1. ' ABDUL MAJID KHANZADA (CHAIRMAN).---The facts of this appeal, according to the appellant are that he was appointed as Assistant. Superintendent of Jail, Government of Sindh (BPS.14) in 1983. He was suspended from service vide order, dated 11-9-1994 issued by the respondent No, 3 viz., 1.-G.
2. Prisons vide orders, communicated on 12-9-1994. He was served a show-cause notice, dated 13-9- 1994, issued under the signatures of respondent No,3/I.G., Prisons 'for the acts of misconduct as contained in the attached statement of allegations'. There were in all 6 (six) charges mostly related to the escape of two Life Services/convicts carrying sentences of 55 and 30 years respectively sent for production, before the 1st Additional Sessions Judge, Mirpurkhas on the basis of an allegedly forged/false production order, without knowledge and approval of his superiors and without ensuring an 'strong' police escort. This 1st show-cause notice was replied by the appellant on 5-10- 1994. Thereafter, he was served with the final show-cause notice, which was replied on 31-10-1994.
3. He was directed to appear before the Home Secretary. He appeared before him on 30-7-1995.
4. However, the Home Department vide its letter, dated 31-7-1995, directed for holding a full-fledged departmental inquiry. D.I.G. Prisons, was appointed as Inquiry Officer. Appellant was dismissed from service vide order, dated 4-1-1996. He was provided a copy of their inquiry report, at his own request after dismissal order had already been issued. The impugned dismissal order was assailed through a departmental appeal which remained pending for 1/1-2 year approximately. The appellant, therefore, moved an application to the then Chief Minister Sindh on 25-5-1997, who was pleased to order for reinstatement, but no reinstatement order/notification was issued. Instead, the Home Secretary submitted a note for the Chief Secretary for disposal of appellant's pending departmental appeal. The appellant was called upon to appear before the Chief Secretary on 3-11- 1997. Subsequently he was informed vide orders, dated 30-12-1997 that his departmental appeal has been rejected by the competent Authority. Hence this appeal.
5. ' The counsel for the appellant mainly contended that he being 'Incharge' of production of the inmates of the concerned jail before various Courts, on receipt, of concerned production order through proper channels, had no reasons to disbelieve the same/or investigate its genuineness.
6. According to him under Jail Manual, he was not required to obtain prior permission in writing or verbal of the Deputy Superintendent or Acting Superintendent of Jail. No mala fides are allegedly proved against the appellant. Further, according to Jail Manual prescribed 'police guard' to escort the convicts/under trial prisoner is 14 i,e, one head and four subordinates. The words 'Strong Police Guard' are not mentioned or described anywhere in Jail Manual Rules, according to him.
7. ' According to the counsel, the orders of the Chief Minister who is the 'Government.' under Sindh Government Rules, of Business, 1986 are binding on all functionaries of the Provincial Government.
8. The respondents could not legally deviate/refuse to comply with the orders of Chief Minister, regarding the reinstatement of the appellant. He argued that all powers, under service rules are delegated by the Government viz., Chief Minister who can assume, any power vested in any authority any time, he wishes to do so. In support of this contention, he placed reliance on PLD 1978, page 1990 Quetta page 8.
9. ' His next argument was that all the three officials who were allegedly involved in this incident, were proceeded, simultaneously. One was in BPS.14, 2nd in BPS.17 (app) and the 3rd was in BSP.18. He submitted that in accordance with the rules/regulations/instructions on the subject in such an event, the authority in respect of the highest ranking accused shall also be the authority for all the co-accused. In the instant case, the highest ranking accused being of BPS.18, in whose respect, the competent authority is the Chief Secretary, the Home Secretary was not competent to pass orders for the dismissal of the appellant. Since Chief Secretary was the authority in respect of the appellant, as such, show-cause notice and statement of allegations should have been signed by the next below officer/Authorised Officer, viz, Home Secretary, whereas both are signed by the I.-G., Prisons, Sindh. Similarly the appellate authority in the case of the appellant was the Chief Minister, whereas his appeal was disposed off by the Chief Secretary. He, therefore, pleaded that because of grave procedural defect, orders passed by authorities not competent to do so, the impugned original and appellate orders need to be set aside by this Tribunal and appellant be ordered to be reinstated with all past service benefits.
