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Civil Revision No. 360 of 1968, decided on 22nd November 1968.

S. 115‑Revisional powers of High Court‑High Court cannot interfere with conclu sions of subordinate Courts upon questions of fact and law, however, profoundly it may differ, unless subordinate Courts have acted (i) illegally, i.e. in breach of provisions of law and (ii) with material irregularity i.e. by committing some error of procedure which may have affected ultimate decision.

N. S. Venkatagiri Ayyangar v. The Hindu Religious Endow ments Board, Madras P L D 1949 P C 26 rel.

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Suspension‑Sanction of competent authority‑Mere fact that notification of suspension was with drawn‑Cannot take away the fact that competent authority had sanctioned suspension‑Suspension order for a second time on basis of previous sanction, held, not bad in law.

Suspension‑--No penalty or punish ment‑Decision to prosecute and suspend can be passed by same authority.

M. S. Khawaja v. Chairman, Municipal Corporation, Lahore P L D 1966 Lah. 1006 and Mrs. Saeeda Tasneem Ara v. The Province of West Pakistan P L D 1967 Lah. 1112 distin guished.

Muhammad Hayat v. Province of West Pakistan P L D 1964 S C 321 and Mosharraf Hosain v. The Chairman, East Pakistan School Text‑Book Board, Dacca P L D 1968 Dacca 133 rel.

r. 11 and Establishment Manual, Vol. 1, p. 327 ‑ Suspension in case of Police challan‑-- View that Government servant can be suspended only after he is challaned--- Held, not correct‑Competent authority has discretion to suspend even before such stage.

Ch. Hamid‑ud‑Din for Petitioner.

Raja Said Akbar, A: G. for Respondent.

Dates of hearing: 21st and 22nd November 1968.

The petitioner, an Executive Engineer in the P. W. D., Irrigation Department, has been charged by the respondent that he, in conspiracy with Faizullah then, S. D. O. and Muhammad Khalid Overseer, Irrigation, Quetta Region, and with Messrs Tribal Friends & Co., by abuse of their official position, dishonestly and fraudulently made excess payment of Rs. 3,21,615.00 to the said Company by falsely showing excess measurements in the record and by allowing higher rates for the work done at site of construction under Beji Irrigation Scheme, Loralai, and sanction has been granted for his prosecution for offences under sections 420/467/468/471/120‑B of the Pakistan Penal Code, read with section 5(2) of the Prevention of Corruption Act (II of 1947). He has further been charged for snaking excess payment to the said Company to the tune of Rs. 75,496.00. On the basis of these charges and the prosecution .of the petitioner having been sanctioned, he was suspended on the 16th of September, 1967 on the recommendation of the Provincial Anti‑Corruption Council, submitted through the Minister of Irrigation vide his note dated the 8th of September 1967, which was duly approved by the Governor by his order dated the 12th of September 1967. The order of suspension was issued by Mr./ Ahmad Hasan, Secretary to the Government of West Pakistan, Irrigation and Power Department. The petitioner challenged this order in Civil Suit No. 403/1 of 1967 in the Court of Mr. Amjad Hussain Bokhari, Civil Judge, Lahore, and obtained an ad interim injunction in respect of the, order of suspension dated the 16th of September 1967, on the ground that he was neither challaned nor sanction for his prosecution was granted before the order of suspension was issued. It appears that later on, the suspension order, on departmental advice, was withdrawn on the 7th of October 1967. The Department forwarded the sanction for prosecution of the petitioner to the Anti‑Corruption Department and after taking necessary action to challan the petitioner, issued a fresh order of suspension on the 10th of October 1967. The petitioner, thereupon, filed a fresh suit (No. 442/10 of 1967) on the 11th of October 1967, in the Court of Mr. Amjad Hussain Bokhari, Civil Judge, Lahore, who after hearing the application for interim injunction granted the ad interim injunction till the 20th of October 1967, on which date the confirmed the ad interim injunction till the decision of the suit.

2. This order dated the 20th of October 1967, of the learned Civil Judge was challenged in appeal by the respondent‑Government which was accepted by the learned Additional District Judge on the 4th of May 1968. The order of ad interim injunction was set aside and the application of the plaintiff under Order XXXIX, rules 1 and 2 of the Code of Civil Procedure was dismissed. The petitioner, thereupon, challenged this order in. the present revision petition which was admitted by Muhammad Afzal Khan, J. on the 27th of May 1968, with the following admitting note:--

"Contends that Governor's order dated 12‑9‑67 might have sustained the order of suspension dated 16‑9‑67 but there was no specific order passed by the Governor to sustain the order of suspension dated 10‑10‑67, the order dated 16‑9‑67 having been withdrawn."

