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Constitutional Petition No. D-816 of 1978, decided on 27th September, 1984.

--Rr. 5 & 10--Constitution of Pakistan (1973), Art. 199--civil service- Suspension--Enquiry Officer recommending that petitioner may be exonerated from charge and be re-instated and his suspension period be treated as period on duty--Chief Secretary instead of accepting recommendation imposing on petitioner punishment of censure and, also ordering that subsistance allowance paid by department during suspension period should be recovered back from him--Authorised Officer who was Secretary of Department, held, only competent to pass final order on basis of findings of Enquiry Officer and not Chief Secretary who was appellate authority--Order of Chief Secretary, held, without lawful authority and set aside in circumstances.

Obaidur Rehman for Petitioner.

Muhammad Ibrahim Memon, A.A.-G. for Respondents.

Dates of hearing: 25th and 27th September, 1984.

.-- The petitioner has prayed for the following reliefs: -

"Therefore, it is prayed that this Hon'ble Court may be pleased to declare the order No. S.O.(L)3-5/77, dated 2/6 February, 1978 has been made in an unlawful manner and is of No.1egal effect and the entire proceedings leading to the impugned order commencing from the order of suspension, dated 13th October, 1978 be quashed.

(ii) Cost of the petition may be awarded.

(iii) Any other relief this Hon'ble Court may deem fit and proper in the circumstances in the present case."

2. The brief facts leading to the filing of the above petition are that the petitioner was employed by the erstwhile West Pakistan Industrial Development Corporation through an appointment letter dated 30-7-1965 as Counsellor in the Small Industries Institute. Upon the incorporation of the West Pakistan Small Industries Corporation, the petitioner stood transferred in the said Corporation. It seems that by Ordinance No. XXIV of 1972, the West Pakistan Small Industries Corporation was dissolved and by virtue of section 5 of the said Ordinance, the petitioner's services were transferred to the Sind Small Industries and Handicrafts Development Corporation, which was incorporated under Act XXIV of 1972 and its employees are subject to the Sind Civil Servants Efficiency and Discipline Rules, 1973 (hereinafter referred to as the Rules). It further seems that the petitioner was suspended by an order, dated 13-10-1976 with immediate effect. He was charge sheeted on 1-9-1987 for the alleged irregularities committed while representing the corporation in K.D.A. for the purpose of allotments of plots in Netroville Programme Scheme. Mr. Nazar Muhammad A. Shaikh, the then Director Industries and Mineral Development Department was appointed as the Enquiry Officer. He after concluding the enquiry found that no case against the petitioner was made out. This is reflected at page 34 in the summary dated 18-12-1977 put up by the Secretary, Industries and Mineral Development Department, Government of Sind to the Chief Secretary contained in official file No. SO(I) (ISMD) 3-5/77. It was recommended by the Enquiry Officer that the petitioner should be exonerated from the charges and be re-instated and its suspension period be treated as period on duty. It was also stated that the Director Anti-Corruption was consulted who stated no objection to the aforesaid recommendation. However, it seems that the Chief Secretary, Government of Sind instead of accepting the above recommendation by his order, dated 25-1-1978 imposed on the petitioner the punishment of "censure" and also ordered that the subsistence allowance paid by the department to the petitioner during the suspension period should be recovered back from him. The petitioner being aggrieved by the above order has filed the present petition.

3. Mr. Obaidur Rehman, learned counsel for the petitioner has urged as follows:-

(i) That since the Enquiry Officer had recorded a finding to the effect that no charge of misconduct was proved against the petitioner, the Chief Secretary could not have imposed penalty of censure on the basis of the, same material.

(ii) That under rule 5 of the rules the authorised officer was the Secretary himself and not the Chief Secretary, as the latter was an appellate authority under rule 10 and, therefore, the order of censure was without jurisdiction.

4. Mr. Ibrahim Memon, learned counsel appearing for the respondent has candidly submitted that the authorised officer under rule 5 of the rules was the Secretary of the Ministry concerned, and, therefore, he was competent to pass the final order on the basis of the findings of the Enquiry Officer and not the Chief Secretary, who was the appellate authority under rule 10 against an order of the authorised officer.

5. We are also inclined to agree with Mr. Ibrahim Memon, learned A.A.-G . that the authorised officer was the competent authority td take a decision, whether the finding of the Enquiry Officer was to be accepted or whether fresh enquiry was to be ordered and the Chief Secretary was not competent as he was the appellant authority under rule 10. Furthermore, factually the authorised officer i.e. the Secretary in his above summary dated 18-12-1972 concurred with the finding of the Enquiry Officer. In this view of the matter, the order of the censure passed by the Chief Secretary against the petitioner is not sustainable in law.

We, therefore, allow the, petition and declare the above impugned order as being without lawful authority and of no legal effect. The respondents are restrained from enforcing or taking any action in pursuance thereof. The petition stands disposed of with no order as to costs.

The original two files of the departments made available, are returned to Mr. Ibrahim Memon, learned A.A.-G. appearing 'for the department for transmitting the same to the department.

M.Y.H. Petition allowed.

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