1979 PLP (C (PLC(CS))

7. It was first of all contended by the appellant that the grave errors occurring in the impugned order referred to above itself show that the entire action was mala fide as no proper consideration had been given while making the order of retirement etc. He stated that had the order been made in good faith then the functionaries of the Government should have taken time to scrutinise all the affected cases. This was not possible in a period of two days and that all the persons who were affected by the impugned order were those against whom one or the other functionary of the Government had some grudge and desired to get rid of him and thus made the recommendations to the Chief Martial Law Administrator to that effect. No doubt there are errors in the order and the order was passed only two days after the promulgation of M. L. R. 114, we do not think this vent in itself sufficient to prove mala fide as a whole. Firstly enquiry might have been conducted long before M. L. R. 114 was promulgated and a tentative decision had been made earlier. The promulgation of M. L. R. 114 was intended to derive legal power for implementing decisions which after scrutiny might have been made earlier, secondly the errors in the Notification by itself by no stretch of imagination prove mala fides. It may be that when the matter was scrutinised the position was the same which is shown in the impugned order but during the intervening period the circumstances changed and there occurred errors to addresses and designations etc. In any case it is not for the appellant to challenge the order as a whole and he has to plead his own case: The only irregularity apparent in appellant's case is that his name occurred twice in the list. That obviously is a clerical mistake and by itself does not prove mala fides on the part of any person.

8. The appellant has however established before us that he had knocked the doors of the Court to get his seniority and at his instance one of his superior was called by the Supreme Court. It is also established that when the order of the Supreme Court made in favour of the appellant was not implemented he threatened the officer responsible for that inasmuch as a notice was issued to them that if the order was not implemented he would move the Court for contempt. To a judicial mind such a course may not appear mala fides but the executive authorities who have a different yard stick for administration are not expected to take the threat for contempt of Court as a routine matter. This must have annoyed the two persons mentioned by the appellant and it is prima facie evident that these two officers must have recommended the name of the appellant for retirement either by stating true facts or not giving any reason for the punishment to be awarded to the appellant.

9. The learned counsel for the respondents has based his entire arguments on the point that the competent authority who retired the appellant was the Chief Martial Law Administrator and that since the appellant has not alleged any mala fide on his part, the burden does not shift on the respondent to show that the action had been taken bona fide. In this respect the decisions of the Punjab Administrative Tribunal were referred to, in which somewhat similar view had been taken. For instance in one of the cases it was pointed out that the mala fide was not prima facie proved because the aggrieved person had not been able to establish that the competent authority was influenced by the persons who cherished grudge against the civil servant. We do not think in the present case the identical position arises. It cannot be denied that the then Chief Martial Law Administrator did not personally know each and every officer. He must have acted on the advice of his officers who were directly connected with the persons affected by the Notification. If the allegations of mala fides had been against the persons not connected with the administration then perhaps we would have ignored the allegations and directed the appellant to establish that the said persons had influence over the Chief Martial Law Administrator and that in fact they had spoken to him to get revenge from the appellant. In the instant case, however, the allegation is against the functionaries of the Government who were directly subordinate to the competent authority and their advice is expected to count. In the case of Muhammad Ismail Talukdar v. Government of East Pakistan and 2 others (1) the Court had taken the view that since the confidential Clerk of the Deputy Commissioner wag ill‑disposed towards the aggrieved party, it could not be ruled out that he prevailed upon the Deputy Commissioner in taking action against the said party.

10. In the case before us mala fides against Mr. Ali Hussain the then Secretary, Ministry of Communications and Mr. O. H. Muhammad, Director -General, Telegraphs and Telephones has been specifically alleged. It ha been established that the latter was called by the Supreme Court during the course of hearing. There is no doubt that the appellant by serving a notice through his counsel on Mr. Ali Hussain and Mr. O. H. Muhammad for proceeding in contempt, had earned their displeasure. The Department to which the appellant belongs was directly under the control of these two functionaries of the Government. A prima facie case of mala fides against c these two persons has thus been made out and there are reasonable ground for inferring that it was at the instance of these two persons that the Chief Martial Law Administrator ordered the compulsory retirement of the appellant. On the ratio of the supreme court decision in the case of federation of Pakistan v. Screed Ahmed Khan (referred to above) therefore, we are now in a position to ask the respondent to make available to us the relevant record including any investigation carried out in the matter which justified the competent authority to take action against the appellant on one of the grounds mentioned in para. (3)(P L D 19 7'4 Lah. 54 5) of the M. L. R.

114. The respondent should also place before the Tribunal the entire record in which the review notation of the appellant was examined and disposed of under M. L. R.

