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(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 1st October 1969 in Writ Petition No. 510 of 1965).

-- S. 5-Condonation of delay-Respondent dying during pendency of appeal-Application for bringing legal representatives of deceased filed about a month beyond limitation-No counter-affidavit filed to controvert ground of condonation of delay-Such fact alone, held, sufficient to justify setting aside of abatement of appeal.[Abatement of appeal-Condonation o1 delay].

Art.212(2) read with Service Tribunals Act (LXX of 1973), S. 4(1)(c)-Order of compulsory retirement made before let July 1969-Service Tribunal. held, had no jurisdiction to deal with matter.[Civil services-Jurisdiction].

Khan Falzullah Khan v. Government of Pakistan P L D 1974 S C 291

Art. 17 7 read with Notification No. 860/3 5 dated 14-10-55 issued under Civil Service (Classification, Control and Appeal) Rules, 1961 and Civilian Employees in Defence Services (Classification, Control and Appeal) Rules, 1961-Civil servants-Constitutional guarantee-Post of Assistant Inspector Grade I described in Notification as a civilian post under Ministry of Defence-Subsequent civilian list also describing such post as civilian post in connection with affairs of Central Government-Subsequent replacement of Civil Service (Classification. Control and Appeal) Rules. 1961 (basis of Notification) by :Civilian Employees in Defence Services (Classification, Control and Appeal) Rules. 1961 and consequential redesignation of such incumbent of office as a member of Defence Services (Civilian Class I), held, did not make Mighteit difference and constitutional guarantee provided in Art. 177 fully available to such incumbent of office.;[Civil service].

Government of Pakistan and another v. S. A. H. Bokhary P L D 1961 S C 5605 and Abdul Majid Sheikh v. Mushaffe Ahmad and another P L D 1965 -B C 208 ref.

Per Muhammad Gal, J. (agreeing).

Civilian employees in a "Defence Establishment" as a class have been treated by the successive Constitutions as a separate category from the generality of the civil servants to whom guarantees about security of tenure .are available.

Ghairat Hayat v. The Federation of Pakistan P L D 1960 S C 227 Z Pakistan v. Muhammad Ayub Khan P L D 1965 S C 661 and Imdal Ali v. The Director of Remounts, Veterinary and Farms (G. H. Q.), Rawalpindi P L D 1966 Lah. 1031 ref. Jd) Constitution of Pakistan (1962)

-- Art. 177 read with Civilian Employees in Defence Service (Classification, Control and Appeal) Rules, 1961, r. 8-Civilian employees in ;Defence Services-Constitutional protection-Compulsory retirement Respondent a civil employee in Defence Service found guilty of misconduct under r. 8 justifiably found to attract major penalty of .compulsory retirement from service - Respondent, but for such .premature retirement, having occasion to continue in, service for another 15 years, or so, till reaching age of superannuation, case, held, squarely fell within ambit of removal and, hence, assailable under Art. 171.-[Civil service].

The High Commissioner for India and Pakistan v. L M. Lall P L D 1948 C 150 and Shya nlal v. State of Uttar Pradesh and another A I R 1954 S C 359 not relevant.

Arts. 177 & 32 read with Civilian Employees in Defence Service (Classification, Control and Appeal) Rules, 1961, r. 9(4)(e)-Civilian ,Employees in Defence Services-Compulsory retirement-Delegation of Powers - Show-cause notice-Formalities like that of issuance of show-cause notice -Business of Government transacted under statutory Rules of Business based on constitutional source-President hardly ,expected to personally take care of issuance and service of notices -Such matters regulated by Rules of Business or in event of delegation by delegatee-Matter to be viewed broadly and realistically-Order of compulsory retirement, held, could not be challenged on ground of notice to show cause against award of proposed punishment being issued not by President (Appointing, Authority), but by Defence Secretary-Show-cause notice, held further, need not necessarily be issued by appointing and dismissing authority himself.[Civil service].

Since Article 177 of 1962 Constitution did provide for delegation of powers of dismissal, removal or reduction in rank, in contradistinction from the corresponding provision contained in section 240 of the Government of India Act, 1935 and Article 181 of the 1956 Constitution and the proceedings against the respondent were taken under this very Constitutional source, namely, Article 177, no serious exception could be taken to the course adopted in the issuance of the final show-cause notice to the respondent particularly when no prejudice appears to have been caused to him which in fact is the crux of the matter. Such formalities as issuance of notice are the business of the Government to be transacted under the statutory Rules. of Business framed by the President in the case of the Federal Government and also based on Constitutional source. One cannot lose sight of the practicable difficulties of the President in such matters who can hardly be expected to personally take care of issuance and service of notices which are to be regulated by the Rules of Business or in the event of delegation by such delegatee. A broad and realistic view of the matter bas. therefore, to be taken. From the plain reading of the Constitutional provision, it is not possible to spell out nor does is otherwise, appear to be reasonable to presume that the slow-cause notice must necessarily be issued by the appointing. and dismissing authority himself. Article 32 of the 1962 Constitution authorised the President to make rules for the exercise of the powers vesting in him and for regulating the allocation and transactions of business of the Central Government. The crux of the matter is that the person against whom disciplinary action is proposed to be taken must know what punishment is proposed against him and on what grounds and he should be afforded a reasonable opportunity of showing-cause against the proposed disciplinary action. It is nowhere suggested that the final show-cause notice including the proposed punishment must be issued by the appointing authority himself.

