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Writ Petition No. 5069 of 1979, decided on 28th January, 1980.

‑‑----R. 6(1)‑Suspension‑‑Penal action‑Order must be passed strictly in accordance with power enabling to do so‑Suspension order passed without indicating period of suspension‑Extension order not issued within period of 3 months but issued after one year and further extended after 3 months for a period of 6 months‑Orders of competent authority also not obtained‑Initial suspension order and subsequent extensions, in circumstances, held, without lawful authority.

Pakistan through General Manager, P. W. R., Lahore v. Mrs. A. V. Issacs P L D 1970 S C 415 ref:

Mian Muhammad Hayat v. Province of West Pakistan P L D 1964 S C 321; Abdul Khaliq Bangash v. The Secretary, Government of West Pakistan Co‑operative Department, Lahore and 2 others 1970 S C M R 103; Karachi Stevedoring Co. Ltd. v. Vth Sind Labour Court and others P L D 1976 Kar. 1091; Khana etc. v. Additional Commissioner etc. P L D 1978 Lah. 799 and Muhammad Azhar v. Province of Punjab, Lahore and 2 others P L D 1975 Lah. 921 ref.

Muhammad Rafiq Khan Chauhan for Petitioner.

Tanvir Ahmad Khan, Asstt. A.‑G. for Respondents.

The petitioner had been suspended on 5th of June, 1978, from service without giving any period. No further extensions took place. The first order passed immediately thereafter was on 7th of June, 1979. The one passed thereafter is dated 2nd August, 1978, for a period over six months. As the orders in question go against the provisions of rule 6(1) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, I admit this petition to a regular hearing.

2. As the learned counsel are prepared to argue this case, I proceed to decide it.

The petitioner was suspended on 5th of June, 1973, for an indefinite period by the authority competent to pass the final order. No extension took place within a period of 3 months as required by rule 6(1) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. The second order was made on 7th of June, 1979, extending the suspension for a period of 3 months. Another order came up on 2nd August, 1979, saying that the extension was for a period beyond six months.

2. It is contended by the learned counsel that the original order of extension as well as those passed thereafter are without lawful authority as the case should have been initiated by the Officer authorised and the order passed with the approval of the competent authority. It is further pleaded that if the suspension is to be continued beyond a period of 3 months, that should have been approval by the authority and that the provision being mandatory even the previous order shall be exhausted in case of omission.

3. The learned Assistant Advocate‑General contented this position and relied on Abdul Latif Khan v. The Province of East Pakistan and others (P L D 1970 Dacca 350), the relevant portion of which is in these words:‑

"As a general rule, a statute which regulates the manner in which public officials shall exercise the power vested in them, will be construed as directory rather than mandatory‑or if nothing is stated, regarding the consequences or effect of non‑compliance, the indication is all the stronger that it should not be considered mandatory."

4. He also relied on Mian Muhammad Hayat v. Province of West Pakistan (P L D 1964 S C 321), where it is laid down that the power of suspension is within the responsibility of executive and suspension is temporary severance from discharge of functions, not from being member of service.

5. Reference was also made to Abdul Khaliq Bangash v. The Secretary, Government of West Pakistan, Co‑operative Department, Lahore and 2 others (1970 S C M R 103) holding that the suspension is not a penalty and does not violate any legal right vesting in suspended officer. I considered similar arguments in Mazhar Ali v. Federation of Pakistan (W. P. 1602/S of 1979) and while relying on Pakistan through General Manrage, P. W. R., Lahore v. Mrs. A. V. Issacs (PLD 1970 S C 415), came to the conclusion, that as the salary of a civil servant is no longer a bounty of the state, the order of suspension is a penal action. It should, therefore, be passed strictly in accordance with the power enabling it to be done.

6. The learned Assistant Advocate‑General then referred to Karachi Stevedoring Co. Ltd. v. Vth Sind Labour Court and others ((4) P L D 1976 Kar. 1091), to say that as it was held in that case that no consequence follows for not deciding a case within seven days as provided in section 25‑A of the Industrial Relations Ordinance, the provision of 3 months, in the rules under discussion, is directory and non‑compliance would not vitiate the action. There can be no doubt in the principle laid down in the above case. I have also taken a similar view in Khana etc. v. Additional Commission etc. (P L D 1978 Lah. 799), for the reason that the purpose of law in such cases is rather to see that a matter be decided expeditiously to save the parties their time and not to punish the complainant for the default of the Officer who has been obliged to conclude the matter within a given time. Further, such time limits are against the party who had it to act and not others as in the Limitation Act.

7. The principle in the case in hand is different and it is that if law provides doing of a particular thing affecting the rights of citizens in a particular way it must be done that way or not at all. It is now so well established. Again, if the provision is penal in nature, it must be strictly interpreted.

8. The learned Assistant Advocate‑General then submitted that the suspension, in the present case, continued because of dilatory tactics of petitioner and that he is not entitled to any relief in view of Capt. Muhammad Azhar v. Province of Punjab through the Secretary (P L D 1975 Lah. 921) Government of Punjab, Lahore and 2 others. Even this contention has no merit. Orders of suspension had nothing to do with the dilatory tactics of the accused. The petitioner could only delay inquiry but the orders of suspension and extension could be passed by the authority despite that. If the authority or the Inquiry Officer could not perform this function in accordance with law could not blame the accused. The order of suspension or its extension can be passed behind the back of the accused and his presence is not required.

9. Further, it is the national exchequer which ultimately suffers and non of the officers responsible for the cut if the suspension or inquiry results in favour of the accused. The provision of time limit for suspension and extension, therefore, casts heavy duty on the authority to scrutinize the progress in the inquiry and the material brought on the record to decide if further extension in suspension is necessary.

In view of the above, the order of suspension and all the further extension are declared to be without lawful authority. The inquiry proceedings may however continue if it is thought necessary.

Appeal accepted.

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