1977 PLP [C (PLC(CS))

MUHAMMAD DAUD KHAN (CHAIRMAN).‑‑‑The appellant a Preventive Officer in the Karachi Custom House joined the post on 16th April, 1960 in pursuance of the Memorandum No. S 38‑49/6t‑Estt. dated 16th April 1966. Mr. Ghulam Akbar Sheikh. C/o Mr. Ghulam Kadir Sheikh, Superintendent of Police, Rahim Yar Khan" On 13‑3‑1972, Notification No. 2/2/72 DA issued from the Establish ment Division, stated that in exercise of the power conferred under paragraph (3) (1) of MLR‑114, the President was pleased to dire: t that the persons specified in the schedules appet3ded thereto were to retire from service with effect from 13th March. 1972. In Schedule I appended to this Notification, under the heading. 'Ministry of Finance', Customs Department, at serial No. 62, the following entry appeared: "62 Mr. Ghulam Akbar Shauq, Preventive Officer, Karachi" The appellant's name is "Ghulam Akbar Sheikh" and not 'Ghulam Akbar Shauq' and he is neither known try the name "Ghulam Akbar Shauq", nor has he been prescribe or referred to by that name in any of the records of the Department or anywhere else. This position was pointed out by the appellant to the Department. On 22nd March, 1912, the Central Board of Revenue, addressed office Memorandum C. 1 (2) SSR‑1 1/72 to the Cabinet Secretariat Establishment Division mentioning Inter alia that there existed no officer by the name of 'Mr. Ghulam Akbar Shauq' in the Karachi Custom House. On coming to know that action was contemplated against him on the basis of the aforesaid notification, he represented that the said entry had no reference to him and as a measure of abundant caution submitted a review petition. On 4th April 1972, the Collector of Customs issued an office order No. 90/72 Estt. to the effect that he had been retired from service with effect from 13th March 1972 (forenoon) i. e. "from the date of which he ceased to perform his duties" It is contended that The entry No. 62 in Schedule No. 1 did not refer to him and that even the Central Board of Revenue accepted this position. The only competent authority under MLR‑114 to amend the said entry was the President, who; had not issued any amendment thereto. The Collector of Customs had no jurisdiction or authority to amend the entry and consequently his order dated 4‑4‑1972, retiring the appellant from service is without lawful authority and is therefore of no legal effect. The learned counsel for the respondents, apart from the preliminary objection in regard to the jurisdiction, contends that the appellant was validly retired under MLR‑114 by the competent authority and the Notifica tion dated 13‑3‑1972, referred to the appellant who was the person intended to be retired and was in fact retired and that the discrepancy in the family name does not affect the validity of his retirement under MLR, 114, the identity of the appellant being fully established. In order to be able to determine the point involved in regard to the identity of the person actually ordered to be retired it appeared necessary to ascertain, whether the Cabinet Secretariat, Establishment Division furnished any clarification to the Central Board of Revenue, with reference to memo randum No. C. No. 1 (2)‑SSR‑11/72, dated the 22nd March, 1972. The counsel for the respondent was required on 8‑11‑1975 to file the relevant document in this behalf, as no document had been filed, the learned counsel was given another opportunity on 6‑21976, to file the document within a month failing which a presumption would be raised against the respondent. No document or clarification could be produced in this behalf. We have considered the points raised in the arguments and are of opinion that the Collector of Customs, Karachi in the guise of implementing the orders, which had received finality, virtually amended the competent authority's orders on 4‑5‑1972, to give effect from 13th March, 1972 although he was not authority under the MLR‑

114. In fact it did not lie with a subordinate authority, even to interpret the original order, particularly, when the Central Board of Revenue and the Establishment Division were seized of the matter, the former having informed the latter, in terms of their Memorandum dated 2‑3‑1972. The question of jurisdiction of the tribunal and its extent, in MLR‑114 cases has been decided in our judgement in Appeal No. 605 (K)/74, published as P L J 19 f 7 Tr. C. We hold that the order of the Collector of Customs, Karachi being incompetent and within jurisdiction and the identity of the appellant, not having been established by any lawful order/authority, the order is open to B challenge and having been made by an incompetent authority is void altogether. Accordingly, the order of the Collector of Customs, Karachi contained in his (No. S 3 ‑5/72‑Estt, dated 4‑4‑1972) office order No. 90/72 Estt, is hereby vacated and the appellant should be deemed in service with effect from the date of his retirement. No order as to costs.