10. ' A.A.-G. Basically remained confined to the written statement of the respondents. He contended that the competent Authority in respect of the appellant an officer of BPS.17 of Prison Department, is the Home Secretary. Under appeal rules, the appellate authority against the orders of the Home Secretary is the Chief Secretary and, therefore, according to him, no procedural irregularity was committed by the respondents. The appellant's appeal was dismissed after affording him a proper 'personal hearing' by the Chief Secretary. The appellant was dismissed by the Home Secretary after a proper departmental inquiry by D.I.-G. Prison. The procedural defuncts, if any, as pointed out by the counsel for the appellant, even if correct, were insignificant.
11. ' We have given our serious thoughts to the arguments put forward by either side, perused the written statement and documents filed with the appeal and the written statement.
12. ' We are constrained to record that the Sindh Civil Servants (Efficiency and Discipline) Rules, were framed in 1973, but despite the passage of almost 36 years, even the Senior Government Officer, belonging to superior services, are often not well-conversant with its provisions, implications and delicacies perhaps because there is no training school or institution set up by the Provincial Government to impart administrative and financial acumen but ignorance of law is no excuse, even for a common man. The above said Efficiency and Disciplinary Rules, have a definite, prescribed mathematical scheme of things. As in mathematics, one has to move, step by step. One step, if missed, could lead to wrong answer and wrong deductions. We would like to point out that in a disciplinary proceeding under the said rules the most crucial point is the determination of who is the Authority and Authorised Officer ,in respect of the civil servant against whom, disciplinary proceedings are required to take place. It is indeed provided under sub-rule (6) of Rule 5 of the said rule that 'if two or more civil servants are proceeded against jointly, the Authority or Authorised Officer in respect of the highest ranking civil servant amongst them shall be the Authority or Authorised Officer, as the case may be, in respect of all co-accused civil servants. It is obvious from the report of the D.I.-G. Prisons/Inquiry Officer that in all there were six (6) co-accused in the matter of the escape of two life servers viz., M/s. Muhammad Afzal (Deputy Superintendent/Acting Superintendent), Qamar Raza Zaidi (Dy. Superintendent), Saleem Raza Shaikh (Assistant Superintendent), Shafi Shaikh (Junior Clerk), Javed Ahmed (Head Clerk) and Haider Zaman (0.G.
13. Warder). The highest ranking co-accused viz. Mr. Muhammad Afzal, Deputy Superintendent/Acting Superintendent being a BNSP.18, Officer the authority in respect of all co-accused was the Chief Secretary and Home Secretary being next in command, was the Authorised Officer. However, what is surprising is that a Senior Officer, like the I.-G. Prisons, was ignorant of this provision and issued the show-cause notice bearing No,EB-1/13496, dated 13-9-1994, in the capacity of the Authorised Officer (alongwith the statement of allegations under his own seal and signature which amounts to an order passed by coram non judice, because show-cause notice/statement of allegations required to be signed by the Authorised Officer in the case of the appellant, the Home Secretary.
14. Similarly, the impugned dismissal order bearing No, PRS/9-38/94, dated 4-1-1996 was passed by the Home Secretary instead of the Chief Secretary which also suffers from the same defect, which was not noticed or pointed out.
15. ' Without prejudice to the above observation we would like to point out that the next crucial step under Effidiency and Disciplinary proceedings under the said Rule 5, sub-rules (2) and (3) is the decision of the 'Authorised Officer' whether in the light of the facts of the case or interest of justice it is necessary to hold a (departmental) inquiry or to resort to show-cause notice. In this case, the appellant was issued firstly a. Show-cause notice stating therein that it is not 'necessary' to hold an inquiry on 13-9-1994. The acts of alleged misconduct were not mentioned in the show-cause notice but attached to it as 'statement of allegations' whereas the charges and statement of allegations are framed, where it is deemed necessary to hold a. Departmental inquiry as provided under Rule 6 of the said Efficiency and Disciplinary sub-rule 1(a) which reads as follows:-- "(6) Procedure to be observed by the Inquiry Officer and Inquiry Committee--
(1) Whereas Inquiry Officer or Inquiry Committee is appointed, the authorised officer shall--
(a) frame a charge and communicate it to them together with statement of allegations."
