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Service Appeal No. 193 of 1982, decided on 27^th August, 1986.

‑‑‑S.12‑‑Azad Jammu and Kashmir Service Tribunals Act, 1975, Ss.4 & 5‑‑Power to retire civil servant‑‑Requirement‑‑Jurisdiction of Service Tribunal to enquire into circumstance of retirement‑‑Competent Authority, held, had power to order retirement of civil servant, in public interest who had completed 25 years service‑‑Service Tribunal would not interfere with such discretion exercise by Authority except where exercise of such power was colourful‑‑Service Tribunal, however, being Court of appeal, its powers were not identical with those of High Court exercise-able in matter of constitutional petitions.

P L D 1970 S C 98; P L D 1979 Kar. 814 and 1975 S C M R 354 ref.

‑‑‑S. 44‑‑Constitution of Pakistan (1973), Art. 199‑‑Azad Jammu and Kashmir Service Tribunals Act, 1975, S. 4‑‑Constitutional jurisdiction of High Court of Azad Jammu and Kashmir‑‑Comparison with powers exercisable by High Courts of Pakistan‑‑Source of jurisdiction of Service Tribunal‑‑In constitutional jurisdiction High Court could ordinarily declare an act illegal where it came to conclusion that action of any authority was without jurisdiction or beyond scope of powers vesting in such authority, or that authority could not have exercised powers in given circumstances of case complained of‑‑Such powers were almost identical with powers of High Courts in Pakistan in matters of issuing of appropriate writs‑‑Service Tribunal was though creation of Azad Jammu and Kashmir Interim Constitution Act, 1974 but powers thereof, being not provided thereunder, it derives its powers from Service Tribunals Act, 1975‑‑In appeals before Service Tribunal, powers thereof, held, were not controlled by Civil Servants Act‑‑Such powers were embodied in S. 5 of Service Tribunals Act, 1975, whereby Tribunal was competent to confirm, modify or reverse any decision of departmental authority‑‑There would be no restrictions on power of Service Tribunal in cases to which its jurisdiction extended except with regard to matters of suitability or otherwise of a person for holding or being promoted to any post and in matter of quantum of punishment in case of minor penalties‑‑Tribunal holds vast powers as appellate authority for determination of matters which could be decided by departmental authority.

‑‑‑S. 5‑‑Powers and jurisdiction of Service Tribunal‑‑Service Tribunal as appellate authority, held, would try to save orders passed by departmental authority, failing in its discretion except in cases where there had been violation of law or procedure, non‑adherence to fundamental principles of natural justice, colourful exercise of powers or mala fide actions.

P L D 1970 S C 98; P L D 1979 Kar. 814; 1975 S C M R 354 and 1982 S C M R 1008 ref.

‑‑‑S.5‑‑Miscarriage of justice‑‑Powers and jurisdiction of Service Tribunal to ascertain‑‑Service Tribunal, held, was empowered to probe into a case of civil servant for ascertain, whether any action complained of, had been taken properly by authority or there was any miscarriage of justice.

Ashiq Ali Bhutto v. President, Summary Military Court P L D 1979 Kar. 814 and Haji Hashmatullah v. K.M.C. 1975 S C M R 359 ref.

‑‑‑S.5‑‑Retirement in public interest, determination of‑‑Jurisdiction of Service Tribunal‑‑Service Tribunal, held, had jurisdiction to scrutinize a case of retirement for determination of fact, whether such order of retirement, passed by authority was in public interest or not especially where such order was non‑speaking order‑‑If satisfaction of authority relating to public interest was not established from record, nor expressed in order, action taken thereon would be without jurisdiction‑‑From reference to order no inference could be drawn that order of retirement of civil servant was passed in public interest.

‑‑‑S. 5‑‑Retirement of civil servant‑‑Action taken on misrepresentation of facts‑‑Some good A.C.Rs. of civil servant shown to be bad by Advisory Committee‑‑By misrepresentation case brought within guidelines issued by Government‑‑Effect‑‑Action taken on misrepresentation of facts, held, would stand at same footing as action without jurisdiction or mala de‑‑Powers of competent authority were not controlled by any qualification or criteria‑‑Even authority was not bound to disclose reasons for which any civil servant had been retired after 25 years of service, qualifying for pension‑‑Where a criteria, however, was laid down by authority and case was brought within mischief of that criteria by misrepresentation, presumption would be that authority never intended to take such action, which, but for such misrepresentation had been taken‑‑Order passed in colourful exercise of powers would become liable to be quashed‑‑Order of retirement of civil servant after 25 years' service being bad in law could not be maintained particularly in view of silence of authority that action was being taken in public interest‑ Order of retirement was set aside and civil servant was re‑instated in service by Service Tribunal.

Kh. Muhammad Saeed for Appellant.

