Administrative Law
Reasons for growth of Administrative law
Q. What is administrative Law? Explain reasons for its. (1998) (2000/S) (2001) (2003)
1. INTRODUCTORY NOTE:
Administrative Law deals with powers and duties of administrative authorities, the manner in which the powers are exercised and the remedies which are available to the aggrieved persons. The administrative authorities also exercise judicial powers for adjudication of disputes by establishing a number of administrative tribunals.
2. DEFINITION OF Administrative LAW:
It is indeed difficult to evolve a scientific, precise and satisfactory definition of Administrative Law. Many Jurists tried to define it as follows,
I. IVOR JENNINGS:
"Administrative Law is the Law relating to the administration. It determines the organization, powers and duties of the administrative authorities."
II. K.C DAVIS:
"Administrative Law is the Law concerning the powers and procedures of administrative agencies, including especially the Law governing judicial review of administrative action."
3. NATURE OF ADMINISTRATIVE LAW:
If we see the nature of administrative Law, it adopts its validity from constitution, and adopts its powers from delegated legislation. It also possesses "quasi-legislative" and "quasi-judicial" powers.
4. SCOPE OF ADMINISTRATIVE LAW:
Administrative Law deals with powers and duties of administrative authorities, the manner in which the powers are exercised and the remedies which are available to the aggrieved persons, when those powers are abused by these authorities.
5. OBJECT OF THE STUDY OF ADMINISTRATIVE LAW:
The main object of the study of administrative law-is to finds out the way in which these administrative authorities could be kept within their limits so that the discretionary powers may not be turned into arbitrary and unanalyzed powers.
6. IMPORTANCE OF ADMINISTRATIVE LAW:
The objectives of administrative Law are to ensure legal control of administrative power and to provide protection to the individual against abuse of such power.
7. REASONS FOR GROWTH OF ADMINISTRATIVE LAW:
The following factors are responsible for the rapid growth and development of administrative Law.
I. INADEQUACY OF JUDICIAL SYSTEM:
The judicial system proved inadequate to decide and-settle all the disputes. It was slow, costly, inexpert and formalistic. Thus we cannot expect speedy disposal of even important matters. To solve these problem individual tribunals and labour courts were established which possessed the techniques and expertise to handle.
II. INADEQUATE LEGISLATIVE PROCESS:
The legislative process was also inadequate. It had no time and technique to deal with all the details. Therefore, it felt necessary to delegate some powers to administrative authorities.
III. LESS TECHNICAL and INFORMAL NATURE OF ADMIN LAW:
Administrative Law unlike legislation can be altered or modified within a short period, if it is found defective. It possesses informal and less-technical nature, Legislation is rigid in character while the administrative process is flexible.
IV. FUNCTIONAL and LESS-PROCEDURAL CHARACTER:
Administrative Law represents functional rather a theoretical legalistic approach. The administrative tribunals are not bound by the rules of evidence and procedure.
V. PREVENTIVE MEASURES TO ENFORCE LAW and TO PUNISH PEOPLES:
Administrative authorities can take preventive measures, unlike regular courts of Law. They have not to wait for parties to come before them with disputes. In many cases these preventive actions prove to be more effective and useful to punish a person who commits any branch of Law.
VI. EFFECTIVE STEPS TO ENFORCE PREVENTIVE MEASURES:
Administrative authorities can take effective steps for enforcement of the preventive measures like suspension, revocation and cancellation of Licenses etc, which are not generally available through regular courts.
VII. RADICAL CHANGE IN PHILOSOPHICAL ROLE OF STATE:
There is a radical change in the philosophy as to role played by the state. Today the expectation from the government is not only to protect its people from external aggression and internal disturbance but also to take care of its citizens. Therefore the development of administrative process and admin Law has become the cornerstone of modern political philosophy.
VIII. PEOPLE S PRESSURE TO SOLVE THEIR PROBLEMS:
Today there is a demand by the people that government must solve their problems rather than merely define their rights. This implies the growth of administrative Law and process.
IX. MAINTAINING OF INDUSTRIAL HARMONY:
Unlike past administrative, process decreased ratio of fatal dispute in industries. Administrative processes maintain industrial harmony which is essential for economic growth. This has led to the growth of administrative Law and process.
X. PHENOMENAL GROWTH IN SCIENCE and TECHNOLOGY:
Phenomenal growth in science and technology in the 21st centuries has placed a counter-balancing responsibility on a government to control. The multi-dimensional problems with varied social, economic and political ramifications cannot solve except with growth of administration and Law regulating administration.
XI. INADEQUACY OF TRADITIONAL TYPE OF COURTS AND LAW MAKING ORGANS:
The inadequacy of traditional type of courts and law making organs to give the quality and quantity of performance which is required in the twentieth century for the functioning of a welfare government is the biggest single reason which has led to the growth of administrative process and Law
XII. INABILITY OF LEGISLATURE TO PASS ALL KINDS OF LAWS:
Because of limited time, the technical nature of legislation the need for flexibility, experimentation and quick action, the traditional legislative organs cannot pass that quality and quantity of Laws which are required for the functioning of a modern government. Therefore the growth of administrative legislative process becomes inevitable.
8. OPERATION and CONTROL OF ADMINISTRATIVE AUTHORITIES:
According to Griffith and street, the main object of Administrative Law is the operation and control of Administrative Authorities must deal with following three aspects,
i. What son of power does the administration exercise?
ii. What are the limits of those powers?
iii. What are the ways in which the administration is kept within those limits?
9. FINAL REMARKS:
Administrative Law has been characterized as one of the most outstanding legal developments of the
twentieth century. The increase in administrative functions has created a vast new complex of relations between administration and the citizen.
QUESTION-NO-2
DIfference BETWEEN ADMINISTRATIVE LAW AND CONSTITUTIONAL LAW
Q. What is Administrative Law? How is it different from constitutional Law? (1998/S)
Q. What is Constitutional Law how it is differ from Administrative Law? (1999)
1. INTRODUCTORY NOTE:
The Constitution Law does not differ in essence from administrative Law. The sources of both are the same and both are concerned with the functions of government. Both are part of, which is known as "Public Law". The distinction between the two is one rather of convenience and custom than logic.
2. DEFINITION OF ADMINISTRATIVE LAW:
It is the Law relating to the control of government power and the body of general principles which govern the exercise of powers and duties by public authorities.
3. DEFINITION OF CONSTITUTIONAL LAW:
Constitution means a document having a special legal sanctity which sets out the frame work and the principal functions of the organs of the government with the state, and declares the principles by which those organs must operate.
4. POINTS OF DISTINCTION BETWEEN ADMIN LAW AND CONST LAW:
It is very difficult to draw difference between these two but some differences are listed below,
I. AS TO DEFINITION:
=> CONST LAW: is the supreme Law of the land from which all individuals derive their rights, all Laws deriving their validity and all authorities derive their functions.
=> ADMIN LAW: is the Law concerning the powers and procedures of administrative agencies, including especially the Law governing judicial review of administrative action.
II. FUNCTION IN REST AND IN MOTION:
=> CONST LAW: is concerned with the organisation and functions of GOVT at rest.
=> ADMIN LAW: on the other hand deals with that organization and functions in motion.
III. AS TO AMENDMENT OF LAW:
=> CONST LAW: It is the duty of legislature to amend the Law or the constitution.
=> ADMIN LAW: If it is stated in delegated legislation than the executive have the power to amend the Law which deals with that particular body.
IV. AS TO RULE MAKING POWER:
=> CONST LAW: It is only the legislature who has power to make rules.
=> ADMIN LAW: It is conditional whether the executive authority has been bestowed by the legislature to make rules, in delegate legislature.
V. AS TO JUDICIAL FUNCTION:
=> CONST LAW: It is only the judiciary who has judicial powers.
=> ADMIN LAW: Sometimes executive may judicial power i.e, Rent controller have power to decide the cases only relating to the rent although executive power has been vested to him.
VI. AS TO CONCERNING WITH LAW:
=> CONST LAW: Constitutional Law only deals with the Law and all the matters concerning with Law.
=> ADMIN LAW: Sometimes administrative Law concerns with those rules which are strictly not Law at Law, they are mere the description or instructions.
VII. AS TO PROCEDURAL LAW:
=> CONST LAW: Constitutional Law is the procedural Law.
=> ADMIN LAW: Administrative Law is the functional and less procedural in its application.
VIII. AS TO ENFORCEMENT OF LAW:
=> CONST LAW: Here it is the duty of executive of the state to enforce all Laws of the Land.
=> ADMIN LAW: Here the executive only have the power to enforce specifically that Law by which that body is regulated.
IX. AS TO FUNCTION OF EXECUTIVE:
=> CONST LAW: The basic function of executive in constitutional Law is to enforce or administer to Law.
=> ADMIN LAW: Here the executive may have the executive, legislature or judicial power but it is conditional that whether these powers are delegated by the legislature to him.
X. AS TO SCOPE:
=> CONST LAW: It deals with all laws, all individuals and administrative bodies of the state that it has wider scope.
=> ADMIN LAW: It deals only with law administered by authority and individual working under only that body thus its scope is limited.
XI. AS TO FUNDAMENTAL AND SUBSIDIARY LAW:
=> CONST LAW: Constitutional Law is the fundamental and supreme Law of the Land and deals with all aspects of the state.
=> ADMIN LAW: Administrative Law is the subsidiary Law and deals with only particular body.
5. FINAL REMARKS:
These two Laws have more similarities than the distinctions. Constitutional Law is the supreme Law of the Land, it governs all Laws gives rights to all individuals and gives validity to all bodies in the state but on the other hand Administrative Law only deals with those individuals who work under that authority and it administer only specific law which is made for that particular body.
QUESTION-NO-3
delegated legislation
Q. What factors are responsible for the growth of delegated legislation? (2000) (2001)
Q. Delegated powers of an executive organ of the state are inevitable? Explain. (2002)
Q. What factors responsible for the emergence and development of delegated legislation? (2003)
1. INTRODUCTORY NOTE:
With the growth of administrative process delegated legislation has assumed tremendous proportions and importance. In fact the delegated legislation is "quasi legislative" function performed by the executive of any administrative authority.
2. DEFINITION OF TERM DELEGATED LEGISLATION:
I. ACCORDING TO THE HALSBURY'S LAW OF ENGLAND:
"When an instrument of a Legislative nature is made by an authority in exercised of power, delegated or conferred by the legislature, it is called subordinate legislation."
II. ACCORDING TO JAIN and JAIN:
The term delegated legislation is used in two senses, it may mean.
a. Exercise of subordinate agency of the legislative power, delegated to it by the legislature or
b. The subsidiary rules themselves which are made by the subordinate authority' in pursuance of the power conferred by the legislature.
3. REASONS FOR GROWTH OF DELEGATED LEGISLATION:
The factors leading to the growth of delegated legislation may be particularized as follows,
I. PRESSURE UPON PARLIAMENT:
As the result of the expanding horizons of state activity, the bulk of legislation is so great that it is not possible for the legislature to devote sufficient time to discuss all matters.
II. TECHNICALITY OF SUBJECT MATTER:
Sometimes, the subject matter on which legislation is required is so technical in nature that legislature cannot be expected to legislate with perfectness or with prior consultation and assistance of experts in essential.
III. NEED OF FLEXIBILITY:
At the time of legislative enactment, it is impossible to foresee all the contingencies and difficulties that may arise. Amendment is a slow and cumbersome process but by the device of delegated legislation, the executive can meet the situation expeditiously.
IV. EXPERIMENT:
The practice of delegated legislation enables the executive to experiment. This method permits rapid utilization of experience and implementation of necessary changes in application of the provisions in the light of such experience in low level.
V. EMERGENCY:
In times of emergency, quick action is required to be taken. The legislative process is not equipped to provide for urgent solution to meet the situation. Delegated legislation is the only convenient, indeed
only possible remedy.
VI. COMPLEXITY OF MODERN ADMINISTRATION:
The complexity of modern administration and the expansion of the function of the state to the economic and social sphere have rendered it necessary to resort new forms of legislation and to give wide powers to various authorities on suitable occasions.
VII. SECRECY IN LAW MAKING PROCESS TILL ITS ENFORCEMENT:
In some situations it is necessary that the Law must not be known to anybody till it comes into operation. This Secrecy can be achieved only through administrative action because the ordinary legislative process is always open to all.
VIII. DIRECT PARTICIPATION:
Today there is growing emergence of the idea of direct participation in the structuration of Law by those who are supposed to govern by it, because indirect participation through their elected representatives more often proves myth.
IX. NEED FOR REGULATION AND CONTROL OF ECONOMIC:
A legislature is inappropriate to perform these continuous tasks of regulation which is required by state to perform with regard to private trade and business. Administrative agency must be free to formulate policy within the framework of a board legislative policy embodied in the enabling Act.
4. CLASSIFICATION OF DELEGATED LEGISLATION:
Following are the classifications of delegated legislation,
I. Title based classification
II. Discretion based classification
III. Purpose based classification
IV. Nature based classification
I. TITLE BASED CLASSIFICATION:
i. RULES:
The term rules is defined in the General Clauses Act 1807 as made in exercise of power conferred by any enactment. It may include rules of procedure or substantive Law.
ii. REGULATIONS:
With regard of administrative rules making, the term relates to the situation where power is given to fix the date for the enforcement of an Act or to grant exemptions from the Act or to fix prices.
iii. ORDERS:
This term is used to cover various forms of legislative and quasi-judicial decisions. Orders may be specific or general.
iv. BYE-LAWS:
It means rules made by semi-governmental authorities established under acts of legislatures.
v. SCHEMES:
It means where administrative agency is authorized to lay down a frame work within which authority is to proceed
II. DISCRETION BASED CLASSIFICATION:
i. SUBORDINATE LEGISLATION:
In subordinate legislation the process consists of discretionary elaboration of rules and regulations.
ii. CONDITIONAL OR CONTINGENT LEGISLATION:
It means statute can only be effective when given administrative authority finds the existence of conditions defined in the statute.
III. PURPOSE BASED CLASSIFICATION:
i. ENABLING ACT:
It means that power is delegated to the executive to appoint a day for the Act to come into operation.
ii. EXTENSION AND APPLICATION ACT:
The power may also be delegated to extend the duration of a temporary Act which is to come to an end at a given period.
iii. SUSPENDING ACTS:
Power may also be delegated to suspend the operation of any act.
iv. ALTERATION ACTS:
Power to modify has also been given to administrative authorities in cases which may be described as 'Legislation by reference'. The power of alteration is a limited power.
v. SUPPLEMENTARY ACTS:
Power is given to agencies to make rules to elaborate, supplement or help to work out some principles laid down in the act.
vi. CLASSIFYING AND FIXING STANDARDS ACTS:
Here power is given to an authority to fix standard of purity, quality or fitness for human consumption.
vii. PENALTY FOR VIOLATION ACT:
Sometimes power may be delegated to prescribe punishment for the violation of rules.
IV. NATURE BASED CLASSIFICATION:
i. NORMAL DELEGATION:
a. POSITIVE:
Where the limits of delegation are clearly defined in the enabling act.
b. NEGATIVE:
Where delegation is expressed in negative terms and does not include power to do certain things.
ii. EXCEPTIONAL DELEGATION:
a. Power to legislate on matter principle.
b. Power to amend acts of Parliament.
5. LIMITATION ON DELEGATED LEGISLATION:
Following are the limitation on the delegated legislation,
I. ESSENTIAL LEGISLATIVE FUNCTION:
Essential legislative function cannot be delegated legislation.
II. REPEAL OF LAW:
Power to repeal of Law cannot be delegated to any agency.
III. MODIFICATION IN IMPORTANT ASPECTS:
Modification in Important aspects cannot be delegated to anybody or authority.
IV. RETROSPECTIVE OPERATION:
Parliament can only pass any Law prospectively or retrospectively subject to the provision of constitution but not any authority.
V. FUTURE ACT:
Legislature cannot delegate the power by which the executive can adopt the Laws which may be passed in future as this is essentially a legislature function.
VI. OUSTER OF JURISDICTION OF COURTS:
Legislature cannot empower the executive by which the jurisdiction of courts may oust, this is a pure legislative function.
6. CONTROL OF DELEGATED LEGISLATION:
Delegated legislation can be controlled by following ways,
I. JUDICIAL CONTROL OF DELEGATED LEGISLATION:
Delegated legislation may be assailed on any one of the following grounds,
i. That it is ultra-wires the enabling act.
ii. That it is ultra-wires the constitution.
iii. That it is not made in accordance within the procedure prescribed by Law
II. LEGISLATIVE CONTROL OF DELEGATED LEGISLATION:
Every delegate is subject to the authority and control of the principal. Parliamentary control over delegated legislation should be living continuity as a constitutional necessity. Here are the modes of parliamentary control,
i. DIRECT GENERAL CONTROL:
Direct but general control over delegated legislation is exercised,
a. Through debate on the Act which contains delegation in parliament,
b. Through questions and notices.
c. Through moving resolutions and notices in the House.
d. Through private member's bill seeking modifications.
ii. DIRECT SPECIAL CONTROL:
This control mechanism is exercised through the technique of “laying” on the table of the House rules and regulations framed by the administrative authority.
