SAAD SAUOD JAN (CHAIRMAN).-In this appeal, the appellant who was at the relevant time a Unit Supervisory, in the office of the Agricultural Engineer, Lyallpur, assails the order dated 27-3-1972, passed by the Director of Agri--cultural Engineering, Lyallpur directing his dismissal from service w. e. f. 27-5-1969 and recovery of Rs. 19,456.25 from him on account of the loss caused to the Government.
2. Brief facts of the case are that the appellant was served with a charge-- sheet dated 26-5-1969 by the Director of Agricultural Engineering, Lyallpur, levelling a number of charges relating to embezzlement of and shortages in Government money and stores under his charge, maintenance of bogus Government record/accounts and tampering with and loss of Government record. The appellant was also placed under suspension by an order, dated 22-5-1969 of the same authority.
3. A preliminary enquiry was in the first instance held by Mr. S. A. Rehman. Superintendent Agriculture Workshop, Lyallpur. It was on the basis of the results of this preliminary enquiry that a formal enquiry under the relevant Efficiency & Discipline Rules was ordered by the Director, Agricultural Engineering, Lyallpur vide his order dated 16-3-1970, for which Mr. Muhammad Afzal Assistant Agricultural Engineer (Field Operation) was appointed as the formal Enquiry Officer. The Enquiry officer submitted his enquiry report holding the appellant guilty of the charges raised against him. After receipt of the enquiry report the Director of Agricultural Engineering, Lyallpur issued a notice to the appellant requiring him to show cause as to why he should not be dismissed and debarred from Government service and why a recovery ofRs. 17.900.15 should not be made from him. The appellant submitted his reply to the show-cause notice On 27-3-1972 Director of Agricultural Engineering, Lyallpur issued the impugned order dated 27-3-1972 dismissing him from Government service with effect from 27-5-1969 and ordering the recovery of Rs. 19,465.75 from him.
This order is impugned before us. The appellant's appeal against the impugned order was also rejected by the Government in the Agriculture Deptt vide order dated 13-10-1972. This order is also impugned before us. The learned counsel for the appellant has attacked the impugned order on many side Initially it has been contended that the order has been passed by an incompetent authority, It is argued that the entire proceedings against the appellant have been carried out by the Director of Agricultural Engineering, Lyallpur. The impugned order has been passed by the said Director and also the show-cause notice and charge-sheet and suspension orders were issued by the same authority. It is argued that according to Rule 2 (1) of the Government Servants (Efficiency & Discipline) Rules, 1960, read with sub-rule (3) of Rule 16 ibid and notification of Government of West Pakistan No. S. O. XII-2-940/61, dated 17-4-1961, the authority in this case would be the one designated to award punishment to the appellant in the Delegation of Powers Rules relating to the Agriculture Department. It is contended that such authority indicated in the Agriculture Department Delegation ---+.' Power Rules, 1962, at serial No. 10(e) is the Agricultural Engineer and not the Director Agricultural Engineering. 1t is pressed on this basis that the orders in the instant case have been passed by an incompetent authority and are thus null and void ab initio. The learned counsel for the appellant has cited case-law in support of his contention that a penal order passed by an authority other than the competent authority even though of a higher rank is a nullity in the eyes of the law.
He cited PLD 1972 Lah. 316 in which the case cited as PLD 1963 SC 185 was distinguished.
4. In the context of the fore-mentioned contention of the appellant it would be advantageous to reproduce Rules 2(1) and 16(3) of the West Pakistan Government Servants (Efficiency & Discipline)
Rules, 196: 2(1) "Authority" means the Governor of West Pakistan or an officer or authority designated by him to exercise the powers of the authority under these rules, or a person or authority deemed under sub- rule (2) of rule 16 to be an authority so designated.
16(3) Any pet-son or authority or the successor of the same authorised to exercise powers in virtue of a delegation made by the Governor from time to tithe subsisting immediately before the commencement of these rules shall, to the extent of the powers delegated and so far as is not inconsistent with these rules, be deemed to be an authority designated under these rules."
5. The notification dated 17-4-1961 issued by the Governor, West Pakistan in pursuance of the above-quoted rule 2(1) of the Efficiency and Discipline Rules, 1960, designated the authorities competent to award punish--ment under the various Delegation of Powers Rules, issued by Government from time to time, to exercise in respect of the officers to whom they are competent to award punishment and to the extent mentioned in those Rules the powers of the authority under the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960.
