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Appeal No. 85(R) of 1974, decided on 8th April, 1987.
‑‑‑S.4 (c)‑‑Appeal‑‑Restoration‑‑Two appeals filed before Tribunal, one by State and other by appellant‑‑Appeals dismissed for want of jurisdiction as matter related to period preceding 1st July 1969‑ Appellant filing no further appeal against order of Tribunal rejecting his appeal but State challenging order before Supreme Court who held that Tribunal had jurisdiction in matter‑‑Appellant having not gone in appeal to Supreme Court against order of Tribunal, matter oua appellant, held, became final and could not be reagitated by restoring appeal an‑a deciding issue again.
Narhari and others v. Shanker and others A I R 1953 S C 419; Mt. Lachhmi v. Mt. Bhulli A I R 1927 Lah. 289; Appa and others v. Kachai Bayyan Kutti and others A I R 1932 Mad. 689 and Menhajuddin v. Sudhir Kumar P L D 1959 Dacca 316 ref.
‑‑Art. 178 (4) (a)‑‑Provisional Constitution Order (I of 1981), Art. 13(1)‑‑Appellant challenging order of his retirment passed under Art. 178(4)(a) of the Constitution 1962 on grounds that order was not passed by competent authority and that he had not by then completed 25 years service qualifying for pension or other retiring benefits‑‑Such grounds were not raised when his appeal against order of retirement was filed and only taken in amended appeal obviously to avoid objection of abatement as a result of enforcement of Provisional Constitution Order, 1981‑‑Held, appellant could not challenge impugned order on grounds not raised before.
‑‑‑Art. 13(1)‑‑Service Tribunals Act (LXX of 1973), S.4‑‑Appeal‑ Maintainability‑‑Appeal abated when Provisional Constitution Order, 1981 was promulgated‑‑Subsequent repeal of Provisional Constitution Order 1981, held, could not revive appeal which had already abated.
‑‑‑S.4‑‑Provisional Constitution Order (1 of 1981), Art.13(1)‑ Appeal‑‑Mala fide order‑‑Jurisdiction‑‑When jurisdiction of Tribunal was totally ousted under Art. 13(1), Provisional Constitution Order, 1981, case of appellant, held, could not be examined on ground that impugned order was allegedly passed mala fide by functionaries of Government.
1986 S C M R 1795 rel.
‑‑Arts.48(3) and 99(2)‑‑Civil Servants Act (LXXI of 1973), S.13‑‑Retirement‑‑Whether order of retirement to be passed in writing by President‑‑All orders, held, need not be passed in writing by President‑‑It would be sufficient to show that order was passed on direction of President‑‑‑ Order of retirement in case of appellant having approval of President, it was immaterial whether he signed it or conveyed it to Principal Secretary who recorded note of approval by President‑‑Order would be deemed to have been passed by President in circumstances.
Mian Munawaruddin v . Federation of Pakistan P L D 1979 Lah. 669 ref.
P L D 1964 S C 302; 1980 S C M R 87 and P L D 1959 Kar. 102 rel.
‑‑‑Art.178‑‑Retirement‑‑On completion of 25 years' service qualifying for pension and other retirement benefits appellant challenged order of his retirement under Art. 178 of 1962 Constitution on ground that he had not completed 25 years service when impugned order was passed‑‑Appellant contending that period of his service in Home Department plus period he served in Emergency Cadre did not qualify for pension and other benefits and his service from date of regular appointment as officer of Pakistan Military Accounts Service could only be counted as there was a break in service when he worked on Emergency basis on contract‑‑Contention, held, was not tenable‑Initially appellant was taken on contract in Emergency Cadre but contract was not finalised because he was a permanent Assistant in Home Department and his appointment in Emergency Cadre was in nature of deputation‑‑He also got his pay fixed in PMAS with reference to pay he was entitled to draw as Assistant in Home Department and his period spent in Emergency Cadre having been treated and counted as period qualifying for pension, he could not say that said period could not be counted‑‑When whole of his service was taken into account it was not less than 25 years and therefore, qualified him for pension.
Nasir Ahmad v. Secretary of information 1984 S C M R 1367; Province of West Pakistan v. Nazir Hussain P L D 1960 S C (Pak.) 130; Secretaty to the Government of Punjab Education Department v. Noor Muhammad Khan P L D 1984 S C 30; Muhammad Afzal v. Government of the Punjab 1982 S C M R 108; Postmaster General, Eastern Circle (EP) Dacca v. Muhammad Hashim P L D 1978 S C 61; Pakistan v. Liaquat Ali Khan P L D 1959 S C (Pak.) 37; A.M. Khan Leghari v. Government of Pakistan P L D 1965 (W.P.) Lah. 214 and Karamatullah Khan v. Government of West Pakistan P L D 1966 (W.P.) Lah. 881 ref.