7. APPLICATION OF DELEGATED LEGISLATION IN DIFFERENT COUNTRIES:
I. DELEGATED LEGISLATION IN USA:
i. IN THEORY:
Under the constitution of USA, delegated legislation is not accepted in theory because of two doctrines.
a. THE DOCTRINE OF SEPARATION OF POWER:
This doctrine is accepted under the constitution of the USA in Article 1, by which three organs of state are separated and cannot interfere with each other.
b. DELEGATES NON PROTEST DELEGATION:
"A delegate cannot further delegate"
As the congress gets power from people and it cannot further delegate its legislative power to the executive.
ii. IN PRACTICE:
The delegation in favour of the president was therefore impermissible and the act was unconstitutional.
II. DELEGATED LEGISLATION IN UK:
Doctrine of "Sovereignty of parliament" which implies that parliament has unlimited power to make any Laws and the courts cannot question a parliamentary Law on any ground. The result of theory is that parliament can delegate any amount of legislative power to an administrative agency.
III. IN PAKISTAN and INDIA:
In Pakistan and India it has been observed in practice that the legislature can delegate its legislative power subject to its laying down the policy. The legislature must lay down the legal principles and provide standards for the guidance of the delegate to promulgate delegated legislation.
8. FINAL REMARKS:
As being a written constitution, there is no any provision stating the justification of delegated legislation although this principle is accepted in practice. This power should not be given absolutely as every power tends to corrupt absolute power tends to corrupt absolutely.
QUESTION-NO-4
Rule of Law
Q. What do you understand by the principle of rule of Law? (1998) (1997)
1. INTRODUCTORY NOTE:
One of the basic principles of English Constitution is the rule of Law. This doctrine is accepted in the constitution of USA and also in PAK under Article 4 and 25, the term rule of Law is used as rule according to Law.
2. DEFINITION OF RULE OF LAW:
The expression rule of Law connotes the undisputed supremacy of Law.
I. DEFINED BY DICEY:
Men are ailed by the Law and by the Law alone, a man with us may be punished for a breach of Law but cannot be punished for nothing else.
II. DEFINED BY BLACK STONE:
That the decisions should be made by the application of known principles or Laws without the intervention of discretion in their application.
3. HISTORICAL PERSPECTIVE:
Since the days of Greek philosopher, Law has been considered as the primary means of subjecting government's power to control,
I. ORIGIN OF DOCTRINE:
The term is of old origin and is derived from French phrase,
“La principe de legalite” (The principle of legality)
It refers to a government based on principles of Law and not of men.
=> ARISTOTLE ARGUES THAT:
GOVT, by Laws was superior to GOVT, by men.
II. ORIGINATOR OF DOCTRINE:
=> SIR EDWARD COKE:
The chief justice in reign of James was the originator of this concept. In a battle against the king, he maintained successfully that the king should be under God and the Law, and be established supremacy of Law against the executive.
III. DIFFERENT NAMES OF THE DOCTRINE IN DIFFERENT ERAS:
The rule of Law was widely accepted and practicable in the past but people changed its name according to this own approach,
=> ROMAN'S APPROACH:
Romans called it “Jus Naturale”.
=> MEDIAEVALISTS APPROACH:
They called rule of Laws as "Law of God".
=> HOBBES, LOCKE and ROUSSUEAL:
They called rule of Law as "Social Contract" or the “Natural Law”.
=> IN MODERN WORLD:
In modern world we called this doctrine as “Rule of Law”.
4. DIFFERENT ASPECTS OF RULE OF LAW:
The term rule of Law covers different aspects of Law and enables them to be followed properly. Here are the different aspects of rule of Law,
I. Individual rights must not be infringed.
II. Law which rules the land must be supreme and not the arbitrary will of the rule.
III. Offence must be punished under the Law.
IV. All are subject to Law.
V. Government must under the Law.
VI. Reflects supremacy of Parliament.
5. DICEY'S EXPOSITION OF RULE OF LAW:
The exposition was first published in 1885 in conclusion to the "Law of Constitution". Dicey gave three principles of this doctrine,
I. Absolute supremacy of Law.
II. Equality before Law.
III. Predominance of Legal spirit.
I. ABSOLUTE SUPREMACY OF LAW:
i. ABSENCE OF ARBITRARY POWER:
Explaining the first principle Dicey states that rule of law means absolute supremacy or predominance of regular Law as Opposed to the influence of arbitrary power or wide discretionary power. . .
ii. FORM OF GOVT:
The rule of Law requires that the government should be subject to the Law rather than the Law subject to the GOVT.
iii. PUNISHMENT ACCORDING TO LAW:
No man can be punished, arrested or be lawfully made to suffer in body or goods except by due process of Law.
iv. PRINCIPLE OF NATURAL JUSTICE:
"Audi Alteram Partem" it is a basic principle of natural justice that no one should be condemned unheard. Rule of Law also lays stress that the opportunity of being heard should be given to all.
II. EQUALITY BEFORE LAW:
Dicey states that there must be equality before the Law or the equal subjection of all classes to the ordinary Law of Land.
i. ONE LAW FOR ALL:
Dicey says that there should impartiality of Law, and there must be one Law for all and treat everyone equality.
III. PREDOMINANCE OF LEGAL SPIRIT OR JUDICIAL DECISION:
Dicey states that the general principles of the constitution are the result of judicial decisions of the courts of England. He emphasized the role of the courts as guarantors of Liberty and suggested that the right would be secured more adequately if they were enforceable in the courts of Law than by mere declaration in the documents.
6. CHARACTERISTICS OF THE TERM RULE OF LAW:
Following are the different characteristics of this term,
I. Fair and impartial trial of everyone should be made.
II. Procedure adopted by either by courts or by administrative authorities should be fair.
III. No one can be judge in his own cause.
IV. No one can be condemned unheard.
7. CRITICISM ON DICEY'S EXPOSITION:
The doctrine of rule of Law expounded by dicey was never fully accepted in England even his days. Therefore the criticism was made on Dicey's exposition as under,
I. Immunity of King from being sued.
II. Protection to GOVT officials from being sued.
II. Immunity to foreign rulers and diplomats.
IV. Growth of administrative justice.
V. Crown to terminate any contract of services.
VI. King can do no wrong.
8. RULE OF LAW AND ITS IMPLICATIONS TODAY:
The implication of this term has been classified in three broad categories,
I. LAW AND ORDER BETTER THAN ANARCHY:
Rule of Law expresses preference for Law and order within a community rather than anarchy, warfare and constant strife.
II. GOVT ACCORDING TO LAW:
The rule of Law expression a legal doctrine of fundamental importance, namely that GOVT, must be conducted according to Law, a general principle of Law which is declared and applied by judicial decision. -
III. RULE OF LAW AS BROAD POLITICAL DOCTRINE:
The rule of Law refers to a body of political opinion about what the detailed rules of Law should provide in matters both of substance and procedure.
9. INTERNATIONAL MOVES TO PROMOTE RULE OF LAW:
I. European conventions on Human Rights led to recognition of rule of Law as common heritage.
II. Universal Declaration of Human Rights, adopted by the United Nations in 1948 has recognized this principle.
III. Golder's case 1975 led to reaffirmation of rule of Law as a dynamic concept.
IV. At New Delhi in 1959, lawyers from 53 countries formally declared that the rule of Law is a dynamic concept.
10. ADMINISTRATIVE AUTHORITIES AND RULE OF LAW:
The doctrine of rule of Law has been proved to be an effective instrument in controlling the administrative authorities within their limits. It served as a Kina of touchstone to judge and test the administrative action.
11. MODERN CONCEPT OF RULE OF LAW:
Today Dicey's theory of rule of Law cannot be accepted in its totality. DAVIS gives seven principal meanings of the term rules of law,
I. Law and order.
II. Fixed rules.
III. Elimination of discretion.
IV. Due process of Law.
V. Natural Laws and Principles of natural justice.
VI. Preference for judges and ordinary courts of Law to executive authorities and administrative tribunals.
VII. Judicial review on administrative action.
12. RULE OF LAW UNDER PAK CONSTITUTION 1973:
Dicey’s rule of Law has been adopted and incorporated in the constitution of Pakistan.
I. IN PREAMBLE:
The principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed.
II. RIGHT OF INDIVIDUALS TO BE DEALT WITH IN ACCORDANCE WITH LAW:
Protection by Law is right of every citizen and of every other person for the time being within Pakistan.
=> No person shall be prevented from doing that which is not prohibited by Law.
=> No-action detrimental to the life, liberty, body or reputation shall be taken except in accordance with Law.
III. EQUALITY OF CITIZEN U/ART 25:
All citizens are equal before Law and entitled to equal protection.
13. FINAL REMARKS:
The rule of Law expresses a preference for Law and order within a community rather than anarchy and warfare. It has very functional aspect in the modern world. It also works against the abuse of administrative authorities.
QUESTION-NO-5
separation of powers
Q. What do you understand by the term separation of powers? (1998/S) (2000)
1. INTRODUCTORY NOTE:
There are three main categories of Governmental organs Legislature, Executive and judiciary. According to the Theory of Separation of Powers, these three organs and functions of the government must be in
a free democracy always be kept separate and be exercised by separate organs of the government.
2. MEANING OF DOCTRINE OF SEPARATION OF POWER:
I. UNDER LEGAL SYSTEM:
Under legal system the Doctrine of SOP is a doctrine under which the legislature, executive and judicial branches of government are not to infringe and interfere upon each other's.
II. DEFINED BY BLACKSTONE:
Under the constitutional doctrine of "separation of powers", one branch is not permitted to encroach on the domain or exercise the powers of another branch.
III. EXPOSITION MADE BY WADE AND PHILLIPS:
According to the Wade and Phillips, separation of Powers may mean three different things.
i. EACH PERSON FOR EACH ORGAN:
That same person should not form part of more than one of the three organs of GOVT.
ii. NO INTERFERENCE WITH EACH OTHER:
That one organ of the GOVT should not control or interfere with the exercise of its function by another organ, e.g, the judiciary should be independent of the executive.
iii. SAME FUNCTIONS SHOULD NOT BE EXERCISE BY DIFFERENT ORGANS:
The one organ of the government should not exercise the functions of another e.g, the ministers should not have legislative powers.
3. EVOLUTION OF DOCTRINE OF SEPARATION OF POWER:
=> FIRST PERIOD:
Its origin is traceable to Ploto and Aristotle and ancient writers have recognized the three fold distribution of governmental functions.
=> SECOND PERIOD:
In the 16th and 17th century, French philosopher John Badin and British politician John Locke respectively had expressed their views about the theory of Separation of Power.
=> JOHN LOCKE:
In his book "Two treaties on civil government" pleaded, legislation and execution of Laws must be in distinct hands asserting legislative supremacy.
=> THIRD PERIOD AND DEVELOPMENT OF DOCTRINE:
Montesquieu a French thinker of 18th century was first writer formulated this doctrine systematically.
4. MONTESQUIEu'S DOCTRINE:
In his book spirit of Laws written in 1748 he said,
I. There be no liberty' when the legislative and executive powers are united in same person or body, because then senate shall enact tyrannical laws, to execute them in tyrannical manner.
II. There is no liberty if judiciary be not separated from the legislative, otherwise the life and liberty of the subject would be exposed to arbitrary control and then judge would be legislator.
III. Where judicial power joined with executive powers' the judge might' behave with violence and oppression.
5. JAMES MADISON VIEW ON MONTESQUIEU THEORY:
In a brilliant Article in the federalists, Madison the famous American politicians demonstrated that the celebrated Montesquiev meant only that these could be liberty if the whole power of one department is exercised by the same hands that possess the whole power of another department
6. OBJECT AND RATIONALE BEHIND THE DOCTRINE:
=> ACCORDING TO LORD ACTON:
“Every Power tends to corrupt and absolute power tends to corrupt absolutely”.
“Wider the power, the greater the need for the restraint in its exercise”.
7. EFFECT OF DOCTRINE:
The doctrine of separation of power as propounded by Montesquiev had tremendous impact on development of administrative Law and functioning of Government.
=> As Blackstone observed:
If two Legislative, the executive and the judicial function were given to one man, there was no end of personal liberty.
8. CRITICISM:
Though theoretically the doctrine of Separation of Power was very sound, yet the following criticism has been made,
I. HISTORICAL MISCONCEPTION:
Historically speaking the doctrine was incorrect. There was no separation of power, under the British constitution. At no point of time this doctrine was adopted therein.
II. WRONG BASIS:
The doctrine is based on the assumption that three functions of the Government are divisible from one another but in fact, it is not so. The truth is that each of the three functions of the Government contains elements of the other two and that any rigid attempt to define and separate those functions must either fail or cause serious inefficiency in government.
III. NOT ENTIRELY ACCEPTABLE:
It is impossible to take certain actions of this doctrine is accepted in its entirely, i.e, if the legislature can only legislate than it cannot punish any one committing a breach of its privilege, nor could the courts frame rules of procedure to be adopted by them for the disposal of cases.
IV. MAKE MODERN GOVERNMENT IMPOSSIBLE:
The modern state is a welfare state and it has to solve many complex socio-economic problems and in this state of affairs, it is not possible to stick to this doctrine.
V. ORGANIC SEPARATION:
According to Basic, in modern practice the theory of separation of power means an organic separation and distinction must be drawn between essential and incidental powers and that one organ of the Government cannot encroach upon the essential functions belonging to another organ but may exercise same incidental functions thereof.
VI. MISCONCEPTION OF OBJECT:
The fundamental object of Separation of power was the liberty and freedom of individual but that cannot be achieved by mechanical division of functions and powers. In England theory of separation of powers is not accepted and yet it is known for the protection of individual liberty.
9. DOCTRINE OF SEPARATION OF POWER IN PRACTICE:
I. IN USA:
The doctrine of separation of power has been accepted and strictly adopted by the founding fathers of the constitution of USA. Doctrine is impliedly mentioned in first 3 Articles.
=> ACCORDING TO PROF OGG:
No feature of American GOVT, national, state and often local is more characteristic than the separation of power, confined with precautionary check and balances.
=> SYSTEM OF CHECKS AND BALANCE:
In USA constitution, there is a system of checks and balances mentioned in first 3 Articles in which power vested in one organ of the Government cannot be exercised by any other organ.
In theory no one organ of the Government can trench upon oi encroach upon the power of the other.
II. IN ENGLAND:
Although Montesquieu has based his doctrine taking into account the British constitution, but as matter of fad at no point of time was this doctrine accepted in its strict sense in England. In the contrary in reality, theory of integration of powers has been adopted in England.
III. IN PAKISTAN:
In Pakistan the doctrine of Separation of power has not entirely accepted as the USA has and we don't
have merger of powers as England has adopted. In preamble and under Article 175 of constitution it is clearly stated that judiciary must be independent from legislation and executive.
10. FINAL REMARKS:
Thus at the whole the doctrine of separation of power in the strict sense in undesirable and impracticable and therefore, it is not fully accepted in any country. Nevertheless its value lies in the emphasis on those checks and balances which are necessary to prevent an abuse of enormous powers of administrative authorities.
QUESTION-NO-6
NATURAL JUSTICE
Q. Short Note on Audi Alteram Partum. (1990) (2001)
Q. Explain the rule that nobody can be condemned unheard. (1998/S)
Q. What do you understand by the Law of Natural justice? If this Law is not followed by an authority exercising power under a statute what consequence will ensue? (2000-2002)
Q. "No one should be judge in his own cause" please comment. (2000/S)
1. INTRODUCTORY NOTE:
It is beyond doubt that there are certain canons of judicial conduct to which all tribunals and persons who have to give judicial or quasi-judicial decision, ought to conform. The observance of principles is demanded by our rational sense of justice.
2. DEFINITION:
Natural justice is known as substantial justice, fundamental justice, universal justice or fair play in action.
=> DEFINED BY SMITH:
The term “Natural justice” expresses the close relationship between the common Law and moral principles describing what is right and what is wrong.
3. HISTORICAL GROWTH:
The expression natural justice was largely used in the philosophical speculation of the Antomine age, and was intended to denote a system of Rules and principles for the guidance of human conduct.
=> DARK AGES:
In dark ages the expression Natural Law acquired a. theological base and the fathers of the church held the belief that it was the function of the church to bring about the best of human laws to Christian principles.
=> ENGLISH PERIOD:
The origin and development of equity in England owed much to Natural Law.
I. DEVELOPMENT OF NATURAL JUSTICE:
The rules of Natural justice have developed with the growth of civilization and the content thereof in often considered as a proper measure of the level of the civilization and the rule of Law prevailing in the community.
4. OBJECT OF NATURAL JUSTICE:
Principles of Natural justice are a great humanizing principle intended to invest Law with fairness to secure justice and to prevent miscarriage of justice.
5. NATURAL JUSTICE and STATUTORY PROVISION:
Generally no provision is found in any statute for the observance of the principles of Natural justice by the adjudicating authorities but the adjudicating authority is bound to follow principles of Natural Justice.
