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Civil Appeal No. 29‑D of 1962, decided on 7th February 1963.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 29th January 1962, in Writ Petition No. 107 of 1960).

of compulsory retirement passed by "appointing authority" (D. P. L), on direction of Provincial Government‑Order not assailable by writ petition‑Relation between Departmental Head and Chief Executive that of subordinate and superior‑No question of order being passed mala fide, malice- in‑law, or of dishonesty‑Public Conduct (Scrutiny) Ordinance (l1l of 1959), Ss. 4 & 10‑Constitution of Pakistan (1956), Art. 170 [Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 K B D 223 distinguished; Shearer v. Shields 1914 A C 808 considered; Maxwell on "Interpretation of Statutes" and Zafar‑ul‑Ahsan v. The Republic of Pakistan P L U 1960 S C (Pak.) 113 not applicable].

Ordinance (III of 1959), S. 4 Absence of finding of guilty by Screening Committee‑Appointing authority not competent to come to a conclusion of guilt Prosecution of public servant resulting in acquittal‑Screening Committee coming to conclusion of guilt on basis of mere sanction for prosecution‑Finding of guilty not justified.

Order (I of 1958), Art. 6(5) Order retiring public serum for "misconduct"‑Bar against such order being called in question in Courts operates only if misconduct "is found"‑Public Conduct (Scrutiny) Ordinance (111 of 1959), S. 10.

Maksumul Hakim Advocate‑General East Pakistan (Q. M. M. Sobhan Advocate Supreme Court with him) instructed by A. W. Mallik Attorney for Appellants.

Abu Muhammad Abdullah Senior Advocate Supreme Court (A. K. M. Siddiq Advocate Supreme Court with him) instructed by Muhammad A. Aziz Attorney for Respondent.

Date of hearing: 7th February 1963.

.‑The Province of East Pakistan appeals, by special leave, against a judgment of a Division Bench of the High Court of East Pakistan granting to the respondent, Maulvi Amir Hussain, a writ to reverse an order of compulsory retirement made against him in June 1959, consequent upon proceedings under the Public Conduct (Scrutiny) Ordinance, 1959.

The order purported to be made by the Director of Public Instruction. There is no dispute that the D.P.I. was the "appointing authority" qua the respondent, whose post was that of Sub‑Inspector of Schools. The High Court has found that the D.P.I., upon his own judgment of the merits of the respondent's case, was reluctant to make the order, and that he made it under the directions of the Provincial Government. Holding that the relevant statutory provisions,

"confer upon the Director of Public Instruction discretion to pass the impugned order under appropriate circumstances",

The learned Judges proceeded to say:

"The impugned order is not an order passed by him; it is merely a cloak to cover what, in fact, is a peremptory direction by the Government . . . . ."

This circumstance was regarded as sufficient to avoid the order. Support for this conclusion was found in ‑a judgment of the (English) Court of Appeal, in the case "Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation ((1948) 1 K B D 223) where it was declared that an exercise of executive discretion by a local authority, in order to be immune from interference in the prerogative jurisdiction, must be "a real exercise of the dis cretion". With respect, the question in this, case is not merely, as to the exercise of discretion, but whether, in the direct line of subordination, such as obtain between the Chief Executive and the Head of a Department, it is necessary, in law or in justice in such a matter to maintain a power in the Departmental Head independent of, and if necessary in opposition to, the power of the Chief Executive. Nothing in the judgment in the precedent case appears to support the view, which found favour with the High Court, viz., that where the Departmental Head has sought directions from the Chief Executive on an executive matter, in, which the statutory requirement is that the eventual order shall be made by the Departmental Head, and has advised in a sense, which is not accepted by the Chief Executive, whose direction, in the capacity of superior to a subordinate, is to act in the opposite sense, an action by the Departmental Head in confor mity with such direction is vitiated through the intervention of such direction. The judicial power of the Crown in the prerogative, can never be employed so as to create conflict between superior and subordinate in a direct line of executive authority. There can be no excess or abuse of authority in the exercise of supervision, on the executive side, by superiors over subordinates, where there is no dichotomy such as arises through the provision of an appeal from the subordinate to the superior. In the latter case, it may be a matter for judicial interference if the order of the subordinate were made under the directions of the next or any higher appellate authority. But that is not the case here. The Ordinance provides that on receipt of the finding by the enquiry (or Screening) Committee, together with a recommendation for action, the "appointing authority shall pass orders thereon according to law", and by the Rules made under the Ordinance, it is provided that where the finding is against the official in question, the "appointing authority" shall furnish him with copies of the finding and the recommendation, and he shall be entitled "to appeal against it to the appointing authority". The "appointing authority" is to pass an order after considering "the finding, the recommendation and the appeal". No further appeal is allowed.

