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Civil Appeal No. 309 of 1980, heard on 13th February, 1982.
(On appeal from the judgment dated 24‑7‑1977 of the Punjab Service Tribunal, Lahore passed in Case No. 441/176 of 1974).
‑‑‑ S. 4 read with Martial Law Regulation, 1972 [C. M. L. A.'s] No. 114‑Premature retirement‑Mala fides‑Petitioner though failing to establish mala fides on part of President of Pakistan in whose name order of petitioner's premature retirement passed yet Tribunal, acting as Court of appeal on administration side empowered, as observed in P L D 1980 S C 292, to examine petitioner's case on merits and come to its own conclusion on question whether petitioner rightly retired‑Tribunal not appearing to have examined entire service record of petitioner as well as correctness of orders of retirement, order of retirement set aside and case remanded for fresh decision on merits.
Federation of Pakistan v. Saeed Ahmad P L D 1974 S C 151 and Muhammad Israr Nabi v. Province of Punjab and others P L D 1980 S C 292 ref.
Syed Talib Hussain Rizvi, Advocate Supreme Court with S. All Imam Naqvi, Advocate‑on‑Record for Appellant.
Respondent No. 1 : Ex parte.
S. D. Qureshi, Advocate Supreme Court with Sh. Ijaz Ali, Advocate‑on Record for Respondent No. 2.
Date of hearing : 13th February, 1982.
‑This is an appeal by leave of this Court against the order dated 24‑7‑1977 of the Punjab Service Tribunal, whereby the appellant's appeal' against his retirement from service as a P. C. S. Officer, under Martial Law Regulation 114 with effect from 12‑3‑1972, was passed.
2. The appellant had in the appeal raised the plea of mala fide and an issue had been framed on that plea. The appellant had led evidence to show that his retirement had been due to enmity harboured against him by Mr. Mustafa Kbar, the then Governor of the Punjab, on account of his having summoned the said Governor's sister's son, Kh. Ghulam Ilyas, in a complaint case under section 504/506, P. P. C, instituted in his Court by one Maqsood Ahmad Baloch. The Tribunal, however, relying on Federation of Pakistan v. Saeed Ahmad P L D 1974 S C 151 held that as no mala fide had been proved or even alleged against the President of Pakistan himself, at whose order the appellant had been retired, the evidence produced by him, even if accepted, could not establish mala fide against the competent authority, i.e., the President of Pakistan. Upto this view of the matter and without examining any other aspect of the case, the Tribunal dismissed the appeal.
3. In a similar circumstance in Muhammad Israr Nabi v. Province of Punjab and others P L D 1980 S C 292 this Court had come to the view that although the petitioner had failed to establish mala fide on the part of the President of Pakistan, in whose name the order of the petitioner's premature retirement was passed under Martial Law Regulation 114, yet the Tribunal sitting as a Court of Appeal on the administrative side, had the power, and, in fact, an obligation, examine the petitioner's case on merit to come to its own conclusion on the question whether the petitioner was rightly retired or not ...... There is no indication that the Tribunal had examined the entire service record of the petitioner as well as the correctness of the allegations which had been made against the petitioner for the purpose of his compulsory retirement. It is clear that the petitioner has been deprived of a valuable right by the failure of the Tribunal to examine this matter in proper detail."
On this view, the order appealed against bad been set aside, and the case remitted for "a fresh decision on merits in the light of the petitioner's service record and the other relevant material".
4. Mr. Talib H. Rizvi, Advocate, appearing for the appellant prayed for according a similar treatment to the present appeal. Mr. S. D' Qureshi, Advocate, appearing for the Provincial Government, had nothing to say against the prayer. We are satisfied that the decision in the aforecited case of Muhammad Israr Nabi is fully applicable to the appeal in hand and accordingly we allow this appeal, set aside the impugned judgment of the Tribunal and remit the case for a fresh decision on merits taking into consideration the appellant's service record and other relevant material. There shall be no order as to costs.
Appeal allowed/Case remanded.
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