6. WHO CAN OBSERVE THE PRINCIPLES OF NATURAL JUSTICE:
It is settled Law and there is no dispute that the principles of Natural justice are binding on all the courts, judicial bodies and quasi-judicial authorities.
I. WHETHER ADMINISTRATIVE AUTHORITIES ARE BOUND TO OBSERVE PRINCIPLE OF NATURAL JUSTICE:
=> ACCORDING TO WADE:
The principles of Natural justice are applicable to almost the whole range of administrative powers.
7. PRINCIPLES OF NATURAL JUSTICE:
Rules of Natural justice to be read as part and parcel of every station, it is well settled that the principles of natural justice would be void and without jurisdiction or made fide if any violation of those principle is made.
=> EX PRINCIPLES OF NATURAL JUSTICE UNDER TRADITIONAL ENGLISH LAW:
The traditional English Law recognizes two principles of Natural Justice,
I. NEMO DEBET ESSE JUDEX IN PROPIA CAUSA:
"No man shall be a judge in his own cause".
II. AUDI ALTERAM PARTEM:
"Hear to other side"
8. BIAS OR INTEREST OR NO MAN SHALL BE A JUDGE IN HIS OWN CAUSE:
The first principle of natural justice consists of the rule against bias or interest and is based upon three maximums of common Law,
i. No one shall be a judge in his own cause
ii. Justice should not only be done, but manifestly and undoubtedly be seen to be done.
iii. Judges, like ceaser's wife should be above suspicion.
I. MEANING:
"Anything which tends or may be regarded as tending to cause such a person to decide otherwise than evidence must be held to be biased.
II. APPLICATION:
This principle applies not only to judicial proceedings but also to quasi-judicial as well as administrative proceedings.
III. BIAS EXPLAINED:
i. The judge should be impartial and neutral and must be free from bias.
ii. He is supposed to be indifferent to the parties to controversy.
iii. He cannot act as a judge of a cause in which he has some interest.
iv. He must be in a position to act judicially and to decide the matter objectively.
v. It is well settled principle that justice should not only be done but manifestly and undoubtedly be seen to be done.
IV. TYPES OF BIAS:
Following are the types of bias,
i. Pecuniary bias
ii. Personal bias
iii. Bias as to subject matter
iv. Preconceived Notion Bias
i. PECUNIARY BIAS:
As regard to pecuniary interest, the least pecuniary interest in the subject matter of the litigation will disqualify any person from acting as a judge.
=> ACCORDING TO GRIFFITH BY STREET:
"A pecuniary interest, however, slight, will disqualify even though it is not proved that the decision is in any way affected.
ii. PERSONAL BIAS:
Personal bias arises from a certain relationship equation between the deciding authority and the parties. Here a judge may be a relative, friend or business associate of a party. He may have some personal grudge, annuity or grievance or professional rivalry against him.
=> ACCORDING TO LORD DENNING:
Justice must be rooted in confidence and confidence is destroyed when right minded people go away
thinking.
iii. BIAS AS TO SUBJECT MATTER:
Bias may arise because the adjudicator may have a general interest in the subject matter in dispute because of his association as a member or otherwise with a private body. Bias as to subject matter may be classified as following categories,
a. PARTIALITY OR CONNECTION WITH THE ISSUES:
The judge may be called partial as he is connected with the issues of the case either directly or indirectly
b. DEPARTMENTAL BIAS:
In many adjudicatory proceedings before bureaucratic authorities, one of the parties is usually the administration itself, therefore an authority may have official bias towards the department to which it is attached.
c. ACTING UNDER DICTATION:
Some time, the adjudicating authority may dispose of a case under dictation from a superior authority in are sense, it may indicate partiality towards the issues in controversy in other sense it could be said that there was not hearing at all. This partiality arises out of the command of the superior authority.
iv. PRECONCEIVED NOTION BIAS:
Bias arising out of the preconceived notion is a very delicate problem of administrative Law. On the one hand no judge as human being is expected to sit as a blank sheet of paper, on the other hand preconceived notion would vitiate a fair trial.
9. AUDI ALTERAM PARTEM:
"Audi Alteram Partem'" is the basic principle of Natural justice. It simply means hear the other side that is no man should be condemned, punished or deprived of property in any judicial or quasi-judicial proceedings unless he has an opportunity of being heard.
I. MEANING OF MAXIM:
It means hear the other side, no man should be condemned unheard or both the sides must be heard before passing any order.
II. APPLICABILITY OF MAXIM:
It was held in the case that:
=> COMMISSIONER OF INCOME TAX V/S FAZLUR REHMAN PLD 1969 SC 4/0:
This principle is not confined only to the court and judicial proceedings but extend to all proceedings by whosoever, which may affect the persons or property or other rights of the parties concerned in dispute and the maxim will apply with no less force to proceedings which affect liability to pay a tax or duty.
III. ELEMENTS OF MAXIM:
This maxim includes two elements,
A. Notice
B. Hearing
A. NOTICE:
Before any action is taken, the affected party must be given a notice to show cause against the proposed action and seek his explanation. Any order passed without giving notice is against the principles of Natural justice,
i. NOTICE MUST BE PROPERLY SERVED:
A notice to be valid and effective must be property served on the concerned person.
ii. SUFFICIENT TIME IS GIVEN:
A sufficient time must be given to enable the individuals to prepare his case.
iii. NOTICE MUST BE ADEQUATE:
A notice which merely repeats the statutory language without giving any facts and other particular is insufficient and inadequate.
iv. CLEAR AND UNAMBIGUOUS:
The grounds given in the notice on which the action is proposed to be taken should be clear, specific and unambiguous.
v. MODES OF SERVING NOTICE:
Following are the modes of serving notice,
a. Delivering to him by hand.
b. Sending it to him by registered post, on failure of both above grounds.
c. Affixing it on the outer door of the residence.
B. HEARING:
The second requirement is that, the person concerned must be given an opportunity of being heard before any adverse action is taken against him and no one should be condemned unheard.
i. CONDITIONS OF HEARING:
A hearing to be fair must fulfill following conditions,
a. RECEIVING EVIDENCE PRODUCED BY INDIVIDUAL:
The adjudicated authority is obligated to give to the person affected, right to produce all the evidence in support of his case
b. DISCLOSURE OF MATERIALS TO THE PARTY:
The adjudicated authority should disclose all information, evidence or material which the authority wishes to use against the individual concerned in arriving at its decision.
c. OPPORTUNITY TO CROSS-EXAMINE THE WITNESSES:
The adjudicating authority should give to the individual concerned an opportunity to rebut such information or materials or witnesses used against him.
ii. OPPORTUNITY TO SHOW CAUSE MUST BE PROVIDED:
In pursuance of the maxim an actual opportunity should be afforded to the person concerned.
iii. NO EVIDENCE SHOULD BE RECORDED AT THE BACK OF OTHER PARTY:
The ex-party evidence taken in the absence of the other party violates the principle of fair hearing.
IV. APPLICABILITY OF MAXIM IN ISLAMIC LAW:
This maxim also applies in Islamic Law. A hadith of Holy Prophet (PBUH) is quoted as,
“Once he appointed Hazrat Ali in his early youth, the judgeship of Yemen. Hazrat Ali pointed to his youth, inexperience and confessed his lack of acquaintanceship with a responsible undertaking. The Holy Prophet replied God with guide you and give you strength in your pronouncements, if in deciding issues between partners you will not decide in favour of one such party without hearing the other side Miskat (Babul Qaza)”.
i. DOCTRINE IS DEEPLY EMBODIED IN SHARIAT:
The doctrine is deeply embodied in the "shanat" of Islam and this is very basis of justice.
=> It would be grievous mistake to think that this principle is of purely Hellemistic, Roman or continental origin.
V. EXCLUSION OR EXEMPTION OF PRINCIPLE OF NATURAL JUSTICE:
There are certain situations which demand the exclusion of the rules of Natural justice by reason of diverse factors here are some examples of exclusion,
i. STATUTORY EXCLUSION:
If a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of Natural justice. Then the court cannot ignore the mandate of the legislature or the statutory authority.
ii. LEGISLATIVE ACTS:
Legislative acts, plenary (of an assembly) or subordinate legislation is also not subject to the rules of Natural justice. Thus before enacting Law regarding imposing tax^ fixing price etc if is not necessary to issue notice and afford hearing.
iii. NECESSITY:
The doctrine of necessity applies not only judicial matters but also to quasi-judicial as well as administrative matters.
iv. CONFIDENTIAL INQUIRIES:
The observance of the principles of natural justice may be dispensed with where the enquiry is of confidential nature and disclosure of information may defeat the object of the statute.
v. PREVENTIVE ACTION:
Principles of Natural justice may be excluded if its effect would vitiate the action sought to be taken or would defeat and paralyze the administration of the Law.
vi. EMERGENCY:
In exceptional cases of urgency and emergency, where prompt and preventive action is required to be taken, the principles of Natural justice need not to be compiled with.
10. EFFECT OF NON OBSERVANCE OF PRINCIPLE OF NATURAL JUSTICE:
=> GENERAL VIEW:
The courts are unanimous that a decision rendered in violation of the rule against bias is merely voidable and not void.
I. IN ENGLAND:
There has been difference of opinion on this point,
i. In some cases the courts have taken the view that the non-compliance of principles of Natural justice would not vitiate the order and the order cannot be said void but merely voidable.
ii. In other cases the courts have taken the view that non observance of the principles of Natural justice renders the order null and void.
II. IN PAKISTAN:
It is clearly stated in the following cases,
=> Inam Din v/s Province of Punjab 1992 CLC 529
HELD:
Where petitioners are condemned unheard while passing orders against their interest, such orders would be hit by principle of Natural justice and the order is null and void, have no more any effect.
11. FINAL REMARKS:
The phrase natural justice enunciates two ideas that the individual be given adequate notice of the charge and an adequate hearing and that the adjudicator be unbiased.
QUESTION-NO-7
Judicial Review
Q. Define the word "Judicial Review" please explain the scope of "Judicial Review in Pak." (1996) (1998)
Q. What do you understand by judicial review of administrative action? Explain the hints of such a review. (2000/S)
1. INTRODUCTORY NOTE:
The concept of Judicial Review of administrative action has developed through experience and it has been established that if the administrative authorities are allowed to function without judicial control, they will act arbitrarily. The function of Judicial Review is to act as a check against excess of power in derogation of private right, yet it cannot supervise all administrative actions because it exists to check, not to supplant them.
2. DEFINITIONS:
I. JUDICIAL REVIEW:
A judicial re-examination and reconsideration of the legality or constitutionality of something as the proceedings of a lower court or tribunal or a legislative enactment or a legislative enactment or governmental or administrative action.
II. ADMINISTRATIVE ACTION:
Those acts winch are necessary to be done to carry out legislative policies and purposes already declared by the legislative body or such as are devolved upon it by the organic Law of its existence."
3. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION:
In Pakistan, where there is a written constitution then power of judicial review has been accepted as the "heart and core" and treated as the "basic and essential feature" of the constitution, and the "safest possible safeguard" against the abuse of power by any administrative authority.
4. RATIONALE BEHIND THE JUDICIAL REVIEW OF ADMINISTRATIVE ACTION:
Rationale is that there must be control over discretionary powers of the administration so that there will be a government of Law and not of men.
5. GROUNDS OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION:
The court may consider following grounds for ascertaining the abuse of administrative action,
I. Unreasonableness
II. Improper motive or mala fide
III. Irrelevant considerations
IV. Acting under dictation
V. Abduction of authority
VI. Errors of jurisdiction
VII. Procedural defects
I. UNREASONABLENESS:
The doctrine of unreasonableness has been adopted in the rule that powers, particularly discretionary ones, have to exercise judiciously and not arbitrarily. Arbitrary exercise of jurisdiction has been called abuse of jurisdiction.
II. IMPROPER MOTIVE OR MA LA FIDE:
The court can also inquire into the motives of the authorities passing orders when such orders are under review. A malafide order means that which is passed not for the purpose contemplated by the enactment but for some other collateral or ulterior motives.
III. IRRELEVANT CONSIDERATION:
It is an established principle that in exercising discretion, the authorities must have regard to all relevant considerations and disregard all irrelevant considerations.
IV. ACTING UNDER DICTATION:
The person so authorized must not act under dictation, discretionary powers must be exercised only by the persons authorized by the statute. Even where the government delegates certain authority to one of its officers, which officer is required to act on his own satisfaction and not under dictation from his delegated.
V. ABDUCTION OF AUTHORITY OR DISCRETION:
Person invested with discretion must exercise it properly and are not allowed to surrender their power to any other authority.
VI. LACK OF JURISDICTION:
It is a basic principle of administrative Law that nobody can act beyond its powers. This lies at the basis of judicial review on the ground of Lack of jurisdiction. No authority can exceed the power given to it and any action taken by it in excess of its power is invalid.
VII. PROCEDURAL DEFECTS:
If.an authority fails to observe a procedural requirement which is considered to be mandatory, then its decision is liable to be quashed on the ground of ultra-wires.
6. MODES OF JUDICIAL REVIEW:
Following are the modes of judicial review of administrative action,
I. Public Law Review
II. Private Law Review
I. PUBLIC LAW REVIEW:
An important aspect of Public Law review is not only the enforcement of private right but to keep the administrative and quasi-administrative machinery within proper control.
i. CONSTITUENCY OF PUBLIC LAW REVIEW:
The Supreme Court and the High Court have the power to issue writs in the nature of habeas corpus, mandamus, certiorari, prohibition and quo warrants.
ii. PRINCIPLES OF PUBLIC LAW REVIEW OR LIMITS ON PUBLIC LAW REVIEW:
The principles or the limits on Public Law review, the presence of which are quite mandatory for the issuing of writs are mentioned
a. LACHES OR UNREASONABLE DELAY:
Though writ issuing power of Supreme Court and High Court is mandatory, however the court may refuse remedy if there is unreasonable delay in invoking the jurisdiction of the court. Unlike limitation there is no fixed period for laches. Every case will be determined on its own merits.
b. ALTERNATIVE REMEDY:
The Supreme Court or High Court cannot issue writ if alternative remedy is available.
=> EXCEPTION:
If the person complains of violation of fundamental rights the Supreme Court and High Court cannot refuse relief U/Article 184(3) and 199 on the ground of alternative remedy.
c. RES JUDICATA:
The principle of Res Judicata which is grounded on public policy applies in the public review area also. This principle also applies in cases for the enforcement of fundamental rights.
iii. MODES OF PUBLIC LAW REVIEW:
Following are the different kinds of writs which can be issued on certain grounds by SC or HC,
a. Habeas corpus
b. Mandamus
c. Prohibition
d. Certiorari
e. Quo warranto
II. PRIVATE LAW REVIEW:
Private Law review refers.to the ordinary courts of the land, exercised in accordance with the ordinary law to control administrative authorities and their actions. Private Law review can be exercised through following modes,
i. Injunctions
ii. Declaratory actions
iii. Suit for damages
i. INJUNCTIONS:
A. MEANINGS:
Injunction is a judicial process by which one who has invaded or is threatening to invade the rights, legal or equitable of another, is restrained from continuing or commencing such wrongful act.
B. KINDS OF INJUNCTIONS:
Following are the different kinds of injunctions:
a. Temporary injunctions
b. Perpetual injunctions
c. Mandatory injunctions
a. TEMPORARY INJUNCTION:
Temporary injunctions can be granted at any stage of the suit and are regulated by order XXXIX of the Code of Civil Procedure, and by the specific Relief Act under Section 52-53.
=> CONDITIONS NECESSARY TO OBTAIN TEMPORARY INJUNCTION:
In order to obtain temporary injunction, a plaintiff has to establish that,
I. A prima facie case.
II. Balance of convenience.
III. Irreparable loss and injury will be caused to him.
IV. He binds himself to pay damages to the defendant in case his claim is not established in the final adjudication.
b. PERPETUAL INJUNCTION U/S 53 OF SRA:
Perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication. A perpetual injunction usually takes long time and the interest of justice may require that the order must issue soon.
c. MANDATORY INJUNCTION SECTION 55 OF SRA 1877:
A mandatory injunction can be issued to prevent the breach of an obligation and to compel the performance of, certain acts which the court is capable of enforcing. It is an order of the court not only restraining a person from future wrongful acts but also directing him further to restore the former state of things.
ii. DECLARATORY SUITS:
A declaratory action signifies a judicial remedy, which conclusively determines the rights of the parties. Any person entitled to legal character may institute a suit against any person denying such character, and the court may in its discretion make therein a declaration that he is so entitled.
=> Declarations can be issued by the court in the matters dealt with by the administrative authorities, where entitlement to any legal character is involved.
iii. SUITS FOR DAMAGES:
An action for damages used to lie against the local authorities or public corporations. A corporation which has the same liability as any individual has, in all civil matters, can be liable for damages in all cases where a master would be liable for the acts of his servant acting within the scope of his employment.
7. LIMITS OF JUDICIAL REVIEW:
Following are the limits of Judicial Review,
I. NO INTERFERENCE WHEN ACTION IS WITHIN JURISDICTION:
No interference will be made by any court where the action of administrative authority is within jurisdiction.
