1981 PLP (C (PLC(CS))

M. SALEEM CHAUDHRY (CHAIRMAN).‑In this case appellant, an ex‑PCS Officer is aggrieved of his retirement under M. L. R. 114 by the order of Governor of Punjab dated 18‑3‑1972 from the post of Colony Assistant, Sahiwal. The relevant provisions of M. L. R. 114 are as follows: ‑‑ "3.‑‑(1) Where in the opinion of the competent authority, a person in Government service or a person in corporation service is‑ (a) corrupt or has a reputation of being corrupt, or has assumed a style of living beyond his known sources of income, or (b) guilty of misconduct, or (c) inefficient or has for any reason ceased to be efficient, or (d) engaged or is reasonably suspected of being engaged in subversive activities, the competent authority may, notwithstanding anything contained in the terms and conditions of service of such person, by order in the official Gazette, dismiss or remove such person from service, or reduce him in rank, or direct that he shall prematurely retire from service." Initially, the appellant filed a Review Petition under M L R‑116 to the Chief Martial Law Administrator/President of Pakistan, but without any success. He also approached, the Lahore High Court in Writ jurisdiction and subsequently the Supreme Court of Pakistan in appeal, but on the establish ment of the Punjab Administrative Tribunal in pursuance of Article 212 of the Constitution of Pakistan, 1973 the aforesaid proceedings abated; hence the present appeal on 6‑6‑1974. The following issues were framed by this Tribunal on 15‑10‑1974 (1) Whether the impugned order of compulsory retirement of the appellant is mala fide? (on appellant) (2 Whether the impugned order has been passed by an incompetent authority ? (on appellant) (3) Whether M L R 114 is a bad law and could not be a valid piece of legislation being in conflict with principles of natural justice and constitutional guarantees ? (on appellant) (4) Whether the impugned order was not passed with due care and application of mind and was is in derogation of the mandatory provisions of M L R 114 ? (on appellant). ' In support of his plea of mala fide action on the part of the competent authority the appellant besides himself produced P. W. 1, Ch. Shamim Ahmad, Advocate, Sahiwal A. W. 2, Mr. Muhammad Ashraf Advocate Sahiwal, and A. Ws. Ch. Rustom Ali Baloch, an ex‑M P A, PPP, Sahiwal, He also produced AW‑4 Mr. Riaz Ahmad, Confidential Assistant, High Court Lahore, P. W. 5, Hakim Abdul Rashid, Superintendent Receipt and Issue, S & GAD and P. W. 6, Saeed Ahmad Ghauri, Section Officer, S & GAD. The evidence of the appellant was concluded on 31‑1‑1975 when the respondent was called upon to lead evidence in rebuttal. However, the respondent, after seeking an adjournment, applied for the recall of our order dated 31‑1‑1975 on the ground that it should first be determined as to whether the appellant had succeeded in making out a prima facie case on the issue of mala fide. Reliance was placed in this behalf on the following observations of the Supreme Court of Pakistan in P L D 1974 S C 151, as it appears on page 171 "In such cases the party making the allegations should first be called upon to adduce proof and after he has led evidence to make out prima facie case then and only then should the other side against whom the allegations of mala fides is made be called upon to justify the action." After hearing the parties at length we declined to review our order dated 31‑1‑1975 and called upon the respondent to lead the evidence. Ultimately on 28‑8‑1977 the respondent placed on records complaints from three persons viz. Nizam Din dated 26‑7‑1971, 22‑12‑1971 and 10‑6‑1972, a Mst. Fayyaz Begum, daughter of Ahmad Bakhsh resident of Dharam Pura, Lahore dated 21‑8‑1967 and Ch. Noor Muhammad resident of Okara dated 26‑2‑1972 and closed their evidence. The appellant raised the following contentions in support of his appeal (1) that the appellant having established prima facie case of mala fides against the respondent the onus shifted to the respondent to show that the order was bona fide, but the evidence led by the respondent failed to discharge the onus and thus his retirement was vitiated due to mala fides ; (2) that the respondent has not shown that any material was at all present before the competent authority at the time of passing the impugned orders in the absence of which the opinion expressed by him in terms of the retirement of the appellant was no opinion in the eyes of law and amounted to mala fides in law ; (3) that the Notification dated 21‑4‑1972 was not protected by the provisions of Article 269 of the Constitution. According to him the last date till which the action under M L R 114 was protected, expired on 20‑4‑1972 and thus the impugned retirement of the appellant was tantamount to removal which was illegal and without jurisdiction per se ; (4) that the order of the Governor retiring the appellant was incompetent ; (5) that the Cabinet Secretary was not competent to sign the Notification and to delegate the powers to the Governor under M L R 114 and thus the Governor never acquired any authority under M L R