Advocate‑General for Respondent. Date of institution: 13th April, 1982.

‑‑The appellant has challenged the orders, dated 25‑9‑1980 and 21‑3‑1982. The appellant was retired from the services, vide order, dated 25‑9‑1980 and through the second order, dated 21‑3‑1982, the review petition of the appellant was rejected. This appeal was once dismissed by this Tribunal on 7‑3‑1985, the appellant went in appeal before the Supreme Court and accepting the appeal, the learned Court remanded the case to this Tribunal, for fresh decision, in light of certain observations, made by it, in respect of the impugned order, dated 25‑9‑1980.

2. We heard the arguments of the learned counsel for the parties and perused the record. It has been agitated by the learned counsel for the appellant that the order dated 25‑9‑1980 does not show that it was passed in the public interest, nor it bears any reference to any law and it is also not mentioned in the order that the appellant had completed 25 years service, therefore, it should be presumed that the order does not conform to the requirement of law. He also submitted that the order was mala fide, therefore, it should be vacated. The learned Advocate‑General maintained that the appellant had completed 25 years service, therefore, his retirement should be treated to have been made in exercise of powers under section 12 of Azad Jammu and Kashmir Civil Servants Act, 1976. It was argued that when the powers vest in any authority, the order passed by such authority should be construed to have been passed in exercise of those powers. It was contended by the learned Advocate‑General that the Government is the sole authority to determine the usefulness of any Government official for retention in service, after such official completes 25 years service, therefore, this Tribunal has no jurisdiction to determine the matter otherwise, nor it can look into the record, unless it is shown that there has been a colourful exercise of powers by the authority. He referred to P L D 1970 S C 98; P L D 1979 Kar. 14 and 1975 SCMR 354. The counsel for the appellant had also argued that competent authority in the case of appellant was Secretary Food, while the powers have been exercised by the Government, which cannot do so in view of the provisions of section 12 of Civil Servants Act, 1976. The Advocate General referred to 1982 S C M R 1008 and stated that the Government has delegated the powers of competent authority to Secretary Food, but is not itself divested of such powers by the act of delegation, therefore, in cases, where the delegatee has not exercised any power, the delegator can exercise those powers itself.

3. In view of the arguments of the counsel for the parties, we feel that the following points need determination:‑

(a) Whether this Tribunal is competent to probe into a matter of retirement of an officer, which has been ordered after completion of 25 years service, qualifying for pension

(b) Whether the retirement of the appellant has been ordered in colourful exercise of powers and is as such, liable to be set aside

(c) Whether the Government was not competent to pass the order of retirement of appellant, in view of the fact that Secretary Food was competent authority in his case

4. In respect of first point, it is stated that there is no quarrel with the proposition, that the competent authority has the power to order the retirement of an official, in the public interest, who has completed 25 years service. In the discretionary matters, generally this Tribunal does not interfere with the discretion, exercised by the authority but as pointed out by the Advocate‑General, the Tribunal can probe in cases, where the exercise of power is colourful. Apart from this, it may be borne in mind that Service Tribunal is a Court of appeal. The powers of Service Tribunal are not identical to those of High Court, which it latter exercises in the matter of writ petitions. In the writ jurisdiction, the High Court ordinarily declares an act as illegal in cases, it comes to the conclusion that the action of any authority is without jurisdiction or beyond the scope of the powers vesting in such authority or if it is found that such authority could have not exercised the powers in the given circumstances of the case, complained of.

5. The High Court issues a writ of mandamus or certiorari in exercise of powers vesting in it under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.

The relevant portion is reproduced hereunder:‑

"44. Jurisdiction of Hi h Court.‑ (1) The High Court shall have such jurisdiction as is con erred on it by this Act or by any other law.

(s) Subject to this Act, the High Court if it is satisfied that no other adequate remedy is provided by law

(a) on the application of any aggrieved party, make an order‑‑

(i) directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or a local authority to refrain from doing that which he is not permitted by law to do, or to :do that which he is required by law to do; or

(ii) declaring that any act done or proceedings taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect; or"

These powers are almost identical with the powers of High Courts in Pakistan as embodied in Article 199 of the Constitution of Pakistan. The Service Tribunal is creation of section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The powers of the Service Tribunal are not provided in the Constitution, thus, it derives its power from the Service Tribunal Act, 1975.

6. In the case of appeal, before the Service Tribunal, the power of Tribunal are not controlled by the provisions of Civil Servants Act The powers of Tribunal are embodied in section 5 of the Service Tribunal, Act, which is reproduced below:‑

5. Power of Tribunal.‑‑ (1) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against.

(2) A Tribunal shall, for the purpose of deciding any appeal be deemed to be a civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908) including the powers of‑‑

(a) enforcing the attendance of any person and examining him on oath;

(b) compelling the production of documents; and

(c) issuing commission for the examination of witnesses and documents.

