1984 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN).‑--Dr. Syed Chous Muhammad Shah, has filed an application before this Tribunal for re‑hearing of Appeal No. 132/114/74 on merits, in accordance with the judgment of the Supreme Court of Pakistan, dated 20th March, 1983. 2. Brief facts of the case are that vide order, dated 18th March, 1972 Governor of the Punjab ordered the retirement of the appellant under M.L.R. 114, from the post of Deputy Director, Health Services, Sargodha Region, Sargodha. The appellant in the first instance challenged his retirement before the Lahore High Court on 4th April, 1973 vide Writ Petition No. 794‑S‑73. On the establishment of Punjab Administrative Tribunal, the writ petition was formally declared to have been abated on 23rd September, 1974. The appellant before the formal abatement of the writ petition: preferred appeal before the Tribunal on 10th August, 1974. It is pointed out that under M.L.R. 114 only those civil servants who were inefficient, corrupt or having reputation of being corrupt or were living beyond their known means of income or were involved in sub versive activities were intended to be retired. The appellant claimed that his case was not covered by any clause of M.L.R. 114. The Tribunal on 9th December, 1974 framed the following issues : (1) Whether this Tribunal can entertain this appeal only to consider the question whether the retirement of the appellant is a result of mala fide action and has been directed coram non judice? (OD) (2) Whether the retirement of the appellant is mala fide ? (Onus on appellant) (3) Whether the retirement of the appellant was made by an Incom petent authority ? (onus on appellant). (4) Whether the provisions of M.L.R. 114 were not applied properly? (onus on appellant). (5) Relief. This Tribunal after going through the entire case vide its judgment, dated 30th April, 1978 came to the conclusion that the appellant has failed to make out any case of mala fide against the competent authority and decided issues Nos. 2 and 4 against the appellant. With regard to issue No. 1, it was held that the appellant produced nothing to establish the same. 1n this manner the appeal of the appellant stood rejected. The appellant filed appeal against the said judgment of the Tribunal, dated 30th April, 1978 before the Supreme Court of Pakistan. The Supreme Court of Pakistan admitted the appeal to regular bearing and ultimately decided the same on 20th March, 1983. The concluding paragraph of the judgment of their Lordships of the Supreme Court of Pakistan is as under : "We find force in this submission and agree with the learned counsel that the Tribunal has not considered this question in the light of the evidence and material before it. It seems to us that the Tribunal proceeded on the assumption that an appeal from an order passed under Martial Law Regulation No. 1.14 lay within the narrow scope of merely examining the question of mala fides and coram non judice. However, this Court has, in the case of Muhammad Israr Nabi v. Province of Punjab (P L D 1980 S C 292) which was also a case of a compulsorily retired civil servant, under M.L.R. 114 held as under : "We consider that although the petitioner had failed to establish mala fides on the part of the President of Pakistan, in whose name the order of the petitioner's premature retirement was passed under M.L.R. 114, yet the Tribunal sitting as a Court of Appeal on the administrative side, had the power, and, in fact, an obligation to examine the petitioner's case on merits and to come to its own con clusion on the question whether the petitioner was rightly retired or not. We find that the solitary sentence in the last paragraph of the order of the Tribunal to the effect that since nothing was produced in support of the other issue, the same is also decided against the appellant", hardly satisfies this requirement. There is no indica tion that the Tribunal had examined the entire service record of the petitioner as well as the correctness of the allegations which had been made against the petitioner for the purpose of his compulsory retirement. It is clear that the petitioner has been deprived of a valuable right by the failure of the Tribunal to examine this matter in proper detail." This decision fully covers the present case and accordingly we allow this appeal, set aside the order of the Tribunal and remit the case to the Tribunal for a fresh decision on merits in the light of the appellant's service record and other relevant material." 3. We in obedience to the verdict of the Supreme Court of Pakistan, have entertained this appeal as fresh and have perused the entire service record of the appellant alongwith the documents produced by the res pondent in this case, to find that the action taken against him by the Governor, was justified and have also taken full note of the evidence so produced by the appellant in support of his case, which was recorded by the Tribunal during the course of bearing of his previous appeal which is once again before us. 4. Learned counsel for the appellant has submitted that the appel lant has unblemished record of service since he joined the Indian Army in India Medical Service in September, 1941 and has. got commendation certificates in his favour from all concerned under whom he served in. eluding the mention of his name in despatches and his performance in the Second World War. It has been submitted that the service record of a civil servant is an index of his personality as well as his performance and anything beyond that to be relied upon for his premature retirement from service, would be an act highly arbitrary in nature, unless and until the same is supported by evidence with which he should have been confronted and given a chance to defend himself. He has further supplemented this argument on the outstanding fact in his favour fully established on the record with regard to the conferment of selection grade on the appellant by the respondent only 3 days earlier to his retirement. Learned counsel for the appellant has argued that conferment of selection grade is as good as promotion of a civil servant, as this grade is only granted when the Departmental Promotion/Selection Board finds that the record of the said civil servant is unblemished and there is nothing on the record to show that he was a subject of complaints or inquiries. 