1981 PLP (C (PLC(CS))

The petitioner by his letter dated 23rd October, 1976 furnished his reply to the show‑cause notice addressed to the Secretary, Cabinet Secretariat, Islamabad. However, without any further enquiry or affording any opportunity of hearing, the petitioner was once again retired from service with immediate effect, as per Notification of the Cabinet Secretariat (Establishment Division) dated 30th October, 1976. This too was issued under the signature of the then Secretary Mr. Vakar Ahmad. The petitioner, being aggrieved by this order submitted an Appeal Review Application to the Government on 1‑11‑1976. The General Manager and the Director‑General, Telegraph & Telephones, strongly recommended the case of the petitioner, as per their communications dated 10‑6‑1977 and 12‑6‑1977, respectively. In the Summary prepared for the Prime Minister by Mr. Shah Nawaz Khan, the then Secretary (Communications), dated 13‑6‑1977, the petitioner's case was recommended in the following words "In the light of these facts there seems strong justification for submission of the case for review of the orders of compulsory retirement of Mr. Muhammad Abbas Khan. This has the approval of Minister for Communications."

3. It is an admitted‑fact that the above‑mentioned summary of the case dated 13‑6‑1977 was put up before the then Prime Minister, Mr. Z. A. Bhutto, who ordered the re‑instatement of the petitioner on 3‑7‑1977. Petitioner, however, remained in complete dark about such favourable order 00 his re‑instatement dated 3‑7‑1977, which was passed by the then Prime Minister.

4. In continuation of his efforts for seeking justice, the petitioner again preferred a so‑called appeal against the order of his retirement, on 12‑9‑1977 which was addressed to the Secretary, Establishment Division. Later, he preferred another Appeal dated 16‑3‑1978, which was addressed by name to Lt: General Chishti, Adviser to the C. M. L. A. on. Establishment and Kashmir Affairs, Government of Pakistan, Islamabad. Meanwhile, Martial Law Order 23 came to be promulgated on 22‑10‑1977, and the petitioner's appeal or the representation dated 12‑9‑1977, was treated as an application for Review under the said Martial Law Order, and his case was taken up for consideration by the Review Board, constituted under the Martial Law Order in question. The petitioner was summoned by the Review Board and during the course of summary hearing, was only asked as to whether hg was a previous convict and whether he had acted as an approver in the case against Mr. M. N. Vohra, an Assistant Director, Telephones Department. The petitioner's reply to both the questions was in the negative, and that is all about the nature of hearing which was given to the petitioner by the Review Board. The Review Board did not inform the petitioner that there already existed the order of the then Prime Minister dated 3‑7‑1977 reinstating him in service. The decision of the competent authority "on the recommendations of the Review Board was communicated to the petitioner through a Memorandum issued by the Cabinet Secretariat (Establishment Division) dated 29th July, 1978 whereby he was informed that his Review petition was rejected. The petitioner thereafter submitted a Mercy Petition too the Chief Martial Law Administrator on 17‑8‑1978, and he was informed by a letter from the C. M. L. A's Secretariat, dated 10‑8‑1978, that his request Could not be acceded to, because his case had already been heard by the Re‑view Board and decided by the `competent Authority' under M. L. O.

23. The petitioner's, case is that it was after the receipt of this communication, that he for the first time, came to know about the existence of the order of the Prime Minister dated 3‑7‑1977, passed on his Review Application which was directed against the order of his retirement from service dated 30thx October, 1976

5. In the background of the foregoing facts, this petition has been brought to this Curt under Article 199 of the Constitution.

6. The fact with regard to the passing of the order of re‑instatement dated 3rd July, 1977 by the former Prime Minister has been admitted. It is, however, stated that the Prime Minister's Secretariat (Public) had dispatched the approved Summary of the petitioner's case to the Establishment Secretary (by name) and the markings show that it was received in the office of the Establishment Secretary on 5‑7‑1977, and on 7‑7‑1977, in the office of the Special Secretary Establishment. Division. On such facts it was stated that since the order of the Prime Minister, re‑instating the petitioner, was received in the Establishment Division after 4th July, 1977, the same could not be implemented because of the ouster of the Prime Minister on 5th July, 1977, and the contemporaneous imposition of Martial Law in the country. 6‑A. We heard Mr. Raja Haq Nawaz, learned counsel for the petitioner and Mr. Sayeed A. Shaikh, learned Deputy Attorney‑General on behalf of the respondent, land an oral order accepting the petition was pronounced in Court on 16‑3‑11980. . The reasons for allowing the petition are, now, given hereunder.

