1988 PLP (C (PLC(CS))

RAJA BASHIR AHMAD KHAN (MEMBER).‑‑This appeal is directed against the order of retirement dated 25‑11‑1984, whereby the appellant was retired from service and order dated 26‑6‑1986, passed on Review Petition of the appellant.

2. Briefly stated the facts are that the appellant joined the service of Azad Jammu & Kashmir on 13‑10‑1948 and continued as such till 25‑11‑1984, when an order of pre‑mature retirement was passed by the respondent Government. The appellant preferred a Review Petition, against the said order, before the Respondent Government, which was also rejected vide order dated 26‑6‑1986.

3. The orders mentioned above have been challenged on the grounds:‑ (i) That the order of retirement of the appellant has been passed in total disregard of the provisions of Civil Servants Act, 1976; (ii) That the order has not been passed by the competent authority. It has been passed by an authority, which is not vested with such powers. The appellant could have been retired only by the competent authority, after taking into consideration entire service record of the appellant. The appellant's record of 35 years service is spotless and was never questioned throughout his career of service; (iii) That no Show‑Cause Notice was served upon the appellant to place his case before the competent authority as such fundamental and important principle of natural justice has been violated; (iv) That the term "Public Interest" has been used in the retirement order of the appellant, which in any case is not applicable to the, appellant's case. This term "Public Interest" has been misconceived and mis‑used by the Respondent Government; (v) (a) That the retirement order of appellant has been passed with mala fide intention under the pretext of public interest. The service record of the appellant does not show that any public interest was ever involved in the matter of appellant, as such the impugned order is liable to be set aside on the ground of male fides and colourful exercise of powers; (b) That mode of retirement of Civil Servant has been provided in the Civil Servants Act, 1976. The normal age of retirement of Civil Servant is 60 years, which is beneficial to the Civil Servant, The abnormal method can be applied only in the cases, where a substantial material is available to justify the action; (vi) That the provision of section 12 of Civil Servants Act to retire a Civil Servant before the age of 60 years is a discriminatory one and is against the basic Norms of the Quran and Sunnah. It has been held by the Federal Shariat Court of Pakistan as reported in P L D 1986 F S C 200 that provision to retire a Civil Servant under Public Interest and without show‑cause Notice is against the injunctions of Qur'an and Sunnah and is in a way a stigma and punishment to a Civil Servant, which cannot. be passed without hearing. (vii) That when appellant joined the service of Azad Jammu & Kashmir Government in the year 1948, it was an odd time to continue but to serve the country and nation, the appellant rendered meritorious services, which has been set at naught without any cogent reasons, with one stroke of pen; and (viii) That it is a fundamental principle of law that when there are two provisions of law to deal with State Subject, the cordial and beneficial must be adopted and not the harsh one. This golden principle has been overlooked and ignored in the case of appellant.

4. We have heard the learned counsel for the parties and have also crone through the record. It is submitted by the counsel for the appellant that the order of retirement dated 25‑11‑1984 has been passed by the President as is evident from the order itself. Under section 12(ii) of Civil Servants Act 1976, the retirement can be ordered by a competent authority, which under the Act means the appointing authority or a person duly authorised by the appointing authority. The President, being not the competent authority, under the act could not pass the impugned order. The order having been passed by an incompetent authority is illegal and inoperative. The learned counsel for the respondent meets this objection by submitting that the order was passed by General Abdul Rehman, who was holding both the offices viz; President as well as the Chief Executive. We have looked into the file, wherein the order of retirement was passed and found that the case of the retirement was submitted for confirmation to the President/Chief Executive and he confirmed the sane. The record does not support the contention of the learned counsel for the appellant and we proceed to repel the same.

5. The learned counsel for the appellant also submits that before ordering the retirement of the appellant, he was not afforded an opportunity of being heard through a Show‑Cause Notice. It may suffice to reject this contention in view of the decision of Azad Jammu & Kashmir Supreme Court P L D 1986 S C (AJ&K) 87, wherein it has been held that when an employee is retired under section 12(ii) of the Act, no Show‑Cause Notice is required to be served before passing of the order of retirement.

6. The appellant had also challenged the impugned order on the ground that it is violative of Islamic Sharia but during the arguments, he did not press this point.

7. The appellant with the permission of the Tribunal amended the memorandum of his appeal to include the plea that the retirement order has been passed with mala fide intention. It is the case of the appellant that he has rendered 34 years of spotless service. There has been no adverse entry in any of the annual confidential reports. His performance as a brilliant career officer was recognized by almost all his superior officers. The termination of his service at the fag end of his career was actuated by the consideration of bad faith. The expression mala fides has been explained in P L D 1961 Lah. 842 as under:‑ "Before taking up the other question, I would dispose of the plea of mala fides raised on behalf of the applicants. The expression "Mala fides" means in bad faith. It is obvious that before a party can ask a Court to give a finding that an act was done in bad faith, it must specifically mention the acts from which badness of faith, which is alleged could be inferred. Assuming that a wrong order has been passed, it does not follow that it was actuated by bad faith because it may be due to a variety of reasons; for example the person who passed it may be incompetent to understand the correct meaning of the provision of law under which he purported to act or he had not cared to look into the relevant provision of law."

