Find a Lawyer

Case No. 46/5 of 1985, decided on 30th July, 1985.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑---

‑‑‑R. 18(1) & (2)‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑ Dismissal from service‑‑Authority exercising powers beyond statutory period of 90 days‑‑Authority, if not satisfied with legality and propriety of order of Commissioner, held, could only exercise powers to satisfy itself about guilt or innocence of civil servant through further inquiry into charges‑‑Such Authority, however, could not restore order of Collector dismissing such civil servant‑‑Order of dismissal set aside and case remanded for further inquiry in circumstances.

Rana Muhammad Sarwar Khan for Appellant.

A.G. Humayun, District Attorney for Respondents.

‑‑Nazir Ahmad, Patwari Halqa Chiniot, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Secretary to Government of the Punjab, Revenue Department, Lahore/Member (Revenue Establishment), Board of Revenue, Punjab, Lahore, and the Assistant Commissioner/ Collector Chiniot, District Jhang, as respondents.

2. By virtue of this appeal he has prayed that the impugned order, dated 11‑11‑1984 of respondent No. 1 dismissing. The appellant from service restoring the order of respondent No. 2, dated 10‑10‑1982, be set aside being illegal and without lawful authority. He has prayed that the order of learned Commissioner, dated 2‑10‑1983, re‑instating the appellant with all back benefits, be restored.

3. Brief facts of the case are that the appellant while working as Patwari Halqa Chiniot was suspended from service and enquiry ordered by the A.C./Collector Chiniot, vide orders, dated 17‑6‑1982, on the allegation of having issued a wrong Fard Malkiat in collusion with Zawwar Hussain which led to the sale of a piece of land measuring 5 Kanals 13 Marlas for the second time in the name of Dost Muhammad and others. On the receipt of report of the Enquiry Officer, the learned A . C . / Collector issued a notice under rule 6(3) of the Efficiency and Discipline Rules, 1975, to the appellant to show cause as to why major penalty which may amount to dismissal from service as provided under the Rules should not be imposed on him on the basis of said allegation of issuing wrong Fard Malkiat etc. The appellant denied the allegations levelled against him and submitted his written reply to the show cause notice to the A.C. /Collector. However, the appellant was dismissed from service by the A.C. /Collector vide his order, dated 10‑10‑1982. The appellant filed appeal before the Commissioner, Faisalabad, who vide his order dated 2‑10‑1983, accepted the appeal by setting aside the order of the lower Court and ordered his re‑instatement in service with all benefits. After the said order of the Commissioner, the appellant received after a period of more than one year of the order of re‑instatement a notice, dated 24‑10‑1984, from the Secretary to Government of the Punjab, Revenue Department/ Member (Revenue Estt.), Board of Revenue, respondent No. 1, to show‑cause as to why one of the penalties. which may extend to dismissal from service, as laid down in the Rules of 1975, may not be imposed upon him. The allegations in the show‑cause notice issued earlier by A.C./Collector, the appellant submitted reply in which he refuted each and every allegation. However, learned Secretary, Government of the Punjab, Revenue Department/ Member (Rev. Establishment), was pleased to set aside the order of learned Commissioner and restored the order of dismissal so passed against the appellant by the learned Assistant Commissioner/ Collector, Chiniot. 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 at length and have perused the entire record of this case with their assistance.

5. Learned counsel' for the appellant has submitted that the impugned order has been passed under rule 18 of the Efficiency and Discipline Rules, 1975 which vested revisional powers upon the respondent No. According to learned counsel for the appellant the rule 18 does not empower the Secretary to Government of the Punjab, Revenue Department/ Member (Revenue Estt.) Board of Revenue to restore the order of dismissal of the Assistant Commissioner for the following reasons:‑

(1) he can reverse the finding and acquit the accused; or

(2) order and direct that further or fresh inquiry be made;

(3) alter the finding maintaining the penalty or with or without altering the finding reduce the penalty, or ,

(4) subject to the provisions of sub‑rule (2) enhance the penalty.

According to the learned counsel for the appellant this would clearly show that respondent No. 1 was not at all competent to pass the order of dismissal from service and at the most he could order and direct further or fresh enquiry and nothing more. It was forcefully argued that dismissal of the appellant from service by the learned Secretary Revenue was in clear violation of provisions of the said rules and as such was void ab initio without jurisdiction, without lawful authority and nullity in the eye of law. After making these legal submissions he has also taken us at length through the merits of the case.

