' AJMAL MIAN, C.J.---This is an appeal with the leave of this Court against the judgment dated 13-6- 1994 of the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, passed in Appeal No,53(L)/93/245(R)/93, filed by the appellant, dismissing the same.
2. The brief facts are that the appellant was an officer of Secretariat Group (B-20) of the Federal Government. At the relevant time he was Secretary, Government of Punjab, Cooperative Department. It seems that the appellant was charge-sheeted through Chief Secretary, Punjab/Authorized Officer's letter dated 25-3-1991, which reads as under:-- "CHARGE-SHEET ' Whereas I, Muhammad Parvez Masud, Chief Secretary, Punjab, as Authorised Officer in your case, have been directed by the Authority to proceed against you under the Government Servants (Efficiency & Discipline) Rules, 1973.
2. And whereas. I, consider that in the light of the facts of the case and in the interest of justice, it is necessary to hold an enquiry through an Inquiry Committee.
3. Now, Therefore, you, Mr. Javed Iqbal Bokhari, an officer of Secretariat Group (B-20) of the Federal Government, former Secretary to Government of the Punjab, Cooperatives Department, presently posted as Officer-on-Special Duty (Enquiries), SGA & I Department, are hereby charged as under:-- "That you have obtained large sums of money as loans from various cooperative finance corporations in your own name as well as in the names of your close relatives and associates by misusing your official authority." .4. By reason of the above, you appear to be guilty of corruption and misconduct within the meaning of Rule 3 of the Government Servants (Efficiency & Discipline) Rules, 1973. As such you are liable to disciplinary action under the aforesaid Rules, which may involve imposition of one or more of the penalties prescribed by Rule 4 of the Rules (ibid).
5. You are hereby required to submit your written defence to the above charge within 7 days of the receipt of this charge-sheet, explaining as to why disciplinary action, as aforesaid, may not be taken against you, and stating at the same time, whether you also desire to be heard in person.
Please take notice that your written defense should reach the Conveyor, Inquiry Committee direct within the aforesaid period,. Failing which it shall be presumed that either you have no defense to offer or you have declined to offer the same and you accept the charge."
' Along with the above charge-sheet, a statement of allegations containing the details was also enclosed. It appears that the Federal Government accorded its approval for initiating disciplinary proceedings against the appellant through letter dated 3-2-1991 and it was stated that the Chief Secretary Punjab was to act as Authorized Officer. Thereupon, the Chief cretary/Authorized Officer appointed an Enquiry Committee comprising as under:-- "(i) Mr. Asad Ali Shah, Senior Member, Board of Revenue, Punjab. Convener
(ii) Mr. Akhtar Said, Member(Judicial-I), Board of Revenue, Punjab. Member.
(iii) Malik Jehangir Khan, Member (Consolidation), Board of Revenue, Punjab.Member.
' On retirement of Mr. Asad Ali Shah, Senior Member, Board of Revenue, Punjab, his successor Dr. Imtiaz A. Khan, was appointed ' by the Government as Conveyor to the Enquiry Committee."
3. The Enquiry Committee submitted its report dated 4-1-1992 and recorded the following findings:- - "FINDINGS OF THE ENQU IRY COMMITTEE "40. In connection with this charge, the statement of Mr. Afzal Sheikh, President, Ravian Cooperative Housing Society dated 12-11-1986 (Annexure 'U') may be perused. The Committee also read the bank statement of the Punjab Textile and Industrial Cooperative Society concerning the account of Ravian Cooperative Housing Society, Lahore which is, dated 30th June, 1990 (Annexure 'V'). The statement of the President of the Ravian Cooperative Housing Society is supported by the bank statement mentioned above. It transpires that the Ravian Cooperative Housing Society had its funds with the Services Cooperative Credit Corporation Ltd., and was experiencing difficulty in withdrawing those funds. They approached Mr. Shahzad Ali who helped them to get their funds released from the Services Cooperative Credit Corporation Ltd., on condition the Ravian Cooperative Housing Society opened an account with Mr. Shahzad Ali's own Society viz. Punjab Textile and Industrial Cooperative Society. ,The funds were duly withdrawn from Services Cooperative Credit Corporation and an account was opened with Punjab Textile and Industrial Cooperative Society on 26-9-1989. The Ravian Cooperative Housing Society did not experience any difficulty in the operation of that account, and eventually the entire amount of Rs,2,34,21,165 was withdrawn and cleared up by 30-6-1990.
