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Civil Appeal No. 48 of 1959, decided on 20th January 1960.

(On appeal from the order of the High Court of West Pakistan, Lahore, dated the 1st July 1959, in Writ Petition No. 354 of 1959 and Civil Miscellaneous No. 1115 of 1959 and order dated the 12th August 1959, in Civil Miscellaneous No. 410 of 1959.)

(a) Laws (Continuance in Force) Order (Post-Proclamation I of 1958) (as amended), Art. 6 (5) (a)-"After such inquiry " Reference to Screening Committee under Public Conduct (Scrutiny) Ordinance (III of 1959), S. 3-Satisfies condition as to "inquiry".

(b) Public Conduct (Scrutiny) Ordinance (III of 1959), S. 10 Ousts jurisdiction of all Courts including Supreme Court-Mere irregularity in procedure of Screening Committee not taken cogni zance of by Supreme Court-Public Conduct (Scrutiny) Rules, 1959, r. 2-Mala fide proceedings under Ordinance, or where Ordinance is used only as a cloak- Order not treated as one under Ordinance.

The jurisdiction of the Supreme Court to call in question the proceedings of a Screening Committee is barred by section 10 of the Public Conduct (Scrutiny) Ordinance, and an order made by the President under sub-clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order cannot be called in question in any Court. So far as section 10 is concerned there can be little doubt that even if the Committee never informed the appellant in accordance with rule 2, Public Conduct (Scrutiny) Rules, 1959 that it had reasons to believe that he was corrupt or guilty of misconduct, the omission would be no more than a mere irregularity in procedure of which the Supreme Court could not take cognizance.

Where, however, the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken, though it purports to have been taken, under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute.

Where the Screening Committee and the President both had jurisdiction in the matter, the officer was amenable to the jurisdiction exercised, the jurisdiction was exercised on the grounds mentioned in the statute and the order made was within the terms of the statute and it was not alleged that the Committee acted mala fide and used the statute for an ulterior purpose, the ouster was complete and the Court had no jurisdiction to call in question the order made.

(c) Jurisdiction-Ouster by statute-Conditions to be satisfied for ouster to operate.

If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omissions or irregularity alleged will be a matter for that authority, and not for a Court of law.

(d) Laws (Continuance in Force) Order (Post-Proclamation I of 1958) (as amended), Art. 6 (5) (b)-Inquiry not necessary, though not barred, before retiring Government servant under sub-clause (b) Inquiry, if held, must follow procedure prescribed.

Held, that by enacting sub-clause (b) of clause (5) of Article 6, Laws (Continuance in Force) Order (I of 1958) the President intended to confer on the Central Government the power to retire a Government servant without the formality of an enquiry if it were of the opinion that the servant concerned was guilty of corruption or misconduct or had the reputation of being corrupt.

Nevertheless, there was nothing in sub-clause (b) to prevent the Central Government from ordering an enquiry if action was intended to be taken under that sub-clause and if the enquiry ordered was regulated by a law the Committee was bound to follow that law even though such enquiry was not necessary and the action actually taken could have been taken without such enquiry.

Viterally v. Seaton U S 3 L ed. 2d. 1012 ref.

A. K. Brohi, Senior Advocate Supreme Court (Mazhar-ul- Haq, Advocate Supreme Court, with him), instructed by Amjad Hussain, Attorney for Appellant.

Nazir Ahmad Khan, Attorney-General, Pakistan (Abdul Haq, Advocate Supreme Court, with him), instructed by Iftikhar-ud-Din Ahmad, Attorney for Respondent.

Dates of hearing : 16th, 17th and 18th December 1959.

.-This is a certified appeal from the judgment .of a Division Bench of the High Court of West Pakistan at Lahore rejecting in limine an application for a writ.

By an order of the President under sub-clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, Zafar-ul-Ahsan appellant, a senior officer in the Civil Service of Pakistan, was retired from service for misconduct. The order was passed on the report of a Screening Committee appointed under the Public Conduct (Scrutiny) Ordinance, 1959, and after considering the appellant's appeal against the findings of the Committee.