We are quite clear that in pursuance to Rule 211) of tile West Pakistan E tic D Rules, 1960, read with the Governor Notification dated 17-4-1961, the authorities competent toaward various categories to the Government servants wore those indicated as competent for awarding such penalty in the relevant delegation of power rules. The delega--tion of power rules produced before us are "Agricultural Department Delegation of Powers Rules, 1962" and we have been referred to serial No. 10(e) of the same. Serial No. 10, under which this item falls is the "Engineering Sections" and post indicated in column 2 under the heading "'Name of the Post" is (e)(i) "Unit Supervisor". Further on in column 4 under the heading "Authority competent to suspend, reduce in rank, retire com-- pulsorily, remove or dismiss" ,s indicated as "Agricultural Engineer". Director Agriculture was, however, shown in column 6 as the "Appellate authority in case of suspension, reduction to rank, compulsory retirement, removal or dismissal".
7. In rebuttal of the above arguments the learned counsel for the respondent has only referred us to Note 3 under the Delegation of Powers Order embodied vide para 16.1 in the C. S. R., Vol. 1, Part I, which reads as under Note 3.-"Unless otherwise provided by a special order a higher authority in a department may exercise the powers delegated to an authority subordinate to it."
Although the exact date of promulgation of the Delegation of Powers in para 16.1 of the C. S. R. relied upon by the learned counsel for the, respon--dent has not been shown but it admittedly dates back to the pre-independence era, In repelling this argument, we have been particularly referred to para. 2 of the notification promulgating; the Delegation of Powers Rules, 1962,1 which is to the effect that notwithstanding any provision to the contrary contained in any service rules for the time being in force the authorities for the purpose of appeal, punishment, in respect of each person holding post in the Vest Pakistan Agriculture Department mentioned in column 2 of the Schedule shall be such as are specified against the said post mentioned to columns 3 to 9 of the Schedule.
By this provision all previous rules on the subject stood superseded by the rules promulgated in 1962 and any reliance on those superseded rules for deriving competency for award of punishment is untenable and of no avail to the respondent. We find no force in the argument advanced by the learned counsel for the respondent in this context.
8. The learned counsel for the appellant leas relied upon the rule laid down by their Lordships in the case cited as PLD 1972 Lah. 316. In the case their Lordships were pleased to observe that "when a statute confers a certain duty on an official it is that officer who has to make up his mind and pass the order in accordance with law and exercise his discretion uninfluenced by any opinion of his superior officers." In the said case an earlier decision of Supreme Court cited as PLD 1963 SC 185 was also noticed and dis--tinguished. In the Supreme Court case the order of compulsory retirement of the respondent was purported to be made by the Director of Public instruction who was admittedly the `appointing authority` qua the respondent. The Director of Public Instructions on his own judgment of the merits of the case was reluctant to pass the order but he made it under the directions of the Provincial Government. The Dacca High Court in this case had found that in the circumstances, the impugned order was not an order passed by him. Their Lordships of the Supreme Court however, took a different view "itcould seem that the D. P. I. made his order as befits a subordinate authority, after havingconsulted the Chief Executive as to the exercise of direction vested in him, in an executive matter, where there was no appeal. No abuse of power by the D. P. I. appears in such a proceeding, and the Chief Executive is guilty of no abuse of its own power in considering the case, and giving a direction in the circumstances." (PLD 1963 SC page 185). "So far as appears from the facts found, there has been no dishonesty in the matter, since it is not dishonesty for a subordinate to submit his judgment to that of an executive superior unless mutual independence is required by the provision of an appeal. The statute would seem to require, since there is no appeal from an order made thereunder, that action in each case should be taken only after full examination by all relevant authorities, and that is the case here. (PLD 1963 SC page 187).
The ratio decided of the case is that the order is not available on the grounds that the relation-- ship between the Chief Executive and the authority passing the order was of superior and subordinate and no mutual independence was envisaged in law through the provision of an appeal. It was on these premises that their Lordships of the Lahore High Court distinguished the case cited as PLD 1972 Lah 316 from the aforementioned case of Supreme Court. In the instant case before us the ratio decided of the case cited as PLD 1972 Lah. 316 is attracted. The impugned order was admittedly passed by the Director, Agri--culture and not by the Agricultural Engineer who was the competent authority for passing such an order and the law provided mutual independence of views and action between the Agricultural Engineer and the Director, Agriculture by designating the latter as the appellate authority from the orders of the Agri--cultural Engineer.
We have reached the conclusion that the impugned order dated 27-3-1972, passed by the Director, Agricultural Engineer, Lyallpur, was bad in law and as such is void and of no effect ab initio. The said order is, therefore, set aside. Similarly, the impugned appellate order dated 13-10-1972, which was based upon a void order is also held void and of no effect. I resultantly this appeal is accepted.
9. As the appeal has been accepted on the short ground of incompetence of the authority passing the order to pass such an order we do not feel ourselves called upon to adjudicate upon a number of other contentions raised on behalf of the appellant such as the extensive reliance of the formal Enquiry Officer on the report of the preliminary enquiry, refusal to supply copy of preliminary enquiry report to the appellant, illegality of ordering recovery from sources other than the pay of the appellant, or the illegality of the impugned order arising out of retrospectively of its effect.
There are no orders as to costs.