P L D 1980 Supreme Court 42 (PLP)

ANWARUL HAQ, C. J.-Petitioner Waqar Ali Sheikh entered service in the Superior Revenue Establishment of Indian State Railways on the 4th of October 1928, and rose to the rank of Vice-Chairman of the Railway Board. He was due to retire on the 30th September, 1966, but was granted extension in service for.. a period of two years ending on 30th September 1968. He proceeded on leave preparatory to retirement for one year from the 25th of September 1968, to the 24th of September 1969. During this period of leave he entered into a contract of service with a private firm with the permission of the Government. He was, however, recalled from leave under an order issued by the Acting President of Pakistan on the 23rd of September 1969, and granted extension in service for a period of one month. He reported for duty as Officer-on-Special duty on the afternoon of the 24th of September 1969. He then proceeded on extraordinary leave without pay, but his service was extended from time to time until he was placed under suspension on the 3rd of December 1969, under Martial Law Regulation No. 58. , A charge-sheet was then served upon him on the 7th of January 1970, to which he submitted a written reply, and also appeared before a Military Tribunal. Eventually he was dismissed from service with effect from the 17th of February 1970, under a notification issued on the 10th of March 1973. He made a representation to the President of Pakistan, but apparently no action was taken thereon. He then filed a writ petition in the Lahore High Court which abated on the establishment of a Service Tribunal under the Service Tribunals Act, 1973. Thereafter he filed an appeal before the Service Tribunal, which was, however, dismissed on the 20th of November 1977, on the majority view that the Tribunal had no jurisdiction in the matter, in view of the validation provisions contained in clause (4) of Article 270 of the Constitution. The petitioner seeks leave to appeal against this order of the Tribunal. Apart from adopting the submissions made on behalf of the appellant in P L D 1980 S C 22, as to the ab initio invalidity of .M. L. R. 58 promulgated by General Agha Muhammad Yahya Khan in 1969, as well as on the question of the competency of the appeal under section 4 of the Service Tribunals Act, 1977, the petitioner, who argued his case in person, has raised an additional point to the effect that he had, in fact, ceased to be a Government servant on the expiry of his leave preparatory to retirement and, therefore; was not amenable to action under M. L. R.

58. He contends that he had retired from service on the expiry of his leave preparatory to retirement on the 23rd of September 1969, as his retirement was to take effect on that date under clause (6) of Article 178 - of the 1962 Constitution as introduced by the Sixth Amendment of that Constitution, and, therefore, the extension of service granted to him with effect from the afternoon of the 24th of September 1969, was of no legal effect and could not bring him within the mischief of M. L. R.

58. He contends that the extension granted to him had not been solicited by him, and that, in fact, he had protested against it during the course of a personal interview with the then Acting President of Pakistan. He submits that the extension was given in a mala fide manner so as to take action against him under M. L. R. 58, specially when he had already been given permission by the Government to take up private employment during the period of his L. P. R. He further submits that the charges framed against him were frivolous and false, and that he had, in fact, put in meritorious service in the Pakistan Railways, and it was on account of his good performance that be rose to the rank of Vice-Chairman of the Pakistan Railway Board. On the basis of these facts and circumstances, the petitioner contends that, irrespective of the question of the validity of M. L. R. 58 and of the actions taken thereunder, and of the scope of the appeal before the Service Tribunal, his was a case which could not at all be brought under the purview of the Regulation, and, therefore, the Court ought to declare that the order of dismissal passed against him is a nullity in the eye of law. Mr. Irshad Hasan Khan, learned Deputy Attorney-General for Pakistan, was requested by us to obtain the relevant file from the Ministry concerned, and to assist the Court in regard to the actual facts of the case. The learned Deputy Attorney-General has shown us the relevant file dealing with the grant of extension to the petitioner on the expiry of his leave preparatory to retirement. From the minutes recorded in this file (bearing No. ADMN 69AP/9 of 1969), it appears that the leave granted to Mr. W. A. Sheikh preparatory to retirement was to expire on the 24th of September 1969. The proposal to grant him extension and appoint him as an Officer-on-Special Duty in the Ministry of Communication (Railway Wing) was initiated by the official concerned on the 22nd of September 1979, and approved by the Acting President on the 23rd of September 1969. .In the relevant notes, it is stated that the leave preparatory to retirement was to expire on the 24th of September 1969, (A. N.). It also appears from the notes that the petitioner was not happy with the grant of extension, which he certainly had not solicited, but he did join as O. S. D. on the afternoon of the 24th of September 1969, and then requested for the grant of extraordinary leave. Thereafter his service was extended from time to time until he was suspended from service on the 3rd of September 1969, for being dealt with under M. L. R.