41. These facts, the Committee considers, do not prove misuse of official authority of Mr. Javed Iqbal Bokhari, because, in the event, he only helped the Ravian Cooperative Housing Society to extricate its funds from Services Cooperative Credit Corporation, and the Society of Mr. Shahzad Ali did not cause any hindrance either to the operation of the Ravian Cooperative Housing Society's funds or to their ultimate withdrawal.
42. The Enquiry Committee finds (Allegation C) not proved against Mr.Javed Iqbal Bokhari.
' In conclusion: ' Allegation A, and Allegation B-1 to the extent of loans obtained by himself and Resource International from Habib Industrial Cooperative Corporation, are proved against Mr.Javed Iqbal Bokhari, the accused officer. With respect to these allegations, it is also proved against him that he misused his official authority for the obtaining of these loans for himself as well as for Resource International.
' Allegation B-2 concerning the loans obtained by Mr. Abdul Razzaq from Habib Industrial Cooperative Corporation, and Allegation 'C' concerning the transfer of funds belonging to Ravian Cooperative Housing Society to Punjab Textile and Industrial Cooperative Society, are not proved.
' Thus, the charges as contained in the charge-sheet are proved against the accused officer Mr. Javed Iqbal Bokhari, as regards the taking of large sums of money as loan in his own name from the Services Cooperative Credit Corporation Ltd., by misusing his official authority; and, also with regard to the obtaining of large sums of money as loans by his brother-in-law Mr.Shahzad Ali (owner of Messrs Resource International) from Service Cooperative Credit Corporation and Habib Industrial Cooperative Corporation by misusing the accused officer's official authority."
4. On the basis of the above enquiry, the appellant was removed from service through Notification dated 14-11-1992. He filed a review petition before the President of Pakistan on or about 10-12-1992, which was declined. After that he filed aforesaid appeal in the Tribunal, which was also dismissed through the impugned judgment as under:-- "17. In view of above circumstances, we are of the opinion that the appellant had got granted such huge loans to himself, his relatives and his associates using his influence as being Secretary, Cooperatives. Thus, the findings of the legally constituted Committee and the confirmation of next Committee constituted by the then Chief Minister (Mr. Ghulam Haider Wayen), is correct beyond reasonable doubt. Therefore, the appeal of the appellant is hereby rejected along with prayer.
' No order for costs. Parties be informed accordingly."
5. After that he filed a petition for leave to appeal in this Court, which was granted to consider the questions; whether the loan advanced to Messrs Resource International, a firm owned by Shahzad Ali, brother-in-law of the appellant, did not constitute misconduct in terms of Rule 10 of the Government Servants (Conduct) Rules, 1964, hereinafter referred to as the Conduct Rules, read with Rule 2(4) of the Government Servants (Efficiency and Discipline) Rules, 1973, hereinafter referred to as the Rules; whether the Chief Secretary, Government of the Punjab, was Authorised Officer of the Government Servants in BPS-17 to BPS-20; and whether the entire enquiry proceedings initiated by him against the appellant and order of his removal from service passed on the basis thereof stood vitiated being illegal and void ab initio.
6. In support of the above appeal Mr.Anwar Kamal, learned Advocate Supreme Court appearing for the appellant, has vehemently urged that the Chief Secretary, Government of Punjab, was not competent to act as the Authorised Officer. To reinforce the above submission, he has invited our attention to SRO No,615(1)/79, dated 5-7-1979 issued under sub-rules (2) and (3) of Rule 2 of the Rules in supersession of Establishment Division's Notification No,1562(1)/73, dated 7-11-1973 by the President of Pakistan, in which under the caption 'TABLE' at Serial No,3, for the Government servants in Grades 17 to 20 (Section Officer, Deputy 'Secretary, Joint Secretary and equivalent), the Secretary has been shown as the Authorised Officer. Whereas under Explanation 2 to the aforesaid S.R.O., the following was provided:-- "Explanation 2. For a Government servant serving outside the Federal Secretariat, whether in a Provincial Government or in an autonomous body, who is serving in a post, or belongs to a service or cadre, administratively controlled by a Ministry or Division, the Secretary, Additional Secretary, Joint Secretary, Deputy Secretary or Section Officer designated as authority or authorized officer means the Secretary, Additional Secretary, Joint Secretary, Deputy Secretary or Section Officer of that Ministry or Division.
' Additional Secretary, where there is no Secretary. Joint Secretary, ' where there is no Additional Secretary or where the Additional Secretary is the 'authority' in the absence of Secretary."
