1990 PLP (C (PLC(CS))

(iv) the learned counsel has also assailed the view expressed by the Service Tribunal that it is the discretion of the authority to proceed against the appellant either to proceed under section 12(ii) of the Civil Servants Act or under the provisions of Disciplinary Rules. He submitted that this view is legally incorrect. On the point, it has been submitted that it cannot be legally said that as the provisions under which the action against the appellant is taken are less stringent, the appellant is estopped to say that he should have been proceeded against under disciplinary rules which, as compared with the provisions of Civil Servants Act, are more stringent. (v) that the Service Tribunal has erroneously held that the retirement order of the appellant under section 12(ii) of the Civil Servants Act, was not passed in colourable exercise of the jurisdiction. According to the learned counsel the alleged case of the appellant falls within the ambit of the Disciplinary Rules, which stipulate a notice and inquiry prior to action and since section 12(ii) of the Civil Servants Act under which action is taken against the appellant did not stipulate any notice, it would be said that the action is tainted with colourable exercise of jurisdiction. The two provisions, the learned counsel submitted, are not synonymous and would be attracted in altogether different set of circumstances; and (vi) that as many as fifteen A.C.Rs., carrying good remarks for the appellant, have been ignored without assigning any reason and, therefore, the Tribunal has drawn a wrong conclusion that the retirement of the appellant was in public interest for his bad A.C.Rs.

5. As against this Mir7a Muhammad Nisar, the learned Additional Advocate‑General, appearing on behalf of the Government, has controverted all the stands taken by the appellant and contended that the action taken by the Government under section 12(ii) of the Civil Servants Act was in public interest and it was not necessary for the Government to proceed under the stringent provisions of the Disciplinary Rules.

6. We have considered the arguments advanced at the Bar. In the first instance we deem it proper to take up points Nos. (iii), (iv), (v) and (vi) listed above. Let us look into the method and way in which the learned Service Tribunal has disposed of the question of colourable exercise of powers. This Court, vide its judgment dated 8‑3‑1988, remanded the case to decide, amongst others, the following two questions also:‑ (a) Whether the authority passed the order dated 18‑9‑1985 influenced by the incident dated 15‑9‑1985? (b) In case the answer is given in affirmation, whether the case of authority is colourable exercise of powers?

7. The Tribunal answered these issues in the following way:‑‑ "Keeping in view, the circumstances of this case, we are convinced that the authority passed the order influenced by the action of the appellant, evidenced in letter of the Secretary to the Prime Minister. The second aspect, whether the powers were exercised in colourable manner, we have to refer to the material, i.e., the service record as well as the document described hereinbefore."

8. In the circumstances, the question which would need consideration is as to whether the order of the Government would be considered as to have been passed in colourable exercise of the powers and jurisdiction or it would be said that it was correctly passed within the spirit of section 12(ii) of the Civil Servants Act. If the order can be considered to have been rightly passed under section 12(ii) of the Civil Servants Act, the order needs no interference, but if the order could not or ought not to have been passed under the provisions of section 12(ii) of the Civil Servants Act and it only attracted the provisions of Disciplinary Rules, the order being bad in law is to be recalled. The appellant, it is held by the Service Tribunal, was retired under section 12(ii) of the Civil Servants Act mainly influenced by the incident of 15th September, 1985.

9. What was this incident? It is covered by a note made by Mr. A.R. Saleem, the Principal Secretary to the Prime Minister on 10‑10‑1985. This note was endorsed to the Accountant‑General with a copy to the Chief Secretary.

10. Let us see what the note is. It reads as under:‑ The alleged incident of 15‑9‑1985 under which the appellant is said to have offered to the Prime Minister the bribe or `nazrana' in the sum of Rs.5,000, in the estimation of the Service Tribunal, was the immediate cause of the retirement of the appellant. Though we do not find, neither we are shown any order or note made by the Government prior to the appellant's retirement order showing that it was decided to retire the appellant on the basis of the alleged incident of 15‑9‑1985, yet since the Government has not challenged the finding recorded by the Service Tribunal which was also owned by the Additional Advocate‑General, appearing on behalf of the Government, during the course of arguments in this Court and before the Service Tribunal, there remains no alternative for us to hold that the immediate cause of the appellant's retirement was the alleged incident of 15‑9‑1985 referred to above.

