P L D 1966 (W (PLP)

MUHAMMAD GUL, J.-This order will dispose of the following three writ petitions, the essential facts and points of law bearing on them being the same, namely:- (1) Mukhtar Hussain v. District Manager, P. T. S., Lyallpur and two others W. P. No. 35 of 1963; (2) Mukhtar Ahmad Mirza v. District Manager, P. T. S., Lyallpur and two others W. P. No. 36 of 1963; and (3) Faizullah Khan v. District Manager, P. T. S., Lyallpur and two others W. P. No. 68 of 1963.

2. The petitioner in each case, at the relevant time, was employed as `Checker' in the Provincial Transport Service, at Lyallpur. Early in September 1959, Mukhtar Hussain and Mukhtar Ahmad Mirza, petitioners in the first two petitions, were served with notices to show cause as to why disciplinary action including discharge from service should not be taken against them for corruption, inefficiency and misconduct. Faizullah Khan, petitioner in the third petition, was served with the similar notice, though, he was charged with inefficiency only. These notices were issued under the Public Conduct (Scrutiny) Ordinance 1959 (Ordinance III of 1959), as amended, and the Rules framed there under. The notices required the petitioners to furnish written explanations before the 16th of September 1959, and if they so wished, to appear before the Screening Committee for a personal hearing. The petitioners gave explanations and also appeared before the Screening Committee, who after considering their explanations, vide Memoranda dated the 16th of September 1959, recommended their removal from service, informing them that they may appeal against the proposed action. The petitioners appeals being unsuccessful, they were removed from service vide Memorandum issued to each of them, on the 29th of September 1959.

3. The petitioners impugn the validity of the orders of their removal from service, mainly on the ground that respondent No.1, who being the Convener and the Chairman of the Screening Committee was not competent to hear appeals against its re commendations for the removal of the petitioners from service and that therefore, the impugned order in each case offended against the principles of natural justice and "without lawful authority and of no legal effect".

4. The respondents in their written statements controverted the fact that the petitioners were advised to appeal to respondent No. 1 against the recommendations of the Screening Committee. It was alleged that in the memoranda, containing the recom mendations of the Screening Committee, the petitioners were advised to appeal to the General Manager (who was the next higher authority above respondent No. 1) and that if they did not choose to appeal before the proper forum, they cannot turn round to impugn the validity of the orders of their removal from service. It was also alleged that the three petitions must fail on account of laches. Against Faizullah Khan (petitioner in W. P. No. 68 of 1963), it was further alleged that having accepted re-employment under the Provincial Transport Board, as a result of representation made by him, he must be deemed to have acquiesced in the impugned order passed against him.

5. As observed already, the petitioners case is that in the memoranda issued informing t1rem of the recommendations of the Screening Committee for their removal from service, they were advised to file appeals to respondent No.1, which they did in obedience to the above direction. But this allegation is controverted in the written statements and the counter-affidavits filed on behalf of the respondents, wherein it was alleged that each petitioner was advised to file his appeal to the General Manager. During the course of hearing, learned counsel for the respondents produced the original file, which showed that at least in the case of Mukhtar Hussain petitioner, the notice dated the 16th of September 1959, advised him to appeal before the General Manager. Notices issued to the other two petitioners were not produced because they were not traceable. In any case, the counter-affidavits filed in the other two cases also controverted the essential facts constituting the very foundation of the petitioners' case that they were directed to appeal to respondent No.

1. There is no reason to accept the affidavits sworn by the petitioners against the Counter--affidavits filed on behalf of the respondents. Therefore, it must be held that the petitioners filed appeals as a matter of their own choice and not under any direction from the Convener of the Screening Committee. In the face of these facts, it is not open to the petitioners to invoke salutory principle laid down recently by this Court in Mian Muhans mad Abdullah v. Road Transport Corporation, Lahore (P L D 1964 Lab. 743). That was a case in which the Enquiry Officer after enquiry into the charges levelled against the petitioner in that case and making the recommendations thereon, sat in the meeting of the Road Transport Corporation as one of its members to pass the final order of punishment. It was held that the order of punishment was vitiated because the Enquiry Officer having enquired into the charges and making the recommendation, could not sit with an unbiased mind in the meeting of the Road Transport Corporation to consider the case for the purpose of imposing punishment on the delinquent.

