an employee and there are restrictions placed in such provisions which are contrary to the concept of ordinary law of master and servant, it is those statutory provisions and rules which shall apply and not the general law.
Petitioner thus had a right to be treated in accordance with the provisions of the rules and would have a locus standi --to come to this Court in view of the dictum of the Supreme Court in the-- case of Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223). I am also supported, on this broad principle by the following observations, of the Supreme Court in the case of Muhammad Naseem Ahmad v. Miss AzraFeroz Bakht (1) at page 49 :- "Having dealt with this question I now return to the question of the applicability of paragraph 1 (f )
(iii) of the principles for the deter--mination of seniority. There can be no manner of doubt that these rules are detailed and precise and of general application and, therefore, in accordance with the view taken by this Court in the cases of Pakistan v. Abdul Hamid, Federation of Pakistan v.
Maqbool Rahi and others and Government of Pakistan v. Din Muhammad. The rules was, therefore.
As effective as any other statutory provision governing the conditions of service of persons employed having been made by a competent authority and having all the charac--teristics of a statutory rule. The High Court was. As such, clearly wrong in trying to find justification for defeating the rule or for holding it to be inapplicable."
''Thus wherever there is a violation of a statute or a rule, the Article 19 read with Article 4 of the Constitution, are available to an aggrieved person to seek a relief.
6. As for the view that the rule of master and servant applies in .Such a vase and that this constitutional remedy is not available, the learned counsel referred to The Chairman, E.P.D.C. And another v. Rustam Alt (PLD1966SC848). This contention, however, is neither relevant nor sound as the petitioner is still in service and has only been suspended. His grievance is that the respondents are violating the rules which are there for his benefit. The precise argument is, the respondents who are public functionaries are liable to act only in accordance with the rules and should be directed to abide ,by the same. The plea is supported by following observations in the Anjuman-e- Ahmadiya v. D. C., Sargodha's case (PLD 1966 SC 639), at pages 649 and 650 :- "It is, therefore, clear from the provisions contained in the statute and the conditions in the deed of conveyance - that if there has been a valid grant then it cannot be cancelled in the manner in which the authorities have purported to do in the present case. The case was thus clearly one in which the appellant was complaining of a non-performance of a public duty and asking for a direction that the authorities concerned should perform their public duty in accordance with law.
For these reasons we are of the opinion that the High Court was not right in holding that a suit was an adequate alternative remedy within the meaning of Article 98 of the Constitution in the facts and circumstances of this case."
Reference may also be made in Habibur Rehman v. West Pakistan Public Service Commission and 4 others (PLD 1973 9 C 144 The relevant observations are produced below .- "Although we have remarked that the rules are to be regarded as being directory in nature and a disregard thereof would not neces--sarily vitiate the recommendations made by the Public Service Commission, yet it is clear that all statutory bodies and functionaries are under an obligation to act in accordance with the law and relevant rules, and a deliberate or flagrant disregard thereof would render their acts without lawful authority so as to attract the power of judicial review vesting in the superior Courts. In such cases it may be possible to take the view that an illegality in procedure would vitiate the advice tendered by the Public Service Commission to the Government in matters of recruitment and discipline, etc., and accordingly an appropriate writ might lie directing the Public Service Commission to act according to law and the relevant rules in formulating its recommendations and advice, or directing the Government not to act on advice which stands vitiated by the adoption of illegal procedures or deviations from the prescribed rules."
Thus in a case where there is a violation of any law or rule, a person aggrieved can resort to a constitutional remedy, as the act may be without 'lawful authority.
7. It is next contended that as the petitioner had been appointed by the Governor, the Chief Administrator had no authority to suspend 'him from service. It will be seen that apart from the fact that the petitioner was appointed by the Governor, the Ordinance did confer that power on him.
However. The power of appointment and suspension has been specifically given to the Chief Administrator of Auqaf also under the rules. The plea being raised is that the first order of suspension, having been passed by the Chief Administrator of Auqaf and not the Governor himself.
It was void ab anitio rendering all subsequent orders, extending the period of suspension, as invalid and inoperative. The contention, however, does not have much force. Rule 27 of the West Pakistan Auqaf Service Rules, 1962 lays down that the Chief Administrator of Auqaf may suspend members of the service pending an inquiry into their conduct. `Service is defined in rule 2 (i) meaning the West Pakistan Auqaf Service. It is admitted that the petitioner is a member of that service.
