1995 PLP 1593 (SCMR)

(Second Amendment) Ordinance, 1993. (3) Ordinance XXVI/94 The Pakistan Broadcasting Corporation (Amendment) Ordinance, 1994. (4) Ordinance LVI/94 The Pakistan Broadcasting Corporation (Second Amendment) Ordinance, 1994. (5) Ordinance XCI/94 The Pakistan Broadcasting Corporation (Third Amendment) Ordinance, 1994. were promulgated 24-8-1993, 15‑12‑1993, 5‑4‑1994, 4‑8‑1994 and 15‑11‑1994 respectively. He has further stated that the first four Ordinances were laid before the National Assembly on 11‑11‑1993, 22‑12‑1993, 20‑4‑1994 and 22‑8‑1994 while the last Ordinance was laid before the Senate on 26‑12‑1994. The Standing Committee submitted its report in respect of Ordinance XVII/93 and Ordinance XLVII/93 on 4‑9‑1994 but on the same date they were withdrawn. The Standing Committee submitted its report in respect of Ordnance XXVI/94‑ on 15‑8‑1994 and according to the Deputy Attorney General it was passed by the National Assembly on 22‑8‑1994. No further information is available about it. A bill after it is passed by the House in which it originated has to be transmitted to the other House and if the Bill is passed without amendment it is presented to the President for assent (Article 70 (1).

9. Beyond the aforestated contention and the information no further arguments were addressed. In these circumstances in our view as the appeal can effectively be decided on other points we need not dilate further on this question. It may however be clarified that in view of the definition of Service of Pakistan in the Constitution and the term `civil servant` in the Service Tribunals Act, 1973, for the purposes of invoking the jurisdiction of the Federal Service Tribunal, respondent No.1 is a civil servant. In Hadi Bux v. Government of Sindh and others (PLD 1994 SC 532) while considering the definition and meaning of term "Service of Pakistan" in Article 260 of the Constitution and term "civil servant" as used in section 2 (a) of the Sindh Service Tribunals Act, 1973, which is identical to the definition provided by section 2 (b) of the Civil Servants Act, 1973 and adopted by section 2 (a) of the Service Tribunals Act 1973, following observation was made: "According to the above definition, a person who is or has been a member of the Civil Service of the Province or holds or has held a civil post in connection with the affairs of the Province and for the purpose of any proceeding under the Act includes a person who is or has been dismissed, discharged, removed or retired from such service or post as a consequence of the order of the departmental authority but it does not include the persons mentioned in sub‑clauses (i) to (iii)." , After referring to Begum Tahira Fazal Ahmed v. Home Secretary, Government of West Pakistan (PLD 1966 Lahore 446) it was observed:‑‑ "It cannot be denied that the appellant was holding a civil post and as the meaning of the word `Government' includes legislative functions, the appellant was holding civil post in connection with the affairs of the Province.

10. The legal position of the employees of the Corporation is not different. The Corporation ‑as established by the Pakistan Broadcasting Corporation Act, 1973 (Act XXXII of 1973). Section 4 constitutes a Board of Directors consisting of Chairman of the Board and not more than seven other Directors, all of whom are to be appointed by the Federal Government and hold office during the pleasure of the Government. Section 10 (1) enumerates the functions of the Corporation while subsection (2) provides that "in the discharge of its functions the Corporation shall be guided on questions of policy by the instructions, if any, given to it from time to time by the Federal Government which shall be the sole Judge as to whether a question is a question of policy." The Federal Government has full control of Corporation's finances and it can be wound up only by an order of the Federal Government. The Corporation is under Government control which appoints the Chairman and the Directors. No share has been offered to the public nor any director represents the listeners or the public. The Government has monopoly over broadcasting and the listeners have no right to make their choice. Such a Government controlled and regimented Corporation playing an important role in the media of information is like a department of the Government. The Ministry of Information and Broadcasting is an important Ministry playing effective role in connection with the affairs of the, Federation. Therefore respondent No.1 holding a civil post will be covered by the definition of "civil servant" as defined in section 2 (a) of the Service Tribunals Act, 1973. Thus the Federal Service Tribunal had the jurisdiction to entertain and decide the t appeal. We may however observe that although respondent No.1 is a civil servant for purposes of invoking the jurisdiction of the Tribunal, in view of section 12 (1) of the Act the Chairman was competent to pass the impugned order of retirement.

