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Case No. 578/1707 of 1981, decided on 13th November, 1983,

‑‑ S. 12 (ii)‑Compulsory retirement‑ Malicious action‑ Partici pation in Enquiry Commission involving highly placed departmental officers ‑Apprehension of victimization‑Assurance of full protection given against such victimization‑Findings of enquiry adverse to departmental officers not implemented and instead show‑cause notice issued on basis of adverse entries in service record‑Martial Law Authorities after examination of reply furnished withdrew show cause notice yet retired appellant compulsorily only after 40 days- Contention that adverse entry in service record recorded by unconcerned officer and hasty action in compulsory retirement was mala fides on part of functionaries who managed to influence and obtain impugned order from competent authority through misrepresenta tion of facts‑Held, plea of malice though very easy to allege but was difficult to prove‑Retirement of appellant being result of malice, biased mind, misrepresentation of facts and void ab initio‑ Appellant re‑instated in service with retrospective effect.

1979 PLC(CST)105 and PLD1974SC151rel.

Dr. Abdul Basil and Abu Talha Khan Burki for Appellant.

A. G. Humayun, District Attorney for Respondents.

Muhammad Iqbal Rathore has bled this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Province of the Punjab. Board of Revenue, Settlement and Rehabilitation Wing, Punjab and Secretary to Government of the Punjab, Settlement and Rehabilitation Department‑cum‑Member, Board of Revenue (S & R Wing), Punjab, Lahore, as respondents.

2. By virtue of this appeal it has been prayed that Notification bearing No. Admn. Sett /79/379, dated 24th January, 1980, wherein the appellant has been compulsorily retired from service under section 12 (ii) of the Punjab Civil Servants Act, 1974, be declared as without lawful authority and of no legal effect. It has been further prayed that the appellant be re‑instated in service with all back benefits.

3. Brief facts of the case are that the appellant joined service in the Rehabilitation Department as a Clerk on 5th November, 1951. Due to good work throughout his career he was promoted as A. A. O. on' 6th February, 1978. However, at the time of passing the impugned notifica tion the appellant was exercising the powers of Deputy Settlement Com missioner/Deputy Administrator (Residual Properties) at Faridkot House, Lahore. After the appellant had completed 25 years in service, his ad hoc promotion against the post of Assistant Accounts Officer, was regularized by the Provincial Government on the recommendations of the Departmental Promotion Committee vide notification dated 6th February, 1978. The appellant completed 25 years of his service on ist December, 1976. The services of the appellant was especially requisitioned by the Martial Law Authorities in connection with an inquiry conducted into the affairs of Karamse Shamse Cotton Ginning Factory, Sargodha. The appellant was appointed as Member (Technical) of Inquiry Commission No. 3, constitu ted under Martial Law Order No. 70, a fact which is not disputed. This Committee was presided over by Brig. Khalid Amin. The appellant was reluctant to be appointed as a Member of the said Commission for the reason that a number of officers Settlement Department some of whom were quite highly placed, were alleged to have been directly or indirectly involved in the scandalous affairs of Karamse Shamse Cotton Ginning Factory. The appellant presented his point of view to the President of the Inquiry Commission Brig. Khalid Amin and told him that he was prepared to perform his duties without fear and favour but that he was likely to be victimized in case adverse finding were recorded against Settlement Officers of his department and sought assurance of protection against such victimization. The President of the Inquiry Commission exten ded assurance of full protection to the appellant. The appellant performed his duties after the said assurance without fear and favour. When the said inquiry was completed, it was observed by the Martial Law Authorities as under:-

"Mr. Muhammad Iqbal D. S. C. Lahore Technical Member of the Commission has been of great help in conducting the Inquiry also apprehends victimization. It may be pointed out that it was Mr. Iqbal who conducted the initial probe and unearthed the fraud. Keeping in view the services rendered by Mr. Iqbal, the Commission ist ‑ recommends that he may be given full protection."

