FARIDULLAH KHALIL Versus -SECRETARY, MINISTRY OF INTERIOR/NARCOTICS CONTROL DIVISION, ISLAMABAD
ABDUL RAZZAK A. THAHIM (CHAIRMAN). ‑‑‑Appellant Mr. Faridullah Khalil, by way of this appeal filed under section 4 of the Service Tribunals Act, 1973, has challenged the order of Secretary, Ministry of Interior and Narcotics Control, dated 22nd December, 1991, whereby the Secretary has rescinded the Notification No.32(12) PNCB/Ad/85, dated 13‑5‑87 passed by the Secretary, Ministry of Interior, with the result that the appellant stands dismissed from service with effect from 22‑1‑1984.
2. Briefly, the facts of the case are that the appellant Faridullah Khalil joined Pakistan Narcotics Control Board, in the year 1974 as Field Investigating Officer. He was promoted as Group Leader in the year 1976. His services were, however, terminated on 20‑3‑1980 on the ground of misconduct. The appellant preferred departmental appeal. He was reinstated in service vide order dated 21‑6‑1983 but his intervening period was treated as leave without pay. However, subsequently on the basis of the same charges, on which the services of the appellant were initially terminated, a fresh inquiry was held in which the appellant did not participate raising certain objections against the Inquiry Officer. The Inquiry Officer, however, held the proceedings ex parte and submitted his findings holding the appellant guilty of misconduct. Accordingly, a show‑cause notice dated 15‑12‑1983 was issued to the appellant. The appellant replied to the show‑cause notice but the same was not found satisfactory and he was dismissed from service by order dated 22‑1‑1984. He preferred an appeal against the order of his dismissal which was rejected by the Secretary, Ministry of Interior, by order dated 25‑11‑1984. Thereafter, he filed a review petition to the Minister for Interior which was accepted and the appellant was reinstated into service by order dated 7‑4‑1986 with all consequential benefits. His period of suspension was treated as duty and he was paid the arrears but a reference was, however, made to the Establishment, Division and the Justice Division in the matter. Both the Divisions were of the opinion that the Minister was not competent to pass any order in the matter.
3. The appellant has stated that the orders of the Minister for Interior were implemented. These were neither withdrawn nor amended but on his review petition, the appellate authority i.e. Secretary, Ministry of Interior passed an order on 25‑11‑1984, whereby two increments of the appellant were stopped and intervening period was treated as leave without pay. He was reinstated vide order dated 13‑5‑1987 and directed to report for duty to the Regional Officer, PNCB, Quetta. He was still not satisfied and made another appeal to the Chairman, PNCB for restoration of earlier order dated 7‑4‑1986, whereby he was reinstated in service with all consequential benefits and his period of suspension was also treated as duty. This appeal was processed and finally the order dated 22‑12‑1991 was passed which is impugned in this appeal.
4. We have heard the appellant who appeared in person. He has given history of chain of his grievances and submitted that the Secretary, Narcotics Control Division had no authority to rescind the order of his reinstatement passed in, the year 1987. His contention is that he served the respondent department for about four years and there was no justification to dismiss him after such a long period by revoking the earlier order.
5. Hafiz S.A. Rehman, Standing Counsel for the respondents was not present at the time of hearing, but he has relied upon PLD 1992 SC 207 (Engineer‑in‑Chief Branch through Ministry of Defence v. Jalaluddin). The representatives of the respondents M/s. Bashir Ahmad Chohan, Deputy Secretary and Zakaullah Jan, Section Officer, were also heard.
6. This case has a long history of dispute between the appellant and the department since 1980. We do no want to go into details as those orders were not challenged before the Tribunal. The point before us is that whether Secretary, Narcotics Control Division was competent to rescind the order earlier passed by his counterpart four years back. On this reliance has been placed on behalf of the respondents on there ported case cited as PLD 1992 SC 207, and their contention is that the authority which can pass an order is competent to vary or rescind that order under section 21 of the Genera Clauses Act and Their Lordships have discussed the doctrine of locus poenitentiae in that case against the judgment of the Service Tribunal. The observations of the Tribunal in this case were as under:‑‑
"Be that as it may, however, it is a well‑settled legal position that a public authority which. can pass an order, is empowered to vary, amend or rescind that order. But this power to recede can be exercised only till a decisive step to carry out that order is taken. If, however, the order has been given effect to, so that no locus poenitentiae is left, there will be no occasion for exercise of such power. Thus, the power to amend or cancel an order cannot be carried into effect if the order has been acted upon. In the present case, the pay of the appellant was duly fixed in NPS‑11 in 1976 which was being paid to him for seven years. Therefore, the departmental authorities had no valid power of receding the orders of fixation of the appellant's pay in NPS‑11, which was fully carried into effect. Consequently, we hold that the impugned action is incompetent and unjust."
