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Case No. 165/750 of 1984, decided on 13^th January, 1985.

(a) Punjab Service Tribunals Act (IX of 1974)-----

--S.4--Limitation---Impugned dismissal from service order passed in 1981 neither addressed to appellant nor notified in official Gazette- Appellant, in circumstances, held, entitled to appeal before Tribunal within statutory period from date of his knowledge of impugned order- Subsequent belated notification of order in 1984, held, would not cure flaw and objection as to limitation--Appeal filed with statutory period after knowledge of impugned order, held, was within limitation period.

(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975

--S. 7 (b)--Representation of accused by counsel--Departmental appeal/ review petition filed by Advocate rejected on grounds that same was not made by Advocate on behalf of accused and there was no authority signed by accused in favour of Advocate and that Advocate did not sign power of attorney with memo of appeal/review--Notice already sent by Advocate that .he was authorised by accused to represent him before appellate/review authority--Rejection of appeal/review on such grounds, in circumstances held, was not tenable and appellant employee, held, could be represented Advocate.

1983 P L C (C.S.) 498; Book of Evidence by Chief Justice Muhammad Munir; A I R 1933 Rang. 147 and 1983 P L C (C.S.) 498 rel.

---Rr. 2(c), 2(3) & 5(2)--Word 'shall' used in Rr.2(c), 2(3) a 5(2), held, would make compliance thereof mandatory--Proceedings against Trade-18 officer--No 'Authorised Officer' designated in Delegation of Powers Rules--Proceedings initiated by Administrative Secretary without specific orders of Chief Secretary/ Authority to act as Authorised Officer- -Proceedings, in circumstances, held, illegal and without jurisdiction.

(d) Civil service--

---Disciplinary action--Penalty order whether can be retrospective- Dismissal order passed with effect from previous date---Pea that penalty on charge of absence from duty can be imposed retrospectively, was repelled--Dismissal order given retrospective effect, held, was not sustainable.

Azmat Ullah Khawaja Appeal No. 323/1116 of 1980 un reported.

Muhammad Hanif Bhatti and Muhammad Aslam Virk for appellant.

A.G. Humayun, District Attorney for Respondents.

.-- Riaz Ahmad Malik

has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against the order, dated 24th March, 1981, where-under the appellant was dismissed from service, w.e.f 12.-11--.1980. He has impleaded the Governor of Punjab, Chief Secretary Government of the Punjab, Lahore and the Secretary Communication and Works Department, Lahore, as respondents.

2. By virtue of this appeal it has been prayed that dismissal order being illegal and void be set aside, and the appellant declared still continue to be in service of respondent No.l.

3. Brief facts of the case are that the appellant while posted as Executive Engineer, Highway Division, Attock sent a telegram, dated il-i1-1980 stating that slue to unavoidable family circumstances he was unable to continue in service and as such resigned with 24 hours notice, w.e.f. 11-11-1880 (A.N.) after depositing of one month's pay. He relinquished charge of the without waiting for formal acceptance. Meanwhile, it came to notice that he was involved in an enquiry in connection with certain misappropriation/embezzlement to Machinery Maintenance Highway Division, Rawalpindi, and the Anti---Corruption Committee No. 1 in its meeting held on 5-10-1980 had decided to take up departmental action against the appellant. As the Department had an inkling that the officer might leave Pakistan, efforts were made through the Home Department. Government of the Punjab to prevent the exit of the officer, but the Federal Government did not accede to the request of the Provincial Government as the ground peat forward did not justify the inclusion of the name of this individual on the exit control list and the Department advised to move the law enforcing agencies to ensure the presence of the appellant in the country during the pendency of the enquiry against him. Accordingly a reference was made to F.I.A. Lahore and the Director Intelligence Bureau, Government of Pakistan, to take necessary action to the matter. Meanwhile, Communication and WO-1-9 Department decided that before his resignation could be accepted the officer should be directed to execute a surety bond on Rs.5 stamped paper to the effect that in case any Government dues were found to be recoverable from him the same would be re-imbursed by him. A registered A.D. letter was sent to him at his home address available on record which was returned by the Postal Authorities with the remarks that the addressee had left for Saudi Arabia. Action under the Punjab Civil Servants CE&D) Rules, 1975, was initiated against him at the behest of S. 8ibtul Hassan Shah, Secretary, Communication and Works Department, Punjab. The appellant was issued a show-cause notice through press for imposition of penalty of dismissal from service. As the appellant failed to appear he was dismissed from service after getting approval from the Chief Secretary Punjab. He filed a review petition which was filed. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.

