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Case No. 21 of 1982, decided on 21st March, 1982.

---R. 6(1)--Punjab Housing and Physical Planning Department Delegation of Powers Rules, 1974, r. 2--Punjab Service Tribunals Act (IX of 1974), S. 4--Suspension--Appeal before Tribunal against suspension order--Limitation--Order passed/issued by authority not competent to do so--Void ab-initio--No limitation runs against void order--Suspension a continuous process--Objection that limitation started from date of order--Repelled--Grade 16 Officer of Housing and Physical Planning Department--Powers of Suspension/ Authorised Officer vesting in Director-General--Suspension order by Administrative Secretary purportedly exercising powers of Government, held, incompetent and void ab initio--Impugned order originally issued and further extended by authority not competent to do so--Service Tribunal, in circumstances, repelling objection as to limitation, accepting appeal and directing re-instatement of appellant from date of original suspension order.

Khan Yunus Khan for Appellant.

H.R. Cheema, District Attorney for Respondents.

--Ajmal Khan, District Housing Officer (under suspension) Housing and Physical Planning Department of the Government of Punjab has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 against the order bearing No. S.O. (E) H & PP.2-7/80, dated 13-1-1982 and No. SO (E) H & PP-3-3/81, dated 8-3-1981 passed by respondent No. 1.

2. By virtue of this appeal it has been prayed that the impugned order be set aside which has been passed without lawful authority and is void ab initio. It has been further prayed that appellant be re-instated in service w.e.f. 13-1-1981 and respondents Nos. 1 and 2 to be directed to pay him all emoluments for entire intervening period alongwith all service benefits.

3. Brief facts of the case are as under:-

The appellant joined the Housing and Physical Planning Department in the year 1972 in NPS 16. After the promulgation of the Civil Servants Act, 1974 and the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, the appellant became a Civil Servant. The appellant was suspended for certain irregularities but later on was re-instated with the back benefits when he filed an appeal before this Tribunal. The action of his re-instatement was taken by the respondent without contesting the case before the Tribunal. It was on 13-1-1981 that suspension order was passed against the appellant by respondent No. 1, Secretary, Housing and Physical Planning Department, on the charge that he had been signing certain documents pertaining to allotments although he had been transferred from said place. This suspension order was not renewed and his suspension continued for indefinite period. It was again on 8-2-1981 that second suspension order was passed by respondent No. 1, Secretary, Housing and Physical Planning Department pertaining to certain irregularities alleged to have been committed by the appellant in the year 1976. The appellant was not informed of the extension of second suspension order and only learnt about it when he filed this appeal before this Tribunal that the said order was extended on 4-8-1981, 20-9-1981 and 10-9-1981, all after due date but none conveyed to the appellant in the meantime, hence this appeal.

4. We have heard learned counsel for the appellant as well as the learned Deputy Attorney for the respondent and have perused the entire record of this case carefully with their assistance.

5. The learned counsel for the appellant has argued that the suspension of the appellant has not been made by the competent authority, therefore, both the orders of suspension were void and were of no legal effect. According to the learned counsel, the competent authority in the case of the appellate was Director-General, Housing and Physical Planning Department and not the Secretary, Housing and Physical Planning Department, being an appellant authority in his case. While elaborating his arguments he has submitted in anticipating the arguments of the respondent that in both the suspension orders of the appellant no senior official was jointly suspended which could have conferred the powers on the Secretary to take this action under the rules. He has also further explained that the explanation by the respondents in para. 2 of the comments was not sustainable as the record of this case would reveal that Martial Law Authorities did not include the name of the appellant while giving direction to the Secretary to suspend certain officials. In that matter the letter itself is self-explanatory and states that the appellant stood already suspended by the Secretary.

