1981 PLP (C (PLC(CS))

N. A. CHOUDHURY (MEMBER).‑The petitioner, Mr. M. R. Shamim, joined the Police Service of Pakistan in March 1952. He was serving as District Officer, Frontier Constabulary, Tank, N. W. F. P., when he was placed under suspension by the Government of Pakistan, under M. L. R.

58. He was eventually dismissed from service on 12‑5‑

70. He filed an appeal before the Service Tribunal under section 4 of the Service Tribunals Act. 1973, on 20‑8‑1974. The same was dismissed by the Tribunal on 20‑11‑77, on the Majority view that the Tribunal had no jurisdiction in the matter. The petitioner filed an appeal before the Honourable Supreme Court, which had been remanded to the Service Tribunal vide Civil Petition No. 47 of 1978, along with other identical cases. Their Lordships of the Supreme Court have decided that the Service Tribunal has full jurisdiction under the law to adjudicate this case on full facts and merits. In fact, the Tribunal has a liability to call for all the necessary record which has been taken into account while awarding the punishment to the Officer, and examine the same for the disposal of this appeal.. Since the appellant was not pursuing his remedy in any Court of law at the time of establishment of the Service Tribunal, i.e. 22‑2‑74, this appeal falls into the category of `unabated' cases. The appeal having been‑a filed within six months of the establishment of the Tribunal, on 20‑8‑74, is, therefore, in time. The appeal was accordingly heard on 16‑2‑81 and 18‑2‑

81. In the first instance, along with other ‑identical cases, the learned counsel for the appel lant was permitted to argue the case on points of law and procedure, The learned counsel Mr. Shaukat Ali, adopted all the important arguments produced by Mr. Shahzad Jahangir, Advocate, in an identical case of Mr. W. A. Shaikh. These arguments have been reproduced in our judgment in W. A. Shaikh v. Establishment Division Appeal No. 559(L) of 1974, along with our examination on the points raised in those argu ments. It is not considered necessary to repeat the substance of those arguments and the view held by the Tribunal in respect of the same. Mr. Shaukat Ali, learned counsel for the appellant, however, raised another point of law that under M. L. R. 58, the powers flow to the President and there is no provision for delegation of these powers. In other words, the President was himself the persona designata in this case, Notice of action under para. 3(2) of M. L. R. 58 giving reasons for action had, therefore, to be issued by the President. This notice has been issued by a ‑Deputy Secretary for Establishment Secretary, and not by the President. It was the case of the learned counsel that in the absence of delegation of powers, it was not the Federal Government which could initiate action to give reasons for action against the person, but the President. Since the Estab lishment Secretary on whose behalf this notice has‑been issued, did not enjoy delegated powers under M. L. R. 58, the initial action started against the appellant suffers from a basic point of jurisdiction and competence. Con sequently, the edifice constructed on that initial action, giving reasons for the action, automatically becomes vitiated and void. The punishment awarded as a result of this action has, therefore, no force in the eye of law, even if this law be taken as only the provisions of M. L. R. The learned counsel for the appellant also explained another important point of law, which is applicable only in the case of this particular petitioner. He made a reference to a letter dated 5‑2‑70, issued from the H. Q. Martial Law Administrator, Zone `A' Lahore, to the H. Q., C. M. L. A. President's Secretariat, President's House, Rawalpindi, and quoted, in parti cular, paras. 1 and 3, which runs as follows: ‑ (1) Mr. M. H. Shamim P. S. P. has been exonerated of all the ten charges by Tribunal No. 3 for reasons not known to this head quarter. (3) if during the hearing, the accused Officer had created any doubt in the minds of the members of the Tribunal as to the veracity of the charges, it would have been appropriate and legal for the Tribunal to have sought further clarification from this headquarter as is being done by other Tribunals. On the basis of this letter, the learned counsel for the appellant force fully made the point that the officer was exonerated of all the charges by the Military Tribunal. In spite of it, he was recommended. for action by the Martial Law Administrator, Zone FA', Lahore, as a matter of Policy. He was accordingly dismissed without any justification. He also argued that from para. 3, the inference is obvious that the investigating Military Tribunal which derived its identity from and got functions and powers through the M. L. R. 58, was subject to guidance from the Martial Law Administrator, Zone 'A', in the matter of investigation of the charges against the concerned Officer, and in fact, was subject to interference. According to the learned counsel, this interference becomes prominent in the case of the appellant because in spite of exoneration made by the Military Tribunal, the punishment has been recommended and ordered. It was the case of the learned counsel that in view of the interference alone, the order of dismissal should be treated as void and vitiated. The view of the defence counsel, i.e. the learned Deputy Attorney -General, in all the arguments given in the case of Mr. W. A. Sheikh, has already been recorded in connection, with that judgment, and no repetition is considered necessary. A question was, however, raised by the defence counsel that the status of the investigating Military Tribunal was a recommendatory one, and as such it was not binding on the punishing authority to accept the recommendations. After hearing arguments of both the parties, and after making a careful assessment of all the arguments pronounced by them, we come to the conclusion that the legal and procedural irregularities committed in the case of Mr. W. A. Shaikh, have been more conspicuously repeated in the case of Mr. M. H. Shamim. It is not possible for us to agree with the learned defence counsel's arguments that the status of the Investigating Tribunal being recommendatory, it was not binding on the President to accept the recommendations. We would have accepted the position if even one of the charges had been established, and the recommendations regarding quantum of punishment had been discarded by the President In this case, since no charge had been established and no recommendation of punishment had been made by the investigating agency, there was no justification whatsoever to award they punishment without further investigating and establishing any of the charges, The net result as it appears is that the officer stands punished without any charge against him, having been established at any level. The vague inference taken by the Martial Law Administrator in their recommendations that the officer enjoyed certain kind of reputation, does not justify alone the extreme punishment, particularly when the Investigating Military Tribunal had already considered the element of adverse reputation and exonerated him of all the charges levelled against him. The punishment is, therefore, without any force of law and justification. We also agree with the learned counsel for the appellant that there was no delegation of powers available under M. L. R. 58 and notice of action should have been issued by the President or an Officer Authorised specifically by him. The notice having been issued on behalf of the Federal Government is not, strictly speaking, a legal notice within the framework of they provisions of M. L. R.

58. In view of the above circumstances and the detailed reasons explained by us in the judgment of the W. A. Shaikh Appeal No. 559 (L.) 1974, wet accept the appeal of Mr. M. H. Shamim, and direct that the officer bet re‑instated into service with effect from the date he was dismissed, as if no action under M. L. R. 58 had been taken against him. He would be entitled to pay, allowances and other benefits consequential upon this re‑instatement including restoration of seniority and consideration for promotion, if an, available under the Rules. Appeal accepted.