However, the‑President of the said Inquiry Committee in the minutes to the Martial Law Authorities, pointed out that the appellant be posted in some other Department so that he may not be victimised. Although the recommendations of the Martial Law Authorities suggested severe action against seven officials/officers but due to influence of the said persons at the relevant time they removed the record of the said recommendations of the Inquiry Commission and instead mechanization started to remove the appellant from service by hook or crook. A show‑cause notice under Martial Law Order No. 17 was issued to the appellant which has been placed at page 26 of the appeal and the said notice was issued on the instance of Mr. A. K. Khalid, then Chief Settlement Commissioner/ Member, Board of Revenue, Settlement Wing, Punjab. In the said notice the appellant was informed that he should show cause within seven days of the receipt of this notice why he should not be prematurely retired ‑from service. The appellant submitted reply to the said show‑cause notice which runs into a number of pages giving the entire background of victimization and Mr. A. K. Khalid, Member, Board of Revenue sent a reply to Brig. Martial Law, on 11th November, 1979, in which it was denied that the appel lant was being in any manner victimized and it was also observed that the record of the appellant was of below average and his ability to plan and organize, was very poor. However, the Martial Law Administrator after taking into consideration the reply of Mr. A. K. Khalid as well as reply of the appellant so submitted in this behalf, found it proper to cancel the said show‑cause notice received by the appellant on 25th October, 1979. However, the appellant was retired under the signatures of Mr. A. K. Khalid, in the name of the Governor of the Punjab, vide notification dated 24th January, 1980, i. e. hardly forty (40) days of the cancellation of the said show‑cause notice. The appellant filed a representation find review petition but the same were considered and rejected. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney and Ch. Muhammad Nazir Ahmad, Advocate, on behalf of the respondents and have perused the record of this‑ case care fully with their assistance.

5. Learned counsel for the appellant while arguing this case has submitted that the crucial document in this case would be the reply of Mr. A. K. Khalid against the representation of the appellant which he filed for cancellation of show‑cause notice issued in his name by the M. L. A, after the close of the inquiry in Karamse Shamse Cotton Ginning Factory. Learned counsel for the appellant has pointed out that in the said letter the learned Member, Board of Revenue/Chief Settlement Commissioner has pointed out an adverse entry given to the appellant by one Mr, Muqarab Khan, Settlement Commissioner (Inspector), Lahore whereas the person who could make any assessment of the work of the appellant was Mr. Mauj Din Khan, Settlement Commissioner, Lahore, under whom the appellant was working. According to the learned counsel the very fact that an adverse entry was arranged by the said Chief Settlement Com missioner in order to justify his action against the appellant, from a person who could not make such entry, goes to establish the case of malice against the said Chief Settlement Commissioner. He has also pointed out that the said Chief Settlement Commissioner, did not waste any time in getting the appellant retired in the name of the Governor when he found that his reply to the representation so submitted by him to the Martial Law Administrator, was not found satisfactory by the said authority and they instead of prosecuting the appellant, withdrew the said show‑cause notice. We have seen ourselves the reply of Mr. A. K. Khalid, the then Chief Settlement Commissioner, as well as the order of the Martial Law Administrator by which they cancelled the said show‑cause notice. While arguing his case the learned counsel has placed his reliance on the judg ment of Justice Shah Abdur Rashid, Chairman, Federal Service Tribunal, reported as 1979 P L C (C. S. T.) 105 in which it has been held that it would not be necessary in all the cases, to prove malice directly against the competent authority i. e. President in the said case. but when it was found that the functionaries of the said Government were in a position to secure such order from the President .s they bore ill‑will or malice against a particular civil servant it would be held that the point of malice stood fully proved for the said purpose. It has been vehemently argued that Mr. A. K: Khalid who happened to be Chief Settlement Commissioner at that time, must have been very much annoyed with the participation of the appellant on the Inquiry Commission, which made adverse recommenda tions against seven c:flicers of the Department and particularly when the Martial Law Authorities did not consider the reply of said Chief Settlement Commissioner as effective for the purpose of inquiry under the Martial Law Order against the appellant, he decided to retire him by misrepresenting the facts to the Governor in a manner so argued above rela ting to the adverse entry, which was brought on the record of the appellant through Mr. Muqarab Khan, Settlement Commissioner, Lahore, who was never his immediate superior.

6. On the other hand learned District Attorney assisted by Ch. Muhammad Nazir Ahmad, Advocate on behalf of the respondents, has submitted that the retirement of the appellant under section 12 (ff) of the Punjab Civil Servants Act, 1974, the only point which has been argued and would Le argued was that of malice, but according to the learned District Attorney and the learned counsel for the respondents, it was not sufficient to prove malice against the functionaries of the Government but according to the case of Saeed Ahmad Khan, the Supreme Court of Pakistan has observed that malice should be directly proved against the competent authority. In this manner it has been argued that as the Governor has no malice against the appellant, therefore, all what has been said, was an exercise in futility and the appellant should have no grievance for his retirement as he has been enjoying all pensionary benefits.

