MUHAMMAD RAZA KHAN (MEMBER).---The appellant joined the service in the Post Office Department as Clerk in 1960. Thereafter, he was assigned the responsibilities of various nature as sub-Postmaster. In the year 1985 he was proceeded against under the Efficiency and Discipline Rules and vide order dated 18-5-1985 he was placed under suspension. Thereafter, a charge-sheet was served and an inquiry was conducted. The inquiry report was submitted by the Inquiry Officer on 18-12-1985 where after a show-cause notice was issued by the respondent No,3 on 11-1-1986. The appellant submitted his defence statement on 15-3-1986.
The appellant was provided an opportunity of hearing on 16-4-1986. Vide an order dated 25-4-1987 the memo of charge-sheet was recalled and on the next day his order of suspension was withdrawn. Simultaneously another Inquiry Officer was appointed on 25-4-1987 and another charge-sheet was served. The new Inquiry Officer held the inquiry against the appellant afresh and submitted his report on 10-12-1987. Another show-cause notice dated 3-1-1988 was issued and the appellant submitted his reply on 16-2-1988. The respondent No, 3 finally imposed the penalty of reduction of pay by two steps for ever vide order dated 6-8-1988. The period of suspension was also ordered to be treated "as it is". The departmental appeal was filed on 1-9-1988 and after the expiry of ninety days the service appeal No,8(L) of 1989 was filed on 28-12-1988.
2. During the pendency of this appeal the appellant was informed that his departmental appeal has been disposed of by the appellate authority vide order dated 22-3-1989. The appellate authority, by a detailed order consisting of six pages did not find "any ground to interfere with the decision made in his case by the punishing authority". However, the punishment of reduction in pay by two steps for ever was revised and modified into "reduction in pay by two steps for five years".
The period of suspension ordered by the punishing authority to be "as it is" was ordered to be treated as "leave due". This appellate order dated 27-3-1989 was challenged by a separate Appeal No, 16(L) of 1990 on 26-4-1989.
3. Both these appeals came up for hearing before this Tribunal on 19-3-1992 and vide judgment dated 24-3-1992 both the appeals were accepted and the impugned orders dated 6-8-1988 and 22-3-1989 were set aside. However, the department was allowed to initiate disciplinary proceedings afresh on the said charges after designation of different officers as Authorised Officer and Authority. In the said judgment the appeals were accepted mainly on the ground that the respondent No, 3 has acted both as Authority as well as Authorised Officer which was not permissible under the Efficiency and Discipline Rules.
4. Instead of implementing the said orders the respondent-department preferred civil petition for leave to appeal before the Hon'ble Supreme Court. Vide order dated 30-3-1993 the leave was granted and finally vide judgment dated 30-1-1996 the appeals were allowed and the case was remanded to this Tribunal for a fresh decision in the light of the said judgment. It was also directed that the Tribunal may consider the question whether the respondent No, 3 was empowered under Notification No, S.R.O. 919(1)/83, dated 28-9-1983 to act as the authority in the present case. The ratio of the said judgment is based on the amendment in clause (3) of rule 2 of the Government Servants (Efficiency and Discipline) Rules, 1973, as per amending Notification dated 3-7-1978. By the said amendment it was provided that if no officer was authorised to perform the functions of an Authorized Officer, the Authority can also act as an Authorised Officer.
