1978 PLP [C (PLC(CS))

M. SALEEM CHAUDHHY (CRAIRMAN): In this cafe the appellant an ex‑Professor of Urology, K. E. Medical College, Lahore challenges his retirement under M. L. R. 114 ordered by the President of Pakistan. The appeal was admitted on 31‑3‑1976 to examine the plea of mala file raised by the appellant on the basis of the allegations as contained in paragraph 5 (ii), (iii), (iv) and (v) of the grounds of appeal. On the pleading of the parties the following issues were framed :‑‑ (i) Whether the retirement of the appellant under M. L. R. 114 is vitiated due to mala fide on the part of the competent authority, O. P. A. (ii) Whether the impugned order of retirement was not within the jurisdiction of the competent authority. O. P. A. (iii) Relief. The order explicitly stated that no further issues have been claimed. The appellant including himself examined 5 witnesses, viz: Major General (Retd) Haq Nawaz Khan, Dr. H. Bilal, Assistant Professor of Urology, Lady Reading Hospital, Peshawar. Dr. A. Hamid Sheikh (Retd.) Principal. K. F M. College, Lahore, Dr. Sardar Ali Sheikh (Red.) Principal, K. E. Medical College, Lahore and himself. A. W. 1, Major General (Retd.) Haq Nawaz Khan stated that he has been under the treatment of the appellant as indoor patient in Mayo Hospital, Lahore. He felt very much satisfied by his treatment and professional skill. According to him he was an efficient Doctor. He had no knowledge of any corruption on his part. He further stated that after the operation of his piles in 1968 the appellant referred him to Dr. High Ham of the Institute of Urology at London who also commended the appellant as best Doctor in his treatment in Asia. The witness also expressed great shock on hearing the appellant's retirement under MLR 114 and be hid also written to the President of Pakistan through his Ministry against his retirement. However he did concede that he never visited any outdoor patient ward under the control of the appellant. He denied having read in the News Papers that the outdoor wards of our Hos pitals were overcrowded. The witness also stated that he could not vouchsafe for the impressions of other patients of ordinary status about the appellant. Dr. H. Bilal, A. W. 2 stated that he happened to work with the appellant as House Surgeon during the year 1964 when the appellant was incharge of Urology Department of Mayo Hospital. The witness was posted as Registrar. He also stated that before the retirement of appellant the witness was deputed to Mayo Hospital, Lahore for 6 weeks course by the Lady Reading Hospital, Peshawar to get know‑how abut the operation of kidney machine. The appellant was retired while he was at Lahore. The witness found the behaviour of the appellant towards patients anti his colleagues reasonably good. He had no information about any complaint against the reputation or conduct of the appellant. The witness however conceded that he remained with the appellant only for a year and his information was relevant only for that period. A. W. 3, Dr. A. Hamid Sheikh who remained Principal, K. E. M. College, Lahore from 1965 to 1969 stated that the appellant worked as Professor of Urology under him. Dr. Patch Khan was working as Assistant Professor Urology under the appellant. Dr. Patch Khan was related to Mr. Mumtaz Ahmad Kahlun and after the retirement of the appellant he was promoted as Professor of Urology. The witness also stated that he did not receive any complaint against the appellant as to his conduct, efficiency or integrity. According to witness the appellant was very good in research, teaching and was highly qualified. The witness in examination admitted that the complaints about the conduct of the Doctors in the Hospital were ranted through the Medical Superintendent and the witness had been Medical Superintendent of Mayo Hospital during 1965‑66 only. He also conceded that he did not visit daily the outdoor wards under the control of the appellant but he had visited the same once or twice a week. However