SHAUKAT HAYAT KHAN Versus

ORDER

N. A. CHOUDHURY (MEMBER).-- ‑Mr. Shaukat Hayat Khan, the appellant in this case, having been appointed in Grade 16 on 17‑2‑75, was posted as Deputy Assistant Director, Regional Passport Office, Kohat on 15‑2‑75. On 30‑8‑75, the Director General. Immigration and Passports inspected the Regional Office, Kohat, and noticed that certain ordinary passports for which prescribed fee of Rs. 1C0 was paid, were issued on the same day or the other day, with the result that the Government had to suffer a loss of Rs. 26,100 on account of prompt delivery against payment of ordinary fee. He, there fore, directed that the amount should be made good within ten days by the persons responsible for the alleged transaction and non‑observance of the prescribed procedure, failing which disciplinary action would be taken against them.

2. In compliance with the above directions, the appellant issued an office order dated 16‑9‑75 directing about seven official of the Regional office who were responsible for the alleged transaction, to make good loss of the Govern ment money, whereby an amount of Rs. 15,100 was recovered and deposited with the Director‑General. To avoid any such mishap, the appellant requested the Director‑General for transfer of some of the miscreants involved in the case from the Regional Office, Kohat.

3. The appellant was served with a show‑cause notice on 23‑9‑75, and was charged for issue of passports in ordinary cases before the 15th on payment of ordinary rates, with ulterior motives and for monetary considera tion, which is tantamount to misconduct and corruption. The appellant submitted his reply to the show‑cause notice on 4‑10‑75. Again another notice under section 5(iii) of the Government Servants (Efficiency & Discip line) Rules, 1973, dated 4‑12‑75 was issued to the appellant, charging him with further irregularities in the observance of prescribed procedure whereby the appellant was held guilty of inefficiency and misconduct. The appellant also submitted his detailed reply to this notice.

4. By an order 31‑1‑i6, the Director‑General, Immigration and Pass ports ordered the removal of the appellant from service, without affording any reasonable opportunity to defend himself by producing certain evidence, etc. The appellant filed a departmental appeal against this order on 25‑2‑76 which was rejected, vide order dated 22‑3‑77. Hence this appeal dated 23‑4‑77 before the Service Tribunal, for redress.

5. The learned counsel for the appellant, among other points, raised fundamental issue, that in the instant case, the charge‑sheet ,vas issued by the Director‑General. The major penalty was also awarded by the same officer exercising his powers as authority. He, therefore, argued that the function of the Authorised officer have been assumed by the authority, which is against the rules on the subject, and renders the proceedings as ab initio void and irregular.

6. The learned counsel for State was asked to produce the order of the Government to show the powers of authorised officer and authority designated for this office, for the purposes of disciplinary action. It was not possible for him to produce a copy of those orders immediately. It is not necessary to wait for the copy of the order, because clearly enough there is no scope in the rules for the combination of the functions of the Authorised Officer and authority in the one and the same person. If the Director‑General was the Authorised Officer and competent under the rules to issue a charge‑sheet and to order an enquiry, he was not competent to award major punishment of removal from service. If be was an authority, then he was not competent under the rules to issue a charge‑sheet and conduct an enquiry himself, because these are the functions of the Authorised Officer.

7. It is a settled law that an order passed by the authority, which has no jurisdiction to do so, has no force of law, and is not an order. The case suffers from violation of rules on the subject, which renders the whole pro‑1 as void and without lawful authority. Without going into the merits of the case and without considering other points raised by the learned counsel for the appellant, we accept the appeal and vacate the order of removal. The appellant shall be deemed to have been re‑instated into service with effect from the date he was removed from service, with all other con sequential benefit.

Appeal allowed