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Writ Petition No. 25-S of 1973/BWP, decided on 18th December 1973.

14.8, 14.10 & 14.13 read with West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, r. 16-Rule 14,18 of Civil Services Rules applies where departmental inquiry was initiated, conducted and terminated under provisions of r. 14.13 and either penalty as provided in r. 14.10 was inflicted or refused to be inflicted Rules 14.10 & 14.13 of the Civil Services Rules have been expressly repealed by West Pakistan Government Servants Efficiency and Dis cipline) Rules, 1960-Person against whom no proceeding taken under r. 14.13 nor any penalty prescribed in r. 14.10 was or could have been inflicted-Government or Head of Department, after repeal of rr. 14.10 & 14.13 by West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, could not invoke r. 14.18 in exercise revisional jurisdiction under it in respect of such persons-Substitution of cor responding provisions of West Pakistan Government Servants (Effi ciency and Discipline) Rules, 1960 in place of r. 14.10 or 14.13, as used in r. 14.18 of Civil Services Rules, not warranted by law-Section 8 of General Clauses Act, 1897 and S. 7 of West Pakistan General Clauses "t" Act, 1956 not applicable since repeal of rr. 14.10 & 14.13 of the Civil Services Rules is not by any Central or Provincial Act or Regulation but is a repeal by newly framed set of rules-Nor is the old principle of repeal (according to which repealed provision should be construed as having never existed) applicable-General Clauses Act (X of 1897), S. 8--West Pakistan Ceneral Clauses Act (VI of 1956), S. 7.

Muhammad Abdul Rashid v. D.I.G. Police P L D 1963 B J 37; Maxwell Interpretation of Statutes, 12th Edn; The Crown .v. Haveli P L D 1949 Lah. 550; Shafiq Ahmed v The State P L D 1959 Lah 420: Muhammad Bashir v. The Province of West Pakistan A I R 1958 Lab. 853; N. S. Thread Co. v. James Chadwick & Bros. A I R 1953 S C 353; Raj Kishan Jain v. Tulsi Das etc. A I R 1959 Pb. 353 and Ahmad Din v. Chief Conservator of Forests Writ Petition No. 568 of 1970 ref,

M. M. Bhatti for Petitioner.

S. Na am-ud-Din for A. A: G. for Respondent.

Date of hearing: 20th September 1973

The petitioner has ch31lenged the order of the Chief Conservator 'of Forests dated 14-5-1973 by which, acting under rule 14.18 of the Civil Service Rules, Volume I, the petitioner was removed from the post of Forester-

2. The petitioner was appointed as a Forester in the office of the Divisional Forest Officer, on 16-3-1965. In the year 1971 the Range Officer reported that about 31 trees were stolen out of which the case of theft of 7 was compounded and two trees were kept on Supardari. Regarding the 22 trees the D. F. O. served a charge-sheet dated, 3-7-1971 on the petitioner on charges of inefficiency and collusion in theft. Mr. Khizar Hayat Khan, Sub-Divisional officer was appointed an Enquiry Officer. After enquiry he held that the loss of 22 trees was notional and imaginary and no case was proved against the petitioner, The D. F. O. agreed with the recommendation and dropped, the proceedings against the petitioner by order dated 7-12-197.

3. Rule 14.18 of the Civil Services Rules provides as follows:

14.18. The Government or the Head of a Department may call for and examine the records of any case in which a subordinate authority has inflicted any of the penalties specified in rule 14.10 or in which no penalty has been inflicted and after making further investigation, if necessary, may confirm, remit, reduce or, subject to the provisions of sub-clause (1) of rule 14.15, increase the penalty or subject to the provisions of rule 14.13, inflict any of the penalties specified in rule 14.10."

Acting under this provision the Chief Conservator of Forests came to a provisional finding that the report of the Enquiry Officer and the consequent order dated 7-12-1971 had ignored some admissions of the petitioner. He, therefore, served a show-cause notice dated 13-10-1972 on the petitioner directing him to show cause why he may not be dismissed/removed from service (Copy Annexure C'). The petitioner submitted a reply on 6-11-1972, copy of which is Annexure D'. On 14-5-1973 the impugned, order was passed by the Chief Conservator of Forests removing the petitioner from service on ground of inefficiency.

4. It is admitted that departmental proceedings against the petitioner were taken by the D. F. O. under the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 (hereinafter referred to as the Efficiency and Discipline Rules), which by its rule 16 had expressly repealed rules 14.8, 14.10 and 14.13 of the Civil Services Rules, Volume 1. The learned counsel for the petitioner, therefore, argued that rule 14.18 which provides for infliction of penalties specified in rule 14.10 must be deemed to have been impliedly, repealed by the provisions of the Efficiency and Discipline Rules. He also argued that once an enquiry is dropped by the appointing authority the subsequent enquiry cannot be held.