II. NO INTERFERENCE IN POSSIBLE INTERPRETATION OF LAW:
The superior court cannot review where the possible interpretation has been made by lower court or tribunals.
III. CASES REGARDING DETERMINATION OF FACTS CANNOT BE REVIEWED:
The most important limitation on judicial review of administrative tribunals and quasi-judicial bodies is that the court does not interfere with an administrative body's determination of facts except when its conclusion is not supported by any evidence at all.
IV. SUFFICIENCY OF EVIDENCE CANNOT BE REVIEWED:
It has been held in a case,
=> IMTIAZ AHMED V/S GHULAM ALI PLD 1963 SC 382
The courts have refused to review decisions in 'appreciation' of documentary evidence, and conflicting evidence, and have consistently refused to re-evaluate or weigh the evidence that was available before the inferior courts and tribunals.
EXCEPTION:
These are the exception and in following cases evidence can be reviewed,
i. Where no evidence is recorded till the final adjudication of case.
ii. The recorded evidence was inadmissible before any Court of Law.
iii. That the wrong evidence is recorded by the inferior court or by tribunal.
8. FINAL REMARKS:
The exercise of governmental power by administrative authorities is a sacred trust and they are required to act within their limits and they are subject to judicial control in case of arbitrary exercise of their powers. This judicial review may be in the form of constitutional review.
QUESTION-NO-8
Locus Standi
Q. Write a note on Locus Standi. (1998) (2000) (2001)
1. INTRODUCTORY NOTE:
The term "Locus Standi" denotes the person's ability to invoke to court of Law. Sometimes a person who is not aggrieved party or who's right have not been infringed can file a suit. This can only be done on the basis of "Public interest litigation" that in certain circumstance in which public interest involves everyone can file a suit.
2. DEFINITION:
"Locus Standi" simply means a place of standing a right of appearance in a court of justice.
I. ACCORDING TO DE SMITH:
"Legal capacity to challenge an act or decision whether the decision is valid or invalid is relevant to the determination of question whether the applicant has locus standi to impugn it.
II. BLACK'S LAW DEFINITION:
"A right of appearance in a court of justice or before a legislative body on a given question."
3. GENERAL RULE:
As a general principle no one can appeal from an order unless he is a party to an action.
=> EXCEPTION:
But person not a party to an action may be allowed to appeal, if he is adversely affected by order.
4. APPLICATION OF TERM “LOCUS STANDI”:
There are two different views on the application of Locus Standi that whether only aggrieved person have a Locus Standi or stranger can also institute a suit.
I. TRADITIONAL VIEW:
The traditional view in regard to Locus Standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right by the impugned action of the state, or public authority or any other person.
II. MODERN VIEW:
Modern view gives some exceptions of traditional view. These exceptions are termed as "Modern view" following are certain exception to this narrow and rigid rule,
i. INABILITY TO FILE A SUIT:
If a person, who has suffered a legal wrong, is unable to approach the court due to some disabilities or it is not practicable for him due to some other reasons, then other person can invoke assistance of the court for the purpose of providing judicial redress to the person wronged.
ii. RATE PAYER OF LOCAL AUTHORITY:
A rate payer of Local authorities has also locus standi to challenge an illegal action of the authority. He can therefore, question the action of the municipality in granting a License or misuse of funds.
iii. IN WRIT OF QUO WARRANTO:
The object of the writ of quo warranto is to prevent a person who has wrongfully possessed the public office from continuing in that office. Therefore, anyone can file a writ petition.
iv. VIOLATION OF OR FAILURE TO CARRY OUT A CONSTITUTIONAL PROVISION:
In case where state or public authority acts in violation of or fails to carry out a constitutional provision which results in injury to public interest. Then anybody can challenge the act of state or authority.
v. VIOLATION OF DIRECTIVE PRINCIPLES OF STATE POLICY:
In case of violation of directive principles of state policy any one can file a suit even he is not aggrieved person but he must be a citizen of country.
vi. PUBLIC INTEREST LITIGATION:
Public interest litigations are those litigations in which injury is caused to public at large. Public interest litigation can only be initiated when right in "rem" is violated.
=> WHO CAN CHALLENGE THE ORDER IN PUBLIC INTEREST LITIGATION:
In public interest litigation everyone has Locus standi to challenge the order for the purpose to avoid any injury which would be caused to the public at Large.
5. WHO MAY HAVE LOCUS STANDI:
Following are the two main kinds of person who may have Locus Standi to file a suit either his rights are infringed or not,
I. AGGRIEVED PARTY:
i. MEANING OF "AGGRIEVED" BY BLACK LAW:
"Having suffered by loss or injury; dandified or injured.
ii. MEANING OF AGGRIEVED PARTY:
One whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by a decree or judgment. The word "aggrieved" refers to a substantial grievance, a denial of same personal or property light.
iii. WRITS U/ART 199 WHERE AGGRIEVED PARTY CAN SUE:
In cases of following writs only aggrieved party can file a suit,
a. WRIT OF CERTIORARI:
It's a judicial order by HC requiring of any action to be certified by the court and dealt with according to Law. Here only aggrieved person can file a suit.
b. WRIT OF PROHIBITION:
It is an order forbids an agency to continue proceedings in contravention of Law of land. Only aggrieved party can apply.
c. WRIT OF MANDAMUS:
It is an order by HC asking to public authority to perform a duty imposed upon it by constitution or by any other Law.
II. PERSON INTERESTED:
"Person interested" means any, person who has interest in the case publically or privately and who is not affected by any action or who's right has not been infringed but he has same interest in the case.
i. WRITS U/ARTICLE 199 WHERE "PERSON INTERESTED" CAN SUE:
Following are the cases where person interested can file a suit,
a. WRIT OF HABEAS CORPUS:
It is an order of HC to produce the body to public authority. Anyone can apply for Habeas corpus.
b. WRIT OF QUO WARRANTO:
It is an order to public officer requiring his answer that under" what authority he is holding that office.
6. FINAL REMARKS:
The Locus standi is an inherited right of an aggrieved person, nobody can deprive him from this right but under certain circumstances. There are certain instances where any person interested or any other person in the place of aggrieved party can file a suit for the purpose of providing judicial redress to the person wronged.
part-2=> PUNJAB SERVICE TRIBUNAL ACT 1974
QUESTION-NO-1
Composition and Jurisdiction Of Tribunal
Q. Discuss the evolution of Service Tribunal in Pakistan, while commenting on the composition &
jurisdiction of Tribunals. (2000) (2001) (2003) (2004) (2005) (2008)
1. INTRODUCTORY NOTE:
Before the present set up of administrative law, the grievances of the Civil Servants relating to the terms and conditions of Civil Service were dealt by the Superior Court of Pakistan but now under the present setup, the problems relating to the terms and conditions of the Civil Servants are dealt by the Service tribunals which are established to redress any wrong done to the Civil Servant.
2. MEANING OF SERVICE TRIBUNALS:
A Service tribunal would refer to such an adjudicating body which deals with matters relating to the Civil Service.
3. RELEVANT PROVISIONS:
=> Section 3 and 3-A of Punjab Service Tribunals Act 1974
=> Rule 3, 4 of Punjab Service Tribunal (Procedure) Rules 1975
4. cross reference:
=> Article 212 and 240 of Constitution of Pakistan 1973
5. CONSTITUTIONAL BASIS OF COMPOSITION OF TRIBUNALS U/ART 212:
By virtue of Article 212, the Parliament and the provincial- assemblies have been empowered to establish administrative tribunals or courts dealing exclusively with the matter of Civil Servants.
6. ESTABLISHMENT OF SERVICE TRIBUNAL U/SEC 3:
I. AUTHORITY EMPOWERED TO ESTABLISH:
The Governor has been empowered to establish one or more Service tribunals.
II. PROCEDURE FOR ESTABLISHMENT:
In order to establish a Service tribunal, the Governor shall give notification, in the official Gazette to this effect.
i. TRIBUNALS ESTABLISHED MORE THAN ONE:
Where Governor establishes more than one tribunal, he shall specify in the notification the class or classes of Civil Servant and the territorial limits, in respect of which, each such tribunal shall exercise jurisdiction, under this Act.
7. COMPOSITION OF SERVICE TRIBUNAL U/SEC 3(3):
A tribunal shall consist of,
A. Chairman and
B. Two members
I. QUALIFICATIONS:
Following are the qualification for the post of chairman and the members of tribunal,
i. CHAIRMAN:
A chairman must be a person who has been or is qualified to be a judge of a High Court.
ii. MEMBERS:
Member of tribunal possess such qualifications as may be prescribe by rules.
=> RULE (1) OF 1ST SCHEDULE:
A person to be appointed as a member must be under 58 years of age.
II. APPOINTMENT:
The chairman and the members of a tribunal shall be appointed by Governor.
8. TERMS AND CONDITIONS OF THE OFFICE OF CHAIRMAN AND MEMBERS:
Terms and conditions is to be determined by the Governor,
I. OATH OF OFFICE U/RULE 4 FIRST SCHEDULE:
It is incumbent upon the members and the chairman that before entering in office, a chairman (except who is a judge of Lahore High Court) and the members shall take an oath before the chief justice or any judge nominated by him.
II. PAY OF CHAIRMAN:
i. IF RETIRED:
If before his appointment the chairman has retired from a GOVT. Post, he shall get a pay equivalent to what he was getting before retirement.
ii. IN ANY OTHER CASE:
In any other case, he would receive a pay admissible to pay scale 22 or the pay on which he was securing, whichever is higher.
III. PAY OF MEMBERS:
i. IF RETIRED:
If before appointment, the member has been retired, he would get the same pay as he was getting before retirement subject to the deduction of pension.
ii. IF SERVING:
If he was in active duty before being appointed as a member, he would get the same pay as he was
getting before.
IV. LEAVE, TRAVELING AND MEDICAL ALLOWANCE:
Both chairman and members are entitled to traveling and medical allowances.
V. RESIGNATION U/SEC 3(5):
The chairman or a member of tribunal may resign his office by writing under his hand addressed to Governor.
VI. BAR TO HOLD OFFICE OF PROFIT U/SEC 3(6):
The chairman and the member shall not hold any other office of profit in the Service of Pakistan if his remuneration is thereby increased.
9. CONSTITUTION OF BENCHES OF TRIBUNAL U/SEC 3-A:
The chairman of the tribunal has been empowered to constitute a bench.
I. COMPOSITION:
The bench may be constitute of the following,
i. Only the chairman himself or
ii. Only one member or
iii. Two members without chairman
iv. Chairman and one member.
II. PROCEDURE OF BENCH:
The decision of bench shall be made by unanimous decision.
III. BENCH UNABLE TO ARRIVE AT UNANIMOUS DECISION:
If bench unable to arrive at unanimous decision in an appeal, the matter shall be placed before the full tribunal and the decision of the tribunal shall be expressed in terms of the opinion of majority.
=> PROVISO:
If a chairman or the member who was not on the bench is unable to take part in appeal the decision of the tribunal shall be expressed in terms of opinion of the senior member of the bench.
IV. POWER OF CHAIRMAN:
The chairman may at any stage of hearing of appeal,
i. Withdraw it from the tribunal and entrust it to a bench or
ii. Withdraw it from the bench and make it over to another bench or
iii. Withdraw it from the bench and make it over to tribunal.
V. NATURE OF BENCH OF TRIBUNAL:
Every bench of tribunal shall be deemed as a tribunal and shall exercise all powers of tribunal unless otherwise provided.
10. JURISDICTION OF TRIBUNALS U/SEC 3(2):
A tribunal shall have exclusive jurisdiction in respect of following matters,
I. MATTERS RELATING TO TERMS AND CONDITIONS OF SERVICE OF CIVIL SERVANTS:
The following are held to fall under the domain of terms and conditions of Civil Service and hence triable exclusively by the tribunal,
i. Appointment
ii. Removal
iii. Seniority
iv. Promotion
v. Payment of allowances
vi. Misconduct
vii. Suspension
II. DISCIPLINARY MATTERS:
In the cases of disciplinary action, the jurisdiction of Service tribunal extends only to cases of, penalty of dismissal reduction in rank or compulsory retirement.
11. EXCLUSIVE JURISDICTION:
The term exclusive jurisdiction implies that only the tribunal and no other court shall have jurisdiction on matters falling with the competence of tribunals.
12. EXCLUSION OF JURISDICTION OF HIGH COURT:
Jurisdiction of High Court U/Article 199 of Constitution of Pak, 1973 to entertain any proceedings in respect of matters falling within the competence of Service tribunals is completely ousted in view of Article 212 of constitution.
13. LIMITATION OF JURISDICTION OF TRIBUNALS:
Grant of leave to appeal by Supreme Court U/Article 212(3) of the constitution, where substantial question of law of public importance is involved, is the sole limitation on the jurisdiction of tribunals.
14. FINAL REMARKS:
The Service tribunals are established to provide speedy remedy to the aggrieved Civil Servants in matters relating to the terms and conditions of Civil Service and disciplinary matters. The Service tribunals have an exclusive jurisdiction in respect of these matters. These tribunals are not an executive body but courts for matters falling in its jurisdiction.
QUESTION-NO-2
appeal
Q. Under what circumstances an appeal of a Civil Servant with regard to terms and conditions of his Service is not competent before Service Tribunal? (1999)
Q. Who can appeal before Service Tribunal and under what circumstances? (2000) (2001)
1. INTRODUCTORY NOTE:
Any order of departmental authority made under Punjab Civil Servants Act 1974 in respect of terms and conditions of Civil Service and disciplinary matters may be challenged in appeal by a Civil Servant before Service tribunal u/sec 4 of Punjab Service Tribunal Act 1974.
2. MEANING OF SERVICE TRIBUNAL:
A Service tribunal would refer to such an adjudicating body which deals with matters relating to the Civil Services.
3. RELEVANT PROVISIONS:
=> Section 4 and 5 of Punjab Service Tribunal Act 1974
4. PERSON WHO CAN APPEAL TO SERVICE TRIBUNAL U/SEC 4:
Any Civil Servant aggrieved by any order, whether original or appellate made by a departmental authority in respect of the terms and conditions of his Service may file an appeal to the tribunal.
5. Conditions OR CIRCUMSTANCES IN WHICH APPEAL MAY BE FILED:
Following are the conditions or the circumstances in which appeal may be filed,
I. LOCUS STANDI:
It is necessary that appeal must be filed by Civil Servant who is aggrieved by an order of departmental authority.
i. MEANING OF AGGRIEVED PERSON:
Aggrieved Person means a person who has suffered a legal grievance or a person against whom a decision has been pronounced, which has wrongfully deprived him of something or wrongfully refused something or wrongfully affected his title to something.
II. AGAINST ORIGINAL OR APPELLATE ORDER:
Appeal must be filed in respect of any order whether it is original order or one passed by departmental authority in appeal.
III. ORDER MUST BE OF DEPARTMENTAL AUTHORITY:
For filing an appeal to tribunal, it is necessary that order must be of departmental authority.
i. MEANING OF DEPARTMENTAL AUTHORITY:
Departmental authority means any authority other than a tribunal, which is competent to make an order, is respect of any of the terms and conditions of Civil Servants.
IV. SUBJECT MATTER OF ORDER:
Appeal must be filed in respect of order with regard to any of the terms and conditions of Service of Civil Servants.
6. APPEAL LIES TO WHICH BENCH:
In case of penalty of dismissal from Service, removal from Service Compulsory retirement or reduction to a lower post or time scale or to a lower stage in a time scale, appeal shall be preferred to full bench.
=> IN OTHER CASE:
In any other case, appeal shall be preferred to single bench.
7. EXCLUSIVE JURISDICTION OF TRIBUNAL:
Questions relating to terms and conditions of Service of Civil Servants can only be entertained by Service tribunals and High Court has no jurisdiction in respect of such matters by virtue of bar contained in Article 212 of constitution of Pakistan 1973.
8. BAR TO RIGHT OF APPEAL U/SEC 4:
Following are the bars, where the Civil Servant cannot file an appeal to the Service tribunal,
I. WHERE AN APPEAL, REVIEW OR REPRESENTATION IS PROVIDED TO DEPARTMENTAL AUTHORITY:
Where an appeal, review or representation is provided, under the Punjab Civil Servant Act, 1974 or any rules, to the Departmental authority than no appeal shall lie to the tribunal.
=> EXCEPTION:
Appeal would lie to Service tribunal if the Civil Servant has preferred an appeal or application for review or representation to a departmental authority and a period of 90 days has elapsed from the date on which such appeal, application or representation was so preferred.
II. AUTHORITY DETERMINING THE FITNESS:
No appeal shall lie to tribunal against an order or decision of a departmental authority determining the fitness of a Civil Servant to be appointed to or hold a particular post or to be promoted to a higher grade. It can be a subject matter of constitutional petition.
III. DECISION MADE BY DEPARTMENTAL AUTHORITY BEFORE THE IST JULY 1969:
No appeal shall lie to a tribunal against an order or decision of a departmental authority made at any time before 1st July 1969.