5. Learned counsel for the appellant has submitted that the dismissal order was liable to be set aside on legal ground only, therefore, he would not lay much stress on the merits of the case. It has been submitted that the respondent No.3, Secretary, Communication and Works Department, Punjab, was not an Authorised Officer to initiate disciplinary action against the appellant as such the impugned order is bad in law and is liable to be quashed. It has been further submitted that the order of the respondents was not maintainable because it was passed on 24-3-1981 and was given retrospective effect from 12-11-1980, It was vehemently urged before us that compliance of Rule 8 of the Punjab Civil Servants (E&D) Rules, 1975, was not made in this case as no personal hearing was given to the appellant by the competent authority.

6. On the other hand learned District Attorney has submitted that the Chief Secretary Punjab, was acting as Authority as well as Authorised Officer, therefore, action taken by him was 1. gal and same may be maintained. A plea of time-barred has also been taken by the learned District Attorney and has submitted that the appeal is liable to be dismissed as time-barred also. With regard to the illegality of the order being retrospective in mature, the authority has defined the same by holding that it was now a settled law in consultation with the Law Department that major penalty could be imposed with retrospective effect.

7. We have given our anxious thought to the arguments advanced by the parties and first of all will advert to the point of limitation. The examination of the record reveals that the order of dismissal was neither addressed to the appellant nor was notified in the official gazette, therefore, it was the responsibility of the Department to inform him about the order of dismissal so passed against him. The notification of his dismissal has now been produced in the Court before us but we find that the same was notified on 26-12-1984, therefore, this belated publication of notification does not cure the flaw, which has so occurred earlier in this case. We have also examined the record and do not find B that the appellant at any stage, was served with the order of dismissal, therefore, we have no hesitation to hold that the appeal was within time as the order of dismissal was not normally addressed to him. In view of the above the appellant was entitled to file the appeal within statutory tire from the date of his knowledge, therefore, we maintain the appeal as within time.

8. Learned Chief Secretary while rejecting the appeal of the appellant observed that the petition was not made by the Advocate on behalf of the affected officer (appellant), therefore, the right of appeal or review under the Efficiency and Discipline Rules, vests in a civil servant and Rule 7(b) specifically bare representation of the accused by a Counsel at all stages of the proceedings including the appeal stage. Learned Chief Secretary further observed that there was no authority on record signed by the appellant in favour of the Advocate and similarly the Advocate also failed to sign the power of attorney alongwith memo. of appeal or review. We have taken into consideration the argument of the learned counsel for the appellant on this point who has relied on the case of Aslam Shah v. Collector of Customs reported as 1983 P L C (C.S.) 498 in which this point was taken into consideration by his Lordship Justice Abdul Shakoorul Salam and it was held that Government employee had the inherent right to be represented by a lawyer as it would not be possible for a Government servant to face the superiors in all intricacies of law so involved in such cases. To the second limb of the order learned counsel for the appellant has submitted that he sent a notice on 22-12-1982 that he was authorised by his client to represent him before the learned Chief Secretary. While making a submission with regard to the observation of the learned Chief Secretary that the appellant did not authorise the counsel by signing the power of attorney in his favour, therefore, the review/revision would not be competent learned counsel for the appellant has relied on the Book of Evidence written by my Lord Chief Justice Muhammad Munir as he then was and has pointed out that under section 114, it has been commented by the author that presumption would be in favour of the counsel that he has been so authorised to ask/reply questions) on behalf of his client unless the same is proved to the contrary. He has also relied on A I R 1933 Rang. 147 where their Lordships of the Rangoon High Court had held that when a Member of the Bar writes a letter purported to have been instructed by his client, presumption would be in favour of the said lawyer unless proved to the contrary. He has relied on PLD 1972 QTA 75 in which my Lord Chief Justice Durab Patel as he then was, held that even then in such like defects, it would be irregularity. We have carefully taken into consideration the stand taken by the learned counsel for the appellant on the observation of the learned Chief Secretary and find that the same has got lot of force having support from 1983 P L C (C.S.) 498, A I R 1933 Rang. 147 and the commentary in the Evidence Act given by my Lord Chief Justice Muhammad Munir as he then was under section 114 of the said Act. In view of these authoritptive pronouncements of their Lordship of the High Court and commentary by Lordship Justice Muhammad Munir, we have no alternative but to accept the arguments of the learned counsel for the appellant in this behalf.