The High Court judgment then proceeds to declare that, as "a flagrant abuse of the power conferred on him i.e., the D. P. 1.)", his order is also mala fide and comes within the concept of "malice in law" for the elucidation of which the observations of Viscount Haldane, L. C. in a House of Lords case "Shearer v. Shields" (1914 A C 808), have been cited. On the view expressed above, it would seem that the D. P. 1. made his order as befits a subordinate authority, after having consulted the Chief Executive as to the exercise of discretion vested in him, in an executive matter, where there was no appeal. No abuse of power by the D. P. I. appears in such a proceeding, and the Chief Executive is guilty of no abuse of its own power in considering the case, and giving a direction in the circumstances. It is therefore unnecessary to consider the case in the light of "malice in law", beyond saying that as no contravention of law appears, in the circumstances, it is of no concern to anyone in the case to plead, in his favour, an "innocent mind", which is the basis on which malice is construed out of the contravention per se. To support the conclusion that the writ jurisdiction of the High Court was not excluded, by the force of section 10 of the Ordinance, the learned Judges reproduced passages from Maxwell on the Interpretation of Statutes which emphasize that, for validity in law, discretion under the terms of a statute "must beg exercised honestly and in the spirit of the statute", and found that the order of the D. P. I. was "also hit" by this rule of construction. So far as appears from the facts found, there has been no dishonesty in the matter, since it is not dishonesty for a subordinate to submit his judgment to that of an executive superior unless mutual independence is required by the provision of an appeal. The statute would seem to require, since there is no appeal from an order made there under, that action in each case should be taken only after full examination by all relevant authorities, and that is the case here.

The judgment then proceeds to consider at length another decision of the House of Lords, namely Smith v. East Ellordc (1956 A C 736). At the outset, it is said that this case "has no manner of application either to the facts of the case before us or the provisions of the Laws (Continuance in Force) (Amendment) Order, 1959, or the principles involved in the present case", and the resultant conclusion therefore comes as no surprise, viz., that the "majority decision rests on the special facts and peculiar provi sions of the (said) Act". Finally, mention was made of an apposite case decided some two years earlier by this Court, namely the case of Zafar‑ul‑Ahsan v. The Republic of Pakistan ((1960) 1 P S C R 41=P L D 1960 S C (Pak.) 113), for the ascertain ment of grounds upon which, despite the bar of jurisdiction imposed by section 10 of the Ordinance, the High Court could act to reverse the order of the Director of Public Instructions.

The same Ordinance came under examination in the case of Zafar‑ul‑Ahsan, and observations were made enumerating circum stances which, if established, would attract the bar of jurisdiction and also indicating others which would operate to attract the High Court's jurisdiction. Reliance was placed on three of that latter circumstances viz., (1) that the order was one, which could not have been made under the statute (2) that the proceeding was taken mala fide and (3) that the act was a colour-able exercise of power derived from the statute. With respect, non of these conditions is found to be present in the case, once it is viewed in the light of the factual subordination of the D. P. 1. to the Chief Executive, in a case of exercise of executive power, subject to no appeal. The learned Judges appear to have declined to examine the proceedings or finding of the Screening Committee on the ground that‑

"the proceedings, finding or order of the Screening Com mittee is not directly impeached before us, and, to this application, such a question cannot be agitated before us."

In fact, the petition before the High Court in paragraphs 14, 15 and 16, had criticized the proceedings and the finding of the Screening Committee in the clearest possible terms. It should be mentioned that the initial notice to the respondent by the Committee to appear before it required him to show cause "why disciplinary action should not be taken against you for "unsatisfactory service". The Ordinance and the Rules there under do not speak of "unsatisfactory service" but at the same time, the Rules do not prohibit the procedure here adopted (which was the routine in such cases), namely to cause the official concerned to appear on a summons mentioning generally, "unsatisfactory service", and at the viva voce examination, to place before him the specific charge or charges, within those enumerated in Rule 2, for his reply. The record does not show that a formal charge was preferred, and the Court is left to gather what transpired at the interview from the pleadings in the case, and the finding of the Committee. The allegations in the petition are (1) that when he appeared, the petitioner "explained his position in details" and protested his "fair" service records and his "unblemished character" but (2) the Screening Committee made a recommendation "arbitrarily for removal of the petitioner on the ground of misconduct, without asking for any fresh explanation on that score". The Provincial Government, in its reply, denied these allegations, and asserted that the Screening Committee had "duly considered the explanation". The order made by the Screening Committee was a brief one, and reads as follows: ‑

"Seen explanation. Heard in person. His prosecution under sections 193/468 P. P. C. has been sanctioned by the D. P. I. May be removed for misconduct."