5. With regard to the stand of the respondent that there were number of summaries against the appellant prepared by the Secretary Health for favour of action, it has been submitted that there is sufficient material on the record to show that there was malice on the part of the said Secretary, Health, as the appellant had been agitating about the appointment of the said Secretary, Health to the higher authorities and this fact has caused annoyance to the said Officer. The appellant also expressed his apprehension that he was likely to be victimised by the said Secretary, Health in view of the above‑mentioned dispute. Learned counsel for the appellant has also referred to an incident concerning one Dr. Ghulam Muhammad, who was caught by the Police on the charge of corruption and later on taken to a mosque, where he confessed his guilt before the public and promised that he would return the tainted money and would behave well in future. With this background, the learned counsel for the appellant has submitted that the appellant proceeded against the said Dr. Ghulam Muhammad despite interference of Mr. Tahir Ahmad, M.P.A. who later on became his enemy and by getting support from Mr. Khalid Malik, and other M.P.A. misled the Governor of the relevant period and thus secured his permature retirement. 6. With regard to number of complaints placed on the record by the respondents against the appellant from public it was argued that the same were prompted complaints at the instance of those who supported the said Dr. Ghulam Muhammad and in this manner tried to tarnish the immage of the appellant without any substantial proof in support of such allegations. He has challenged the respondent to show anywhere on the record that any inquiry was conducted anywhere in support of the said allegations and has thus declared this sort of material as nothing but a factory of lies and invocations in order to take a revenge against the appellant who performed his duties without fear and favour. A reference has been made, which has been placed on the record, issued by the then Governor Dr. Ghulam Mustafa Khar, that the retirement of the appel lant was made at the instance of Dr. Tahir Ahmad, M.P.A. and Dr. Kbalid Malik, M.P.A. He has also read the statement of Mr. Tahir Ahmad, who appeared as witness before the Tribunal during the hearing of the earlier appeal and had admitted in cross‑examination that his earlier impression about the reputation of the appellant was later on found incorrect. According to the learned counsel for the appellant, the very persons on whose recommendations the premature retirement of the appellant was taken in hand, himself confessed that his earlier impression was erroneous. 7. On the other hand learned District Attorney has relied on a number of summaries formulated against the appellant from time to time to show that he was a person who approached the higher authorities with imaginary complaints against his superiors and was thus a civil servant, who did not care for discipline of service although he was holding a high post at that particular time. He has also taken us through a number of documents in the form of applications as well as a number of cases, to show that there were large number of complaints against the appellant and has submitted that unless and until there is some sub stance in the same, such like complaints would never pour against a civil servant. According to him, smoke is always an outcome of fire and when there is no fire there can be no smoke. Learned District Attorney has fur ther argued on the legal plane that M.L.R. 114 indicates that if a person had a reputation of being corrupt, then it will be a sufficient ground for his premature retirement. According to the learned District Attorney, it was not necessary under this M.L.R. to prove definite act of corruption and if there was sufficient material available on the record to show that the officer has reputation of being corrupt in service and the competent authority was fully satisfied that it was so, his action cannot be challenged. 8. We have given our anxious thought to the arguments so advanced by the parties and find that the scope of M.L.R. 114 for the purpose of retiring a civil servant from service before he reaches the age of super annuation has been enumerated as under : 3. (1) Where in the opinion of the competent authority, a person in Government service or a person in corporation service is ; (a) corrupt or has a reputation of being corrupt, or has assumed a style of living beyond his known sources of income ; or (b) guilty of misconduct ; or (c) inefficient or has for any reason ceased to be efficient ; or (d) engaged or is reasonably suspected of being engaged in sub versive activities ; the competent authority, may notwithstanding anything contained in the terms and conditions of service of such person, by order in the official Gazette, dismiss or remove such person from service, or reduce him in rank, or direct that he shall prematurely retire from service. 9. In the present case the appellant has been retired under clause (a) above that he had the reputation of being corrupt. The appellant joined the Indian Army in the Indian Army Medical Service on 6th Sep tember, 1941 and after serving the Army uptil 1946, he joined the civil service of Punjab in P.C.M. cadre on 3rd June, 1947. In this manner, at the time of retirement he had completed 31 years of his service. While looking into the Army record of service of the appellant, we find that he earned a number of certificates from his officers in the rank of Lt.