2001 PLP (C (PLC(CS))

This case has its own history. The appellant while posted as Sub-Engineer in the Provincial Building Division, Sialkot, was served with a show-cause notice, dated 16-10-1982 that he was found guilty of misconduct, corruption, inefficiency and criminal breach of trust (Annexure ' A' to the Memo., of appeal). It was accompanied by statement of allegations. The appellant denied the allegations vide his written reply, dated 22-10-1982 (Annexure 'B'), and took up the plea that the work allotted to Muhammad Arshad contractor involving more than 25,000 Rupees, it was the SDO (Ghazanfar Hussain) incharge who was personally responsible for the quality and completion of the work done as envisaged under para. 4.5(5)(a) of the P.W.D. Code. The work was finally approved by the XEN concerned and consequently, he (the appellant) could not be held responsible in any manner. Both the aforesaid SDO and the appellant were "retired prematurely" vide notification; dated 20-10-1983 (Annexure 'C') issued by the C & W. Department (respondent No.2 herein).

2. The record shows and rather it is admitted by the parties that the SDO Ghazanfar Hussain was pardoned by the authorities and was reinstated. However, the appellant could not secure his reinstatement although the C&W Department after getting necessary advice from the Law Department in terms of rule 17 of the Punjab Rules of Business, 1974 vide letters of the Law Department, dated 24-3-1996 and 17-6-1996 (Annexures H & I) had submitted summaries more than once recommending that the main accused Ghazanfar Hussain SDO had been pardoned and reinstated in service and that the appellant's case was on better footing. The recommendations made by the C&W Department were approved by the Chief Minister, Punjab and the case was submitted to the Governor more than once.

3. The appellant had also filed a Writ Petition No.4663 of 1991 which was dismissed on the ground 'of laches vide order, dated 20-11-1991 (Annexure 'F'). It was observed by the Honourable High Court that the appellant might avail himself of the remedy open to him under the law.

4. The main plea of the appellant was that aforesaid Ghazanfar Hussain SDO was responsible for the mischief, if any, and that he having been pardoned and reinstated, he (the appellant) was entitled to be reinstated that no regular inquiry was ever held in his case; that the Chief Minister having submitted his advice to the Governor with the recommendations that the appellant be reinstated being a case-of hardship, in terms of Article 105 of the Constitution of Islamic Republic of Pakistan, 1973, he was entitled to be declared as in service and that in any case he was discriminated against without any lawful justification.

5. On admission of the appeal, written objections in terms of rule 12/13 of the Punjab Service Tribunal Procedure Rules, 1975 were filed by the respondents under the signatures of Mr. Anis Ahmed Hashmi, Under- Secretary (D-II). 6: The parties were heard. On behalf of the appellant, written arguments were also filed. 7.I have carefully gone through the record and examined the argument advanced by the parties.

8. In the written comments/objections filed on behalf of the respondents jointly, it was admitted that Mr. Ghazanfar Hussain SDO was reinstated as he was granted pardon by the Governor. The advice of the Law Department as obtained by the Administrative Department was also admitted to have been brought into consideration while submitting summaries more than once to the Honourable Governor through the Chief Minister, reconunending reinstatement of the appellant. In reply to assertions made in paras. 13 to 16 of the Memo. of Appeal, it was stated in the comments:-- "The case remained under process for quite some time and after its extensive examination, appeal regarding reinstatement of Mr. Munir Ahmed was rejected and he was informed accordingly." . The assertion in para. 17(c) of the Memo. of Appeal was that the Administrative Department had submitted summary more than once recommending reinstatement of the appellant and that the same having been duly approved by the Chief Minister and submitting the case/advice -to the Governor for orders more than once in terms of Article 105 of the Constitution, the appellant was entitled to be reinstated in service and that there was no justification to reject his petition for reinstatement by order, dated 10-12-1999. Reply to this assertion as made in the written comments was "legal". Likewise, assertion in para. 17(b) of the Memo. of Appeal was that the main accused SDO Ghazanfar Hussain having been reinstated, the appellant was discriminated against. Reply to this ground was "No comments".

