DIRECTOR GENERAL FEDERAL INVESTIGATION AGENCY (FIA), FIA HQ, ISLAMABAD Versus TAHIR AMIN

MUNIB AKHTAR, J.--- These leave petitions are all filed by the Federal Investigation Agency ( FIA or Department). Four of the leave petitions are against a common judgment of the learned Service Tribunal dated 29.10.2024 ( principal judgment ), which decided a question of law shortly to be described against the Department. The other two petitions seek leave against other judgments of the Tribunal, which simply followed and applied the reasoning of the principal judgment. Thus, there is only one question of law that requires consideration.

2.The nature of the dispute and the essence of the question now before the Court is to be found in para 6 of the principal judgment, which is as follows (typos as in original):

S.R.O.336(II)/78.- In exercise of the powers conferred by section 9 of the Federal Investigation Agency Act, 1974, the Federal Government is pleased to make the following rules, namely:-

2. Application of Government Servants (Efficiency and Discipline) Rules, 1973:- The Government Servants (Efficiency and Discipline) Rules, 1973, shall apply to the members of the Agency and in such application shall have effect as if, in the said Rules,

It is settle principle of law that where special law or rules are made for certain departments, the specific law and rules shall apply and not the general rules. In the case at hand special service rules describing the terms and conditions of service and departmental proceedings (E&D Rules 1978) were made for the members of the FIA whereby the E&D Rules 1973 were adopted. Nothing has been placed on record by respondents to show that the E&D Rules 1978 were ever repealed by the Federal Government. In the absence of repealing of the E&D Rules 1978 or any amendment therein whereby the Civil Servants (Efficiency and Discipline) Rules, 2020 were made applicable upon the members of the FIA the E&D Rules 1973 shall be applicable upon the members of the Agency. We agree with the contention of the learned counsel for the appellant that the original order dated 06.05.2021 has been wrongly passed in terms of E&D Rules, 2020.

The FIA having been created under the eponymously titled Act of 1974 ( 1974 Act ), the Federal Government in 1978 exercised the statutory powers conferred by section 9 (which empowers it to frame rules including, in particular, for the terms and conditions of service of the employees thereof) to deal with disciplinary matters and proceedings. The said rules, herein after referred to as the 1978 Rules, were framed in the manner set out in the para extracted above from the principal judgment. The Civil Servants (Efficiency and Discipline) Rules, 1973 ( 1973 Rules ) had been framed by the President under statutory powers conferred by another statute, the Civil Servants Act, 1973 ( 1973 Act ). In 2020 those rules, under that statute and (again) in exercise of powers thereby conferred, were repealed and replaced with the Civil Servants (Efficiency and Discipline) Rules, 2020 ( 2020 Rules ), framed it appears by the Prime Minister in exercise of delegated powers. Thereafter, disciplinary proceedings were taken against the present respondents as employees of the FIA under the 1974 Act in terms of the 2020 Rules. The legal objection taken was that the said rules did not apply to the respondents at all. Rather, they were governed by the 1978 Rules, which had adopted and applied the 1973 Rules in the manner set out above. Thus, the respondents contended, they had been acted against in terms of provisions that had no application to them whatsoever, and whole of the proceedings were therefore unlawful. As just seen, this legal objection was accepted by the learned Tribunal and the appeals allowed. It is in this manner that the Department has presented these leave petitions in this Court.

3.The learned AAG, in submissions which are to be complimented, submitted that the learned Tribunal had erred materially in failing to keep in mind section 8 of the General Clauses Act, 1897. This section is as follows:

(We may note in passing that subsection (2) having been omitted in 1981, the foregoing comprises the whole of the section.) The learned AAG submitted that even on a bare perusal the 2020 Rules were nothing other than a repeal and re-enactment of the 1973 Rules and therefore the reference in the 1978 Rules to the latter had to be read as a reference to the former. That the 1978 Rules applied the 1973 Rules to the employees of the FIA subject to certain modifications (as set out in the notification extracted above) was of no moment, since the changes were entirely inconsequential and at best procedural in nature. Thus, in substance, the position was that at all material times it was the 1973 Rules that had applied to the employees of the FIA by express adoption by way of the 1978 Rules. Therefore, when the 1973 Rules were repealed and replaced by the 2020 Rules, it was these rules that became applicable to the Department by virtue of section 8 of the General Clauses Act. Thus, the disciplinary proceedings and action against the present respondents were lawful. It was also submitted that in any case the respondents had not suffered any material injury, as the 1973 Rules and the 2020 Rules were substantively the same and this was certainly so for present purposes. It was therefore submitted that the learned Tribunal had erred materially in its reasoning and decision, which ought to be set aside.

4.Learned counsel for the respondents on the other hand submitted that the learned Tribunal had correctly decided the appeals. There could be no cavil with the reasoning adopted, and the legal objection had been validly sustained. Section 8 of the General Clauses Act had no application to the present facts and circumstances. The leave petitions ought to be dismissed.

