1984K18 (PLP)

AJMAL MIAN, J .--The petitioner in this petition has prayed for the following reliefs:- "(i) declare that all proceedings taken against the petitioner under MLO-55 and orders/recommendations of respondent No. 2 and the impugned order dated 16-12-1979 as communicated by letter, dated 31-12-1979 of respondent No. 1 have been taken/made without lawful authority and the same are of no legal effect and this Honourable Court may be pleased to quash the same; (ii) restrain the respondents, their employees and subordinates from taking any action against the petitioner in pursuance of the impugned order dated 16-12-1979 and from reverting or transferring the petitioner from the post of Deputy Chief Accountant III or from taking charge of the said post from the petitioner or from interfering with the discharge and performance of the functions as Deputy Chief Accountant III by the petitioner; (iii) grant costs of this petition; and (iv) grant any other/further/better relief or reliefs which this Honourable Court may deem fit and proper in the circumstances of the case." 2. (a) The relevant facts to the filing of the above petition are that the petitioner is an employee of respondent No.

1. He was working on 14-11-1969 as an Assistant Accounts Officer (Grade-17 post), when a new post of O. S. D. (f. e. the Recovery Officer) for recovery of arrears of water charges was created in Grade-18, which. post he continued to hold from 6-12-1969 to 31-5-1973 without any break. It has been averred that the petitioner's work was appreciated inasmuch as even a resolution of the governing body was passed, namely, resolution No. 568 dated 29-12-1970, i. e. prior to the petitioners appointment as the recovery officer. It has been further averred that the budget section was headed by a Deputy Secretary but upon the transfer, of the budget section to the Accounts Department, the petitioner was appointed as the Deputy Chief Accountant (Grade-18 post) under order, dated 12-2-1975 after obtaining the sanction of the Provincial Government. How ever, this factum is denied by the respondent and it has been averred that the governing body of respondent No. 1 had rejected the petitioner but upon the direction of the Minister concerned the order of appointment was issued. It has also been averred that the petitioner made certain complaints to the Martial Law Authorities about the illegalities and misappropriations etc. and because of that a Martial Law Investigation Team, ins which the petitioner was also associated, made investigation and found serious irregularities/illegali ties. It has also been averred that because of the above act on the part of the petitioner, respondent No. 1's some of the officers were offended and because of that they got the case of the petitioner referred to the Committee under MLO-55 for scrutiny. The petitioner through an order dated 31st December, 1979, was reverted back to the post of Accounts Officer (Grade-17 post). It may be advantageous to reproduce hereinbelow the above order, which reads as under :- Karachi Development Authority (Establishment Branch-I Immediate No. 3-1/ET/74/Vol.V1/Gaz./2875/10108 Dated 31st December. 1979, Secretariat Order In accordance with the provision contained in Part-II, clause-i (iii) of Martial Law Order-55 read with the Governing Body Resolution No. 422, dated 16th December, 1979, Mr. Muhammad Afzal Khan, Dy. Chief Accountant-III (Grade-18) KDA, is hereby reverted to the post of Accounts Officer (Grade-17) with immediate effect. (Sd.) AQEEL AHMED SIDDIQUI, Secretary, K.D.A. (b) The petitioner, therefore, filed the above petition on 12-1-1980 for challenging the above order. However, after the filing of the above petition a show-cause notice, dated 27th October, 1980 (accompanied with a statement of allegations) was issued to the petitioner. 1t may b e advantageous to reproduce hereinbelow the above statement of allegations, which reads as follows :- Statement of allegations against Mr. Muhammad Afzal Khan, Accounts Ofcer, Revenue Accounts Section, KDA You, Mr. Muhammad Afzal Khan, Accounts Officer, Revenue Accounts Section, Resettlement Department, KDA, have been found guilty of the acts of `Misconduct' in the following manner :-- (i) That, you in collaboration with one Mr. Anis Qureshi, Accounts Officer A. G. Sind, submitted a representation on 27th October, 1979 direct to the Chairman, Provincial Inspection Team in violation of K. D. A. Administrative Instruction No. 150, dated 24th October, 1973. (ii) That, again on 16th August, 1980, you addressed a representation to the Chief Secretary, Government of Sind, direct under the caption `Irregularities committed by KDA-Officers' in utter disregard