1986 PLP 245 (CLC)

Liaquat Merchant, Deputy Attorney‑General on Court's Notice. Miscellaneous Applications No. 1886 of 1984 and 522 of 1985 ABDUL HAYEE KURESHI, C.J ‑‑ Comments have also been filed by the respondents. The facts briefly are that the petitioner was an employee of the Cantonment Board, Rawalpindi. On completing 25 years' service he has been compulsorily retired. He is aggrieved by such compulsory retirement and seeks appropriate writ, order or direction declaring the order of compulsory retirement to be illegal, without lawful authority, and of no legal effect. It seems the petitioner filed a Constitutional Petition before the Lahore High Court which was registered as Writ Petition No. 283 of 1984. We are informed by Mr. Lodhi that he had sought a stay against the order of compulsory retirement. Perhaps, such order was ‑not passed in favour of the petitioner, therefore, writ petition was withdrawn. But almost on same state of case the present petition is filed. When this petition was placed before the Division Bench of this Court of which one of us was a Member the point that has been agitating the mind of the Bench was whether this petition was maintainable in view of the provision of section 5 of the Corporation Employees Ordinance XIII of 1978. However in the meantime the comments have also been received and we have heard the Deputy Attorney‑General also. The learned Deputy Attorney‑General states that there was an adequate alternate remedy available to the petitioner and, therefore, this Court may not exercise its extraordinary jurisdiction in favour of the petitioner. We have, therefore, examined the case initially from the angle of availability of alternate remedy. We must initially state that the learned Deputy Attorney‑General made a categorical statement before us that under rules 52 and 54 of Pakistan Cantonment Service Rules of 1954 the petitioner had a right of appeal as well as a further right of revision application. In order to examine the statutes we propose to bring out highlights in the various provisions of law as operated in the field in the matter of a Cantonment Board Employee having a right of appeal or Revision in a case in‑ which he is punished departmentally by particular reference to the punishment of compulsory retirement. Under section 280 of the Cantonment Act of 1924, rule‑making power is conferred on the Federal Government. Clause (c) of the said section particularly mentions such rule‑making power in the matter of "appointment, control, supervision, conditions of service, transfer, suspension, removal dismissal and punishment of servants of Boards". In pursuance of this power, the Government of Pakistan by a Notification dated 10‑3‑1954 framed rules which are called the Pakistan Cantonment Service Rules, 1954. Initially we propose to examine rule 44 by particular reference to an amendment of the said rule by insertion of sub‑rule (3) and such amendment was made by a notification bearing No. S.R.O. 1249(1)/82, dated 13th December 1982. Sub‑rule (3) was inserted which reads as follows: ‑ "The Director may, in the public interest, compulsorily retire a cantonment servant on any day after he has completed twenty‑five years of service qualifying for pension or other retirement benefits." The insertion of this rule clearly shows that compulsory retirement of a cantonment board employee was brought within the pale of termination of service as almost a separate and specific entity. This would show that besides the several modes of punishment or penalty of cantonment board employees which are mentioned in clause (c) of section 280 of the Cantonment Acts compulsory retirement was also brought into the rules as .a mode whereby an employee's services would be terminated. The next rule which is relevant in the context is rule 49 and this rule states the penalty and punishment that can be imposed on a cantonment servant. Clause viii of sub‑rule (1) of rule 49 stipulates compulsory retirement of a cantonment employee as penalty or punishment which can be imposed for good and sufficient reason. In view of the provision of sub‑rule (3) of rule 44 and clause viii of sub‑rule (1) of rule 49 there can be no doubt `that compulsory retirement is a recognised mode of penalty or punishment under the Cantonment Service Rules. We now come to the question whether action whereby a cantonment employee is retired is subject to correction or examination by way of appeal or revision. In that context rule 50 lays down the procedure which is to be followed before the punishment of compulsory retirement is imposed. The opening words of rule 50 mention the words "compulsory retirement" alongwith words "discharge, dismissal, removal, retirement or reduction". It would thus be clear that even under rule 50 compulsory retirement is deemed as a punishment. Then by a bare reference to rule 52 the position that emerges is very clear that a person who is dicharged, dismissed, removed retired or reduced is entitled to file an appeal. Since the argument has centred on the word "retired" we have thought it fit to reproduce this rule. The same read as under:‑ "Any cantonment servant, other than a Class IV servant. Who has been discharged, dismissed, removed, retired, reduced, shall l be entitled to appeal to the Director, within 30 days from the date of delivery of the order of his discharge, dismissal, removal, retirement or reduction." Mr. Lodhi has argued before us that the word used in rule 52 is "retired" and such use of the word will exclude "compulsory retirement". We see no reason to adopt such a view because it will lead to fallacious and absurd result. Compulsory retirement is also a distinct type of retirement. Whether a retirement is compulsory retirement or retirement on attaining the age of superannuation, no possible distinction can be made because both these events occur or arrive by efflux of time. What we would further say is that if a person who retires on I account of efflux of time by reaching superannuation would have a right of appeal, we cannot possibly understand why a person who has been compulsorily retired should be deprived of right of appeal. We would read all these 5 words, "dicharged dismissed, removed, retired and reduced" for the reason of the following one another that the same should be deemed to have the same significance of events. If discharge, dismissal, removal or reduction is a punishment then retirement should also be construed a nature of punishment. In that context we must say that retirement on attaining the age of superannuation can never be considered to be a punishment, but retirement particularly before reaching the age of superannuation is a punishment. This is a good reason for us to come to the conclusion that the word "retired" in spite of the omission of the word compulsory would mean and include compulsory retirement. The next provision is rule

54. Even this rule confers the power on the Central Government to revise any order passed against any cantonment servant by the Director, Military Lands and Cantonment, or the Ministry of Defence. Admittedly the order against the petitioner has been passed by the Director, Military Lands and Cantonment, and, therefore, even a revision application will be maintainable. We state even at the risk of repetition that the learned Deputy Attorney‑General has taken the stand before us that the petitioner has right of appeal or revision. On such state of law we are clearly of the opinion that the petitioner has an adequate alternate remedy available to him and, therefore, the jurisdiction to exercise Constitutional powers is not attracted in this case. For the view we have taken on the above material we have not found ourselves persuaded to enter into the other questions in regard to the bar created by section 5 of the Corporation Employees Ordinance XIII of 1978 or the bar created by Article 13 of the Provisional Constitution Order. The petition is dismissed. After this order was dictated, Mr. Lodhi pointed out that an appeal has actually been filed by the appellant. This is all the more reason that the petition should be dismissed. M. Y. H. Petition dismissed.