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Case No. 293/881 of 1976, decided on 4th October, 1978.

‑‑‑R. 16‑‑Civil Service Rules. Punjab, Vol. 1, Part 1, rr.14.10 & 14.18‑‑Punjab Civil Servants (Efficiency and Discipline) Rules,1975‑‑Letter No. SOIV (S&GAD) 1‑19/67 dated 17‑2‑1969‑‑Accused exonerated by punishing authority‑‑Enquiry again on same charges cannot be held‑ Accused (Patwari) charged for misconduct and services terminated under West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960‑‑Departmental appeal accepted by Superintending rngineor and accused reinstated prior to promulgation of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑Chief Engineer subsequently on complaint to Government appointing another Enquiry Officer and forwarding findings of enquiry to competent authority and competent authority on receipt of such report passing order of dismissal of accused from service‑‑Impugned dismissal order contested on grounds (i) having once been exonerated by appellate authority no fresh enquiry could be held against accused, (ii) Chief Engineer was neither punishing nor appellate authority hence could not order an enquiry, and (iii) punishing authority was supplied with a readymade report and he simply endorsed enquiry report without application of independent mind‑‑Contentions in support of re‑opening enquiry (i) Superintending Engineer as appellate authority had set aside penalty order on technical grounds only as such Chief Engineer being head of Department could legally re-institute enquiry in view of paras. 14.10 and 14.18 of C.S.R. Punjab, Vol. I, Part I, (ii) Government could exercise powers of revision under r.18 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 because enquiry continued till second decision of competent authority taken after promulgation of said Rules in view of r. 19(2) (a) of these Rules contentions repelled‑‑Held, (i) r. 14.10 of C.S.R., Punjab, Vol. I, Part I stands superseded‑by r.16 of West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, (ii) reference to r. 19(2)(a) of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 not relevant because first penalty order had been set aside by appellate authority prior to promulgation of said Rules, (iii) reliance of competent authority on findings of fresh enquiry ordered by Chief Engineer who usurped powers of competent authority in appointing Enquiry Officer was violative of principles of natural justice and (iv) appeal having been decided by appellate authority second enquiry was no enquiry in the eye of law and consequential orders devoid of any legal foundations.

P L D 1974 Lah. 20 rel.

P L D 1966 S C 133 ref.

While the appellant was a Patwari in the Lakar Mandi Section, he was proceeded against under the Efficiency and Discipline Rules 1960 on the charges of concealment of Rs.4,759.62 from the demand statement and resultantly his services were terminated by the Executive Engineer vide his order, dated 12 5‑1972. The order aforesaid was, however, set aside in appeal by the Superintending Engineer, Section I vide his order, dated 3‑8‑1972 and the appellant was reinstated in service. Subsequently, however, it appears that some complaints were filed by some cultivator before the Minister and Secretary irrigation against the acquittal of the appellant and a report was called for from the Chief Engineer. Thereafter, it appears that the Chief Engineer appointed an Enquiry Officer (Mr. Saeed Ahmad Qureshi Executive Engineer) who submitted his enquiry report to the Chief Engineer holding the appellant guilty, where-after the Chief Engineer forwarded the said report to the competent authority (Executive Engineer Distribution Division) for disciplinary proceedings. The competent authority on the receipt of the enquiry report of Mr. Saeed Ahmad Qureshi passed the order, dated 15‑5‑1976 dismissing the appellant from service. This order was later upheld in appeal by the Superintending Engineer SCARP. I, vide his order, dated 9‑9‑1976 and the said two orders are impugned before us.

