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Case No. 571/1452 of 1981, decided on 11th July, 1982.

‑‑ S. 12 (ii)‑‑Provisional Constitution Order (I of 1981), Art. 13---Retirement‑Civil servant failing to bring anything on record to convince that Senior Officer of Department was inimical towards him and was a real force behind authority retiring him‑Composition of Screening Committee recommending retirement of civil servant also belying allegation of malice as same was presided over by a senior person than said officer and also other members who were in no way amenable to influence of said officer ‑ Ultimate authority to retire being Governor of Province, it cannot be said that authority would not have acted independently but at behest of said officer- Point of malice, held, not proved‑Civil servant, held further, retired under S. 12 (ii) of Punjab Civil Servants Act, 1974 and in view of Art. 13, Constitution of Pakistan (1973), Service Tribunal has no jurisdiction to interfere in such order, in circumstances.

Talib H. Rizvi for Appellant.

Haroon‑ur‑Rashid Cheema, District Attorney for Respondents.

‑Afzal Hussain Syed has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded, Government of the Punjab through Secretary Food and Mr. A. Z. K. Sher Dil, former Director Food Punjab, Lahore, as respondents.

2. By virtue of this appeal he has prayed that the impugned order, dated 27th September, 1981 by which the appellant's review petition against the order of his retirement was rejected, be set aside as well as order of retirement, dated 5th January, 1980 be also declared, without lawful authority.

3. Brief facts of the case are that an order of retirement under section 12 (ii) of the Punjab Civil Servants Act, 1974 was passed on 5th January, 1980 duly approved by the Governor of the Punjab, on the recommendations of the Screening Board. The appellant tiled a writ petition challenging the impugned order, vide Writ Petition No. 2096‑S of 1980. Writ petition was dismissed by Mr. Justice Gul Muhammad Khan on 5th May, 1980 with the observation that the bar under Article 212 of Constitution was attracted and no relief would be dispensed with to the appellant under Article 199 of the Constitution. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of, the Depart ment and have perused the record of this case carefully with their assistance.

5. Learned counsel has mainly relied on certain acts of malice attributed to Mr. A. Z. K. Sher Dil, former Director of Food Punjab Lahore and has made main stay of his case on the sole issue of malice. This position has been taken by the learned counsel in view of Article 13 of the P. C. O., 1981 and the judgment of this Tribunal in Shabihur Raza v. Inspector‑General of Police.

5. Learned counsel has cited number of instances of malice by submitting that as the petitioner had initiated proceedings against Malik Muhammad Rafiq D. F. C. and Wasi Hassan Rationing Controller, M. S. Farooqui, District Food Controller and Haji Sher Bahadur, Assistant Food Controller, who were favourites of said Mr. A. Z. K. Sher Dil, there fore, he became annoyed with him and had manipulated his retirement. It has been further pointed out that Special Military Court by a trial convicted Malik Muhammad Rafiq and Wasi Hussain and awarded them 9 months' R. I. and a fine of Rs. 10 lacs and imprisonment of one year respectively, in default of payment of said fine. It has been argued that Mr. A. Z. K. Sher Dil had positively asked the appellant to make a statement in favour of Wasi Hussain in October, 1979 before the Military Court but as he bad refused the same, therefore, he nurtured malice against him. It has been further urged that the said Mr. A. Z. K. Sher Dil introduced an adverse report in the A. C. R. for the year 1978 in November, 1979 which was conveyed to the appellant after 10 months of his retirement. According to the learned counsel, if this report would not have been there, it would not be possible for the Screening Committee to come to the decision for retirement of the appellant. A further grievance has been made that to harass and create unnecessary monetary impediments to the petitioner, the said A. Z. K. Sher Dil Director, Food Punjab, withheld his T. A. Bills from December, 1977 to March, 1979, amounting to Rs. 5,000 and according to the learned counsel, this is another example of malice against the appellant. He has urged that the said T. A. Bills were later on cleared when this matter came to the notice of the present Food Secretary. Learned counsel has also referred to an incident which culminated in appellant being charge‑sheeted, on 29th September, 1979 a crucial time when the officers were being screened either for retention in service or for retirement. As an aftermath of charge‑sheet, an inquiry was held by Lt.‑Col. Raja Muhammad Yousaf who was appointed as Enquiry Officer but he exonerated the appellant from all the charges. Learned counsel has also referred to a number of enquiries which were initiated ‑at the instance of said A. Z. K. Sher Dil against the appellant to show that he was after his blood and wanted to harm him as for as possible.

7. On the other hand learned District 'Attorney has submitted that all what has been represented on behalf of the appellant is nothing but misrepresentation of facts by stretching certain incidents with laboured efforts to connect Mr. A. Z. K. Sher Dil with those incidents, as to show that he was inimical towards appellant. According to learned District Attorney that all the efforts of the appellant would go futile when the allegations are compared with the record of this case, as the record will clearly prove that Mr. A. Z. K. Sher Dil never figured any way either for the retirement of the appellant of otherwise doing anything in order to harm his interest.

