1989 PLP (C (PLC(CS))

45. The views of the Justice Division are reproduced below for facility of reference:-- The Small Scale Industries Corporation is a statutory body created under the Punjab Small Scale Industries Corporation Act, 1973. Under section 6 of the said Act, the power to appoint a Managing Director of the Corporation vests in the Government i.e. the Government of the Punjab. The term of appointment of the Managing Director is for a period of three years but a person may be appointed to hold that office for such further term as Government may, in appointing thereto, determine. MLO 17 no longer holds the field. It is, therefore, for the Government of the Punjab to dispose of the representation of Mr. Riaz Malik in accordance with law'.

46. Governor perused the case vide paras. 35-38 ante and was pleased to observe that the case may be re-examined to see if the officer can be reinstated on compassionate grounds; compassionate ground being that y all the officers, who along with the petitioner had been proceeded against departmentally, on the same charge, have been let off with penalties short of removal/retirement from service. Governor was also pleased to observe that the following points carried a lot of weight: (1) Mr. Riaz Malik has been singled out for drastic action. (2) the proceedings under CMLO-17 had superseded a regular enquiry under the Punjab Civil Servants (E&D) Rules,.1975 pending against the petitioner. (3) The proceedings under CMLO-17 suffered from procedural flaws in the sense that witnesses were not allowed to be cross-examined and that defence witnesses were not summoned. (4) The pendency of a writ petition filed by the petitioner does not bar the grant of relief.

47. Chief Minister vide para. 39 ante has desired that this case maybe thoroughly examined by SGA&ID and Law Department in the light of the observations of the Governor given in paras. 36-38 ante.

48. I tend to agree with the views of the Justice Division that CMLO-17, having not been saved under the Eighth Amendment of the Constitution, no longer holds the field. The case has, therefore, to be decided in accordance with law applicable to it in the light of the facts. Section 22 of the Punjab Civil Servants Act, 1974 vests the Governor with unlimited powers to deal with the case of any civil servant in such manner as may appear to him to be just and equitable. As is amply clear from the proviso of section 22 ibid, the powers of the Governor under this section are not confined to cases which arise out of the Punjab Civil Servants Act, 1974. Secondly, power of the Government to amend, vary or rescind any order is recognized by section 21 of the General Clauses Art and by section 2 of the Punjab General Clauses Act, 1956. It settled principle of law that the authority passing an successor has the power to undo that order. The Governor, being the. successor of the MLA under the Constitution, would be competent to correct an order, if it was made by mistake. Lastly, this case is not hit by Article 270-A of the Constitution which bars the jurisdiction of the Courts only and does not interfere with the powers of Central and Provincial Governments to do justice in a case that requires correction.

49. On the factual side, there are certain features in this case which favour of the usual (or unusual?) attitude on the part of the authority. This case was transferred under CMLO-17 when the enquiry proceedings under the Punjab Civil Servants (E&D) Rules, 1975 were pending and had been stayed by the order of the Lahore High court on the basis of a writ petition filed by the petitioner. Secondly, the petitioner was awarded the hard penalty of premature retirement from service despite the fact that he being the Managing Director was only responsible for the supervision of the job. His was at the most a case of constructive liability. The other officers, who alongwith the petitioner had been proceeded against departmentally on more serious charges, have either been exonerated or a, awarded only minor penalties. Finally, the enquiry under CMLO-17 was conducted in a perfunctory manner and even the Enquiry Officer, a Brigadier, found the petitioner guilty of only inefficiency. The Governor in his observations referred to in para. 45 ante has already taken cognizance of these points.

50. In view of the advice of the Justice Division (Ref. para. 45) and the observations of the Governor (Ref. para. 46), the request of the petitioner for reinstatement in service merits sympathetic consideration".

4. The Chief Secretary asked for the comments of the Law Secretary. The latter concluded his opinion as follows vide last sentence of para. 54:-- "Considering therefore, the compassionate grounds mentioned in para. 46 ante, the Governor may exercise its powers (of appointment) under this section (section 6 of the Punjab Small Industries Corporation Act, 1973), in this case". This is dated 13-7-1987.

