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Case No. 150/1628 of 1984, decided on 14^th December, 1985.

‑‑‑S.12(ii)‑‑Provisional Constitution Order (1 of 1981), Art. 13‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑Retirement after completion of 25 years, service qualifying for pension‑‑Order challenged before Service Tribunal on grounds of alleged malice and coram non-judice‑‑Malice alleged must be proved to connect directly the competent authority passing impugned order‑‑Deputy Superintendent of Police retired by Government on order issued by Home Secretary‑‑Malice alleged against I‑G. of Police and not against Home Secretary‑‑ Case : subsequently considered and rejected by Review Committee comprising senior officers‑‑Appellant failing to connect any one of them being either friendly with I.‑G. of Police against whom malice alleged or inimical towards appellant‑‑Malice plea, in circumstances, repelled and appeal dismissed by Tribunal.

Ch. Mushtaq Masood for Appellant.

A.G. Humayun, District Attorney for Respondent.

‑‑Muhammad Nawaz, Deputy Superintendent of Police (Retd.) has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Government of the Punjab through Chief Secretary, Punjab, ore, as respondent.

2. By virtue of this appeal he has prayed that his appeal be accepted and premature retirement order, dated 5‑1‑1980, so impugned he set aside and he be reinstated in service with all back benefits.

3. Brief facts of the case are that the appellant joined service in the Police Department as Assistant Sub‑Inspector in 1952. He was promoted as Sub‑Inspector during March, 1964 and was further promoted as Sub‑Inspector Special Grade, on 1‑2‑1971. He was admitted to List 'F' on 25‑5‑1971 and was promoted as officiating Inspector of Police on 26‑5‑1971. The appellant was further promoted as Deputy Superintendent of Police, vide notification, dated 13‑1‑1979. In accordance with Government instructions cases of all the officers officials who had completed 25 years service qualifying for pension were reviewed by the Departmental Committee and the appellant was retired from service by in the Government under section 12(ii) of the Punjab Civil Servants Act, 1974. The appellant made a representation against his retirement to Government but the same was rejected by the Government of the Punjab, Home Department, Lahore, vide Memo. No. HP.III/2‑14/80, dated 15‑2‑1980. He filed review petition before the Governor which was rejected, vide order, dated 14‑12‑1981. 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 Department and have perused the record of this case with their assistance.

5. Learned counsel for the appellant realizing the fact that no appeal would lie against the order of retirement under section 12(ii) of the Punjab Civil Servants Act, 1974, he mainly based his case on malice against Qazi Muhammad Azam, Inspector‑General Police at the relevant time. Learned counsel for the appellant has submitted that the superiors of the appellant were entirely satisfied with his performance except Qazi Muhammad Azam who was always inimical towards him. He has recounted this history that when the appellant was working as A.S.I. Khanqa Dogran, District Sheikhupura, the said Qazi Muhammad Azam was Superintendent of Police, Sheikhupura, and he used to be 14 very rough towards him. The situation between them became very strained and tense. The said Superintendent of Police could not do anything against the appellant as he was soon after transferred from Sheikhupura to some other place. However, he was annoyed on the said transfer of the appellant because he was of the opinion that he had been transferred at the instance of Mr. M. H . Sufi, who happened to be Home Secretary of Punjab at that time as well as uncle of the appellant. Learned counsel for the appellant has submitted that Qazi Muhammad Azam did not forget this. When the said Qazi Muhammad Azam became Director, Anti‑Corruption, a false case was concocted and fabricated against the appellant and the appellant was involved in that case without any rhyme and reason. The case was registered by the Anti‑Corruption Punjab, vide F.I.R. No. 22 under section 218, P.P.C. However, the investigation declared the appellant innocent but the appellant was got challaned and referred to Military Court for trial, and ultimately acquitted by the Special Military Court. According to the learned counsel for the appellant to the ill‑luck of the appellant, he again came under the said Qazi Muhammad Azam, when he was posted as Officer Inchaige, Police Training Centre, Sihala. The said Qazi Muhammad Azam became Inspector‑General of Police, who while visiting Sihala noticed the presence of the appellant and was infuriated and asked them how the appellant was still in service In support of the allegation of malice with said Qazi Muhammad Azam, the appellant produced Mr. Sultan Mahmood Bhatti, retired Sub‑Inspector of Police (A.W. 2) and Ch. Khalil Ahmad son of Khairud Din, retired A.S.I. A.W. 1 Mr. Muhammad Ijaz, retired D.S.P. A.W. 3 and had himself appeared as A.W. 4. Ch. Khalil Ahmad (A.W. 1) stated that when he was posted in 1955 as Moharrir/Head Constable, P.S. Khanqa Dogran, District Sheikhupura, the Superintendent of Police used to hold meeting in the Orderly room at Sheikhupura. Qazi Muhammad Azam was Superintendent of Police at that time. The appellant was provisional A.S.I. at that Station. He used to write his departure and arrival for the weekly parade at Sheikhupura. Once the appellant did not attend the parade at Sheikhupura, the S.P. Qazi Muhammad Azam issued a show‑cause notice. The appellant produced a medical certificate before the said S.P. Qazi Muhammad Azam. The appellant once came to him and told him that S.P. would dismiss him. Qazi Muhammad Azam was transferred within 3 months from Sheikhupura. Mr. Noor Ahmad Qazi who had died, once told that the appellant was instrumental for the said transfer and this was done due to Muhammad Nawaz through Mr. M.H. Soofi who was his real uncle, a C.S.P. Officer. The witness was crossed‑examined by the learned District Attorney and denied that he was supporting his colleague by giving evidence. Sultan Mahmood (A.W.2) stated that in 1955, he was posted as A.S.I, at P.S. Khanqah Dogran, District Sheikhupura, the appellant was posted as A.S.[. provisionally in the said police station. Qazi Muhammad Azam, took over charge as S.P. Sheikhupura after the transfer of Sh. Muhammad Arshad. Every Monday he used to hold a meeting to meet the people in the Orderly Room for disciplinary measures. I had also appeared before him in connection with some explanation. In the Orderly Room the appellant Muhammad Nawaz was present with the S.P. The door of the Orderly Room was open and he heard noise/loud talk. S.P. said that if he would receive any complaint against him, he would be dismissed. When he came out of the Orderly Room, he told the A.W. 2 that actually he was absent from parade and S.P. was annoyed. After one month S.P. was transferred from said station. D.S.P. in Sheikhupura was Nisar Ahmad while Muhammad Nawaz was also related to the said S.P. and Qazi Muhammad Azam used to rely upon him. Muhammad Nawaz told him that actually he was instrumental for the transfer of S.P. due to his real uncle Mr. M.H. Soofi, a C.S.P. Officer. Muhammad Ijaz (A.W. 3) stated that in 1979 he was working as Law Instructor in Police Training College, Sihala. He served in that capacity from 1979 to 1980. The appellant was working as D.S.P. at that Training College, Sihala. In December, 1979 Qazi Muhammad Azam the then Inspector‑General of Police came to Sihala to review the parade. He and appellant welcomed the I.‑G.P. When the I.‑‑G.P. saw the appellant he asked him if he was still in service. Nothing happened latgr on. Of course, after the parade, I had a talk with the appellant and I told him that 1.‑G.P. was annoyed with him. After a few months, the appellant was retired under section 12(ii) by the Government on the recommendation of the said I.‑G.P. After producing the said evidence the learned counsel for the appellant argued on the strength of the evidence that although Qazi Muhammad Azam was not competent to retire the appellant under section 12(11) of the Punjab Civil Servants Act, 1974, yet he managed to influence the said authority, which took ultimate action against him. In this manner, it has been pleaded that the order of competent authority, which was influenced by Qazi Muhammad Azam, I‑G.P., was an order coram non-judice because it was a result of malice against the appellant.

