1. M. SALEEM CHADHRY (CHAIRMAN).-These three Appeals Nos. 337/126, .356/142 of 1974 .and No. 395/634 of 1975 filed by M/s. Saddar Hussain 'Shah a Foodgrain Inspector, Abdul Salam Qureshi and Mr. Khalid Farooq, Assistant Food Controllers respectively involved the common questions of law and are disposed of by this common order.
2. Syed Safdar Hussain Shah commenced his service on 17-6-1953 as Enquiry Officer in Food Department and, was appointed as such by the Director, Food, Punjab. He was later appointed as Rationing/Foodgrain Inspector which post he held till 1971 in the office of District Food Controller (D), Lahore when he was compulsorily retired under the orders of Deputy Director Food Lahore; Region.
3. Similarly M/s. Abdul Salam Qureshi andKhalid Farooq joined Food Department and were ultimately appointed as such on 7-6-1952 while Mr. Khalid Farooq though initially appointed as Assistant Ward Rationing Officer (Executive Branch) was also subsequently appointed to the comparable post of Assistant Food Controller.
4. On 16th February 1971 when M/s. Abdul Salam Qureshi and Syed Safdar Hussain Shah were posted as Asstt: Food Controller.and Food grain Inspector respectively in the office of D. F. C. (D) Lahore, the enforcement team drew super inspection, samples of rice purchased at Lahore Centre on 15-2-1971 from lots Nos. 208 and 212 from the sealed wagon which were found of poor quality. Syed Safdar Hussain has placed under suspension on 27-3-1971 and initially in his case Mr. Muhammad Ashraf Qureshi, Audit Officer, Lahore Region was appointed, as Enquiry Officer. Both of them were charge- sheeted on 3-4-1971 under the order of Deputy Director, Food, Lahore Region for not taking due care in the purchase of rice, not drawing representative samples out-of the lots in question and making substandard purchases resulting in loss of reputation of Pakistan in Export Market. On receipt, of, reply to charge7sheet dated 18-7-1972 D. F. C., Sheikhupura was appointed Enquiry Officer who held both the appellants guilty. Consequently the appellants were held guilty of misconduct and inefficiency and were ordered to be compulsorily retired from service by Deputy Director Food's Order, dated 17-4-1973. Appeal against the aforesaid order was also rejected on 13-5-1974 by the Director, Food.
5. Similarly Mr. Khalid Farooq appellant who was working under Deputy Director; Food was charged in 1971 for tampering with the analysis results. However the appellant could riot reply and he was also ordered to be retired under tile order'' of Deputy Director; Food, dated 9-2-1974. Appeal dated 30-4- 1975 to Director, Food also failed on 5-6-1975: Hence these appeals.
6. The principal contention of the appellants was that Deputy Director Food was not the competent authority to impose the penalty. It was submit--ted that, M/s. Abdul Salam Qureshi and Khalid Farooq having been appointed by the secretary, -Food Punjab could not be retired, by an authority sub--ordinate to Secretary, Food aid that their retirement was nothing but removal from service.
7. Reliance was placed on the provisions contained in Article 177(x) of the Constitution of Pakistan, 1962, which was in force at the relevant time, according to which a civil servant could not be removed from service by an authority subordinate to one, which appointed him. The appellant also contended that the Food Department Delegation of Power Rules, 1958 as amended upto 1962 did not empower the Deputy Director to remove the appellants from service. , It was stated that the appellants were the members of the cadres of staff described therein as "Non-Gazetted (Executive Staff" and the relevant entries in the Schedule in the Manual of Delegation of Powers Rules, 1958-63 as appearing at page 28 were to the following effect: S. No. Name of Post.Appointing Authority and Authority competent to suspend, reduce in rank, retire compulsorily, remove or dismiss.Authority competent to award other punishments.
1. 2. 3.
8. II. Non-Gazetted
(i) Executive Staff.(a) Director Food (b)
9. Others by Director Food.(i) Director Food III. Non-Gazetted Staff including Technical Staff.(ii) Deputy Director Food concerned in respect of staff of respective Regions.(ii) District Food Con- troller/Rationing Controller in respect of staff working under him in the District.
(iii) Assistant Director(iii) Others by Deputy Food in respect of staff Director Food of the respective Food Sub-Regions.
(iv) District Food Con- troller/Rationing Con-- troller for their staff others by Asstt. Director.
