1988 PLP (C (PLC(CS))

MUHAMMAD SIDIQUE FAROOQI (CHAIRMAN).‑‑This appeal is directed against the Government order No. Admin/A‑27(61)/84 dated 25‑11‑1984, whereby the appellant was retired from the service and order No.Admin/A‑27(162)/86 dated 23‑11‑1986, through which his Review Petition was rejected by the Government. The appellant had the status of Secretary to the Government, in the service of Azad Jammu & Kashmir. He was transferred as O.S.D. in August, 1983 and later on retired from service, under Section 12(ii) of the Civil Servants Act, 1976, vide order dated 25‑11‑1984. He moved a Review Petition, which was also rejected by the Government, vide order dated 23‑11‑1986.

2. We heard the counsel for the parties and perused the record. the appellant contended that he was not charge‑sheeted nor given any opportunity of explaining his position, if there was any allegation against him. No enquiry was conducted against him. It was pleaded that appellant had unblamished service record for about 34 years and his retirement was not lawful. It was also contended that provisions of Section 12(ii) of Civil Servants Act, 1976 are violative of the injunctions of Islam as set out in Holy Quran and Sunnah, therefore, the action taken in pursuance of such a law is void. Lastly, the appellant alleged that in the aforesaid circumstances, the order of retirement is mala fide or at least colourable for there was no justification for passing of such an order. The respondent denied the allegations and mainly contended that it was within the competence of the appointing authority to order the retirement of any officer, in public interest, who had completed 25 years service, qualifying for pension, therefore, no exception can be taken for such retirement.

3. So far as the question relating to issuance of show‑cause notice or holding of any enquiry is concerned, the law is very much settled that when there is any charge against an officer, which falls within the ambit of Efficiency and Discipline Rules, the summary procedure under Section 12 of Civil Servants Act should not be resorted to. However, in the case of retirement, simplicitor under the provisions of section 12(ii) of the Civil Servants Act, 1976, a show‑cause notice is not necessary. Any enquiry or a charge‑sheet is also not a prerequisite for such an action.

4. There are only two substantial grounds in this appeal. Firstly that the provisions of Section 12(ii) are violative of the injunctions of Islam. Secondly, it was argued that in view of the meritorious service record of the appellant, the retirement was not justified and the exercise of power in this respect was colourable. The action taken by the Government was not attributable to the conduct of the appellant rather it was actuated by some factors, not concerning the performance of the appellant. The learned counsel also referred to some case‑law to show that in case of an officer with good service record, action under Section 12(ii) of the Civil Servants Act, 1976 could have not been taken. The Additional Advocate‑General argued that all the points raised by the counsel for the appellant have been decided in the judgment, delivered in the case entitled Raja Muhammad Niaz Khan v. Azad Jammu & Kashmir Government. He also argued that plea of mala fide is to be proved. He cited P L D 1974 S C 151 and P L D 1986 S C (A J & K)

87. The Additional Advocate‑General contended that in the light of these decisions, the appeal merits dismissal because the Government in its discretion is competent to pass the retirement order of an officer, who has completed 25 years' service, qualifying for pension.

5. We felt inclined to go through the service record of the appellant and also wanted to know the circumstances, in which the appellant was removed from the post of Secretary and posted as O.S.D. and then ultimately retired from the service. The record shows that there were some cases of misappropriation of foodgrain in the Food Department, which was functioning under the administrative control of the appellant, in his capacity as Secretary. Immediately after coming to light, of the misappropriation cases, the appellant was removed from the post of Secretary. The appellant, while he was in office as the Secretary, had made a report to the Government, regarding the liability for the misappropriation/ embezzlement. The then Chief Executive, after perusal of the report asked the Chief Secretary to submit his comments, whether the Secretary Food was responsible for the affairs and whether he was also in any way involved. The transfer of the Secretary from his post as O. S. D. shows that the action of the Government was the result of the impression, created by the factum of misappropriation, which influenced the mind of the authority at that time. It had, therefore, become necessary to find out whether the Secretary was responsible for this affair. We summoned the relevant file and found that after the transfer of the appellant, from the post of Secretary Food, the Chief Secretary had examined the matter and submitted his comments on 31‑8‑1983. The Chief Secretary in his comments had exonerated the Secretary from any involvement and stated that job of the Secretary concerns in formulation of policy. The matters of fraud or misappropriation pertain to the officers, working in the field staff. The matter of misappropriation also seems to have remained under the consideration of the Inspection Team. In the note of the Chairman Inspection Team, it was also made clear that the Secretary was not responsible for the misappropriation. The relevant portion is reproduced below:‑ In the report of Secretary Food, who succeeded the appellant, and in the report of Inspection Team, some officers were held responsible. No major penalty was imposed on any officer, who were shown reasonable, by the Secretary Food. Only one officer namely; Director Food was retired from the service, alongwith the appellant out of the officers, held guilty by the Inspection Team. The other officers, except Food Grain Inspector are still serving in the department, rather one is promoted to discharge the higher responsibilities of Director. From the above fact, we are persuaded to consider the service record of the appellant as a whole. The summary of entries of A.C.R. made available by the Services Department is as under:‑ YEAR REMARKS 1955: Special Remarks A young man of retiring habits, extremely well behaved and well balanced. Col. 9(c) Total Assessment: Respectful and respectable in department and behaviour was shaping very well indeed and would turn out to be an excellent officer. Sept, 1957 to June, 1958 9(b). With proper guidance and experience, he can become a good officer. 9(c). An average officer 1958: 10(c) Average. 1959: 10(b) A hard working and intelligent Officer. 10(c) Good 1961: 10(b) A fairly intelligent officer but he failed to work hard or evince keenness in his work, during the year. 10(c) I should say his slowness in the disposal of the cases does not reflect well on his work amongst the public. He requires a great shaking so that he may improve in the realization of his responsibilities. 1962: 10(c) He had been warned to improve himself but he has not improved. His work has been not even average, during the year under report. 1962: (As District Magistrate) (D.M) Have seen very little of his judicial work. Has good reputation. 1963: 10(c) Average. Sd/- (Chief Justice) 1964: 10(b) A very balanced and good officer. 10(c) Very good. 1964:(As District Magistrate)