and open violation of the standing orders and Administrative Instruction No. 150, dated 24th October, 1973, referred to above. That the aforesaid acts of commissions are tantamount to misconduct on your part; and further prejudicial to good order of service discipline, and unbecoming of an officer of KDA as defined under clause-68 (iv) of KDA (Employees Service) (Third Amendment) Regulation, 1975, thus rendering you liable to disciplinary action and penalty/penalties as indicated in the show-cause notice. (Sd.) M. M. USMAM. (Chairman) Governing Body, KDA After the issuance of the above show-cause notice, the petitioner with the permission of this Court amended the petition and also sought declaration in respect of the above show-cause notice. 3. (a) From the above-quoted para. relating to the reliefs sought in the petition referred to hereinabove in para. 1, it is evident that the petitioner's reliefs contained in sub-paras. (i) and (11) relate to the impugned order, dated 16-12-!969 passed under MLO-55 conveyed through a letter, dated 31-11-1979. The question, therefore, arises as to whether this Court can grant the above reliefs in view of the express prohibition contained in Article 9 (6) of the P. C. O. Mr. Khalid Ishaq, learned counsel for the petitioner has contended that since the petitioner's case was not covered by MLO-.)5, the reference to the Committee under the above MLO or the order passed in pursuance there of is without jurisdiction and, therefore, this Court can grant reliefs sought in the above-quoted sub-paras. (i) and (if). In support of his admission, he has referred to the case of The State v. Ziaur Rehman and others-(1) and the case of Israr Ahmed v. President, Summary.Military Court, Sanghar (2). (b) .On the other hand, Mr. A. A. Fazeel, learned counsel for the respon dent has urged that since the impugned order has been passed under MLO-55 this Court has no jurisdiction. To fortify the above submission, he has referred to the following unreported orders/judgments passed by the various D. Bs. of this Court in the following writ petitions:-- (i) C. P. No. D-1330/1-78 (Ch. Muhammad Sharif v. K. M. C. and another), decided on 27-8-1981. (ii) C. P. No. D-374/1981 (Sultan v. K. M. C.), decided on 1-6-1981. (iii) C. P. No. D-901/1981 (Muhammad Khalil v. K. D. A. and others), decided on 13-1-1982. (iv) C. P. No. D-1055/1982 (Anjuman Bahbood-e-Islam, Aikka Khel Pakhtoon v. Government of Sind and others), decided on 27-1-1983. He has also referred to the case of Muhammad Uaroon v. District Food Controller and others (3) and the case of Dr. Muhammad Ilyas Dubash v. Punjab Service Tribunal arid others (4). 4. (a) In the first case relied upon by Mr. Kbalid Ishaq, the Honourable Supreme Court while construing the word "purport" has made the following observations "Be, that as it may, however wide a meaning is given to the word "pur porting", it appears that no Court has extended it to cover an act done which the person doing it had no jurisdiction at all to do or which has clearly outside the sphere of his activities. Thus, if an act can be done only by a Chief Martial Law Administrator, then if the same act is done by a Sub-area Martial Law Administrator, he cannot possibly claim that he purported to act as the Chief Martial Law Administrator. Similarly, if a trial can be held only by a Special Military Court, then a Summary Military Court cannot hold the trial and yet claim that it purported to act as a Special Military Court. It is in this sense that it has also been held that public officials using defamatory language, assaulting others of seizing properties which they have no authority to seize,, cannot claim that they were doing something purporting to act in their official capacity. (1) P L D 1973 S C 49 (2) P L D 1981 Kar. 47 (3) 1982 S C Ivy R 551 (41 1982 S C M R 552 Thus, in the case of Naryan Hajri v. Yashwant Raoff A I R 1928 Bom. 352 a Full Bench of the Bombay High Court held that a Police Officer assaulting a witness in the course of recording his statement cannot claim that he was acting "under colour or in excess of" his duty of recording the statement within the meaning of the Bombay District Police Act, 1980. This would seem to indicate that acts which are wholly unauthorised by the legislative measure under which the officer pretends to act can also not be described as acts done in the purported exercise of the powers given by that measure. "Purport", according to its dictionary meaning, means "be intended to setm" but merely so showing will not be sufficient if the act done cannot be one within the scope of that officer's official capacity. In other words, only when a person or authority having jurisdiction