‑Colonel, Brigadiers and Military Secretary to Governor photostat copies of which have been placed on record as Annexures D, E, F, G, H, I, J, K, L, which go to show that he was considered to be very efficient officer and he enjoyed high integrity and even once he was mentioned in despatches for his act of honesty and performance. Since he joined Punjab service from 1947 onward, we have carefully perused the column regarding integrity and find that he was always considered honest and entry of 1952 declared him very honest. Similarly entries of 1955, 1956 rated him as extremely honest and in the year 1960, he was found in corruptible. Similarly entries of 1961, 1962, 1963, 1964, 1966, 1968 and 1969, his honesty has been graded as good and very good. While taking into consideration the column of remarks, we do not find any adverse entry recorded against him right uptil the year 1963 and has been praised by his officers in laudible terms. It was in 1955, it was said that he is an efficient, intelligent, bard working, conscientious doctor. He is very popular among the Army and Civilian Officers. He is very sympathetic towards his patients. He is of excellent moral character. However in 1964, the Reporting Officer observed that he was a very energetic and enthusiastic person. A very good organizer and administrator. Tries to maintain good relations all round. Performance and output quite satisfactory however there is note in red ink by the countersigning authority to the effect that he was debarred from being an Examiner in future in any examination vide confidential Memo. No. S.O. VII‑9‑2/65, dated 9th October, 1965. In 1966, he was shown an officer of average bearing. Extremely resourceful. Right uptil 1969, we do not find anything controversial about his integrity, honesty or any reference to his reputation of being corrupt. It seems that year 1971 was the year when he got involved into a controversy over his promotion with the then Secretary, Health, Dr. Nazir Ahmad and there is a large number of correspondence to this effect, which went to and for between him and the superiors. This incurred the displeasure of the superiors and we find entry in the year 1971 against him to the following effect : "His work and conduct was not satisfactory. He indulged in an authorised transfers of Medical Officers. The transfers of staff were very frequent and not on merit only. The general feeling among health staff is that transfers and postings are done for some consideration or the other. Corrupt subordinates are often patronized. Adopts a defiant attitude in face of orders from the Government or the Directorate." We also find from the record that the appellant instituted a suit against Dr. Nazir Ahmad and Dr. Ghulam Bheek for declaration in 1970, on the ground that they were illegally appointed as Joint Secretary and Secretary, respectively in the Province of the Punjab and the appellant being one of the senior most members of Health Service should have been considered for any further promotion. The appellant had also moved an application for temporary injunction in that suit. We have also taken note to that effect that the Provincial Government in reply to the .appli cation of the appellant for temporary injunction did not raise the question either of his incompetence or inefficiency or any other disability because of his' conduct. This case was contested by Government strictly on technical grounds. It seems that the appellant became persona non grata with his superiors particularly the Secretary, Health who after the said controversy spoiled his A.C,R. by making adverse entry and also holding his activities due to ulterior motives. The appellant had hotly contested the factum of this entry earlier to his retirement, as according to him if this entry would have been present in his dossier as shown in the A.C.R., thus it would not have been possible for the Promotion Board to re commend him for grant of selection grade three days earlier to the said retirement. We have verified the strength of this contention keeping in view the conferment of selection grade by the Promotion Board and are of the confirmed view that the same would not have been done in face of existence of such like adverse entries against him at that time. The record of the conferment of selection grade in no way mentions of any such entry against him or complaint of any nature, as the selection grade was positively conferred upon him, a fact which is borne out from the record and we have also no reason to disagree with the learned counsel for the appellant that the selection grade is always a promotion and the same is granted to a civil servant when it is found that he has got ex cellent record of service and there is no adverse about his integrity and honesty. Therefore, in view of these circumstances the possibility of placing of this entry in his A.C.R. after the said retirement, cannot be excluded. In this manner we are fully satisfied that there was no data or record with the Government to retire the appellant in this premature manner on the strength of A.C.R. We have also taken into account the arguments of the learned District Attorney that Mr. Tahir Ahmad, Ex .M.P.A. and Mr. Khalid, Ex‑M.P.A. were motivated by large number of complaints against the appellant which came to their notice and they approached the Governor at the relevant time to retire the appellant as a person having persistent reputation of corruption. To find out whether the complaints which suddenly came into existence in the year 1971, against the appellant were motivated ones or were genuine in nature, we have looked into the incident of Dr. Ghulam Muhammad and find that the same is on the record that the appellant did proceed against the said doctor who was caught by the Police and thus forced to confess his guilt before a congregation in mosque. There is ample evidence in the form of documents that Mr. Tahir Ahmad, Ex.