9. He is an honest and efficient Officer. I think every D.M. should serve a Thana for himself and the challans from that Illaqa should be tried by him. Sd/ (Chief Justice) 1965: 10(b) A very mature, well behaved and balanced officer. His only defect is that he is slow in disposal. 10(a) Good. 1966: 10(b) Not written 10(c) Good 1972: (January to September) (Report by the Census Commissioner) Special Report on Census duties:‑ He performed his duties as Census District officer efficiently and deligently. The census operation was successfully conducted in his district. Pen Picture:- Not written. Remarks of Countersigning officer: - Although the census of operations were conducted by him, satisfactorily, he has not yet submitted his accounts (Acquaintance Rolls etc.) for the funds placed at his disposal. Sd/ (Census Commissioner) 01-01-1982 to 02-07-1984. The 3 reports are available, for this period. All the 3 reports were written on 22‑5‑1985, after the retirement of the officer. The respective columns have not been signed or initialled by the officers. These reports do not conform to the instructions, relating to the writing of A. C. R. nor these have been written at the appropriate time, prescribed for writing of A. C. R., therefore, these reports from 01‑01‑1984 to 02‑07‑1984 cannot be brought under consideration, however, there is no adverse entry, even in these reports. In the general assessment, i.e. Part 3, the officer was shown as equivalent to the majority of officer in the rank by indicating Average."

6. We now refer to the case‑law submitted by the counsel for the parties. Additional Advocate‑General, counsel for the respondent had relied on the case of Raja Muhammad Niaz Khan v. Azad Jammu & Kashmir Government, decided by this Tribunal and also cited P L D 1974 S C 151 and P L D 1986 S C (A J & K)

87. In the case of Raja Muhammad Niaz Khan v. Azad Government, it was held that allegation of mala fide should be alleged like any other fact and proved. In the other two cases, similar observations have been made that allegation of mala fide cannot be considered, unless specifically taken up in the pleading and proved. In the pleadings, the grounds of mala fide or colourable exercise of powers were not initially taken up by the appellant but later on these were incorporated in the memorandum of appeal, through an amendment, allowed by the Tribunal. So far as the question of proof is concerned, it is to be adjudged from the record, available with us. 7: Khawaja Muhammad Saeed, learned Advocate for the appellant had cited 1984 P L C 360, P L D 1974 S C 151, 1986 S C M R 2000, P L D 1973 S C

49. In the case; Muhammad Akramullah v. Secretary Establishment Division , 1984 P L C 360, it was held at page 363 as under: ‑‑ "

13. We have carefully gone through the A.C.Rs. of the appellant and have come to the conclusion that on the basis of this record, there should have been no reason or justification to apply Section 13(ii) in his case." Again, the page 365, it was held:‑‑ "

17. We have come to the conclusion that the retirement of the appellant has been a mala fide act both in fact and in law. As ruled by the learned Supreme Court, in the case cited by us, we hold the retirement of the appellant under Section 13(ii) of the Civil Servants Act, 1973 to be incompetent, unlawful and of no legal effect. Such being the legal position and the order of appellant's retirement being without jurisdiction to have full jurisdiction of adjudication in this case, section 13(1) of the P. C.O. 1981 notwithstanding. '

18. In view of the foregoing averments, we set aside the order of appellant's retirement, under Section 13(ii) of the Civil Servants Act, 1973 and reinstate him into service w.e.f. 17th November, 1980 as if he never retired. His date of birth being 1st May, 1925, he has yet to reach the age of superannuation. " The case Federation of Pakistan v. Saeed Ahmad Khan P L D 1974 SC 151 has been also cited by the Additional Advocate‑General and it is of no help to the counsel for the appellant. Similarly, the case State v. Zia‑ur‑Rehman", P L D 1973 S C 49, does not directly throw any light on the issue in the circumstances of this case. We have also laid‑down our hand on some cases. In the case "Ghous Muhammad Shah v. Province of Punjab" 1984 P L C 1539 at page 1545, it was held:‑‑ "therefore, in view of these circumstances, the possibility of placing of this entry in this A.C.R. after the said retirement, cannot be excluded. In this manner, we are fully satisfied that there was no data of record with the Government to retire the appellant in this premature manner on the strength of A.C.R." Again, at page 1547 held:‑‑ "

12. In view of the above and in obedience to the direction of Supreme Court of Pakistan, we have examined the case in the light of the appellant's service record and other relevant material and find that there was no sufficient reason for the then Governor to retire him on the simple recommendation of two Ex‑MPAs, when the entire service record of the appellant was unblemished and the complaints so gathered against him, were motivated.