5.We have considered the submissions made and the record and have seen the case law relied upon or referred to. The matter principally turns, as noted above, on whether section 8 of the General Clauses Act has any application in the present facts and circumstances. The said Act ( 1897 Act ) sets out a number of definitions and also lays down various rules of interpretation and application of general import. These are intended to deal with matters that can, and do, arise from time to time over the entirety of the statutory corpus and, rather than repeating them endlessly in each statute and to obviate unnecessary legal entanglements, general rules, applicable across the board, have been laid down. Section 8 is but one example of this.

6.When the said section is examined, the first point to emerge is that it applies only if a statute is repealed and re-enacted. It provides that if the provision of a former statute (statute A) is repealed and re-enacted, with or without modification, by another law (statute B), then references in any other enactment or in any instrument (statute X) to any provision of the former is to be taken to be a reference to the corresponding provision of the latter. We may note that the term instrument has been held by the Indian Supreme Court, in Mohan Chowdhary v. Chief Commissioner, Tripura AIR 1964 SC 173 , to include subordinate legislation. We are in agreement with that conclusion. Of course, the general rule laid down in the section applies, as expressly stated therein, only if, and insofar as, there is no different intention. In other words, the presumption is that the rule laid down is intended to apply but this may be displaced. Arguably, such displacement may be in whole or be of a nature such that the rule laid down does apply, but only partially or in modified form.

7.The essential question is, what is the purpose that section 8 is intended to serve? In our view, a clue to this is provided by the opening words of the section: statute A (the former statute ) must be repealed and re-enacted, with or without modification, by statute B. (More formally, it is a provision of statute A that is to be repealed and re-enacted. Since this is usually in the context of the statute itself being repealed and re-enacted we consider section 8 in this framework, in order to facilitate the legal analysis.) Clearly the rule laid down applies to a statute or instrument (statute X) that comes into existence after statute A, since it is only such a statute or instrument that can contain a reference to a provision thereof. But the section does not apply if statute A is simply repealed. It applies only if statute A (or, as just noted, more formally any provision thereof) is repealed and re-enacted (with or without modification) by another enactment, statute B. Then (and only then) is a reference to a provision of statute A to be treated as a reference to the corresponding provision of statute B. Once this aspect is kept in mind, the intent behind section 8 becomes clear. A repeal, at common law, effaces a statute entirely. It is as though the statute did not exist at all, ever. As is well known, it is to mitigate the rigors of this rule that, e.g., section 6 of the 1897 Act was enacted. Sections 6A and 7 thereof are also aspects of the intent to ameliorate the consequences of the common law rule relating to the effect of a repeal. If there had been no section 8 then the repeal of statute A would have put paid to any reference to any provision thereof in any other statute or instrument (statute X) notwithstanding the re-enactment of the said provision (with or without modification) in statute B. Or, it could have created other interpretative issues or confusion. The purpose of section 8 therefore seems to be this: as long as there is a provision (meaning here part of any statute) alive and subsisting on the statute book, then any reference to such a provision (whether it be part of, initially, statute A or, latterly, statute B) in any other statute or instrument (statute X) would continue to valid and extant, arguably in whatever form it appears for the time being to take. In principle the rule laid down in section 8 need not be confined to two statutes. Suppose a provision of statute A is referred to in another law (i.e., statute X). Statute A is then repealed and reenacted by statute B. The corresponding provision of the latter would be regarded as the one referred to in statute X. But suppose that statute B is itself repealed and re-enacted by statute C. Then, by an application of the rule laid down in section 8, the relevant provision of this statute would be regarded as the one referred to in statute X, and so on. Thus, there would never be a gap in the law. Provided always that the relevant provision continues to be part of some statute or other, which statute can lineally be traced to the original enactment by way of repeal and re-enactment, the reference to the provision would be continued. The intent is to preserve the continuity, without breakage or gap , of statute X since that enactment continues, throughout, to remain on the statue book. This is not to say that the purported application of section 8 may not itself create interpretative issues and questions. If so, those may require the application of the latter part of the section, i.e., of there being a different intention. But, the basic purpose that the section is intended to serve is to preserve the integrity and (it might be said) stability of statute X if it refers to the provision of some other statute, and the said provision continues to remain on the statute book in some form or another in some other statute, lineally connected to the original enactment.

