P L D 1981 Supreme Court 215 (PLP)

10. A constitutional provision, as 'distinguished from a mere service rule; came to be made on the subject for the first time by the Laws (Continuance in Force) (Sixth Amendment) Order, 1960 which added clause (9) to Article

6. The relevant portion of this clause provided as follows :- "(9) Notwithstanding anything in clause (1) but subject as hereinafter provided. (a) The date of compulsory retirement of a person in the service of Pakistan shall be the date on which he attains his sixtieth birthday ; (b) nothing in clause (a) shall effect- (i) any term or condition of service applicable to any such person immediately before the twenty-second day of June 1960 under which he may retire before his sixtieth birth day ; or (ii) any term or condition of service applicable immediately before the twenty-second day of June 1960 to a member of the former Indian Civil Service, or to a person who immediately before that day was a Chief Engineer of the Public Works or Railways Department, under which he might be permitted to serve for a limited period beyond the time for compulsory retirement otherwise applicable to him ; (c) notwithstanding anything in the two foregoing clauses the President in the case of a person who is a member of Civil Service of Pakistan or a person serving in connection with the affairs of the Federation and the Governor in the case of a person (not being a member of the Civil Service of Pakistan) serving in connection with the affairs of a Province may review the case of any person in the service of Pakistan, when he is about to complete twenty-five years of service qualifying him for a pension, and when he is about to complete the fifty-fifth year of his age, in order to satisfy himself of that person's further usefulness to the public service and if he is not so satisfied may direct his retirement from service upon his completing the qualifying service or year of age ; (d) the President or the Governor (as the case may be) with the previous approval of the President may make rules for carrying into effect the provisions of sub-clause (c) but - nothing in this clause shall affect any disciplinary power vested in the President or a Governor under any law or rule for the time being in force. for the removal of doubt it is declared that the provisions of the Explanation to clause (1Y apply to this clause." In consequence, and for giving effect to the provisions of Government Servants (Further Usefulness in Public Service) Rules, 1963 were enforced. It is this rule which has been refereed to by the trial Judge.

11. This provision was followed by Constitution (Fourth Amendment) Act, 1965 enacted on 11th August 1965 whereby clauses 4 to 6 were added to Article 178 of Constitution. They are reproduced hereunder "(4) Notwithstanding anything contained in this Constitution or in any law or in the terms and conditions of service of any person, the President, in the case of a person who is a member of an All Pakistan Service or is serving in connection with the affairs of the Centre, and the Governor of a Province, in the case of a person (not being a member of All-Pakistan Service) who is serving in connection with the affairs of that Province, may, at any time, direct- (a) in the public interest and subject to the provisions of Article 185 or, as the case may be Article 186, of this Constitution, the retirement of a person after he has completed twenty-five years of service qualifying for person or other retirement benefits, on such date as may be specified in the direction ; and (b) in accordance with rules made by him in this behalf, the retirement of a person after he has completed the fifty-fifth years of his age, on such date as may be specified in the direction Provided that this clause shall not apply to a Judge of the Supreme Court or of a High Court or the Comptroller and Auditor-General Provided further that paragraph (a) of this clause shall not apply to a person who has completed the fifty-fifth year of his age. (5) The President or, as the case may be, the Governor may, in respect of any person or class of persons, authorize any person or authority to exercise his powers under clause (4). (6) Any rules made under paragraph (b) of clause (4) shall have effect notwithstanding anything contained in any other rules or in the terms and conditions of service of a person."

12. This was followed on 31st March 1966 by yet another amendment, Constitution (Sixth Amendment) Act, 1966 which substituted clauses (4) to (6) of Article 178 as hereunder "(4) A parson whose terms and conditions of service are governed by Article 127 or Article 154 or Article 176 (not being a member of the armed forces of Pakistan) or paragraph (b) of Article 181 shall, notwithstanding anything contained in this Constitution or in any law or in the terms and conditions of his service, retire from service- (a) on such date after he , has completed twenty-five years of service qualifying for pension or other retirement benefits as the competent authority may, in the public interest and subject to the provisions of Article 185 or, as the case may be, Article 186, direct ; or (b) if he has completed before, or completes within a period of six months from, the commencement of the Constitution (Sixth Amend ment) Act, 1966, the fifty-fifth year of his age, on such date after such completion, being a date within the said period, as the competent authority may direct, or in the absence of such direction, on the expiry of the said period, or on the completion of the sixtieth year of his age, whichever be earlier ; or (c) in any other case, on the completion of the fifty-fifth year of his age. (5) Notwithstanding anything contained in paragraph (b) or paragraph (r) of clause (4), the competent authority may, except for the purpose of the performance of any judicial function, extend the service of a person beyond, or re-employ a person after, the date of his retirement under that paragraph for such period and on such terms and conditions as it may deem fit. Provided that the service of a person which has been so extended or who has been so re-employed shall be liable to be terminated at not less than three months' notice on either side or upon payment of three months' salary in lieu thereof; and such termination shall not be deemed to be removal or dismissal. Explanation.-A Revenue officer, a member of the Central or a Provincial Board of Revenue, a member of any tribunal for deciding any dispute or appeal on any matter relating to income-tax, labour, industry, or election shall not be deemed to perform any judicial function for the purposes of this clause. (6) A person who is required to retire under paragraph (b) or paragraph (c) of clause (4), including any such person whose service has been extended under clause (5), shall be entitled to such leave preparatory to retirement as is admissible to him and the period of such leave may extend beyond the date of his retirement but not beyond the completion of the sixtieth year of his age, and if be proceeds on such leave before the said date, his retirement shall take effect on the expiry of the leave."