11. Respondent No.1 has challenged the order of compulsory retirement on the ground of mala fides. The Tribunal upholding the plea of respondent No.1. that the order of retirement was passed mala fide observed:‑‑ "it cannot be denied that the appellant was not liked by the high‑ups in the Corporation and he had become an undesirable person for them and it seems that the order of his compulsory retirement from service was made in order to get rid of him. Of course, his allegation of mala fides were examined by the High Court and it was held that they could be directed only against Mr. Q.A. Saeed, ex‑Director‑General. In any case, the order of retirement of the appellant from service was not made in public interest, but it was an action in reaction to the situation created by the appellant's association in the inquiry conducted by the Martial Law Inquiry Commission."

12. The learned counsel contended that the Tribunal was not justified in accepting the plea of mala fides alleged by respondent No.1. It was further contended that the appellants cross‑objection praying for setting aside the finding of mala fide recorded in the judgment of the High Court having been allowed, the Tribunal could not reopen it in appeal filed by respondent No.1. The finding of mala fides was in respect of order of transfer which was challenged in the petition and was subject‑matter of C.A.No.775/84 in which cross‑objection was filed by the appellant. This Court set aside the judgment of the High Court in Writ Petition No.59‑S of 1982 and I.C.A. No.192/1979 as the High Court did not have jurisdiction in the matter being ousted under Article 212 of the Constitution. The cross‑objection was also allowed for this reason. However in Review petition filed by respondent No. l this Court clarified while dismissing it as follows:‑‑ "No case for review is made' out as the fact remains that mala fides attributed were against a particular officer who had not passed the impugned order." In the petition filed by respondent No.1 he had enumerated the instances of mala fides against the appellant which the Tribunal has accepted as quoted above. We do not find any valid reason to interfere with this finding of fact.

13. Respondent No.1 further contended that as the provisions providing for compulsory retirement violate Islamic Injunctions and the principles of natural justice, the order of compulsory retirement is, illegal and void. Regulation 3 of the Pakistan Broadcasting Corporation Employees (Retirement from Service) Regulations, 1980 reads as follows:‑‑ "

3. Retirement.‑‑(1) An employee shall retire from service‑‑ (i) on such date after he has completed twenty‑five years of service qualifying for pension, gratuity, or other retirement benefits as the competent authority may, in the public interest, direct; or (ii) where no direction is given under clause (1), on the completion of the sixtieth year of his age. (2) An employee may, at any time after he has completed twenty‑five years of service qualifying for pension, gratuity or other retirement benefits, apply for retirement from service by giving not less than three months' notice of his intention to retire:'