9. It may be noted that by virtue of section 5 of the Punjab Service Tribunals Act, 1974, this Tribunal was to be deemed to be a Civil Court and would have same powers as vested by the Code of Civil Procedure, 1908. The provisions of C.P.C. being thus, applicable to proceedings before this Tribunal, as reference could well be made to the provisions of Order VIII, rule 5, C.P.C. It ordains that allegation of fact if not specifically or by necessary implication, denied, the same "shall be taken to be admitted except as against a person under disability". Considering the assertions in the appeal and the written objections filed by the respondents, I hold that all, material facts stated in the appeal stand admitted, and legal position pressed into service for the appellant was also not controverted by the respondents.

10. It appears from Annexure G-1, that the case was processed in the Regulation Wing of the SGA&I Department and they had advised the Administrative Department vide U.O. No.SOR-I(S&GAD) 4-14/95, dated 21-6-1995 that the case of the appellant should be processed under section 22 of the Punjab Civil Servants Act, 1974 for dispensation of justice if it was convinced that injustice had been done and discriminatory treatment was meted out to the appellant. The Administrative Department then found that injustice was done to the appellant and that he was meted out a discriminatory treatment. It was thereupon that a summary was prepared for consideration of the Chief Minister who was competent to appropriately advise the Governor in an individual case of hardship, and this is what was done in this case. The Law Department was required to be consulted on legal questions under rule 17 of the Punjab Government Rules of Business 1974. The dictum in 1997 PLC (C.S.) 936 was also of the same purport.

11. An examination of the advice-letters issued by the Law Department, Government of the Punjab, on 24-3-1996 (Annexure 'H') and on 17-6-1996 (Annexure 'I') would show that its advice was based on the ruling of 1989 PLC (C.S.) 650 wherein a Division Bench of the Lahore High Court had observed that Article 270-A of the Constitution only barred the jurisdiction of the "Court" and did not in any manner affect the powers of the Governor under section 22 of the Punjab Civil Servants Act, 1974 to deal with the case of any civil servant in such manner as may appear to him to be just and equitable. The Law Department appears to have aptly advised that the Governor had unfettered powers to do justice in the circumstances of each case and that mere influx of time would not limit or abridge his powers to pass any order which may appear to him just and equitable. I am clear in my mind that the Governor was the successor of the Martial Law Administrator for all practical purposes and that under Article 105 of the Constitution of Islamic Republic of Pakistan, 1973, he was obliged to "act in accordance with the advice tendered" for the second time after reconsideration by the Chief Minister. That being so, the plea of the appellant that the advice of the Chief Minister submitted after reconsideration had entitled him to reinstatement is not without substance.

12. No regular inquiry was ever held in the manner the principle of natural justice required. It was not denied by the respondents that the appellant was not directly responsible for the mischief, if any, committed in the wake of carrying out the work allotted to the contractor at the relevant time for the reason that it involved more than Rs.25,

000. The SDO who was directly responsible was "pardoned' and "reinstated" by the same punishing authority in PLD 1984 FSC 34 the Honourable Shariat Court had declared that premature retirement, except for valid disciplinary proceedings, would be repugnant to the injunctions of Qur'an and Sunnah. The appellant was unduly discriminated against. It is time honoured rule of Constitutional law that like should be treated alike in like situations. 2000 PLC (C.S.) 697 may be seen. This principle was not followed here, although the case of the appellant was on better footing than that of his co-accused Ghazanfar Hussain SDO.

13. For all the above reasons, I accept the appeal, set aside the impugned orders, dated 20-10-1983 and 10-12-1999 (Annexures C & J respectively) as being unjust, unwarranted and of no legal consequence. The result would be that the appellant shall stand reinstated into service from the date of premature retirement. H.B.T./17/P. (Sr.Trib.) Appeal accepted.