‑‑‑Art.178‑‑Government Servants (Efficiency and Discipline) Rules, 1973, R.4‑‑Retirement‑‑‑Appellant contending that he could not be retired under Art.178 of Constitution in face of serious charges of misconduct, indiscipline, inefficiency, immorality and gross irregularity when some proceedings against him were also contemplated and a probe under Government Servants (Efficiency and Discipline) Rules was required in his case and he was entitled to an opportunity of being heard in person under Constitutional guarantee‑‑Order of retirement by itself not attaching any stigma‑‑Order, held, was valid even if made on account of some allegations against h m Contention repelled.
Ghulam Sarwar v. Pakistan P L D 1962 S C 142; Syed Mir Muhammad v. N.‑W.F.P. Government P L D 1981 S C 176; Nurul Hassan v . Federation of Pakistan P L D 1956 S C 331; Parshotam Lal Dhingra v. Union of India P L D 1958 S C (Ind.) 217; Principal, Pine Hills College v . Moharram Ali 1986 S C M R 1264 ref.
WAPDA v. Saeed Ahmad 1986 S C M R 725 rel.
‑‑‑Art.178(4)(a)‑‑Retirement Provision under Art.178 of 1962 Constitution, held, gave a plenary and unfettered power to competent authority for‑Fe‑Bring a person when he completed 25 years service qualifying for pension or other retirement benefits and that power was not abridged or qualified by any consideration‑‑Order under Art. 178 could be passed whether there were allegations or no allegations against Government servant.
Brij Behari Lal v. High Court of Madhya Pardesh 1982 P S C 746 and Swami Saran Saksena v. State of Utter Pardesh 1983 P S C 51 ref.
‑‑‑Art. 178(4)(a)‑‑Retirement‑‑Mala fide‑‑Appellant, retired under Art.178 of 1962 Constitution, raising question of mala fide of functionaries of Government‑‑Financial irregularities and moral aspect of appellant in fact resulting in his retirement from service and no mala fide established on record to make order of retirement illegal as alleged by appellant‑‑Entire record of appellant was made available to C.P.S. Commission who agreed with proposal of Government that appellant be retired from service under Art. 178(4)(a) of Constitu tion‑‑Appellant had in fact become a problem for department and his retirement was rightly ordered in public interest‑‑Contentions raised by appellant repelled and his appeal against order of retirement was dismissed in circumstances.
Appellant in person.
Muhammad Amir Akbar Khan for the State alongwith Messrs Ali Abid, S.M. Maghfoorul Haq, M. Hanif Qureshi and Abdur Rashid Khan on behalf of Respondents.
Dates of hearing: 20th to 24th December, 1986.
‑‑Mr. M. S. Siddiqi, the appellant herein, a Member of the former Pakistan Military Accounts Service, was ordered to retire from service with effect from 30th June, 1967, presumably under Article 178(4)(a) of the 1962 Constitution. This order was challenged by the appellant by way of civil suit filed at Rawalpindi. However, during the pendency of this suit, Service Tribunal Ordinance, 1973 was enacted, whereunder the Civil Court ordered that the suit had abated. In consequence, the present appeal was filed by the appellant before the Tribunal.
2. It appears that the Government had earlier initiated proceedings against the appellant for recovery of amount alleged to have been over‑paid to him. The appellant consequently had filed another suit against the Government with a view to restraining it from making recovery of the amount which, according to the appellant, was not due from him. This latter suit was dismissed by the Civil Court of first jurisdiction, but in First Appeal the Additional District Judge reversed the order and granted the decree to the appellant. The Government filed an appeal before the High Court, but that also abated when the Service Tribunal Ordinance was enacted and in consequence, the Government filed an appeal before us, which was registered as Appeal No. 338(R)/1974.
3. Both the appeals, i.e. the one by the appellant and the other by the Government were considered for disposal on preliminary objection regarding the jurisdiction of this Tribunal, in view of the fact that the matter related to the period preceding 1st July, 1969. The question was taken up in the present appeal and the Tribunal held that it had no jurisdiction to entertain the claim of the appellant. Consequently, this appeal was rejected. In the said order, the appeal of the Government, namely Appeal No.338 (R) /1974 was also rejected on the ground of jurisdiction by adding a note to the main order that the said order shall be applicable to the Government appeal also.
4. The Government challenged the order before the Supreme Court by way of appeal which was accepted, and it was held that this Tribunal has jurisdiction to entertain the appeal. Consequently, Appeal No. 338(R)/74 was restored for fresh hearing by the Tribunal. It appears that the appellant had not filed any appeal to the Supreme Court against the order of dismissal of his Appeal 85(R)/74 for want of jurisdiction. He, however, approached the Tribunal that in view of the order passed by the Supreme Court in Appeal No. 338(R)/74. his appeal, namely, 85(R)/74 deserves to be restored. This plea was accepted and the present appeal was also allowed to be argued.