9. With regard to the legal issue raised before us we will refer to the advice of the Law Department as embodied in Services General Administration and Information Department's Letter No. SOS-VI-E-7/81, dated 25-6-1981. It was held as under:-

"Law Department agrees with the views of the O.S.D. contained in his note, dated 8-5-1981. Authorised Officer under the E&D Rules, 1975, means 'Government or an officer authorised to perform functions of an Authorised Officer under these Rules." As is clear from sub-rule (3) of Rule 2 of these Rules, it is not necessary tha there should be specific authorization in respect of each case. If under the Delegation of Powers Rules some specific person had been named as 'Authorised Officer' no specific authorisation was necessary in each case. The problem in this case has arisen because the Authorised Officer in this case is shown as Government. Government has to be interpreted according to the Rules of Business and that, in this case, is the M.L.A. and so if Secretary, Communication and Works Department was to be authorised to act as Authorised Officer, it was necessary that he should have been nominated as such by the M.L.A. Since this was not done, the proceedings taken are without jurisdiction."

In the context of the opinion of the Law Department we have examined the summary forwarded by Mr. Sibtul Hassan Shah, Secretary, Communication and Works Department to the learned Chief Secretary, Punjab, and find that such authorisation so referred to by the Law Department was not obtained. We have also examined the note of Mr. A.H. Aslam, Secretary, Communication and Works Department addressed to the Chief Secretary, Punjab, Lahore, in which he pointed out this violation of the mandatory E&D Rules and submitted that as specific authorization for initiation of disciplinary proceedings had not been taken the action taken in such stage would be without jurisdiction. We have also examined the order of the learned Chief Secretary wherein he has not subscribed to the proposal of the Secretary, Communication and Works (Mr. A. H. Aslam) by holding in para. 6 of his order as under:-

"Where Government stands designated as authority or Authorised Officer, the specific level at which the Government has to act as such has to be determined in the light of Rules of Business. At the time of initiation of proceedings (January, 1981) against the officer who was in Grade-18, disciplinary cases against officers of his grade were required to be 'disposed of at the level of Chief Secretary. The provision has been interpreted to mean that Chief Secretary would act as Authorised Officer as well as authority in respect of officers of Grade-18. In this case, Chief Secretary has acted as such. The most vital decisions of not conducting a formal inquiry and then dismissing the officer, were taken at his level."

With regard to the other flaw pointed out by Mr. A.H. Aslam, Secretary, Communication and Works, Punjab, that the dismissal order, dated 24-3-1981 having given retrospective effect being legally defective is E void and is also not maintainable in the Courts of law, the learned Chief Secretary, Punjab advocated as under:-

"It is, by now, settled, in consultation with Law Department that penalty on charge of absence from duty can be imposed retrospectively. The principle of prospectivity in such cases would require regularization of the period between the date of absenting from duty and the date of dismissal. Classification of the period as extraordinary leave or otherwise would negate the charge of absence."

It will be useful to mention at this stage that S. Sibtul Hasan, Secretary, Communication and Works Department at the relevant time, who initiated the proceedings against the appellant also pointed out to the Chief Secretary Punjab that violation of Rules had, been committed though inadvertently, therefore, he should be appointed as Authorised Officer to remove this legal flaw.

10. In view of the two stands one taken by Mr. A.H. Adam present Secretary, Communication and Works Department and pointing out the flaw by S. Sibtul Hassan Shah predecessor of the present Secretary, C&W Department and the learned Chief Secretary's verdict running counter to the same, we are now burdened with the obligation to decide which of the stands would be correct, keeping in view of the mandatory provision of END Rules. The definition of Authority and Authorised Officer has been given in the Punjab Civil Servants (E&D) Rules, 1975, as under:-

"2(b) Authority' means the Government or an officer or authority designated by it to exercise the powers of the authority under these rules;

(c) Authorised Officer' means an officer authorised or designated by Government to perform the functions of an Authorised Officer under these Rules;

Provided that where in the case of a civil servant no Authorised Officer has been so authorised or designated, the authority shall have power to appoint an officer to act as Authorised Officer in that case:

Provided further that in relation to a civil servant, the authority may be authorised to act as Authorised Officer."