7. After going through the preliminaries of the case, with regard to the narration of' facts and the points involved in the petition, the learned counsel for the parties mainly confined their arguments to the question as to the effect of the order of the Prime Minister, re‑instating the petitioner, dated 3rd, July, 1977 8., Mr. Raja Haq Nawaz, learned counsel for the petitioner, contended that the petitioner could not be made to suffer on account of the negligence or inaction on the part of the officials of the first respondent for not having implemented the order of the Prime Minister, dated 3‑7‑1977, which, ad mittedly, had no been specifically withdrawn. The said order, according to the learned (counsel, therefore, stood validly in the field and ensured to `the benefit of the petitioner. As to the decision of the competent authority dated 29th July, 1978, passed on the recommendation of the Review Board, which bad also seemingly granted hearing to the petitioner, it was contended by Mr. Raja Haaq Nawaz that all this was an exercise in futility because the order of retirement passed against, the petitioner dated 30th October, 1976, having been revoked, and the petitioner having been ordered to be re‑instated by the Prime Minister on 3rd July, 1977, there existed no order against which the petitioner could complain, or the Review Board could exercise any jurisdiction. It was further stated that no Review Application, as stated, under M. L. O. 23 was ever filed by the petitioner and the appeal of the petitioner dated 12‑9‑1977 addressed to the Secretary, Establishment Division was suo motu treated as a Review Application under the M. L. O. in question and was adjudicated upon. This fact stands confirmed from the perusal of file No. 231?/OF/E & D of the Federal Review Board No. I, Establishment Division, Rawalpindi, which was made available by the learned Deputy Attorney‑General. In this view of the above facts it was contended by the learned counsel for the petitioner that the recommendation of the Review Board, and the decision of the competent authority thereon, was of no consequence unless it was shown that the order of the Prime Minister dated 3rd July, 1977, had been conscientiously revoked or set aside by the Chief Martial Law Admi nistrator in his that capacity or in his capacity as the "competent authority" within the meaning of M. L. O.

23. Additionally, it was contended on behalf of the petitioner that the hearing granted to the petitioner by the Review Board was a mere pretence, as he was not given any opportunity to rebut the allegations made against him. It was further slated that while the Review Board had given credence to the unsupported allegations against the petitioner, the weighty recommenda tions on his Appeal/Review Application dated 1‑11‑1976 made by the General Manager and the Director‑General, Telegraph & Telephone Department, and the recommendations contained in the Summary dated 13‑6‑1977, put up before the Prime Minister was not at all adverted to, much less considered by the Review Board.

9. In view of the consensus between the learned counsel as to the short legal point involved in this petition, namely, the effect of the order of the Prime Minister dated 3‑7‑1977, it is not necessary for us to record any finding, one way or the other, with regard to the last mentioned contention of the learned counsel, namely, the decision of the Federal Review Board being contrary to the facts on the record.

10. We have examined the record of the Review Board produced before us, which shows that the Review Board had simply noted the fact with regard to the passing of the order dated 3‑7‑1977 by the then Prime Minister, re‑instating the petitioner, and it was stated that the said order was yet to be implemented when Martial Law was imposed. However, this fact was neither highlighted for independent consideration nor any, recommendation was made by the Review Board to the 'competent authority' for recalling the order of the ex‑Prime Minister dated 3‑7‑1977; and rightly so, because this was plainly beyond its jurisdiction. The file shows that the Federal Review Board had prepared a Summary of its recommendations in respect of 19 cases and the same was put up under the cover of the letter of the Advisor on Establishment, for orders before the C. M. L. A. The petitioner's name appeared at serial No.

4. The said Summary was approved by the C. M. L. A. by writing the word "approved" thereon as well as on the letter under which it was forwarded. As in the Summary, no specific mention was made by the Review Board for recalling the order of the former Prime Minister dated 3‑7‑1977, it cannot be said d that the said order was even impliedly recalled by the Chief Martial Law of the Summary. The Order dated 3‑7‑1977 Administrator by his acceptance could indeed be only set aside by conscious application of mind as to its nature and contents. As noticed earlier, the setting aside of the Order of the Prime Minister dated 3‑7‑1977 was itself beyond the purview of M. L. O. 23 and the jurisdiction of the Review Board. It was not disputed by the learned Deputy Attorney‑General that the Order dated 3‑7‑1977 had been pass ed competently by the then Prime Minister. The said Order, therefore ha remained intact and calls for its implementation. This legal aspect of the case could not be controverted on behalf of the respondents. The matter of implementing the order lay with the officials of the first respondent for which the petitioner cannot be blamed. In this view of the matter, the respondents cannot be given any advantage on account of inaction on the part of the concerned authorities.

12. For the reasons mentioned hereinabove, we are of the view that the petitioner stood re‑instated by virtue of the order of the former Prime Minister dated 3‑7‑1977, and it is, therefore, directed that the first respondent should implement the said order forthwith by re‑instating the petitioner to the same post from which he was retired, as per the Notification of the Government of Pakistan, Cabinet Secretariat (Establishment Division) dated 30th October, 1976, with all attending benefits and consequences arising there from.

12. In view of the fair and forthright defence put up on behalf of the respondents, while the petition is accepted, as above, there will be no order as to costs. Appeal dismissed.