' After that, under the aforesaid provision of the Rules, another SRO, namely, SRO No,1011(1)/85, dated 20-10-1985 was issued, whereby under item No,3 for Government servants in Basic Pay Scales 17 to 20, the Prime Minister was substituted for the President as the Authority and the Secretary remained as the Authorised Officer. According to Mr. Anwar Kamal, the above position remained up to the issuance of a fresh SRO on 29-12-1997.
' Then he submitted that the requirements of Rule 9 of the Rules were not complied with inasmuch as no approval was obtained from the President under proviso 2 to sub-rule (1) thereof and, secondly, the removal order of the appellant was not passed by the lending authority as per sub- rule (2). It will be advantageous to reproduce Rule 9 of the Rules, which reads as under:-- "9. Procedure of inquiry against officers lent to Provincial Government, etc.---(1) where the services of a Government servant to whom these rules apply are lent to a Provincial Government or to a local or other authority, in this rule referred to as the borrowing authority, the borrowing authority shall have the powers of the authority for the purpose of placing him under suspension or requiring him to proceed on leave and of initiating proceedings against him under these rules: ' Provided that the borrowing authority shall forthwith inform the authority which has lent his services, hereinafter in the rule referred to as to lending authority, of the circumstances leading to the order of his suspension or the commencement of the proceedings, as the case may be: ' Provided further that the borrowing authority I shall obtain prior approval of the President before taking any action under these rules against a member of an All-Pakistan Service or a Class I Service or a holder of a Class I post.
(2) If, in the light of the findings in the proceedings taken against the Government servant in terms of sub-rule (1), the borrowing authority is of opinion that any penalty should be imposed on him, it shall transmit to the lending authority the record of the proceedings and thereupon the lending authority shall take action as prescribed in these rules."
7. It will not be out of context to point out that in the second proviso to sub-rule (1) of Rule 9 of the rules the Provincial Government was excluded inasmuch as after the word "borrowing authority", the words "other than a Provincial Government" were employed. The latter words had been omitted by SRO No, 246(1)/89, dated 16-3-1989.
' Be that as it may, it will be advantageous to reproduce aforesaid approval granted by the Federal Government on 3-2-1991, which reads as follows:-- "SUBJECT:DISCIPLINARY PROCEEDINGS AGAINST SYED JAVED IQBAL BOKHARI.
' Reference S&GAD, Government of Punjab Letter No,SO(C-III) 1224/90, dated the 31st January, 1991, on the subject mentioned above.
2. The Competent Authority has approved for initiating disciplinary proceedings against Syed Javed Iqbal Bokhari (BPS-20) presently posted as Secretary, Cooperatives Department, Government of Punjab. The Chief Secretary, Government of Punjab is the Authorised Officer in this case.
3. Necessary disciplinary proceedings under the Government Servants (E&D) Rules, 1973 may be initiated against the Officer and the findings of the inquiry be reported to the Establishment Division at the earliest."
' However, it was contended by Mr. Anwar Kamal that the adovequoted approval did not provide that the Chief Secretary was to act as the Authorised Officer but it stated that the Chief Secretary, Government of Punjab, was the Authorised Officer in this case.
8. The above contention is devoid of any force. Under abovequoted sub-rule (1) of Rule 9 of the Rules, Provincial Government which was the borrowing authority, was required to obtain approval of the President before taking any action. The above approval indicates that the competent Authority had accorded the requisite approval. It may be observed that at no point of time either before the Enquiry Committee or before the Tribunal, it was the case of the appellant that the required approval was not obtained.
9. The contention, that factually there was no compliance of sub-rule. (2) of Rule 9 of the rules, is also devoid of any force. According to the above provision of the Rules, the lending authority is to take action for imposing penalty. The notification dated 14-11-1992 had been issued by the Establishment Division. The same reads as follows:-- "NOTIFICATION ' No, 4/1/91-D:4 Consequent upon the finalization of disciplinary action under Government Servants (Efficiency and Discipline)
' Rules, 1973, the competent Authority is pleased to impose the major penalty of removal from service under rule 4(1)(iii) of the Government Servants (Efficiency and Discipline) Rules, 1973 on Mr. Javed Iqbal Bokhari, a BPS-20 Officer of Secretarial Group; presently posted as Officer on Special Duty, Services, General Administration and Information Department, Government of the Punjab with immediate effect."
' This objection was also not raised by the appellant either in the review petition submitted to the President or in the memo. Of .Appeal before the Tribunal.