5. This appeal came up for hearing before a Bench of this Tribunal on 3‑1‑1982. Mr. A.O. Raziur Rehman, a Member of the Bench, initiated the order deciding one of the points raised before him and deferred the other points to be argued afresh. The other Member, namely, Mr. Muhammad Irshad Khan, however, did not give any opinion on the merits of the appeal and made the following observa tions: ‑‑
"I am inclined to agree with the conclusion arrived at by my learned colleague, Mr. A.O. Raziur Rehman, that a full hearing of the case may be allowed to determine the authenticity of the impugned order. Since, however, the case is still to be heard by the Tribunal, I need not advert to the merits of the case and reserve my opinion for an appropriate occasion on the issues adjudicated by my learned colleague Mr. A.O. Raziur Rehman." Thus the order made by Mr.A.O. Raziur Rehman did not become final, as the other Member had left open the entire controversy. This appeal was consequently refixed for hearing."
6. The impugned order of retirement was challenged before us at the time of arguments on the following grounds:
(a) The order was not passed by the competent authority.
(b) The provisions of Article 178 of the 1962 Constitution are not applicable, as the appellant had not completed 25 years' service qualifying for pension and other retiring benefits when the impugned order was passed.
(c) The matter could not be taken up under Article 178, as there were serious charges against the appellant which required probe under the Government Servants (Efficiency and Discipline) Rules.
(d) This was a case of no evidence and as such the order was a nullity.
(e) The order was mala fide of the functionaries of the Government and as such void in law.
Though in the revised concise statement, two other grounds were mentioned, but at the time of arguments, the appellant who argued his own case, did not bring forward those grounds.
7. The learned counsel for State has raised the preliminary objections, which are:‑
(i) The appellant, having not gone in appeal to the Supreme Court from the order by which his appeal was rejected for want of jurisdiction, cannot be given any remedy and his appeal cannot be restored.
(ii) The appellant cannot urge that the order was not passed by competent authority, or that he had not completed 25 years service qualifying for pension or other retiring benefits, as these grounds were not taken in original appeal filed on 26‑11‑1973.
(iii) This Tribunal has no jurisdiction to entertain the appeal, as it had abated on the promulgation of the Provisional Constitution Order, 1981 (P.C.O.) by virtue of Article 13(1) ibid.
8. In view of what we shall mention hereafter, this appeal can be decided on some preliminary objections, but since the matter is old one and the possibility of our finding being set aside by the Supreme Court cannot be excluded, we propose to decide all the points raised before us.
The appellant having not gone in appeal to the Supreme Court from the order by which his appeal was rejected, for want of jurisdiction, cannot be given any remedy and his appeal cannot be restored.
9. The appellant has first contended that this objection cannot be raised now because the Tribunal has itself restored the appeal after hearing the appellant on 20th July, 1980. We have gone through the order under reference and we find that this order was passed without hearing the respondents and even otherwise it did not conclusively decide the issue. The concluding portion of the order reads as follows:
"The point made out is supported by authorities and requires to be probed in depth in presence of the parties. The appeal is, therefore, revived and after due objections should be fixed for hearing. "
The wording of the order itself shows that the matter was not fully decided, but the Tribunal felt that there was prima facie arguable case of the appellant and that the matter "requires to be probed in depth in presence of the parties". We, in these circumstances, are of the view that the Tribunal did not conclusively decide the issue, but left it open for hearing of both the parties.
10. The appellant then contended that no doubt the appeal was filed by‑the Government against the order of the Tribunal in Appeal No. 338(R)/74 filed by the Government against the appellant, nevertheless, the Supreme Court has decided the issue of jurisdiction in both the appeals. Much stress was placed on the fact that in correspondence and certain documents of the Supreme Court, the number of appeal was mentioned as 85(R)/74, which is the number of present appeal. Although, it is so, nevertheless, it cannot be said that the Supreme Court passed any order on the appeal of the appellant. The number 85(R)/74 was obviously mentioned because there was a consolidated order and the main order by the Tribunal had been written on the present appeal denying jurisdiction and it was a note below which disposed of the Government Appeal No. 338(R)/74 on ‑the issue of jurisdiction. In these circumstances, .we are firmly of the view that only appeal before the Supreme Court was the appeal by the Government against the order of dismissal of their Appeal No. 338(R)/74 by the Tribunal for want of jurisdiction.