he did not receive any complaint against the appellant. Similarly A. W. Dr. Sardar Ali Sheikh who had been Principal. K. E. M. College from July 1969 to December 1971 and again from April 1972 to April 1973 stated that the appellant had been his student and he also worked under him as a Professor. The appellant was retired when he was Principal of the K. E. M. College, Lahore. On his retirement Dr. Fateh Khan who was then Assistant Professor, was promoted as Professor of Urology in K. E. M. College. Lahore. He denied any information as to the relationship of Dr. Fateh Khan and Mr. Mumtaz Ahmad Kahlun, the then Provincial Minister. He also stated that he had no complaint of corruption, misbehaviour, misconduct or subversion against the appellant. He rather stated that the appellant was efficient in teaching. He however conceded that all the aggrieved persons did not necessarily complain to the Principal. The appellant appearing as his own witness explained the details of his educational qualifications and the service career. He stated that he was retired under MLR 114 after rendering 22 years long service during which he had never been conveyed any adverse remark from any quarter nor there was any enquiry instituted against him, nor he received any show‑cause notice. He also pointed out the mis-description of his designation in the list as in the Newspapers wherein he had been described as Dr. Ismat Anwar of Mayo Hospital whereas he was Professor of Urology in K. E. M. College and should have been described likewise. He went on to state and with regard to mala fide he made the following statement :‑ "My Assistant Professor bras Dr. Patch Khan, who is brother‑ire‑law of Mumtaz Kahlun, Minister to the Government of the Punjab in March 1972 was a powerful person. Dr. Patch Khan was appointed as Professor of Urology after my retirement. According to my mind I was retired to make room for him. The then Secretary Health also told in that my personal record was simply excellent. He alleged that there was a conspiracy a, month before his retirement which became to believe after his retirement. In cross‑examination he admitted that there was no other person of the name of Ismat Anwar in K. E. M. College or Mayo Hospital, Lahore. He denied that he was aware of the general impression that he was harsh to his patients, students and general public and subordinates. He also admitted that in the review petition filed by him under MLR 116 to the Chief Martial Law Administrator be never raised the above allegations of mala fide on the part of Dr. Patch Khan and Mr. Mumtaz Ahmad Kahlun. He also conceded that even in appeal as originally instituted before this Tribunal the allegation of mala fide was missing. After recording evidence we heard the parties on the Issue as to whether the appellant had succeeded in making out the prima facie case In support of his pica of mala fide on the part of competent authority. As already stated the appellant was retired by the President of Pakistan. The appellant frankly admitted that there was no express evidence that Mr. Patch Khan had any access to or Mr. Mumtaz Ahmad Kahlun made any approach to the President of Pakistan or Chief Martial Law Administrator. The case was however sought to be argued by prompting us to draw an Inference that Mr. Mumtaz Ahmad Kahlun being a member of the Provincial Assembly and Provincial Cabinet had evident access to the President of Pakistan and Chief Martial Low Administrator who was also the Chairman of Pakistan People's Party and therefore he must have spoken to him. He further contended that his contention was further reinforced by the consequent promotion of the Patch Khan as Professor of Urology. On the second issue the appellant argued that he had excellent record and there was nothing against him thus the order passed against him suffered from malice in law. He further contended that in fact the order is deficient Inasmuch as it fails to indicate any of the grounds specified in the M. L. R.