The High Commissioners for India and Pakistan v. I. M. Lall P L D 194& S C 150 ; Secretary of State v. 1. M. Loll A I R 1945 F C 47 and Khem Chand v. Union of India and others A I R 1958 S C 300 discussed.

Per Mohammad Gal, J. (agreeing but for other reasons)-

In the face of a clear finding that respondent was afforded reasonable opportunity at the penultimate stage to show-cause against the proposal action and that disciplinary proceedings were started against him under the order of the President and that the final order of compulsory retirement was also made by the President, nothing in my opinion would turn on the fact if the notice at the penultimate stage of the proceedings was not issued by the President or under his direction.

Sharif Ahmad Ilashmi's case P L D 19(0 S C 227 ref.

Art. 177-Dismissal, removal, or reduction in rank-Requirements.-[Civil Service].

The requirements contained in the Article 177 of the Constitution 1962 and to be satisfied before an order of dismissal, removal or reduction in rank is made are; firstly, that such an order shall not be made by an authority subordinate to the appointing authority unless such a power has been delegated to the subordinate authority; secondly, that no such order in the nature of disciplinary action shall be made unless a reasonable opportunity of showing cause against the proposed action is given to the civil servant concerned. There are, however, two exceptions to the second requirement which could be dispensed with (f) in the event of conviction of the civil servant on criminal charge and an award of imprisonment on that account; and (ii) where in the circumstances of the case the competent authority either considers it impracticable to give an opportunity to show cause or deems it prejudicial to the security of Pakistan.

Art. 177-Compulsory retirement-Show-cause notice-Respondent afforded opportunity to show-cause, cause actually shown by respondent, and order of his compulsory retirement made by President himself after applying his mind to entire record as indicated by condonation of respondent's absence from duty for couple of months Nothing thus turns even assuming Defence Secretary to have tentatively proposed punishment unwarranted by nature of charges found established and on show-cause notice issued on behalf of Defence Secretary.-[Civil service).

Art. 187-High Court not considering necessary to examine allegations of mall fides specifically urged by respondent-Supreme Court having come to a different conclusion would have normally remanded case to High Court for determination of such point, such point getting support from same material on record, but respondent having died about 5 years earlier matter likely to involve respondent's legal heirs in a fresh round of litigation-Ends of justice, held, adequately met by allo4ing appeal with no order as to costs and legal heirs of respondent being not called upon to refund amount already paid on account of arrears of respondent's salary.

Per Muhammad Gul, J. (agreeing)-

The fact that there was "a certain amount of friction" between the respondent and the Head of his Department would not per se establish mall fides of the final order particularly when the order for the initiation of disciplinary proceedings and the final order were both by the President. On no discoverable principles can it be held that because of any "friction" between respondent and his immediate superior, the order by President was not made on the merits of the case. However that maybe, since the respondent is dead and the onus of showing mala fides of the order was on him, it would be otiose to remand the case for further enquiry on the allegation of mall fides of the final order of compulsory retirement. Having regard to the peculiar circumstance of the case, the Government as model employer should not insist for the refund of the amount paid to respondent after the decision by the High Court in his favour under a direction by this Court. Lot it be treated as bounty from . the State par excellence to the deceased officer.

Muhammad Afzal Lone, Advocate and Muhammad Af al Siddiqui, Advocate on-Record for Appellant.

Muhammad Arif Senior Advocate with M. Bilal, Advocate instructed by . IJiaz Ahmed Khan, Advocate-on-Record for Respondent.

Dates of hearing : 26th and 27th February 1976.