5. We have listened to the arguments in this case and we are sorry to observe that due to lack of proper assistance by the representative of the respondent department the case has lingered for almost eight years. The representatives of the respondent department were not resourceful enough to furnish the true position of the notifications whereby various officers had been authorized to perform specific functions under the Efficiency and Discipline Rules. Due to lack of proper assistance the learned standing counsel as well as the learned Deputy Attorney-General failed to furnish the true position of rules at the time of hearing of these appeals. The fact of the matter is that the respondent No, 3 had initiated the disciplinary proceedings. He issued the charge-sheet and appointed the Inquiry Officer. The Inquiry Officer was later on changed by the same respondent and the second Inquiry Officer submitted his report whereupon respondent No, 3 himself imposed the major penalty of reduction in pay. Thus the respondent No, 3 acted as an Authorised Officer for initiating disciplinary proceedings, issuing charge-sheet, appointing Inquiry Officer and the service of show-cause notice in his capacity as Authorised Officer . Had he imposed the minor penalty, it would have been justified in his capacity as Authorised Officer. However, major penalty could not be imposed and the matter was to be referred to the Authority. At this stage the respondent No, 3 assumed the role of the authority and imposed the major penalty of reduction in time scale. During the hearing of the case before this Tribunal on 19-3-1992 the respondents took the plea that the respondent No, 3 had acted as an Authorised Officer as well as Authority under the Notification No, S.R.0.(I)/83, dated 27-9-1983. A copy of such notification vas placed on file. The relevant extract of the said notification appearing at page 36 (Annexure V) of the file of the Ministry of Communications is reproduced hereinbelow:-- "GOVERNMENT OF PAKISTAN MINISTRY OF COMMUNICATIONS (PAKISTAN POST OFFICES) ANNEXURE V Islamabad the 27th September, 1983. NOTIFICATION S.R.O. (1)/83.-:-In pursuance of clause (3) of rule 2 of the Government Servants (Efficiency and Discipline) Rules, 1973, and in supersession of this Ministry's Notification No, S.R.O. 6(KE)/78, dated 23rd February, 1978, the authority is pleased to authorise the Officers specified in Column 2 of the table below to be the authorised officers in respect of Government servants specified in Column 1 of that table, employed in the Pakistan Post Office under the Ministry of Communications:-- Category of Government servants Authorised Officer 1 2 CIRCLE OFFICER INCLUDING GENERAL MANAGER POSTAL LIFE INSURANCE OFFICE OTHER THAN BALOCHISTAN CIRCLE OFFICE
5. Grades 7 --- 10 Branch Officer .......... ............. ..............
DIVISION UNITS (ALL CIRCLES)
12. Grades 5 - 7 (i) Higher Selection Grade official to whom immediately subordinate to perform functions in respect of penalties laid down in rule 4(1)(a)
(i) and (ii). (ii) Officer under Head of Division/Unit to whom immediately subordinate.
(iii) Head of Division/Unit where no other officer under him is available." xxx xxx xxx Thus, relying on the entry appearing at serial No, 12 of the said Notification (reproduced hereinabove) it was stated that under sub-clause (iii) the Head of Division/Unit was competent to act as Authority as well as Authorised Officer as the respondent No, 3 was practically the Head of Division where the appellant was posted. This argument did not prevail with the Tribunal during the previous round.
6. During the hearing of the appeal by their Lordships of the Supreme Court, similar lack of assistance resulted in an ambiguity and the learned Deputy Attorney-General produced a copy of S.R.O. 919(I)/83, dated 28-9-1983 to state that in fact vide serial No, 6 of the said Notification the Authority for the category of employees of Grades 7 to 10 was "Deputy Postmaster- General/Controller of Post Offices/Chief Postmaster/Director, Postal Life Insurance". This ambiguity caused a lot of confusion for their Lordships and the ambiguity is reflected in para. 6 and the concluding para. of the said judgment. The relevant portions are reproduced hereinbelow:-- "Learned Deputy Attorney-General has placed before us Notification No, S.R.O. 919(I)/83, dated 28- 9-1983 published in the Gazette which indicates that although no officer had been authorised to perform the functions of the Authorised Officer in respect of the category- of Government "servants which included the respondent but an officer to act as authority had been designated under the said Rules. Such officer in the case of the respondent was Deputy Postmaster-General/Controller of Post Offices/Chief Postmaster/Director, Postal Life Insurance". Although, the said notification indicates that appellant No, 3 had not been designated by the President to exercise the powers of authority under the said Rules but it is pertinent to point out that this question was neither raised before the Tribunal on behalf of the respondent nor the Tribunal appears to have addressed itself to this question." xxx xxx xxx '"The Tribunal may also consider the question whether respondent No, 3 was empowered under Notification S.R.O. 919(I)/83, dated 28-9-1983 to act as the authority in the present case."