11. The appellant then contended that the Government having gone in appeal against the Tribunal's order, it was not necessary for the appellant to file a separate appeal against the Government challenging the order in Appeal No.85(R)/74. In substance, it was argued that the same question of jurisdiction being involved in both the appeals, the order of the Supreme Court should be treated as order in both the appeals. In this respect, reference was made to several cases decided by different Courts. Reliance was placed first of all on the case of Narhari and others v. Shanker and others A I R 1953 S C 419, In which it was held that where from the same order, two separate appeals were preferred and one of them was liable to dismissal on the ground of limitation, the decision thereon would not operate as res judicata in the other appeal. The law laid down in this case does not at all apply to the present case. In the case relied upon, the cause of action was the same and, therefore, the question of res judicata was examined and decided. In the case before us, there are separate causes of action in the two appeals. In the appeal before us, the appellant had challenged the order of his compulsory retirement, whereas in the other appeal, the appellant had initially challenged in the suit the order of the Government directing recovery of the amount overdrawn by the appellant. Another case relied upon is Mt. Lachhmi v. Mt. Bhulli AIR 1927 Lah. 289. The circumstances of this case also bear no affinity with the circumstances of the matter before us. In this case, two cross suits on the same subject‑matter had been filed simultaneously and the cases were disposed of by one judgment, but two separate decrees were framed. Appeal was filed only from one of the decrees and not from the other. The Lahore High Court held that failure to file appeal against one of the decrees does not operate as res judicata, and the other appeal could be heard and disposed of. The circumstances of the matter before us are that the two appeals relate to quite distinct matters and the question of res judicata is not at all involved. Another case is that of Appa and others v. Kachai Bayyan Kutti and others AIR 1932 Mad. 689. This is a case where two suits had been filed originally which were decided in favour of the plaintiffs. Two appeals were preferred to the lower appellate Court by two sets of defendants. The result of the appeals was that the suit was dismissed by the lower appellate Court and a decree dismissing the suit was passed. In such circumstances it was held that the plaintiffs need not file two second appeals. In the matter before us, there are two distinct matters which were originally initiated in the civil Courts and finally came up before us in appeals. The case of Menhajuddin v. Sudhir Kumar P L D 1959 Dacca 316 also related to question of res judicata.
12. In view of what has been said ‑above, we are firmly of the view that the appellant having not gone in appeal to the Supreme Court against order in Appeal No. 85(R)/74, the matter became final and cannot be re‑agitated by restoring the appeal and deciding the issue again.
The appellant cannot urge that the order was not passed by competent authority; or that he had not completed 25 years service qualifying for pension or other retiring benefits as these grounds were not taken in the original appeal filed on 26‑11‑1973:
12‑A. We have gone through the contents of the appeal originally filed before the Tribunal. We are not inclined to agree with the appellant that these two grounds had been originally taken when appeal was filed. The appellant has referred to an application for amendment and the amended appeal therewith, in which these grounds had been taken. It is interesting to note that in the amended appeal, the appellant repeated the date of filing the appeal as 26‑11‑1973, whereas in fact, the amended appeal and the application were filed on 23‑10‑1982. Originally, the impugned order had been challenged altogether on different points, whereas in the amended appeal, it was mentioned that the impugned order was not passed by the competent authority and that the appellant had not completed 25 years service qualifying for pension or other retiring benefits. Obviously, this addition was made to avoid the objection of abatement as a result of enforcement of the Provisional Constitution Order, 1981, wherein Article 13 (1) provided that the Tribunal shall have no jurisdiction to interfere with an order passed by a competent authority retiring a Government servant after he had completed 25 years service qualifying for pension or other retiring benefits. We are, in these circumstances, inclined to agree with the learned counsel for the State that the appellant cannot challenge the impugned order on the ground that the order was riot passed by the competent authority, or that he had not completed 25 years service. These two facts are quite distinct from the main appeal and could not be brought in by way of amendment or cross objections. The preliminary objection is, therefore, decided in favour of the Government. However, since we have decided to examine all the issues, we shall hereafter give our finding on these specific points as well.
This Tribunal has no jurisdiction to entertain the appeal as it had abated on the promulgation of the Provisional Constitution Order, 1981, by virtue of Art. 13(1) ibid.
13. This issue is to be decided on the assumption that the appellant had completed 25 years service qualifying for pension and the order had been passed by the competent authority. Article 13(1). is clear enough to indicate that in such circumstances the Tribunal has no jurisdiction to interfere. The appellant, however, contended that since at present the P.C.O. is not in force, i.e. on the date of passing the order, the provisions of Art. 13(1) would not be applicable. We cannot agree with this contention. When the P.C.O. was promulgated, the appeal abated and subsequent repeal of the P. C.O. does not revive the appeal, which had already abated.
14. Another stand taken by the appellant is that the impugned order of retirement of the appellant was mala fide and as such the Tribunal has jurisdiction to hear the appeal and the material placed before it establishes mala fide on the part of functionaries of the Government which resulted in his retirement.
15. The question whether the Tribunal has jurisdiction to strike down an order passed mala fide if in respect of the subject‑matter of the action it has no jurisdiction, was examined by us in the case of Ramzan Muhammad Choudhry v. Federation of Pakistan, and we had come to the conclusion that the Tribunal, in such circumstances, has no jurisdiction. Ramzan Choudhry filed an appeal before the Supreme Court and the said Court in its judgment reported as 1986 S C M R 1795 confirmed our finding that the Tribunal has no jurisdiction to strike down an order passed mala fide if in respect of the subject‑matter of the action it has not been given jurisdiction. In the presentf case, the jurisdiction of the Tribunal has totally been ousted under Article 13 (1) of the P.C.O., as observed above, and, therefore, we have no jurisdiction to examine the case of the appellant and decide upon with regard to alleged mala fide action of the functionaries of the Government.