13. It was this provision which was in the field when action against the respondent was taken. This provision came up for consideration before Full Bench in the High Court in the case of A. M. Khan Leghari v. Government of Pakistan (P L D 1967 ,Lah. 227) and in the Supreme Court in the case of Farzand All v. Province of West Pakistan ( P L. D 1970.5 C 816). In the High Court judgment it was noted that the only condition necessary for the exercise of this power was one of public interest and with regard to its satisfaction or otherwise in a given case the High Court held that "this Court has no power to inquire as to whether the requirement was in "public interest" or not.

14. In the Supreme Court judgment while upholding this view the following law was laid down; "Compulsory retirement which carries with it no stigma and no vindictiveness against the person concerned is different from removal from service or dismissal. There may be a variety of reasons which may impel a Government to compulsorily retire an officer on his having completed the period of service qualifying him for pension and Government alone is the best Judge of these reasons. It is not possible for the Courts to sit on judgment over the action of Government, if from materials disclosed it does not appear that the action taken was merely in colourable exercise of or in abuse of power. It must of necessity be left to the Government itself to decide as to whether retirement of the officer concerned was in public interest or not. The Government, it is said, has an absolute discsetion to retire any of its officers at this stage . . . . . It appears to me, therefore, that in the absence of any words in the statute limiting the discretion of the Government this must be so, for, it is difficult to lay down any yardstick by which "public interest" can be measured in this connection. There may well be circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for being continued in public Service. An over punctilious or over fastidious a person may well in certain circumstances be just as unsuitable as a lax or careless officer having regard to the nature of employment. But this is a matter which the employer alone can determine and therefore, it must of necessity be left to the subjective satisfaction of the employing authorities."

15. The learned Judge in the High Court while interpreting the decision in Muhammad Ismail's case and coming to his own conclusion observed as follows :- "It is quite obvious from the above passage that although the learned Judge held that no enquiry was necessary for passing such an order but has clearly said that show-cause notice was a must so that the incumbent should know the ground on which he has been made to retire and he is not made the victim of any malice of his superior. The principle of audi alteram partem will apply even if no show cause notice was mentioned in those rules and it is not a Constitutional requirement. There is a string of authorities by the Supreme Court on this point out of which I will mention two of them, namely, The University of Dacca and another v. Zakir Ahmad P L D 1965 S C 90 and Board of Intermediate and Secondary Education, Lahore v. Ala-ud-Din 1972 S C M R

13. It is now well-settled law that even -if show-cause notice is not mentioned in the Statute this maxim has to be adopted whore an action has to be taken against a person. Obviously the retirement on completion of 25 years' service is ordered for those persons whose record is not good in the view of the Authority and it would be unjust to lay down the law that such a person should be condemned unheard and he should not be given a right of appeal as is enshrined by the various provisions of Article 178 of 1962 Constitution . . . . In my humble view the order . of retirement passed under Article 178(4)(a) is a penal termination of employment before the incumbent reaches the age fixed for superannuation in sub-clause (c) of the said Article in the Constitution i.e. 55th year of his age. The prerequisite of an order for retirin ga person under Article 178(4)(a) on putting in 25th years' qualifying service requiries review of his case on account of his blemished record or physical incapacity as the case may be. It has to be passed in pursuance of the rules required to be framed under this Article. Such an order of retirement distinguishes the service career of a person who is allowed to continue in service until the age of 55 years and retires on account of superannuation. In such an event the order would be unjustified, harsh and against the well-established principles of maxim audf alleram parlem."