9. LIMITATION TIME:
Civil Servant may file an appeal within 30 days of communication of departmental order to him when no departmental remedy is available and where departmental remedy Is available, then the Civil Servant had the choice either to file appeal immediately on the expiry of 90 days from the date of filing of departmental appeal or he could have waited for the decision of the same and filed appeal within 30 days thereof.
10. APPEAL AGAINST DECISION OF SERVICE TRIBUNAL:
An appeal against decision of Service tribunal lies to Supreme Court by virtue of Article 212(3) of the constitution of Pakistan 1973.
11. BINDING NATURE:
If the Supreme Court or the Service tribunal decides a point of law relating to the terms of Service of Civil Servants, then the benefit of such decision can be extended to every other Civil Servant.
12. FINAL REMARKS:
It is the right of the Civil Servant to file an appeal to the Service Tribunal against an order of departmental authority and the jurisdiction of the Civil Courts and the High Court is barred.
QUESTION-NO-3
Powers of Service Tribunal regarding appeal
Q. Explain the Powers of Service Tribunal regarding appeal filed by a Civil Servant against the final order of the departmental Authority? (1999) (2002)
1. INTRODUCTORY NOTE:
Service tribunals are established to provide a forum with exclusive jurisdiction in disciplinary matters and matters relating to the terms and conditions of the service of civil servants. If any civil servant finds himself aggrieved against the final order of the departmental authority, then apart from the departmental remedies, he can also invoke the jurisdiction of the Service tribunal.
2. MEANING OF SERVICE TRIBUNAL:
A Service tribunal would refer to such an adjudicating body which deals with matters relating to the Civil Services.
3. RELEVANT PROVISIONS:
=> Section 4 and 5 of Punjab Service Tribunal Act 1974
4. Cross Reference:
Section 4 and 5 of Civil Service Tribunal Act, 1973
5. FILING OF APPEAL AGAINST THE FINAL ORDER OF DEPARTMENTAL AUTHORITY U/SEC 4:
Any Civil Servant aggrieved by any order whether original or appellate made by departmental authority in respect of terms and conditions of his Service may prefer in appeal to tribunal.
6. POWERS OF SERVICE TRIBUNAL U/SEC 5:
A tribunal shall for the purpose of deciding any appeal be deemed to be a Civil Court and shall have the same powers as vested in such court under CPC,
I. POWER TO CONFIRM THE ORDER APPEALED AGAINST:
Tribunal has Power to confirm the order of departmental authority in respect of which appeal is filed.
II. POWER TO SET ASIDE ORDER:
Tribunal may set aside order of departmental authority in appeal.
III. POWER TO VARY OR MODIFY ORDER:
Tribunal may alter or makes changes in the order made by the departmental authority.
IV. POWER TO SUBSTITUTE PENALTY:
Tribunal may substitute the penalty, awarded by the departmental authority, by another penalty authorized by law.
V. POWER TO ENFORCE ATTENDANCE:
A tribunal has power to enforce attendance of any person by issuing summons or warrant.
VI. POWER TO EXAMINE ANY PERSON:
Tribunal has power to examine any person appearing before it.
VII. POWER TO COMPEL PRODUCTION OF DOCUMENT:
Tribunal may compel the production of any document which is in possession of any person.
VIII. POWER TO ISSUE COMMISSION:
Tribunal may issue commission for the examination of witness and documents.
IX. POWER TO TAKE COGNIZANCE OF BREACH OF NON-STATUARY RULE:
Tribunal has power to take cognizance of breach of non-statutory rule or instruction if the same has been continuously and consistently acted upon by the department concerned.
X. POWER TO REDUCE PUNISHMENT:
Tribunal has power to reduce the punishment of Civil Servant in appeal.
XI. OTHER POWERS:
Service tribunal by fiction is deemed to be a Civil Court and can exercise all powers of Civil Court under CPC 1908.
7. PRINCIPLES OF PROCEEDINGS OF TRIBUNAL:
Principles of natural justice should be followed in proceedings of tribunals.
8. BINDING NATURE OF THE ORDERS OF TRIBUNAL:
When Service tribunal made an order on appeal than the competent departmental authority is bound to give effect to such order.
9. SERVICE TRIBUNAL IS NOT A SUBORDINATE COURT TO HIGH COURT:
Service tribunal is not a Subordinate Court to the High Court within the meaning of Sec 115 of CPC.
10. POWER OF REVIEW:
The Scope of review in the case of Service tribunal is limited to correct errors apparent on the face of the record.
11. LIMITATION ON THE POWERS OF SERVICE TRIBUNAL:
Disputes relating to Civil Service of a Civil Servant are now the exclusive concern of Service tribunals.
Grant of leave to appeal by Supreme Court U/A 212(3) of the constitution where a substantial question of law of public importance is involved are the Sole limitation on such powers of Service tribunal.
12. FINAL REMARKS:
The Service tribunals are hot an executive body but courts and can exercise all the powers of Civil Courts to redress the wrong committed to any Civil Servant.
QUESTION-NO-4
period of limitation for filing an appeal
Q. A Civil Servant dismissed from Service immediately files an appeal, is the appeal competent? What is the period of limitation for filing an appeal? (1998) (2000) (2001) (2002) (2003)
1. INTRODUCTORY NOTE:
The law providing limitation in seeking a remedy by an aggrieved person is an artificial embargo on free right of representation and appeal, but as law favours finality of litigation and determination of disputes within a reasonable time, a period of limitation has been provided.
2. MEANING OF APPEAL:
An appeal means removal of a cause from an inferior to a superior court, for the purpose of testing
soundness of decision of an inferior court.
3. RELEVANT PROVISIONS:
=> Section 4 and 9 of Punjab Service Tribunal Act 1974
4. Cross Reference:
=> Section 4 and 7 of Service Tribunal Act 1973
5. APPEAL BEFORE SERVICE TRIBUNAL U/SEC 4:
Any Civil Servant aggrieved by any final order, whether original or appellate made by a departmental authority in respect of terms and conditions of his Service, may file an appeal to the tribunal.
6. TIME LIMITATION FOR FILING AN APPEAL U/SEC 4:
Following is the law regarding the time limitation for filing an appeal,
I. WHERE NO DEPARTMENTAL REMEDY AVAILABLE:
Where no departmental remedy is available, the aggrieved Civil Servant has to file an appeal within 30 days of the communication of such order.
II. WHERE DEPARTMENTAL REMEDY IS AVAILABLE:
Where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act 1974 or any rules against such order, no appeal shall lie to tribunal unless departmental remedy is exhaust by Civil Servant and a period of 90 days has elapsed from the date of exhausting such remedy.
=> OPTION OF CIVIL SERVANT:
Civil Servant has the choice either to file appeal immediately on the expiry of 90 days from the date of filing departmental appeal or he could wait for the decision of the same and filed appeal within 30 days thereof.
7. STARTING POINT OF PERIOD OF LIMITATION:
Period of limitation prescribed for filing an appeal before -Service tribunal, would run from passing of final order appealed from
8. DELAY IN FILING APPEAL:
If the appeal in filed after the prescribed period of limitation, it would be time barred.
9. APPLICABILITY OF LIMITATION ACT 1908 U/SEC 9:
The provisions of section 5 and 9 of limitation Act, 1908 shall apply to appeals under this Act,
I. LIMITATION CAN BE CONDONED:
By virtue of Section 5 of limitation Act, a tribunal may grant extension of period of limitation.
II. CIRCUMSTANCES IN WHICH DELAY MAY BE CONDONED:
The only ground on which the delay may be condoned is the sharing of sufficient cause for showing not preferring an appeal within such period.
i. WHAT CONSTITUTES SUFFICIENT CAUSE:
Sufficient cause shall fulfill the following essentials,
a. It must be a cause which was beyond the control of the party making of the party making it.
b. Party must not be guilty of negligence.
c. The intention of a party must be a bonafide.
III. EACH DAY IS TO BE EXPLAINED:
When a Civil Servant seek condonation of delay, each day is to be explained with the satisfaction of the Court.
IV. EXCLUSION OF DAY U/SEC 12 OF LIMITATION ACT:
The day from which such period is to be reckoned shall be excluded from the period of limitation.
10. APPLICATION FOR CONDONATION OF DELAY:
It is necessary that a person should file an application for condonation of delay. Tribunal cannot suo motu condone the delay.
11. CONDONATION OF DELAY WITHIN THE DISCRETION OF TRIBUNAL:
The condonation of delay in the submission of appeal is within the discretion of the tribunal, and it is exercisable on the basis of each case.
12. LIMITATION AGAINST AN ORDER VOIDS AB INITION:
Limitation for filing an appeal against the illegal or void order would not run out. It is for the court to ignore or set aside an order claimed as void and not for the party itself.
13. FINAL REMARKS:
The Law of limitation applicable to the Punjab Service Tribunal Act is in the interest of justice so that the grievance of Civil Servant could be presented before the tribunal as soon as possible, and as the period of limitation to apply is a very short period so it is also provided that by virtue of section 5 of limitation Act, delay may be condoned in reasonable circumstances and it is a matter which is within the discretion of tribunal and cannot be challenge unless it raise any question of law of public importance requiring consideration under constitutional petition.
QUESTION-NO-5
WRIT JURISDICTION
Q. Can the writ jurisdiction of High Court be invoked in respect of the terms and Conditions of Service of Civil Servants? If so in which, circumstances? (2000)
1. INTRODUCTORY NOTE:
Service tribunals have an exclusive jurisdiction in respect of matters relating to terms and conditions of Civil Servants including disciplinary matters, and the jurisdiction of High Court is barred to entertain constitutional petitions in respect of such matters by virtue of Article 212 of the constitution of Pakistan, and High Court can entertain petition, only when service tribunals had no jurisdiction.
2. MEANING OF WRIT JURISDICTION:
Writ jurisdiction is an extra-ordinary jurisdiction which can be invoked in cases of extreme emergency or where there is no effective or speedy remedy is available to an aggrieved person.
3. RELEVANT PROVISION:
=> Section 3 and 4 of Punjab Service Tribunal Act 1974
4. Cross Reference:
=> Article 199 and 212 of Constitution of Pakistan 1973
=> Section 3 and 4 of Service Tribunal Act 1973
5. JURISDICTION IN MATTERS RELATING TO TERMS AND CONDITIONS OF CIVIL SERVANTS:
I. GENERAL RULE:
Service tribunal shall have exclusive jurisdiction in respect of following matters and no other court including High Court would have jurisdiction in such matter,
i. MATTERS RELATING TO TERMS AND CONDITIONS OF SERVICE OF CIVIL SERVANTS:
The following are held to fall under the domain of terms and conditions of Civil Service and hence triable exclusively by the tribunal,
a. Appointment
b Removal
c. Seniority
d. Promotion
e. Payment of allowances
f. Misconduct
g. Suspension
ii. DISCIPLINARY MATTERS:
In the cases of disciplinary action, the jurisdiction of Service tribunal extends only to cases of penalty of
dismissal, reduction in rank or compulsory retirement.
II. EXCEPTION:
High Court can entertain writ petition where no appeal lies to Service tribunal.
6. WRIT JURISDICTION U/ARTICLE 199:
Subject to constitution, a court may if it is satisfied that no other adequate remedy is provided by law to issue such jurisdiction.
7. EXTENT OF JURISDICTION OF HIGH COURT:
Jurisdiction of High Court to entertain constitution petition was not ousted in respect of all matter* Ouster of jurisdiction limited to only those matters which could be taken by Service tribunal.
8. CASES WHERE WRIT JURISDICTION OF HIGH COURT CAN BE INVOKED:
A Civil Servant can invoke the jurisdiction of High Court in the following cases,
I. WHERE NO FINAL ORDER MADE BY DEPARTMENTAL AUTHORITY:
Where only objections was raised by the departmental authorities in respect of Civil Service matters and no final order is made, High Court can entertain writ petition in such a case.
II. WHEN PERSON PUNISHED IS NOT CIVIL SERVANT:
When the person punished is not a Civil Servant for the reason of his exclusion from the definition of Civil Servant in Sec 2(b) of Punjab Civil Servant Act 1974 Jurisdiction of High Court can be invoked.
III. ORDER PASSED BY DEPARTMENTAL AUTHORITY NOT COMPETENT TO PASS IT:
If an order is made by a departmental authority, which was not competent to pass it, than the High Court can entertain writ petition and decide the matter.
IV. ORDER RELATES TO PERSON'S FITNESS TO HOLD POST, APPOINTED TO POST OR PROMOTION:
Every order of departmental authority determining the fitness of a Civil Servant to hold post or to be appointed to a post or promoted to a higher post shall be determined by High Court.
V. WHEN APPELLATE AUTHORITY REFUSES TO HEAR:
When the appellate authority refuses to hear the case or takes no action thereon, the party can invoke the writ jurisdiction of High Court.
VI. ORDER PASSED BEFORE IST JULY 1969:
Appeal pending in High Court against the order of departmental authority passed before Ist July 1969 did not abate and the High Court can exercise jurisdiction in respect of such matters.
9. FINAL REMARKS:
All the matters relating to the terms and conditions of Service of Civil Servants are within the exclusive
jurisdiction of tribunals under Punjab Service Tribunal Act 1974 but the jurisdiction of High Court is not completely ousted and an aggrieved Civil Servant has personal interest in the matter can invoke the constitutional jurisdiction of High Court when no appeal lies to tribunal or when tribunal cannot exercise jurisdiction in such matters.
QUESTION-NO-6
filing an appeal
Q. Explain the procedure for hearing appeal before the Punjab Service tribunal. (2000)
Q. What is the procedure and requirements for filing an appeal before Service Tribunal? (1998) (1999)
1. INTRODUCTORY NOTE:
Punjab Service tribunals are established by provincial GOVT empowered thereto by Art 212 of constitution of Pakistan. The function of tribunal is to hear appeals from original or appellate orders of departmental authority.
2. RELEVANT PROVISIONS:
=> Rules 5 to 22 of Punjab Service Tribunal (Procedure) Rules 1975
3. REQUIREMENTS FOR FILING OF APPEAL:
I. FILING OF APPEAL U/R 5:
An appeal may be sent to the registrar of Service tribunal either by,
A. Registered post acknowledgement due or
B. Present it personally in office hours or
C. Present it through advocate in office hours.
i. APPEAL PRESENTED TO MEMBER OF TRIBUNAL:
Appeal presented to or received by a member of the tribunal shall be deemed to be properly presented or received under this rule.
II. FORM OF MEMORANDUM OF APPEAL U/R 6:
i. WRITTEN OR PRINTED:
It shall be legibly, correctly and concisely,
a. Written
b. Type, Written or
c. Printed
ii. DIVIDED INTO PARAGRAPHS:
It shall be divided into paragraphs, numbered consecutively and each paragraph containing as nearly as may be a separable assertion or averment.
III. PARTICULARS OF MEMORANDUM OF APPEAL U/R 6:
i. DESCRIPTION OF EACH PARTY:
It shall contain the full name, official designation and place of posting of each party.
ii. RELIEF CLAIMED:
It clearly set out the relief claimed.
IV. DOCUMENTS ACCOMPANYING WITH MEMORANDUM OF APPEAL U/R 6:
i. COPY OF ORDER OF AUTHORITY:
It shall be accompanied by a copy of the final order, whether appellate or original and any other order of the competent authority, in respect of the terms and conditions of Service of the appellant, against which the appeal is preferred.
ii. DOCUMENTS UPON WHICH APPELLANT RELY:
Copies of rules, orders and other documents on which the appellant relies in support of his claim.
=> PROVISO:
Where tribunal is satisfied that it is not possible for appellant to produce documents referred above, it may dispense with the documents.
iii. SPARE COPIES OF MEMORANDUM OF APPEAL:
It shall be accompanied by three spare copies of memorandum of appeal, duly signed or thumb impressed by appellant and also the documents referred above.
V. SHOWING OF RESPONDENTS U/R 7:
In every memorandum of appeal, the competent authority against whose orders the appeal is preferred and any other party to the dispute shall be shown as respondents, and it is a requirement which should substantially complied with.
VI. PETITION SUPPORTED BY AFFIDAVIT U/R 8:
If appeal is presented after the period of limitation, it shall be accompanied by a petition supported by affidavit, setting forth the cause of delay. In absence of any such application, condonation of delay shall not be dealt by the Tribunal itself.
VII. COURT FEE ON APPEAL U/R 9:
No court fee shall be payable for preferring an appeal to the tribunal or filing, exhibiting or recording any documents with a tribunal.
4. PROCEDURE FOLLOWED BY TRIBUNAL HEARING APPEAL:
Following procedure shall be following by the tribunal while hearing appeal,
I. SCRUTINIZING OF APPEAL BY REGISTRAR U/R 10:
The registrar shall scrutinize the memorandum of appeal present to him and shall take following steps:
i. IF IT IS COMPLY WITH PROVISIONS OF RULE 6:
If memorandum of appeal is drawn up in accordance with the provisions of rule 6, the Registrar shall do the following,
a. CAUSE IT TO BE REGISTERED:
He shall cause it to be registered in the register of appeals, to be maintained in form appended to these rules.
b. FIXATION OF DATE FOR HEARING:
He shall with the approval of chairman fix a date for preliminary hearing before the tribunal.
ii. IF IT DOES NOT COMPLY WITH PROVISIONS OF RULE 6:
If MOA is not drawn up in accordance with the provisions of rule 6, registrar shall take following steps,
a. RETURN THE MEMORANDUM:
He shall return it to appellant for amendment within time to be specified in the order.
b. TIME IN WHICH MEMORANDUM IS TO BE SUBMITTED AGAIN:
The time given in order for re-submission of memorandum shall not be less than 14 days from the date of pointing out the deficiency.
c. FAILURE TO RESUBMISSION IN TIME:
If it is not resubmitted in time allowed than the appeal shall stand dismissed.