114. The appellant supported his first contention above by relying upon the fact that on 31‑1‑1975 and again on 24‑7‑1977, this Tribunal had held that the appellant had succeeded in making out a prima facie case, which evidently shifted the onus to the respondent to prove their bona fides. According to the appellant the respondent failed to lead any evidence to discharge the onus placed upon them. The appellant further submitted that there was nothing to indicate that even the complaints placed on record were at all present before or were taken into consideration by the competent authority while passing the retirement order. It was thus argued that it was a matter of common knowledge that the impugned action was taken on a `whole sale' basis without examining the merits of individual cases. Dealing with the merits of the complaints it was submitted that the complaints by Nizam Din emanated from a judicial case decided by the appellant in which the decision for the allotment of an ahata was taken in a bona fide manner and the proceedings were still pending between the parties including the complaints before the civil Courts. The appellant also pointed out that no enquiry was ever instituted or conducted against the appellant on that basis. Thus nothing could be implied or inferred against him. As regards complaints by Mst. Fayyaz Begum be pointed out that it related to the year 1967 when some of the records of judicial proceedings (to which she was a party) were found missing and the present appellant got a criminal case instituted against the aforesaid Mst. Fayyaz Begum and thus she had a grouse against him. Similarly with regard to complaint filed by Ch. Noor Muhammad resident of Okara, the appellant submitted that the same more or less relates to an objection to the Government policy in respect of retaining the post of Colony Assistant at Sahiwal and at another place although the other similar posts had been abolished by the Government. Thus there was nothing against the integrity or reputation or conduct of the appellant. The appellant submitted that he had an, excellent record and reputation. He was granted selection grade as Tehsildar with effect from 13‑4‑1966 and was firstly promoted and then confirmed in the Provincial Civil Service with effect from 16‑6‑1970. He was invested with the powers of Magistrate under section 30, Cr. P. C. on 27‑7‑1971 by a Committee compri sing senior Judges of the Lahore High Court which implied that there was nothing against the conduct, efficiency or integrity of the appellant. The appellant also relied upon the fact that he was recommended for the grant of Civil Award of TQA on 16‑12‑1969 for which also good conduct was a condition precedent. The appellant submitted that his record of service was so good that he never suffered any censure. His case was again recom mended for the civil award on 24‑12‑1970. He; also relied upon the evidence of P. W. 4 according to which the case of the petitioner was also examined by the Lahore High Court but was not considered fit for taking any action under M L R

114. According to appellant, in fact the Provincial Govt. themselves subsequently retracted from their position and recommended his case favourably for reinstatement in view of proceedings under M L R

116. Thus according to the appellant his record was excellent and he never merited retirement under M L R

114. Consequently it was contended that in view of the facts above no reasonable person could have framed an opinion binding to the order of his retirement under M L R

114. The appellant also relied upon the evidence of P. Ws. 1, 2, 3, 6 and himself to prove his plea of mala fides. In the evidence of the afore‑mentioned A. Ws. it was stated that there were two cases vie. State v. Elahi Bakhsh under section 324/382, P. P. C. pending in his court at Sahiwal in which Mr. Arshad Lodhi a member and ex‑MPA of PPP appeared for the defence. Mr. Arshad Lodhi wanted the accused persons to be acquitted in these cases as they were the workers of PPP but the appellant on merits convicted the accused persons. This offended Mr. Arshad Lodhi who left the court in furious mood and extended open threat to the appellant. This fact was supported by Mr. Shamim Ahmad, Advocate, Sahiwal, P. W. 1 who appeared as counsel for the complainant in the aforesaid cases. Mr. Ashraf, P. W. 2 stated that Arshad Lodhi was searching for the name of the appellant in the newspapers dated 13‑3‑1972. P. W. 3 Rustam Ali another M P A from Sahiwal deposed that Mr. Arshad in his presence at the Lahore Airport complained to Mr. Ghulam Mustafa Khar, the then Governor of Punjab that he had not arranged for the retirement of the present appellant, but Mr. Khar promised that he would do it and noted down the name of the appellant. When reproached by the witness, Mr. Arshad insisted that since the appellant had refused to oblige him, therefore, he was against the appellant. The appellant appearing as his own witness attributed his retirement due to mala fides on the part of Arshad Lodhi and Malik Ghulam Mustafa Khar. According to the appellant it also constituted malice in law as no reasonable person on the basis of the record of the appellant could frame an opinion necessitating his retirement. In this behalf he relied upon P L D 1973 Kar. 421 and P L D 1973 Pesh.