Sub-rule (3) of Rule 2 of the E&D Rules, 1975, provides as under:-

"2(3) The various authorities empowered to award major punishments under the various Delegation of Powers Rules, shall, in respect of civil servants to whom they are competent to award major punishment, exercise the power of the authority, under these rules and the authorities empowered to award minor punishment under the said Delegation of Power Rules are in respect of the civil servants to whom they are competent to award minor punishment, authorised to exercise the powers of 'Authorised Officer under these rules.

This is to be read in conjunction with Rules 5 and 6. Rule 5 relates to the initiation of proceedings and lays down as under:-

(5) Initiation of proceedings.--(1) If, on the basis of its own knowledge or information placed before it, the authority is of the opinion that there are sufficient grounds for proceeding against a civil servant, or where in a case in which Anti Corruption Committee No.l as defined in the Punjab Anti Corruption Establishment Rules, 1974, has decided to take departmental action, it shall direct the Authorised Officer to proceed against such civil servant.

(2) Where no Authorised Officer stands designated in respect of the accused civil servant, the authority shall simultaneously appoint an officer senior in rank to the accused, to perform the functions of an Authorised Officer.

(6) Procedure to be observed by the Authorised Officer. in case where civil servant is accused of subversion, corruption or misconduct , he may be placed under suspension by authority, or with Lie prior approval of the authority, by the Authorised Officer, or he may be required by the Authorised Officer to proceed on leave.

Provided that the continuation of suspension, if ordered by the Authorised Officer, or grant of any extension in leave shall require the prior approval of the authority after every three months."

6(3) If the Authorised Officer decides that it is not necessary to have an inquiry conducted against the accused, he shall.

(a) Inform the accused forthwith, by an order in writing, of the action proposed to be taken in regard to him and the grounds of the action, and

(b) give him a reasonable opportunity of showing cause against that action within a period of fourteen days from the date of receipt of the order under clause (a).

The very reading of these rules clearly reveals that everywhere word 'shall' has been used, which would make the compliance of the mandatory provisions of the rules. Our analysis in this behalf is that if the learned Chief Secretary wanted to act as Authority as well as Authorised Officer, he was required, under the rules, to initiate the proceedings F against the appellant, a Grade-18 Officer, himself and in case he wanted that this work should be done by somebody else than himself, he was competent to appoint the Secretary, Communication and Works Department as Authorised Officer to initiate the proceedings against the appellant. In the present case what we find is that the learned Chief Secretary did not initiate the proceedings himself nor he specifically appointed the Secretary, Communication and Works Department, as Authorised Officer to initiate the said proceedings. The stand taken by the learned Chief Secretary on the summary submitted to him by Mr. A.H. Aslam, Secretary, C&W, does not seem to be in accordance with the provisions of rules, therefore, we do not find ourselves in accord with him on this legal point. The two Secretaries became conscious of legal impediment in their way and keeping in view the advice of the Law Department on the subject, mentioned in the earlier part of our judgment recommended to the learned Chief Secretary to rectify this legal flaw. This is why it was recommended that the appellant be re-instated in service and action under the E&D Rules be taken against him afresh.

11. With regard to the stand of the learned Chief Secretary that authority could dismiss the officer with retrospective effect, we do not find the same also in accord in view of our judgment delivered i the case of Azmat Ullah Khawaja Appeal No. 323/1116 of 1980, decided on G 1-3-1982 in which this issue came for consideration and was decided accordingly. As this judgment has attained finality, therefore, we hold that Mr. A.H. Aslam, Secretary C&W, was fully justified to rely on the same it was held that the rule being mandatory in nature, the authority was under legal obligation to afford him opportunity of personal hearing before deciding the case one way or the other.

12. In view of the above we proceed to accept the appeal set aside the impugned order being legally defective and declare the appellant still continue to be in service. The intervening period would be treated as leave extraordinary, without pay as the appellant has himself filed an application in which he has accepted that in case he is re-instated in service, he will not claim any pay for the period during which he remained out of service. However, it is now for the departmental authorities to proceed further with the case in the light of the observations made by us in accordance with law so laid down in this behalf, if it is found necessary, therefore, the case is remanded to the authority for the said purpose. There will be no order as to costs.

A. E. Appeal accepted.

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