The appellant moved in the High Court an application for a writ against the President's order on several grounds, which was rejected without notice to the State, on the finding that the application was not competent and that the Court had no jurisdiction to consider the merits of the case. The only point that has been argued before us is that the High Court was wrong in the view that it took and that an application of the kind lay in law.

In order to appreciate the nature of the attack on the order in question, it is necessary to state a few facts and the legal position. By a top secret and most immediate letter dated the 17th February 1959, from the Secretary of the Screening Committee, the appellant was communicated certain allegations which had been made against him to the Committee and he was required to submit his explanation within a week of the receipt of the letter. The appellant submitted the required explanation but the committee was not satisfied with it. Consequently by his letter dated the 7th March 1959, the Secretary of the Committee intimated to the appellant that his written explanation had been considered by the Committee, that there were "many matters, which had not been satisfactorily explained, and that if the appellant wished to explain them further he was at liberty to do so" on the 19th March at 10-0 a.m. on which date his case would come up for final disposal. The appellant received this letter in Rome where he was spending his leave but he returned to Karachi and appeared before the Committee on the afternoons of 19th and 20th March. The proceedings of these two days are thus described by the Committee ;

"We have examined each one of these transactions very carefully. Mr. Zafar-ul-Ahsan, in addition to giving a written reply, personally explained the various circumstances connected with these transactions for several hours spread over two afternoons. He later sent three communications with further explanations. We have considered his further explanations for nearly four hours and re-examined the evidence in the light of what he had to say".

Their conclusions the Committee recorded in the following words :---

"In view of the fact that there is an element of criminality involved in each one of these transactions and the Inspector General proposes to move that the competent authorities should take action in a criminal Court in respect of these allegations, we would prefer not to discuss the circumstances in detail. We are satisfied, however, that practically in each one of them misconduct i.e., conduct unbecoming an officer is involved. The motive is to give special benefits to a particular person because of personal relationship. Public funds have been diverted by various means".

The transactions specifically mentioned by the Committee in the earlier part of the report were seven in number and they all related to special benefits conferred on a person in whom the appellant was alleged to have been personally interested. In the statement of allegations, however, which was sent to the appellant with the Secretary's letter of the 27th February, there were certain other accusations which were not mentioned by the Committee in their report. As to these the Committee said :---

"In addition to the charges in which this (person) is the beneficiary, there are several other charges also. While we are of the opinion that disciplinary action is called for in respect of them also we would prefer not to make a special recom mendation about him (them)".

On the dates the Committee submitted its recommendations to the President and the President ordered the retirement of the appellant, the law on the subject as contained in Article 6 of the Laws (Continuance in Force) Order, 1958, was :----

"(1) All persons who immediately before the Proclamation were in the service of Pakistan as defined under clause (1) of Article 218 of the late Constitution and those persons who immediately before the Proclamation were in office as Governor, Judge of the Supreme Court or a High Court, Comptroller and Auditor-General, Attorney-General or Advocate-General, shall continue in the said service or in the said office on the same terms and conditions and shall enjoy the same privileges, if any.

Explanation :-Nothing in this clause prevents the President. In the case of a person in such service serving in connection with the affairs of the Federation or the Governor in the case of a person in such service serving in connection with the affairs of a Province from granting an extension of service in the public interest notwithstanding that the person to whom the extension is granted would, but for the extension, have reached the age of retirement.

(2) ..

(3) Notwithstanding anything in clause (1) a person in the service of Pakistan may, if he is found inefficient or guilty of subversive activities, corruption or misconduct, under rules made in that behalf by the President or a Governor be suspended, compulsorily retired (whether he has reached the age of retire ment or not) reduced in rank, removed or dismissed in accordance with those rules by an authority not subordinate to that by which he was appointed.

(4) No rule made under clause (3) or order expressed to be made in accordance with any such rule shall be called in question in any Court.