16. We now propose to dispose of the grounds urged before us by the appellant in support of his appeal.
FIRST GROUND
The order was not passed by the Competent Authority.
17. The appellant has contended and has also filed an affidavit in support of the contention that the order of his retirement was not passed by the President. On going through the record, we find that a Summary for the President was submitted by Mr. T.G. Nasir Khan, Additional Secretary Finance, on 9‑6‑1967 to the Principal Secretary to the President proposing the retirement of the appellant on completing 25 years service qualifying for pension. Below the Summary, there is a note of the Principal Secretary that the President has approved the recommendation vide para. 3 which in effect was a request to the President for approval of the recommendations of retirement of the appellant.
18. The appellant contends that since the President did not sign the approval himself, the note of the Principal Secretary is of no consequence. It was also alleged that the Principal Secretary had written the final note without the consent of the President at the instance of one Ikramul Haq, the then Defence Secretary, who was against the appellant being related to his in‑laws with whom the appellant had dispute. Our attention was drawn to the fact that whereas the Summary was sent on 9‑6‑1967, the Principal Secretary recorded the approval of the President on 10‑6‑1967 within one day in undue haste without obtaining the orders of the President.
19. The first point to be determined is whether the Principal Secretary correctly recorded the note that the President had approved the recommendation for retirement of the appellant. In our opinion, it is highly improbable that the Principal Secretary had dared writing wrong note on behalf of the President. In fact, we have examined some other files of that period which too show that the verbal orders of the President were transcribed by the Principal Secretary. The affidavit of the appellant that the President did not approve his retirement is of no value, because the appellant cannot say that the approval was not of the President. As regards undue haste, we find that the then President (Field Marshal Muhammad Ayub Khan) used to dispose of most of the matters within a day or two, and the appellant's case was not unusual. With regard to mala fide of Ikramul Haq, Defence Secretary, we are unable to agree with the appellant's contention that he prevailed upon the Principal Secretary to forge the note. In fact, no direct relationship of Ikramul Haq has been established with the in‑laws of the appellant. In any case, this allegation appears to be without any foundation. We cannot expect the Defence Secretary or the Principal Secretary forging the documents.
20. The appellant then contended that the verbal orders of the President are not the orders as contemplated by law. In this respect, reference was first made to the case of Mian Munawaruddin v. Federation of Pakistan P L D 7979 Lah. 669, where at p. 701, it was mentioned that it was necessary for the purpose of record that public functionaries should pass orders in writing. Further that, under the 1973 Constitution, Article 48(3), the President was bound to pass the orders in writing, as they had to be countersigned by the Prime Minister. We are unable to agree with the observations of the learned Judge of the Lahore High Court that all orders are to be passed in writing by the President. In our opinion, it is sufficient to show that the order was passed on the direction of the President. No doubt, under Art. 48(3) of the 1973 Constitution, the orders had to be signed by the Prime Minister and in that case, perhaps, the order in writing of the President would be required, but that situation never arose when 1962 Constitution was in force and under which the appellant was retired. Even under the present Constitution practically similar question had come up before the Supreme Court in C.P.L.As. No. 349‑R and 350‑R of 1984 by Shahnawaz Khan and Shafiullah Khan. In this case, the order of retirement was not personally written or signed by the President, but there was a note of the Minister for Establishment that the President had approved their retirement. The Supreme Court upheld the view of the Tribunal that this was a valid order. Reliance was also placed on P L D 1964 S C 302, 1980 S C M R 87 and P L D 1959 Kar. 102. We have carefully gone through these jugdments and we do not find therein any proposition of law enunciated to the fact that the orders must be signed in all cases. In any case, in view of the latest observation of the Supreme Court in the above referred two C.P.L.As, the matter stands clinched.
21. Since the order had the approval of the President, it is immaterial whether he signed it or conveyed it to the Principal Secretary who recorded the note. We, therefore, hold that the impugned order was passed by the President.
22. The learned counsel for the State has also drawn our attention to clause (2) of Art.99 of the 1973 Constitution, which provides that an order of the President authenticated in accordance with the manners specified shall not be questioned in any Court, on the ground that it was not made or executed by the President. For this reason, too, the stand of the appellant that the order was not passed by the President cannot be accepted.
23. Needless to say that this point had not been raised by the appellant in the earlier suit in the Civil Court, or in the appeal before us, and was taken up as an afterthought when the P. C.O. was enacted. The ground being outside the scope of the original appeal, as already stated, cannot be urged by the appellant, but we have decided it as an abundant caution to avoid re‑examination of the case if our finding on the specific point is set aside by the Supreme Court.
SECOND GROUND
The privisions of Article 178 of the 1962 Constitution are not applicable, as the appellant had not completed 25 years service qualifying for pension and other retiring benefits, when the impugned order was passed.
