1980 PLP 400 (SCMR)

Date of hearing : 12th January, 1980. DORAB PATEL, J.‑The petitioner is a Police Officer and he was retired on 20th April, 1976 on the ground that he had completed twenty‑five years of service. It would appear that a charge‑sheet had been issued to the petitioner sometime before, the order terminating his appointment, there fore, he challenged this order of his retirement in an appeal before the Sind Service Tribunal at Karachi on the ground that his retirement was mala fide. But in dismissing the appeal, the Tribunal observed in its order dated 7th September, 1977 :‑ "The impugned order does not carry any stigma and can in no way be considered as a penalty." It, therefore, dismissed the appeal. Hence this petition for leave. It is unfortunate that the petitioner has not filed a copy of his order of retirement, but learned counsel had to admit that the order was an order simpliciter for retirement and that there was nothing whatever in it which could be read by the remotest stretch of imagination as a stigma. He, however, relied on a show‑cause notice issued to the petitioner on 26th July, 1975. The petitioner was suspended in view of this notice, but in consequence of his appeal, the Superintended of Police. Badin, had ordered his reinstatement "without prejudice to the departmental proceed ings pending against him". Learned counsel could not tell us what happen ed to these departmental proceedings, but it is obvious that they were dropped and the petitioner's services were terminated sometime thereafter on the ground that he had completed twenty‑five years service. Now, because this order was preceded by the show‑cause notice, learned counsel submitted that it was a colour able exercise of power and in support of this submission, he relied on judgments of this Court in Abdul Qadir v. Government of West Pakistan(P L D 1967 S C 506) and the judgment in P L D 1974 S C

393. In Abdul Qadir's case, as in the instant case, the appellant had been charge‑sheeted, but unlike the instant case, he had submitted his explana tion and after examining his explanation and his service records, a second charge‑sheet was served on him to show‑muse as to why he should not be compulsorily retired. Therefore, the judgment is clearly distinguishable on the facts. Then as to the three appeals reported in P L D 1974 S C 393 Abdul Rashid Abbasi's appeal is distinguishable on exactly the same ground as in Abdul Qadir's case. This is so obvious that Mr. Fazle Ghani Khan laid great stress on the two other cases reported in P L D 1974 S C

393. Both these cases related to judicial officers, who were on probation and after the enquiries against them were dropped, their appointments were terminated on the ground that they were on probation only. They challen ged the termination of their appointment on the ground that they were entitled to a show‑cause notice and their case appears to have been that although the appointments were terminated on the ground that the period of probation had not expired, the orders were a color able exercise of power, because their appointments had in fact been terminated on account of allegations of misconduct. After being unsuccessful before the Department and in the High Court, the appellants had filed appeals in this Court, which were allowed. But, in allowing the appeals, Wahiduddin Ahmad, J., who pronounced the judgment of this Court observed at page 401 "Taking now the facts of each case, it will be noticed that the autho rities concerned in the case of Mohammad Siddiq Javaid Chaudhry and Mumtaz Hussain Malik appellants, terminated their services on the ground of unsatisfactory work and conduct. The record shows that there was allegation against them of corruption. In these circumstances the order terminating their services amounts to removal and dismissal within the meaning of Article 177 and they were entitled to a show‑cause notice under Article 177 of the Cons titution of Pakistan, 1962." The impugned order passed in the instant case is not before us and, there fore, an adverse inference has to be drawn against the petitioner. In any case, as the learned counsel did‑ not controvert the Tribunal's finding that the impugned order of retirement did not contain any stigma whatsoever, the judgment of Wahiduddin Ahmad, J., does not help the petitioner's case, and we see no reason to dissent from the decision of the Tribunal. Learned counsel then referred us to the observations in the penulti mate paragraph of the Tribunal's order and submitted that the observa tions were very sweeping and were contrary to the view taken by this Court in Mohammad Siddiq Javid Chaudhry and Mumtaz Hussain Malik's cases. Having examined these observations, we are constrained to observe that they are very wide and it is obvious that the Tribunal's attention was not drawn to this Court's judgment in Mohammad Siddiq Javaid Chaudhry and Mumtaz Hussain Malik's cases. However, as it is not our practice to give leave to examine academic questions, this submis sion is of no avail to the petitioner. No case has been made out for the grant of special leave under Article 212 (3) of the Constitution and the petition is dismissed. Petition dismissed.