10. IV Government Servants(i) Director Food. (ii)
11. Deputy Directors Food for their own offices.
(iii) Assistant Direc-- tors Food for their officrs.
(iv) District Food Controller/Rationing Controllers.
12. Full powers within the District Ration--ing Area.As under Col. 3.
13. Appellate authority in the case of suspension, reduction in rank, compulsory retirement removal or dismissal.Appellate authority in respect of other punishments.Transferring autho- rity.Controlling officer for Travelling Allowance 5 6 7 8
(i) (a) Director, Food (b) Govt (i) Direct Food(i) Director, Food outside Directorate Office.(i) Director Food.
(ii) Director Food.(ii) Deputy Director, Food concerned if the ordersof punishment have been passed by District Food Controller/Rationing Controller.(ii) As under Col. 3.(ii) Deputy Director Food concerned.
(iii) Director Food.(iii) Others by Director Food.(iii) District Food Controller/Ra- Con troller within the District Rationing Area.(iii)
14. Assistant Director Food Concerned in respect of staff working in his Sub-Region
(iv) Asstt. Dir. In-- charge of Sub- Region in respect of Distt. Food Controller/Food Control-- lei/Rationing Rationing Controller Dir Food.Controller in respect of staff working under him in the Dis-- trict Rationing Area.
15. Deputy Directors Food/ As under Col. 3As under As under Col. 3 Assistant Dir. Food.Col. 3. Incharge of Food Regions and Sub-Regions and if the orders of punishment are initially passed by Distt. Food Control-- lers/Rationing Control--lers. Director Food if the orders of punishment are initially passed by Deputy Dir.
16. Food/Assistant Dir. Food/Establishment Officer.
17. According to the appellant each entry reproduced above viz. II, III and IV distinctly specified the authority competent to impose the respective penalties and according to appellant each entry made independent provision in respect of each category of employee. In other words all the entries appearing in column 3 above had to be read disjunctively. As such Deputy Director Food had nowhere been empowered to impose any penalty in the case of "Non-Gazetted Executive Staff". It was also argued that in any event the said rules were prospective in operation and the appellant having been appointed long before 1958 could not be governed by these rules. Thus in their cases the authority who appointed them to their present ranks continued to be the competent authority to award the punishments as per provisions in Art 177 of the Constitution of Pakistan, 1973. The appellant next con--tended that in any case the Delegation Rules reproduced above were ambiguous and could not be applied to them. For instance in the case of "Non- Gazetted Executive Staff" as per entry (i)(a) appearing in Column No?.. 3 and 6, against the same "the Director food" had been specified as the "competent" as well as the "appellate" authority which is evidently anomalous. Similarly the Serial Nos. assigned as (ii) and (iii) entries appearing in Col. No. 3 without clearly specifying its nexus to the entries in the preceding column was confusing and ambiguous. Lastly the plea of the appellant was that generally speaking the delegation of power was in relation to category of employees included in the same cadre of service and the mere incident of posting at a given time could not alter the competence of authority to award the punishment. According to appellant such type of construction offends against the very concept and the scheme of delegation. Otherwise it is likely to yeild absurd results as an Assistant Food Controller if posted under District Food Controller as in this case they were, would be liable to be dismissed by him and if he were to be so posted in the office of Director Food his competent authority will,, be Director Food. The appellant also relied upon the case of Ch. Jan Muhammad, A: F.
18. C., who was re-instated under the advice of Law Department. The appellant also invited our atten-- tion to the S & GAD's advice contained in U. O. No. SOR-I (S & GAD)--1-16/73., dated 9-10-1974 vide which the amendment was suggested in the rules to remove the ambiguity. Para. 5 of the said advice was relied upon which reads as under: "Necessary action in order to seek amendment in the Food Department Delegation of Powers Rules, 1958 so as to remove the ambiguity mentioned above may be taken separately, with reference to the correspondence re9ting with this Department's U. O. No. SOR-I (S & GAD)-15-2/74, dated 19-7- 1974."