7. However, learned District Attorney as well as learned counsel for the respondents have failed to deny‑‑

(a) that the appellant was on the Inquiry Commission as a Technical member ;

(b) that he made apprehension of victimization for the adverse recommendation of the Inquiry Commission in the Karamse Shamse Cotton Ginning Factory.

(c) that Martial Law Inquiry was initiated against him through a show -cause notice ;

(d) that Mr. A. K. Khalid stoutly resisted the application of appellant both on point of victimization as well as service record ;

(e) that the said show‑cause notice was ultimately cancelled ;

(f) that the appellant stood retired within 40 days of the said cancel lation of show‑cause notice.

8. We have given our anxious thought to the arguments so 'advanced by the parties and we have no dispute with the fact that the appellant could only succeed if he could show to us that the authority, so retiring him, had a malice against him. The law on the point of malicious decision is so well‑settled by chain of authorities by the superior Courts of this country that malicious action is quoram non judice therefore, it cannot be sustained under any circumstances. In the present case, what we find is, that the appellant has been retired in the name of the Governor under the signatures of Mr. A. K. Khalid, the then Chief Settlement Commissioner. So there is no denial of the fact that the appellant has alleged no malice against the person of the Governor, competent authority in his case, but has tried to show that Mr. A. K. Khalid, of course was a person who did not like him and has given reasons for his retirement so recounted in the earlier part of our judgment. The point for determination now, before us would be, whether the functionary of the Government in this case was in a position to influence the competent authority against the appellant or not In this respect we place our reliance on the judgment of Shah Abdur Rashid, Chairman of the Federal Service Tribunal and Supreme Court of Pakistan, reported as 1979 P L C (C. S. T.) 105 and P L D 1974 S C 151. In these two judgments, it has been clearly laid down that even if a civil servant has failed to connect the competent authority with an act of malice, but he is likely to succeed if he was found successful to show that the functionaries of the Government who were in a position to influence the said authority, were ill‑disposed towards him. We reproduce the useful paragraphs from these judgments for facility sake as under :

1979PLC(C.S.T.)105

"It cannot be denied that the then Chief Martial Law Administrator did not personally know each and every officer. He must have acted on the advice of his officers who were directly connected with the persons affected by the Notification. If the allegations of mala fides had been against the persons not connected with the adminis tration then perhaps we would have ignored the allegations and directed the appellant to establish that the said persons had influence over the Chief Martial Law Administrator and that in fact they had spoken to him to get revenge from the appellant. In the instant case, however, the allegation is against the functionaries of the Government who were directly subordinate to the competent autho rity and their advice is expected to count. In the case of Muhammad Ismail Tulukdar v. Government of East Pakistan and 2 others (1) the Court had taken the view that since the confidential clerk of the Deputy Commissioner was ill disposed towards the aggrieved party, it could not be ruled out that he prevailed upon the Deputy Com missioner in taking action against the said party."

PLD1973SC151

"Mala fides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide."