58. On the basis of this statement of facts appearing in the departmental file the learned Deputy Attorney-General contends that this is a case where the petitioner was recalled before his retirement had actually taken effect, and that there was no legal or constitutional bar in the way of the Government granting an extension to the petitioner even beyond the age of super-annuation contemplated under clause (5) of Article 178 of the 1962 Constitution. It appears to the learned Deputy Attorney-General that this is, therefore, not a case in which this Court can straight away hold that the petitioner had ceased to be a Government servant when he was dealt with under the relevant Regulation; and that at best it would be a disputed question of fact which could not be investigated by this Court within the limited scope of the appeal provided under Article 212 of the Constitution on substantial questions, of law of public importance. Mr. Irshad Hasan Khan further submits that, in fact, an inquiry was already under way against the petitioner in July 1969, for causing loss to the public exchequer in the sum of Rs. 7.52 lacs in the matter of purchase of timber sleepers for the Pakistan Western Railways, and it was in this background that a decision was taken by the competent authority to recall the petitioner from the leave preparatory to retirement before the actual expiry of the leave and the retirement taking effect. He submits that whatever the protest made by the petitioner subsequently, the fact remains that he did report for duty as O. S. D. in the Ministry of Communications (Railway Wing) on the afternoon of the 24th of September 1969, and, therefore, the petitioner is now estopped from contending that he had ceased to be a Government servant within the meaning of M. L. R. 58, which makes it clear that an officer on leave preparatory to retirement continues to be in service. The learned Deputy Attorney General also relies upon fundamental Rule 56-D to the effect that a person under departmental inquiry can be continued in service beyond the age of superannuation. In reply to the submissions made by the learned Deputy Attorney-General the petitioner submits that, in fact, his retirement took effect on the mid-night of the 23rd of September 1969, and that the order of extension of service could not become operative until it was served on him on the 24th of September 1969, with the result that there was no continuity in service as he already stood retired before the order of extension was giver, to him. The petitioner maintains that the extension in service was mala fide, and its only object was to bring him within the mischief of M. L. R.

58. From the arguments and submissions made by the petitioner and the learned Deputy Attorney General, and on a perusal of the relevant file containing the minutes, leading to the grant of successive extensions in service to the petitioner on the expiry of his leave preparatory to retirement, it appears to us . that a disputed question of fact does, indeed, arise as to the date on which the petitioner's retirement was to take effect, namely, whether it was the 23rd of September 1969, or the afternoon of the 24th of September 1969 It is also a question for determination as to whether the petitioner voluntarily assumed duty as O. S. D. in the afternoon of the 24tb of September 1969, whether he was pressurised in some manner or the other to report for duty, little realising that the real object of the whole exercise was to bring him within the mischief of M. L. R.

58. We find that there is a difference of opinion between the two sides as to the date from which the petitioner's retirement was to take effect and whether extension was granted to him before or afte the retirement had taken effect. The question of mala fides also involves an inquiry into the relevant facts, including the pendency of' the inquiry mentioned by the learned Deputy Attorney General involving an alleged loss o an amount of Rs. 7.52 lacs in the matter of purchase of timber sleepers, apparently handled by the petitioner in his capacity as Vice-Chairman of the Railway Board. In the circumstances, the submissions made by the petitioner as to his liability to be dealt with under M. L. R. 58 cannot be regarded a being in the nature of only a question of law which could more appropriate be decided by this Court under Article 212 of the Constitution. We feel that acting under the said Article, we cannot undertake an examination of these disputed questions of fact, as by doing so we would be pre-empting the appellate jurisdiction which rightly vests in the Service Tribunal. As to the competence of the appeal before the Service Tribunal, we have already dealt with this matter at length in P L D 1980 S C 22 an have reached the conclusion that the appeal before the Tribunal was fully competent in spite of the validation provisions contained in clause (4) of Article 270 of the Constitution. The Tribunal was in error in thinking that it had no jurisdiction in the matter. As a result, we would convert this petition into an appeal, and by accepting it set aside the order of the Tribunal dated the 20th of November 1979, and direct that the appeal filed by the petitioner before the Tribunal be decided on merits on all questions of law and fact in the light of the observations made by us in this order as well as in the judgment delivered in the aforesaid appeal. As the matter was still at the petition stage, there will be no order as to costs. s. A. H. Appeal allowed.