1989 PLP 1240 (SCMR)

NAIMUDDIN, J.‑‑This is a service petition riled under Article 212 of the Constitution. The facts giving rise to this petition briefly stated are that the petitioner was originally working as Assistant Engineer in the Pakistan Railways. He was compulsorily retired from service on 1‑8‑1968. After failing to get departmental redress he tiled a civil suit which was compromised and consequently the petitioner was reinstated. Thereafter, on 30‑11‑1971, he volunteered for Army Service and was posted from 11‑1‑1972 as A.E N. but on 13‑3‑1972 his services were terminated under M.L.R.

114. The petitioner challenged the order in appeal before the Service Tribunal, Islamabad, but the Service Tribunal dismissed the appeal by the order dated 19‑12‑1978, giving rise to the present petition.

3. The reasons which weighed with the Service. Tribunal were that the petitioner could challenge the order of termination of service under M.L.R. 114 only if mala (ides was alleged. The Tribunal relying on Federation of Pakistan v. Saeed Ahmad Khan (P L D 1974 S C 151) observed as follows:‑ "the aggrieved person has first of all to allege mala fides in specific terms and then prove it prima facie to entitle the Court to examine the relevant files of the case. In this case the appellant has not even alleged mala fides and, therefore, one of the grounds on which we can adjudicate is not at issue on the grounds stated in appeal."

4. But mala fides is not the only ground on which the Tribunal could interfere with the order of termination of service of the petitioner. The Tribunal itself has referred to the case of Sajjad Ali Khan v. Pakistan (Appeal No.605‑K/74) wherein the Tribunal by a majority of two to one held that it had jurisdiction to entertain the appeal from the orders under M.L.R. 114 only if there is proof of mala (ides or the order is coram non judice or and without jurisdiction and in support placed reliance on Saeed Ahmad Khan's case (supra) and Muhammad Aslam Bajwa v. Federation Pakistan (P L D 1974 Lah. 544).

5. The petitioner has questioned the order of termination of his service under M.L.R.114 as being one without jurisdiction for the reasons stated in the memorandum of appeal and also on other grounds.

6. In the case of Federation of Pakistan v. Saeed Ahmad Khan (P L D 1974 S C 151) the precise nature of ouster clause and extent to which the jurisdiction of superior Courts had been ousted came up for consideration in relation to Government servants dismissal, removal from service or premature retirement under Martial Law Regulations Nos.58 and 114 and it was held that the acts, orders or proceedings which are done, taken or made without jurisdiction, mala fides or coram non judice were open to scrutiny by the High Court under Article 201 of the Constitution of 1972 notwithstanding amendments introduced in Article 281(2) of the Constitution of Pakistan 1972 by the President's Order No.3 of 1973. The Tribunal was conscious of this case and has referred to it in its judgment as stated before.

7. The ouster clause also came up for consideration of this Court in the case of Zafar‑ul‑Ahsan v. The Republic of Pakistan (P L D 1960 S C 113) wherein at page 120 it was inter alia ruled that "if a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeds d against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, (emphasis supplied) and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority .. . . . .".

8. The above rule was reiterated by this Court in State v. Ziaur Rahman (P L D 1973 S C 49 at page 87). Therefore, it was necessary for the Tribunal to examine whether the ground on which the order of termination of service was made is within the grounds stated in M.L.R. 114 paragraph 3(1).

9. Further this Court in two cases of Iqbal‑ud‑Din Ahmad Siddiqui v. Federation of Pakistan (1982 S C M R 61.1) and Muhammad Israr Nabi v. Province of Punjab (P L D 1980 S C 292) almost in the similar circumstances and in respect of a similar orders passed by the Tribunal, has ruled that the Tribunal has power to examine such cases on merits. In the case of Iqbal‑ud‑Din Ahmad Siddiqui it was observed by this Court as follows:‑ "

3. In a similar circumstance in Muhammad Israr Nabi v. Province of Punjab and others this Court had come to the view 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 Martial Law Regulation 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 merit to come to its own conclusion on the question whether the petitioner was rightly retired or not . . . . . . There is no indication 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."

10. We would, therefore, convert this petition into an appeal and set aside the impugned order, remand the case to the Service Tribunal for fresh decision on the grounds taken in the appeal in accordance with law. A.A./M‑810/S Case remanded.