MUHAMMAD AFZAL CHEEMA, J.-Mr. Amjad Ali Mirza respondent herein an Assistant Inspector Grade I, M. G. O. Branch. G. H. Q., Rawalpindi, was served with a charge-sheet on 10-11-1962 containing allegation of absence from the duty and disobedience. A Deputy Secretary of the Ministry of Home Affairs was appointed as Inquiry Officer with the approval of the President. On conclusion of inquiry, he was served with a show-cause notice in terms of rule 9(4)(e) of the Civilian Employees in Defence Service (Classification, Control and Appeal) Rules, 1961. On 11-5-1959 he was called upon by the Defence Secretary/ Designated Authority to show cause within 14 days as to why he should riot be compulsorily retired from service and finally his compulsory retirement was ordered with effect from 10-8-1.963. The respondent challenged this order in writ jurisdiction of the High Court . on the grounds ; firstly, that the order of compulsory retirement as a punitive measure was tantamount to removal from service within the meaning of Article 177 of the 1962 Constitution and therefore, the President who was the appointing authority alone was competent to issue a show-cause notice to him which having been issued by the Defence Secretary was invalid and therefore, the final order of compulsory retirement based on this was also invalid ; second ', that since the respondent bad not been informed that he was being proceeded against for an alleged misconduct punishable with a major penalty, the proceedings stood viliated thirdly, that since neither the charge-sheet was approved by -the President nor for that matter the Inquiry Officer wa, appointed by him, the order was bad in law. Lastly, the order was also assailed an ground of mala fide and maliciousness on the part of the Director of Inspection Technical Development who for personal reasons was responsible for the initiation of these proceedings by deliberate denial of the privilege of leave to which the respondent was entitled particularly on grounds of genuine illness. Vide their judgment, dated 1-10-1969 the learned Judges of the Lahore High Court allowed the writ petition. The preliminary objection taken on behalf of the appellants herein that the respondent being a holder of a post in connection with the Defence of Pakistan was not entitled to the Constitutional protection under Article 177, was overruled. Reliance was placed in this regard on Government of Pakistan aid another v. S. A. X. Bokhary (P L D 1961 S C 605) and Abdul Majid Sheikh v. Mushaffe .Ahmad and another (P L D 1965 S C 208). Likewise, the contention raised on behalf of the Islamic Republic of Pakistan as to the incompetence of the writ petition on the ground that a case of compulsory retirement not being covered by any of the three situations of the dismissal, removal or reduction, envisaged by Article 177 was repelled. It was held that the order of compulsory retirement made by way of a major penalty under rule 8 of Civilian Employees in Defence Service (Classification, Control and Appeal) Rules, 1961 amounted to one of removal being challengeable under Article 177 of the Constitution. On examination of the record, it was held on the factual plane that the charge-sheet was approved by the President and the Inquiry Officer was also appointed by him. Nor was any irregularity discovered in the conduct of the inquiry which was found to be held in accordance with the procedure prescribed for a major penalty and therefore, no prejudice was caused to the respondent. Notwithstanding this, however. the writ petition was accepted on the ground that two stages were ,contemplated for showing cause ; (i) during inquiry to the charges against the civil servant concerned ; and (ii) on the conclusion of the inquiry when the punishment was proposed on being tentatively decided upon whereas in the instant case only one opportunity to show cause was afforded to the respondent which caused prejudice to his defence. It was also held by the learned Judges that rule 9(4)(e) of the Civilian Employees in Defence Service (Classification, Control and Appeal) Rules, 1961 by which the Defence Secretary was empowered by the President to issue a show-cause notice to the respondent was ulna vices of the provisions of Article 6 of the Laws Continuance in Force Order read with Article 181 of the 1956 Constitution and therefore, the show-cause notice by the Defence Secretary being without lawful authority could not form a valid basis for the order of the respondent's compulsory retirement. Having come to this conclusion, the learned Judges did not consider it necessary to go into the allegations of malice and mala fide. It was accordingly held that the order of compulsory retirement being without lawful authority and of no legal effect, the respondent still continued to hold the appointment from which he was removed.

From the above order of the High Court, a petition for leave to appeal was moved on behalf of the Islamic Republic of Pakistan through the Secretary, Ministry of Defence, Government of Pakistan. Leave was granted by this Court's order, dated 8-4-1970 to examine the contention that the High Court had erred in law in holding that the respondent was entitled to the protection of Article 177 of the 1962 Constitution and in holding further that rule 9(4)(e) of the Classification Rules, 1961, was ultra vices of the Constitution.

Before coming to the merits of the case, it in necessary to dispose of two preliminary objections raised on behalf of the respondent on points of abatement and limitation. During the pendency of the appeal, the respondent died on 11-I-1972. An application for bringing on record his legal representatives was filed on 16-5-1912 i.e. about a month beyond limitation. Since no counter affidavit has been placed on the record to controvert the ground for condonation of delay, this alone should be good enough to justify the setting aside of the abatement of appeal and I hold accordingly. Another objection raised on behalf of the respondent was that the petition for special leave to appeal which was filed on 14-2-1970 against the order of the High Court dated 1-10-1969 was also beyond time and that the allegations of tampering with the record in order to make the petition within limitation stood established in an inquiry held under the directive of the Chief Justice of the High Court and on the basis of these findings, the respondent had submitted a petition in this Court on 1-7-1971 praying for the recall of the leave granting order which was directed to be heard alongwith the main case. Subject to the tentative finding of this Court even if tampering were conceded, the petition was still within time. Having re-examined the position in the presence of the learned counsel for the parties, we have come to the conclusion that on the own showing of the respondent the limitation expired on 15-2-1970 but since 15th was Sunday followed by Eid Holidays on the 16th 17th and 18th, the petition could be filed on the 19tH of February 1970, on which date it was actually filed. This position was ultimately conceded by the learned counsel.