6. There is yet another aspect of the matter, which would distinguish these cases from the case of Mian Muhammad Abdullah, so strongly relied upon by the petitioner's learned counsel. Section 4 of the 1959 Ordinance under which the petitioners were proceeded against, expressly provides for an appeal to the appointing authority. It reads:- "

4. Orders to be passed upon a finding.-Every finding recorded by a Committee under section 3 shall together, in the case of a finding against the person concerned, 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." Rule 6 of the Rules framed under the Ordinance also make a similar provision for an appeal to the appointing authority within fifteen days of the receipt of the recommendation of the Screening Committee. It is impossible to hold that principles of natural justice which remain undefined can overrule the express provisions of a statute. Rules of natural justice are mere rules of practice to be observed on principles of justice, equity and good conscience, must yield to the provisions of the statute to the contrary. It is not denied that respondent No. 1 was the appointing authority vis-a-vis the petitioners, and, therefore, under the statute; the appeals lay before him and it is not the petitioner's case, that respondent No. 1 having been designated by the statute as the appellate authority was disqualified to act as the Convener of the Screening Committee and to preside over the proceedings before it.

7. Apart from the fact, that the main ground urged in support of the petitions has failed, the petitions in, our opinion must also fail on account of gross laches. The impugned orders, as observed above, were made on the 29th of September 1959, and these writ petitions were not filed till January 1963, after the lapse of more than 31- years. Learned counsel for the petitioners contended that the petitioners initially thought that by reason of the decision of their Lordships of the Supreme Court in Mr. Zafarul Ahsan's case (P L D 1960 S C (Pak.) 113) the impugned orders (being the result of the recommendations of the Screening Committee convened under the Ordinance of 1959), could not be challenged on any ground, whatever, and that, therefore, the petitioners considered it futile to challenge the validity of the orders in a legal proceeding. Later on, however, when in a subsequent case, the case of Mr. Zafarul Ahsan was explained and distinguished, the petitioners filed these petitions without undue delay. This, learned counsel stressed, was a sufficient explanation for the condonation of delay. In support of his argument, learned counsel relied upon the case of Mubarak Ali Bhatti v. Flazar Ali Khan and others (P L D 1963 Lah. 8) wherein a similar plea prevailed and a delay of 2f years was condoned. In our opinion, the facts of three instant cases are different. Firstly, the delay- in these cases is much more grievous than in the case of Mubarak Ali Bhatti. Secondly, it is difficult to avoid the impression that by delaying these proceedings for 3; years, the petitioners had virtually waived or abandoned the remedy in writ jurisdiction, which it is not denied, must be pursued with promptitude as was done by some of those who were hit by similar orders. Merely because the dictum in Zafarul Ahsan's case was explained or distinguished in a subsequent case would not in our opinion revive a right which had virtually lapsed by waiver by reason of the petitioners failure to initiate proceedings within reasonable time: more so in the case of Faizullah Khan (petitioner in W. P. No. 68 of 1963), who was removed from service on a charge of mere inefficiency and not on charges of misconduct and corruption and who has since accepted re-employment under Provincial Transport Board, the waiver became demonstrable. The long delay and this additional circumstance amounted to acquiescence by the petitioners and, in our opinion, they cannot be permitted at this late stage to turn round to challenge the validity of the impugned orders after the lapse of 3 years. Therefore, the writ petitions fail on the ground of gross laches also.

8. For the foregoing reasons, the writ petitions are dismissed. In the circumstances of the case, we, however, make no order as to costs. S. Q. Petitions dismissed.