24. The appellant was, in the first instance, appointed, as a result of selection by the Central Public Service Commission, as Assistant in the Home Department on 17‑1‑1942 and was also confirmed there. He had also qualified in the Competitive Examination for selection in the Indian Audit and Accounts Service, but since his position was somewhat below the required number of persons to be selected, he was not taken in that Service. However, he was taken in the Emergency Cadre of the same Service, with effect from 15‑2‑1945, and was subsequently made regular Member of the Pakistan Military Accounts Service (PMAS), with effect from 15‑8‑1947. The appellant's case is that the period of his Service in the Home Department from 17‑1‑1942 to 14‑2‑1945, and the period he served in the Emergency Cadre from 15‑2‑1945 to 14‑8‑1947 does not qualify for pension and other benefits, and that if this period is excluded from his total service, then the impugned order must be set aside, as such an order could be passed only if the civil servant renders 25 years service qualifying for pension or other benefits.
25. We are unable to understand on what basis the appellant wants to exclude the service which he rendered as an Assistant in the Home Department. When questioned on this point, the appellant contended that as subsequently he was taken on Emergency Cadre and thereafter taken on regular basis in PMAS, his service from the date of regular appointment as Officer of the PMAS can only be counted. In other words, his case appears to be, inter alia, that there was a break in the service when the appellant served in the Emergency Cadre on contract basis. We are unable to accept the stand taken by the appellant. No doubt, initially the appellant was offered appointment in the Emergency Cadre on contract basis, nevertheless, the contract was not finalised. This was so because the appellant was a permanent Assistant of the Home Department and his appointment in the Emergency Cadre was in the nature of deputation. Needless to say that during his tenure of service in PMAS, he got his pay fixed with reference to the pay he was entitled to draw as Assistant /Superintendent in the Home Department. The period of Emergency Cadre has been treated as period qualifying for pension and the appellant cannot now say that the said period cannot be counted.
26. On this ground, several cases were cited by the appellant in support of his contention. The first case is that of Nasir Ahmad v. Secretary of Information 1984 S C M R 1367. This was a case where the employee had first rendered Government service in Radio Pakistan and was then taken in the Pakistan Broadcasting Corporation. It was held that the period spent in Radio Pakistan could not be treated as service qualifying for pension, as the appellant had subsequently become employee of the Corporation and for earning pension from that Corporation, the service rendered under it only was countable. We find nothing in this case which can apply to the cicumstances of the present appeal. In that case, the employee had served under two different organisations, i.e. the Government and the Corporation. In the present case, the entire service rendered by the appellant was under the Government.
27. The other case relied upon is the Province of West Pakistan v. Nazir Hussain P L D 1960 S C (Pak.) 130. This case too has no resemblance with the circusmtances of the present case. The question examined in that case was with regard to the nature of employment of a Member of Public Service Commission, which is a post created under the Constitution. Another case relied upon is the Secretary to the Government of Punjab, Education Department v. Noor Muhammad Khan .P L D 1984 S C 80. In this case, the person concerned was first employed under the Central Government department for a period of over eight years. He then became surplus and remained out of service for more than two years. He was recruited afresh by the Provincial Government in the Provincial Service. It was held that the service rendered by such person with the Central Government could not be treated as service performed which could count for pension. This case too has no resemblance with the circumstances of the present case, where the appellant never became surplus and there was no break whatsoever in his service under the Federal Government. Reliance was also placed on the case of Muhammad Afzal v. Government of the Punjab 1982 S C M R 408. In this case, nature of ad hoc appointment has been explained. It is nowhere stated that the temporary appointment, or ad hoc appointment or appointment in the Emergency Cadre shall not count towards pension. Yet another case relied upon is that of Postmaster General, Eastern Circle (EP), Dacca v. Muhammad Hashim P L D 1978 SC 61. We have gone through this case, but we do not find any observation of the Court with regard to the question in issue. Reliance has also been placed on several other cases which we do not think it is necessary to mention, because, in our opinion, the points involved therein were quite different. These cases are Pakistan v. Liaquat Ali Khan P L D 1959 S C (Pak.) 37, A.M. Khan Leghari v. Government of Pakistan PLD 1965 (W.P.) Lah. 214 and Karamatullah Khan v. Government of West Pakistan PLD 1966 (W.P.) Lah. 881.
28. In our opinion, the service rendered by the appellant as Assistant as well as the service under the Emergency Cadre counts towards pension and has actually been so counted. As already stated, the service as Assistant in the Home Department was a regular service which was taken into consideration while fixing the pay of the appellant in PMAS. The period of Emergency Cadre was in the nature of deputation from the Home Department as long as the appellant was not made regular Member of the PMAS. The whole service, if taken into account, is not less than 25 years and, therefore, the entire o it qualifies for pension. On this ground agitated before us, the appellant also cannot succeed.
