1988 PLP (C (PLC(CS))

IHSANUL HAQ CHAUDHRY (CHAIRMAN).‑‑The facts relevant for the decision of this appeal are that the appellant after doing his Matric joined the Punjab Police as A.S.I. on 15‑3‑1960. He ultimately was promoted as D. S. P. on 19‑11‑1981. The appellant had completed 25 years service qualifying for pension, therefore, his service record was scanned in the light of directives of the worthy Chief Minister Punjab in order to determine whether the appellant was a fit person for further retention in service or it is in the public interest to retire him at this juncture. This exercise was undertaken in terms of section 12(ii) of the Punjab Civil Servants Act, 1974. The decision was against the appellant and he was retired vide notification dated 18‑6‑1986.

2. The appellant feeling aggrieved by notification of retirement decided to invoke the jurisdiction of this Tribunal through this appeal under section 4 of the Punjab Service Tribunals Act, 1974.

3. It was claimed that the appellant has clean, unblemished service record and there is not a single adverse entry to his discredit; and that he fell victim to the intrigues of Mr. Jehanzeb Burki, D.I.G. Police Hqrs. who was nourishing grudge against the appellant and was inimical. The appellant has cited Governor of the Punjab, Secretary Home Punjab, Inspector‑General of Police Punjab and Mr. Jehanzeb Khan Burki as respondents in this appeal. The appeal was admitted to regular hearing on 23‑9‑1986. The respondents Nos.l to 3 have filed written objections, controverted the allegations, contested the appeal and prayed for its dismissal, while the respondent No.4 elected not to participate in the proceedings of this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney on behalf of respondents Nos. l to 3.

5. Learned counsel for the appellant has raised following points in support of his contention:‑ (i) That the appellant was retired under section 12(ii) of the Punjab Civil Servants Act, 1974, without a show‑cause notice. (ii) That the appellant had excellent record of service specially the last 10 years reports are 'A'‑Good. (iii) The orders have not been passed by the competent authority. (iv) It is submitted that the action is tainted with mala fides.

6. Learned counsel for the appellant in support of the first point has submitted that since the show‑cause notice has not been excluded by any provision of Punjab Civil Servants Act, 1974, and particularly A by section 12, therefore, show‑cause notice was a condition precedent, for invoking the jurisdiction. The learned counsel has relied on the dictum of their Lordships of the Supreme Court in case Dacca University, v. Zakir Hussain reported as P L D 1975 S C 90.

7. On the other hand the learned District Attorney for respondents Nos.l to 3 has submitted that since action was not a punishment and he was retired with full benefits of pension etc., therefore, no show‑cause notice was required. The argument does not hold good in view of the dictum of Supreme Court of Pakistan in case Pakistan v. Public at large reported as P L D 1987 S C

304. This however does not conclude the matter as fn the absence of provision of show‑cause notice in the relevant statute if the affected person is granted the right of hearing at appeal or revision stage still the principle of natural justice shall stand fully complied with and defect or irregularity caused by the absence of show‑cause notice at initial stage, shall be rectified and cured. We can safely in this behalf refer to the case Ali Muhammad and three others v. Chief Settlement Commissioner Punjab and seven others reported as P, L D 1977 Lah.

352. The other relevant case is Manzoor Hussain v. Pakistan anal three others reported as P L D 1977 Kar. 1012 at page 1015. Relevant portions are reproduced below:‑ "P L D 1977 Lah. 352‑‑ "However, where the right of hearing is based or flows from the principles of natural justice then the hearing by the higher authorities will cure the defect. Respectfully following that law I would hold that since in the instant case the right of hearing was not based on any statutory provision, but on the principles of natural justice, the fact that the petitioners were heard in revision has removed the defect, if any, in that respect. Even otherwise no substantial injustice has been done to the petitioners in revision."

8. The relevant portion of the other reported case P L D 1977 Kar. 1012 at page 1015, is given below:‑ "It is settled law that where the prior show‑cause notice is not the requirement of law or condition precedent and the petitioner is heard at any stage of the proceedings, unless some prejudice is shown to have been caused by not hearing the petitioner at the stage when the first adverse order was passed, the requirement of principle of natural justice is met. If any authority is needed reference may be had to the latest pronouncement of their Lordships of the Supreme Court in Sind Employees Social Security Institution and another v. Dawood Cotton Mills Ltd."