7. The true situation is that practically there were two Notifications issued on the same date marked as Annexure IV and Annexure V appearing at pages 33 and 36 of the file of notifications in the Ministry of Communications. The extract from the notification at Annexure V has already been reproduced hereinabove. The extract from the second notification appearing at Annexure IV is reproduced herein below:- ANNEXURE IV "GOVERNMENT OF PAKISTAN MINISTRY OF COMMUNICATIONS (PAKISTAN POST OFFICES) Dated Islamabad, the 27th September, 1983. NOTIFICATION S.R.O. (I)/83.---In pursuance of clause (2) of rule 2 of the Government Servants (Efficiency and Discipline) Rules, 1973, and in supersession of this Ministry's Notification No,S.R.O. 6(KE)/78, dated 23rd February, 1978, the President is pleased to designate the. officers specified in Column 2 of the table below to be the authorities in respect of the categories of Government servants specified in Column 1 of that table and employed in the Pakistan Post Office under the Ministry of Communications:-- Category of Government servants Authorised Officer 1 2 CIRCLE OFFICER INCLUDING GENERAL MANAGER POSTAL LIFE INSURANCE OFFICE OTHER THAN BALOCHISTAN CIRCLE OFFICE
6. Grades 7 --- 10 Deputy Postmaster- General/Contoller of Post Offices/Chief Post Offices/Chief Postmaster/ Director, Postal Life Insurance. .......... ............. ..............
DIVISION UNITS (ALL CIRCLES)
15. Grades 7 Head of Division/Unit"
This notification was partially available with the learned Deputy Attorney-General and he referred to serial No, 6 thereto as reproduced hereinabove.
8. In fact the entry at serial No, 6 of the said notification was not applicable to the appellant because the serial No, 5 related, to the employees in the Circle Offices other than Baluchistan Circle Office. The appellant was not working in the Circle Office rather he was working in a Unit under the Divisional Head and being in Grade-7 his case was covered by serial No, 13 as referred to above.
Thus, the notification reproduced in para. 7 above related to the appointment of Authority for the employees in the Pakistan Post Office under the Ministry of Communications whereas the notification reproduced in para. 5 above related to the appointment of Authorised Officers for employees in Pakistan Post Office. If the argument of the learned Deputy Attorney-General before the Hon'ble Supreme Court, reflected in the said judgment with regard to the appointment of the Authority, is believed then serial No, 5 of Notification (Annexure V) will be applicable to the case of the appellant and the Authorised Officer will be the Branch Officer whereas in fact serial No, 12 was attracted and three categories of officers have been designated as the Authorized Officer to deal with the category of employees in Grades 5 to 7 working in Divisions/Units (all Circles).
9. So far the discussion was relating to the confusion of the appointment of Authorised Officer and the Authority and now we come to the main issue in this case. For the category in which the appellant fell, the Authorised Officer was to be higher selection grade officer to whom the appellant was immediately subordinate, or the officer under Head, of Division/Unit to whom the appellant was immediately subordinate and in case where no other officer under him was available, the Head of Division/Unit was to perform the functions of the Authorised Officer. Moreover, the Authority for his category was the Head of Division/Unit. The respondent No,3 who has performed the functions of an Authorised Officer as well as the Authority was the Head of North Division, General Post Office, Lahore and, therefore, he was empowered under Notification No,S.R.O. 919(1)/83, dated 28-9-1993 to act as the Authority in case of the appellant. To remove another ambiguity it may be mentioned that notifications when issued by the Divisions and Departments for publication in the Gazette of Pakistan are issued in the manner and shape as reproduced hereinabove. However, when the said notifications reach the Office of the publisher of Gazette of Pakistan, he allocates an S.R.O. number and the date. Therefore, the said two notifications issue by the Division on 27-9-1983 were published vide S.R.O. No,919(I)/83 and S.R.O. No, 920(I)/83 in the Gazette of Pakistan dated 28- 9-1983.
10.Under the Efficiency and Discipline Rules the Authorised Officer is defined to be 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 is legally empowered to perform functions of the Authorised Officer. As it can be seen in the relevant extract in the preceding paragraphs that the Authorised Officers were duly notified for the employees of Postal Department. The respondent No,3 was notified as the Authority and he was also notified as an Authorised Officer but with the condition that he will perform the functions of the Authorised Officer only when there was no other officer under him available duly authorised as such. In the instant case there were two other categories of subordinate officers working under the respondent No,3 who were duly authorised to perform the functions of Authorised Officer and, therefore, the respondent No, 3 being the Authority could not perform the functions of the Authorised Officer had there been any such officer between the appellant and the respondent No, 3.