14. Respondent No.1 has relied on Pakistan and others v. Public‑at‑Large and others (PLD 1987 SC 304) (Shariat Appellate Bench), in which the provisions of section 13, clauses (1) and (2) of Civil Servants Act, 1973 and similar provisions in other Provincial Civil Servants Acts providing for compulsory retirement on completion of 25 years of service were held to be repugnant to the injunctions of Islam in so for as they do not provide for due notice for action proposed to be taken and opportunity of showing cause against such action. This judgment had allowed the competent authorities a period of six months from 11‑3‑1987 to amend the law observing that the amendment should be made to bring them in conformity with the Injunctions of Islam failing which they shall cease to have legal effect. The question of compulsory retirement with reference to the Injunctions of Islam was considered by this Court and following observation was made by Muhammad Afzal Zullah, C1. :‑‑ "The retirement is admittedly premature. Thus, it is deprivation of right to continue up to age of sixty which the other civil servants even placed in the same categories, not to talk of the civil servant in general, do not suffer. Right to work in this context is very valuable, which is denied. This denial is more significant when it visualised that in both categories nature, experience and those placed m higher strata are normally hit by these provisions. It becomes more harsh when looked at from the angle that at the relevant stage of one's life and service, he needs the job to show his ultimate worth on the one hand and settle his affairs including family and children on the other. The application of this law also involved element of compulsion. The civil servant is forced to retire. Although no fault need be attributed and none is in 'fact attributed; however, the rules and practice relating thereto assume that it is not without fault or deficiency, Thus, it carried the stigma and disgrace in the public eye. This inference gets confirmed from the fact that the law itself is explicit in informing the enquirer, whosoever may be, that the retirement is in public interest. In other words, the continuance any further in the service of the affected officer is not in the public interest. This cannot be without a fault, deficiency etc. Thus, this type of retirement adversely affects his reputation also. And as the curtailment of service is summary and sudden, the injury to reputation is also pronounced and acts as severe blow to the self‑respect and dignity of man. Further, it is known in the community of the civil servants that the normal procedure for premature retirement is through an inquiry and opportunity of showing cause. When an officer is retired under the summary procedure and window of only pronouncement of "public interest" without a visible finding on facts in that behalf, it definitely operates as a penalty and thus is a penal action and the provision is penal. Otherwise too, if action is not taken under the impugned law the compulsory retirement under the normal law is a major penalty. Thus, looked at from whatever angle, the retirement under the impugned laws is a punishment, in a way denial of right to work as also right to earn and right to reputation. If that is so, it has to be seen when so construed whether they are repugnant to the Injunctions of the Qur'an and Sunnah. As has been already observed, there are some injunctions which are directly violated by these laws when they are applied without the safeguards of notice and opportunity of hearing. They would be stated expounded and interpreted presently. In addition there are mass of Injunction, the spirit and underlying principles whereof are also violated They are stated m the Schedule to this judgment. Nasim Hasan Shah, J. (as he then was) observed as follows:‑‑ "A close analysis of the judgment of the Federal Shariat Court shows that the impugned provisions have ultimately been declared to be repugnant to the Injunctions of Islam mainly because they did not provide for a prior opportunity of showing cause against the action of premature retirement" ................. "Thus, although it is not possible to contend that the Holy Qur'an ordains that it is necessary to issue show‑cause notice to a person before condemning him and, therefore, the competent authority, acting in good faith, can take the action of prematurely retiring a civil servant as provided for in subsections (i) and (ii) of section 13 of Civil Servants Act and the corresponding provisions of the Provincial Service Laws, but I feel that on the basis of the Verses of the Holy Qur'an cited above it can fairly be submitted that the principle emanating from the Versus, cited above, and the practice of the Almighty Allah which is evidenced there from entitles a civil servant to be informed of the reasons/grounds wherefor his retirement has been directed in "public interest". He should be told why the action has been taken against him and in the words of God Almighty be asked to read his own record which has been responsible for the fate that has befallen him. Furthermore, since an appeal is competent before the Service Tribunal against the action taken against him, the affected civil servant will be in a better position to challenge the order passed against him in case he feels that he has not been dealt with justly and fairly. I further feel that no difference exists in this respect between the cases of civil servant who are in the employ of the Government and employees of the Statutory Corporation like WAPDA, Cantonment Boards, Universities etc. I would, therefore, agree with the submissions on this point made by Mr. Khalil Ramday, Additional Advocate‑General (Punjab). Hence the employees of all such organization must also be intimated the reasons/grounds for their premature retirement which may be ordered under provisions similar to those under which the civil servants are liable to be retired. In this view of the matter an amendment will be necessary in the sense indicated above in the provisions impugned before us. Accordingly, a proviso may be added to the impugned provisions to the effect that in case where a direction is made to retire an employee from service under the aforesaid provisions the said persons will be intimated the grounds/reasons for the action taken against him will be duly specified in the order of his retirement." Shafiur Rahman, J. referring to section 13 of the Civil Servants Act observed as follows:‑‑ "Retirement in this section amounts to termination of service with all the earned benefits, without stigma, not in any case as a measure of punishment. Does it not in its turn necessarily imply that if the other conditions mentioned in the section are not satisfied, though public interest demands the retirement or termination of service of such an employee, or his removal no action can be taken against him. This makes it clear that justification for the action is not grounded so much in public interest as in holding of the post of Additional Secretary and above or on completing 25 years' of service which by itself is not a very relevant factor. If we had in the. past law justifying such an action on completion of twenty‑five years' qualifying service, when tenure was at pleasure, it does not justify its continuance when tenure is held not to lie at pleasure" ."There is no rational basis for carrying over a residual plenary power to retire or terminate employment any time after 25 years service or of those who by their efficient and‑ long service have come to hold that post of Additional Secretary and above. On the contrary, such a reservation of powers, cuts across the entire scheme of classification and control, protection and punishment. It has the appearance of being arbitrary and subjective and this is what is repugnant to the concept of a delegated power held in trust. Accountability in the exercise of power demands that it should be exercised objectively on material which is relevant and there should be afforded an opportunity at least of showing the correctness or incorrectness, relevance or irrelevance of the material. I would not for a moment 'suggest adoption of any particular provision but can refer to a provision to be found in the American Civil Service Act, 1946 in the following words:‑‑ No person in the classified civil service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a, reasonable time for personally answering the same in writing; and affidavits in support thereof; but no examination of witnesses nor any trial or hearing required except in the discretion of the officer making the removal; and copies of charges, notice of hearing, answer, reasons for removal, and of the order of removal shall be made part of the records of the proper department or office, as shall also the reasons for reduction in rank or compensation; and copies of the same shall be furnished to the person affected upon request, and the Civil Service Commission shall also, upon request, be furnished copies of the requires application of mind, verification of the same. Such a provision requires application of mind verification of the material and associating the individual concerned before striking him and the record so prepared will at once be available to the reviewing authorities, be it in the hierarchy or outside it, of the fairness of the action both in substance and in form. The provision as it stands at present permits not in words but in practice hurried action on extraneous or unverified material and a leisurely and usually half hearted defence in protracted litigation, throwing a voidable burden on Courts and Tribunal."