156. The following observations in the aforesaid decision of the Peshawar High Court were relied upon "In other words when it is said that no reasonable person could have upon such material framed the opinion that the person detained had brought himself within the mischief of the statute, in fact the contention is that the officer concerned has in these circumstances acted mala fide in law " And also "Until such an opinion is formed by the honest application of mind of the detaining authority the jurisdiction to make the order of detention cannot arise." The appellant further contended that the notification retiring him under M L R 114 was also not protected by Article 269 of the Constitution inasmuch as it was published in the Gazette on 21‑4‑1972 whereas the period of protection provided by the Constitution expired on 20‑4‑1972. Thus the order was open to scrutiny on merits. It was clearly a penal order liable to be struck down as the same was in violation of the principles of natural justice and the requirement of law. He also submitted that the President of Pakistan had already retired the officers belonging to the PCS cadre by a proclamation on 13‑3‑1972 after due scrutiny of all the cases, which clearly meant that the appellant's case was not fit for retirement. Thus the Governor had illegally ordered his retirement. Malik Azam Rasul, the learned counsel appearing for the respondent argued that none of the contentions advanced by the appellant had any force. He submitted that the evidence of P. W. 3 Rustam Ali, P. N. A. inspired the least confidence. Moreover the competent authority in this case has not been shown to have acted on the suggestion of Mr. Arshad Lodhi. It was necessary for the appellant to establish that Mr. Khar was himself actuated by malice while passing the impugned order. In fact there was nothing to establish this fact. He also submitted that the Tribunal was not debarred from examining the cases on merits even after the preliminary decision had been made holding that appellant had succeeded in establishing a prime facie case of mala fides. According to the learned counsel, under M L R 114 even the persons having the reputation for corruption could be retired and the documents produced by the respondent were sufficient to establish this fact. Thus the onus stood sufficiently discharged. Since there was some evidence on the record against the petitioner, therefore, the contention with regard to malice in law on the part of the competent authority was devoid of any force. As regards the notification, the learned counsel submitted that the same was prepared and issued by the S & GAD on 31‑3‑1972 and the order under appeal were implemented still earlier and the appellant had been duly relieved of hiss duties. The mere publication in the Gezetted at some subsequent date did not invalidate the action already taken or the notification duly signed and issued by the S & GAD. He relied upon the provisions of M L R 114 according to which it was required "to be made in official Gazette" and not "published in the official Gazette". He thus argued that none of the pleas advanced by the appellant had any merit and the same should therefore be dismissed. After hearing both the parties and perusing the record we are clearly of the view that the appeal must succeed. In the first instance, the appellant had made out an acceptable case that his retirement had been ordered by the competent authority, namely, the Governor of the Punjab, at the instance' of Mr. Arshad Lodhi, M. P. A: of People's Party. The department has no produced any evidence to controvert the same and we are inclined to accept that the retirement of the petitioner was ordered by the Governor of Punjab at the instance of Mr. Arshad Lodhi. The evidence of A. Ws. 1, 2, 3 and 6 and the appellant himself has remained uncontroverted. Our conclusions are, however, reinforced by the fact that the personal record of the appellant was quite clean. The fact that he was allowed, the selection grade as Tehsildar and that he was promoted and confirmed to the cadre of P. C. S. that he was recommended for the civil awards twice and was invested with the powers of a Section 30 Magistrate, clearly show that the record of the appellant was quite satisfactory. In fact the contention of appellant that there has been no censure or penalty impugned upon him during his entire career was also not disputed by the Department. The High Court also scrutinized his case and came to the conclusion that no action was called for against him under M L R

114. Even the Provincial Government subsequently considered his case fit for re‑instatement. In the circumstances the contention is‑irresistible that no reasonable person with open mind could have come to the conclusion that appellant's case was covered by M L R

114. So far as the evidence in the e form of complaints produced by the respondent is concerned, the same did not appear to have been present before the competent authority at the time of passing of the order, nor the evidence was sufficient to justify the opinion that the; appellant had the reputation of a corrupt person. The first complaint emanated from a judicial case in which the appellant was required to give his verdict one way or the other and the matter is still sub judice before a Civil Court. There was nothing to imply anything adverse to the appellant. Similarly, the complaint of Ch. Noor Mohammad was nothing but criticism of the; Govt. policy in not abolishing the post of Colony Assistant at Sahiwal. The third complaint by Mst. Fayyaz Begum did not inspire any confidence inasmuch as she herself had been ordered to be prosecuted by the appellant. Thus the complaints did not warrant the inference that the case of the appellant was covered by M L R

114. As such we are not impressed by the contentions raised by the learned counsel for respondent that there were sufficient grounds .for the inference that the appellant had the reputation of a corrupt person. In our opinion the conclusion did not follow from the facts above. We accordingly repel the suggestion of the respondent in this behalf. We are in complete agreement with the contention of the appellant that on the facts above no reasonable person with an open mind could have come to the conclusion that the retirement of the appellant was due under M L R

114. We accordingly hold that the retirement order of the appellant under M L R 114 was vitiated due to mala fide both on facts and in law. We, therefore, quash the same and direct that appellant shall be treated as being in service. In view of these our findings above we do not feel called upon to express any opinion on the other contentions raised by the appellant. Consequently the appeal succeeds. However, the parties are left to bear their own costs. Appeal accepted.