9. The other case on which reliance can be made is reported as 1984 S C M R 1255. It was held that since the Revisional Authority duly afforded hearing to the petitioner, therefore, principle of natural justice stood fully satisfied. Since we have decided to give full dressed hearing in all the appeals directed against order under section 12(ii) of the Punjab Civil Servants Act, 1974, in order to meet the requirement of natural justice, therefore, the argument of the learned counsel for the appellant is of no legal consequence. We have provided full opportunity of hearing and scrutinized the record with the help of the appellant. In this view of the matter there is no force in this argument of the learned counsel for the appellant.

10. The second point raised by the learned counsel for the appellant in support of the appeal is that the appellant had excellent record of service and there was not a single adverse entry throughout his career. The learned District Attorney has opposed the contention of the appellant and submitted that the appellant was facing inquiry for his in‑action in a smuggling case and a case F.I.R. No.38 was registered against the appellant. Moreover, the appellant was found influencing in the investigation of a case at Narowal.

11. The learned counsel for the appellant has explained that the appellant was acquitted of all the charges by the C.M.L.A. Thereafter he was arrayed as an accused in the same matter before the Special Judge Customs, who ultimately discharged him from the case. The learned counsel for the appellant has further submitted that infect the appellant had taken all steps as to the adjudication of the case in time but it was lapse on the part of the Customs Authorities as a result of which the case could not be processed within stipulated period. The learned counsel for the appellant concluded that this was the only matter which was hunting his client in different shapes due to the intrigues of respondent No.4, who has managed registration of case and reported to I. G. Police that appellant is interfering with investigation of a case at Narowal.

12. We have gone through the paper book of this appeal as well as service record of the appellant with the help of the learned counsel for the appellant and learned District Attorney and find that there are 19 reports for the period from 1971 to 1986, and grading of the same is indicated as under:‑ 'A'‑‑(Good) = 14 'B'‑‑(Average) = 5 "C"‑‑(Below Average) = - The Government has issued guidelines for scrutiny of record of civil servants under section 12(ii) of the Punjab Civil Servants Act, 1974, and according to these instructions more weightage is to be given to the A.C.Rs. for preceding 10 years. When the merit of the plea of the appellant is adjudged in accordance with these instructions then there is un-escapable conclusion that the argument of the counsel for appellant that his client has satisfactory record of service, must prevail. The appellant was promoted as D.S.P. on 19‑11‑1981 and from this date till his retirement he was rated as under:‑ 1981 = A 1982 First half year: A by Reporting Officer B by countersigning Officer. Second half year: A 1983 A by Reporting Officer while countersigning officer graded him as ' B' 1984 A Pen Picture An honest hardworking and reliable Overall grading: Officer..." Better than majority of officers. Fit for promotion. 1985 B We are of the considered view that the service record of the appellant did not warrant his retirement under section 12(ii) of the Act. It really sounds very strange that a public servant, who has not a single adverse entry to his discredit has been retired in the public) interest. The order cannot be maintained for this reason alone.

13. Thirdly, it was argued by the learned counsel for the appellant that the action is mala fide and manoeuvred by Mr. Jehanzeb Khan Burki who was serving as D.I.G. Police Hqrs. at the relevant time. Learned counsel for the appellant in order to prove the mala fides has referred the memo. dated 28‑5‑1986 issued from the office of respondent No.3 wherein the old story of the appellant's involvement in a custom case interfering in investigation of case at Narowal, was lime‑lighted and a summary submitted to the Chief Minister Punjab. The same was seen by the Chief Minister on 28‑5‑1986 and no action proposed. The appellant has attached details of his sufferings at the hands of Mr. Jehanzeb Khan Burki, D.I.G. as Annexures/F. The appellant has alleged malice on the part of Mr. Burki on the following grounds:‑ (1) Appellant and other Police Officers got arrested Ch. Irshad Ahmad a deserter of PPP, who was recovered from Dalai Camp after the PPP Govt. came to end. He was arrested as per orders of Mr. Burki. (2) Secondly, the High Court initiated contempt proceedings against Police Officers. Mr. Burki wanted the appellant not to state true facts before the High Court but as the appellant did not accept this suggestion and made a clean breast of the whole matter in the High Court, as a result of which a contempt notice was issued to Mr. Burki on the one hand and on the other hand departmental proceedings were initiated against him and appellant was one of the prosecution witnesses. (3) Thirdly, Mr. Burki gave order to murder Ch. Zahoor Elahi. The appellant was directed to stop the car of Ch. Zahoor Elahi while the FSF was prepared to execute the evil plan. The appellant luckily came to know of this brutal plan when he found FSF personnel present in the vicinity and in suspicious circumstances. The appellant handled the situation tactfully when he came to know the real plan. Mr. Burki was very much upset due to failure of his plan and when came to know of the true position he got annoyed with the appellant and reported this matter to the Prime Minister but luckily Rao Abdul Rashid the then I.G. Police came to rescue of the appellant and saved him from severe action. The only action taken was the transfer of the appellant.

