SARDAR MUHAMMAD RAZA, J.---Mr. Khalid Aziz, a D.M.G. Officer in BS-21 and former Chief Secretary, Government of N.-W.F.P. Was placed under suspension with effect from the 9th of April, 1997 but he competent Authority as per Notification No. 1/34/97-D.1(10).
2. Through the instant writ petition under Article 199 of the Constitution the petitioner has called into question the aforesaid action of the Federal Government. He had made a representation to the President of Pakistan and another to the Chief Ehtesab Commissioner, seeking their indulgence against the impugned order.
3. The petitioner claimed to have had initiated drastic action through Ehtesab against highly placed politicians of the Province (copy filed) and dubbed the impugned action as a consequence of the personal vendetta of such politicians who have now occupied the power circles in the country. Having made such submissions that he thought proper to make, he prayed for the issuance of following directions by this Court invoking extraordinary jurisdiction under Article 199 of the Constitution:---
(1) Impugned notification be set aside.
(2) Federation be directed to ensure that no adverse action is taken against the petitioner except by the Prime Minister himself after application of mind on a personal level to any material which will be made available against the petitioner and after an opportunity of showing cause.
(3) F.I.A. Be restrained from taking any adverse action against the petitioner.
(4) Chief Ehtesab Commissioner be directed to apply his mind to the representation attached above and to do what law requires it to do to protect persons such as the petitioner who have discharged then duties in a proper manner.
(5) Any other relief deemed appropriate to the peculiar facts of the case be also afforded.
4. Concerning the legality of the impugned order of suspension, Dr. A. Basit, learned counsel for the petitioner relied upon Rule 5(1)(i) of the Government Servants (Efficiency and Discipline) Rules, 1973 and claimed that the order of suspension was without jurisdiction and was never passed by the competent Authority and further that no order of suspension could be passed without there being an authorised officer and that in case of an officer in BS-21, the Rules provide of no authorised officer. He himself put the version in other words, saying that in these circumstances an officer of BS-21 cannot at all be put under suspension.
5. After having gone through Rule 5(1)(i) and sub-rule (3) of.Rule 2 of the Rules, 1973 we are sure that the proposition of law as put forth by the learned counsel is misconceived. For facility of reference we may reproduce the above rule:
5. Inquiry procedure.---(1) The following procedure shall be observed when a Government servant is proceeded against under these roles:--
(i) In case where 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: Provided further that where the "authority" is the President or Prime Minister the powers of the "authority" under this clause shall be exercised by the Secretary, Establishment Division.
This Rule undisputedly provides that a Government servant can be suspended by the "authorised officer" with the approval of the "authority" which suspension shall require approval of the authority for continuation, after every three months. The rule further provides that where the authority is the President or the Prime Minister, the power of the authority shall be exercised by the Secretary, Establishment Division.
6. In the instant case, the order of suspension was passed by the competent Authority the notification whereof emanated from the Establishment Division. Apparently there seems to be no illegality committed qua the rules. We would further like to reproduce Rule 2(3) of Rules 1973 as follows:--
(3) "'Authorised Officer' means an officer authorised by the authority to perform functions of an authorised officer under these rules or, if no officer is so authorised, the authority."
Seen from any angle and viewed in the light of both the rules quoted above; the order of suspension in the instant case can be passed by the authority which is sufficiently clear in the rules above. Technically there is nothing wrong with the order of suspension impugned before us.
7. Another material aspect of the case is that suspension as such of a Government servant in anticipation of an inquiry, is neither a penalty nor a "loss of office" within the contemplation of section 9 of the C.P.C. That might have armed the petitioner to file a civil suit. We are afraid as to how, in the circumstances, the extraordinary jurisdiction of this Court under Article 199 of the Constitution can be invoked.
8. Unless there are extraordinary circumstances and most compelling reasons or unless there is a diabolic misuse of power, not referable to matters but referable to men, one should not dispute that the authority which can dispense with the services of a Government servant and which can hold enquiry must also have the power of suspension within reasonable limits. Any interference in this behalf would be tantamount to substituting one's own judgment for that of the authority.
9. Some orders passed by the Assistant Controller of Imports and Exports under Registration (Importers and Exporters) Order, 1952 suspending the export registration certificate, were challenged before the High Court of West Pakistan at Karachi. The matter came up in appeal before the Supreme Court of Pakistan where the Hon'ble Full Bench discussed the factum of suspension in detail. The suspension of export registration certificate was distinguished from the suspension of a Government servant and the latter phenomenon was considered to be the one in which the "Government servant does not lose his office or suffer degradation. His rank remains the same. He merely ceases to discharge the duties of his office during pendency of the departmental enquiry against him. He also draws a subsistence allowance during the period of suspension. In the event of his honourable acquittal he is allowed to draw full salary for the period of suspension."--- East-End Exports v. Chief Controller of Imports and Exports (PLD 1965 SC 605-613-A).
10. In view of the law on the subject and interpretations of the word suspension of a Government servant, we are of the firm view that, in the circumstances, the order of suspension is neither a penalty nor a loss of office with strict reference to section 9 of the C.P.C. And hence the extraordinary jurisdiction of this Court under Article 199 of the Constitution cannot be invoked.
11. Coming to the representation of the petitioner made to Chief Ehtesab Commissioner, we are of the view that it has no nexus with the suspension in hand. The aforesaid Agency has its own procedure of dealing with different affairs and no interference should be made therewith at any stage particularly the present stage of immaturity. Any interference at this stage would tantamount to saying that the said Organisation would not proceed with anything or should be forced to proceed with something which it otherwise does not consider to be proper at all. Hence the matter should be left to be dealt with by the relevant and competent hierarchy.
12. The petitioner also wants this Court to issue directions that the F.I.A. Should restrain from taking any adverse action against the petitioner. After all, F.I.A. Cannot under the law proceed against the petitioner unless the circumstances exist under which the Agency proceeds in the normal course.
The learned Deputy Attorney-General while assisted by an Assistant Director, F.I.A. Informed the Court that there was no case at all registered against the petitioner. Meaning thereby, that the order is sought to be procured in anticipation of a penal action by the Government. It is a settled principle of law, with reference to the Constitutional jurisdiction of a High Court, that mere anticipation of a penal action does not give rise to cause of. Action for invoking writ jurisdiction of the Court. We can refer with credit the case of National Steel Rolling Mills v. Province of West Pakistan 1968 SCM R 317(2)) where the rule was laid down by their lordships Mr. Justice S.A. Rehman and Mr. Justice Hamoodur Rehman of the Supreme Court; Hamoodur Rehman, J. Writing the leading judgment.
13. Consequent to what has been discussed and reasoned above, we hereby dismiss the writ petition in limine, with directions of course, that the petitioner shall not be proceeded against by the F.I.A. Otherwise than in accordance with law.