1995SCMR698 (PLP)

SAAD SAOOD JAN, J.‑‑‑This is an appeal by special leave to appeal from the judgment dated 19‑10‑1992 of the Lahore High Court, whereby the Constitution petition of the respondent was accepted and the order made by the appellant No.1 with regard to her compulsory retirement from service was declared to be unwarranted under the law and of no legal effect.

2. The respondent joined service under the Pakistan Council of Scientific and Industrial Research, hereinafter referred to as the Council, on 7‑9‑1968. She was appointed as research officer and was posted at Peshawar. At that time the Council was a society registered under the Societies Registration Act, 1860. In 1973, an Act known as the Pakistan Council of Scientific and Industrial Research Act, came into force. It dissolved the society and in its place set up a statutory corporation with the same name. (See Act XXX of 1973). The services of the employees of the society stood automatically transferred to the newly‑constituted Council.

3. The respondent got married in 1976 to an officer in the Pakistan army. A year later her husband was transferred to Karachi. She applied to the Council that she too should be posted at Karachi but her request was denied by the Council. She started absenting herself from her place of duty for long periods. Consequently, the departmental authorities initiated disciplinary proceedings against her on the charges of unauthorized absence from duty and amusing abusive language towards her superiors. She was served with a charge?sheet and a Committee was constituted to hold the inquiry. Despite several opportunities given to her she did not participate in the inquiry proceedings. As a result the Committee held the proceedings ex parte. It found that the charges had been established. On the basis of its report by an order dated 16‑7‑1979, the Chairman of the Council compulsorily retired her from service. She preferred a representation against the said order to the Ministry of Science and Technology. By a letter dated 10‑12‑1979 she was informed by the Ministry that no appeal lay with the Government in her case. Seven years later, in 1986, she filed an appeal before the Federal Service Tribunal. The learned Tribunal dismissed it by an order dated 14‑7‑1987 on the ground that she was not a civil servant. Three years later, on 13‑9‑1990, she filed a Constitution petition in the High Court which was allowed by a learned Single Judge with the following observations: "I am of the view that there is hardly any need for going into the merit of the charge‑sheet because the disposal of case can be made on facts established on record namely that she was not provided copy of the inquiry report to tender her explanation for consideration of the competent authority. The Authorised Officer himself lodged complaint against the petitioner as such, he was not competent to act as Authorised Officer, she moved application to the Authority against the Authorised Officer, before she was charge‑sheeted, therefore her apprehension that he was biased against her was not ill‑founded:" From the judgment of the High Court the Council has come in appeal to this court.

4. Leave to appeal was granted to the appellant with the following observations: "In support of this petition it is inter alia contended that in so far as the employees of the Council were concerned the Government Servants (Efficiency and Disciplinary) Rules could not be regarded as statutory in nature and thus the view taken by the High Court was erroneous. In any event the respondent was not serious in defending the charges against her and in exercise of writ jurisdiction the High Court ought not to have set aside the order of compulsory retirement in view of her prolonged and deliberate absence from her post:' The High Court was of the view that as the Council had `adopted the application of the Government Servants (Efficiency and Discipline) Rules, 1973, in the disciplinary matters of its employees any action taken in derogation or in violation thereof can be set aside in writ jurisdiction'. This view of the High Court that the Government Servants (Efficiency and Discipline) Rules had the status of statutory rules in respect of the employees of the Council has been contested by learned counsel appearing for the appellant.

5. It is an admitted position between the parties that the respondent joined service before the coming into force of the Pakistan Council of Scientific and Industrial Research Act, 1973 (hereinafter referred to as the Act); thus, to begin with, she was an employee of the Council when it existed merely as society registered under the Societies Registration Act. It does not appear that the society had framed any rules for regulating disciplinary proceedings in respect of its employees. Upon coming into force of the Act her services stood transferred to the new Council by operation of section 22(1)(b) thereof, which inter alia stated that `all officers and other employees of the registered Council shall, notwithstanding anything contained in any law or in any agreement, deed, a document or other document, stand transferred to the Council and shall be deemed to have been appointed and engaged by the Council in accordance with the terms and conditions of service applicable to them'. No doubt, the subsection protected the terms and conditions of the employees that they enjoyed under the old Council on their transfer to the new Council, but then this protection did not extend to disciplinary matters for the old Council, as stated above, had not made any formal rules in this regard.

6. Section 12(1) of the Act empowered the Council to appoint officers, advisors and other employees as it considered necessary for the efficient performance of its functions on such terms and conditions as it may deem fit. However, the power to .make rules for carrying out the purpose of the Act and regulations vested in the Federal Government (see section 18). Similarly, subject to the previous sanction of the Federal Government, the Council was competent to make regulations as in its opinion were necessary or expedient for achievement of its aims and objects or for the performance of its functions. (See section 19). It was the case of the respondent that the Federal Government had framed any rules in exercise of its powers under section 18 or the Council had made any regulations in pursuance of section 19 to regulate disciplinary proceedings against its employees. In the circumstances, even if the Council had adopted the Government Servants (Efficiency and Discipline) Rules in respect of its employees these did not bear the character of statutory Rules and had to be treated as mere instructions for the guidance of its officers. Reference in this context is invited to the judgment of this Court in the case of Principal, Cadet College, Kohat v. Muhammad Shoab Oureshi (PLD 1984 SC 170). The High Court therefore was not right in regarding the said Rules as of statutory nature in so far as the respondent was concerned so as to furnish it with the basis for restoring her to her post on account of their alleged violation.