In support of the contention that rule 14.18 of the Civil Services Rules (Punjab), Volume I stood repealed impliedly, reference was made to the provisions of rule 16(1) of the Efficiency and Discipline Rules. Reliance was placed upon Muhammad Abdul Rashid v. D. 1. G., Police (PLD1963BJ37) where it was held that the Efficiency and Discipline Rules override the Bahawalpur Police Rules in view of Rule 16 of the Efficiency and Discipline Rules, which provides that these rules supersede all existing Rules and instructions in regard to matters dealt with in these rules. Thus view is not applicable to the present ease as the matter regarding the revisional jurisdiction of the; governor or Head of the Department as dealt with in rule 14.18 of the Civil Services Rules has not been dealt with in Efficiency and Discipline Rules.

5. This rule is, however, redundant and ineffective in the present case. Rule 14.18 of the Civil Services Rules applies to a case where the departmental enquiry was initiated, conducted and terminated under the provisions of rule 14.13 and either a penalty as provided under rule 14.10 was inflicted or was refused to be inflicted. Rules 14.10 and 14.13 have, however, been expressly repealed by the Efficiency and Discipline Rules. it is admitted that no proceedings were taken against the petitioner under rule 14.13 of the Civil Services Rules nor any penalty as described in rule 14.10 was or could have been inflicted upon him. On a literal interpretation, rule 14.18 could not, therefore be invoked by the Chief Conservator of Forests unless there be some provision or principle of law justifying the substitution of corresponding rules of the Efficiency and Discipline Rules for rule 14.10 or, rule 14.13 of the Civil Services Rules.

For this purpose, reliance was placed upon section 8 of the General Clauses Act, 1897 and its corresponding section 7 in the West Pakistan General Clauses Act, 1956. Section 8, subsection (1) of the General Clauses Act is reproduced below:

"Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted."

6. This section cannot apply as it is applicable when a Central Act or Regulation is repealed and re-enacted. Similarly section 7 of the West Pakistan General Clauses Act, which lays down the same principle regarding West Pakistan Acts, is also applicable only to cases where a Provincial Act is repealed and re-enacted. The term "Central Act" according to section 3(8aa) of the General Clauses Act, means an Act of Central Legislature while the term "Regulation" has been defined in section 3(46) of the same Act as meaning "a regulation made by the Central Government under the Govern ment of India Act, 1870, or the Government of India Act, 1915, or the Government of India Act, or under section 95 or section 96 of the Government of India Act, 1935, or by the Governor under Article 104 of the Constitution of 1956 or by the President car by the Governor under Article 223 of the Constitution of 1962. All these enactments were provisions for legislation in particular areas in which the acts of Parliament or Provincial Assembly do not apply.

7. In the present case the repeal and re-enactment is not of any Central or Provincial Act or Regulation. This is a case of repeal of rules by newly framed set of rules. Section 8 of the General Clauses Act or section 7 of the West Pakistan General Clauses Act cannot, therefore, apply to rule 14.18 of the Civil Services Rules.

8. The next question is whether there is any principle of law, which may justify the substitution canvassed by the learned counsel for the respondent. The principle of law in regard to repeal as summed up in Maxwell's Interpretation of Statutes (12th Edition) is as follows:

"The common law rule was that if an Act was expired or was repealed it was regarded in the absence of provisions to the contrary as having never existed, except as to matters and transactions past and closed."

This principle of law underwent a change by the introduction of the Interpretation Act, 1889 particularly by its section 38. Section 38(1) provides that where the Interpretation Act or any Act passed after the commencement of this Act repeals and re-enacts, with or without modification, any provision of a former Act, references in any other Act to the provisions so repealed shall unless the contrary intention appears, be construed as references to the provisions so re-enacted: This provision has been incorporated in section 8 of the General Clauses Act of 1897 anal section 7 of the West Pakistan General Clauses Act, 1956. Subsection (2) of section 38 of the Interpretation Act provides the effects of repeal as given in section 6 of the General Clauses Act; 1897. It is,, therefore, clear that if the provisions of sections 6 and 8 are not applicable in terms to a particular repeal the principle that the repealed provisions will be regarded as having never existed except as to natters and transactions past and closed, will apply. This question came up for consideration before a Full Bench of the Lahore High Court in The Crown v. Haveli (P L D 1949 Lah. 550). The facts in that case were that a dacoit was alleged to have been committed on the 4th February 1948, within an area, which was declared by a notification as a disturbed area under the Punjab Disturbed Areas Act I of 1947. The notification of declaration of the area as a disturbed area was rescinded with effect from the 12th February 1948 section 4 of the above Act provided that an offence, punishable under any of the sections of the Penal Lode enumerated in the Schedule annexed to the .pct will be punishable with death. Another Statute, namely, the Public Safety Act XI of 1947 made it incumbent upon the Magistrate taking cognizance of a case of this nature to make ever the case to the Sessions Court having jurisdiction without conducting any enquiry or making any formal commitment. The question before the Full Bench was whether having regard to too provisions of the two Acts and to the period for which Act I of 1947 remained iii force in Sialkot District, the offence pf the appellant which was committed before the rescission of the notification, was exclusively tribal by a Sessions Court notwithstanding the fact that the case was instituted later on i.e. after the notification had been rescinded. It was held that the above Act was a temporary Statute and the consideration, which applies to permanent statutes in relation to their continuation after the expiry or-repeal ate not the same as governing the effect of temporary statutes and the general law in relation to temporary statutes is that once such a statute has expired it ceases altogether to have effect as if it had never been, except as to transactions past and closed. Consequently after a notification of rescission of Act I of 1947 the question of Court having jurisdiction to try such offence must be decided in relation to lower penalty provided by Code. In Shafiq Ahmad v. The State (P L D 1959 Lah. 420.) it was held that the Essential Comm6dities Distribution Order, 1953, was not an enactment within the meaning of section 6 of the General Clauses Act and that section could not be used for the purpose of keeping alive the proceedings which were pending at the time the notification was issued; according to which the provisions of fixation of the maximum selling prices of cigarettes came to an end. It was held that with the issuance of this notification the Court was not competent to proceed with the case. Reliance was placed upon the following observation in Muhammad Bashir v. Province of the West Pakistan (A I R 1958 Lah. 853):