116. The record including the ACR Dossiers of the appellant, his personal file, the investigation carried out by any investigation agency before the passing of the impugned order or after the passing of that order and before the disposal of the review petition made by the appellant under M. L. R. 116 should be made available to the Tribunal on the next date. The appellant having made out a prima facie case it has become necessary and it is now incumbent upon the respondents to satisfy this Tribunal that the appellant v was corrupt or had a reputation of being corrupt or had assumed a style of living beyond his known sources of income, or was guilty of misconduct,) or was inefficient or had for any reason ceased to be efficient on the date of retirement or was in any way engaged or was reasonably suspected of being engaged in subversive activities. The failure of the respondents to produce the complete record would raise a presumption against it under section 114 of the Evidence Act, 1872 the principles of which are applicable in all proceedings where vested rights are involved. A date shall be fixed in due course for hearing of the appeal afresh for examining the documents which will be placed before us by respondents in compliance with this order. On the same date further arguments shall be heard on the material which is produced. A copy of this order shall be sent to the appellant, Establishment Division (respondent) Ministry of Communication and the Director General Telegraph and Telephones for furnishing necessary material to counsel for the respondent for placing before us on the next date of hearing, HEARD ON 1‑3‑1979].‑This order shall be read in continuation of our order passed on hearing held on 18‑12‑1978. The Full Bench of the Tribunal in the previous order had come to the conclusion that in this case, the appellant, Nazir Ahmed, has been able to make a prima facie case of mala fides against Mr. Ali Hassan, the then Secretary, Ministry of Communications and Mr.

0. H. Muhammad, the then Director‑General, Telegraph and Telephones. We consequently required the respondent Depart ment to make available to us the record of the case, to enable us to come to the conclusion if the order passed under M. L. R. 114 was justified, and further whether the review petition made by the appellant under M. L. R. 116 has rightly been refused.

2. We must appreciate the help rendered to us by the Establishment Division in this respect. The learned counsel for State, Mr. Afazuddin Ahmad and the Departmental Representative Mr. M. A. Mutti Siddiqui, Section Officer, placed the record before us which had been required. No record has, however, come from the Ministry of Communications and the Director General, Telegraph and Telephones. However, even in the absence of that record, there is sufficient material which would enable us to reach a considered conclusion. It appears that the name of the appellant was sent by Mr. Ali Hassan the former Secretary of the Ministry of Communications against whom mala fide was alleged. In the letter addressed by Mr. Hassan to the Secretary, Establishment Div, a list was forwarded which included the name of the appellant saying that "he was one of the persons who was reputed to be corrupt". In this letter, however, no details were mentioned and nothing was stated as to on what grounds Mr. Ali Hassan considered that the appellant had the reputation of corruption.

3. When the review proceedings were initiated under M. L. R. 116, the name of the appellant was shown at S. No. 14 and the following remarks were made "While working as Divisional Engineer (Phones), Mr. Nazir Ahmed was responsible for allowing huge Government expenditure to be incurred without justification. Huge payments were made to a contractor in items like gardening and painting of switch room equipment, without justification. The work was done in collaboration with Mr. Muhammad Rafiq, S. D. O. (Telephones)." It was also pointed out that in 1952‑53, the appellant was warned for poor constructions of D.

1. K. Line, and in 1953‑54, it was observed that he required proper supervision. In the report of 1967, it was mentioned that the performance of the officer has been rather poor. In the remarks column is was mentioned that the retirement was justified.

4. We have seen the latest Report of the Officer which shows that he on the whole was an average officer, but in Part II of the form of Confidential Report in eight items, he was graded 'A' and in six items he was graded 'B'. At S. No. 21 he was shown to be living within known means of income. It was also mentioned in the said report that lie was taking reasonably good care of observance of security measures. His integrity was also graded as 'A'. In the pen picture, he was shown to be an experienced and well‑behaved officer. Thus the latest report, as a whole, shows the appellant to be a person fit for retention in service and also fit for promotion.

5. It appears that the appellant was retired on account of having the reputation of being corrupt. His service record does not show any adverse entry with regard to his integrity. It is further apparent from the record that the matter of retirement was referred, to the Inspector‑General of Police, Pakistan Special Police Establishment and he after proper enquiry sent a report with the following conclusions: "After completion of the enquiries, none of the allegations could be substantiated."

6. The complete enquiry by the Police Establishment is not before us, but the report of the Police leaves no room for doubt that there was nothing available to the Investigation Agency to come to the conclusion that the appellant has the reputation of being corrupt. It is not clear if this report of the Inspector‑General of Police was brought to the notice of the President and the Chief Martial Law Administrator; for if, it had been placed before him, the appellant would have been definitely exonerated because the charge of corruption was not based on any material evidence whatsoever.

7. In view of the above facts, we have come to the conclusion that the retirement of the appellant was not based on any of the grounds mentioned [E in para. (3)(i) of M. 1.. R. 114, and consequently the order was mala fide and had no effect in law.

8. The result is that we accept this appeal, set aside the order of the retirement of the appellant, and direct that he should be deemed to be in service from the date of retirement, with all the consequential benefits.

9. Parties be informed accordingly. Appeal accepted.