5. The Chief Secretary then submitted a summary on 12-11-1987 vide para. 55 as follows to the Chief Minister:-- "Reference orders of C.M. in para. 39 ante, the case has been thoroughly examined by the S&GAD and Law Department. The comments of S&GAD may be perused at paras. 41 to 50 ante, while those of Law Department may be perused at paras 52 to 54 ante": -

6. Vide para. 56 Secretary to the Chief Minister noted. "Chief Minister has seen". This is dated 1-1-1989. The file was marked to the Secretary (Services) who sent the copy of the summary to D.S. (SD), S&GAD for necessary action on 5-1-1989. The officer who received the summary i.e. D.S. (Services-D) made the following noting on the file:- "332.The Summary is placed below. At para. 50 of the summary it was suggested that the request of the petitioner for reinstatement in service merits sympathetic consideration. This recommendation was also repeated in para. 54 ante. 1n this context orders of the Chief Minister at para. 56 of the summary convey the impression that he has not agreed suggestion for reinstatement of the officer. 333.The writ petition filed by Mr. Riaz Malik is likely to come up for hearing before the Lahore High Court, Lahore shortly probably within the next week. Since the Chief Minister has not agreed with the suggestion of reinstatement of the officer, it is suggested that we may direct the Advocate-General Punjab, to defend the case on merits as already submitted vide para. 296-297/N." The note was initialled by the Secretary and the Chief Secretary.

6. The contention of the learned counsel for the petitioner, besides challenging the finding of the enquiry and the orders of the premature retirement being mala fide and illegal, is that the impression gathered by the D.S (Services-D) from the noting at para. 56 of the summary is erroneous. As stated in his own note, there was recommendation for reinstatement of the Officer it paras. 50 and 54 and when it was noted by the Secretary to the Chief Minister that "the chief Minister has seen", it meant that whatever had been recommended was correct. If it were otherwise and the Chief Minister were not to agree with the recommendation, he would have said so and expressed himself by saying disapproved or rejected.

7. Learned Advocate-General has submitted that the fact that in the summary reinstatement was recommended and the Chief Minister had "seen" the summary did not mean that it was approved. If it were so, the Chief Minister would have passed a positive order of reinstatement.

8. From the statement of facts made above, a perusal of the record, especially the noting part relating to the advice of Justice Division, Government of Pakistan, opinion of the Governor of the Punjab, examination of the case by the Secretary (Services) and, his recommendation, the opinion of the Law Secretary and the statement of the Chief Secretary of the Province of the Punjab made before the Enquiry Officer that: "the allegations against the petitioner were misconceived and that he found the personal and official dealings of the petitioner to be above board", it is quite clear that when it was noted by the Secretary to the Chief Minister that "The Chief Minister has seen", the Chief Minister had agreed with the recommendation. If the Chief Minister had thought differently, he would have said something expressly or definitively. Opinions and recommendations by all the authorities who had dealt with the matter were favourable to the petitioner. There is no reason or justification to think that the Chief Minister disagreed and: ejected the same when he has not said so. In normal practice, whenever an authority writes "seen" unless the matter is only for information, it means that the authority has taken notice of what has been put up and agrees therewith. If it thinks differently, the authority expressly says so. The recommendations if not accepted for some reason, the authority normally says, not accepted or rejected. When it simply says `seen', it means that there is no different opinion and there is agreement. In "Black's Law Dictionary" the word `seen' is defined as follows:-- "This word, when written by the drawee on a bill of exchange, amounts to an acceptance by the law merchant". In common parlance when one says: "I see," he means: "I agree." If he does not agree, he shows it either by gesture or says something to disagreement. In official documents when word `seen' is written, means that the authority has agreed to what has been put construction of document is a rule. Deprival interpretation rent express language. In the case in hand, the facts, opinions and recommendations of the Secretaries concerned leave no doubt that when it was noted that "The Chief Minister has seen", he had approved the same. Otherwise, he would have simply said no or rejected. Therefore, we direct that the order of the Chief Minister as interpreted above be given effect to. The petition is accordingly allowed but in the circumstances, parties are left to bear their own costs. H.B.T./R-144/L Petition allowed.