Before arguing on merits, learned counsel for the appellant raised a rather interesting and self-defeating preliminary point. Supporting the respondent's plea of abatement of the appeal though on different grounds, it was submitted by him that the Services Tribunal Act, 1970 promulgated under Article 212 (2) of the present Constitution came into force on 26-9-1973. Under Clause 2(c) of section 4 of this Act inserted by the Amending Act of 1974 no right of appeal existed against orders of departmental authority passed before 1-7-1969 and all proceedings in this regard stood abated under section 6 Ibid. On being told that if on the own showing of the learned counsel, the appeal stood abated as also urged on behalf of the respondent then that was the end of the matter and the Government should rest contented after having paid a sum of Rs. 14,7,723.65, to the heirs of the deceased respondent as arrears of his pay in compliance with this Court's order dated 1-7-1971, learned counsel advanced a rater fallacious and misconceived argument that the abatement of the appeal bad also the effect of wiping out the writ issued by the High Court. On a plain reading of the relevant provisions of the Services Tribunal Act, it is abundantly clear that there can be no question whatever of the abatement of this appeal on that score. Abatement of proceedings depends on the satisfaction of three pre-conditions firstly there should be a tribunal in existence ; secondly, the Tribunal should have jurisdiction to deal with the matter ; and thirdly, the matter must be pending before some Court.

It cannot be disputed that in the instant case the order of compulsory retirement of the respondent having been made before 1-7-1969, the Tribunal did not have the jurisdiction to deal with the matter. Reference may be made in this regard to this Court's judgment in Khan Fiazullah Khan v. Government of Pakistan (PLD 1974 SC 291), wherein precisely the same question was examined. I a thus in no manner of doubt that the appeal has not abated and all the preliminary objections raised on behalf of the parties must fail.

On the merits of the case learned counsel appearing for the Islamic Republic of Pakistan reiterated the contentions raised before the High Court, namely, that the respondent being in the Defence Service of Pakistan in terms of Article 98 (31(a) of the 1962 Constitution was not entitled to the protection of the Constitutional writ jurisdiction and that the respondent was neither removed nor dismissed or reduced in rank which were the only three situations contemplated by Article 177 of the 19t,2 Constitution and therefore, on that acre also the Constitutional guarantees were not available to him. It was next submitted that the show-cause notice issued by the Defence Secretary fully met with and satisfied the legal requirement and that rule 9(4)(e) of the Classification Rules, 1961 was not ultra vires of ;

(a) Article 181 of 1956 Constitution

(b) Article 6 of Laws Continuance in Force Order, 1958 ;

(c) Article 177 of 1962 Constitution.

It was argued that the judgment of the High Court in this regard was primarily based on the Notification No. 860/35, dated 1Q-10-1955 wherein, the respondent was mentioned under General Central Service at Serial No 14 as Assistant Inspector Grade I. This Notification, it was argued stood:

rescinded by implication. Reliance was particularly placed in this regard on rule 1(3) read with Rule 28(6) ibid. Learned counsel. however, conceded that the name of the respondent was recorded in 1948 and, was therefore. initially covered by Notification No. 860/35 dated 14-10-1955. For the non. availability of Constitutional guarantee to the respondent, learned counsel referred to the following authorities :

Ghairat Hayat v. The Federation of Pakistan P L D 1960 S C 227, Government of Pakistan v. S. A. H. Bokhary P L D 1961 S C 605, Abdul Majid Sheikh v. Mushaffe Ahmad P L D 1965 S C 206. Pakistan arid smother v. Muhammad Al ub Khan P L D 1965 S C 661, Imdad Ali v. The Director of Remounts, Veterinary and Farms, Q. M. G's Branch (G. I3'. Q.), Rawalpindi P L D 196-, Lah. 1031 and M. G. Hassan v. Government of Pakis, tan P L D 1970 Lah. 518.

In support of the next contention that an order of compulsory retirement was not covered by dismissal, removal or reduction in rank as mentioned in Article 177, reliance was placed on The High Commissioners for India and Pakistan v. L M. Lall (P L D 1948 P C 150), Federation of Pakistan v. Shamsul Huda (P L D 1957 Dacca 148) and Shyamlal v. State of Uttar Pradesh and another (AIR 1954 S C 369).

In defence of the Constitutional validity of rule 9(4)(e), it was argued by the learned counsel that it was for the first time that in Article 177 of 1962 Constitution, a departure was made from the corresponding provisions contained in section 240 of Government of India Act, 1935 and Article 181 of 1956 Constitution by providing for delegation of the powers of dismissal, removal etc. by the Appointing Authority. It was submitted that the power delegated under rule 9(4)(e) was confined only to issue of notice and therefore, judged with reference to Article 177 of the 1962 Constitution, its validity was unchallengeable. It was next argued that the 1961 Rules fell within the definition of existing Laws as held A. M. Khan Leghari v. Government of .Pakistan (P L D 1965 Lah. 214).

