1981 PLP (C (PLC(CS))

M. SALEEM CHAUDHRY (CHAIRMAN).--The appellant, Mohammad Anwar Malik, joined the Punjab Building & Roads Department as an Overseer on 2nd July, 1949. Subsequently he was promoted as Sub -Divisional Officer and was serving in that capacity when he was retired under Martial Law Regulation No. 114 on 13th March, 1972 by the order of President of Pakistan. . The appellant challenged the order of his retirement by filing Writ Petition No. 549‑S/1973 in the Lahore High Court which abated on the establishment of this Tribunal. Consequently, the appellant filed this appeal on 14th October, 1974. The parties were heard. M. L. R. 114 did not require the service of any charge‑sheet against the concerned officer, nor did it provide for any hearing in defence. However, during the pendency of the writ petition in the High Court, the respondents brought up certain allegations arising out of actions of the appellant, which had purportedly formed the basis of appellant's premature retirement under M. L. R.

114. These allegations were discussed before us by the parties and their merits and demerits have also been detailed in the written arguments. It hag also been contended by the respondents that pursuant to the Supreme Court's direction in the case of Mohammad Israr Nabi (P L D 1980 S C 292) and also in C. Appeal No. K. 1/78 in M. Yamin Qureshi's case (P L D 1980 S C 22), this Tribunal is to go into the service record of the appellant and decide whether the record did or did not merit the punishment accorded to him in the form of compulsory retirement. But before we went into the service record of the appellant, it was a must for us to examine and adjudicate upon the objection, raised on the appellant's behalf that the competent authority did not, at any stage of the proceedings against the appellant under M. L. R. 114, had the opportunity to form its own opinion in terms of paragraph (3) (1) of the said Regulation.

4. It was contended on behalf of the appellant. that the decision to have the appellant retired was made by the Chief Engineer, who had recommended the appellant's name for action, under. M. L. R. 114, and the competent authority had no occasion to reach an independent conclusion in that behalf. In fact, considering that M. L. R. 114 was promul gated on 10th March, 1972, just two days later the appellant was retired along with more than 1,300 other officials, it is inconceivable that the competent authority‑‑the President of Pakistan or even the Governor of the Punjab, could have examined the numerous cases set apart for being proceeded against under the Regulation in such a short span of time so as to arrive at a definite opinion regarding each one of them. . The objection was rebutted by the respondents with the explanation that the scrutiny of service cases and records of the civil servants were already in hand and various Government agencies were on the job and as soon as M. L. R. 114 was promulgated action was taken under it.

5. However, notwithstanding the preparations made before enforcing M. L. R. 114, it has not been presented before us as a fact that the competent authority in the instant case did not form any opinion in respect of the appellant or that any or mere of the prerequisites envisaged under paragraph (3) (1) were attracted to the case of the appellant. Despite due opportunity neither in oral‑ arguments nor in the written nor by production of record, the respondents have been able to establish or to persuade us to believe that the competent authority, i.e. the President framed the opinion in regard to the appellant in terms of the requirements of paragraph (3) (1).

6. The respondent contended before us that the service record of the appellant was unsatisfactory and there were some enquiries and draft para pending against the appellant. The appellant submitted that he was exonerated in the only enquiry concluded against him but the Department kept the proceeding pending. Similarly he submitted that the draft para pertaining to the year 1964‑65 was dropped after due enquiry in 1970 by the Committee. He professed ignorance about the anti‑corruption enquiries.

7. Since we are convinced that it was imperative for the competent authority to form an opinion in order to apply paragraph (3) (1) of M. L. R. 114 to any civil servant, and that in the appellant's case that opinion was not so formed, we hold that the appellant was not lawfully retired on 13th March, 1972. Even the other objection pointed out by the respondent either resulted in appellant's exoneration or remained incon clusive. In fact it was never shown that these matters, were at all before the competent authority at the time of passing the imugned order. It is primarily for him to consider these matters. The appeal is, therefore, accepted. Appeal accepted.