7. Apart from the above legal position, there was sufficient material available on the record to indicate that the respondent had ample opportunity to defend the charges of which she was being accused and thus clear herself. She did not avail of it and instead chose to stay away from the departmental proceedings. As a result the Enquiry Committee was forced to hold the proceedings ex parte. In the circumstances her grievance that she was not given a copy of the report of the Enquiry Committee seems to be without any substance. Apart from that, it does not appear that she had ever asked for a copy of the report from the Council and that the same was refused to her. As the Government Servants (Efficiency and Discipline) Rules had no relevance to the departmental proceedings held against her except by way of departmental instructions the legality of the action taken against her cannot be tested in the light of the technical provisions thereof; all that was required to be seen was whether the respondent had an adequate opportunity to defend herself. In the circumstances, the non‑supply of the inquiry report to her or the fact that the Authorised Officer was himself the complainant could hardly be regarded as good ground for holding the order of compulsory retirement as unwarranted by law.

8. There is another aspect of the matter also. The order retiring the respondent from service was made on 16‑7‑1979. Her representation to Ministry of Science and Technology was rejected on 10‑12‑1979. She waited for almost seven years before filing an appeal before the Federal Service Tribunal which, as she must have known, was incompetent. However that may be, it was dismissed on 14‑7‑1987. She filed the Constitution petition in the High Court on 13‑9‑1990, that is, after a lapse of another three years. She has not given any reason at all to explain away why she took so long in approaching the High Court. Thus, her petition before the High Court suffered from gross laches. This by itself was sufficient to deny her the relief sought in the petition. Any one seeking restoration to the office from which he has been removed in an illegal manner has to show some measure of diligence which has been entirely wanting in this case. In the case of Chairman, District Screening Committee v. Sharif Ahmed Hashmi (PLD 1976 SC 258) this Court observed: "...... principle of ]aches is applied strictly where a public servant seeks restoration to his officer or other redress, against a wrongful order. The reason foe strict application of principle of laches in such cases is not far to seek. Having regard to the nature of his employment his office is `at pleasure' and he is to be paid out of public revenues. `Pleasure' is qualified or abridged only to the extent that if he is to be removed from service for reason of misconduct, he will be afforded `reasonable opportunity' to show cause. Nevertheless his tenure remains `at pleasure' and is removable at any time for any other cause say on account of abolition of his post. To obviate payment of unearned salary, out of public revenue, Courts of Equity have therefore insisted for invocation of their jurisdiction (which is entirely discretionary), with promptitude. Law of Limitation has not been made applicable advisedly to such a case for in that event, the matter would be beyond the discretion of the Court. It is in the light of these principles that the Courts of Equity have often refused redress for the sake of avoiding `inconvenience' or `major upset' in the administration." Reference may also be invited in this context to another judgment of this Court reported as Lahore Central Cooperative Bank Ltd. v. Saif Ullah Shah (PLD 1959 SC (Pak.) 210) where the commercial manager of a cooperative bank was denied relief against his dismissal from service on the ground that he had taken 22 months in filing the writ petition. In the case before us the delay is of eleven years duration.

9. The High Court was of the view that the order directing the compulsory retirement of the respondent was void for that reason even though she had filed the petition belatedly it could not be dismissed on the ground of laches. The finding that the order was void was based on the premises that the respondent had been illegally denied a copy of the inquiry report and the complaining officer could not have acted as Authorised Officer in the disciplinary proceedings. Once again it is difficult to subscribe to the view taken by the High Court. The impugned order was made by the Chairman and it is not disputed that he was competent to make such an order. Thus, it did not suffer from any defect of competency. This being so, even if it be assumed that the respondent was entitled to a copy of the inquiry report and the complaining officer could not have acted as Authorised Officer these defects were no more than mere irregularities which at worst made the order only voidable. Reference in this context may again be made to the observations of this Court in the case of Chairman, District Screening Committee v. Sharif Ahmad Hashmi, ibid, where the distinction between void and voidable orders, especially with reference to service matters, has been set out with clarity. In the circumstances, as even on the basis of the defects pointed out by the High Court the impugned order could not be regarded as worse than voidable the respondent could not avoid the consequence that flows from the rule of laches.

10. For the reasons stated above we accept this appeal, set aside the judgment and order of the High Court and recall the writ issued by it. There will be no order as to costs. AA./C‑144/S?????????????????????????????????????????????????????????????????????????????????????? Appeal accepted. [SU1]