(5) Nothing in this Article or in any law, rule or instrument having the force of law shall prevent a person mentioned in clause (1) from being-

(a) suspended, reduced in rank, removed or dismissed for being corrupt or for misconduct, or for inefficiency after such enquiry as may be held under the orders of the Central Government, or

(b) retired for any cause mentioned in the preceding sub -clause, or for having the reputation of being corrupt, on such pension (if any), as may be admissible to him, proportionate or otherwise by an order of the authority mentioned in clause (3) made before the first day of July 1959, or in the case of a Chairman or member of a Provincial Public Service Commission the first day of January 1960, and no appeal shall lie against such order nor shall such order be called in question in any Court".

There can be no doubt that the allegations communicated to the appellant with the Secretary's letter of 27th February amounted to charges of corruption and misconduct on proof of which the appellant could have been dismissed under sub- clause (a) of clause (5) of Article 6 and that the appellant's case having been referred to a Screening Committee, the conditions of "after such inquiry as may be held under the order of the Central Government" imposed by that sub-clause was satisfied. The action taken by the President, however, was not under sub clause (a) but under sub-clause (b) because the appellant was not dismissed or removed for corruption or misconduct but was merely ordered to be retired for misconduct as is apparent from the President's order of 28th June 1959, which states that "the President has been pleased to order your retirement for mis conduct" under sub-clause (b).

The contention raised and forcefully argued by Mr. Brohi is that the President's order retiring the appellant from service is not valid and that there is nothing in law to bar our jurisdic tion to determine the validity or invalidity of that order. Section 10 of the Public Conduct (Scrutiny) Ordinance, 1959, ousts the jurisdiction of all Courts, including the Supreme Court, to question any order, finding or proceedings of a Screening Committee or of an appointing authority. And clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, provides that no order of the authority mentioned in clause (3) shall be called in question in any Court, Prima facie, therefore, even if there has been any irregularity in the proceedings of the Screen ing Committee or if the order of retirement has been made under sub-clause (b) of clause (5) of Article 6, the appellant has no remedy in a Court of law. Mr. Brohi attempts to get over this difficulty by seeking to establish that the order of retirement of the appellant is not an order under sub-clause (b) and that therefore the Court's jurisdiction is not ousted. The Central Government has framed rules under the Public Conduct (Scrutiny) Ordinance, of which Rule 2 provides that where a Screening Committee is of the opinion that there is reason to believe that a person to whom the Ordinance applies is corrupt or is guilty of conduct contrary to good order or unbecoming his office it may so inform that person and then take certain proceedings against him. Mr. Brohi's contention is that neither in the Secretary's letter of the 17th February 1959, nor in the statement of allega tions accompanying it is there the slightest indication that the Screening Committee had formed the opinion that the appellant was corrupt or that he had been guilty of some improper conduct and that therefore all subsequent proceedings taken by the Screening Committee are null and void and the order passed by the President on the proceedings taken by the Committee cannot be considered to be an order under sub-clause (b) of clause (5) of Article 6. In the course of arguments some of us were at one stage inclined to take the view that this question did not arise in the case because sub-clause (b) of clause (5) in its terms materially differs from sub-clause (a) inasmuch as while no enquiry seems to be contemplated by sub-clause (b), such enquiry as the Central Government may direct is a sine qua non under sub- clause (a). Under the latter clause a Government servant may be suspended, reduced in rank, removed or dismissed for being corrupt or for misconduct whereas under the former the only order that can be made against him is that of retirement on the grounds mentioned in sub-clause (a) or for his having the reputation of being corrupt. Retirement is a much less serious punishment and it seems that by clause (5) the Central Government intended to acquire the power to inflict such punishment without any enquiry because if an enquiry had been considered to be necessary there is no reason why that condition should have been omitted from sub-clause (b) after, its having been prominently mentioned in sub-clause (a). The difference in the phraseology of the two provisions appears to be deliberate and the obvious reason for it seems to be that retirement was considered to be a lighter penalty than reduction in rank, removal and dismissal. Since servants of the State hold their offices during the pleasure of the Head of the State, by enacting sub-clause (b) the President intended to confer on the Central Government the power to retire a Government servant without the formality of an enquiry if it were of the opinion that the servant concerned was guilty of corruption or misconduct or had the reputation of being corrupt. If, therefore, the appellant had been retired for any of the reasons mentioned in sub-clause (b) without any enquiry, he would have had no remedy. The actual position, however, is different. The appel lant's case was referred to a Screening Committee and the Screening Committee clearly acted in professed exercise of the powers conferred on it by the Public Conduct (Scrutiny) Ordinance and the Rules made thereunder. It may be that there was some error or irregularity in following the prescribed procedure, but that is an entirely different question from whether the Committee was in fact acting under the Act under which it had been constituted and the rules regulating its procedure. There is nothing in sub-clause (b) to prevent the Central Government from ordering an enquiry if action is intended to be taken under that sub-clause and if the enquiry ordered is regulated by a law the Committee is bound to follow that law even though such enquiry was not necessary and the action actually taken could have been taken without such enquiry. The decision of the United States Supreme Court in Viterally v. Seaton (US3Led.2d1012), strongly supports this view. In that case the officer concerned was liable to removal without any enquiry but the Secretary who had the power to remove him ordered a statutory enquiry to be held against him. In the conduct of that enquiry some irregularities were committed, so vital and fundamental, that they vitiated the result of the enquiry. The officer having brought a suit to challenge the legality of his dismissal the Secretary replaced the previous order of dismissal which was based on the result of the statutory enquiry by a fresh order, retroactive in effect, purporting to exercise the power under which he could discharge the plaintiff without any enquiry whatsoever. The Supreme Court unanimously held that the irregularities vitiated the earlier order of dismissal, though the Judges differed on the question whether the subsequent order of discharge had the effect of prospectively terminating the services of the plaintiff. Mr. Justice Harland, who delivered the unanimous judgment of the Court, made the following observa tions on this aspect of the case :-----