11. It maybe observed here that the compulsory retirement is different from removal or dismissal. Removal and dismissal can be made under the Disciplinary Rules wherein elaborate inquiry is needed. We are also alive to the fact that there may be variety of reasons which may compel a Government to compulsorily retire an officer having completed the period of service qualifying him for pension and the Government alone is the best judge of those reasons and it would neither be possible nor admissible for the Courts to sit on the judgment over the action of the Government. But one thing is certain and settled that in such cases the order of retirement must be on the basis of material which may suggest that the order was in fact passed within the spirit of section 12(ii) of the Civil Servants Act in public interest. It is correct that the Courts have no competence to look into the desirability or otherwise of the order passed, but the Courts positively are clothed with the authority to determine the fact as to whether, in the circumstances of a given case, the order is passed under a certain Act or it is only disguised as such and the proper course was to proceed under some other law or rules. Therefore, we are legally bound to dive deep to know as to whether the reasons and grounds which prompted the Government to retire the appellant, a public servant, undcr section 12(ii) of the Civil Servants Act in fact existed to invoke the provisions of section 12(ii) of the Civil Servants Act or they are perfunctory or artificial to suggest that the retirement has in fact been influenced otherwise than in the interest of public.

12. We are not oblivious of the fact that there may be circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for his being kept in service in public interest. An intelligent and efficient public officer may not in circumstances, be thought fit to be kept in service and in certain circumstances may be considered as unsuitable to be retained in service in public interest. On the other hand in some cases even an officer of average capability may be regarded to be a fit person to be kept m I service. This is a matter which an employer can determine and, therefore, it must' necessarily be left to the satisfaction of the employing authority. But in this age, when the fundamental rights and the rights of employees duly recognised in Islam arc being respected throughout the World, we cannot give unfettered authority to the Government to do whatever it likes even disregarding the provisions of law: and rules. Therefore, if the material against a Government servant leads to the B conclusion that he is guilty of misconduct it would not be in the public interest to retire such an employee under section 12(ii) of the Civil Servants Act; rather the ' public interest would be best served if he is proceeded against under the provisions of Disciplinary Rules. In such circumstances if action is taken under section 12(ii) of the Civil Servants Act, it would be construed to be a disguised action not for the purposes stipulated under section 12(ii) of the Civil Servants Act and naturally such an act cannot sustain as the same is to be construed to be an illegal action. Such an order naturally is to be termed as to have been passed not for the purposes of public interest stipulated under section 12(ii) of the Civil j Servant,,, Act but for the purpose different from the one stipulated under section 12(ii) of the Civil Servants Act. As said earlier, the power of the Courts to look into the causes to determine the real intention of the Government cannot be taken away and in fact such a power is inherent in the Courts.

13. In cases calling for action under the Disciplinary Rules, referred to above, another factor, i.e., the‑possibility that at times the Government may, for avoiding the notice and inquiry, choose to proceed against a Government servant under section 12(ii) of the Civil Servants Act on grounds not admitting the provisions of the Civil Servants Act, cannot be totally ignored and this aspect should always receive due consideration at the hands of the Courts. it is necessary to pass such an order in public interest. If such a decision is arbitrary, it is liable to be interfered with by the Courts. Our view is fully supported in Union of India v. J.N. Sinha A I R 1971 SC 40.

15. The law is well‑settled and is consistently recognised all over the world that in statutes of the type (Civil Servants Act), regard should be had to the former law, the defects or evils to be cured or abolished, or the mischiefs to be remedied, and the remedy provided. They can only be interpreted liberally if a case can fairly be brought within its scope and not otherwise. We arc supported in our view by Corpus Juris Seeundum, Vol. 82, page 919.