114. According to the learned counsel for the appellant the incorporation of the reasons in the impugned order was an essential requirement. The appellant farther submitted that M.L.R. 114 as promulgated on 10‑3‑1972, and M. L. R. 116 on 13‑3‑1972. The Constitution of Pakistan contains Article 212 providing for the establishment of the Service Tribunals to adjudicate on the terms and conditions of the parsons in the service of Pakistan and the Punjab Administrative Tribunals Ordinance was enforced on 8‑5‑1974 which make such orders appealable. According to the appellant all these provisions of law made it imperative for the competent authority to indicate in reasons fn order that the correctness or otherwise of the same could be effectively canvassed before the reviewing authority or the Appellate Court. Reliance was also placed in this behalf on P L D 1974 Lah. 545, P L D 1974 S C 151, P L D 1961 S C 537, P L D 1972 Lah. 512 and 1968 P Cr. L J

121. He also argued that the order appears to have been based upon the extraneous circumstances and was therefore without jurisdiction. Reliance was also placed in this behalf on 1970 S C M R 278 (281) and 1970 S C M R 439 (441). The appellant also argued that since before retirement order, no opportunity had been afforded to him to explain his position, the im pugned order was without jurisdiction and was vitiated on that ground. The appellant thus argued that his case stood established on both the grounds. We have heard the learned counsel at length. We regret that we do note find ourselves in agreement with the contention of the appellant as to the male fide. Apparently there is no direct evidence. Even indirectly the appel lant has not been able to show that Dr. Fateh Khan or Mr. Mumtaz Ahmad Kahlun made any effort in this behalf. Merely because he was promoted subsequently was too scant a justification to raise the inference of mala fide as suggested bit appellant. In fact to us it appears that normally after the retirement of the appellant the Assistant Professor in due course had to be promoted and if it occurred exactly the same way there is no room to assume any mala fide. Even otherwise the incidence of Mr. Mumtaz Ahmad Kahlun being a Minister of the Punjab did not Ipso facto warrant the conclusion that he was responsible for the retirement of tire appellant. There is nothing on the record. Even the appellant has not alleged that Mr. Mumtaz Ahmad Kahlun had spoken to the President of Pakistan. His apprehension that he might have spoken could not sustain the imputation of mala fide against the competent authority. The failure of the appellant to raise the plea of male fide in the review petition under M. L. R. 116 and also initially in this appeal, imparted the impression that it is an afterthought and not well‑founded. In the circumstances we decide the first issue against the appellant. So far as the second issue is concerned, to us primarily the sole case of the appellant appears to be that the reasons for the retirement of the appellant have not been indicated in the order and for that reason the order is without jurisdiction. The relevant para. of MLR 114 is to the following effect : "M. L. R. 114(3)(1).‑Wherein the opinion of the competent authority a person in Government service or a person In corporation service is‑‑ (a) corrupt or has a reputation of being corrupt, or has assumed a style of living beyond his known sources of income, or (b) guilty of misconduct, or (c) inefficient or has for any reason ceased to be efficient, (d) engaged or is reasonably suspected of being engaged in subversive activities. The competent authority may, notwithstanding anything contained in the terms and conditions of service of such person, by order in the official Gazette, dismiss or remove such person from service, or reduce him in rank, or direct that he shall permanently retire from service." We have already hold in another case that the opinion to be framed in this case was nest necessarily to be based on the service records but it could be based on any other material. In our view there is nothing in M. L. R. 114 or 116 to create any obligation upon the competent, authority to state reasons or the basis of the opinion so framed, in the retirement order. The following observations from P L D 1966 Lah. 446 fortify our conclusions above:

9. As to the objection to the omission of the recital of the purpose of requisitioning the bungalow in question in the impugned order, a plain reading of section 3 of the Act shows that the requisitioning authority is not required to specify the purpose in the order while requisitioning any property. Nor is he required to assign any reason for it. The Government is the sole judge of the necessity and expediency of the matter of requisitioning a property. The approach of the Government or for that matter, the Home Secretary is, therefore, subjective and not objective. This Court is, therefore, not competent to go into the question of the necessity and expediency of the action which is tire subject‑matter of this petition unless the impugned order appears to be without lawful authority on the face of it." Even otherwise presumption of regularity attaches to the official acts and the action taken by the President of Pakistan has therefore to be presumed as regular unless it was proved to the contrary. The evidence led by the appellant fails to dislodge the aforesaid presumption. We also do not find any merit in the plea of the appellant that the retirement order was based on any extraneous consideration as none wag pointed out to us. Lastly the plea of the appellant as to the lack of reasonable opportunity a before taking the action of his retirement was equally without substance as in this case M.L.R. 114 specifically provides that it was not necessary to provide any opportunity to the person retired under M.L.R.

114. Even MLR 116 made identical provisions. We are therefore of the view that this plea of appellant has no merit. Thus the appeal fails on both the issues. Consequently the same is dismissed with no orders as to costs.