"Since, however, the Secretary gratuitously decided to give a reason, and that reason was national security, he was obligated to conform to the procedural standards he had formulated in Order No. 2738 for the dismissal of employees on the security grounds . . . . . . . Having chosen to proceed against petitioner on security grounds, the Secretary, here, as in Service, was bound by the regulations which he himself had promulgated for dealing with such cases, even though without such regula tions he could have discharged petitioner summarily".

And Mr. Justice Frankfurter, who read a dissenting judgment on another aspect of the case made the epigrammatic remark that "He that takes the procedural sword shall perish with that sword". In the present case, therefore, the Central Government having ordered a statutory enquiry, though for the action taken no enquiry need have been held, the Committee appointed to hold the enquiry was bound to follow the statutory procedure and an omission to comply with such procedure in some material respect would have vitiated the result of the enquiry, provided a Court of law had jurisdiction to question the alleged irregularity and to declare its effect on the result of the enquiry.

But here our jurisdiction to call in question the proceedings of a Screening Committee is barred by section 10 of the Publicly Conduct (Scrutiny) Ordinance, and an order made by the President under sub-clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order cannot be called in question in any Court. So far as section 10 is concerned there can be little doubt that even if Mr. Brohi's contention be correct, namely, that the committee never informed the appellant that it had reasons to believe that he was corrupt or guilty of misconduct, the omission, would be no more than a mere irregularity in procedure of which we cannot take cognizance.

As regards the contention that the order of retirement is not an order under sub-clause (b) because of the non-observance of Rule 2 or the omission or refusal of the President to hear the appellant in support of his appeal, the position is precisely the same, viz., that the order must be held to be under sub-clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, even if in following the statutory procedure some irregularity was committed. If a statute provides that an order made by and authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omissions or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a Court of law. Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute. In the present case the Screening Committee and the President both had jurisdiction in the matter, the appellant was amenable to the jurisdiction exercised, the jurisdiction was exercised on the grounds mentioned in the statute and the order made is within the terms of the statute and it is not the petitioner's case that the Committee acted mala fide and used the statute for an ulterior purpose. The ouster is therefore complete and we have no jurisdiction to call in question the order made.

On the grounds stated, this appeal fails and is accordingly dismissed. In the circumstances, there would be no order as to costs.

A. H. Appeal dismissed.

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