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Case No. 641/345 of 1974, decided on 7th September, 1980.

‑‑‑ No. 114, para. 3(1)‑‑Formation of opinion by competent authority i.e. President or his delegatee Governor‑Mandatory‑Record of appellant not given considered attention to judicially assess culpability in respect of service performance‑Compulsory retirement order, in circum stances, held, invalid and of no legal effect‑‑‑‑Punjab Service Tribunals Act (IX of 1974), S. 4.

Mohammad Anwar Malik v. Federation of Pakistan, etc, Appeal No. 584/525 of 1974 (unreported) rel.

This appeal was filed in 1974. It was being heard on grounds of jurisdiction and mala fides only when the Supreme Court of Pakistan ruled on 13‑6‑1975 In re : Mohammad Israr Nabi v. Government of Pakistan that this Tribunal was expected to go into the merits of each case arising out of action under M. L. R. 114. Consequently the appellant submitted fresh grounds of appeal and the appeal was heard on merits.

2. Zaigham Hussain, the appellant, joined service on 15‑10-1955 and was serving as Veterinary Assistant Surgeon in the Animal Husbandry Department when he was compulsorily retired on 18‑3‑1972 vide an order issued under M. L. R. 114. No charge‑sheet was served on the appellant nor was he otherwise informed of the reasons for this action. AS allowed by M.L.R.116, the appellant filed a review petition on 22‑3‑1972 but so far he has riot heard anything about its result.

3. The parties were heard. The appellant had nothing significant to say on the merits side since, according to him, he was not aware whether there really was any charge against trim. He stated that his service record was clean except for an adverse remark in his A. C. R. given by respondent No. 2 who had maintained a running enmity and malice towards the appellant per since the days when the‑ appellant was a student in the College of Animal Husbandry and respondent No. 2 was a teacher there. In fact, he said, mala fide on the part of respondent No. 2 could be the only reason for his premature retirement because the adverse entry mentioned by him was also the result of this mala fide. It was submitted that the appellant's case had not been examined by the Governor who had issued the order under M. L. R. 114 and that the Governor had no opportunity to apply his mind to the merits of the appellant's case before issuing the order because in just a day or two after promulgation of M. L. R. 114 hundreds of officials had been retired lake the appellant.

4. On behalf of the respondent‑Department it was stated that the record of the appellant was not as clean as he had made it out to be. The A. C. Rs. for a number of years between 1959 and 1971 contained adverse entries. It was denied that respondent No. 2 could have in any way engineered the com pulsory retirement of the appellant arid it was asserted that it was the appellant's own service record which had led to this action against him.

5. Quite apart from the merits of the case we are convinced that the record of the appellant was not given considered attention by the competent authority and that ,there was no application of mind in order to judiciously assess the culpability of the appellant in respect of his service performance. Even on merits the respondents were not able to satisfy us that the appellant's record really merited such a serious punishment as compulsory removal from service, particularly when he had not completed 25 years' service qualify ing for pension.

6. (In this connexion we would like to recall Appeal No. 584/525 of 1974 (In re: Mohammad Anwar Malik v. Federation of Pakistan, etc.) in whose judgment announced by us on 3‑8‑1980 we dealt with some detail with the aspect of non‑application of mind in the case of retirement under M. L. R. 114. We reiterate our view expressed in that case. It is our considered opinion in the instant case also that it was imperative for the competent authority to form an opinion in order to apply paragraph (3)(1) of M. L. R. 114 to a civil servant, before deciding the matter against him. The respondents have no been able to establish, nor have they been able to convince us, that the competent authority in this case, i.e. the President, or his delegatee, the Governor, did form the opinion in respect of the appellant in terms of the requirement of paragraph (3)(1).

In view of the above we accept the appeal and hold the impugned order to be invalid and, therefore, without any legal effect.

Appeal accepted.

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