"The learned Assistant Advocate-General also referred to the provisions of section 6 of the General Clauses Act, 1897 and contended that the proceedings which were pending against the petitioner at the time of the coming into force of the Constitution were saved as well as the orders which were passed in the proceedings after the said date. Though this is not the case of the repeal of a statute to which the provisions of section 6 of the General Clauses Act, if strictly construed, would be held applicable it may have to be treated in the same way as a case of a repeal of a statute and decided on the basis of the rules laid down m section 6 of that Act, which is based substantially on section 38(2) of the Interpretation. Act, 1889. Before the last mentioned Act came into force the practice in England was to insert in most of the repealing statutes a clause to save actions taken, liabilities incurred and rights accrued under the Repealed Enactments. In the absence of such a saving clause however, the position in the words of the well known Judge, as given at page 131 of Kishavan Madhava Menon's case was as follows'.

The object of repealing a statute is to obliterate it completely from the records of the parliament as if it had never passed and it must be considered as a law that never existed except for the purpose of those actions, which were commenced, prosecuted and concluded whilst it was an existing law.

If this strict rule of interpretation is applied, it would follow that only the proceedings which had been taken under the regulation and had been completed before the Constitution Day were saved, but if something bad still to be done, no further action could be taken after the Constitution Day under those provisions of the regulation which became void.

If, however, it be held that the provisions of section 6 of the General Clauses Act, 1897 would be applicable to this case, the question would arise whether all the proceedings taken under the regulation would be saved or only those, which came within the purview of clause (b) or (e), on which reliance was placed by the learned Assistant Advocate-General.

The proceedings which were taken after the Constitution Day would not however, be saved by the application of clause (b). .'As to the application of clause (e) the petitioner had no doubt, incurred the liability of being tried for the offence of murder before the Constitution Day and that liability still attaches to him. The State, however, had not acquired any right' to have the petitioner tried under any particular law, or any particular procedure and, therefore, no such right' could be considered to have been saved by the implied repeal of section 12 of the regulation."

9. I am not unmindful of a different view taken by the Supreme Court of India in the case of N. S. Thread Co. v. James Chadwick & Bros' (AIR 1953 S C 353) in which it was held that where section 8 is not applicable its principle would be applied. A similar view appears to have been taken Raj Kishan Jain v. Tulsi Das etc. (A I R 1959 Pb. 353). I cannot adopt these views in view of the consistent opinion of the Lahore High Court and the West Pakistan High Court that the old principle of repeal according to which the repealed provisions should be considered as having never existed, should apply where the provisions to the contrary in the General Clauses Act are not applicable.

10. In my view there is no principle of law justifying the substitution of the corresponding provisions of Efficiency and Discipline Rules, in place of rule 14.10 or 14.13 as-used in rule 14.18.

11. The learned counsel for the respondent relied upon an uncertified copy of the judgment of the High Court of Pakistan in Ahmad Din v. Chief Conservator of Forests Writ Petition No. 568 of 1970 in which it was observed that the Chief Conservator of Forests could have also acted if an application had been made to him under rule 14.18. It was also observed that this rule does not restrict an authority so as to create a bar to suo mote action.

This is a case in which the writ petition was dismissed in liming. The point raised by the learned counsel for the petitioner in the present case was raised there and as such was not considered.

12. The upshot of the above discussion is that the Chief Conservation of Forests had no revisional jurisdiction or authority under rule 14.18 again the order passed under the provisions of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, I hold that he bas acted without any lawful authority and quash his order.

In the circumstances of the case the parties are left to bear their own

K. B. A. Petition accepted.

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