2001 PLP (C (PLC(CS))

Petitioner through this Constitutional petition has taken exception to the orders dated 30-4-1970, whereby he was dismissed from service under M.L.R. No. 58.A direction is sought for the implementation of the order of Federal Service Tribunal dated 10-5-1981, whereby he was reinstated into service with back benefits. Facts briefly for the disposal of this Constitutional petition are that the petitioner joined Central Engineering Services-1 as a 'result of competitive examination for superior services held in 1952. On 25-3-1969, the Constitution of 1962 was abrogated and Martial Law was proclaimed in the country. M.L.R. 58 known as removal from Service (Special Provisions) Regulation was enforced on 2-12-1969. The petitioner accordingly was served with a charge-sheet alongwith statement of allegations. He in his defence submitted a detailed explanatory statement to the Military Tribunal established under para. 3 of M.L.R. 58 where he was asked to appear-. The petitioner accordingly was dismissed from service w.e.f 30-4-1970. The Federal Service Tribunal was set up in 1974 extending the date enabling Central Government Employees dismissed under M.L.R. 58 to file appeal. The petitioner accordingly filed his appeal before the Federal Service Tribunal which was dismissed on 20-11-1977 for want of jurisdiction. He filed a petition for leave to appeal before the Supreme Court against order of Federal Service Tribunal which was converted into an appeal and the matter was remanded to the Federal Service Tribunal holding that Tribunal had jurisdiction to adjudicate upon the matter. His earlier appeal was treated as revived by the Federal Service Tribunal and the same was accepted vide order dated 10-5-1981. He was reinstated into service through this order from the date of his dismissal with back benefits under the Rules. The petitioner reported for his duty at the Establishment Division of Government of Pakistan. Feeling aggrieved of the reinstatement order the respondent No. l filed a petition for leave to appeal against the said order before the Hon'ble Supreme Court of Pakistan. Before the decision could be rendered by the Hon'ble Supreme Court in the appeal, the then President of Pakistan 'General Muhammad Zia-ul-Haq' on 30-8-1982 promulgated C.M.L.A. Order No.3 of 1982 known as 'Second Amendment' whereby Article 13-A was added to the Provisional Constitution Order. This Article has now been merged in Article 270-A of the Constitution of Islamic Republic of Pakistan It purported to validate all orders made and action taken under M.L.R.

58. The jurisdiction of the Courts and Tribunals including the Supreme Court was ousted. All proceedings relating to orders made and action taken under M.L.R. 58 pending before all Courts and Tribunals were also declared to have abated. Respondent No. l under the garb of this provision declined to honour the order of Service Tribunal dated 10-5-1.981. Hence this Constitutional petition. Learned counsel for the petitioner inter alia has argued that no opportunity whatsoever was provided to the petitioner before the impugned dismissal was ordered under the provision of M.L.R.

58. The Military Tribunal according to the learned counsel conducted the alleged proceedings with a pre-determined mind as a secret list was already prepared by the Martial Law Authorities where the petitioner's name was earmarked for dismissal. He has further stated that even the provisions of M.L.R 58 were not complied with before the impugned action was taken. Learnt re-counsel for the petitioner in support of his contention has relied upon Rizvi v, Islamic Republic of Pakistan and others (1992 SCMR 1309) Federation of Pakistan through Secretary Establishment Division, Islamabad v. Sh. Abdul Aziz (1.998 SCMR 91) Federation of Pakistan and, others v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26) and M. Yamin Qureshi v. Islamic Republic of Pakistan and others (PLD 1980 SC 22). Learned Deputy Attorney-General Kh. Saeed-uz-Zafar has controverted the stance taken by the petitioner. He has stated that the petitioner's Constitutional petition not only suffers from laches but also is not maintainable in view of bar placed by Article 212 of the Constitution of Islamic Republic of Pakistan as the subject-matter pertains to the terms and conditions of a civil servant. Reliance in this respect is placed by him on Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCMR 2280). He, however, did not say anything about the merits of the case. I have considered the contentions and have gone through the precedents relied upon by the parties. The perusal thereof demonstrates that the petitioner was not given fair dealings at the hand of the Military Tribunal constituted under paragraph 3 of M.L.R.

