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Civil Petition for Special Leave to Appeal No. 78‑R of 1982, decided on 18th October, 1982.
(Against, the order dated 15‑2‑1982 of the Service Tribunal Islamabad Camp. Lahore in Service Appeal No. 1831‑L/1978).
‑‑‑ Art. 212 (3) read with Art. 185 (3)‑Leave to appeal‑New point‑ Question of law of public importance ‑Contentions as to respondent being not a civil servant and action taken against him being not mala fide not raised either by filing a reply to memo. of appeal filed by respondent before Service Tribunal or by addressing arguments before such tribunal‑Held : Not possible in circumstances, to meaningfully review finding of Tribunal‑Appeal besides, also not raising any question of law of public importance, leave to appeal not justified.
Abdul Karim v. West Pakistan Province P L D 1956 S C (Pak.) 298 and Federation of Pakistan v. Mrs. A. V. Isaacs P L D 1956 S C (Pak.) 431 ref.
Munir Ahmad Sheikh, Deputy Attorney‑General with Muhammad Afzal Siddiqui, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing : 18th October, 1982.
‑The Government of Pakistan through Secretary Population Division, Ministry of Health, Islamabad, seeks leave to appeal against the judgment of the Service Tribunal dated 15‑2‑1982 whereby the termination of the service of the respondent was held to be mala fide and for that reason illegal and a direction was given for his re‑instatement with consequential benefits.
The respondent was employed as Store Supervisor Directorate of Produc tion and Publication (Population Division) when he was suspended on 4‑8‑1976, charge‑sheeted on 21‑8‑1976 and by an order dated 30‑5‑1978 punished by censure without regularising the period of suspension. Soon thereafter by an order dated 14‑6‑1978 his services were terminated w. e. f. 15‑6‑1978 by giving him one month salary in lieu of notice. Before the Tribunal the Petitioner was proceeded ex parte and in proceeding ex parte against the Petitioner the Tribunal made the following remarks:‑
"We are constrained to point out that as early as 16th March, 1979 the respondent had been addressed our notice to file objections, if any, by 26‑6‑i 979 failing which the plaint was to be heard ex parte. This lack of response from the department concerned is regrettable for it impedes the administration of justice which is certainly not the intention of the Government."
The Tribunal held that the order of termination of the service of the respon dent was mala fide for the following reasons:‑
"(a) The appellant was quickly re‑instated when he filed a civil suit challenging his illegal suspension of about 20 months during which time the department concerned had failed to conduct any enquiry.
(b) The penalty of "Censure" was imposed without any legal procedure being followed.
(c) Soon after his re‑instatement the appellant's service was terminated probably as a revenge against his having sought redress through a civil suit."
The learned Deputy Attorney‑General in the first place contended that the respondent was not a civil servant at all and secondly that it was open to the Government in the light of decisions given by this Court in the case of Abdul Karim v. West Pakistan Province (P L D 1956,5 C (Pak.) 298) and Federation of Pakistan v. Mrs. A. V . Isaacs (P L D 1956 S C (Pak.) 431) to proceed departmentally or in the alternative to invoke the termination clause with notice or pay in lieu thereof. The adoption of one course rather than the other by itself did not make the action mala fide.
We find that what the learned Deputy Attorney‑General seeks is a challenge to the finding of fact recorded by the Service Tribunal. His task is more difficult because he had not laid the foundation for any such challenge as the issue that the respondent was not a civil servant or that' the action was not mala fide was not raised either by filing a reply to the memo of appeal filed by the respondent before the Tribunal or by addressing arguments before it. In the circumstances, it will not be possible for us meaningfully review that finding. Besides, the appeal does not raise a question of law of public importance which alone could justify leave to appeal under Article 212 (3) of the Constitution. Leave to appeal is therefore refused.
Leave refused
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