16. Besides, under the general rule of construction of remedial statutes, the duty to construe a statute liberally is subordinate to the general purpose that all statutes should b; construed and applied in such a manner as to accomplish the legislative intent. Such a law should not be applied for the purposes and objects I entirely beyond those mentioned therein. Likewise the rule of liberal and beneficial construction should never be applied so as to extend the application of statutes to cases (as the case is before us) not within the contemplation of the legislature as any attempt on the part of the Courts to do this would constitute judicial legislation. From foreign jurisdiction, we are fortified in our view in Keystone Mining Co. v. Gray, C.C.A. 3 (120 F. 2d 1), Brown v. Glick Bros. Lumber Co., D.C. Cal. (52 F. Supp. 913), Watkinson v. Adams (103 P. 2d 498,187 Oki. 432) Christensen v. Hennepin Transp. Co. (10 N.W. 2d 406, 215 Minn. 394, 147 A.L.R. 945).

17. Therefore, on the above statement of law which admits of no doubt, if we say that even cases which fairly come within the scope of the Disciplinary Rules can be brought within the scope of section 12(ii) of the Civil Servants Act, it would be an interpretation not warranted under law. The Service Tribunal, we arc convinced, has made an interpretation which amounts to a judicial legislation not justified under law. Whether a party pleads a law or rule is immaterial because as observed in Corpus Juris Sccundum, Vol. 82, page 1019, the "statutes are read into every pleadings".

18. Coming to the instant case, if the appellant, as alleged, had offered briber or 'nazrana' to the Prime Minister, the appellant would be considered to be guilty of gross misconduct and beneficial and less stringent provisions of section 12(ii,) of the Civil Servants Act as compared to the provisions of the Disciplinary Rules cannot be attracted in public interest. If such a provision is made applicable it would be said that action has been taken under a law whose provisions were not applicable to the case. In such‑‑cases, the public interest would be best served if he is proceeded against under the stringent provisions of Disciplinary Rules. In such a case action under the provisions of Civil Servants Act would be considered to be illegal exercise of the powers and such an action cannot sustain.

19. The Annual Confidential Reports of the appellant have also been taken, into consideration by the Service Tribunal. The Service Tribunal is of the opinion that the Prime Minister also felt advised to take action under section 12(ii) of the Civil Servants Act on the basis of confidential reports. These confidential reports relate to a remote period and they would not be relevant for the purpose to determine the fad as to whether a person should be retired compulsorily or not. Even otherwise, most of the annual confidential reports which are in favour of the appellant have not been taken into consideration by the Service Tribunal and thus the annual confidential reports read against the appellant provide little rather no ground to hold that the retirement of the appellant was effected in public interest. We are supported in our view in J.D. Shrivastava v. State of M.P. A I R 1984 SC

630. The learned Additional Advocate‑General, during his arguments, has also placed no reliance on the annual confidential reports to support the funding of the Service Tribunal.

20. Besides, on perusal of the entries in the personal file and confidential reports of the appellant, there is nothing to show that suddenly there was such deterioration in the quality of the work of the appellant or integrity so as to necessitate his compulsory retirement. Therefore, we are convinced and it is also agreed by the Additional Advocate‑General that the order is only passed influenced by the incident of 15‑9‑1985 and the annual confidential reports have been illegally read into evidence.

21. What do we mean by colourable exercise. For the meaning of the word "colourable" we may refer to Black's Law Dictionary. It says:‑‑ That which is in appearance only, and not in reality, what it purports to be, hence counterfeit, feighned, having the appearance of truth." In Webster's Dictionary, this word has been explained as under:‑ "

1. Capable of being colored. 2. designed to cover or conceal; apparently, valid or plausible, but actually specious; as a colorable pretense; a colorable excuse.' It thus admits of no doubt that the action against the appellant under section 12(ii) of the Civil Servants Act is a pure and simple incorrect and illegal exercise of jurisdiction. Such a resourse is in fact misuse of the statute or law because the appellant, for the alleged act of 15‑9‑1985, ought to have been proceeded against under the Disciplinary provisions of Service Rules. It appears n that the Government was probably ill‑advised to proceed under Civil Servants Act r and not under Disciplinary Rules.