THIRD GROUND
The matter could not be taken up under Article 178 as there were serious charges against the appellant which required probe under the Government Servants (Efficiency and Disciplinary) Rules:
29. As pointed out by the appellant and admitted by the learned State counsel, there were serious charges of misconduct, indiscipline, inefficiency, immorality and gross irregularity against the appellant and in fact some proceedings against him were also contemplated. The appellant contends that this being the case, the appellant was entitled to be heard in person under the constitutional guarantee and his service could not be terminated simply by making an order under Article 178 of the 1962 Constitution. He pointed out that it was a colourable exercise of jurisdiction outside the contemplation of law. Reliance was first placed on the case of Ghulam Sarwar v. Pakistan P L D 1962 S C 142. In this case, the services of the railway employee were terminated without notice to show cause on the basis of the appointment order which provided that the service of the employee could be terminated on one month's notice or pay in lieu thereof. The Supreme Court setting aside the orders of the lower Courts held that such an action could not be taken. The decision was based on the constitutional guarantee contained in section 240 of the Government of India Act, 1935. The Court held that the enabling provision for retirement in the appointment order was void and ineffective, as it violated the provisions of section 240 of the said Act, which provided that no person shall be removed or dismissed from service unless a reasonable opportunity of hearing has been given to him. The law laid down in this case was applicable when the Government of India Act and the Constitution of 1956 were in force; for there was no provision in the two constitutional documents analogous to Article 178 of the 1962 Constitution which itself gave power to the Government to retire a person after he completes 25 years service qualifying for pension. In the context of action taken under Article 178 ibid, therefore, the case of Ghulam Sarwar would not be made applicable.
30. The appellant also relied on the case of Syed Mir Muhammad v. N.‑W.F.P. Government P L D 1981 S C 176. The ratio of this case is that a civil servant could not be dismissed from service unless he is given a notice to show cause after the completion of the disciplinary proceedings under the Government Servants (Efficiency and Disciplinary) Rules. We fail to understand, how the appellant seeks shelter behind this case. Nurul Hassan v. Federation of Pakistan P L D 1956 S C 331 was then relied upon, but this case too pertains to the period when the Government of India Act, 1935 was in force. The present one is a case under Article 178 of the 1962 Constitution and, therefore, Nurul Hassan's case is of no help to the appellant. The ratio laid down in the case of Parshotam Lal Dhingra v. Union of India P L D 1958 S C (Ind.) 217 is also not applicable, for it was a case in which the guarantee given under the Government of India Act and the Indian Constitution had been examined and where there is no provision analogous to Article 178 of the 1962 Constitution. Reliance‑was then placed on the case of Principal, Pine Hills College v. Moharram Ali 1986 S C M R 1264. In this case, the order of termination of service was couched in such words which attached stigma to the employee. The Supreme Court held that this was a case of dismissal and, therefore, void. This case too has no analogy with the case in hand.
31. In a recent decision of the Supreme Court, WAPDA v. Saeed Ahmad 1986 S C M R 725, it was laid down that where the removal of a WAPDA employee is for misconduct and the departmental inquiry had started, an order under section 17(lA) which gives full power to the WAPDA for dispensing with the service of an employee, can be passed. In our opinion, since the order of retirement of the appellant by itself does not attach any stigma, this order was valid though in fact the order of retirement was made on account of some allegations against him. On the ground under discussion, therefore, the appellant cannot succeed.
FOURTH GROUNDThis was a case of no evidence and as such the order was a nullity.
32. This ground is against the stand taken by the appellant in the third ground. We have held that an order under Article 178 of the 1962 Constitution can be passed even if there are allegations against a Government servant. The order can be passed even otherwise if there is no allegation against the Government servant. Reliance was placed on the case of Brij Behari Lal v. High Court of Madhya Pardesh 1982 P S C 746. In this case, the High Court recommended the retirement of a Sessions Judge, inter alia, on the basis of adverse remarks appearing in the judgment of the High Court. These remarks were never communicated to the Sessions Judge. The Supreme Court opined that non‑communication of the adverse remarks made the order of retirement mala fide and arbitrary. It set aside the order of retirement and directed the High Court to reconsider the case of the Sessions Judge. In our opinion, this case cannot be cited as precedent for the reason that the Indian Constitution gives unfettered protection to Government servants and.there is no provision therein comparable with Article 178 of the 1962 Constitution. That provision gives unfettered power to the competent authority for retiring a person, inter alia, at a stage when he completes 25 years service qualifying for pension, or other retiring benefits.
33. The other case relied upon is Swami Saran Saksena v. State of Utter Pardesh 1983 P S C 51. The ratio of this case too is not applicable, because the retirement in the case before us has been made under the constitutional provision itself.
