P L D 1969 Supreme Court 60 (PLP)

HAMOODUR RAHMAN, C. J.

‑This appeal by special leave arises out of an order of a Division Bench of the High Court of West Pakistan, Lahore, in a petition under Article 98 of the Constitution whereby an order passsed on the 19th May, 1964, by the Secretary to the Government of West Pakistan, Communica tion and Works Department, Lahore, terminating the services of the respondent with immediate effect, was quashed and declared to be of no legal affect. The respondent who was appointed as a temporary Tracer in the Assistant Town Planner's Office at Rawalpindi in 1958 was, it appears, charge‑sheeted on the 28th November 1961, on the basis of a written complaint made by the Head Clerk of the office alleging that the respondent had, in connivance with others, brought two women and a child in the office premises of the Regional Office, Rawalpindi, after office hours on the 22nd July 1961, and allowed them to spend the night there. A preliminary enquiry was made into this allegation by the then Provincial Town Planner and the respondent was placed under suspension. A formal enquiry was then conducted, according to rules, by the Assistant Town Planner who on the 29th March 1962, recom mended that the respondent be penalized under clause 4(1) (a) or (b) of West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960. The Provincial Town Planner, however, on the 3 1st March 1962, served a second notice upon the respon dent calling upon him to show cause as to why he should not be removed from service. He showed cause but the same was considered unsatisfactory and he was ultimately removed from service on the 17th April 1962, under rules 3 (b) and 4(f) of West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, for misconduct. The respondent filed an appeal against this order of removal from service on the 20th April 1962, but the same was dismissed by the Secretary, Communication and Works Department, Government of West Pakistan who upheld the decision of tile Provincial Town Planner, West Pakistan. The respondent then made a further representation, on the 1st August 1962, to the Minister for Communication and Works, Government of West Pakistan. The latter disagreed with his departmental Secretary as to the punishment imp‑red upon the respondent and directed that lie should be given a lesser punishment and re‑instated it service. According to the Rules of Business framed by the Provincial Government, namely rule 7 (3) of the West Pakistan Government Rules of Business, 1962, the Minister had no power to overrule the Secretary. Upon a difference of opinion arising between the Secretary and the Minister of the Department concerned, the matter had to be referred to the Governor. In this case, however, without making any reference to the Governor an order was issued on the 26th March 1963, to the following effect: "The Governor of West Pakistan is pleased to reinstate Mr. Gulzar Ahmad Tracer in the Office of the Assistant Director, Town Planning, Rawalpindi, with immediate effect. (Sd.) Ch. Salim Ullah Section Officer, Housing, for Secretary to Government of West Pakistan, Communication and Works Department." This irregularity was subsequently brought to the‑notice of the Governor who directed the, matter to be put up for consideration before the Cabinet. In the meantime, however, the Minister concerned lm‑l gone out of office. The matter was, nevertheless, taken up cat a Cabinet meeting held on the 2nd September, 1963, and the following decisions taken :‑ (i) To call for an explanation from the Secretary, Com munication and Works Department as to why the Respondent's cafe was riot brought to the notice of the Governor for final orders, because, orders had already been passed by the Secretary as appellate authority and, therefore, he could not have legally agreed to his orders bring revised by the Minister without a reference to the Governor, and (ii) That the order of the appointing authority as confirmed by the Secretary removing Mr. Gulzar Muhammad from Service should be restored as the order of the Minister re‑instating him in service was illegal and ultra vires. In pursuance to this decision a second show‑cause notice dated 8‑1‑1964 was served on the respondent on the 17th January 1964, to show cause as to why he should not be removed from service. The respondent showed cause on the 24th January 1964, but on the 199th March, 1964 his services were terminated with immediate effect," his explanation was found to be unsatisfactory. He challenged this order by a petition under Article 98 of the Constitution in the High Court of West Pakistan which, as already stated, allowed the same by a brief order on the 11th April 1967, on the ground that there being nothing on the record to show that the Governor had ever withdrawn his order dated 26‑3‑63, the Secretary could not declare the said order or the Governor to be illegal or void, particularly, since the impugned order did not itself disclose how the previous order of the Governor dated 26‑3‑63 was void or illegal. In fairness to the High Court it must be stated here that the writ petition was contested only on the ground that the petitioner being a temporary employee was not entitled to any Constitutional guarantee under Article 177 of the Constitution and therefore, the order of his removal having been made by a competent authority was not open to challenge. It was not pointed out to the High Court that the order of the Minister had been made in contravention of the West Pakistan Government Rules of Business, 1962, nor was any documentary evidence placed before the Court to show the circumstances in which the order of 26th March 1963, which on the face of it appeared to have been issued under the order