8. We have carefully attended to the arguments so advanced by both the parties and have taken pains to go into the record of this case minutely in order to see whether the allegations so made by the appellant against Mr. A. Z. K. Sher Dil had any foundation or not.

9. The history of the case reveals that Mr. A. Z. K. Sher Dil remain Director of Food Punjab from 24th December, 1977 to 24th November, 1980. The appellant was retired on 5th January, 1980, as approved by the Governor of the Punjab on the recommendations of the Screening Board consisting of the following :‑--

It would be important to note that Mr. A. Z. K. Sher Dil was not a Member of the Screening Board nor he was competent authority in the case of the appellant. We have also looked into the Character Roll of the appellant in order to judge whether the decision of the Screening Committee was subjective or objective in nature. The perusal of the Character Roll shows that he had earned average entries and some adverse entries also. Undoubtedly there are two adverse entries recorded by Mr A. Z. K. Sher Dil for the years 1978 and 1979, but the appellant bad average entries prior to the tenure of Mr. A. Z. K. Sher Dil as well. This fact stands further proved by the representation of the appellant himself which he made against such, average remarks. We have also taken note of the fact that on 24th June, 1978 the Director of Food Punjab Mr. A. Z K. Sher Dil recommended two months leave ex‑Pakistan to the appellant while he was working under him at Rawalpindi. It is also on the record that there were complaints against the appellant from Depot Holders Association against his work and conduct but the same Director who is being considered the cause of his retirement did not agree with the allegations so levelled against him and did not initiate any action on the said complaints. It is also on the record that at one stage the appellant way in confrontation with his landlady with regard to the payment of arrears of bills and what was done in this matter was that he was only advised to settle the dispute with the said lady. We have also looked into the enquiry held against the appellant by late Mr. Muhammad munawar Khan, O. S. D. Enquiries. S. & G. A. D. in which it has been observed that the appellant was misled by his staff' and expected to show better control over the subordinate and discretion in taking his own decision. This enquiry was held against him when he had already been retired from service.

10. We have also looked into the relations of the appellant with the said Malik Muhammad Rafiq D. F. C. and find that they were quarrelling with each other and had strained relations before the arrival of Mr A. Z. K. Sher Dil. This quarrel continued and culminated into Anti -Corruption Enquiry it is stated by the appellant that Mr. A. Z. K. Sher Dil. was the person who fomented bad relations between Malik Muhammad Rafiq and the appellant, but on the contrary we find that Malik Muhammad Rafiq was transferred on 31st January, 1979 from the Office of D. F C Sargodha to District Jhelum by the same Director Food. This Malik Muhammad Rafiq was ultimately prosecuted sentenced and stood retired on 31st December, 1979.

11. With regard to the case of Wasi Hussain D. F. C. we find that he was suspended on the report of the appellant and was transferred from Rawalpindi on 10th June. 1978 by the same Director Food. This Director Food never showed any leniency towards said Wasi Hussain as he warned him during the course of inquiry that strict action would be taken against him if he did not co‑operate. It is also on the record that the same action was repeated by the said Director Food against the said D. F. C. We have further noted that said Wasi Hussain reported to the Director Food that the appellant was hostile towards him and he would not like to proceed to Rawalpindi but the Director Food at para. 47 of the file, dated 15th July, 1978 did not agree with him and directed him to comply, with the transfer order. This very Director also suspended said Wasi Hussain on 7th August, 1979. 1t is also on the record that the same Director passed orders against Wasi Hussain that he should be proceeded under E & D Rules and also appointed Enquiry Officer against him.

12. All this clearly shows that the allegations made against Mr. A. Z. K. Sher Dil although are very tall in nature yet the appellant had failed to bring anything on the record to convince us that Mr. A. Z. K. Sher Dil was inimical towards him and was real force behind the autho rity which retired him. The composition of the Screening Committee also A belies the above allegations as it was presided over by a senior man than Mr‑ A. Z. K. Sher Dil and also by other Members who were in no way amenable to the influence of said Director Food. The ultimate authority in the case of the appellant being Governor of the Province. Therefore, it cannot be said that the said authority would not have acted independently but at the behest of said Director Food.

13. In view of the above we are of the considered opinion that the appellant was retired under section 12 (ii) of the Punjab Civil Servants Act, 1974 and in view of Article 13 of P. C. O., 1981, this Tribunal would have no jurisdiction to interfere with such order. We are of the confirmed view that the point of malice the only point available to the appellant, has not been proved in any manner whatsoever, against Mr. A. Z. K. Sher Oil, Director Food, therefore, we do not find any justification to interfere with the impugned order on the ground of malice. The result is we proceed to dismiss the appeal as being without any merits. However parties shall bear their own costs.

M. Y. M. Appeal dismissed.

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