'11. The appellant as well as representative of the respondents admitted without any ambiguity that the appellant was working directly under respondent No,3 and there was no Officer of any of the said categories falling between them. Hence in this situation the respondent No,3 being the Head of Unit was the only Officer to exercise the functions of Authorised Officer in respect of the service matters of the appellant. We had also considered the possibility of interpreting the said notification in a way that although intermediary officer/official may not necessarily control the work or supervise the respondent No,3 but still could perform the functions of an Authorised Officer but such an interpretation was not possible for the reason that the phrase "to whom immediately subordinate" has been repeated for both the categories of officials/officers falling between the Head of Unit and the employees in BPS-5 to 7. Since the appellant was not immediately subordinate to either the higher selection grade official or any other officer under the Head of Division or Unit, therefore, it will have to be concluded that no other officer was available under the Head of Division/Unit i,e, respondent No, 3 in this case who could have acted as Authorised Officer in respect of the appellant and, therefore, the Head of Unit is to be taken as Authorised Officer under the said Notification and so all the functions performed by him in his capacity as Authorised Officer were legally valid. Since he has been also designated as the Authority vide circular as quoted hereinbefore, therefore, he could perform the functions of the Authority as well. It was argued on behalf of the appellant that the concentration of power of the Authority and the Authorised Officer in one person will be a violation of the principles of natural justice but, as stated above, this was the position of the rules for the time being in force and no other interpretation was possible.
12. So far as the merits of the case are concerned the appellant was proceeded against under the Efficiency and Discipline Rules in the year 1985. Charge-sheet was served, coupled with the statement of allegation and the appellant was placed under suspension. An Inquiry Officer was appointed who had conducted the inquiry proceedings with all the minute details. The appellant was admittedly associated with the proceedings of inquiry. Statement of several witnesses were recorded and notices for the attendance of dozens of other witnesses were issued who failed to appear. The appellant was provided every opportunity to produce his defence including the right of personal hearing. Detailed inquiry report was submitted by the Inquiry Officer in 1987. After affording personal hearing to the appellant the then City Superintendent withdrew the earlier charge-sheet and the orders of appointment of the Inquiry Officer. Thereafter, the order of suspension of the appellant was also withdrawn. Another Inquiry Officer was appointed who again held the inquiry proceedings in detail. The appellant was duly associated and all the opportunities required by the law were afforded to him. The report of the second Inquiry Officer was received and after going through the formalities final show-cause notice, etc. the original impugned order was passed. The appeal of the appellant was duly considered by the appellate authority and by proper application of mind the appellate impugned order was passed whereby the penalty was modified.
Both the Inquiry Officers have held the appellant guilty of the major part of the charges against him. During the course of first inquiry proceedings five charges were levelled against the appellant and the Inquiry Officer held him responsible for four of them. During the course of the second inquiry proceedings four charges were levelled and they were held proved to a greater extent.
Detailed record was collected by both the Inquiry Officers. There has been no allegation of any malice or personal motives against the Inquiry Officer. The City Superintendent i,e, the respondent No 3 had not been the same person during the entire episode. There had been admittedly several transfers and the Officer who had initiated the case against the appellant originally had not been posted there when the report of the first Inquiry Officer was submitted. The successor in the Office of the City Superintendent ordered the second inquiry and admittedly he was also not posted as such when the final inquiry report was submitted. Original order of imposition of penalty was passed by an entirely different Officer. Hence no personal reasons can be attributed to the Officers who acted as the respondent No, 3 during the entire proceedings. No defect could be pointed out in the order.
13.It may, however, be mentioned that in the original order the period of suspension was not properly adjudicated upon and it was wrongly held to be "as it is". The appellate authority, however, converted the period of suspension into the leave due. The appellant had been suspended for a period of almost two years whereas the law requires that the period of suspension should be initially for three months and should be extended with the approval of next higher authorities for sufficient reasons. No reasons whatsoever have been stated for the extension of such period of suspension and the record shows that the order of suspension originally passed on 18-5-1985 was never renewed and, therefore, the possibility of extension of the period of suspension was out of question. Thus, the unnecessary period of suspension was not justified and the appellant could not be penalised by leaving the period of almost two years only "as it is". Similarly the appellate order of treating the period of unjustified suspension as leave due was without any rhyme and reason. Thus, we hold the period of suspension from 18-5-1985 to 25-4-1987 shall be treated as period on duty particularly for the reasons that the proceedings held during these two years were recalled vide order dated 25-4-1987 and the appellant could not be penalised for conversion of the illegal period of suspension as leave. With this modification of the impugned orders we do not find any merit in the rests of the prayers made in both the appeals which are hereby dismissed.
14. No order as to costs.
15. Parties be informed.