8.This brings us to the second point: the focus of section 8 is always a provision of a statute (A, B, C etc) in order to maintain its continuity, without break, in statute X and, therefore, the structural integrity of the latter in the manner just explained. The focus of section however is not, and in the very nature of things cannot be, the whole of the statute (A, B, C etc), and certainly not in a manner that effaces or displaces the whole of statute X itself. For that would be the negation of the purpose that section 8 is intended to achieve. It is true (though unusual and exceptional) that sometimes the reference in statute X may be simultaneously to more than one provision of statute A, even to the extent of not specifying any particular provisions thereof. In such a situation, if statute A is repealed and re-enacted with or without modification by statute B it may be a difficult task to identify which provisions of the latter are now to be regarded as being the relevant reference(s) in statute X. But the difficulty of the exercise does not dilute or modify the essence of the point being made here: statute X (necessarily) continues to remain on the statute book. It cannot be effaced or displaced in its entirety by an operation of section 8, for then there would be no referent to which the section could apply, nor anything to which the rule could attach. In other words, section 8 cannot be construed or applied in a manner as destroys the very thing to, or in relation to, which it is to apply (statute X).

9.Once the foregoing points are kept in mind it is, in our view, abundantly clear that, with respect, section 8 can have no application to the facts and circumstances of the present case. Had it been the situation that the 1978 Rules had referred to any particular provision(s) of the 1973 Rules and applied those to the said rules, then the repeal and re-enactment of the latter by the 2020 Rules could possibly have been regarded as coming within the scope of section 8. (On the view we take it is not necessary to reach any conclusion on this point, which is therefore left open.) But that is not the case at all. The 1978 Rules adopt the whole of the 1973 Rules, subject to the amendments as laid down therein. In other words, the amended 1973 Rules are the 1978 Rules. The submission, in such circumstances, that the operation of section 8 brings in the 2020 Rules to replace the 1983 Rules would mean that the whole of the 1978 Rules are effaced, or at least displaced. But that would, for the reasons just stated, be a negation of the very purpose of the section. Rather than preserving the continuity and integrity of the 1978 Rules, the operation of the section would, if applicable, be tantamount to a repeal of the said rules themselves. It would be, to revert to the earlier analysis, as though section 8 could operate in a manner such as results in the repeal and replacement of statute X itself. That cannot be. In our view therefore, section 8 has no application at all to the present facts and circumstances.

10.Keeping in mind the view that we have taken of section 8, we intend no disrespect by not referring to the case law relied upon by learned counsel for the parties. Those cases, in the main, were a rather straightforward application (or otherwise) of section 8 and largely in the context of primary legislation. The facts and legal issues involved were somewhat removed from the point in issue here and there is therefore no need to burden this judgment by an examination of those cases.

11.The matter can be examined also from another perspective. The 1978 Rules are the exercise by the Federal Government of a statutory power conferred on it by a specific provision of a particular statute, the 1974 Act. The 1973 Rules were also the exercise by the President of a statutory power, but one conferred by a specific provision (section 25) of another statute, the 1973 Act. The subject matter of both powers was undoubtedly the same. But the legal basis of the powers remained distinct and separate. The common nature of the subject matter enabled the Federal Government to enact the 1978 Rules in a certain manner, i.e., by adopting (while adapting) the 1973 Rules. But that cannot detract from the entirely separate legal genesis of the two sets of rules. To conflate two entirely distinct legal bases simply on account of subject-matter identity (both of the legal powers themselves as well as the exercise thereof) is, with respect, to commit a fundamental legal error. The same applies, mutatis mutandis, with respect to the 2020 Rules. If at all the 1973 Rules, as applicable to, and in terms of, the 1974 Act (i.e., by way of the framing of the 1978 Rules under section 9) were to be displaced and replaced with the 2020 Rules that would have required an express exercise by the Federal Government of the statutory power conferred on it. That however was never done. At all material times, there was only one exercise of the statutory power conferred by the 1974 Act, in 1978, while the statutory power conferred by the 1973 Act was exercised twice, once in 1973 and then in 2020. Each exercise of the statutory power operated in its own field and scope. Furthermore, the legal entities exercising the powers were also separate and distinct, the Federal Government in one case and the President/Prime Minister (the latter as delegate) in the other. To conclude in the present circumstances and context that simply because the 1973 Rules were repealed and replaced by the 2020 Rules by an exercise of the statutory power conferred in relation thereto meant also that the 1978 Rules changed in their totality would, as a matter of law, mean that an exercise of the statutory power under the 1973 Act in and of itself amounted to, or at least automatically triggered, an exercise of the statutory power conferred by the 1974 Act. That clearly cannot be. For this reason also we are, with respect, unable to agree with the learned AAG that the learned Tribunal erred in the conclusion arrived at by it.

12.It remains only to consider the subsidiary submission made by the learned AAG, that an application of the 2020 Rules to the respondents did not cause any material injury to them. With respect, even if the practical effect of such application was as contended, that is not the point in issue here. It is the very legality of what was done that is under challenge, at a fundamental level. Once that point is decided against the Department the subsidiary argument cannot be sustained: the illegality effaces everything.

13.For the foregoing reasons, we affirm the conclusion arrived at by the learned Tribunal. Leave to appeal is refused and these petitions stand dismissed. Pending applications are disposed of accordingly.

UN/D-2/SC Petition dismissed.