8. The above authority is clear on the point that the facts which, form the basis for the plea of mala fides must be specified. The appellant not only failed to raise the question of bad faith in his Review Petition submitted to the Chief Executive but also failed to enlist the facts, which could show that the order of his retirement was passed mala fide. On the other hand, it is an undisputed fact that huge losses of foodgrain and misappropriation of Government funds were reported, in the Food Department. The enquiries conducted by the Secretary Food and Chairman Inspection Team revealed that the appellant and other officers miserably failed to discharge their responsibilities of keeping an effective control over the affairs of the department and thereby avoiding the diversion of public funds. The competent authority on receipt of the reports of the cases of embezzlement passed the impugned orders. But for these cases, the appellant could continue to enjoy his posting as Director of Food, even after his stay as such for a long period of eight years or even upto the age of his superannuation. There is no material on record to suggest that the Chief Executive was ill disposed towards the appellant and lie wanted to get rid of the appellant. The position being so, we are left with no choice except to say that the element of mala fides is missing both on facts and law in this case and we feel no hesitation to reject the plea of mala fides raised on behalf of the appellant.

9. The next contention of the counsel for the appellant is to the effect that there was no material available on the record, against the appellant to justify the retirement of the appellant, on the ground that the same was being , ordered in the public interest. We have gone through the service record of the appellant and the order of retirement, passed by the competent authority. The appellant was serving as Joint Secretary in the Education Secretariat, at the time of his retirement. Prior to this assignment, he was performing the functions of Director Food. The record shows that during the tenure of appellant as Director of Food, there were huge losses of foodgrain and misappropriation of funds, at Hari Ghel Depot. The matter having come to light through public declarations and through the press, attracted the attention of authorities. The Secretary Food apart from seeking the report of the appellant, decided to hold an enquiry and submitted a lengthy report to the‑then Chief Executive, on 24‑8‑1983. The report of the Secretary Food is not material for the disposal of this appeal, except its concluding paragraph, wherein it was requested that alongwith the Incharge Depot, the appellant, two Deputy Directors, Storage Officer Islamabad and District Food Controller Rawalakot be proceeded against, under Efficiency & Discipline Rules, 1977. The Chief Executive called for the comments of the Chief Secretary and also desired to know as to the extent of the responsibility and involvement of the Secretary, in this case. The Chief Secretary was of the view that the Secretary's responsibility was to execute the sanctioned policy and these were the officials of the Field who shared the primary responsibility to look after the affairs of the Department. In the meanwhile, Mr. Tariq Masood took over the charge of Secretary Food and was entrusted to complete the enquiry. The new Secretary Food recommended that two officers of the department Sardar Sakhi Muhammad and Mr. Muhammad Arif be proceeded against under Efficiency and Discipline Rules. The enquiry under the rules, against these two officers ended in censure and stoppage of increments for two years in case of Sardar Sakhi Muhammad and the punishment of censure to Muhammad Arif Khan. It transpires from the report dated 18‑4‑1987 of Secretary Food, submitted to the Chief Executive that the Secretary was directed by the Chief Executive on telephone to fix the responsibility of the officers, administratively controlling the Department. It will be only pertinent to reproduce the report of Secretary Food, relating to the appellant:‑ The Chief Executive appears to have felt dissatisfied with this report and consequently wanted the comments of Chairman Inspection Team. The Chairman was of the opinion that the officers of the Department miserably failed to avoid the causes of corruption and mis‑conduct and recommended that the following officers were liable to be dealt with under the Efficiency and Discipline Rules:‑ The Chief ,Executive was pleased for direct the Chief Secretary to take action, on the recommendations of the Chairman Inspection Team. The record made available to us shows that the proceedings under the Efficiency & Discipline Rules as recommended by the Chairman Inspection Team were never initiated against the appellant. The Chairman Inspection Team had submitted his report on 7‑5‑1984. The order of retirement of the appellant was confirmed by the Chief Executive on 24‑11‑1984. What were the compelling factors for the Competent Authority not to follow the recommendations of the Chairman Inspection Team and instead ordering the retirement of the appellant under section 12(ii) of the Civil Servants Act, 1976 are not visible from the record. It however, transpires that the Secretary Food on the direction of the Chief Executive sent the file of Hari Ghel case to him on 22‑10‑1984. Thereafter, the blow of retirement appeared against the appellant and Sardar Rehmat Ullah Khan in shape of note of the‑then Chief Secretary, who just reproduced the provisions of Section 12, of the Azad Jammu & Kashmir Civil Servants Act, 1976 and noted; The President/Chief Executive has been pleased to order the retirement of the following officers, in public interest:‑ (i) Sardar Rehmatullah Khan. (ii) Mr. Muhammad Shafi Jan. This may kindly be confirmed so that orders can be issued. They have completed 25 years of service, qualifying for pension. In view of this material, on the record, we are called upon to express ourselves on the contention of the counsel for the appellant and counter argument of the counsel for the respondent Government, who has contended that it is within the exclusive domain of the competent authority to judge that the retirement of a Civil Servant is in public interest. But before we attend to the respective contentions of the learned counsel for the parties, we would like to briefly relate the service history of the appellant. The appellant joined the Government service probably as Senior Clerk‑cum‑Stenographer in the Forest Department on 13‑10‑1948. He continued to serve in the Forest Department as superintendent from 1952 to 1958. He was transferred to the Health Department, where he worked as Superintendent upto his promotion as Section Officer, on 22‑10‑1960.He earned the promotion to the post of Deputy Secretary in 1974, and in February, 1977, he was transferred and posted as Director Food, the post he held for about eight years. The case of misappropriation in the Food Department resulted in the transfer of the appellant, in the Education Secretariat as Joint Secretary, from where lie &as retired as mentioned above.