It is in these circumstances that the present revision petition has, come up for hearing before me.

3. In order to clarify the position, Raja Said Akbar Khan,, the learned Advocate‑General, has produced before me the relevant file which clearly shows that the Governor approved the sanction for the prosecution of the petitioner and for his suspension by order dated the 12th of September 1967. This order was never recalled or cancelled or withdrawn by the Governor. However, on the 7th of October 1967, the Depart ment, on legal advice having been tendered to it, came to the conclusion that so long as the order of temporary injunction was not vacated or set aside it had to be honoured by giving necessary effect to it and that as the main suit as well as the appeal against the order of the temporary injunction were pending the matter may be taken to the highest Court but in the meantime the order of temporary injunction must be obeyed. With this background the order of suspension was withdrawn on the 7th of October 1967. Thereafter the Department took action to forward the order for prosecution of the plaintiff to the Anti‑Corruption Department and issued another order of his suspension on the 10th of October 1967. On examination of the file there is nothing to show that the Governor at any stage has withdrawn the approval of the sanction for prosecution and suspension of the petitioner accorded on the 12th of September 1967. In these circumstances, the very basis on which this revision petition was, admitted does not exist and the revision petition is liable to be dismissed on this ground alone.

4. Ch. Hamiduddin, learned counsel for the petitioner, has however, urged a number of other points in support of the petition which, according to him, have arisen out of the infor mation conveyed in the affidavit filed by the Department in this Court. The learned counsel has urged the following points:‑

(1) That no order of suspension has been passed by a competent authority between 7‑10‑1967 and 10‑10‑1967, as. required by item 33 of the Schedule to the West Pakistan Government Rules of Business of 1962 and, therefore, the suspension order dated the 10th of October 1967, has no, validity in the eye of law.

(2) That the earlier order of suspension communicated on the 16th of September 1967, alleged to have been passed on the 12th of September 1967, having been withdrawn, the suspension order issued on 10th October 1967, unless supported by a fresh order by the competent authority, has no validity, in the eye of law.

(3) That even if the first order of suspension, approved by the Governor, was not withdrawn, it is vitiated because it was passed by Mr. S. I. Haq as Governor, who in his capacity earlier as the Chairman of the Provincial Anti‑Corrup tion Council, had dealt with the petitioner's case and recom mended for his prosecution and suspension, as mentioned above. According to the learned counsel, the same officer could not act as the Prosecutor and the Judge.

(4) That under the rules and instructions issued by the Government of West Pakistan, the stage for suspension in a case where a Government servant is to be tried on a criminal charge in a Court of law has not reached because no challan had till then been put in Court against the petitioner.

5. After hearing the learned counsel for the parties, prima facie, I am satisfied that none of the points urged on behalf of the petitioner has any force. In the first place, it seems to me that no revision petition lies against the order of the learned Additional District Judge dated the 4th of May 1968, by which .he set aside the order of injunction granted by the Civil Judge. Admittedly, the learned Additional District Judge had jurisdic tion to determine the question whether it was a fit case in which an injunction order should have been issued or not. Nothing has been shown to me from which it could be inferred that while exercising the jurisdiction the learned Additional District Judge has acted illegally, i.e. in breach of some provision of law, or with material irregularity, that is, by committing some error o procedure in the course of the trial which is material in that it may have affected the ultimate decision. As has been observed by the Judicial Committee in N. S. Venkatagiri Ayyangar v. A The Hindu Religious Endowments Board, Madras (P L D 1949 P C 26), if the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law.

6. On the matter under consideration the learned Addi tional District Judge has observed as under:‑

"Having considered the case from all possible perspectives. I am of the view that it was not a fit case for the issue of the temporary injunction prayed for because there is obviously no constitutional protection against suspension of a Government servant. Suspension does not amount to reduction in rank, Suspension is just a temporary break in service, liable to be cured on the successful re‑instatement of an official. In the event of the success of the respondent Executive Engineer in the suit he would undoubtedly be rehabilitated in all respects without any injury to his pay, emolument and increment etc. No irreparable Toss was likely to accrue to the respondent in the case of the refusal of the temporary injunction. Balance of convenience also required the non‑issue of the temporary injunction because in the event of the dismissal of the suit which possibility cannot be excluded altogether there was occasion to give rise to multiplicity of proceedings and other incidental complications.