to do a certain thing in exercise of that jurisdiction does that thing wrongly or irregularly, can he claim to be purporting to act in exercise of the powers given to him. It follows, therefore, that an act, which is clearly without jurisdiction, or in the case of a judicial or quasi-judicial act, which is coram non judice, the use of the words "purported exer cise" in the validating clause will not give, that act the protection which the learned Attorney-General of Pakistan and the learned Advocate General for the Province of Punjab contend for." In the second case referred to by Mr. Khalid Ishaq, one of us (Ajmal Mian, J.) sitting with the learned acting C. J. while construing the majority judgment of the full Bench of this Court given in C. P. No. 942/19$0, made the following observations:- "A persual of the above-quoted extract from the judgment of the Full Bench indicates that even according to the majority view the ouster of jurisdiction of this Court in respect of those matters which are covered under Martial Law Order 77 is conditional, namely, upon fully comply. ing with Martial Law Order

77. It, therefore, follows that if a petitioner can show that a Summary Military Court has taken cognizance of a matter not falling within the compass of Martial Law Order 7'7 or that the provisions thereof have not been fully complied with, a writ petition will be competent." In our view, the above Supreme Court case of 1973 has no application as it is not the case of the petitioner that the Committee constituted under MLO-55, which had passed the impugned order was not properly constituted or was not competent to pass an order under MLO-55 but the case of petitioner is that his case was not referable to the Committee. The above Karachi case has also no application to the instant case, as in the above Karachi case, the ratio decidendi of the majority judgment of the Full Bench referred to was highlighted. The above case did not involve the interpretation of the word "purport" or Article 9 (6) of the P. C. O. However, we are inclined to hold that the Court still have jurisdiction to be satisfied, whether the impugned order or action purported to have been passed/taken under a MLO or MLR, was passed/taken by the authority/1 person, prima facie clothed with the power; which be purported to exercise, e. g. an officer neither connected with the administration of the Martial Law, nor authorised to act under the relevant Martial Law Order/Regulation or' by the Martial Law Authorities in terms of the relevant MLO/MLR, cannot claim immunity from scrutiny of his order by the Court on the ground that he purported to have passed the order under a MLO or MLR. (b) (i) The aforesaid case of Ch. Muhammad Sharif v. K. M. C. and another decided by a D. B. of this Court, relied upon by Mr. Ali Ahmed Fazeel, to which one of us (Ajmal Mian, J.) was a party has direct bearing on the instant case as it also related to MLO-55 and it also involved the construction of Article 15 (6) of the P. C. O. It may be advantageous to reproduce herein below the relevant observation, which reads as follows :- "(b) From the facts of the case, it is evident that there is no controversy between parties, on the question that the petitioner was in fact holding a substantive post of a Land Surveyor Grade 9 prior to his ad hoc appointment as Assistant Land Manager. It is also clear that respon dent No. 1, while making the reference to the Select Committee had confined itself to make the reference about the petitioner's appointment as the Assistant Land Manager because, he was holding that post on ad hoc basis. Furthermore, there could not have been any reference about his substantive post of the Land Surveyor. It is also evident that para. 7(di) of the MLO contemplates that an ad hoc appointee if he was holding any substantive post to be reverted back to his substan tive post and that his services could not have been terminated. How ever, the question, which requires consideration is, whether this Court can go into the merits of the order which was purported to have been passed under the MILO. In this connection reference may be made to Article 15 (5) (a) (6) of the P. C. O. which reads as follows :- "Article 15 (2) ............ (4)....................................................................................... . (6)....................................................................................... " A perusal of the above-quoted paras. indicates that this Court cannot go into the validity or effect of an order or Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Order made by the Chief Martial Law Administrator or a Martial Law Administrator or of anything done or action taken or intended to be done or taken thereunder. In our view the phrase `anything done' or 'action taken' or `intended to be done or taken thereunder' employed in the above-quoted para. (a) of the P. C. O. is of wide import as to exclude the jurisdiction of this Court to go into the validity of an order, though prima facie it seems that the impugned order is not in accor dance with the MLO. We are sure that if the petitioner will approach the competent authority his grievances will be redressed." (ii) Whereas the other cases relied upon by Mr. A. A. Fazeel do not relate to MLO-55 but relate to some other M. L. Os. and in which this Court and the Supreme Court have taken the view that the jurisdiction of the Court is barred. Constitutional Petition No: D-374/1981 related to MLO-130, where as the remaining above two unreported judgments related to MLO-110. The first Supreme Court case (reported in 1982 S. C. M. R. page 551) related to instruction No. 22 issued by Martial Law Administrator, Zone 'A', and the second case related to MLO-23. (iii) We are inclined to follow the above judgment dated 27-8-1981 of D. B. of this Court given in aforesaid Contstitutional Petition No. 1330/1978. and hold that the reliefs prayed for in above-quoted sub-paras. (t) and Oil referred to hereinabove in para. 1 are hit by Article 9(6) of P. C. O. and,1 therefore, cannot be granted. 5. (a) We are left with the third relief contained is sub-para. (iii) quoted hereinabove in para. 1, which was incorporated by amending the petition upon issuing of the aforesaid show-cause notice, dated 27-10-1980. The question, which needs consideration is, as to whether we can grant fir-relief ? Mr. Khalid M. lshaq has urged that since the statement of allegations quoted hereinabove in para. 2(b) does not fall within the purview of the administrative instructions dated 24th October, 1973, and, therefore, the show-cause notice is without jurisdiction and also malafide, since the same was issued as counter blast to the above petition which was pending. On the other hand, Mr. Ali Ahmed Fazeel has urged as follows (1) That the petitioner cannot file a writ petition being a civil servant ; (2) That the petitioner cannot challenge a show-cause notice as other adequate alternate remedies are available ; (3) That even on merits the show-cause notice is not without jurisdiction and falls within the purview of the above instruction, dated 24th October, 1973 nor it is mala fide. 6. (a) It may be pertinent first to take up the question, whether the petitioner is a civil servant. Mr. A. A. Fazeel has relied upon sections 2 and 5 of Ordinance No. XIII of 1978, Corporation Employees (Special Powers) Ordinance, 1978 (hereinafter referred to as the Ordinance), which read as follows Section 2 : Definitions.-In this Ordinance, unless there is anything repugnant in the subject or context, "person in Corporation service" means every person who is in the employment of a Corporation or an institution set up, established, managed or controlled by the Federal Government, and includes the Chairman and the Managing Director of, and the holder of any other office in, such Corporation or institu tion. Secticn 5: Service of Corporation to be service of Pakistan, etc.-Service of a Corporation is hereby declared to be service of Pakistan and every person in Corporation service who is removed from service, or reverted to a lower post or grade, under this Ordinance, not being a person who is on deputation to a Corporation from any Province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973)." He has also referred to an unreported judgment dated 14-2-1983 given in C. P. No. D-501/1981 (Farid Ahmed v. Karachi Shipyard and Engineering Works Ltd. and another) (Now reported in P L D 1983 Kar. 576 (September issue). (b) A perusal of the abovequoted section 2 of the Ordinance indicates that a person in Corporation service is, who is in the employment of a Cor poration or in an institution set up, established, managed or controlled by the -Federal Government and includes the Chairman and the Managing Director or holder of any other offce in such Corporation or institution. Furthermore, under above-quoted section 5, the service of Corporation has been declared to be service of Pakistan. It has also been provided that every person in Corporation service, who is removed from service or reverted to a lower post or grade under Ordinance XIII of 1.978, not being a person, who is in deputation of Corporation from any Province, shall be deemed to be a civil servant for the purposes of Service Tribunals Act, 1973 (LXX of 1973). In our view, a plain reading of the above two sections together clearly manifests that the above