2. It is argued on behalf of the appellant that in the light of the circular instructions issued by the S&GAD, dated 17‑2‑1969 (printed on page 532 of O&M Estt. Manual Vol. I). no enquiry could be held against a Government servant on the same charges in which he was once exonerated by the punishing authority. Cases reported as P L D 1953 Lah. ( ) and PLO 1966 S C 133 are also cited in support of this proposition. It is further submitted that Chief Engineer was neither the competent authority. nor the appellate authority and had as such no authority under the Efficiency and Discipline Rules of 1960 to order an enquiry against the appellant. He also exceeded his authority in appointing and naming an enquiry officer thus usurping the powers of the competent authority. Furthermore, according to the learned counsel the competent authority was supplied with a readymade report and he simply endorsed the enquiry report without application of his independent mind. It is thus, argued that the impugned order is a nullity on this ground even. It is, therefore, argued that the entire superstructure built on these illegal orders is also nullity in the eyes of law.

The learned counsel for the respondent however submits that there is no illegality in the Chief Engineer's reopening the enquiry as he enjoyed such power as head of the department under para. 14.18 of C.S.R. Vol. I Part I. The learned counsel also submits that since the Superintending Engineer as appellate authority had in his order dated 3‑8‑1972 set aside the penal order of the Executive Engineer on technical grounds, it was no illegality in re-instituting the enquiry by removing the technical flaws. It is further argued that the enquiry originally commenced under the E&D Rules, 1960 and under rule 19 of the 1975 Rules (which came into force with effect from 12‑3‑1975) the enquiry continued under the former rules till the 2nd decision of the competent authority dated 15‑5‑1976. It is however argued that under rule 19.2(a) of the 1975 E&D Rules for the purpose of appeal Chapter IV of the 1975 Rules became applicable and under rule 18 thereof the Government was authorised to call for the record and direct the authority to make further enquiry into the charges of which the accused had been acquitted and discharged and could in its discretion exercise any of the powers conferred on the appellate authority. Thus, it is argued that there was no illegality in the reopening of the enquiry by the Chief Engineer at the behest of the Secretary of the Department.

4. We have heard the parties. In the first instance para. 14.18 of C.S.R is of no avail to the respondent as it confers the powers mentioned therein on the 'Government or the head of department' with respect to the penalties inflicted by a subordinate authority as specified in para. 14.10. Since para. 14.10 stands expressly superseded by rule 16 of the 1960 E&D Rules and the consequent provisions of para. 14.10 do not remain available under the E & D Rules, 1960 and we repel this argument of the learned counsel. In this view we are supported by PLD 1974 Lah. 20. The second argument of the learned counsel based upon rule 19(2) (a) of the E & D Rules, 1975 is also besides the point at issue as the appeal of the appellant against the penalty inflicted under the E & D Rules, 1960 by order dated 12‑5‑1972 of the XEN Distribution Division stood decided by the appellate authority on 3‑8‑1972 before the promulgation of E & D Rules, 1975 and the argument of the learned counsel as aforesaid is misconceived and untenable. Secondly, we also do not see any merits in the argument that since the appeal of the present appellant was accepted on 3‑8‑1972 by the S.E. SCARP, the enquiry could be reopened sun motu by the Chief Engineer and no rule or law in support of this proposition has been produced before us.

5. The upshot of the above discussion is that the Chief Engineer had no authority to order a fresh enquiry after the appeal had been decided by the appellate authority and he also usurped the powers of the competent authority in appointing an Enquiry Officer named by him and the reliance of the competent authority on the aforesaid Enquiry officer was violative of the principles of natural justice. The holding of a second enquiry after exoneration in an earlier enquiry was also violative of the Government instructions of 17‑2‑1969 and it is now admitted law that such instructions have the force of rules. For the B above‑said reasons the 2nd enquiry was no enquiry in the eye of law and the consequential orders passed thereon by the XEN Distribution Division dated 1‑5‑1976 and the appellate order of Superintending Engineer SCARP of 31‑5‑1976 are devoid of any legal foundations. We thus accept this appeal and set aside the impugned orders dated, 15‑5‑1976 and 31‑5‑1976. The parties are left to bear their own costs.

A.E.

Appeal accepted.

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