19. The appellants also raised pleas on the merits of the case and pressed for the acceptance of these appeals.
20. Mr. A. G. Hamayun, the learned Government Pleader vehemently resisted the appeals. It was argued that the appellants were obviously governed by the Delegation of Powers Rules of 1958 notwithstanding their appointing authority being Director or Secretary Food. In this behalf he solicited the support from the provisions of Rule 2(2) of the Delegation of Powers Rules in support of the contention above. The said rule reads as under: "(2) An authority empowered under these Rules to impose penalties on the holder of a post shall be competent to impose such penalties o:; every person holding such post whether such person was, appointed by such authority or not,"
21. Relying upon above, it was argued by the Government Pleader that there was no question of retrospective operation of the: 'Same as the powers to take disciplinary action-could be delegated by the Governor in favour of any person which in this case had been delegated to the Deputy Director by the above Rules. He also submitted that delegation of powers by the original authority in no way was inconsistent with the Provisions of the Constitution. The learned Government Pleader went on to contend that the entries Nos. II, III and IV in the Schedule to the Delegation of Powers Rules had to be read collectively and the same clearly implied that each incumbent was subject to the authority of. the officer under whom he was employed at the relevant time. According to him that was the only way- to read the rule in a coherent sense. It was next contended that- the. S bt GAD., recalled their earlier opinion in Jan Muhammad's case as per para. 4 of their letter, dated 8- 10-1974, which was as follows: "The advice conveyed in this Department's U. O. SOR-I-(S & GAD) 1-16/73., dated 22nd August 1973, is recalled to the extent indicated above. However,, in processing the case any further the legal position explained in this Department's circular letter No. SOIV (S & GAD) 1-19/67,, dated 17-2-69, may please be kept well in view."
22. Lastly it was submitted that if the contention of the appellant was accepted it would lead to anomalies in as much as the position had undergone a change in 1962 when the Mutes made the Deputy-Director appointing authority of the appellants 'whereas the punishing authority may be Director Food. Thus the respondent pressed for the rejection of this appeal.
23. After hearing both the parties and the records of the case we are clearly of the view that the contention of the appellant as to the retrospective opera--tion of Delegation of Powers Rules has little merit and could not be allowed to prevail. Earlier the powers were delegated to the Secretary or Directors Food respectively by the Governor and later on if tide Deputy Directors were' to be invested with the same there was nothing wrong and was evidently, permissible. Even the provisions of Article 177(a) of the Constitution, of Pakistan of 1962 did not preclude the same, it rather expressly authorised the same. The aforesaid, provision is to the, following effect: 177.-(1) Subject to this Constitution, a person who is a member of an All-Pakistan Service or of a civil service of the Centre or of a Province, or who holds a civil post in connection with the affairs of the Centre or of a Province- ,
(a) shall not be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed unless that subordinate authority has been expressly empowered to do so by an authority not so subordinate ; and."
24. The Delegation of Powers Rules of 1962 were nothing but an order to empower the authority to enjoy the powers specified therein. The principal authority had the powers to delegated afresh his powers in different functionary may be lower in rank to the officer who originally exercised the delegated authority. In doing so, may be in respect of the employees already appointed by the higher authority; the principal authority' could riot be said to have em--powered the view delegate retrospectively. Rule 2 of the Delegation of Powers Rules of 1962 as relied upon by the Government Pleader appeared to achieve precisely the same object. We, therefore, have no hesitation in repelling this contention of the appellant.
25. This brings us to the next and the crucial issue as to whether the Delegation of Powers Rules had in fact empowered the Deputy Director Food to pass the order in question. There appears to be manifest omission in the same. We had also summoned the original, Gazette to satisfy us as to whether it was a mere printing error in the reproduction in the Delegation Manual. But we found that even the official Gazette provided identically. We also asked for the production of original file to resolve the ambiguity but the same was also not available although we allowed ample opportunity to the Depart--ment. In the existing state of facts, it is the common case that entry No. II was applicable to the appellant in which the Director Food was the competent authority but the argument of the respondent was that the entry appearing at No. (i)(a)(b), (ii) and (iii) under column 3 of the Schedule appended to the Delegation of Powers Rules reproduced above applied concurrently to all the employees specified in Col. 2 vide entries Nos. II and III. This argument of the appellant appeared to be rather difficult to accept. In the first place wet find good deal of merit in the contention of the appellant that mere incident of posting, rather than the status of the civil servant or the cadre of service C to which he belonged, could be the determining factor in the matter of disciplinary powers. It sounds too whimsical, if the officials of the same class were to be penalized by the different authorities of different status for no other reason than that at the- relevant time they happened to be posted to one office or the other. If the contention of the respondent were to be accepted then the Assistant Director was equally competent and the Deputy Director could not exclusively be vested with this power. It appears that the Delegation Rules have not been properly drafted. There appeared to be irreconcilable omission in respect of entry in column 3 entry (i)(a) and 1 col. 5(i)(a) wherein Director Food has been shown both the competent as well as the appellate authority. Moreover, as per entry in Col. 3 (i)(a) makes Director Food as competent authority in case of major punishments while entry (i)(b) "others by Director Food" does not make any sense as the same authority, has again been specified for "others" anti what this "other" means is vague which otherwise appears relates to col. 4 where again the "Director Food" is the competent authority. Again in col. 5(i)(b) Government have been specified as appellate authority probably against order passed under entry 3(i)(b). But what is the nature of these orders is difficult to dyer and the provisions aforesaid to that extent is ambiguous. Further side entry No. (iii) in Column No. 3 under item III the Assistant Director has been specified as the authority empowered to inflict "major penalty" in respect of staff of the respective Sub-Regions but in the next column for the other penalty" i.e. penalties other than major the Deputy Director Food has been shown as the competent authority.