provisions can be pressed into service if a person is in service of a Corporation or institution set up, established, managed or controlled by the Federal Government. It may be pointed out that above section 5 also brings out clearly that an employee of a Provincial Government on deputation in a Corporation/institution, though set up, established, managed or controlled by the Federal Government cannot be treated civil servant for the purpose- of the above provision. This is further fortified by referring to the Federal Service Tribunals Act, 1973, namely (Act No. LXX of 1973). (2) The above case of Farid Ahmed v. Karachi Shipyard and Engineering Works Ltd. and others (P L D 1983 Kar. 576) in which it was held that an employee of the Karachi Shipyard is a civil servant for the purpose of the Service Tribunals Act, 1973 by virtue of the above two sections, namely, sections 2 and 5 of the Ordinance, in our view has no application to the instant case as admittedly Karachi Shipyard is a Corporation /institution set up, established, managed and controlled by the Federal Government. The K. D. A. cannot be equated with the Karachi Shipyard & Engineering Works Ltd. Admittedly the K. D. A. is managed and controlled by the Provincial Government of Sind and not by the Federal Government. It was established in 1957 by a Presidential Order, namely, K. D. A. Order, 1957, It was established by the Central Government/ Federal Government as at the relevant time, it was exercising the power of the Provincial Government in relation to Karachi which was the then capital of Pakistan. Since the employees of the Provincial Government have been expressly excluded though even on deputation in a Corporation/ institution set up, established, managed or controlled by a Federal Government in the above-quoted section 5 of Ordinance No. X[II of 1978, in our view with no stretch of imagination, a K. D. A. employee can be treated as a civil servant for the purpose of the Federal Service Tribunals Act ,1973 (Act No. LXX of 1973).

7. Referring to the second submission of Mr. A. A. Fazeel that the petitioner cannot challenge the show-cause notice as he has adequate alterna tive remedies, it may be advantageous to reproduce hereinbelow relevant portion of the judgment in the case of Wali Ahmad Khan v. Government of Sind and 6 others (1982 P L C (C. S,) I) which is a, judgment of a D. B. of this Court, to which one of us (Ajmal Mian, J.) was a party, which reads as follows :- "In our view if a show-cause notice is without jurisdiction either for want of the requisite authority or because of mala fide, which should be manifest from the facts of the case, a writ petition in such a case would he competent. But generally a writ petition is not competent against a show-cause notice issued by a competent authority in good faith. In the instant case the above petition was filed by the petitioner against the first charge-sheet on the ground that the Director-General of the K. D. A. had no authority to issue the said show-cause notice in view of the rule 16 of the Karachi Joint Water Board Rules, 1956. If we would have accepted the petitioner's above contention, the above ground was sufficient to warrant the maintenance of the above writ petition. We have already held hereinabove that the Director-General, K. D. A. was competent to issue the aforesaid first charge. Further more, we are not inclined to hold that the aforesaid first charge-sheet was issued mala fidely as from the state of the record such an interference is not warranted." It may be observed that generally the Court does not entertain a writ petition against a show-cause notice, but the Court may entertain a writ D petition even against a show-cause notice if it is manifestly without jurisdic tion or males fide and non-exercise of writ jurisdiction will result in miscarriage of justice. We do not see any cogent reason to deviate from the above Karachi D. B. case. 8. (a) As regards the last submission of Mr. Ali Ahmed Fazeel, it may be advantageous to reproduce hereinbelow the administrative instruction, dated 24th October, 1973, which reads as follows :- "It has been noticed that the instructions circulated under Establishment Branch-I endorsement No. 3-17/ET/64 Vol. VI/2411, dated 25th March, 1,972, are not strictly adhered to by K. D. A. employees as regards submission of their personal cases. It is, therefore, reiterated that no representation/appeal or even advance copies thereof should be directly sent to the Government by K. D. A. employees. (2) The Heads of Departments are requested to bring to the notice of all officers /officials working under their administrative control that all representations/appeals should be routed through the proper channel. (3) In case of non-compliance of these instructions, disciplinary action will be taken against the defaulting officers /officials." A perusal of the abovesaid instruction indicates that it prohibits submission of representation /appeal relating to personal cases of the K. D. A. employees direct to the Government. (b) In the instant case the petitioner had filed a complaint alongwith a government employee under Martial Law Instruction No. 3, the relevant por tion of which reads as follows :