This case has distinguishing features. In the earlier case referred to above, the matter related to recovery of the emoluments which an incumbent had already drawn, but in the present case, the order passed by a competent authority, i.e. the Secretary, Ministry of Interior, whereby the appellant was reinstated and remained in service till 1991, was rescinded by the Secretary, Narcotics Control Division after about four years. However, while hearing this appeal, the Establishment Division was directed to examine the point in issue. Mr. Zakaullah Jan, Section Officer, Establishment Division appeared and stated that the Secretary, Narcotics Control Division was not competent to rescind the order passed by the Secretary, Ministry of Interior. I agree with the views of the Establishment Division that authority who passes an. order in respect of the same individual should not withdraw or rescind the order because withdrawal or revocation involves a review which lies to the President and none else. Since the respondents have taken aid of Section 21 of the General Clauses Act, it is, therefore, necessary to meet this argument as this is the only point in the case in hand. In case of Dr. Mahboob Rabbani v. Government of West Pakistan, reported in PLD 1963 (W.P.) Lahore 53, it has been held that order becoming operative carried into effect cannot be withdrawn or cancelled by a subsequent notification, In the case of Shahbaz v. The Crown, reported in PLD. 1956 Federal Court 46, it has been held that the citum of locus poenitentiae, i.e. the power of receding till a decisive step is taken is left with Government if the unconditional order has not been carried into effect. The same view has been reiterated in the case of Raja Muhammad Nawaz v. Government of the Punjab, reported in 1981 SCMR 523, wherein their Lordships have discussed in detail the principle of animus revertendi or locus poenitentiae.
7. The upshot of the above discussions is that the proceedings initiated by the Pakistan Narcotics Control Board were quashed by the Minister of Interior as being ab initio void and the appellant was reinstated in service with all back benefits. In the meantime, opinion of the Establishment Division and Justice Division were solicited whether the order passed by the Minister of Interior was competent, who gave their opinion that the orders so passed were without jurisdiction. Therefore, the matter was put up before the Secretary, Ministry of Interior for further orders. The matter was examined in the Ministry of Interior and the Additional Secretary, Ministry of Interior, gave the appellant personal hearing and recommended that since the charge was not grave, he may be given some other penalty. Accordingly, the Secretary, Ministry of Interior passed the order of the appellant's reinstatement in service and imposed the penalty of withholding of two increments on cumulative basis and the intervening period was treated as leave without pay, by order dated 31‑3‑1987, and notification in this respect was issued on 13‑5‑1987.
8. In the year 1989, a Narcotics Control Division was created under the Ministry of Interior and it was headed by a full-fledged Secretary. Since the appellant was not satisfied with the aforesaid order dated 13‑5‑1987, he challenged it by making an appeal dated nil addressed to the Secretary, Narcotics Control Division for restoration of the earlier order passed by the Minister of Interior. It was the misfortune of the appellant that pandora box was again opened and the Secretary, Narcotics Control Division, without taking into consideration the legal implications passed the order whereby the earlier order dated 13‑5‑1987 of the Secretary, Ministry of Interior, was rescinded and was without jurisdiction. In case' the department was not willing to retain the appellant in their service, the Secretary, Narcotics Control Division should have issued a show‑cause notice to the appellant or should have referred the matter to the next higher authority, i.e. the President, but the Secretary ignored all the rules and regulations and passed the order dated 22‑12‑1991. It is also pertinent to note that the department confirmed the appellant along-with other staff members as Group Leader with effect from 10‑5‑1990 by office order dated 31‑5‑1990 and that could only be done after examining his suitability for his permanent retention in Government service. All this goes suitability establish that the impugned order has been passed with mala fide and the revocation of the earlier order being without jurisdiction cannot sustain. I do not agree with the learned Standing Counsel that under Section 21 of the General Clauses Act order could be rescinded. It could only be considered when order has not taken effect for which we have already referred to a number of cases.
9. For the reasons recorded above, the impugned order dated 22‑12‑1991 is set aside and the earlier order dated 13‑5‑1987 whereby the appellant's dismissal from service was converted into withholding of two increments on cumulative basis and period from 22‑1‑1984 to 13‑5‑1987 by competent authority was treated as without pay, is hereby restored. The appellant shall be reinstated into service and he shall also be entitled to all back benefits including the pay from the date the order passed by the Secretary, Ministry of Interior was rescinded by the Secretary, Narcotics Control Division, i.e'. 22‑12‑1991. No order is made for costs.
A.A./780/Sr.F Appeal accepted.