34. The appellant then contended that his A.C.Rs. upto 1962 had been 'good' or 'very good', and that subsequent adverse remarks in his A . C . Rs were recorded mala fide. According to him, there arose some differences between the appellant and his in‑laws, and it was on the anonymous complaint made by his in‑laws, that the adverse remarks started against him. In 1963, the appellant's integrity, both intellectual and moral was recorded to be 'below average'. Even then the Countersigning Officer pointed out that the assessment was lenient. In 1965, his quality and output of work was shown to be 'below average'. The same was the grading for 'Perseverance and devotion to duty co‑operation and tact; integrity, intellectual and moral and sense of responsibility in general and in financial matters. No doubt, this report was toned down by the countersigning officer, nevertheless the subsequent record shows that the countersigning officer too changed his view. In 1966, his integrity both moral and intellectual was recorded to be 'below average', and sense of responsibility too in the same grading. The following remarks by Reporting Officer in the pen picture are pertinent.‑‑
"Mr. Siddiqi is a curious combination of some positive and negative qualities. He is quite intelligent, but all his intelligence is employed in litigation with the Government or his relatives. He is prone to file a suit against the Government on the least pretext. This shows that he is pugnacious basically. In general official life he is not all straight. He is a man of doubtful integrity and is unfit to be entrusted with an independent office."
The countersigning officer who was the same who toned down the report for 1965, made the following observations:
"During my tenure as PAMF, I have found this officer to be consistently a "problem". I started with slight predisposition towards him as I had known him as a competent Secretary of a Service Association. But he has involved deeper and deeper in quarrels with his relatives and the Government. He changed the period of his leave application after approval by me, and recently he refused to carry out transfer orders despite my personal advice, and indeed went to a Court of law. Whatever his history of misfortune he cannot get along in the Department."
35. The appellant's case is that the above remarks were recorded without any basis simply on an anonymous complaint and for the reason that the Reporting Officers were biased against him. We are not going into the merits of this stand and it is unnecessary to refer to other authorities relied upon by the appellant, because none of these cases relate to an order made under Article 178 of the Constitution. In fact, no departmental action was taken to logical end and the appellant was simply retired with honour, in spite of the fact, that his record was somewhat indifferent. The Constitution gives a plenary power to the competent authority for retiring a person and that power is not abridged or qualified by any considerations. On this ground also, therefore, the appellant cannot succeed.
FIFTH GROUNDThe order was mala fide of the functionaries of the Government and as such void in law.
36. The appellant contends that during the period in question, he had some differences with his in‑laws and that Mr. Ikramul Haq, the then Defence Secretary, was related to them and, therefore, he prevailed upon Mr. Fida Hassan, Principal Secretary to the President and obtained the order of retirement and similarly he was responsible for the adverse reports against the appellant recorded by several functionaries of the Government. He also said that Mr. Ikramul Haq prevailed‑on the Civil Judge also who made filthy remarks in the judgment on the conduct of the appellant. It appears that there were certain allegations of financial irregularities against the appellant. The in‑laws of the appellant in a civil matter before the Civil Judge brought certain documents which led to the conclusion that the appellant had illicit relations with his own niece. The financial irregularities and this moral aspect of the appellant was in fact the I reason for his retirement. It also appears that due to these facts, the appellant was not very much keen in his work as he had been prior to the two incidents coming to light. He was so involved therein that the work suffered. We are not going to comment upon his moral integrity, because there are some documents which speak themselves. The allegations of financial irregularities may or may not be correct, but it appears that the appellant himself dealt with the case of pay fixation of a person placed in the same position in which the appellant was and thus got financial benefit. His conclusion may be correct, but then it was not in good taste for him to examine a case which indirectly also affected his own emoluments. The appellant has practically made allegations against every person with whom he was dealing. He stated that Mr. T.G. Nasir Khan, the Guardian Judge who made the remarks against him in a civil matter, Mr. A. U. Kalim, Mr. Fahimuddin, Mr. Rashid Ibrahim and Mr. Ikramul Haq, were all against him for one reason or the other, and that it was at their instance that the retirement order was passed. He has made allegations against each of them but there is no evidence to establish them. Even otherwise, if all persons were against him, this situation itself was sufficient for retiring the appellant because otherwise the Government work and public interest would have suffered and there would have been quarrels in the department where he was serving. In our opinion, no mala fide has been established which would make the order of retirement illegal.
37. The appellant also questioned the procedure which was adopted in taking action against him. It appears that when in the first instance the matter was referred to the C.P.S.C., the Chairman returned the file with the remarks that the record of the appellant was not made available. The record was then made available and the Commission agreed with the proposal of the Government that the appellant should be retired from service under Article 178(4)(a) of the Constitution. The appellant's case is that the very fact that initially the adverse remarks against the appellant were not brought to the notice of the Commission shows that the action was taken mala fide. We do not think it is so, because subsequently the entire record was made available to the Commission and the Commission agreed to the proposal on this record. In any case, we are not satisfied that any mala fide is established. In fact, the appellant had become a problem for the department and his retirement had rightly become necessary in the public interest.
38. The result of the above discussions is that we find no substance in this appeal and dismiss it, but with no order as to costs throughout.
M.Y.H./370/Sr.F.
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