22. The Disciplinary Rules, it is to be noted, provide an opportunity and notice to the appellant to defend himself. Proceedings against the appellant under section 12(ii) of the Civil Servants Act, therefore, were neither desirable nor legal. The possibility of the appellant to emerge as innocent if proper inquiry would have been conducted under the Disciplinary Rules, cannot be excluded. Therefore, there can be no room for the argument that since the sole support for the accusation against the appellant consists in his alleged offer of bribery/nazrana to the Prime Minister, no inquiry was necessary as stipulated under the Disciplinary Rules. This is an argument which is to be discarded outright.

23. Therefore, our conclusion is that if from material disclosed it appears that the action taken against a Government servant was merely in illegal exercise of or an abuse of powers, such an order shall be considered to have been passed not in public interest and is to be struck down. We are fortified in our view in Ch. Muhammad Ismail v. The Punjab Province P L D 1956 Lah. 129, Zafar‑ul‑Hasan v. The Republic of Pakistan P L D 1960 SC (Pak.) 113, Joygun Bibi v. The State P L D 1960 SC (Pak.) 313 and Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri P L D 1969 SC

14. All the above authorities were considered by Justice Hamoodur Rahman, Chief Justice (as he then was), in Lt. Col. Farzand Ali v. Province of West Pakistan P L D 1970 SC 98 in which it was observed:‑ "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 compel 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 Court 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 abused of power."

24. Therefore, we are of the considered view that ordinarily, it is for the Government or the competent authority to see as to whether public interest demands the retirement of a public servant. The Service Tribunal or this Court will not interfere with or revise the opinion of the Government, if there is anything on which the Government could reasonably proceed under section 12(ii) of the Civil Servants Act in public interest. But there must exist circumstances to suggest that the action was taken in public interest. Thus, if circumstances show that the order was made in illegal exercise of powers for the purposes different from the one stipulated under section 12(ii) of the Civil Servants Act, the order will be struck down. In such event, the presumption attached under section 12(ii) of the Civil Servants Act that the retirement has been effected in public interest stands rebutted; and it would be said that the removal was made not in public interest, rather was made in illegal exercise of powers not in accordance with law, i.e., section 12(ii) of the Civil Servants Act.

25. In the case before us, in the estimation of the Service Tribunal, the Government in taking action has taken into consideration the incident of 15‑9‑1985 to retire the appellant under section 12(ii) of the Civil Servants Act. This fact is even admitted by the Advocate of the Government (Additional Advocate‑General). In the circumstances, the Government failed to proceed in accordance with law, i.e., within the spirit of section 12(ii) of the Civil Servants Act. Therefore, we are of considered view that the contention that the Government has not exercised its discretion in a judicial spirit in the sense that the Government has allowed consideration to affect its decision which has no relevancy under the terms of section 12(ii) of the civil Servants Act, has substance. If the Government has allowed itself to take into consideration a matter which had no bearing upon the merits of the case, it would be said that the Government has not exercised its discretion properly. We are fortified in our view in Rex v. London County Council (1915) 2 KB 266.

26. Whether the order was urgently called has also importance. The Prime Minsiter (Government), it is the appellant's case which is also owned by the Service Tribunal, had passed the order mainly influenced by the incident of 15‑9‑1985. The alleged incident constitutes grave misconduct and the appellant was required to be proceeded against under Disciplinary Rules. The appellant could be suspended and there was hardly any need for immediate order of retirement.

27. We agree with the learned Service Tribunal that at the time the order was passed, no notice was visualised under section 12(ii) of the Civil Servants Act. Nevertheless, since we have come to the conclusion that the order was passed in illegal exercise of the power, the same needs to be recalled. The Government cannot be given unfettered powers to have its own ways in choosing the law or rules best suited to it. If we allow this, it would not only be unjust but would also open door for arbitrary actions.