It does not appear clearly from the petition that the fact of the prosecution was not expressly brought to the notice of the respondent. He cannot but have been aware of it, and it may be presumed that this fact was put to him, and he could not deny it, What appears clearly from the order itself is that the Screening Committee had formed the opinion that (1) a formal accusation of an offence under sections 193/468, P.P.C. coupled with (2) sanction to its being presented to a Court for trial; under the orders of the Director of Public Instruction were sufficient to found a conclusion that the person concerned was "guilty of conduct contrary to the rules regulating the conduct of Government servants, and in other case of conduct unbecoming his office" [see Rule 2(e) of the Rules]. When a Committee is of "the opinion that there is reason to believe that an official is guilty in this sense, it may call upon him to explain any fact or circumstance appearing against him", and under Rule 4, after having considered the explanation "the Committee shall record a finding on the matter of which the person concerned has been informed under Rule 2."

The petitioner placed on the record the judgment of the Special Judge who tried, and acquitted him. The accusation was that he had allowed one or more answers in an examinee's answer‑book to be amended after he had marked them, and had then altered the marks by raising them, with the object of securing a scholarship for the examinee. Signs of tampering were evident in the answer‑book, but there was no evidence to show (1) that any of the subsequent writings were in the hand of the petitioner (2) that the amendments in the answers were not in the handwriting of the examinee (3) that there was any approach to the petitioner on behalf of the examinee or other contract of any kind or (4) that any reward had been offered or given to the petitioner in connection with the improved markings, and moreover, before they came under examination prior to the accusation being framed, the answer books had passed through a number of different hands, so that responsibility for the condition in which they were found, when the accusation was made, could not be placed beyond doubt on the petitioner. The trial Court also found that there could be a motive for false implication, viz, the friendship with the prosecuting Sub‑Inspector of the person who laid the accusation, and who was ambitious to secure a scholarship for his own son. Moreover, the answer‑books of the latter candidate and of another candidate marked by the petitioner were submitted along with the answer‑book which was the subject of the case, to an independent board, of two persons, for re‑evaluation, and the board found that the student whose answer‑book was disputed was of superior merit, and further observed that the "examiner followed the same principle in marking throughout and no invidious distinction is observed in any case.

It was probably on the basis of the latter report that the D. P. I., even though he had sanctioned the prosecution, was still reluctant to act, while it was pending upon the finding and recommendation of the Screening Committee. But the Screening Committee itself had felt no hesitation in recording a finding that the official was guilty of misconduct, as alleged in the case, on the mere foundation that the case had been started. The result of the case establishes the gravity of the error, which lay at the basis of that conclusion, and it is an error, which vitiates the recommendation made by the Screening Committee. The Committee made it appear that there was ground for removal within the meaning of Rule 2, when in fact there was no such ground as is required by that Rule. The Ordinance and the Rules do not expressly give determinative force to the finding or the recommendation of a Screening Committee, in respect of the order to be made thereon by the appointing authority, yet reading these instruments as a whole, the conclusion is unavoidable that' in the absence of a finding of guilty, the appointing authority is in no position to come to a conclusion of guilt, since it has only the finding, the recommendation and the appeal, to go upon. Where the Screening Committee finds "not guilty", there may well be no appeal. The position is different in the case of a departmental enquiry, which results in recording of evidence and a report, which the punishing authority may or may not accept.

But under the Ordinance and Rules here, it is clear that the finding of guilty by a Screening Committee has a definitive anal determinative effect, and, consequently it must be allowed in favour of the affected person, that he may challenge that finding when it is found to be devoid of any basis at all, in an attack upon the consequential order determining his service, by way of punishment. Here, the matter admits of no argument, namely that the facts on which the respondent was found by the Screening Committee to be guilty of misconduct are wholly insufficient to sustain it. To be prosecuted is never in itself misconduct, and as for the sanction of the D. P. I., it was in the circumstances, a mere necessary formality. In effect, it is the same as if the Screening Committee had only said "may be removed for misconduct", when there would clearly have been no finding within the meaning of the Ordinance.

It remains to consider whether the jurisdiction of the Courts is barred, since the order is not, in our opinion, vitiated by mala fides or otherwise, as found by the High Court. Under Article 6(5) of the Laws (Continuance in Force) Order, 1958, an order retiring a public servant for a "cause mentioned in clause (3)"‑which includes "misconduct", shall not be called in question in any Court. But to attract this bar, misconduct must be found, at the very least, in logic, and here the non sequiter is plain. Under section 10 of the Public Conduct (Scrutiny) Ordinance, 1959, an order or finding by an appointing authority or a Screening Committee shall not be called in question in any Court. But, for the same reasons as before, the finding in this case is no finding for which protection against judicial examination can be claimed, and the order, which proceeded there on is equally liable to interference.

For these reasons, which differ from those, which prevailed in the High Court, we agree with the order made in the case, and hereby dismiss this appeal, with costs.

A. H. Appeal dismissed.

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