"Martial Law Headquarters is receiving complaints/petitions in large number which mostly pertain to local matters in the field and can be resolved by the local Civil Administration. There are, however, other complaints which need action at district, division and provincial level. To streamline the action to be taken on the complaints and solve the problem expeditiously. [M. L. A. Zone 'C'] has decided that with immediate effect the procedure outlined in this instruction for dealing with complaints/petitions will be followed :- (b) ............................................................................. , (c)......... (d)... ..... (e)... ..... (f)... ..... (g) Complaints pertaining Karachi Development Authority, Karachi Metropolitan Corporation, Karachi Electric Supply Corporation, Karachi Transport Corporation and Karachi Gas Company will be forwarded to the Complaint Cells to be established by the respective Departments/Corporations. Their functioning and progress will be inspected by representatives to be detailed by Deputy Martial Law Administrator No. (?) Sector and Provincial Inspection Team: However, complaints pertaining to corrup tion, malpractices and misuse of authority in these organizations will be forwarded to the Complaint Cell established in the Headquarters Martial Law Administrator Zone 'C' at Assembly Chambers. (2) No action will be taken on anonymous complaints. (3) All complaints/petitions must be accompanied with an affidavit that the information given in the petition to the best of his knowledge and honour is wholly true, nothing but true. Individuals making false complaints will render themselves liable to disciplinary action for making false accusations." A perusal of the above-quoted Martial Law Instruction No. 3 indicates that a complaint pertaining to corruption, malpractices and misuse of authority in respect of employees of the K. D. A. could have been directly submitted to the Martial Law Authorities. (c) In the present case the petitioner alongwith one Anis Qureshi filed a complaint with the Martial Law Authorities under the above-quoted instruc tions. As per averments contained in the petition, particularly in para. 28, the Martial Law Investigation Team found prima facie cases of irregularities and illegalities against the K. D. A. officials named therein and recommended their suspension from service. This averment has not been expressly denied by the respondents in their counter-affidavit, what they have stated is that the final report of the Inspection Team has not yet been submitted. The petitioner's two representations dated 27-1J-1979 and dated 16-8-1980 have been made subject-matter of the impugned show-cause notice, which were addressed to the Chairman, Provincial Inspection Team (Annexure 'T' to the counter-affidavit) and to the Chief Secretary, Government of Sind (Annexure 'T-1' to the counter-affidavit) in which he pointed out that he was victimised, because he had made a complaint under the above Martial Law Instruction No. 3 and assisted the Martial Law Inspection Team, which resulted in the discovery of the various irregularities/illegalities committed by the K. D. A. employees. He sought their protection from harassment. If the above two representations are read in toto, it will be evident that they cannot be consider ed to be representation/appeal relating to the personal case of the petitioner E and, therefore, aforesaid administrative instructions dated 24th October, 1973 were not attracted to. Furthermore, since the above petition was pending the petitioner's allegation that the above show-cause notice was prompted for! males fide reason is not devoid of force. The petitioner has been reverted back to Grade-17 post after several years, any disciplinary action in pursuance of the impugned show-cause notice, may cause hardship to the petitioner and his family.

9. We, are, therefore, inclined to declare that the impugned show cause notice is without lawful authority and of no legal effect. The petition stands -diposed of in the above terms with no order as to F costs. date. These are the detailed reasons in pursuance of a short order of an-even, M. Y; H Petition allowed.