1. By this Constitution petition the petitioner who is a Homoeopathic doctor and is serving as Registrar of the National Council for Homoeopathy, has challenged the to letters written by the President of the National Council for Homoeopathy on 30-10-1995, one addressed to the petitioner and the other addressed to Mr. Noorur Rehman, also the employee of the National Council for Homoeopathy. The first letter shows that a fact finding Committee had been appointed who made an interim report which was approved by the National Council for Homoeopathy under which the petitioner Homoeopathic Doctor Qazi Khurshid Ahmed who was working as Registrar/Secretary of the Council, was suspended with immediate effect from 31-10-1995. He was also ordered to draw substance grant during the period of his suspension permissible under the rules. On the same day letter was issued by the President of the Council addressed to Mr. Noor-ur Rehman of the Examination Branch of the National Council for Homoeopathy, directing hint to take the charge as officiating Registrar from the petitioner who had been suspended with immediate effect. The petitioner has challenged these to letters on the ground that the service of the petitioner was governed by the Unani, Ayurvedic and Homoeopathic Practitioners Act, 1965 (Act, 11 of 1965) and the rules framed under section 47 of the above Act called National Council for Homoeopathy (Staff) Service Regulations, 1987. The contention of the petitioner is that under provision of section 16 of the Act, the petitioner was appointed as Registrar by the National Council for Homoeopathy with the previous approval of the Federal Government.
2. The subsection (2) of section 16 of the Act provides that an order of the Council appointing, punishing or removing the Registrar from the office shall not take effect unless confirmed by the Federal Government. The petitioner has contended that since the order of the suspension of petitioner has not been confirmed by the Federal Government, these letters are illegal and may be declared as without jurisdiction having no legal effect and that their operation may be stayed so that the petitioner may continue working as the Registrar of the National Council for Homoeopathy.
3. Preadmission notice of this petition was issued and comments were called from the respondents.
4. In their comments the respondent No. 1, stated that there were serious allegations of gross financial irregularities, misappropriation and embezzlement of Public Funds against the petitioner which had been confirmed by a fact finding committee, acting under the provision of Rules Nos.31 and 32 of the National Council for Homoeopathy (Staff) Service Regulations, 1987. After receiving the initial preliminary report dated 4-5-1995 -and the second interim report dated 10-10-1995 the Council was of the view that prima facie there was proof of misappropriation, embezzlement of Public funds by the petitioner and also misconduct committed by him. The copy of the initial report of the fact finding committee was served on the petitioner requiring petitioner to comply with the directions of the fact finding committee but the petitioner did not comply with those directions. The petitioner was suspended under Rule 28 of National Council for Homoeopathy (Staff) Service Regulations, 1987 and ordered to hand over the charge to another incumbent, but the petitioner defied the orders of the Council and has filed present petition. The contention of the respondent's counsel further is that the petitioner is neither handing over the charge nor he is attending the office, instead, taking advantage filing of the present petition, he is bypassing the inquiry which is not coming to a conclusion because of non-cooperation on part of the petitioner.
5. We have heard the learned counsel for the parties. Main contention of the learned counsel for the petitioner is that since the petitioner had been suspended, this order amounts to an order passed under provisions of section 16(2) of the Unani, Ayurvedic and Homoeopathic Practitioners Act, 1965 and therefore, it necessarily has to take effect after its confirmation by the Federal Government. For sake of convenience provisions of subsection (2) of section 16 of the Act are reproduced hereunder: -- "(2) An order of the Council appointing, punishing or removing the Registrar from office shall not take effect unless confirmed by the Federal Government."
6. Learned counsel for the petitioner had raised the point that suspension of the petitioner amounts to punishing him and removing him from his office therefore, the order of the suspension cannot take effect unless confirmed by the Federal Government.
7. Admittedly the order of the suspension has not yet been confirmed by the Federal Government.
8. But we do not find ourselves inclined to agree with the contention of the learned counsel for the petitioner that the interpretation of subsection (2) of section 16 of the Act, requires that even before suspending the petitioner, the council should get it confirmed from the Federal Government. The circumstances which have been spelt out in the comments accompanied by the documents of the inquiry reports show that there are serious allegations of misappropriation, embezzlement and misconduct against the petitioner and he being the Registrar of the Council, being incharge of the entire record, must be separated from the position he is enjoying so that the necessary proof may be had from the documents.
9. Besides, we find that the National Council for Homoeopathy (Staff) Service Regulations, 1987 provide a remedy of appeal. Under Rule 33, the petitioner is entitled to file an appeal but he has failed to file any, and thus we also feel that the petitioner has rushed to this Court without exhausting the remedy of appeal.
10. We do not think that the intention of the Legislature was that even a suspension order which follows necessarily further action of punishment and removing, if found necessary, after the inquiry, requires confirmation beforehand from the Federal Government. Had that been the intention of the Legislature the words "suspending" would have found place alongwith "appointing" "punishing" "removing". The learned counsel for the petitioner tried to argue that since the petitioner was to leave the charge on suspension, it amounted to removing him from the office. We do not agree with the learned counsel on this point. Removing en employee from the office is different from getting the charge from a suspended employee, till the finalization of the inquiry against him.
11. Therefore we do not consider anything illegal on part of the respondent No.1,. In issuing the letters impugned in this petition to the petitioner and, therefore, we do not find any substance in this .Constitution petition. Besides the petitioner has corn to Court without exhausting the remedy of appeal.
12. We, therefore, dismiss the petition in limine and vacate the interim order passed earlier.