P L D 1960 Dacca 842 (PLP)

The petitioner has also filed an affidavit‑in‑reply reiterating his statements in his petition and denying that he attended any meeting of the Peace Committee in June 1958 or any other meeting at any time except the meeting held at the Dacca Bar Library in August 1958. The petitioner does not either in his petition or in his affidavit‑in‑reply or even before us through the learned Advocate appearing on his behalf, challenge either the constitution of the Provincial Screening Committee or the validity of its decision ; but the gravamen of his complaint appears to be against the so‑called Advisory Committee. Indeed, as far as we have been able to make out from the arguments advanced before us and the papers on the record, the petitioner appears to be of the view that the order of the Governor is bad by reason of the inter vention of the Advisory Committee in this matter. There is no allegation of any kind whatsoever as against the appointing authority or as to the competence of the appointing authority in making the impugned order. In these circumstances, the learned Advocate‑General appear ing on behalf of the Government has taken a preliminary objection to the maintainability of this application. It is contended that since the impugned order is an order made in exercise of the powers given to the appointing authority under sub‑clause (a) of clause (5) of Article 6 of the Laws (Continuance in Force) (Amendment) Order, 1959, the said Order cannot be questioned in any Court. The relevant provisions of the Laws (Continuance in Force) (Amendment) Order, 1959, namely, the President's Order No. 1 of 1959 are as follows :‑ Art. 6 clause 3.‑"Notwithstanding anything in clause (1) a person in the service of Pakistan may, if he is found ineffi cient or guilty of subversive activities, corruption or misconduct, under rules made in that behalf by the President or a Governor be suspended, compulsorily retired (whether he has reached the age of retirement or not), reduced in rank, removed or dismissed in accordance with those rules by an authority not subordinate to that by which he was appointed . . . . . . Then clause (4).‑No rule made under clause (3) or order expressed to be made in accordance with any such rule shall be called in question in any Court. Clause (5).‑Nothing in this Article or in any law, rule or instru ment having the force of law shall prevent a person mentioned in clause (1) from being‑ (a) suspended, reduced in rank, removed or dismissed for being corrupt, or for misconduct or for inefficiency after such enquiry as may be held under the orders of the Central Government, or (b) retired for any cause mentioned in the preceding sub‑clause or for having the reputation of being corrupt on such pension (if any), as may be admissible to him, pro portionate or otherwise‑by an order of the authority mentioned in clause (3) made before the first day of July 1959, and no appeal shall lie against such order nor shall such order be called in question in any Court." The impugned Order was admittedly made on the 29th of June 1959, and on the admission of the petitioner himself served upon him on the 30th June 1959. In pursuance of the proclamation of the 17th of October 1958 the President was also pleased to promulgate the Public Conduct (Scrutiny) Ordinance, 1959 being Ordinance No. III of 1959. Under clause 3 of this Ordinance the following provisions were made:‑

"Powers to appoint Committees.‑If the Central Government sees fit to do so it may constitute or direct to be constituted one or more Committees, sole or corporate, to scrutinize the conduct of any person to whom this Ordinance applies and record a finding thereon and to make a recommendation as to punishment or other action." By this Ordinance power was also given under clause 8 to the Central Government to make rules to carry out the purposes of the said Ordinance. Rules were so framed by the President and the Chief Martial Law Administrator on the 24th of January 1959 being S. R. O. No.

21. By clause 4 of the Ordinance itself, it was further provided that every finding recorded by a Committee under section 3 shall together, in the case of a finding against the person con cerned, with the recommendation provided for in that section be submitted to the authority by which the person concerned was appointed (hereinafter called the appointing authority) and that authority shall pass. orders thereon according to law. Again, under the rules it was specified by rule 4 that having considered the explanation, if any, made under rule 3 the Committee shall record a finding on the matter of which the person concerned has been informed under rule 2, and submit the finding to the appointing authority. That this finding does not include the recommendation is clarified by the next succeeding provision, namely, rule 5, which reads as follows :‑

"The finding submitted under rule 4 shall be accompanied by the recommendation of the Committee as to punishment or other action." Rule 6 provides for communication of an adverse finding to the person concerned, grants a right of appeal and fixes a time limit for the purposes of appeal. Rule 7 then provides that having considered the finding, the recommendation and the appeal if any, the appointing authority shall forthwith either pass an order or refer the proceeding to such advisers as he may think it fit and pass an order after considering their opinion. In exercise of the powers under Rule 7 of the above mentioned Rules the Governor by a Notification No. 1848‑G.A. dated the 6th of April 1959 appointed some three Advisory Committees for various grades of Gazetted, Officers "to advise him by the 30th May 1959 at the latest on the findings and recommendations of the various Screening Committees in respect of the Gazetted Officers and the appeal, if any, submitted by the Officers concerned." It is to one of these Advisory Committees that the present case was also referred and it is against the findings and recommendations of this Advisory Committee that the attack is now directed. But before we enter into this question, it is necessary that we should take up for consideration the preliminary objection raised on behalf of the Government. As already indicated reliance is placed on the provisions of the Laws (Continuance in Force) (Amendment) Order, 1959 to show that the order of the appointing authority cannot be called in question in any manner in any Court. In support of this contention reliance is also placed on a decision of the Supreme Court in the case of Zafar‑ul‑Ahsan v. The Republic of Pakistan (P L D 1960 S C (Pak.) 113). In this case their Lordships of the Supreme Court held that the jurisdiction of the Supreme Court to call in question the proceedings of a Screen ing Committee is barred by section 10 of the Public Conduct (Scrutiny) Ordinance, (Ordinance No. III of 1959) and that an order made by the President under sub‑clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) (Amendment) Order cannot be called in question in any Court. With regard to the effect of section 10 of the Ordinance itself, their Lordships further held that even if the Screening Committee never informed the appellant in accordance with rule 2 of the Public Conduct (Scrutiny) Rules, 1959 that it had reason to believe that he was corrupt or guilty of misconduct, the omission would be no more than a mere irregularity in procedure of which the Supreme Court could not take cognizance. Their Lordships further adumbrated the principles to be applied when considering such cases of ouster of jurisdiction made by statutes and laid down that :‑