II. DISMISSAL OF APPEAL U/R 11:
A tribunal may after hearing the appellant or his advocate dismiss the appeal in limier.
III. NOTICE TO APPELLANT AND RESPONDENTS U/R 11(2):
If the appeal is not dismissed, notices of admission of appeal and of the day fixed for hearing shall be served on appellant, respondent and on such other person as tribunal may deem proper.
IV. DEPOSIT BY APPELLANT U/R 11(3):
The notices shall not be served unless appellant deposit with registrar,
i. Cash security for costs in sum of Rs 100 and
ii. Cost of service of notice on the respondents.
V. FAILURE TO DEPOSIT U/R 11(4):
The appellant tails to deposit such cost, his appeal may be dismissed.
VI. FORM OF NOTICE U/R 12(1):
A notice may be in such form as may be laid down by tribunal
VII. SERVICE OF NOTICE U/R 12:
Following are modes of service of notice,
ii. Publication in newspaper but subject to condition that cost of such publication has been deposited by appellant
iii. Any other manner.
=> CONDITION FOR NOTICE:
The notice is to be accompanied by copy of MOA and documents appended there to.
=> EXCEPTION:
It is not necessary when notice is published in newspaper.
VIII. SERVICE NEED NOT BE PROVED U/R 12(3):
When service of notice in accordance with the provisions of this rule, it shall be deemed to be due notice and it is not necessary to prove that party has actually receive the notice.
IX. OBJECTIONS BY THE RESPONDENTS U/R 13:
A respondent may send his objections to the appeal to the registrar by,
A. Registered post or
B. Personally or
C. Through his advocate
i. TIME FOR OBJECTION:
The objections must be sent, within 7 days before the date specified in notice for-hearing of appeal or within such extended period as may be allowed by registrar.
ii. FORM OF OBJECTION:
The objection shall be written, typewritten or printed and shall be,
a. Signed by respondent or person authorized on his behalf.
b. Accompanied by a copy of every document on which the respondent wishes to rely is support of his objections and
c. Accompanied by four spare copies for use of members of the tribunal and appellant.
iii. OBJECTIONS NOT RECEIVED WITHIN TIME:
In such case the respondent may be proceeded against ex-parte.
X. WHERE APPELLANT DOES NOT APPEAR BEFORE TRIBUNAL ON DATE OF HEARING U/R 19:
Where appellant fails to appear before tribunal on date of 1st or adjourned hearing, the tribunal may dismiss the appeal or proceed to hear the other party and decide the appeal.
i. RESTORATION OF APPEAL:
The tribunal may restore the appeal- or set aside the ex-parte order or allow the defaulting party to rejoin the proceedings on such orders of costs as it may deem fit.
XI. RESPONDENT FAILS TO APPEAL U/R 19(2):
Where respondent or respondents, in case where there are more than one respondents, or their advocates fails to appear before the tribunal on the fixed date of hearing, the tribunal may hear the appeal ex-parte.
XII. DETERMINATION OF QUESTIONS BY TRIBUNAL:
Questions arising for determination by a tribunal shall be decided upon affidavits and documents proved by affidavits, but the tribunal may direct that questions shall be decided on such evidence and in such manner as it may deem fit.
XIII. COPY OF FINAL ORDER U/R 21:
A copy of every order of final adjudication on an appeal shall be furnished by a tribunal free of costs, to the competent authority concerns.
5. FINAL REMARKS:
The appeal before service tribunal is in the nature of first appeal as provided in CPC 1908, so the tribunal has to kept in view all the principles and rules governing such an appeal and tribunal can exercise all the powers of civil court as for the purpose of deciding an appeal, a tribunal shall be deemed to be a Civil Court by virtue of section 5 of Punjab Service Tribunal Act 1974.
QUESTION-NO-7
summoning the witness
Q. What procedure would be adopted by the tribunal for summoning the witnesses for the recording of their evidence? Cite the relevant rules. (1999) (2001)
1. INTRODUCTORY NOTE:
Order of departmental authority could be challenged in appeal before service tribunal relating to the matters of Civil Service and the tribunals are required to follow the fundamental rules of evidence and for this witnesses may be summoned top.
2. MEANING OF SUMMONS:
Summons means a written notification issued by concerned authority for appearing before it in prescribed manner.
3. RELEVANT PROVISIONS:
=> Rule 15 to 18 of Punjab Service tribunals (Procedure) Rules 1975
4. SUMMONS TO WITNESS BY TRIBUNAL:
The tribunal may in deciding the matter before it summons the witnesses for recording of their evidence.
5. MODES OF SUMMONING WITNESSES U/R 15:
Tribunal may summon the witness either,
I. On application made by any party
II. Suo moto
I. APPLICATION FOR SUMMONING WITNESS:
The application for summoning witness is required by tne party, which desire to produce a evidence to be recorded. No time is given for filing such application but it shall be filed as soon as possible after the notice of admission of appeal.
i. PARTICULARS OF APPLICATION:
The application shall state the following,
a. Names, designations and addresses of the witness to be summoned and
b. A brief resume of the evidence which each witness is expected to give.
ii. SATISFACTION OF TRIBUNAL:
If the tribunal is of the opinion that the evidence of any .witness specified in the list may be of material assistance in the disposal of an appeal before it, it shall direct him to be summoned on a date fixed by the tribunal.
iii. ALLOWANCES AND TRAVELING CHARGES TO BE PAID BY PARTY:
The tribunal shall also direct that the daily allowance and traveling charges of such witness should be deposited by the person calling for, within 7 days of the date of order.
iv. RATES OF ALLOWANCES PRESCRIBED BY TRIBUNAL:
The tribunal may by general or special order, prescribe the rates of daily allowance and traveling charges, to be paid to witnesses summoned by it.
v. FAILURE TO DEPOSIT THE COSTS:
Where the party fails to deposit the cost of witness within 7 days or within such extended period as may
be allowed by the tribunal, the application for summoning of witness shall be deemed to be rejected.
II. SUO MOT A SUMMONING OF WITNESSES BY TRIBUNAL U/R 15(5):
If the tribunal is of the opinion that the evidence of any witness is necessary for the disposal of the appeal before it, it may direct him to be summoned.
i. ALLOWANCES PAID BY GOVT IF WITNESS IS GOVT SERVANT:
If witness is GOVT Servant, his daily and traveling allowances shall be payable by GOVT.
ii. ALLOWANCES PAID BY PARTY IF WITNESS IS PRIVATE PERSON:
If witness is private person, his daily and traveling allowances shall be payable by such party and to such extent, as determined by the tribunal.
6. SERVICE OF SUMMONS TO A WITNESS U/R 16:
I. SERVICE TO A WITNESS OF HIGH RANK:
A witness of a high rank shall be served with summons in the form of letter.
II. SERVICE TO A GOVT SERVANT:
Except in urgent cases or otherwise ordered by the tribunal, summons to GOVT. Servant shall be served through the head of his office.
7. PROCEDURE OF RECORDING OF EVIDENCE U/R 18:
I. FORM OF EVIDENCE:
Evidence of a witness examined by a tribunal shall be taken down under the superintendence of tribunal and shall be in narrative form.
II. SIGNATURES OF MEMBERS ON EVIDENCE:
The signatures of members of tribunal shall be taken on evidence which shall form part of the record.
III. QUESTIONS TO BE PUT TO THE WITNESSES:
The parties or their advocates and members of the tribunal may put any question to the witnesses.
IV. CLOSING OF EVIDENCE:
If in the opinion of tribunal production or continuation of any evidence would involve inordinate delay or unnecessary expenses, the tribunal may close the evidence in the interest of justice.
V. REMARKS BY THE TRIBUNAL:
The tribunal may record such remarks as it thinks material respecting the demeaneur examination.
8. FINAL REMARKS:
Where an appeal is made to the tribunal, the tribunals are required to act judicially and follow the rules of evidence. They are required to give an opportunity to the party to present evidence and give decision after considering all the facts and circumstances.
PART-3=> PUNJAB CIVIL SERVANTS ACT 1974
QUESTION-NO-1
appointment of civil servants
Q. Explain the modes of appointment of Civil Servants. (2004)
1. INTRODUCTORY NOTE:
The appointment of civil servants is an executive function and the GOVT is empowered to lay down rules for that purpose. Appointment to civil posts could be made by two methods, initial appointment and appointment by promotion or transfer.
2. RELEVANT PROVISIONS:
=> Section 3 to 9 of Punjab Civil Servants Act, 1974
=> Rules 3 to 22 of Punjab Civil Servants (Appointment and conditions of services) rules, 1974
3. MODES OF APPOINTMENT:
Following are the different modes of appointment,
I. Appointment by Initial Recruitment
II. Appointment by Promotion and transfer
4. QUALIFICATIONS FOR APPOINTMENT:
I. CITIZENSHIP:
i. GENERAL RULE:
A person must be a citizen of Pakistan to be appointed.
ii. EXCEPTION:
In suitable cases, this condition may be relaxed by the GOVT.
II. MARITAL STATUS:
i. GENERAL RULE:
A person who has married a foreign national shall not be appointed to a post.
ii. EXCEPTION:
This condition may be relaxed by GOVT, in case of person who has married a citizen of India.
III. DOMICILED:
i. GENERAL RULE:
For appointment, a person must be domiciled in the province of Punjab.
ii. EXCEPTION:
This condition is not applicable to person, domiciled in such areas as may be specified, for a period of 20 years, commencing from the day of commencement of the constitution of Pakistan, 1973.
IV. HEALTH:
A candidate for appointment must be in good mental and bodily health and free from any physical defect likely to interfere with the discharge of the duties.
V. CHARACTER CERTIFICATE:
A character certificate must be produced by the candidate certified by the Principal Academic officer of the institution last attended and 2 responsible persons.
5. APPOINTMENT U/S 4:
Appointments to a civil service of the province or to a civil post in connection with the affairs of the province shall be made in prescribed manner,
I. By Governor or
II. By a person authorized by him in that behalf or
III. Authorities competent
6. APPOINTMENT BY INITIAL RECRUITMENT:
I. MEANING OF INITIAL RECRUITMENT U/SEC 2(l)(d) OF PUNJAB CIVIL SERVANTS ACT, 1974:
Initial recruitment means appointment made otherwise than by promotion or transfer.
II. ESSENTIAL FOR APPOINTMENT ON INITIAL RECRUITMENT U/SEC 5:
An initial appointment to a service or post shall be on such probation and for such period of probation as may be prescribed by rules.
i. PERIOD OF PROBATION U/RULE 7:
A person shall remain on probation for a period of 2 years and it may be extended by the appointing authority by further period not exceeding 2 years in all.
III. PROCEDURE FOR APPOINTMENT:
For appointment by initial recruitment the Government may constitute selection committee and there shall also be a Provincial Selection Board.
IV. APPOINTMENT TO POSTS IN GRADE 1 TO 15 U/RULE 17:
Initial appointments to all posts in grade 1 and above shall be made on the basis of examination or test to be held by the appropriate committee or the Board, as the case may be.
V. APPOINTMENTS TO POSTS IN GRADE 16 TO ABOVE:
i. BY PROVINCIAL SELECTION BOARD U/S 4(4)(II):
The provincial selection board shall make selection for appointment to such posts in BS 16 and above, as may be specified to be filed without reference to the commission under rule 5 of the Punjab Public Service Commission (Functions) rules, 1978.
ii. BY PUNJAB PUBLIC SERVICE COMMISSION U/RULE 16:
All other initial appointments to posts in BS 16 and above shall be made on the basis of examination or test conducted by the Punjab Public Service Commission.
VI. QUALIFICATIONS FOR INITIAL APPOINTMENT:
A candidate for initial appointment to a post must possess the following:
i. EDUCATIONAL QUALIFICATIONS:
He must possess prescribed educational qualifications.
ii. EXPERIENCE:
He must possess experience which would include equivalent experience, in a profession or in service, of an Autonomous or Semi-Autonomous organization or a private organization.
iii. AGE LIMIT:
He must be within the age limit as laid down for the post.
a. RECKONING OF AGE IN CASES BASED ON WRITTEN EXAMINATION:
Where recruitment is to be made on the basis of a written examination, age shall be reckoned as on the first of January of the year at which the examination is proposed to be held.
b. RECKONING OF AGE IN OTHER CASES:
In all other cases of initial recruitment, age shall be reckoned as on the last date fixed for submission of application for appointment.
c. EXCEPTION:
The condition of age limit may be relaxed as provides in the rules framed for the purpose of relaxation of age limit.
VII. ADDITIONAL MARKS FOR CHILD OF A DECEASED CIVIL SERVANT U/S 17-A:
Whenever a Civil Servant, dies while in Service, anyone of his unemployed children may be employed by the appointing authority against a post for which he possesses the prescribed qualifications and experience and if he qualifies in the test, examination or interview, he may be given 10 additional marks in the aggregate by Punjab Public Service Commission of by the Appropriate Selection Board or the committee.
7. APPOINTMENT BY PROMOTION OR TRANSFER:
I. MEANING:
i. PROMOTION:
The appointment of a member of a service of class of service in any category or grade to a higher category or grade of such service or class.
ii. TRANSFER:
Transfer means the move of an official from the headquarters station in which he is employed to another such station either to take up the duties of a new post or in consequence of change of his headquarters.
II. LAW REGARDING APPOINTMENT ON PROMOTION:
i. ELIGIBILITY FOR PROMOTION U/S 8:
A Civil Servant possessing such minimum qualifications as may be prescribed, shall be eligible for promotion.
ii. BASIS OF PROMOTION V/S 8(2):
a. IN CASE OF SELECTION POST:
It refers to that post which requires a special qualification or a particular experience. In that case, basis shall be merit.
b. IN CASE OF NON-SELECTION POST:
In such case, the basis of promotion shall be seniority and fitness:
iii. PASSING OF TEST U/S 12:
No person shall be promoted to a higher grade unless he has passed such test as may be specified by appointing authority.
=> EXCEPTION:
Government may dispense with the requirement of passing the test.
iii. LAW REGARDING APPOINTMENT ON TRANSFER:
i. OBLIGATION OF CIVIL SERVANT U/S 9:
Every Civil Servant is under obligation to serve anywhere within or outside the province on any post under the provincial GOVT or the Federal GOVT.
=> PROVISO:
Where a Civil Servant is required to serve in a post outside his service or cadre, his pay shall not be less favourable than those to which he would have been entitled, if he had not been so required to serve.
ii. APPOINTMENT WHERE PERSON HOLDS AN APPOINTMENT ON REGULAR BASIS V/S 11(1):
If a person holds an appointment on a regular basis in the same grade as that of the post to which appointment is proposed to be made than he .may be transferred from one functional unit to another functional unit.
iii. APPOINTMENT WHERE PERSON HOLDS AN APPOINTMENT IN THE FEDERAL GOVTAND OTHER PROVINCES OF PAKISTAN:
Appointment by transfer may be made from amongst person holding appointments in Federal GOVT, and other provinces of Pakistan, if the person fulfills conditions of appointment to the post to which he is transferred and satisfies such other conditions as may be laid down by the GOVT, in this respect.
iv. APPOINTMENT WHERE PERSON HOLDS APPOINTMENT IN ALL PAKISTAN UNIFIED GRADES U/PROVISO TO RULE 11:
Where person holding posts in all Pakistan unified Grades, they may be appointed by transfer to a certain number of posts as may be determined from time to time.
IV. PROCEDURE FOR APPOINTMENT ON PROMOTION OR TRANSFER:
The GOVT, may Constitute Departmental Promotion Committees to make selection for appointment by promotion or transfer to posts specified by the GOVT, and there shall also be a Provincial Selection Board.
i. ROLE OF PROVINCIAL SELECTION BOARD U/S 4(4):
The Provincial Selection Board shall make selection for appointment by promotion and transfer to posts in BS-19 and above and for posts in BS-18 included in the schedule IV of the Punjab Government rules of business, 1974.
ii. RECOMMENDATIONS OF APPROPRIATE COMMITTEE OR BOARD U/S 9:
Appointments by promotion or transfer to posts in various grades shall be made on the recommendations of the appropriate Committee or Board.
iii. PERSONS WHO WILL BE CONSIDERED BY SELECTION AUTHORITY U/S 10:
Only such persons who has' possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the selection authority.
iv. PERIOD OF PROBATION U/S 5 AND RULE 7:
Appointment on promotion or transfer may be on the period of probation of one year and it may be extended by further period not exceeding two years in all.