of the Governor, came to be cancelled. The Government of West Pakistan, on the 24th June 1967, however filed an application for special leave to appeal in this Court and along with the petition for special leave filed attested copies of some extracts from the minutes of the meeting of the Cabinet of Ministers of the West Pakistan Govern ment, held on the 2nd September 1963. On the basis of this new evidence leave to appeal was granted to consider whether the High Court had acted rightly in quashing the impugned order of the 19th May 1964. The learned Additional Advocate‑General concedes that the extracts from the minutes of the Cabinet Meeting now produced had not been placed before the High Court as the learned Counsel then appearing for the Government had not been properly instructed and had thought it fit to contest the writ petition merely on the legal plane. In this state of affairs it cannot, of course, be said that the decision of the High Court suffered from any error, because, on the basis of the materials which were placed before it no other decision could have been taken. Having regard to the presumption of regularity attaching to official acts, the High Court was entitled to presume that the order of the 26th March 1963, directing the re‑instatement of the respondent, which ex facie declared that the Governor of West Pakistan had been pleased to make the said order, was made after complying with the Government's own rules of business. Such an order could, therefore, not be set aside by the Secretary. Furthermore, neither the impugned order of the 19th May 1964, nor the show‑cause notice of the 8th January 1964, disclosed how the order of the 26th March, 1963 came to be illegal and void as alleged therein. In this view of the matter the High Court had, in our opinion, no alternative but to allow the writ petition filed by the respondent. The question now is as to whether that order of the High Court should be set aside upon the fresh materials now placed before this Court for the first time. Normally, where important evidence having a material bearing on the merits of a case is subsequently discovered there are, of course, three courses open to a party to the litigation. He may (i) apply for admission of the fresh material as additional evidence before the judgment is pronounced, (ii) apply for a review of the judgment after it has been pronounced and (iii) appeal from that judgment. In the present case the appellant has adopted the last course without disclosing as to why it could not have applied for a review of the judgment on the ground of discovery of the fresh evidence. But in an appeal it is now well settled that additional evidence should not be admitted in order merely to enable one of the parties to the litigation to fill in gaps in the evidence. This Court, acting as a Court of ultimate jurisdiction, has undoubtedly the power to do complete justice, if necessary, even by admitting additional evidence, for there is no restriction on the powers of this Court to admit such evidence for the non- production of which at the initial stage sufficient ground has been made out. But even so this Court does not, as a rule, undertake an enquiry as a Court of first instance, nor permit additional evidence to be placed in appeal when there was sufficient opportunity for the appellant to place all the relevant material before the High Court itself. In the facts and circumstances of the present case there was such an opportunity available to the appellant but he did not avail of the same. Again an application for review could well have been made to the High Court even after its judgment was delivered. This too was not done. Would it then be proper for this Court at this stage, to dispose of the appeal upon the basis of this new material which was never placed before the High Court and which the respondent had no opportunity of meeting? The learned counsel, appearing for the respondent has objected to this material being admitted into evidence, particularly, since he has had no opportunity of adducing rebutting evidence or controverting the allegation that the order of the 26th March 1963, was an illegal or void order. Having regard, however, to the nature of the material now produced before us we are of the opinion that in order to do complete justice this material should have been before the High Court and the High Court should, after considering the same and allowing the respondent an opportunity of adducing rebutting evidence or challenging the admissibility of the evidence now sought to be put in, decide the matter afresh. The ends of justice, in our view, therefore, require that this matter should be reconsidered by the High Court in the light of the evidence now sought to be put in. We would, therefore, allow this appeal to the extent that we would set aside the order of the High Court and remit the case back to the High Court for reconsideration after giving the appellants an opportunity to adduce in evidence the documents now produced in this Court. In doing so the High Court will also consider the objections, if any, that the respondent may have to raise as to their admissibility in evidence and also give the respondent an opportunity of adducing rebutting evidence if he so desires. This order will however, be subject to the condition that the appellant will pay all the costs of the respondent both of this Court and of the further bearing in the High Court, irrespective of the result of the case, for, there can be no manner of doubt, that this unsatisfactory state of affairs has arisen solely due to the sheer negligence of those responsible for giving proper instructions to the law officers of the Government. K. B. A. Appeal partly accepted. Case remanded.