"If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been com mitted by the authority." Applying these principles to the facts of the present case, it is argued that all the tests have been satisfied. The Screening Committee was admittedly lawfully appointed or constituted. The Advisory Committee was also a body duly constituted in exercise of the powers given under the rules. The appointing authority was also duly authorised and competent to take action under the provisions of the Laws (Continuance in Force) (Amendment) Order. The person proceeded against, namely, the petitioner was also a person subject to the jurisdiction of that authority being a person in the service of East Pakistan. The grounds on which action was taken, namely, misconduct is one of the grounds within the statute and the order made is one which clearly could have been made under the provisions of such statute. Apart from the question of mala fide action, which their Lordships excepted from the ambit of the above principles, upon the ground that in such a case the statute would merely have been utilised as a cloak to cover an act and the act itself could not be treated as an order under the statute, it seems to us that this contention put forward by the learned Advocate‑General must' be upheld. As already pointed out, the petitioner himself does not challenge either the constitution or the validity of the action of the Screening Committee nor does he challenge the competence of the appointing authority to pass the order made. There is no allegation also of mala fides either against the Screening Committee or the appointing authority. All the allega tions that have been made in the present case are against the Advisory Committee. Firstly, with regard to its constitution. We have already quoted the relevant provisions of the Ordinance and from them it will be observed that under clause 3 of the Ordinance the power given to the Central Government is to constitute or direct to be constituted not a single committee but one or more committees, sole or corporate, for the purposes of the said Ordinance. It appears further that in exercise of this power the Central Government issued a directive under the President's Secretariat (Establishment Division) Notification No. 1/3/59‑S.R. dated the 24th of January 1959 directing the Government of East Pakistan to constitute such Committees. In exercise of this power the Provincial Government by its Notification No. 842 G‑A dated the 7th of February 1959 constituted various Screening Committees. Furthermore, under the rules framed under the said Ordinance the appointing authority was clearly given a right before passing any order to consult such advisers as it may think fit. The appointing authority, being the Governor in the present case, decided by his Notification No. 1848 G‑A dated the 6th of April 1959 that all findings and recommendations of the various Screening Committees constituted should be referred to Advisory Committees for their opinion. No matter what the name given, these Advisory Committees were in the position of advisers to the appointing authority whom the appointing authority had the right to consult in exercise of the powers given to him under the said rules. We are unable, therefore, to see any illegality or irregularity in the appointment of such advisory committees for tendering advice to the appointing authority. Now, the next question is whether the Advisory Committee was bound as contended by the petitioner to follow the procedure indicated under Ordinance No. III of 1959 or the rules framed thereunder. There is nothing in the said Ordinance or rules laying down or prescribing any special procedure to be followed by the advisers who might be consulted under rule