6. On the other hand learned District Attorney has adopted the comments submitted by Mr. Irshadul Haq Kayani, Secretary Revenue, Board of Revenue, on behalf of the respondents, and has submitted that under rule 18(1) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, the Secretary to Government of Punjab, Revenue Department, called for the relevant record for the purpose of satisfying as to the correctness, legality or propriety of findings orders of the Assistant Commissioner/ Collector, Chiniot, and the Commissioner, Faisalabad Division. According to him on examination of the record, he was competent to issue a notice to the appellant and could exercise all the powers, which vested in him as appellate authority.

7. With regard to the merits of the case, it has been submitted that the case of the appellant was misjudged by the learned Commissioner, Faisalabad, whereas the learned Assistant Commissioner/ Collector, had correctly held him guilty and ordered his dismissal. He has further adopted the comments of the Assistant Commissioner/ Collector, Chiniot, as well.

8. We have given our anxious thought to the arguments advanced by the parties and without going into the merits of the case, we will only decide this case firstly on the legal issue so raised before us i. e. whether the learned Secretary Revenue/Member (Revenue Establishment) Board of Revenue, was competent to pass order so passed by him by setting aside the order of learned Commissioner and upholding the order of Assistant Commissioner/ Collector or not. In order to determine the validity of the order of the Secretary, Government of the Punjab, Revenue Department it will be useful to reproduce rule 18(2) as under:‑

"18(2)‑‑ On examining any record under this rule, the Government may direct the authority to make further inquiry into the charges of which the accused has been acquitted and discharged, and may in its discretion, exercise any of the powers conferred on an appellate authority:

Provided further that an order imposing punishment shall not be revised suo motu or otherwise after the lapse of a period of three months from the date of its communication to the accused if no appeal is preferred."

The reading of this rule brings out two legal propositions viz. , that the Secretary, Government of the Punjab, Revenue Department was only competent to call for the record of this case and to look into the propriety and legality of the order of the learned Commissioner who has set aside the order and can only direct the authority to make further inquiry into the charges on which the accused has been acquitted and discharged. The provision of sub‑rule (2) as given above, is in fact to reduce the chances of interference with an order of punishment by passing a period of 90 days in the said case. In other words, if a punishment is to be interfered, in favour of the civil servant, the same is to be interfered within a period of 90 days and not thereafter; provided no appeal is filed by the said civil servant in the said case; whereas rule 18(2) clearly lays down that when the Secretary, Government of the Punjab, Revenue Department, is not satisfied with the order of acquittal of a civil servant, he can at the most, direct further inquiry into the charges of which the said accused has been acquitted by the appellate authority. In the present case what the learned Secretary Revenue, Government of the Punjab, has done is that instead of exercising the powers so vested in him, under rule (2) has restored the order of the Assistant Commissioner/ Collector, which was an order passed by him for dismissal of the appellant, the argument of the learned District Attorney that he can also exercise all the powers of the appellate authority, which includes acceptance of appeal, dismissal of the same or modifying or setting aside the order, therefore, he was well within the powers to restore the order of the A .C . /Collector, by setting the order of Commissioner we are afraid, we do not feel in agreement with the argument of the learned District Attorney in this regard as the order of Assistant Commissioner/ Collector has merged into the order of appellate authority which was passed by the learned Commissioner, Faisalabad, who had set aside that order of dismissal of the appellant and thus there was no order in the field, which can be restored against the interest of the appellant. If he was not satisfied with the legality and propriety of the order of the Commissioner, he could only exercise powers to satisfy himself about the guilt or innocence of the appellant through a further enquiry into the charges and nothing more.

9. In view of the above, we are of the considered opinion that the order of the learned Secretary, Government of the Punjab, Revenue Department/ Member (Revenue Establishment), Board of Revenue, is liable to be set aside as being against the spirit as well as language of rule 18(2) of the E & D Rules, 1975, under which he has so exercised his power, we, therefore, set aside the impugned orders and remand the case to him, to act in accordance with Rule 18(2) by ordering further inquiry as indicated /observed above. However, there will be no order as to costs.

A. A. Case remanded.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.