16. It is clear that in view of the decision of this Court in Farzand Ali's case which was available in print on 25-10-1972 when the second appeal was decided in the High Court, the view of the law taken by the learned Judge was, if I may say so with utmost respect, erroneous. The trial Curt and the first appellate Court were also in error in adopting the test of Further Usefulness in Public Service Rules framed under an earlier constitutional provision for understanding and applying clause 4 (a) of Article 178 as substituted by Sixth Amendment of Constitution of 1962. The order of such a retirement being non-penal, there was no question of a show-cause notice, of a hearing, of reasonable grounds to the satisfaction of authorities other than the competent authority being present in every case.

17. Article 186 of the Constitution of 1962 was also amended to give effect to the amendments introduced in para. (a) of clause (4) of Article

178. It was provided by sub-clause (f ) of clause (2) of Article 186 that except to the 'extent that the Governor of a Province after ~ consulting the Public Service Commission of the Province may provide otherwise by order, the Governor was required, in relation to the Civil Services of the Province and posts connected with the affairs of the Province, to consult the Commis sion with respect to the retirement of a person under paragraph (a) of clause (4) of Article

178. In order to give erect to these provisions, instructions were issued and are found at page 476 of O & M Establishment Manual, Vol. 11(Revised) as follows :-. "I am directed to say that as a result of the Constitution (Sixth Amendment) Act, 1966, clause (4)(a) of Article 178 of the Constitution now empowers the competent authority to-retire, in the public interest, subject to the provisions of Article 186 of the Constitution, a person who has completed 25 years of service qualifying for pension or. other retirement benefits. (2) Clause (2) of Article 186 provides for consultation with the Provincial Public Service Commission, with respect to retirement of a person under paragraph (a) of clause (4) of Article 178, unless provided otherwise by an order of the Governor, in consultation with the Commission, that all cases of retirement of Non-Gazetted officials under the aforesaid Constitutional provisions should 'be excluded from the requirement of consultation with the Commission. These cases should be referred to the respective Advisory Committee constituted under this Department Notification No. S. O. IV (S&GAD) 4-23-1966, dated the 17th October 1 966 (copy enclosed). The Commission will only be consulted about the retirement of all Gazetted Government servants." The importance given to the Constitutional provision of consulting the Public Service Commission, or a substitute Authority with its concurrence, can be gathered from the fact that if any Referring Department did not want t accept the advice tendered, it bad to obtain the permission of the Governor (Item No. 13 (1v) Schedule III of West Pakistan Government Rules o Business, 1962). In such a case therefore, in following the advice tendered b the Advisory Committee the Competent Authority could not be accused of having acted mechanically or without applying its mind. As a matter o fact, for acting otherwise it had to give good reason.

18. A specific objection with regard to the competence of the authority of the Director, Labour Welfare to pass the order of retirement was taken up, it appears in sec9nd appeal though its factual basis is not mentioned in the judgment. The contention appears to be that as the plaintiff respondent was at the relevant time a Head Clerk he fell in the category of Ministerial Establishment and was covered by Item No. 8 section (1) Labour Wing of the Labour Department Delegation- of Power Rules, 1962 printed at page 135 of O & M Manual of Delegation of Power Rules (1958-1963). This objection had a factual basis. It has already bee pointed out in this judgment that in the trial Court it was conceded. by the learned counsel for the plaintiff that defendant No. 2 i.e. Director was the competent authority to pass such an order under the constitutional provision. Even before the first appellate authority there is positive concession to this effect recorded. Having conceded on facts this position it' was not open to the plaintiff and not open to the Court to reopen this question and decide it without getting the factual aspect of it cleared.

19. The expression competent authority for the purposes of Article 178 has been defined in the explanation added by the Sixth Constitutional Amendment. In relation to the plaintiff respondent the authority competent under explanation to sub-clause (1) of clause (b) would be the authority competent to make appointments to the post which the plaintiff was holding. The plaintiff was holding the post of Head Clerk in the Employment Exchange at Sahiwal. He cannot be said to belong to ministerial staff in the office of the Deputy Director. It is only with respect to such ministerial staff as was employed in his own office that the Deputy Director was the competent authority. As regards the Director's power they find mention at Item 5 and he is given out to be the appointing authority of Assistant Labour Officer, Labour Inspector - Investigator and officials of equivalent status. Unless the plaintiff -respondent were to show that he was not an official of equivalent status the Director cannot be deemed to be not his competent authority. He having not earlier questioned his authority to deal with him, having not laid the factual basis for disputing his competency, as a matter of fact conceding his power to do so, the plaintiff-respondent should not have been permitted a "volte face" in second appeal.

20. In view of the foregoing discussion, this appeal is accepted. The order' of the High Court is set aside. The suit of the plaintiff is dismissed. In the circumstances of1he case the parties are left to bear their own costs. s. A. H. Appeal accepted.