MUHAMMAD NAWAZ Versus

JUMMENT

The petitioner who was acting as Administrator, Market Committee, Kamalia and Jaranwala, District Faisalabad, statedly accepted a public demand for establishment of a new fruit and vegetable market at Kamalia, As this is said to have displeased the then Deputy Commissioner, ht suspended the petitioner on 8th July, 1979, though the petitioner is alleged to have relinquished his charge on 20th May, 1979, on his transfer to Rawalpindi.

2. The order of suspension was extended on 26th December, 1979, up to 7th February, 1980. It was further extended as follows:

Date or order

11‑2‑1980.

29‑4‑1980.

6‑7‑1980.

Period to which extended

April 6, 1980.

July 7, 1980.

September 4, 1980.

According to the petitioner he was not intimated any further extension. He reported for duty on 4th September, 1980, at Rawalpindi, to the Director of Agriculture. As he came to know vide order dated 16th September, 1980, that the Government has further extended his suspension up to 4th December, 1980, he has challenged that order through the present petition.

3. It is contended by the learned counsel that according to rule 6 of the Punjab Civil Servants (Efficiency and Discipline) Rules, the extension could have been granted only by the authorised officer with the approval of the authority and in no other way. It is contended that according to rule 5 it is for the authority to first decide that there are sufficient grounds for proceeding against a civil servant and then direct the authorised officer to proceed against the said civil servant. The authorised officer has then to proceed to act in accordance with rule 6. If he finds that the accusation is about subversion, corruption or misconduct, he has to decide whether the civil servant should proceed on leave or be suspended from service.

4. In the first case the authorised officer can himself require of the accused civil servant to proceed on leave. In the other case he has to seek the approval of the authority. Both types of orders i. e. requiring of the civil servant to proceed on leave or his suspension from service are valid only for three months. In case they are to be continued further approval of the authority is to be sought in both the cases.

5. It will be useful to reproduce the two rules noted above to emphasise the point:‑‑

"5. If, in the opinion of the authority, there are sufficient grounds for proceeding against a civil servant, it shall direct the authorised officer to proceed against the said civil servant.

6. The following procedure shall be observed by the authorised officer when a civil servant is proceeded against under these rules:‑

(1) In case where a civil servant is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave, if due, or with the approval of the authority, suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months.

(2) . . . . . . . .

6. The important thing to be noted from the above two rules is that the authority and the authorised officer are two different entities. The authority is either the Government or an officer or authority designated by it. The authorised officer is the one who has been authorised to perform the function of an authorised officer under the rules. It is, therefore, not correct and valid to say that the two functions can be entrusted to or be performed by one person. This is quite clear not only from the definitions of the twos persons as given in rules 2(b) and 2(c) but from the wording of rules 5 and 6.

7. It appears that the Legislature intended not only to give protection to a civil servant but wanted to protect and look after the interest of the Government, so that at least two persons would apply their minds, if there was to be an extension of leave or suspension or if the civil servant was to be suspended, as both involved financial commitments to a civil servant who was not required to perform his duty. It will be noted that a civil servant remains entitled to his remunerations in case of leave and to subsistence allowance for the period of suspension and full pay for the entire period if re‑instated.

8. The learned Additional Advocate‑General relied on the case of Muhammad Sadly Khokhar's case (1981 P L C (C. S.) 123), to say that as the order of suspension is a final order the petitioner should have filed an appeal before the Service Tribunal. The rule cited has the binding force but the question involved is whether there was any order passed under the Punjab Civil Servants (Efficiency and Discipline Rules. It is to be noted that according to Article 241 of the Constitution the terms and conditions of a civil servant are to be regulated by law and all the previous rules vanish as and when that law is promulgated. Since the law has been enacted and the above rules have also been enforced, only the authorised officer with the approval of the authority could suspend. No general or plenary powers can thus be available. Further, that order was available for three months and lapsed automatically thereafter. Even the orders of suspension suffered from the same defect. The case is, therefore, covered by the Full Bench judgment of the Quetta High Court in the case of Mujeebullah Aijaz (P L D 1978 Quetta 58), as well as Muhammad Tufail (PLD 1958 SC 201). This Court can, therefore, entertain a petition.

9. Admittedly, the order of suspension had been passed by the Secretary. It was contended before me that the Secretary was also an authorised officer. If that be so he had to seek the approval of the Govern ment which would be the authority in that case. If, on the other hand, he was the authority, he ought to have sent the case under rule 5 to the authorised officer for such an action as is envisaged by rule 6. The depart mental file produced before me shows that while the suspension order became effective on 8th July, the authorised officer was appointed on 10th July, 1979, with an order to complete the inquiry within one month.

10. It further appears that no extension was sought after the first order, if any, lapsed on 7th October, 1979. The Advisor (Agriculture), approved the extension on 21st December, 1979, up to 7th February, 1980. Similarly, extension for a further period of two months was allowed by the Advisor at the request of the Secretary on 8th February. Further extension up to 5th July, 1980, was approved by the Advisor on 27th April. The last extension was approved by the Secretary up to 4th September, 1930.

11. The resume of the various orders given above shows that all the orders of extension, excepting the last up to 4th September, were approved by the Advisor. It has not been shown to me if the Advisor was the authority under the rules. Even if it be so, it is also nowhere shown on the file if the authorised officer had at any time proposed or asked for an extension, Rather, the Departmental Representative admitted that no such proposal or request was at any time made by him. It is, therefore, quite clear that neither the first order of suspension nor those extending the same were passed under or in accordance with the rules. Not only that, the first order of suspension lapsed on 7th October, 1979. That, however, could be continued for another period of three months up to 6th January, 1980. The extension allowed was, however, up to 7th February, 1980, i. e. for four months which was illegal.

12. The facts given above do go to show that neither the order of suspension nor that of the subsequent extensions were passed by a competent authority in accordance with rules. The reliance by the learned Additional Advocate‑General on the case of Mian Muhammad Hayat (P L D 1964 S C 321), is of no help to him as no power of suspension and its procedure had been provided in the Government Servants (Efficiency and Discipline) Rules, 1960. The Executive in that case thus had to rely on the general power. The terms and conditions now are being regulated by the Punjab Civil Servants Act, 1974. The rules noted above lay down a specific procedure and name the officer who can act. Thus the method of doing that is to be followed in order to clothe an action with validity.

In view of the above, it is declared that the order of the suspension and its continuations are of no legal effect. This order, however, shall be no bar if the respondents intend to suspend the petitioner from service in accordance with the rules. There will be no order as to costs.

S. Q. Petition accepted.