10. It was also urged by Mr. Anwar Kamal that since there was no compliance of rule 9 of the Rules, the Enquiry Committee was not competently constituted.
' We find that this objection was also not raised by the appellant prior to the filing of petition for leave to appeal before this Court. On the contrary, the appellant in his review petition filed before the President prayed that the matter may be remitted to the Enquiry Committee. The relevant portion of the same reads as under:- "It is the petitioners earnest and humble prayer that Allegation A-1 be remanded to the Inquiry Committee for fresh consideration on merits after recording the oral and documentary evidence to be produced by the petitioner."
11. However, it was vehemently contended by Mr. Anwar Kamal that the question of jurisdiction could be raised at any stage. In support of this above submission, he relied upon the case of Mansab Ali v. Amir and 3 others (PLD 1971 SC 124) and the case of Rashid Ahmad v. The State (PLD 1972 SC 271).
' In the first case, it has been held that if the mandatory conditions for exercising of jurisdiction by a Court, Tribunal or authority are not fulfilled, all proceedings which follow become illegal and suffer from want of jurisdiction. This case involved inter alia interpretation of sections 3 and 18 of the West Pakistan Criminal Law (Amendment) Act, 1963 (Act VII of 1963).
' Whereas in the second case, it has been held that if a mandatory condition for the exercise of a jurisdiction before a Court, Tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction and that any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. This case also related to a criminal trial.
' Sh. Anwarul Hach learned Deputy Attorney-General, has referred to the case of Karim Bakhsh and 4 others v. Riaz Hussain and another (1993 SCM R 1667), in which this Court while dismissing an appeal in a preemption case observed that void order is only against a person directly affected by it; if he does not question its validity according to law and rather acts upon the same, practically the order stands legitimized. It is not necessary to go into the question, whether the above principle is applicable to the present case.
12. We may point out that there is a marked distinction between want of authority of an officer to acts Authorized Officer and want of jurisdiction on the part of a Court, Tribunal or authority exercising judicial or quasi-judicial powers. A question, as to whether a particular officer has been competently appointed as Authorised Officer, is a question of fact. Similarly, a question as to whether an enquiry officer or an Enquiry Committee has been competently constituted, is also a question of fact. The above questions of facts are to be agitated at the earliest opportunity so that if there is any defect in such an appointment, the same may be cured. Whereas the question, whether a Court, Tribunal or authority has the jurisdiction is a question of law, which can be raised at any stage if the dictates of justice so demand.
13. In present case, as pointed out hereinabove, at no point of time the appellant contested the status of the Chief Secretary as the Authorized Officer nor he contested the status of the Enquiry Committee on the grounds which have now been urged by him. In our view, it cannot be allowed at this stage.
14. Lastly it was submitted by Mr. Anwar Kamal that advancement of loans by the cooperative financial institution/corporation to the firm belonging to the appellant's brother-in-law did not constitute misconduct in terms of Rule 10 of the Conduct Rules.
15. The above contention is not tenable, rule 10 of the Conduct Rules reads.As under:-- "10. Lending and borrowing.---(1) No Government servant shall lend money to, or borrow money from, or place himself under any pecuniary obligation to, any person within the local limits of his authority or any person with whom he has any official dealings: Provided that the above rule shall not apply to dealings in the ordinary course of business with a joint stock company, bank or a firm of standing.
(2) When a Government servant is appointed or transferred to a post of such a nature that a person from whom he has borrowed money or to whom he has otherwise placed himself under a pecuniary obligation will be subject to his official authority, or will reside, possess immovable property, or carry on business within the local limits of such authority, he shall forthwith declare the circumstances to the Government through the usual channel.
(3) Non-gazette Government servants shall make the declaration referred to in sub-rule (2) to the head of their office.
(4) This rule, in so far as it may be construed to relate to loans given to or taken from cooperative societies registered under the Cooperative Societies Act, 1912 (II of 1912), or under any law for the time being in force relating to the registration of Cooperative Societies, by the Government servants, shall be subject to any general or special restrictions or relaxations made or permitted by the Government."
16. A perusal of the above quoted rule clearly indicates that it prohibits lending or borrowing of money by an officer on account of his official authority. The above cooperative financial institution/corporation would not have granted the financial facility to the firm of appellant's brother-in-law to the tune of about six core of rupees without exploitation by the appellant of his official position. In our view, in any case, it is not a fit case where this Court should interfere with the finding on the question recorded by the Enquiry Committee and the Tribunal.
17. The upshot of the above discussion is that the aforesaid appeal is dismissed, with no order as to costs.