On the other hand, while frankly conceding that the order of compulsory retirement of the respondent was passed by the President, learned counsel for the respondent submitted that the fate of the case hinged on the determination of the question as to whether the notice was competently served on the respondent by the Defence Secretary. If the answer to the question was in the affirmative, the order of compulsory retirement was unexceptionable. He contended that the significant fact that on the review petition submitted by the respondent, the President treated him on leave up to September 1962, clearly showed a different approach and if he had personally applied his mind at all the relevant stages, the President might have come to a different conclusion. It was submitted that in view of the observation of the Inquiry Officer that "a certain amount of friction did exist between Mr. Mirza and Director of Inspection and Technical Development and that this fact alongwith the other facts that he had put in 21 years service and had not taken any earned leave since 1957 should be taken into consideration in awarding punishment" the possibility of the President taking a lenient view in the award of penalty could not be wholly excluded from consideration. It was next submitted that as held by the High Court that rule 9(4)(e; was in conflict with Article 181 of the 1956 Constitution as it contained no provision for delegation of powers. Reliance was placed on Government of Pakistan v. S. A. H. Bokharl. Lastly, a grievance was also made that the High Court did not consider the respondent's ground of malice and mala fide on which the whole battle was being fought by him, and that this Court in exercise of its Constitutional powers to do complete justice either itself should go into this question there being ample evidence available on the record or otherwise remand the case to the High Court for a fresh decision.

The first point relating to the availability of Constitutional guarantees to the respondent under Article 177 of the 1962 Constitution need not detain us any longer as the matter stood finally concluded by two judgments of this Court in Bokharl's case and Abdul Majid case which were discussed and rightly relied upon by the High Court in its judgment. The fact that the respondent held a post in connection with the Defence of Pakistan and was yet undeniably a civilian post did attract the provisions of Article 177 and the Constitutional guarantees provided therein were fully available to him. The undisputed factual position is that in Notification No. 860/35 dot 14-t 0-1955 published in Part III of the Gazette of Pakistan, the post off Assistant Inspector Grade I held by the respondent and shown at Item No. 14 of Schedule 1, was described as a civilian post under the Ministry of Defence in the General Central Services Class I. In a subsequent civilian list published in 1963 he was again described as holder of a civilian post in connection with,,, the affairs of the Central Government. The position in Bokhary's case referred to above was almost identical wherein Mr. Bokhary, a holder of a civilian post connected with Defence and mentioned in the same Notification dated 14-10-1955 was found to be entitled to the Constitutional protection of Article 181 of 1956 Constitution. The subsequent replacement of the Civil Service (Classification, Control and Appeal) Rules, 1961 under which the above Notification was issued by civilian employees in Defence Service (Classification, Control and Appeal) Rules, 1961 and the consequential redesignation of the respondent as a member of the Defences Services (Civilian Class I) did not mare the slightest difference. I am in respectful agreement with the following observation of S. A. Rahman, J. as his Lordship then was in Bokhary's case : "The fact that rules have been framed by the Military authorities with regard to discipline of members of the service to which the respondent belongs does not carry the matter any further for the appellants in such as those rules do not depart from the provisions of Article 181 of the late Constitution. If there is any inconsistency between those rules and Article 181, it is clear that the rules would have to give way". A more apt authority on the point, however, is the one contained in Abdul Majid s cage which dealt with the case of civilian employees in Defence Service so desegnated under the Civilian Employees Defence Service (Classification, Cotrol and Appeal), Rules, 1961 and was held to be entitled to tic protection of Article 177 of the 1962 Constitution under which the case of the respondent was also decided. The position in that case was on all fours with that in the instant case. Mr. Abdul Majid was a Civilian Gazette Officer working under the Ministry of Defence born on the cadre of the General Central Service Class I in 1955 and similarly redesignated as a Civilian Employee in Defence Service in 1963. He was found entitled to the Constitutional guarantees and his termination of service was held to be without lawful authority. I am, therefore, in full agreement with the view taken by the High Court on the basis of the, above-mentioned decisions of this Court which are directly in point.

Coming now to the next contention that the order of the respondent's retirement from service did not fall under any of the three categories of dismissal, removal or reduction in rank made under Article 177 of the Constitution, I am in no manner of doubt that the view taken by the High Court was absolutely correct to which no exception could be taken. It cannot be disputed that the respondent was found guilty of misconduct under Rule 8 of the Civilian Employees in Defence Service (Classification. Control an Appeal) Rules, 1961 which was found to have justifiably attracted the major penalty of his compulsory retirement from service. But for this premature retirement, he would have continued in service for another 15 years or so till D he reached the age of supperannuation. His case, therefore, squarely fell within the ambit of removal and thus assailable under Article 177 if grounds for such a challenge did in fact exist. In the authority relied upon by the learned counsel, namely. The High Commissioners for India and Pakistan v. 1. M. Loll and Shyamlal v. State of Uttar Pradesh and another there is nothing which could be construed in favour of this proposition. All that the latter authority lays down is that Act 311 of the Inuian Constitution may not be attracted in all cases of termination of service. No exception could, therefore, be taken to the invocation of the writ jurisdiction by the respondent. on that account.