6. On the other hand the learned D.A. has raised preliminary objections that the appeal was time-barred as it was filed against the order of 1981 whereas the appeal was filed on 14-1-1982. With regards to the legal objection raised by the learned counsel for the appellant that the order was not passed by the competent authority in case of the appellant, the learned D.A. submitted that rules 6(i) of the Efficiency and Discipline Rules, 1975 did bestow powers on the authorised officer to suspend and according to the definition so laid down under the Delegation of Powers Rules 'Authorised Officer' would be the Government.

7. We have given our anxious thought to the lengthy arguments raised by both the parties and particularly to the learned counsel for the appellant who has touched the merits as well but will record our findings without adverting to the merits of the case only on legal issue (i.e., "whether Secretary, Housing and Physical Planning was competent to pass the impugned order or not)". In this respect we will refer to the notification issued by the Government of the Punjab Services, General Administration and Information Department, dated 6-8-1974. Heading of the said Notification is 'Punjab Housing and Physical Planning Department Delegation of Powers Rules, 1974. In Rule 2 of this Notification it has been laid down as under:-

"An authority empowered under these rules to impose penalties on the holder of a post shall be competent to impose such penalties on every persons holding such post whether such person was appointed by such authority or not."

In schedule of this Notification, we find under heading appointing authority and authority competent to suspend, reduce in rank, retire compulsory from service or dismissal, is the Director-General for Gazetted Officer of Grade 16 under which the category appellant falls. We have also looked into the parawise comments of the Government signed by Mr. Suhall Masood, Section Officer (E.I.) on behalf of the respondent Nos-1 and 2 in which he had admitted this proposition of law in para. 2 of his comments, as correct. In para. 2 of the appellant, the appellant has reiterated his claim that he could only be suspended by D.G. and not by Secretary in accordance with the Notification so mentioned in the earlier para. of our judgment. After admitting this proposition as asserted by the appellant an explanation has been given by the respondents that said action was taken against the appellant under the direction of the Martial Law Authorities, therefore, the action of the Secretary was justified. In order to satisfy ourselves to the validity of the claim, we have carefully perused annexure 'A' placed on the record by the respondents which has been issued from the Headquarter of M.L.A. Zone 'A' Punjab addressed to the Chief Secretary, Government of the Punjab, Lahore copy to Secretary, Government of the Punjab, Housing and Physical Planning Department, Lahore and find that the name of the appellant is not included in para 1(b) and para. 1(d) which are the only paras. directing the Secretary, Housing and Physical Planning Department to take action against the officers.

8. Therefore, the claim so made by the respondent that the appellant was suspended by the Secretary H. & P.P. Department when he was directed to do so by the M.L.A. is not substantiated.

9. We also looked into the plea of the District Attorney that as the appellant was jointly proceeded against alongwith his senior therefore, the Secretary H. & P.P. was competent to suspend him as he has to suspend senior persons alongwith him, and he would be competent to do so. The perusal of Annexure 'K.I.' placed on the record by the appellant with its Replication revealed that there is an independent order, dated 13-9-1981 regarding suspension of senior officers and the name of the appellant is not included therein. Forwarding note on this order clearly states that the appellant stood already suspended by an independent order. This would further substantiate the plea of the appellant and repel the plea of the respondent with regard to the arguments of joint suspension order passed by the Secretary, H. & P.P. Department.

10. When it has been established without any doubt that the appellant was suspended by the Secretary H. & P.P. independently and alone, we have no hesitation to hold that the Secretary was not competent in the case of appellant to suspend him. It is a settled principle of law that no limitation runs against a void order. Moreover the suspension being void ab-initio was a continuous process which in the first case of suspension was not extended as required by the rules and in the second case of suspension although extended but after due date, we are of the considered opinion that the appeal would be within time.

11. Result is that we accept the appeal and set aside the impugned order and direct that the appellant be re-instated in the service from his original date of suspension. In case the competent authority, if so advised to take any action against him, it can do so in accordance with the laws. However, there will no order as to costs.

A.E.

Appeal accepted.

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