26. Similarly Entries No. (ii) and (iv) appearing in Column No. 4 of the Schedule are again confusing vide entry (ii) DFC/RC have been empowered to levy "other punishments" in respect of the staff under them in the District while entry (iv) under the same column provides D. F. C./R. C. as competent authority for their staff and Assistant Director for "others". If the intention was to empower the Assistant Director in respect of the staff employed in his office for that entry No. IV as entry No. (iii) appearing in Col. No. 3 and 4 separately provided for the same. Thus the object of this entry remained inexplicable. . This anomaly was noticed by S. & GAD., and the amendment was suggested vide para 5 of U. O. No. SOR-I-(S. & GAD)-1-16/73, dated 8-10-1974, but no amendment had been made so far. Paras, 2 and 3 of the said advice be reproduced below with advantage "2.-Only parenthesis of the two items "II Non-Gazetted Executive Staff" and "III Non-Gazetted Staff including Technical Staff" would be a positive indication that the entry in column 3 against these two items is intended jointly for both. Even if the said entry is accepted as relating to both the items as asserted by the A. D., there still is some ambiguity in the following position of the entry: "(i) (a) Director Food.
(b) Others by Director Food".
27. In point of fact this entry should have read as follows: "(i) Director Food in respect of staff of the Provincial Directorate.
3. The question of interpretation can arise when the words used in the text are ambiguous. When there are no words there can be no inter. pretation based on them. However, it is only by the process of elimination that it can be said that while the "Assistant Director Food" is the punishing authority in respect of Staff of the respective Food Sub-Region, the "Deputy Director Food concerned" is the punishing authority in respect of staff of the respective region. The Director Food at last can be said to have concurrent powers with the Deputy Director Food."
28. But the suggestion of the S & GAD also fails to take notice of item 'N; o. IV of the Schedule which already makes the provision on similar lines under the heading "Government servant". To us it appeared that "Non-gazetted Executive Staff" being an entry distinct from other class who comparatively enjoyed better status were subjected to the authority of Director Food him--self. A contrast in respect of other "Government servants" vide entry No. IV above will make it further clear that in their case every officer under whom they were employed had been empowered to exercise full disciplinary powers. In any event the entries appearing against entry II in clause 3(i) only appear to be applicable to the cases in hand but even that as per entry in column No. 6 appears to be unworkable. Thus the suggestion of the respon--dent is not thus sound enough to merit acceptance.
29. We distinctly feel that in view of the anomalies and ambiguities listed above and the fact that the mere incident of posting could nor constitute the decisive factor in determining the competence of the authority, it is not possible to apply the aforesaid provisions of schedule to the case of appellant and with all the efforts on our part, we may frankly concede, it has not been possible for us to find out specific provision which could be aptly applied to the case of the appellant. In the absence of any proper and valid delega--tion powers in favour of any authority below the appointing authority, the authority who appointed the appellant concerned continued to be competent authority. We accordingly hold that the impugned orders are not maintain--able and same are hereby quashed.
30. In view of our conclusion above, we do not feel the necessity of adjudicat--ing upon the issues raised by the appellants on the merits of the case.
31. Consequently, the appeals are accepted with no order as to costs.