This brings me to the last point as to whether in the circumstances of the case the validity of the order of the compulsory retirement of the respondent could be challenged on the ground that the notice issued to him to show cause against the award of the proposed punishment of compulsory retirement was issued to him not by the President who was the Appointing Authority in his case but by the Defence Secretary. In defence of the course adopted,. it was contended on behalf of the Government of Pakistan that it was for the first time that in manifest departure from the provision contained in section 240 of the Government of India Act, 1935 and Article 181 of the 1956 Constitution. a provision was made in Article 177 of the 1962 Constitution for delegation of its powers of dismissal, removal etc. by the Appointing Authority and that it was in exercise of this delegated power that the final show-cause notice was issued to respondent by the Defence Secretary. The view taken by the learned Judges in the High Court was that although the Defence Secretary was the designated authority under the 1951 Rules yet the power to dismiss, remove or reduce in rank any Government servant was not delegated to hint by the President who nominated him as the designated authority authorising him to issue a show-cause notice, arrive at a tentative decision as to the award of the penalty, complete the case and then submit it to the Appointing Authority, namely the President for passing orders as envisaged by Clause (e)' of sub-rule (4) of rule 9 of the relevant Rules mentioned above. According to the learned Judges, these Rules were framed by the President in pursuance of the Martial Law Proclamation dated 17-10-1958. Article 6 of the Laws (Continuance in Force Order, 1958) provided that all persons who immediately before the proclamation were in the service of Pakistan shall continue in the said services on the same terms and conditions and shall enjoy the same privileges if any and therefore, the respondent was entitled to the protection available to him under Article 181 of the 1956 Constitution which did not provide for any delegation of power and therefore, a show cause notice could be issued only by the competent authority, namely. the President and to that extent rule 9(a)(r) of 1961 Rules must give way is the Constitutional provision. Reliance was placed in this regard on the following observation made by S. A. Rahman, J. as his Lordship then was in Bokhart's case : "If there is any inconsistency between those rule and Article 181 it is clear that the rules would have to give way".

Having carefully considered the position, I am inclined to think that even. if technically there might be some force in the view taken by the High Court, in actual practice, the President could not conceivably be expected to personally examine all such matters and surely had to get the cases processed and examined through his Secretariat or other subordinate agency, in accordance with the Rules of Business. Admittedly, it was not an order of removal or compulsory retirement made by the Defence Secretary. Again it was clearly held by the learned Judges that no prejudice was caused to the respondent in the conduct o9 inquiry which was held in proper observance of the necessary procedure. It is not the respondent's case that the report of the Inquiry Officer making a specific reference to a personal bitterness between the respondent and the Director of Inspection Development and recommending a lenient view in the award of punishment was withheld from the President when he passed the final order of his compulsory retirement. On the other hand, the fact that the President while deciding the respondent's review petition condoning his absence from duty from 7-2-1962 to 28-9-1962 points to the contrary. It would not be out of place to reproduce in extenso the following observation made by the learned Judges in paragraph 9 of their judgment :

"9. We have examined the file of the case with the help of the learned counsel for the parties, and find that the charge-sheet was approved by the President and Inquiry Officer was also appointed by him. The charge-sheet was specific. The petitioner was provided with the statement of allegations along with the charge-sheet. The evidence in support of the allegations was recorded in his presence which in case of a minor penalty is not necessary. The proceedings were concluded by the Inquiry Officer in accordance with the procedure for major penalty and the petitioner, in our opinion, could have no doubt about the same. He at any rate, was not handicapped in any way, nor has he been prejudiced."

Since Article 177 of 1962 Constitution did provide for delegation of powers of dismissal, removal or reduction in rank, in contradistinction from the corresponding provision contained in section 240 of the Government of India Act, 1935 and Article 181 of the 1956 Constitution and the proceedings against the respondent were taken under this very Constitutional source, namely, Article 177, no serious exception could be taken to the course adopted in the insurance of the final show-cause notice to the respondent particularly when no prejudice appears to have been caused to him which in fact is the crux of the matter. Such formalities as issuance of notice are the business of the Government to be transacted under the statutory Rules of Business framed by the President in the case of the Federal Government and also based on Constitutional source. One cannot lose sight of the practicable difficulties of the President in such matters who can hardly be expected to personally take care of issuance and service of notices which are to be regulated by the Rule of Business or in the event of delegation by such delegatee. A broad and realistic view of the matter has, therefore, to be taken. This view in my .humble opinion is also in accord with and receives full support from a reason able interpretation of Article 177 itself which reads as follows :

177.-(1) Subject to this Constitution, a person who is a member of an All Pakistan Service or of a civil service of the Centre or of a Province, or who holds a civil post in connection with the affairs of the Centre or of a Province

(a) shall not be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed unless

that subordinate authority has been expressly empowered to do so by an authority not subordinate ; and

(b) Subject to clause (2) of this Article, shall not be dismissed or removed from service, or be reduced in rank, unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken with respect to him.