58. The Military Tribunal itself has not adhered to the requirements as paragraph 3(2) of MLR 58 mandated that no action would be taken by the Tribunal unless opportunity to show cause and opportunity to be heard in person was provided to the aggrieved person. Here in this case the trial conducted by the Military Tribunal was only a sham proceedings as the same proceeded simply to give colour of validity to a pre-determined decision earlier reached at by the Military Authority, the Military Tribunal simply acted on the basis of Secret List which was prepared by the Authorities where the petitioner's name was earmarked for dismissal. It was a mechanical order and by no stretch of imagination it can be said that the Military Tribunal applied its independent mind. It simply followed the decision of the Military Authority communicated earlier through Secret List. In an identical case of dismissal under MLR 58 while dismissing the appeal of Islamic Republic of Pakistan against the decision of Sindh High Court, the Hon'ble Supreme Court has observed as under in a case reported as Islamic Republic of Pakistan v. S.A. Rizvi (1992 SCMR 1309):

"The High Court has taken the- view that the Tribunal's recommendations was merely a command performance as the petitioner had before the reference of the case to the Tribunal decided to dismiss the respondent and put him to trial and the proceedings before the Tribunal were merely a smoke screen to give a colour of validity to a pre-determined decision. The conclusion was drawn by referring to the documents and also to a note in the order of dismissal which reads as follows:-- 'This officer was held on the list of those officers who were earmarked for dismissal followed by trial'. " Holding that the entire proceedings was a sham and colourable device to dismiss the respondent it was observed that the order was mala fide, coram non judice and without jurisdiction. On these grounds the bar under Article 270-A of the Constitution could not apply. In this regard reliance was placed on the following cases:-- (1) Federation of Pakistan v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26), in which it was held that any action which is mala fide is an act without jurisdiction. (2) Abdul Rauf v. Abdul Hameed Khan (PLD 1965 SC 671). (3) Pakistan v. Saeed Ahmad Khan (PLD 1.974 SC 151). (4) State v. Zia-ur-Rehman (PLD 1973 SC 49). Reliance is also placed upon Federation of Pakistan through Secretary Establishment Division, Islamabad and others v. Sheikh Abdul Aziz (1998 SCMR 91) where the Hon'ble Supreme Court refused to grant appeal in an identical matter. The observation of the Supreme Court are as under:-- "After hearing the learned counsel for the parties at some length and reading the record we hold the view that facts of the above case of S.A. Rizvi are almost similar with those of the case of the respondents. We, therefore, agree with the view already taken by the High Court that the respondent was dismissed from service with a pre-determined mind and also without giving him an opportunity of hearing. No such list of civil servants to dismiss them from service could be prepared behind their back. In other words, a command was issued by the concerned authority to the Tribunal to dismiss the civil servants mentioned in the said `list without providing them adequate opportunity of hearing. This was indeed, a mockery of civilized judicial system. The impugned order of dismissal was, therefore, not sustainable in law on any ground whatsoever. We would, therefore, uphold the judgment rendered in favour of the respondent by the High Court. Civil Petition for Leave to Appeal No.416-L of 1997 is barred by limitation by 32 days. No satisfactory explanation has been given by the petitioners for the condonation of the delay. It is well-settled that each day of delay leas to be explained by the petitioner which has not been done to our satisfaction. In such a situation, these petitions have been found to be without substance and are accordingly dismissed on merits as well as being barred by limitation by refusing leave to appeal. " As far as the question of jurisdiction is concerned, Article 270-A of the Constitution of Islamic Republic of Pakistan has not completely ousted the jurisdiction of the superior Courts to go into the vires of the action taken under M.L.R. 58 as well as action taken under any other law which were protected by Article 13-A of the Provisional Constitution Order. The Hon'ble Supreme Court in Federation of Pakistan and others v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26) has held as under:-- "This Article does not take away the jurisdiction of the High Courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide. For this purpose it unnecessarily draws a distinction between the malice in fact and malice in law. " Here in this case at the cost of repetition I must say that the proceedings conducted by the Military Tribunal did not at all conform to the provisions of M.L.R. 58 itself. The petitioner was