8. FINAL REMARKS:
No one has a fundamental right to be appointed to or retained in Service under the Government Article 27 of the constitution of Pakistan 1973 only guarantees the equality of opportunity in the matter of employment and protection against discrimination when a person fulfills a manner prescribed in the Punjab Civil Servants (Appointment and Conditions of Service) rules, 1974, he may be appointed to Civil Posts either by initial recruitment or by transfer or promotion.
QUESTION-NO-2
probation
Q. What do you understand by the term probation? Discuss the principles about appointment of Civil Servant on Probation. (2001)
Q. Discuss the rules of probation and confirmation under Punjab Civil Servants Act 1974.
1. INTRODUCTORY NOTE:
A probationary appointment is a preliminary step towards the permanent appointment of a person to a particular post that is appointee is taken on trial so that if he is judged fit to held the appointment, he is made permanent in the post otherwise he is either discharged from service or sent back to his original post.
2. MEANING OF PROBATION:
"Probation means period of testing and trial".
3. DEFINITION OF PROBATION:
Suspension of a Final appointment to an office until a person temporarily appointed to an office has by his conduct proved himself to be fit to fill the permanent appointment."
4. RELEVANT PROVISIONS:
=> Section 5 and 6 of Punjab Civil Servants Act, 1974
=> Rule 7 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974
5. Cross reference:
=> Section 6 and 7 of Civil Servants Act, 1973
6. MODES OF APPOINTMENT OF CIVIL SERVANTS:
Following are the different modes of appointment of Civil Servants,
I. Appointment by Initial Recruitment
II. Appointment by Promotion
III. Appointment by transfer
7. APPOINTMENT ON PROBATION U/SEC 5:
I. INITIAL APPOINTMENT:
An initial appointment to a service or post must be made on such probation as may be prescribed.
=> EXCEPTION:
Ad hoc appointment cannot be made on probation.
II. APPOINTMENT BY PROMOTION OR TRANSFER:
Appointment of Civil Servant by promotion or transfer may also be made on such probation and period of probation as may be prescribed.
8. PROBATION RULES U/RULE 7:
The main provisions of the probation rules are as follows,
I. PERIOD OF PROBATION:
If a person appointed to a post in a grade against a substantive vacancy, Permanent vacancy or vacancy where he gets right to be confirmed after he founds fit, he shall remain on probation.
i. For 2 years in case of initial appointment.
ii. For 1 year in case of appointment by transfer or promotion.
=> EXPLANATION:
Officiating Service i.e, when the permanent post is vacant due to some reason i.e, leave etc and some person is appointed to discharge the functions of the post without any intention of making the appointee permanent) and service spent on deputation to a corresponding or a higher post may be allowed to count towards the period of probation.
II. EXTENSION OF PERIOD OF PROBATION:
The appointing authority may extend the period of probation by further period not exceeding two years in all.
III. PERIOD OF PROBATION DEEMED TO BE EXTENDED:
If no orders have been made by the day, following the completion of the initial probationary period, the period of probation shall be deemed to have been extended.
9. DISCHARGE OF PROBATIONER U/SEC 5 (3):
If the satisfactory completion of probation includes the passing of a prescribed examination, test or training, and person who is appointed on probation has failed to pass it, shall,
I. If appointed by initial recruitment, be discharged.
II. If appointed by transfer or promotion, be reverted to such post from which he was transferred or promoted and against which he holds a lien or if there is no such post be discharged.
10. TIME TO DISCHARGE:
A probationer can be discharged before the original or extended period of probation.
11. NO SUBSTANTIVE RIGHT:
In case of appointment to a permanent post in a GOVT Service on probation, the servant so appointed does not acquire any substantive right to the post and consequently cannot claim if his service is terminated at any time.
12. CONFORMATION OF PROBATIONER U/S 6:
If a person appointed on probation successfully completes his probationary period, he shall be eligible for confirmation.
I. DATE FROM WHICH CONFIRMATION TAKES EFFECT:
Confirmation shall take effect from the date of occurrence of permanent vacancy or from the date of continuous working in such service or post, whichever is later.
II.RETIREMENT BEFORE CONFIRMATION:
If a Civil Servant was eligible for confirmation but retires before being confirmed, he shall not be refused such confirmation or any benefit occurring thereon merely on the mound of his retirement.
III. CONFIRMATION ONLY AGAINST PERMANENT POST:
There shall be no confirmation against a temporary post.
13. RULES OF CONFIRMATION U/RULE 7:
Following are the rules of confirmation,
I. BAR TO CONFIRMATION:
No person shall be confirmed unless he has successfully completed such training and passed such
departmental examination as may be prescribed.
II. CANDIDATE DEEMED TO BE CONFIRMED:
If no orders have been made by appointing authority by the day on which the maximum period of probation expires, he shall be deemed to have been confirmed.
=> PROVISO:
It is necessary that a person must pass departmental examination and successfully completed such training as may be prescribed.
14. CONSIDERATIONS FOR CONFIRMATION:
Considerations for the confirmation are seniority, satisfactory work and availability of permanent post.
15. FINAL REMARKS:
On a permanent post initial appointment has to be made on probation and other appointments may be made on probation. A person gets a right to hold the post only after being confirmed and as a general rule person duly confirmed cannot be reconfirmed except after serving due notice and giving defense opportunity.
QUESTION-NO-3
Seniority and promotion of Civil ServantS
Q. Is Seniority of a Civil Servant under Punjab Civil Servants Act, 1974 is a vested right if so, can Civil Servant claim promotion as a matter of legal right? (1998) (2000) (2001)
1. INTRODUCTORY NOTE:
The power of making rules of seniority subordinate the right of seniority but in Punjab, there is no such subordination of the right of seniority and it is continued to be vested right of Civil Servant unlike in Federation or other provinces. A Civil Servant can claim to be considered for promotion on the basis of Seniority.
2. RELEVANT PROVISIONS:
=> 4 Section 7, 8 and 8-A of Punjab Civil Servants Act, 1974
=> 4 Rule 8, 9, 10 of Punjab Civil Servants (Appointment and Conditions of Services) rules, 1974
3. LAW REGARDING SENIORITY OF CIVIL SERVANTS U/SEC 7:
I. MEANING OF SENIORITY:
The expression seniority has not been defined by the Act, so it may be taken in its general sense,
"A Civil Servant is said to be senior in relation to another when the duration of his service is longer".
II. SENIORITY AS VESTED RIGHT:
That Punjab Civil Servants Act not expressly say that seniority shall not be a vested right though all other laws said so expressly, so it is continued to be a vested right of Civil Servant.
III. DETERMINATION OF SENIORITY:
i. PERSON APPOINTED ON INITIAL APPOINTMENT U/SEC 7:
Seniority on initial appointment to a Service, Cadre or post shall be determined in the manner
prescribed by rules.
a. IN ACCORDANCE WITH MERIT IN CASE OF INTER SE SENIORITY U/RULE 8(l)(a):
In case of persons appointed by initial recruitment, the inter se seniority of persons shall be determined in accordance with the order of merit assigned by the selection authority.
=> PROVISO:
Persons selected in an earlier selection shall rank senior to the person selected in later selection.
b. IN CASE OF WITH REFERENCE TO PERSONS APPOINTED OTHERWISE U/RULE 8(2):
The seniority of persons appointed by initial recruitment to the grades against persons appointed otherwise to the same grades shall be determined with reference to the date of continuous appointed to the grade.
=> WHERE DATE OF APPOINTMENT IS THE SAME U/PROVISO TO RULE 8:
If the date of appointment is the same, than the person appointed otherwise shall rank senior to the person appointed and by initial recruitment and it will not affect inter se •seniority of persons belonging to the same category
c. DATE OF APPOINTMENT IN CASE OF GROUP OF PERSONS U/RULE 8(2) EXPLANATION:
In case a group of persons is selected for initial appointment at one time, the earliest date on which any of them joined the Service, will be deemed to be the date of appointment of all persons in the group.
ii. PERSONS APPOINTED BY PROMOTION U/SEC 7(2):
Seniority in a post, service or cadre to which a civil servant is" promoted, shall take effect from the date of regular appointment to that post.
a. PERSONS SELECTED FOR PROMOTION:
Civil Servants who are selected for promotion on a higher post shall retain their seniority inter se in lower post.
b. DETERMINATION OF INTER SE SENIORITY U/R 8(1)(b):
The inter se Seniority of persons appointed on promotion, shall be determined from the date of their continuous appointment in the grade.
=> PROVISO:
In case of two or more persons, if date of continuous appointment is the same, the older one shall rank senior to the younger person provided he must not be junior to the younger in below grade.
c. PROMOTION OF JUNIOR NOT AFFECTS THE INTERESTS OF SENIOR:
If a person junior in lower grade is promoted to higher grade on ad-hoc basis, it would not adversely affect the interests of his senior in the fixation of his seniority in higher grade.
d. PROMOTED FIRST SHALL RANK SENIOR TO THE ONE PROMOTED SUBSEQUENTLY:
If a person junior in a lower grade is promoted to the higher grade by superseding his senior latter is also promoted. Subsequently, the promoted first shall rank senior to the one promoted subsequently
e. DATE OF APPOINTMENT IN CASE OF GROUP OF PERSON U/R 8(2) EXPLANATION:
In case a group of persons appointed by promotion than the earliest date, on which any one of them joined the service, will be deemed to be date of appointment of all persons.
iii. SENIORITY LIST U/SEC 7(3):
For the proper administration of justice, the appointing authority shall from time to time cause a seniority list of members of such cadre or service to be prepared.
4. LAW REGARDING PROMOTION OF CIVIL SERVANTS U/SEC 8:
I. MEANING:
"It means taking of a further step on a ladder ".
II. DEFINITION:
The appointment of a member of a Service or class of Service in any category or grade to a higher category or grade of such service or class.
III. CONDITIONS FOR PROMOTION:
Following are the conditions for appointment on promotion,
i. POST MUST BE RESERVED FOR DEPARTMENTAL PROMOTION U/SEC 8:
It is necessary that a post to which the promotion of a Civil Servant is to be made, must be reserved under the rules to be filled by departmental promotion.
ii. PERSON MUST POSSESS MINIMUM QUALIFICATION U/SEC 8(2):
It is necessary that a person to be eligible for promotion must possess minimum qualifications as prescribed for the post.
iii. RECOMMENDATIONS OF APPROPRIATE COMMITTEE OR BOARD U/RULE 9:
It is necessary that appointment by promotion shall be made on the recommendations of the Appropriate Committee or Board.
iv. PASSING OF TEST U/RULE 12:
No person shall be promoted to a higher grade unless he has passed such test as may be specified by appointing authority.
=> EXCEPTION:
Government may dispense with the requirement of passing of test.
IV. BASIS OF PROMOTION U/SEC 8(2):
i. IN CASE OF SELECTION POST:
It refers to that post which requires a special qualification or a particular experience. In such case, basis shall be merit.
ii. IN CASE OF NON-SELECTION POST:
In such case, the basis of promotion shall be,
A. Seniority, and
B. Fitness
a. MEANING OF FITNESS:
It includes physical as well as mental fitness. It requires that a state of a person shall be such that it must not jeopardize the performance of a duty
=> DETERMINATION OF FITNESS:
For the determination of fitness of an employee, his service record was to be considered up to the date of his promotion.
V. PROMOTION IS NOT A LEGAL RIGHT:
No Civil Servant has vested right to promotion and the giving or refusal of promotion is a matter which is within the exclusive discretionary domain of the executive authorities, concerned-m the matter.
i. ACCORDING TO RULE 9(2):
Promotion including pro forma promotion shall not be claimed as of right by any civil servant.
VI. RIGHT TO BE CONSIDERED FOR PROMOTION:
The right to be considered for promotion of person eligible is a vested right, and he can enforce his right to be considered for promotion through filing an appeal to the Punjab Service tribunal.
i. ACCORDING TO RULE 10:
Only such persons who possess the qualifications and meet the conditions laid down for purpose of promotion, shall be considered by the Selection Authority.
VII. DIFFERENCE BETWEEN ELIGIBILITY AND FITNESS FOR PROMOTION:
Fitness for promotion implies that a Civil Servant must have satisfactory record of Service and it is a matter which is not within the jurisdiction of Service tribunal in view of bar contained in Section 4(1)(b)
of Punjab Service tribunal Act, 1974 and the jurisdiction of High Court can be invoked in such matters.
VIII. OUT OF TURN PROMOTION U/SEC 8-A:
In-addition to regular rules of promotion, the Civil Servant may be awarded out of turn promotion, if he exhibits the following,
a. Exemplary intellectual
b. Moral integrity
c. Financial integrity
d. High Standard of honesty
i. POWER TO GRANT OUT OF TURN PROMOTION:
Only the Competent Authority in empowered to grant out of turn promotion to a Civil Servant if he exhibits extra, ordinary ability in discharge of his duties.
5. FINAL REMARKS:
The principle of promotion from one post to another should be by selection on merit with due regarded to seniority. It is for the promoting authority to determine the suitability of a person for promotion e.g, fitness, Seniority mere seniority confers no title to promotion even in case of non-selection post.
QUESTION-NO-4
terminatION OF Civil ServantS
Q. When Service of Civil Servant terminated without notice? In what circumstances? (2000)(2002)(2003)
1. INTRODUCTORY NOTE:
It is a rule of natural justice that a person should be informed against any action taking against him but Section 10 of Punjab Civil Servants Act, 1974 is an exception to that rule and specifies cases in which Service of Civil Servant is terminated without notice.
2. MEANING OF CIVIL SERVANT U/SEC 2(b) PUNJAB CIVIL SERVANTS ACT, 1974:
Civil Servant means a person who is a member of a Civil Service of the province or who holds a Civil Post in connection with the affairs of the province but does not include,
i. A person who is on deputation to the province from the federation or any other province or authority,
ii. A person who is employed on contract or on work charged basis or who is paid from contingencies or
iii. A person who is a worker or workman as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923.
3. RELEVANT PROVISIONS:
=> Section 10, 11, 11-A of Punjab Civil Servants Act, 1974
4. TERMINATION OF SERVICE OF CIVIL SERVANT WITHOUT NOTICE U/SEC 10:
The Service of Civil Servant may be terminated without notice in the following cases,
I. DURING PERIOD OF PROBATION:
i. INITIAL PERIOD OF PROBATION:
Civil Servant may be terminated from his service without any notice giving to him during the Initial Period of Probation.
ii. IN CASE OF EXTENDED PERIOD OF PROBATION:
A Civil Servant may also be terminated even during his extended Period of Probation without serving him any notice.
=> EXCEPTION:
Where such Civil Servant is appointed by promotion on probation or is transferred from one Service Cadre or post to another Service Cadre or Post, his Service shall not be terminated so long as he holds a lien against his former post or cadre and he shall be reverted to his formed post Service or Cadre.
II. AD HOC APPOINTMENT LIABLE TO TERMINATION ON NEW APPOINTMENT:
A Civil Servant who is appointed on ad hoc basis may be terminated without notice, if his appointment is made terminable on the appointment of a person, on the recommendation of the selection authority and that appointment is made. Where no such appointment is made, ad-hoc appointee has a right to continue and he cannot be terminated without notice.
5. SCOPE OF SECTION 10:
Section 10 deals with cases in which the Service of Civil Servant may be terminated without notice, it does not deal with cases where a Civil Servant is dismissed.
6. REVERSION TO A LOWER GRADE OR SERVICE U/SEC 11:
When a Civil Servant is appointed on ad hoc, temporary or officiating basis, he may be reverted to his former post without serving notice on him.
I. REQUISITE:
It is necessary condition that the reversion must be made to the same Service or Cadre in which he was previously working.
7. PERSONS LIABLE TO REMOVAL OR REVERSION U/SEC 11-A:
Any Civil Servant appointed during 1st January 1972 to 5th July 1977 may be removed from his Service without notice.
8. FINAL REMARKS:
The Civil Servant may be terminated during the period of probation, if he has failed to prove himself fit for the post and he cannot appeal against such Order because he has not get any right for the post during the probationary period and his service may also be terminated without notice if he is an ad hoc basis and his appointment is made terminable on the appointment of a person and he could not claim as of right retention in Service unless qualify the Punjab Public Service Commission Examination.
QUESTION-NO-5
penalties
Q. Define the word misconduct? What are the various penalties which can be imposed on Civil Servants proved guilty of misconduct? (1998) (2000) (2002) (2003)
1. INTRODUCTORY NOTE:
Any Civil Servant who is found guilty of misconduct, corruption, inefficiency or engaged in suspected or subversive activities may be punished with the penalties either minor or major under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975.