(2) Paragraph (b) of clause (1) of this Article shall not apply

(a) where a person i9 dismissed or removed from service, or reduced in rank, on the ground of conduct which has led to his conviction, entailing imprisonment, on a criminal charge ; or

(b) where an authority empowered to dismiss or remove a person from service, or to reduce a person in rank, considers that, in the circumstances of the case, it is not practicable to give to the person an opportunity of showing cause or that it would be prejudicial to the security of Pakistan for the person to be given such an opportunity."

The requirements contained in the Article and to be satisfied before order of dismissal, removal or reduction in rank is made are ; firstly, that such an order shall not be made by an authority subordinate to the appointing authority unless such a power has been delegated to the subordinate authority. secondly, that no such order in the nature of disciplinary action shall be made unless a reasonable opportunity of showing-cause against the proposed action is given to the civil servant concerned. There are, however, two exceptions to the second requirement which could be dispensed with (i) in the E. event of conviction of the civil servant on criminal charge and an award of imprisonment on that account ; and (ii) where in the circumstances of the case the competent authority either considers it impracticable to give an opportunity to show-cause or deems it prejudicial to the security of Pakistan. It was rot the respondent's case that there had been any breach of these pre-conditions. A perusal of the record would show that no grievance of this kind was made by the respondent before the President in his review petition and in fact outside the Court his whole battle appears to have been fought on the ground of mala fide.

From the plain reading of the Constitutional provision, it is not possible to spell out nor does it otherwise, appear to be reasonable to presume that the show. cause notice must necessarily be issued by the appointing and dismissing authority himself. Article 32 of the 1962 Constitution authorised the President to make rules for the exercise of the powers vesting in him and-for regulating allocation and transactions of business of the Central Government.

In support of its view that the final show-cause notice indicating the proposed punishment should have been issued by the President himself, the learned Judges in the High Court relied on three authorities of which two related to the case of Mr. 1. M. Lall, a member of the Indian Civil Service who was dismissed by the Secretary of the Stet.: on 4-6-1940 and having unsuccessfully challenged the order of his dismissal before tile High Court took an appeal to the federal Court of India which was allowed by a majority judgment holding inter alia that the dismissal was wrongful. The Secretary of State for India preferred an appeal before the Privy Council which was dismissed and the view taken by the Federal Court was upheld. Who third authority relied upon by the learned Judges is a division of the Indian Supreme Court in Khern Chand v. Union of India and others (AIR 1958 SC300 ). In the first mentioned two authorities, namely, Secretary of State v. I. M. Lall (AIR 1945 F C 47) and The high Commissioner for India and another v. 1. M. ball (P L D 1948 P C 150), the order of dismissal was found to be hit by section 240 of the Government of India Act, 1935 of which the relevant portion reads as follows:

"(1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His majesty's pleasure.

(2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.

(3) No such person as aforesaid shall be dismissed or reduced in rank until be has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:

Provided that this subsection shall not apply

(a) where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where an authority empowered to dismiss a person or reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity for showing cause.

The relevant observation contained in the judgment of the Federal Court in 1. M. Lall s case is reproduced below:

"It does however seem to us that the subsection requires that as and when an authority is definitely proposing to dismiss or to reduce in rank a member of the civil service be shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity, it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken and that the person concerned must then; be given reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken. It is suggested that in some cases it will be sufficient to indicate the charges. the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced if all or any of the charges are proved, dismissal or reduction in rank will follow. This may indeed be sufficient in some cases. In our judgment each case will have to turn on its own facts, but the real point of the subsection is in our judgment that the person who is to be dismissed or reduced must know that what punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed. That in our judgment involves in all cases where there is an enquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank, that the person concerned shall be told in full, or adequately summarised form, the results of that enquiry, and the findings of the enquiring officer and be given an opportunity of showing cause with that information why he should not suffer the proposed dismissal or reduction of rank."

In my humble opinion, the pith and substance of the ruling of the Federal Court is contained in the sentence underlined* by me. The crux of the matter is that the person against whom disciplinary action is proposed to be taken must know what punishment is proposed against him and on what grounds and he should be afforded a reasonable opportunity of showing K cause against the proposed disciplinary action. It is nowhere suggested that the final show-cause notice including the proposed punishment must be issued by the appointing authority himself. The show cause notice issued to Mr. I. M. Lall clearly fell short of the Constitutional requirement contained in section 210(3) of the Government of India Act. When this case came up before the Privy Council, it was observed by their Lordships as follows:

"In the opinion of their Lordships, no action is proposed within the meaning of the subsection until a definite conclusion has been cone to on the charges, and the actual punishment to foll3w is provisionally determined on. Prior to that stage, the- charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which subsection (3) makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage."