According to rule 1(3) also these rules apply to incumbents of all administrative and ministerial posts under the Chief Administrator of Auqaf. Rule 2(AA) defines the Adminis--trative posts "Administrative post means a post of Manager, Assistant Manager, and such other posts the pay whereof is debitable to the Auqaf fund as may be specified by Government."
Post of the petitioner is also admitted to be of administrative nature. `Petitioner is thus liable to be suspended by the Chief Administrator of Auqaf under rule 27.
8. Further rule 26 provides that the members of the service shall be governed by the West Pakistan (Government Servants) Efficiency and Discipline Rules, 1960, and such other rules and orders relating to penalties discipline and appeals applicable to Government servants and the rule -- making authority of the Government of West Pakistan as may be specifically made applicable to them by the Chief Administrator, under the Efficiency and Discipline Rules. The power of an appointing authority can be exercised by a delegate also. Section 4 empowers the Government to .
Appoint Administrators and Deputy Administrators of Auqaf. Section 21 of W. P. Waqf Properties Ordinance, provides for making rules for the purpose of carrying into effect the provisions of the Ordinance. Rule 4 confers on the Chief Administrator of Auqaf a power to make appointment to the service which admittedly includes petitioner as a member. Rule 5 provides for method of recruitment. Rule 6 provides qualifications and so on. These rules thus make it absolutely clear that the Chief Adminis--trator of Auqaf is also an authority as well as the appointing authority --for the Administrators and Deputy Administrators in addition to the Government by virtue of rule 4. In the circumstances, I do not find any illegality in the order of suspension passed by the Chief Administrator of Auqaf. In any case, the two subsequent orders, of extending the suspension, had been passed by the Government and it cannot be said at this stage that the present suspension of the petitioner is without lawful authority in view of Abdul Khaliq Bangash v. The Secretary Government of West Pakistan, Co-operative Department, Lahore and 2 others (1974 SCMR 1103
6. The learned counsel for the petitioner also referred to the instruc--tions of the Government contained in Notification No. SORI-(S & GAD) 1-74/72, dated the 18th October 1972, to say that the Government had directed all the Administrative Secretaries. Heads of attached Departments and others that the suspension of accused government servants should not be allowed to continue for inordinate longer periods and, in any case, should not be allowed to exceed 6 months. It was further directed that the appointing authorities or the suspending authorities should re-instate the persons who had been under suspension for 6 months or more unless the charges against them are very grave such as embezzlement of large amounts or other offences including moral turpitude and the evidence available was likely to result in imposition of a major penalty. In case of further extension of the period of suspension where re-instatement is considered inadvisable it was directed that the matter be brought to the notice of the Administrative Secretary who should formally satisfy himself in all cases including those in which be himself or the Governor is the appointing authority. Under para. 3 of this letter, the Government directed that in cases involving minor penalty the action should be initiated within one month of the commission of the offence or its being detected, the allegation should be made known to the accused in writing within 1.4 days from the date of initiation of, action and the Inquiry Officer be allowed three months extendable to a maximum of 41 months. In cases involving major penalty a similar time limit is provided up to the maximum of six months. It was argued that this letter has the statutary force in view of a judgment of the Supreme Court reported as Pakistan v. Sh. Abdul Hamid (PLD 1961 SC 105), and a judgment of the High Court in Ali Jan and S others v. Commissioner, F. C. R.. Quetta Division (PLD 1970 Quetta 93 In these judgments it was held that the instructions issued by an authority competent to make rule. Has the force of rules in case they were definite and operative with exactitude. The contention of the learned counsel is correct that as no period of suspension was provided in rule 27 as well as rule 26 these instruc--tions do supplement the rules and also advance the cause of justice. The learned counsel for the respondent, however, did not contest the contention as raised by the learned counsel but stated that the provisions of these two letters had been specifically complied with inasmuch as the case bad been referred to the Chief Minister thrice and he granted permission to extend the period of suspension. I have also seen the summaries of two cases put up to the Chief Minister which confirm the stand taken by the learned counsel for the respondent. In view of this state of record; Y do not think if any provisions of the rules have been violated. The suspension is thus being maintained under a valid authority.
7. For the reasons given above. There is no force in this petition an the same is dismissed, leaving the parties to bear their own costs.