(3) No court‑fee shall be payable for preferring an appeal to or filing exhibiting or recording any documents in, or obtaining any document from a Tribunal."

7. Under subsection (1) of section 5, the Tribunal is competent confirm, modify or reverse any decision of the departmental authority There are no restrictions on the power of the Service Tribunal in the cases, to which its jurisdiction extends. The exceptions have beef, made in section 4, which pertain to the matters of suitability or otherwise of a person for holding or being promoted to any post and there is also an exception in the matter of quantum of punishment in case of minor penalties. The Tribunal' has vast powers as an appellate authority for determination of matters, which can be decided by the departmental authority. Even as a civil Court of appeal, declared as such, by subsection (2) of section 5, it has all the powers of the subordinate authority, in view of the provisions of section 107, C.P.C. The Supreme. Court of Pakistan has also taken a similar view with regard to the powers of Service Tribunal in the case entitled Province of Punjab v. Ramzan Ali Khan P L D 1982 S C 349. It was observed by the honourable Court at page 354 as under:‑

"This is a finding of fact and such a finding could have been recorded by it as an appellate authority in preference to that of the departmental authority in the relevant regard, as held by this Court in M. Yamin Qureshi v. Islamic Republic of Pakistan. Wherein, it has been observed that "it was the duty of the Service Tribunal to examine on merits all questions of law and fact sought to be raised by the appellant to challenge the order of his dismissal." It was also observed that "the Tribunal has vide powers under section 5 of the Act, as it may on appeal conform, set aside, vary or modify the order appealed against.

Under subsection (2) of the same section, the Tribunal for the purpose of deciding any appeal is to be deemed to be a civil Court, and to have all the powers as are vested in such Court under the C.P.C. 1908". Thus, the Service Tribunal being as appellate authority, before which, on the preferment of an appeal against an order or a departmental authority, the whole matter gets re‑opened, becomes empowered to confirm, set aside, vary, modify or substitute its opinion for that of the departmental authority."

First authority quoted by the learned Advocate‑General namely; P L D 1970 S C 98 a case decided by the Supreme Court of Pakistan on the side of writ jurisdiction is distinguishable, in view of the distinction of powers, which exists in the powers of a Court exercising writ jurisdiction and those of a Tribunal exercising powers as appellate authority, which has no limitations as evidenced by the provisions of section 5 of the Service Tribunal Act. It is another aspect that this Tribunal as appellate authority, as far as practicable tries to save the orders passed by the departmental authority, falling in its discretion, except in the cases, where there has been violation of law or the procedure, non‑adherence to the fundamental principles of natural justice, the colourful exercise of powers or the mala fide actions. The case entitled Ashiq Ali Bhutto v. President Summary Military Court P L D 1979 Kar. 814 was cited by the learned Advocate‑General to show that question of public interest cannot be determined by this Tribunal and that the authority empowered to look into the public interest is the sole Judge of public interest. This case pertains to a matter of transfer of cases of offence, triable exclusively by a special Court or special Judge or a Tribunal, for trial by a Military Court. The Zonal Martial Law Administrators, through a Martial Law order were empowered to transfer cases in the public interest for trial by special Military Court. It was held by the High Court in exercise of writ jurisdiction the public interest in the case complained of was not subject to the judicial scrutiny by High Court in the writ jurisdiction, under Article 199 of Constitution of Pakistan. This case is quite distinguishable and is not in any way applicable to the case before us. This Tribunal is not exercising powers in writ jurisdiction rather it is acting as an appellate authority and the domain of its jurisdiction is much wider than that could be exercised by the High Court in determination of a matter under Article 199 of the Constitution. The third case referred by the Advocate‑General entitled Haji Hashmatullah v. K.M.C. 1975 S C M R 359 is also a decision in the writ jurisdiction. It has been clearly held by the High Court that it does not sit in appeal, in writ jurisdiction, hence it cannot substitute its opinion for what was or what was not against the public interest. In the opinion of the learned Judges of the High Court, as expressed at page 365 an order was not open to challenge in the writ jurisdiction, which was made by an authority, within its jurisdiction, unless it was not patently erroneous.

8. it is also pointed out that state of law in Pakistan with regard to the powers of Service Tribunal is different. Through the Provisional Constitution, the powers of the Service Tribunal were curtailed and the retirement of a civil servant ordered in public interest was taken outside the scope of jurisdiction of the Service Tribunal. Most of the case‑law of Pakistan jurisdiction is, therefore, not applicable in Azad Jammu and Kashmir, for the aforesaid reason.