15. We have noticed certain observations in Farzand Ali's case (PLD 1970 SC 98), where compulsory retirement was held to be valid and it was observed:‑‑ "Compulsory retirement which carries with it no stigma and no vindictiveness against the person concerned is different from removal or dismissal. There may be a variety of reasons which May impel a Government to compulsorily retire an officer on his having completed the period of service qualifying him for pension and Government alone is the best judge of these reasons. It is not possible for the Courts to. sit on* judgment over the action of Government, if from materials disclosed it does not appear that the action taken was merely in colourable exercise of or in abuse of power. It must of necessity be left to the Government itself to decide as to whether retirement of the officer concerned was in public interest or not. The Government, it is said, has an absolute discretion to retire any of its officers at this stage."

16. Reliance was placed in the judgment on Begum Tabira Fazal Ahmed v. Home Secretary, Government of West Pakistan (PLD 1966 Lahore 446) and Zafar‑ul‑Ahsan v. The Republic of Pakistan (PLD 1960 SC (Pak.) 113). These observations were made in the light of previous judgment in which the provisions of Injunctions of Islam were not considered. In PLD 1987 SC 304 the controversy was approached from a completely new and different angle. The extracts from the judgment quoted above show a deviation from the observations made earlier. These observations have taken into consideration the provisions of Islamic Injunction , and the principles of natural justice.