10. Section 12(ii) of Civil Servants Act, 1976, envisaged the retirement of a Civil employee in the public interest. It lies solely within the competence of the competent authority to retire a Civil Servant in the public interest. In support of this proposition, the learned counsel for respondent relied on P L D 1986 S C (AJ&K) 87 and P L D 1970 S C

98. The Azad Jammu & Kashmir Supreme Court in the above referred case observed: "We are of the view that under section 12 of the Civil Servants Act Government or competent authority, as the case may be, is the sole judge as to whether the retirement of Civil Servant is in the public interest." It may not be proper for us to question the wisdom of the Rule and authority of the Government to exercise its discretion in assessing the circumstances, which are necessary to order the retirement in Public interest but there is no bar for us to interfere if the material on the record proves that the retirement of the appellant was ordered in colourable exercise of the powers, by the authority. We find support of our view, from the same decision of the AJ&K Supreme Court, quoted earlier, herein it has been held: "The Court would interfere only if a case of mala, fides or colourable exercise of power is established." The Tribunal on the same principle, had also reversed the orders of the competent authority, in the case of Sardar Rehmatullah Khan, decided on 10‑5‑1987. It is true that the Chief Secretary was of the view that Sardar Rehmatullah Khan was not directly involved in the cases of corruption, whereas it was recommended by the Secretary Food and the Chairman Inspection Team, that the proceedings, under the Efficiency & Discipline Rules be initiated, against the appellant. The recommendations of above said two officers were not acted upon. The result was that the appellant could not be held guilty of corruption, mis‑conduct or inefficiency. We can safely presume that the inability of competent authority to start disciplinary action against the appellant vas on account of the fact that there was no material to prove the guilt of the appellant. The appellant, therefore, can be presumed as innocent.

11. The distinction, if any, existing in the case of Sardar Rehmatullah Khan and that of the appellant vanishes in view of his presumed innocence. The cases of corruption, relating to the Hari Ghel Depot are spread over a period of three years, from 1981 to 1983. The Chairman Inspection Team submitted his report to the Chief Executive, on 7‑5‑1984. The Chief Secretary requested tire Chief Executive on 3‑11‑1984, to confirm the order of retirement. The Chief Executive confirmed the orders on 24‑11‑1984. A period of more than six months had elapsed, between the recommendations of the Inspection Team and the order of the Chief Executive. The appellant was always graded as a Good Officer, during his stay in the Civil Secretariat. There is not even a single bad entry in whole of his Annual Confidential Reports. The appellant might have lost his usefulness for further retention in the Food Department and his retirement could be justified in the Public Interest, soon after the reports of Secretary Food and Chairman Inspection Team. The lapse on the part of competent authority, in taking appropriate action against the appellant for a period of more than six months is a big factor to hold that the order of retirement of the appellant as not passed in the public interest. The cases of mis‑appropriation were detected in the Food Department. The appellant had already been transferred to Civil Secretariat. In the Annual Confidential Report of 1982, he was described in column fifth of the Report as under:‑ The appellant was due, for the retirement on 30‑12‑1985. His, retention in the service for a period of a year or so could have no adverse effect on public interest, particularly in view of the fact, that he had been declared as a suitable officer, for Secretariat service.

12. It may also be worth consideration that the Chairman Inspection Team recommended disciplinary action against seven officers, of the Food Department, including the appellant. The remaining officers, who were directly concerned with the distribution of wheat and flour have been dealt with leniently. One of the Deputy Directors hash been appointed to act as Director of Food Department. In view of the' above stated facts, we are of the opinion that the retirement of the appellant was ordered in the colourable exercise of the power, by' the competent authority and not in Public Interest.

13. The upshot of the above discussion is that the orders of the respondent Government are liable to be set aside. We, therefore, accept this appeal and set aside the order dated 25‑11‑1984 of retirement of appellant and order dated 26‑6‑1986, passed on the review petition of the appellant and the appellant is re‑instated to service, with all the back benefits. He shall be deemed to have been retired on the date of his attaining the age of superannuation. In the circumstances of the case, we make no order as to the costs. M.Y.H./59/Sr.A Appeal accepted.