‑MY.A. was fully interested to save the said Dr. Ghulam Muhammad, but could not succeed to achieve his objects as the appellant proceeded against the said Dr. Ghulam Muhammad by prosecuting as well as taking departmental action against him. 10. We have carefully examined voluminous record produced by the respondent on the request of the appellant to see whether any inquiry was conducted in the case of such like complaints against the appellant or it was only on the strength of certain applications that the two ex- M.P.As. were actuated to approach the Governor and to tell him that the appellant should be retired as he was enjoying persistent reputation of corruption, we can say with certitude that nothing of the sort has been found out against him. It is a matter of common knowledge that the trait of corruption in a civil servant does not suddenly errupt but always lingers on somewhere in the past and comes into limelight at certain stage of his service. When we find that the appellant has been rated not only honest but extremely honest and incorruptible by his superiors in the earlier days of his service as well as in the later part of the same, it would be preposterous to accept that he became corrupt or started enjoying re putation of being corrupt in the year 1971 only, when unfortunately there was bad blood going on between him and his superiors, for his audacity to point out to the Governor that their promotions were not according to rules and qualifications. In this manner, we may hold that the appel lant was a person who did not strictly observe the etiquette of service by submitting to his fate and was bold enough to come out with his grievance against his seniors before the Government but in no manner it can be held that this would be an act of corruption or would bring the appellant into the category of civil servant who was enjoying the reputa tion of being corrupt. We also cannot ignore the changed stand of Mr. Tahir Ahmad, M.P.A. who while appearing on oath before this Tribunal frankly conceded in the cross‑examination that actually what motivated him to approach the Governor of the relevant time, was not correct as later on, he came to know that the appellant did not enjoy bad reputation. We have also looked into the bio‑data of the appellant be enjoyed versatile experience in his profession and contributed im mensely towards this profession, a fact which is fully confirmed by the certificates, which he earned from time to time from the Army as well as civil officers, under whom he had the opportunity to work. These certificates are appended on the record and we have examined the same. We have also carefully looked into the controversy of Dr. Ghulam Muhammad and find that there were a large number of persons on the side of the appellant holding him honest and efficient including a large number of M.P.As. vide Annexures A‑1, A‑2, A‑3, A‑4, A‑5, A‑6, A‑7, B‑1, B‑2, B‑3, B‑4, B‑5, B‑6, B‑7, B‑8, B‑9, B‑10, as well as C, D, E, F, G, H, I. J & K. If the criteria should be oral or written complaints against a civil servant then these documents fully prove that a large number of elected Representatives of the country to the Provincial Assembly(s) were on the side of the appellant who declared him honest, efficient and hard working as compared to the few complaints of individuals whom we have no hesitation to declare that they were motivated persons in view of the in cident of Dr. Ghulam Muhammad. We are fortified in our this observa tion by the fact that all what was stated about ' the appellants adversely was only said after the incident of said Dr. Ghulam Muhammad and nothing earlier. Similarly the only bad report of 1971, also came into existence when the appellant had annoyed his superiors particularly Dr. Nazir Ahmad, who was then Secretary, Health by filing representations against him and taking recourse to achieve his end by filing a civil suit and asking a temporary injunction against him. If there would have been complaints when the atmosphere was not clouded, we might have given some credence vis‑a‑vis the opinion of the public representative Mr. Tahir Ahmad, Ex‑M.P.A. but when we find that said Tahir Ahmad himself confessed with all what was done by him, was under a wrong impression, we are of the considered opinion that the retirement of the appellant on his recommendation was hardly an act to be justified. 11. We have also taken care of the arguments of the learned counsel for the appellant that the Governor was not in possession of the material i.e. service record of the appellants and other documentary evidence against him before he came to the conclusion to retire him from service. A certificate of the then Governor on the record fully upholds this con tention. He could easily say in the said certificate that he had not only retired the appellant on the verbal complaints of two Ex‑M.P.As. but had also access to the entire record of service and then came to an in dependent conclusion that the appellant was a person who was enjoying a reputation of being corrupt. If this would have been circumstance, we would have upheld the action of the Governor as emanated from inde pendent assessment of the appellant's case. , 12. In view of the above and in obedience to the direction of Supreme Court of Pakistan, we have examined the case in the light of the appellant's service record and other relevant material and find that there was no sufficient reason for the then Governor to retire him on the simple recommendation of two Ex‑M.P.As. when the entire service record of the appellant was unblemished and the complaints so gathered against him, were motivated. 13. The result is we accept the appeal, set aside the impugned order, dated 18th March, 1972 and direct that the appellant would be considered to be in service as if he had never been out of service with all consequen tial benefits attached to the same. However, there will be no order as to costs. M.I. Appeal accepted.