9. In view of the state of law, expressed hereinbefore, it is necessary for this Tribunal to probe into a case for ascertaining, whether any action complained of, has been taken properly by the authority or there has been any miscarriage of justice in the case of any individual, l in any form of the instances, quoted hereinbefore. This, it is lawful for this Tribunal to scrutinize a case of retirement for determination of the fact, whether such order of retirement, passed by any authority was in public interest or not, and it is all the more necessary to do so, when such order does not itself speak that it was passed in thel public interest. The objection of the learned Advocate‑General wit hl regard to the jurisdiction of the Tribunal is, therefore, repelled.

10. We now deal with the second point, raised by the counsel for the appellant, whether the impugned order bearing no reference to the law, under which it was passed, nor speaking of public interest is liable to be vacated in the circumstances of the case. The. learned counsel referred to the two unreported cases of this Tribunal viz. Pirzada Tayyeb Shah v. Azad Jammu and Kashmir Government, and Syed Altaf Hussain Shah v. Azad Jammu and Kashmir Government. We have already expressed our opinion in those cases, that an order is liable to be vacated if it is not borne out either from the orders or from the record that the impugned order of retirement was passed without any finding with regard to the public interest. It was observed by us that finding should either be expressed in the order itself or it should be borne out from the relevant record. Mere absence of words "public interest" or of the reference to the law does not invalidate the order, but in such case the Tribunal is bound to ascertain from the record that the relevant authority took the action in the public interest. The authority gets the jurisdiction in the case for passing such order only in the public interest and not otherwise. If the satisfaction of the authority in this behalf is not established from the record, nor expressed in the order, the action becomes without jurisdiction. Perusal of record is, therefore, necessary, for this purpose. The impugned order No.220/ SO/Secretary Food, dated 25‑9‑1980 is reproduced hereunder:‑

11. The perusal of the order shows that there is no indication regarding the public interest, nor there is any reference of law, under which it has been passed. In absence of both the elements, it cannot be ascertained, whether the order was passed in the public interest or otherwise. The order bears a reference to an earlier order of the Government, dated 12‑12‑1979. The order referred to above has been examined. It pertains to the constitution of certain Committees, for looking into the record of some officers of the Government. The Committees were constituted in exercise of powers, under section 12(ii) of the Civil Servants Act, 1976. The Government could retire any Government Officer, below Secretary to the Government, in exercise o powers, under section 12(ii) (as this subsection was before the amendment) at the time of passing of impugned order, in consultation with an advisory committee. Prima facie, the constitution of the committee: under section 12(ii) was not necessary for consideration of the cases of officers, who had completed 25 years service, qualifying for pension. The mere reference to such an order regarding the constitution o Committees, .under section 12(ii) of the Act does not lead us to a' conclusion that the Committee was concerned with the affairs of officers. who had completed 25 years service. From the reference to order, dated 12‑12‑1979, no inference can be drawn that the order was passed in the public interest. Now, we have to tail back to the record.'

12. We have gone through the record and found that most of the A . C . Rs . of the appellant are good. We also examined another directive of the Government of Pakistan, which has been passed on to the Chairmen of the Committees, for adherence during the process of scrutiny of the record. These directives of the Government of Pakistan were to be, treated as guidelines, by the Committees concerned as indicated in the order, dated 12‑12‑1979. The recommendation of the Committee, on the concerned file, shows that there has been misrepresentation of facts. Some of the A . C . Rs . of the appellant are good, which have bee shown not good by the Committee. Thus, this is a case o misrepresentation by the Committee before the competent authority. The case of the appellant has been brought within the mischief of the guidelines, issued by the Government by misrepresentation. The action taken on misrepresentation of facts stands at the same footing as ate action without jurisdiction or mala fide. It cannot be ascertained fro the record, whether in case of true picture of the work and conduct, of appellant having been placed before the Government, it would have still decided to retire the appellant. There is no quarrel with the proposition that the powers of the competent authority are not control by any qualification or criteria and the authority is not even bound t disclose the reasons for which, it retires any officer, after completion of 25 years service, qualifying for pension but when a criteria is laid down by the authority and the case is brought within the mischief that criteria by misrepresentation, the presumption would be that the authority never intended to take that action, which but for misrepresentation had been taken, because the guidelines issued b the Government, the proceedings of the Committee and the orders passed in the case do not reconcile. The order passed in the colourful exercise of powers becomes liable to be quashed as the learned Advocate Genera also admitted at the very outset of his arguments. In view of the facts, we hold that the order is bad in law and cannot be maintained, particularly in circumstances that the authority nowhere expressed it opinion that the action was being taken in the public interest, nor the, committee recommended that even in spite of his good record, such action was necessary in the public interest. As result of our finding on the first two points, we deem it unnecessary to examine the third point.

13. The upshot of the above discussion is that accepting the appeal, the order of the retirement, dated 25‑9‑1980 is set aside and the l appellant is reinstated to service. We make no order as to the costs.

A.A. Appeal accepted

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