6. On the other hand learned District Attorney has controverted the arguments of the learned counsel for the appellant firstly by sub mitting that order of retirement under section 12(11) of the Punjab Civil Servants Act, 1974, is protected by Article 15 of the Provisional Constitutional Order, 1981, therefore, the same could not be challenged in any Court of law. In the alternative he submitted that malice would be a point to be considered but it must be proved that order of competent authority was malicious, the same was coram non-judice. Learned District Attorney has pleaded that it was no where on record that the order was passed by Qazi Muhammad Azam, I.‑G.P., as the same was passed by Mr. S.K. Mehmood, who happened to be competent authority, holding the rank of Home Secretary Punjab. According to the learned District Attorney there was hardly anything on record to connect Mr. S.K. Mehmood against the appellant when there was no evidence to the extent that Mr. S.K. Mehmood was under the influence of Qazi Muhammad Azam and passed the order at his behest without forming his independent opinion. Learned District Attorney has further argued that the case of the appellant was taken up before the Review Committee on the representation of the appellant and the Review Committee consisting of a number of officers, who had no malice with the appellant, rejected his said representation/review petition, thus the argument of the malice was unfounded and nothing but an after thought.

7. We have given our anxious thought to the arguments advanced by the parties and have to follow the dictum of their Lordships of the Supreme Court of Pakistan in Saeed Ahmad Khan's case that if malice is to be taken into consideration and order is to be struck down on that score alone, but the person claiming malice, must be in a position to connect directly the competent authority under whose order he has been so retired. In the present case, what we find on the record is A that the appellant was retired by the order of Mr. S.K. Mehmood, J Home Secretary Punjab, against whom no evidence has been produced to prove that he board‑any sort of malice against the appellant. Similarly we have seen the record of the Review Committee and find that there were a number of high officers besides I‑G.P., who reviewed the case of the appellant and rejected the same. The appellant has failed to connect any one of them being either friendly with Qazi Muhammad or inimical towards appellant and thus, by no stretch of imagination, it can be said that the entire Review Committee or Mr. S.K. Mehmood, Home Secretary, bore any malice against the appellant and thus order of retirement passed by the said authority was passed at the instance of enemy who was out to damage him. Even with regard to the malice against Qazi Muhammad we hardly find any substance in the same as the appellant had admitted that he had no knowledge whether the said officer made any adverse entry against him. The appellant has failed to show that Qazi Muhammad Azam anywhere, throughout his service career, recorded something against him, which might have damaged him in the end. To our considered opinion the appellant has just taken a shelter of malice without any positive proof of the same, therefore, we are fully satisfied that he has miserably failed to connect any malice against the authority or to show that Qazi Muhammad Azam was inimical towards him or that his influenced Mr. S.K. Mehmood, who retired him.

8. In the light opt the above detailed discussion, we find no merit IC in this appeal and dismiss the same accordingly. There will be no order as to costs.

A .E. Appeal dismissed.

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