17. The principles enunciated in the aforestated judgment were never applied in the past. Earlier the approach to such a question was based on the principle that tenure of service is the prerogative of the Government and a civil servant holds it at the pleasure of the Crown/President. The governance based on such concept is alien to Islamic Injunctions. Till the time Farzand Ali's case and earlier one were decided, Constitutional provisions like Articles 2A and 203‑D conferring jurisdiction on the Federal Shariat Court and also the jurisdiction conferred on this Court as an appellate Court were not available. The introduction of these provisions and the trend to consider the issues in the light of Injunctions of Islam is. a recent development in our jurisprudence. Such situations are not uncommon in judicial history. We are aware that in High Commissioners for India and Pakistan v. I.M. Lall (PLD 1948 PC 150), Federation of Pakistan v. Ali Ahmed Hussain Shah (PLD 1955 Federal Court 522) and State of Pakistan v. Mehrajuddin (PLD 1959 SC (Pak.) 147), it was held that the claim of the public servant for salary or its arrear is on the bounty of the State and he has no right to remuneration which can be enforced in a Civil Court for justice. This view ruled till a completely opposite view was taken in Pakistan v. AN. Issacs (PLD 1970 SC 415) and while dissenting with I.M. Lail and overruling Mehrajuddin it was observed as follows:-- "The position, therefore, that emerges from the examination of the decisions above referred to is that a civil servant has and always had the right to recover from the Crown salarly already accrued due to him, in spite of the fact that he held service during the pleasure, of the Crown. The theory of the bounty of the State never applied either in England or in pre‑Independence India as regards arrears of pay. For the last about three decades principles of Article 2 of the Constitution of 1962 have been employed and the extent of its operation has been stated by Kaikaus, J. in Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore (PLD 1966 SC 1) that:‑‑ " It embodies an important charter. It prevents the Government from taking any action in this country for which there is no legal sanction, and it at the same time debars the Legislature from creating an authority whose actions are not subject to law. The Legislature cannot, in the face of Article 2 enact that whatever action a particular person may take shall be immune from challenge. All persons exercising authority in Pakistan must do so only in accordance with law " Further, in Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457) Haleem, Actg. C.J. (as he then was) observed :‑‑ "A clear distinction appears from the above as to the contents of Article 2, in that it is not available for testing the vires of the law itself but only the actions under the law, which could be judicially reviewed as for their validity." While considering Article 2A in Kaneez Fatima v. Wali Muhammad (PLD 1993 SC 901), it was observed:‑‑. . "Articles 2 and 2A (1973 Constitution) fall in the same category. For interpretation of statutes and in cases where administrative decisions affecting individual's rights and liberties have been challenged, principles of Islamic Law and Injunctions of Islam have to be kept in view and applied. The superior Courts may not strike down such laws, rules and regulations on the touchstone of Article 2A or Article 227 (1), but the actions under law can be tested in cases where judicial review is permissible." In the background of these jurisprudential changes and thinking the observation of Shafiur Rehman, J. seems to be very relevant in respect of the approach, which had been prevalent in dealing with the civil servants. While tracing the historical background of section 4 of Civil Servants Act that "every civil servant shall hold office during the pleasure of the President" which has been derived from section 96‑B of Government of India Act, 1915, section 240 of Government of India Act, 1935, Article 180 of the Constitution of 1956, Article 176 of the Constitution of 1962 and Article 216 of the Interim Constitution of 1972, it was observed that :‑‑ "It can truly be said to our heritage of the colonial past." This colonial heritage which had cast dark shadow on our jurisprudence has now vanished and a new concept has developed which has introduced not only the principles of natural justice but also such principles of justice and equity which are enshrined in the Injunctions of Islam. As observed in Kaneez Fatima, the orders, acts and actions of Government functionaries, corporate authorities and statutory bodies can be examined on the basis of well recognised principles of Islamic common law and Injunctions of Islam. This Court in PLD 1987 SC 304 while exercising jurisdiction of the Shariat Appellate Bench considered the provision relating to compulsory retirement of civil servants. As quoted above, time was granted to amend it so as to allow the civil servant an opportunity to know about the grounds on which he was compulsorily retired. Compulsory retirement without any reasonable ground, cause or excuse, which at one time was treated not to carry stigma does not hold the field, particularly as it involves dignity of man as contained in Fundamental Right No.14 and violates the principles of natural justice. The extent of tenure of a civil servant up to the age 60 years is the law of the land but it is curtailed by giving arbitrary power to a competent authority to retire a civil servant/employee on completion of 25 years of service without giving any reasonable ground or informing him the grounds which had persuaded the competent authority to do so. One may say that it is a subjective satisfaction and conducive to the discipline of the civil servants but this alone may not be sufficient enough to allow deviation from the recognised principle of justice. More particularly in cases of civil servants who do not enjoy Constitutional protection as before. In these circumstances and developments which have happened in the last two decades, the exercise of such arbitrary power which is always considered to be against the norms of justice will not help in establishing a disciplined service. Therefore any order passed compulsorily retiring a civil servant without giving due notice of the action proposed to be taken and opportunity of showing cause against such action shall be deemed to be repugnant to the Injunctions of Islam and in view of the judgment referred above, it cannot be justified. Law relating to such provisions was allowed to be amended by 11‑3‑1987. The consequence of not complying with the judgment would be that such law would cease to have legal effect. The contention that the judgment relates to Civil Servants Act and, therefore, it cannot apply to the rules and regulations for the Corporation is misconceived. The regulations of a Corporation relating to compulsory retirement which are similar to section 13 of Civil Servants Act could also attract the same principle and will be governed by this judgment. In PLD 1987 SC 304 at page 358, Nasim Hasan Shah, J. (as he then was) observed that "there exists no difference in this respect between cases of civil servants who are in the employment of the Government and employees of the statutory Corporations like WAPDA, Cantonment Board and Universities etc." The Pakistan Broadcasting Corporation falls within this category and is covered by the observations referred above. It is an admitted position that Regulation No.3 of Pakistan Broadcasting Corporation Employees (Retirement from Service) Regulations, 1980 which provides for compulsory retirement is in identical terms with section 13 of the Civil Servants Act. We, therefore, hold that any action taken or‑ order passed in pursuance of Regulation No.3 without giving any notice to the employee or without giving any opportunity of show cause against the proposed order of retirement, the action shall be treated as illegal, having no legal effect, We are of the opinion that the impugned order of compulsory retirement of respondent No.1 is void and of no legal effect. We, therefore, dismisses the appeal with costs. Respondent No.1 would have retired on reaching superannuation in the year 1985. He shall be entitled to all the admissible monetary benefits he would have been entitled to had he not remained out of the job in consequence of the impugned order. At the close of the hearing, respondent No.1 had orally requested that the appellant has not paid the dues in spite of the order of the Court. The appellant is directed to pay all the dues and benefits admissible to respondent No.1 under this judgment within a period of two months. M.B.A./C-160/S Order accordingly.