14. While going through the appeal we have noted that Mr. Burki D .I. G. Gujranwala had recommended in 1985 that the appellant and three/four other officers should be retired on the ground of bad reputation. It is alleged by the appellant that these cases were scrutinized by a High powered Committee headed by Cap. Nasir Ahmad, the then Home Secretary and appellant was cleared by the said Committee. Incidently Mr. Burki being D.I.G. Hqrs. was representing I.G. Police Punjab but as he was the Reporting Officer, therefore, he was disallowed to participate in the meeting: The result was that there was honest and fair probe in the matter and allegations were found incorrect.

15. The appellant has submitted affidavit in support of the contentions contained in the memo of his appeal and same have not been controverted by counter‑affidavit as required under rule 14 of the Punjab Service Tribunals (Procedure) Rules, 1975. We, therefore, hold that action against the appellant was manoeuvered by Mr. Burki who was D. I. G. Hqrs. and participated in the meeting of the Review Committee which formulated the recommendations which in turn formed the basis of the impugned order. The action is, therefore, mala fide and our view is supported by the judgment in case Nazir Ahmad v. Islamic Republic of Pakistan reported as 1979 P L C (C.S.) 105, relevant portion reads as under:‑ "

8. The appellant has however, established before us that he had knocked the doors of the Court to get his seniority and at his instance one of his superiors was called by the Supreme Court. It is also established that when the order of the Supreme Court made in favour of the appellant was not implemented he threatened the officers responsible for that inasmuch as a notice was issued to them that if the order was not implemented he would move the Court for contempt. To a judicial mind such a course may not appear mala fide but the executive authorities who have a different yardstick for administration are not expected to take the threat for contempt of Court as a routine matter. This must have annoyed the two persons mentioned by the appellant and it is prima facie evident that these two officers must have recommended the name of the appellant for retirement either by not stating true facts or not giving any reason for the punishment to be awarded to the appellant.

9. The learned counsel for the respondents has based his entire arguments on the point that the competent authority who retired the appellant was the Chief Martial Law Administrator and that since the appellant has not alleged any mala fides on his part, the burden does not shift on the respondents to show that the action had been taken bona fide. In this respect the decisions of the Punjab Administrative Tribunal were referred to, in which somewhat similar view had been taken. For instance in one of the cases it was pointed out that the mala fide was not prima facie proved because the aggrieved person had not been able to establish that the competent authority was influenced by the persons who cherished grudge against a civil servant. We do not think in the present case the identical position arises. It cannot be denied that the Chief Martial Law Administrator did not personally know each and every officer. He must have acted on the advice of his officers who were directly connected with the persons affected by the notification. If the allegation of mala fides had been against the. persons not connected with the administration then perhaps we would have ignored the allegations and directed the appellant to establish that the said persons had influence over the Chief Martial Law Administrator and that in fact they had spoken to him to get revenge from the appellant. In the instant case, however, the allegation is against the functionaries of the Govt. who were directly subordinate to the competent authority and their advice is expected to count. In the case of Muhammad Ismail Talukdar v. Govt. of East Pakistan and two others (1) the Court had taken the view that since the confidential clerk of the Deputy Commissioner was ill‑disposed towards the aggrieved party, it could not be ruled out that he prevailed upon the Deputy Commissioner in taking action against the said party.", It is now established law that action taken in bad faith is void ab‑initio and illegal.

16. There is no merit in the last argument of the learned counsel for the appellant that the order has been passed by the authority not competent to do so. We have gone through the Summary and find the order has been passed by the worthy Chief Minister, therefore, there is no force in the argument of the learned counsel for the appellant and the same is not sustainable having been passed by the competent authority.

17. The result is that the appeal succeeds. The impugned notification dated 18‑6‑1986 is set aside. The appellant is deemed to be continuing in service throughout and shall be entitled to the benefits including promotion and seniority etc. The financial and leave benefits, if any availed by the appellant after issuance of the impugned notification shall be adjusted according to rules. No order as to costs. S.Q./175/Sr.P Appeal succeeded.