I have, however, considered the other points raised by the learned counsel on behalf of the petitioner. As has been mentioned in the earlier part of the judgment, there is only one order by which the Governor accorded approval for the prosecution and suspension of the petitioner, namely, the one dated the 12th of September 1967. This order holds the field till today. The mere fact that on departmental advice the notification about suspension was withdrawn cannot take away the fact that the competent authority, namely, the Governor, had already accorded sanction for the prosecution and suspension of the petitioner. Having regard to this circumstance, the second suspension order issued on the 10th of October 1967, cannot be said to be bad in law. The contention, therefore, that between 7th of October 1967 and 10th of October 1967 no fresh order of suspension was, passed has no material bearing on the facts of the present case. Prima facie, therefore, there is no force in the first and the second contentions raised on behalf of the petitioner.

7. The next contention of the learned counsel that the order of sanction for prosecution and suspension of the petitioner was passed by the same person, namely, Mr. S. I. Haq, and, therefore, it was vitiated because he could not be the prosecutor and the Judge in the same cause has also prima facie not impressed me. Under the rules, the decision to prosecute and to suspend an officer can be passed by the same officer. When a competent authority passes an order for suspension of a subordinate officer it does not thereby impose any penalty or decides the case against him. This is only a temporary measure to protect the Depart ment from any likely injury that may be caused to it by a person against whom the disciplinary proceedings are being taken. In support of the contention in this connection the learned counsel for the petitioner relied on two decisions of this Court reported in M. S. Khawaja v. Chairman, Municipal Corporation, Lahore (P L D 1966 Lah. 1006) and Mrs. Saeeda Tasneem Ara v. The Province of West Pakistan (P L D 1967 Lah. 1112) but these cases are distinguishable on facts and are consequently of no help to the petitioner.

8. The last contention of the learned counsel for the petitioner that under rules and instructions issued by the Govern ment of West Pakistan the stage for suspension in a case where a Government servant is to be tried on a criminal charge in a Court of law had not reached as no challan had by then been filed has not prima facie impressed me. It is under rule 11 of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, that suspension order is passed against a Government servant against whom action is proposed to be taken under clause (b) or clause (c) or rule .3 it in the opinion of the authority suspension is necessary or expedient. Suspension in the case of Police challans is dealt with at page 327 of the Establishment Manual, Vol. I. It reads as under:‑

"Suspension need not be ordered in all cases when a Government servant is challaned. The criterion should be the same as in the case of departmental inquiry. Normally, in Court cases, it should follow conviction and should be discretionary at other stages. Moreover, a Government servant need not be suspended merely for being in Police custody unless he is convicted and the conditions as laid in the case of departmental inquiry are fulfilled."

9. It will be noticed that under these instructions the competent authority has been given the discretion to suspend a Government servant when he is challaned. It is quite correct that ordinarily he should not be suspended before his conviction of simply because he is in police custody, but at the same time the discretion is given to the competent authority to suspend al Government servant even before that stage. Prima facie, therefore, I do not find any fault with the suspension order of the petitioner, the approval of which was given by the Governor on the 12th of September 1967.

10. Before parting with the case, I may point out that the effect of suspension is only a temporary severance from office and does not involve any form of severance from membership of a service or from being a civil servant, in any sense. It is not at all a punishment. It can be awarded under the relevant rules, as has been pointed out by their Lordships of the Supreme Court in Muhammad Hayat v. Province of West Pakistan (P L D 1964 S C 321). The Dacca High Court has even gone to the extent of holding that the appointing authority has inherent power to pass an interim order of suspension. This view finds expression in a Division Bench decision of the Dacca High Court in Mosharraf Hussain v. The Chairman, Last Pakistan School Text‑Book Board, Dacca (P L D 1968 Dacca 133).

11. Considering the case from this angle, I am satisfied that the learned Additional District Judge was perfectly justified in coming to the conclusion that the petitioner has failed to make out a prima facie case, that the balance of convenience does not lie in his favour and that it was not a fit case in which the learned Civil Judge should have issued the interim injunction. This revision petition is, therefore, dismissed with costs.

Petition dismissed.

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