not given fair chance to meet the allegations levelled against him. Even no witness was allowed to participate in the proceedings in support of his defence. The Tribunal already, wag having a Secret List which was earlier prepared by the Martial Law Authority wherein even the punishment proposed to be given to the petitioner was mentioned. In the presence of such a list it can be stated that the whole exercise was mala fide. The mala fide action is no action under the law and no sanctity whatsoever is attached to it. As far as the question of laches is concerned I agree with the learned counsel for the petitioner that his client rushed from pillar to post for the redressal of his grievance. The moment the Federal Service Tribunal was constituted, he immediately approached there and being unsuccessful in the first round because of lack of. jurisdiction he filed the petition for leave to appeal before the Supreme Court. After the remand of the case from the Supreme Court he immediately rushed back to the, Federal Service Tribunal where he was reinstated. Thereafter the Establishment Division refused to implement the decision of the Service Tribunal on one ground or the other. All this shows that the petitioner rushed to every available forum for the redressal of his grievance. He, made several representations before the authorities for the implementation of the order of the Federal Service Tribunal but all were of no avail. In these circumstances it cannot be said that the petitioner was not vigilant for availing the relief. In an identical case of Central Government employees dismissed under MLR 58 the learned Division Bench of Sindh High 'Court observed in S.A. Rizvi v. Islamic Republic of Pakistan through Secretary Establishment Division and 2 others 1991 MLD 1834) as under: "It is therefore clear that he petitioner as always been vigilant and in fact there has been no delay at all in approaching this Court. For obtaining relief by way of writ According to Black's- Law Dictionary at page 787, laches has been described, as follows:- "The Doctrine of laches is based upon the maxim that equity aids the vigilant and not those who, slumber on their rights. It is defined as a neglect to assert a right or claim which taken together with a lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a Court of Equity. It: is thus clear that the essential ingredients of laches in unreasonable and unexplained delay for an extended period of time and secondly the causing of prejudice to the other party by reason of such delay. In the present case there is no delay as explained above and even if there is it has been adequately explained and accounted for by the petitioner. In Muhammad Sadiq v. Anver Majeed (1989 PCr.LJ 1223) it was held by a Division Bench of this Court consisting of Ajmal Mian, Acting C.J. and Saleem Akhtar, J. (as they then were) that the question whether delay in filing of a Constitutional petition was fatal, would depend upon facts of each case. The other point that the Constitutional petition is hit by the bar placed by Article 212 of the Constitution of Islamic Republic of Pakistan is not apt in the facts and circumstances of the present case. The petitioner in this case has gone twice before the Federal Service Tribunal and ultimately succeeded in obtaining the final order of his reinstatement into service in 80s, which order in spite of passage of 2 decades has not been implemented till date. The action taken under M.L.R. 58 as already stated is totally malal fide and was a smoke screen simply to give a clour of validity to a pre determined decision mentioned in the preceding paragraph. In these' circumstances reliance of the learned Deputy Attorney General to the case of Khalid Mahmood Wattoo v. Government of Punjab (1998 SCMR 2280) is also not apt as the Hon'ble Supreme Court distinguished the case of Sh. Abdul Aziz (1998 SCMR 91) wherein identical situation the Constitutional petition was accepted. The Hon'ble Supreme Court in Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCMR 2280) has distinguished the aforesaid case in the following words: "Learned counsel had relied upon a judgment of this Court in the case of Federation of Pakistani Abdul Aziz (1998 SCMR 911 for the proposition that despite Article 212 of the Constitution, a writ petition is maintainable in respect of matters relating to terms and conditions of service of a Government employee. The judgment relied upon is distinguishable and, in any case the question of bar under Article 212 of the Constitution was not considered in the said judgment. " Here in this case, as already stated, the case of the petitioner is totally identical to that of Sheikh Abdul Aziz and many others whose Constitutional petitions were accepted. Resultantly, for what has been stated above, the writ petition is accepted with the direction to the respondents to implement the order of Federal Service Tribunal reinstating the petitioner. There shall be no order as to costs. H.B.T./I-38/L Petition accepted.