13. The result is we accept the appeal, set aside the impugned order, dated 18th March 1972 and directed that the appellant would be considered to be in service as if he had never been out of service with all consequential benefits, attached to the same. However, there will be no order as to costs." In the case "Federation of Pakistan v. Nazir Ahmad Swati and another", 1986 S C M R 2001, the Supreme Court of Pakistan held at page 2002, as under:‑‑ "

3. We have heard the learned counsel for the parties and gone through the record of the case. As the case stands, we are of the view that the order of the Service Tribunal is unexceptionable because no valid ground exists to order the retirement of the respondent. There appears to be only one entry in his annual confidential report for the year 1969 while serving as Civil Judge with the Government of N.‑W.F.P., wherein it was recorded that the respondent did not appear outwardly living within his means and he was directed to remove this defect. This matter remained under correspondence for a considerably long time when finally the prayer of the respondent for the expunction of the adverse remarks was turned down." In view of the above state of law, it is held that the jurisdiction of the Tribunal is not barred in the cases of mala fide or colourable exercise of jurisdiction.

8. As already observed, the misfortune of the officer started, when there were certain cases of misappropriation /embezzlement of Foodgrain in the Food Department. The contents of Para 19 (notes) of the file relating to misappropriation show that the then Chief Executive developed the suspicion about the involvement of the appellant, in the misappropriation, so the appellant was removed from the post of Secretary and posted as O.S.D. Although, in the reports, made latter, by the Secretary Food, succeeding the appellant, the Chief Secretary and the Inspection Team, the appellant was exonerated, yet the authority does not seem to have become clear about the appellant. The appellant remained O.S. D. for sometime and then retired from service, under the provisions of section 12(11) of Civil Servants Act, 1976. Whole of the record in the form of A.C.R. has been also evaluated by the Tribunal, the summary of which has been reproduced hereinbefore. Except two or three entries, about his slackness, in the work, during the early period of his service; he has been shown to be an honest and good officer, enjoying good reputation. His experience of work, behaviour and dealing have been admired by the Chief Secretaries and Chief Executive, in all the reports, upto 1981, which were available and brought under consideration. The retirement of the appellant, on the basis of service record of the officer does not appear to be in the Public Interest. It appears that some outside factors based on motivated complaints had influenced the mind of the authority, in reaching the decision, regarding the retirement. When the Chief Executive developed the suspicion about the involvement of the appellant, in the corrupt practice or the misappropriation, the proper course was to charge sheet the appellant, so that he could defend himself. If the Chief Executive did not deem it advisable, he should have taken reports of Secretary Food, the Chief Secretary, and of the Inspection Team, into consideration. Since the adverse opinion about the appellant had emanated from the incidents of misappropriation, the decision regarding the retirement should have been based on the truth or otherwise of the allegation of his involvement in that affair. If the allegation was negated as a result of the enquiry or otherwise on the basis of the reports, further action in the form of the retirement could not have been taken. The true intent of the provisions of section 12(ii) of the Civil Servants Act, 1976 is not complied with in this case. It may also be noted that there were no general type of retirements, as were made by the Government of Peoples Party in 1975, in case of officers, completing 25 years service on 17‑5‑1975 or those ordered by the successor Government as a measure of accountability. During the period of the Chief Executive, who ordered the retirement of the appellant, there is a solitary instance of the retirement order of only two officers, under the provisions of Section 12(ii) on the basis of a case, but it is not supportable in view of the service record as well as the record, relating to that case, to the extent of the appellant. A harsh action in case of the appellant, who was exonerated in the reports and a lenient view in the case of those held guilty*in reports, reflects upon the bona fides of the action taken. It is, therefore, held that the retirement of the appellant from service, under the provisions of Section 12(ii) of Civil Servants Act was made in colourable exercise of powers, which eventually equates with an action, without jurisdiction as held in a large number of judicial pronouncements. The order of retirement is, therefore, liable to be quashed.

9. In view of our findings on the other points, the question of repugnance of Section 12(ii) of the Civil Servants Act, 1976 to the injunctions of Islam need not be resolved in this case.

10. As upshot of the above discussion, the appeal is accepted and to the extent of appellant, the order of retirement and the order Passed on the Review Petition are set aside. The appellant is reinstated to service with all the back benefits and shall be deemed to have been retired on the date of his attaining the age of superannuation. We make no order as to the costs. S.Q./55/Sr.A Appeal accepted.