It may be observed with respect that the above observation also does not appear to lend any support to the view taken by the learned Judges. However, it may be pointed out that in all fairness that there are certain observations contained in Khem Chand v. Union of India and others which apparently support the view expressed by the High Court. In that case, the learned Judges were called upon to interpret Article 311(2) of the Constitution of India. In paragraph 19 of the judgment, the instances of reasonable opportunity envisaged by that provision were summarised as follows:

(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; anti finally ;

(c) acs opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and alter applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to Inflict one of the three punishments and communicates rue same to the government servant."

Paragraph (c) above does certainly indicate that the tentative proposal to inflict punishment must come from competent authority which should have applied its mind to the gravity or otherwise, of the charges against government servant before proposing the punishment.

Having carefully considered the position and in consequence of the foregoing discussion on the view taken by me, nothing would really turn on the fact that in the instant case the show-cause notice was issued on 'behalf of the Defence Secretary. Assuming that he had tentatively proposed a punishment unwarranted by the nature of charges found to be established against the respondent, the tact remains that the respondent was afforded an opportunity to show cause which he actually did and the order of his compulsory retirement was made by the President himself after having applied his mind to the entire record as clearly indicated by the condonation of the respondent's absence from duty for a couple of months:

In view of its decision regarding their competence of the final show cause notice, the High Court did not consider it necessary to examine the allegations of male fide which were specifically urged before it. Having come to a different conclusion, normally. I should have remanded the case to the High Court for determination o: this point on which surely there is also some material on the record. But since the respondent died as long ago as 11-1-1972 it would be unfair to involve his legal heirs in a fresh round of litigation. In my opinion, the ends of justice would be adequately met if the appeal is allowed with no order as to costs and the legal heirs of respondent are not called upon to refund the amount already paid to them on account of the arrears of his pay. I direct accordingly in exercise of the powers vesting in me under Article 187 of the Constitution which would be applicable to this case as unamended.

SALAHUDDIN AmugD, 1.-I agree.

ANWARUL HAQ, J. -I agree.

MUHAMMAD GUL, J.-I agree subject to my separate note of even date.

MLJHA31MAL GI)L, J.-I agree with the order proposed to be made by my learned brother Muhamr.,ad Afzal Cheema, J. However, my reasons are somewhat different indicated below.

1. In the face of a clear finding that Mr. A. A. Mirza was afforded reasonable opportunity at the penultimate stage to show cause against the proposed action and that disciplinary proceedings were started against him under the order of the President and that the final order of compulsory retirement was also made by the President, nothing in my opinion would turn on the fact if the notice at the penultimate stage of the proceedings was not issued by the President or under his direction. There is abundant authority in support of that view including the recent judgment of the Court in Shard Ahmad Hashml's case. The order of compulsory retirement cannot be treated as void in such circumstances.

2. Civilian employees in a "Defence Establishment" as a class have been treated by the successive Constitutions as a separate category from the generality of the civil servants to whom guarantees about security of tenure are available. Therefore, if I may say so with great respect, I would rather agree with the dicta in Ghairat Hayat v. The Federation of Pakistan (PLD1960SC227) and Pakistan v. Muhammad Ayub Ahan (PI.D 1965SC661) and adhere to the view taken by me in the High Court sitting with Sajjad Ahmad Jan, J. in lmdad Ali v.

Director of Remounts, Veterinary and Farms (1). All these cases were of civilians employed in Defence Establishments. The cases of S. A. H. Bokhary and Abdul Majid Sheikh proceeded on their own facts. There is nothing to show that Mr. Mirza belongs to any established all Pakistan service or any Central Service apart from being a civilian employee in the defence establishment being graded as Class I.

3. The fact that there was "a certain amount of friction" between Mr. Mirza and Director of Inspection would not per se establish, male fides of the final order, particularly, when the order for the initiation of disciplinary proceedings and the final order were both by the President. On no discoverable principles can it be held that because of any "friction" between Mr. Mirza and his immediate superior, the order by President was not made on the merits of the case. However that may be, since Mr. Mirza is dead and the onus of showing mala fide of the order was on him. I agree that it would be otiose to remand the case for further enquiry on the allegation of male fide .of the final order of compulsory retirement.

4. Having regard to the peculiar circumstances of the case, the Government as model employer should not insist for the refund of the amount paid to Mr. Mirza after the decision by the High Court in his favour under a direction by this Court. Let it be treated as bounty from the State par excellence to the deceased officer.

s. A. H. Appeal allowed.

(1) P L D 1966 Lah. 1031

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