9. Now with the law so laid down we have to examine the case of the appellant in the said context. It has been proved from the record of this case, which we have earnestly perused after it was provided to us with great difficulty and this is how the case of the appellant was prolonged. The record of the case makes it crystal clear that to the case of Karamse Shamse Cotton Ginning Factory which attracted the attention of the Martial Law Authorities who ordered to make a probe into the matter. It is also on the record that lot of fraud and other malpractices were com mitted by the high officers in the Settlement Department and unfortunately the appellant had happened to be a Technical Member of the Inquiry Commission. It is established on the record that the appellant did express his apprehension to the Martial Law Authorities that he being a small officer, should not be associated with a high task, which would invite enmity of his colleages, in case inquiry went against them. There is no denial of the fact that the inquiry did go against seven officers and the Martial Law Authorities did observe, as mentioned in the earlier part of our judgment, that the appellant should be protected from victimization and even suggested that be should be posted in some other Department, We have also carefully noted the arguments of the learned counsel for the appellant regarding adverse entry on his Character Roll by Mr. Muqarab Khan, Settlement Commissioner (Inspector) Lahore, and find that by Notification 'No. Admn. 1 Set.,178/334, dated 11th February, 1978, Mr. Mauj Din Khan was Settlement Commissioner, Lahore and not Mr. Muqarab Khan. We have also satisfied ourselves from Office Order No. 4152‑S. & R. C./LH R/78, dated 13th December, 1978, that Mr. Mauj Din Khan, Settlement Commissioner Lahore, was the overall incharge of the appellant's work. We also feel fully satisfied that the appellant was working as Deputy Settlement Commissioner (Survey) Lahore, a fact duly established through letter No. D S C (S)/L H R‑79/56, dated 28th February, 1979, and thus the Reporting Officer would be Mr. Mauj Din Khan and not Mr. Muqarab Khan. We fail to understand as to how the learned Chief Settlement Commissioner relied on the entry of Mr. Muqarab Khan and it is beyond our conception, how the said entry found its way on the Character Roll, when actually the appellant was not working under Mr. Muqarab Khan, without imputing any motive to the Chief Settlement Commissioner, what we can say is, that this fact should have been noticed by him that who should be the Reporting Officer in case of the appellant. The very fact that after the Martial Law Authorities dis agreed with the Chief Settlement Commissioner and withdrew the show cause notice, so issued against him at their instance the appellant stood retired within 41 days or so under the signatures of Chief Settlement Commissioner in the name of the Governor of the Punjab would go a long way to strengthen the plea of the appellant and weaken the case of the respondents. It also speaks volume in favour of the plea of the appel lant that his retirement was not the simpliciter under section 12 (ii) of the Punjab Civil Servants Act, 1974, but was actually being punished for his association with the Inquiry Commission and due to ill‑will of his seniors who were in a position to influence the Chief Settlement Commis sioner against him. It also cannot be denied that the Governor of the Punjab would hardly know the appellant personally and in such matters, it is the representation of the case of a particular individual by the Chief Settlement Commissioner that would be the deciding factor of his fate by the Governor. It is a matter of common knowledge that the plea of the/ malice is very easy to allege but very difficult to prove. This Tribunal while dealing with such cases, has always taken care of it. The picture in this case emerges as under;

The appellant as mentioned, earlier, happened to be associated with the Inquiry Commission and thus earned ill‑will and hatered of his colleagues, who in turn, collected some material against him either warranted or unwarranted and were successful in getting a notice issued under the Martial Law Order against him. On the representation of the appellant against the said notice learned Chief Settlement Commissioner expressed his positive opinion against the appellant abusing the same on his overall performance‑ but highlighting an adverse entry against him given by Mr. Muqarab Khan, Settlement Commissioner (Inspector), Lahore. It was only when the Martial Law Authorities did not agree with the Chief Settle ment Commissioner that the appellant stood retired in the name of the Governor under the signatures of the said Chief Settlement Commissioner. This chain of events, which have been fully established on the record, lead r to irresistible conclusion that the appellant's retirement order was and order, which was the result of malice against him, when his number on colleagues had a reason to nurture malice against him and this prevailed upon the Chief Settlement Commissioner to get him retired under sec tion 12 (ii) of the Punjab Civil Servants Act, 1974, by painting him black. We also find that when the Chief Settlement Commissioner has expressed his adverse opinion about the appellant in response to his representation while making comments to the Martial Law Authorities, the proper ‑ course for him would have been, not to decide his case himself but entrust the same to a person with an unbiased mind. As pointed out by Justice Shah Abdur Rashid in his judgment 1979 P L C (C. S. T.) 105, human nature is such that such like instances are never forgotten and forgiven and many a times results in an act which may not crop up from indepen dent mind but a mind with bias. A biased decision is always known in the legal parlance as a decision out of malice and such like decisions are always struck down as decision quoram non judice.

10. In view of the above detailed analysis of the entire history of the case, we have no other alternative but to hold that the retirement of the appellant under section 12 (ii) of the Punjab Civil Servants Act, 1974, was a result of malice and presentation of facts, which did not reflect the correct picture of his career. The result is we accept the appeal, set aside the impugned notification, dated 24th January, 1980, as not sustainable under the law, being an order void ab initio. The appellant would be re‑instated in service with all back benefits from the date of his retirement. There will be no order as to costs.

M. I. Appeal accepted.

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