16. ' What is obvious is the confusion in the mind of the then 1.-G. Prison who simultaneously resorted to both the procedure of show cause and statement of allegations part and parcel of an inquiry. The matter was further complicated by issuance of a final show-cause notice, dated NIL personal hearing provided by the Home Secretary on 30-7-1995 and taking a Uturn the very next day ordering a ful-fledged inquiry vide Letter No,PRS/9-38/94, dated 31-7-1995. What is most significant is that after the submission of the Inquiry Report by D.I.-G. Prison vide DIG/ENQY/11420, dated 26-9- 1995, no final show-cause notice as required was issued to the appellant, nor the copy of the inquiry report was provided to the appellant, nor a personal hearing provided and the then Home Secretary, passed the impugned dismissal order which amounts to putting the cart before the horse advertently or inadvertently but again, we would like to point out that ignorance of law is no excuse and it is more lamentable in senior officers, who act as 'models' for their juniors. It is an established principle of the law that an order passed by coram non judicce i.e by any authority without jurisdiction is of no legal consequence and is a void order.
17. ' Lastly, we would like to record that a myth has been created that the Chief Minister is the Government. It is our considered view that undoubtedly the Chief Minister is embodiment of the (Provincial) Government and his all legal position that such compliance does not extend to any illegal orders are to be obeyed in letter and spirit. However, it is an accepted legal order. The Chief Minister's orders have to be 'Judicious' and in accordance with the enacted law. The (procedural) rules, framed by the Government (of which the Chief Minister is the embodiment) are gazetted and notified. But unless an existing rule is amended or rescinded, in the prescribed manner i,e, gazetted and notified even the Chief Minister is bound to obey the same under supremacy of law. The myth that the Chief Minister, embodiment of Provincial Government being the rule framing authority is exempted from the operation of an existing rule even when not so specifically provided in concerned act itself, is hoax/incorrect. The Chief Minister being the Leader of the House in the Provincial Assembly can always bring an amendment to an Act through passage of bill and can also amend the rules framed thereunder, through prescribed procedure of notifying the same in Official Gazette but his word alone is not the law nor is he exempted from operation of laid down law. The Sindh Civil Servants Act was enacted in 1973. The Sindh Civil Servants (Efficiency and Disciplinary) Rules, under section 25 of the said Act were framed vide Notification, dated 8th September, 1973. In Rule 2(2) 'authority' is defined as the Chief Minister or any officer or authority designated by him to exercise the powers of the authority under these rules, viz., the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, the Chief Minister was the appointing authority in respect of officer of BSP.17 and above but these rules stand amended and now the appointing authority in respect of BSP.18 is, undisputedly, the Chief Secretary. Therefore, we are not in agreement with the counsel for the appellant that these powers vested in various authorities in various rules, are delegated by the Chief Minister as such Chief Minister, at any time, can assume these powers to himself even without a notification to that effect. Of course Chief Minister can change the designated 'authority' in rules but for that a prior notification/gazette is needed because the new rules/amended rules do take effect from the date of actual gazette notification.
18. We would also like to point out that often Chief Minister pass order on petitions/applications without calling for the record/hearing the other side of the story/departmental version, which is bad in law and amounts to passing order in a non-judicious manner, as in this case, since only Allah is Omnipotent and All Knowing, this is violation of tenets of Islam.
19. ' In view of what has been stated, we are in partial agreement with the counsel for the appellant that there are grave errors and omissions of prescribed law, rules and regulations in the impugned original order as well as appellate order which were passed by coram non judice and cannot be sustained/maintained in law and therefore we set aside the same.
20. ' However, we have observed that undisputedly two life servers, serving sentences as heavy as 55 and 30 years, did escape (M/s. Muhammad Aslam son of Muhammad Moosa and Islam son of Majeed Pathan. Mr. Muhammad Aslam was immediately caught thereafter) because the appellant failed to exercise normal care, due vigilance on the part, despite a long service of 10 years or more.
21. He failed to notice the obvious over writing in the production order, failed to confirm its genuineness in writing or even on telephone, although he had sufficient time at his disposal, which is beyond the definition of bona fide actions and smacks of gross negligence, if not mala fides. The prescribed police guard of 1x4 in our view only describes the minimum prescribed strength of police guard/escort but it is a routine practice that in case of dangerous, hardened criminal/life servers, a heavy police escort/guard is arranged invariably as a matter of abundant caution and should have been so arranged/provided by the appellant. He should have also brought the 'production order' of life servers to the notice of his immediate superior viz. Deputy Superintendent and Acting Superintendent Jail concerned and sought their orders advice as expected in services case. Therefore, setting aside of the impugned order, shall not be a bar to, the respondents, for de novo proceedings against the appellants, strictly in accordance with law; if they so desire.