2. RELEVANT PROVISIONS:
=> Rules 3 and 4 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975
3. LAW REGARDING IMPOSITION OF PENALTIES:
I. GROUNDS FOR IMPOSITION OF PENALTY U/RULE 3:
Following are the grounds for imposition of penalty,
i. Inefficiency
ii. Misconduct
iii. Corruption
iv. Engagement in Suspected or subversive activities
i. INEFFICIENCY:
A Civil Servant who is inefficient- or has ceased to be efficient may be vested with penalty Inefficiency refers to something of a lasting character and not likely to be get rid off.
ii. MISCONDUCT:
Misconduct is an act of individual,
a. Which is against the good order of Service discipline or
b. Which is not in accordance with the WP Government Servants (conduct) Rule 1966 or
c. Which is not approved by a gentleman officer or
d. Which bring political or any kind of influence from outside in respect of any matter regarding GOVT Servants.
iii. CORRUPTION:
If a person is found to be corrupt than a penalty may be imposed upon him. A person is considered to be corrupt if,
a. He or any of his dependents or any other person on his behalf in possession of pecuniary resources or of property disproportionate to his known sources of income which he cannot reasonably account for or
b. He has assumed a style of living beyond his ostensible means or
c. He has persistent reputation of being corrupt.
iv. ENGAGEMENT IN SUBVERSIVE ACTIVITIES:
If a Civil Servant is found to be engaged or suspected of being engaged in subversive activities or is guilty of disclosure of official secrets to any unauthorized person and his presence in service is prejudicial to National Security.
II. TYPES OF PENALTIES U/RULE 4:
Penalties can be categorized into following two types,
i. Major Penalties
ii. Minor Penalties
i. MAJOR PENALTIES:
Following are the major penalties awarded under Punjab Civil Servants (Efficiency and Discipline) Rules 1975,
a. REDUCTION TO LOWER GRADE OR POST:
Any Civil Servant who is found guilty under Rule 3 may be reduced to a lower grade or post.
b. RECOVERY OF LOSS:
A Civil Servant may be punished with to bear all the pecuniary loss or any part of it, which is caused to the GOVT, by negligence or breach of orders.
c. COMPULSORY RETIREMENT:
A Civil Servant may be punished with compulsory retirement that is retirement before the term of Service is expired.
d. REMOVAL FROM SERVICE:
A Civil Servant may be removed from Service if he is guilty under Rule 3 order of removal from service can be made only prospectively and not retrospectively.
e. DISMISSAL FROM SERVICE:
A Civil Servant may be dismissed from Service as an imposition of major penalty upon him. It is more serious in nature than the one from the removal of Service.
ii. MINOR PENALTIES:
Following are the minor penalties awarded under Punjab Civil Servants Rules 1975,
a. CENSURE:
A Civil Servant may be given penalty of censure as a minor penalty.
b. WITHHOLDING OF PROMOTION:
A Civil Servant may be awarded minor penalty of withholding of promotion for a specific period and it must be an order otherwise than one forum fitness for promotion.
c. WITHHOLDING OF INCREMENT:
A Civil Servant may be punished with withholding of a specific period and it must not be for the financial advancement.
d. STOPPAGE IN EFFICIENCY BAR:
A Civil Servant may be disallowed to cross an efficiency bar in the time scale.
III. DISQUALIFY FOR FUTURE EMPLOYMENT U/RULE 4(2):
When a Civil Servant is dismissed from Service, he will be disqualified for future employment.
IV. REMOVAL OR DISMISSAL DOES NOT INCLUDE THE FOLLOWING U/R 4(3):
Removal or dismissal from Service does not include the discharge of a person,
i. Appointed on probation, during the period of probation or in accordance with probation of training rules applicable to him.
ii. Appointed otherwise than under a contract to hold a temporary appointment on the expiration of the period of the appointment
iii. Engaged under a contract in accordance with the terms of contract.
V. REQUIREMENTS FOR IMPOSITION OF PENALTY:
i. PERSONAL HEATING:
Personal hearing is an essential requirement for imposition of penalty whether minor or major and the penalty imposed without giving or opportunity of being heard is .liable to set aside.
ii. SHOW-CAUSE NOTICE:
Show cause notice is another essential requirement for imposition of penalty. Order of removal from service passed without affording second show-cause notice is liable to be set aside.
4. FINAL REMARKS:
The penalties may be imposed on Civil Servants who are found guilty and it is necessary that before imposition of penalty a formal show cause notice must be issued in which proposed penalty should be indicated and a personal hearing should also be allowed which is also guaranteed-by the constitution.
QUESTION-NO-6
inquiry procedure
Q. Explain the inquiry procedure against the Civil Servant on charge of corruption as given in Punjab (Efficiency and Discipline rules 1975. (1999)
Q. Differentiate between an authorized officer and authority. What is their role in the inquiry to be conducted against Civil Servant? (1999) (2000)
1. INTRODUCTORY NOTE:
A Civil Servant may only be removed after following the procedure prescribed in Punjab Civil Service efficiency and disciplinary rules 1975. The provisions of these rules are imperative in nature and based on Principles of Natural justice.
2. RELEVANT PROVISIONS:
=> Rule 5 to 12 of Punjab Civil Servants efficiency and Discipline rules 1975
3. GROUNDS FOR INQUIRY PROCEDURE AGAINST CIVIL SERVANT U/R 6:
I. Subversion
II. Corruption
III. Misconduct
4. ROLE OF AUTHORITY AND AUTHORIZED OFFICER IN INQUIRY PROCEDURE U/R 5:
Inquiry against a Civil Servant is to be initiated by the authorized officer or receiving directions by the authority in this regard.
I. MEANING OF AUTHORITY:
Under these rules authority means the GOVT or an officer appointed by it to exercise power conferred by these rules.
II. MEANING OF AUTHORIZED OFFICER U/R 2(C):
Ail official empowered by the authority to act on its behalf according to these rules is called an authorized officer.
5. MODES OF INITIATING PROCEEDINGS:
I. Suo Motu action by authority.
II. Authority to take action on information placed before it.
III. Where anti-corruption establishment as recommended departmental action.
6. APPOINTMENT OF AN AUTHORIZED OFFICER U/R 5(2):
Where there is no authorized officer, authority shall appoint an officer senior in rank to the accused to perform the functions of authorized officer.
7. PROCEDURE TO BE OBSERVED BY THE AUTHORIZED OFFICER BEFORE INITIATION OF PROCEEDINGS U/R 6:
I. SUSPENSION:
Accused Civil Servant may be suspended by the authorized officer with the prior approval of the
Authority.
II. LEAVE:
Authorized officer may ask the accused Civil Servant to proceed on leave.
III. CONTINUATION OF SUSPENSION OF EXTENSION OF LEAVE:
It requires the prior approval of the authority after every 3 months.
8. OPTIONS AVAILABLE TO AUTHORIZED OFFICER U/R 6(2):
Within 3 days of the receipt of the directions from the authority or within such further period as may be allowed by the authority the authorized officer shall decide,
I. To proceed suo motu or
II. To appoint an inquiry officer or committee
I. PROCEDURE WHERE AUTHORIZED OFFICER ACTS SUO MOTU:
Where authorized officer decides that it is not necessary to conduct an inquiry, he shall act Suo Motu and follow the following procedure,
i. INFORM THE ACCUSED:
He shall in form the accused of the action purposed to be taken against him.
ii. MENTION THE GROUNDS:
He shall mention the grounds for such action.
iii. GIVE HIM AN OPPORTUNITY OF SHOWING CAUSE:
Within 14 days from the date of receipt of order.
=> EXCEPTION:
Where the Security of Pak or any part is in question the authorized officer shall after taking prior approval of the authority, not give him an opportunity of showing cause.
iv. DETERMINATION WHETHER CHARGE IS PROVED U/R 6(4):
Within 7 days of the receipt of the explanation of the accused or within such further period as may be allowed by the authority, authorized officer shall determine whether charge is proved or not.
v. IMPOSITION OF PENALTIES WHEN CHARGE IS PROVED:
Once the charge is proved, following penalties may be imposed,
a. Minor Penalty
b. Major Penalty
vi. WHERE IT IS PROPOSED TO IMPOSE A MINOR PENALTY U/R 6(4):
The authorized officer shall,
a. Afford the accused an opportunity of personal hearing
b. Pass the order
vii. WHERE IT IS PROPOSED TO IMPOSE A MAJOR PENALTY U/R 6(4):
The authorized officer shall,
a. Afford an opportunity to accuse to offer explanation against his recommendation.
b. Forward the case to authority.
c. Along with explanation of the accused and his own recommendation.
viii. BAR AS TO APPEARANCE OF THE COUNSEL U/R 7-B:
The accused Civil Servant has to appear personally and there is bar on the appearance of the counsel.
ix. PERIOD OF LIMITATION U/R 7-C:
The proceedings must be finalized by the authorized officer within 45 days from the date of receipt of directions u/rule 5.
II. PROCEDURE WHERE AUTHORIZED OFFICER APPOINTS AN INQUIRY OFFICER OR COMMITTEE:
Where authorized officer decides that it is necessary to conduct an inquiry, he shall appoint an inquiry officer or inquiry committee,
i. CONSTITUTION OF INQUIRY COMMITTEE U/R 6(5):
It shall consist of 2 or more persons who or one of when shall be senior to accused or if there are more than one accused, senior to all the accused.
ii. FRAMING OF CHARGE:
After the constitution of inquiry officer or committee, the authorized officer shall frame charge and send it to the accused together with the allegations explaining the charge.
iii. WRITTEN DEFENCE BY ACCUSED:
Accused shall within 14 days submit a written defense to the inquiry officer after the charge is communicated to him.
iv. INQUIRY INTO THE CHARGE U/R 7(1):
On receipt of the record and explanation of the accused, the inquiry officer or committee as the case may be, shall enquire into the charge
v. EXAMINATION OF EVIDENCE U/R 7(1):
Inquiry officer or committee may take oral or documentary evidence from both sides.
vi. CROSS EXAMINATION OF WITNESSES U/R 7(1):
Where any witness is produced by one party, the other party shall be entitled to cross examine that witness.
vii. WHERE ACCUSED FAILS TO FURNISH EXPLANATION U/R 7(2):
In such case, the inquiry officer or committee shall proceed with the inquiry.
viii. ADJOURNMENT OF CASE U/R 7(3):
=> GENERAL RULE:
Inquiry officer or committee shall hear the case from day to day and there shall be no adjournment.
=> EXCEPTION:
The case may be adjourned but for that reasons shall be recorded in writing.
ix. ACCUSED HAMPERING OR ATTEMPT TO HAMPER THE PROGRESS OF INQUIRY U/R 7(4):
In such a case the inquiry officer or committee shall administer a warning to the accused.
x. ACCUSED ACTS IN DISREGARD OF WARNING U/R 7(4):
In such case the inquiry officer or committee shall proceed to complete the inquiry as he or it think fit to the substantial justice.
xi. ACCUSED ABSENT ON MEDICAL GROUNDS U/R 7(5):
In such case medical leave must be sanctioned by medical board.
=> EXCEPTION:
Authorized officer may sanction medical leave up to 7 days in his discretion.
xii. TIME FOR COMPLETING THE INQUIRY U/R 7(6):
Inquiry shall be completed within 60 days of submission of reply by the accused.
xiii. SUBMISSION OF REPORT TO THE AUTHORIZED OFFICER U/R 7(6):
Within 10 days of completion of such inquiry or within such further period as may be allowed by authorized officer a report to that effect shall be submitted to the authorized, officer by inquiry officer or committee.
xiv. DETERMINATION WHETHER CHARGE IS PROVED U/R 7-A:
After receipt of report, the authorized officer shall determine whether charge has been proved or not and if proved can impose following penalties,
a. Major
b. Minor
xv. WHERE IT IS PROPOSED TO IMPOSE MINOR PENALTY:
The authorized officer shall,
a. Afford an opportunity to the accused against an action purpose^ to be taken
b. Pass the order
xvi. WHERE IT IS PROPOSED TO IMPOSE MAJOR PENALTY:
The authorized officer shall,
a. Afford an opportunity to the accused to explain against his recommendations.
b. Forward the case to authority along with,
=> Charge sheet
=> Statement of allegation
=> Explanation of accused
=> Findings of the Authorized officer
=> Finding of Inquiry Officer
c. If the case is proposed to be dropped, authorized officer shall submit the case with all relevant material documents to the authority for appropriate orders.
xvii. TIME FOR COMPLETION OF INQUIRY U/R 7-C:
It must he completed in 90 days from the date of receipt of direction under rule 5 and shall submit report to the authority.
xviii. ACTION BY AUTHORITY U/R 8:
Authority may pass such orders as it deems fit but in cases of major penalties, authority shall,
a. Afford an opportunity to the accused of being heard personally before himself or
b. Before an officer senior in rank of the accused
9. FINAL REMARKS:
It is the rule of natural justice that the guilt of an accused Civil Servant has to be proved beyond all doubts and a reasonable opportunity must be provided to the accused Civil Servant before imposing penalty on him.
QUESTION-NO-7
determination of an appeal
Q. What is the procedure given in Efficiency and Discipline rules 1975, for the determination of an appeal filed by the aggrieved Civil Servant? (1998) (2002)
1. INTRODUCTORY NOTE:
Right of appeal is a right which is conferred by the express provisions of law and any Civil Servant who is found guilty under rule 3 of Punjab Civil Servants (Efficiency and Discipline) rules, 1975 may be punished with the penalties either minor or major under the said rules and any Civil Servant upon whom penalty has been imposed may file an appeal under rule 13 to 17 of the said rules.
2. MEANING OF APPEAL:
An appeal means removal of a cause from an inferior to a Superior Court, for the purpose of testing soundness of decision of an inferior court.
3. RELEVANT PROVISIONS:
=> Rules 13 to 17 of Punjab Civil Servants (Efficiency and Discipline) rules, 1975
4. LAW REGARDING IMPOSITION OF PENALTIES:
Law regarding imposition of penalties may be discussed as under,
I. GROUNDS FOR IMPOSITION OF PENALTY U/R 3:
i. Inefficiency
ii. Misconduct
iii. Corruption
iv. Engagement is subversive activities
II. CATEGORIES OF PENALTIES U/R 4:
i. Minor Penalties
ii. Major Penalties
5. APPEAL AGAINST ORDER OF AUTHORITY IMPOSING PENALTY:
I. TIME STIPULATED FOR PRESENTING AN APPEAL U/RULE 13:
An aggrieved Civil Servant has to file an appeal,
i. Within 30 days from the date of communication of the order
ii. If sufficient cause is given by Civil Servant. This time may be extended by the authority
II. FORM OF APPEAL U/RULE 14:
i. It shall be in writing and in the form of petition.
ii. It must contain the grounds of objections to the order appealed from.
iii. It shall not contain disrespectful or improper language.
III. FILING OF APPEAL U/RULE 14:
i. Every appeal shall be filed with the authority or the Authorized officer who passed the original order.
ii. The recipient shall forward the same along with the comments within a fortnight to the appellate
authority.
IV. APPELLATE AUTHORITY PROCEEDS WITH THE APPEAL U/RULE 15:
i. SERVING OF NOTICE:
Appellate authority shall serve a notice as to time and place, for hearing of appeal,
a. To the appellant and
b. The authority or authorized officer imposing penalty.
ii. CALLING OF RECORD:
The appellate authority shall send for the record of the case, if such record is not already with it.
iii. AUDI ALTERAM PARTERM (HEAR THE 0THER SIDE):
Reasonable opportunity must be given to appellant to present his side of the case.
iv. ENTERTAIN ADDITIONAL EVIDENCE:
Appellant authority can take additional evidence where it is necessary to do so. It may take such evidence either,
a. Itself, or
b. Direct it to be taken by the authorized officer.
v. POWERS OF THE APPELLATE AUTHORITY:
Appellate authority will have the following powers, while deciding an appeal,
a. To dismiss the appeal
b. To make an order for further or fresh inquiry
c. To reverse the finding and acquit the accused
d. To make the penalty
e. The enhance the penalty but before it, it is necessary that a reasonable opportunity must be given to the accused to show cause against that order and must inform the accused about the proposed action and the grounds for such as action.
V. HAR TO THE RIGHT OF APPEAL U/RULE 16:
In cases where the original order has been passed by the GOVT, no appeal shall lie against such order.
VI. REVIEW U/RULE 16:
A review petition may be filed to GOVT, where there is bar to the right of appeal.
i. RULE OF AUDI ALTERAM PAR TERM:
a. GENERAL RULE:
It shall not be necessary for the GOVT to afford the accused an opportunity to be heard in person.
b. EXCEPTION:
Where the GOVT proposes of, increase the penalty than the reasonable opportunity of being heard must be given to the accused.
VIII. RIGHT OF SECOND APPEAL U/RULE 17:
i. GENERAL RULE:
No second appeal shall be against any order made by the appellate authority.
ii. EXCEPTION:
Where the appellate court enhances the penalty, a second appeal may lie.
iii. LIMITATION PERIOD:
A second appeal has to be filed within 30 days of the Communication of the order enhancing the penalty, and this period may be extended if there are sufficient grounds to do so.
iv. PROCEDURE TO BE FOLLOWED IN THE SECOND APPEAL:
The Second appeal shall be filed in the manner indicated in rule 14 and the Second appellate authority shall determine the appeal in the manner provided for the first appeal and may exercise any of the powers conferred on the first appellate authority.
6. FINAL REMARKS:
The right of appeal is not a fundamental right, nor does it arise from the principles of natural justice. It is only a statutory right arising from a statute. Right of appeal to the accused civil servant has been given under rule 13 of Punjab Civil Servant (Efficiency and Discipline) rules, 1975.
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