7. But even if it could be said by Analogy that the Advisory Committee should have followed the same procedure as was prescribed for tile Screening Committee itself, it would not be of any assistance to the petitioner in the present case for non‑observance of the said procedure would, in accordance with the decision of the Supreme Court in the above‑mentioned case, be merely an irregularity and' should not be sufficient to vest any Court with the jurisdiction to question the order of the authority constituted under these statutes. The next contention of the learned Advocate appearing in support of this Rule appears to be that the order of the Governor was not in accordance with the procedure prescribed under the Public Conduct (Scrutiny) Rules in so far as no necessity of consulting any adviser, even assuming that the advisers were properly appointed or constituted, arose in the present case. The argument appears to be somewhat to the effect that the word "finding" in rule 4 must necessarily mean an adverse finding and, therefore, unless there was an adverse finding by the Screening Committee there would be no necessity of even submitting the case to the appointing authority. Therefore, if no case had to be submitted to the appointing authority, the appointing authority would not acquire any jurisdiction under rule 7 to consult any adviser and, in the present case, since there was no adverse finding against the petitioner, the case was illegally placed before the appointing authority and illegally referred by the appointing authority to the Advisory Committee. We are, however, unable to agree with this contention. The scheme of the Ordinance and the rules framed thereunder appears to us to be that a "finding" has been treated as distinct and separate from a "recommendation", and does not necessarily include a "recommendation." Thus in clause 4 of the Ordinance itself the words used in the first portion of the said clause are that every "finding" recorded by a Committee under clause 3 shall together, in the case of a "finding" against the person concerned, with the "recommendation," provided for in that clause be submitted to the authority. Therefore, the necessity to make a "recommendation" arises only when the finding is against the person concerned but this clause requires that whether there is a "recommendation" or not, every "finding", whether against o in favour of the person, must be placed before the appointing authority and that authority shall pass orders thereon according to law. The Rules also maintain this distinction between a "finding" and a "recommendation". In the present case, there certainly was no "recommendation" by the Screening Committee ; but nevertheless there was a "decision" and a "finding" which had, according to clause 4 of the Ordinance and rule 4 of the rules framed thereunder, to be submitted to the appointing authority. The relevant words from the order of the Screening Committee itself may be quoted in support of our view that there was a "decision" arrived at by the Committee and, therefore, a "finding" also. The relevant words are as follows :‑- "After considering their explanations, the Committee decided not to make any recommendation in their cases. The Department may take necessary action in the case of the Officer mentioned in serial No. 3 of the list." (The said officer is the petitioner in the present case). In this view of the matter, according to us, there was a finding and the finding was properly and lawfully submitted before the appointing authority and he not only could but it became thereafter the bounden duty of the authority to pass orders thereon according to law. The words used in clause 4 of the Ordinance leave this in no manner of doubt, for there it is said that "that authority shall pass orders thereon according to law." The authority, therefore, acquired also jurisdiction to consult such advisers as he thought fit in accordance' with the power given to him under rule 7 of the rules and this is what the authority has done in the present case. There is no allegation that the appointing authority has not discharged its function or considered the opinion of the advisers or the other relevant materials that were placed before him in making the order in the present case. This leaves for consideration the other argument that the opinion of the Advisory Committee has been vitiated by non- compliance with the provisions of natural justice and the ground of mala fides alleged against one of the members of the said Advisory Committee. So far as the charge of non‑compliance with the principles of natural justice is concerned, the Screening Committee gave adequate notice to the petitioner of the charges levelled against him. Thus, the petitioner was duly informed of the case of the Department against him. So far as the Advisory Committee was concerned, its capacity was merely that of advisers. No rules of procedure having been prescribed for it, it was not bound to again give fresh notice to the petitioner to show cause before it or to give the petitioner another hearing. The final decision was of the appointing authority itself ; but in the present case, as admitted by the petitioner, the opinion of the Advisory Committee was duly communicated in extenso to the petitioner under the Memo. No. 3907 Medl. dated the 5th of June 1959 and the petitioner was given adequate opportunity to meet each and every one of the allegations that the Advisory Committee set out in its opinion. Thus, the petitioner was not denied any natural justice. He had adequate opportunity to meet the charges which were contained in the said opinion of the Advisory Committee and indeed, availed of the same by making al representation against that to the appointing authority on the 17th of June 1959. With regard to the allegations of mala fides, apart from the question as to whether a mere assertion of mala fides is by itself sufficient to establish mala fides, the petitioner in the present case is faced with another difficulty. Assuming that the charges levelled by the petitioner against Mr. H. Raza are true, there is nothing before us to show to what extent the other two members of the Advisory Committee, who clearly constituted a majority were influenced by Mr. Raza against the petitioner. In the absence of any allegations whatsoever either against Mr. D. K. Power or Mr. A. Q. Ansari, the other two members of the Advisory Committee, we are inclined to agree with the Govern ment that the allegations of mala fide against Mr. Raza are irrelevant and do not affect the opinion of the Advisory Committee in the present case. Furthermore, mere allegations of malafides against Mr. Raza would not assist the petitioner in the present case unless he is also in a position to show that Mr. Raza bad influenced the appointing authority which was the authority to pass the order in the present case. There is not even a suggestion that Mr. Raza had in any way influenced the appointing authority or that the appointing authority acted in any way improperly and did not make up its own independent mind after considering the representation of the petitioner which he submitted on the 17th of June 1959. We might also indicate here that in our opinion mala fide has not only to be established upon clear and convincing evidence but has also to be pleaded with some particularity in the same manner as an allegation of fraud has to be pleaded. In the present case the only allegation on which the ground of malafides was made was that the petitioner had some kind of a quarrel with Mr. Raza in connection with the Epidemic Control Committee. No particular has been vouchsafed as to the nature of that quarrel or as to the attitude of the said Mr. Raza subsequent to the said quarrel against the petitioner. There is no suggestion even that Mr. Raza ever threatened the petitioner with any consequence as a result of the said quarrel. The allegations, therefore, are, in our opinion, of no substance at all and certainly not sufficient to make out any case of mala fides. For these reasons, we are of the opinion that no case of mala fides has been made out to bring this case within the excep tion mentioned by their Lordships of the Supreme Court in their decision in the case of Zafar‑ul‑Ahsan and, therefore, this applica tion is not maintainable. This Rule is accordingly discharged ; but in the circumstances of this case, there will be no order as to costs. HASAN, J.‑I agree. A. H. Rule discharged.