28. It is to be noticed that the legislature which grants powers to an authority to pass an order wants it to be exercised fairly, reasonably arid cautiously. It cannot be said that the legislature supports caprice, malice or wanton action. These are evils and evil the legislature cannot intend. We believe that the Service Tribunal was also conscious of the fact that the order passed by the Government was not in public interest within the spirit of section 12(ii) of the Civil Servants Act. We say so because the Service Tribunal allowed the appellant all benefits suo motu up to 1‑12‑1987 without any request.

29. We may not, however, be misunderstood to be saying that in every case of exercise of executive powers the Court will itself determine what is the proper order to be passed and so substitute its judgment for that of the executive. That would be usurping the functions of the executive. Therefore, where the order is passed within the spirit and in conformity with the relevant law, it would be said that the order is passed justly, fairly and reasonably and the Court Will not disturb such an order. These are the only limits of the inquiry by the Court But statutory powers must be exercised reasonably and with due care. A body exercising statutory powers cannot rely on good faith alone for escaping the jurisdiction of the Courts if it can be shown that the action taken is otherwise tainted with some glaring defect even short of mala rides, as the circumstances of this case suggest.

30. It is to be noted that a multitude of Acts, something is left to be done according to the discretion of the authority on whom the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of the statute otherwise the act done would not fall within the statute. In exercise of discretion an act is to be done according to law and not humour; it is to be not arbitrary, vague and fanciful, but legal and regular; to be exercised not capriciously, but on solid grounds and for substantial reasons. It must also be exercised within the limits to which an honest man ought to confine himself, that is, within the limits and for the object intended by the legislature.

31. Our conclusion, therefore,. is that the Government has exercised the discretion to retire the appellant under the provisions of section 12(ii) of the Civil Servants Act in an illegal fashion as in the circumstances, the provisions of Civil Servants Act had no application and the appellant could only be proceeded against under the Disciplinary Rules. Since we have come to the conclusion that the action taken by the Government was not in conformity with section 12(ii) of the Civil Servants Act and needs to be recalled, the question whether the removes of the appellant constitutes a stigma necessitating a notice prior to his retirement remains only of academic interest and so we leave it undecided to be looked into where its decision is necessary.

32. Before parting with the case, we deem it proper to refer to the case entitled Abdul Karim v. The West Pakistan Province P L D 1956 SC (Pak.)

298. This case was relied upon by the learned Additional Advocate‑General in support of his argument that it was open to the Government not to have recourse to.the power of dismissal stipulated under the Disciplinary Rules. We have examined this case. It has no relevancy to the case in hand. In that case, Abdul Karim, a temporary Mechanical Overseer in the Pakistan Public Works Department was employed in the year 1946 temporarily with the condition that his service may be terminated on one month's notice. On 23rd October, 1948 a list of charges of misconduct was served on him and he was asked to show cause why he should not be dismissed. He answered the charges but no action was taken on the basis of that enquiry. He was, however, served on 8th December, 1948 with a notice by the Superintending Engineer terminating his services on the expiry of one month from 9th December, 1948. In this background it was contended that the termination of the petitioner's services was mala fide one as earlier it was not thought advisable to take action against him on the basis of the inquiry held. The Court repelled the contention with the observation that it is easy to conceive of cases where the authority competent to dismiss a public servant employed on the same conditions and it would hardly make any difference that after due inquiry no drastic step of dismissal was taken.

33. Obviously this case has no similarity with the facts of the present case. Abdul Karim in that case was employed on the condition that he could be removed on one month's notice as stipulated in his appointment order. No doubt, the inquiry was held against him earlier to his removal but no action was taken against him. Therefore, the law laid down in that case, we believe, has no applicability to the facts of the present case. The upshot of the whole discussion is that for the above‑stated reasons, I we accept this appeal, set aside the order of Service Tribunal dated 20‑4‑1988 and recall the retirement order of the appellant made by the Government on 18‑9‑1985. However, the Government, if feels advised; may proceed against the appellant under the relevant rules. The appeal, thus, succeeds with costs. A.A./276/SC.A Appeal accepted.