1981 PLP (C (PLC(CS))

N. A. CHOUDHURY (MEMBER).‑Mr. W. A. Shaikh, was placed under suspension by the President of Pakistan vide his orders dated 3‑12‑1969. He was dismissed from service by the orders of the President dated 2‑3‑1970 under para. 3(1) of M. L. R.

58. Brief facts of the case narrated by the appellant in his appeal are that he belonged to the former Indian Civil Service, later on inducted into the Civil Service of Pakistan. He attained the age of 55 years on 22‑2‑1969. He was granted three years extension by an order under clause 5 of the Article 178 of the 1962 Constitution. The above extension was terminated on 26‑4‑1969 by the orders of the President. An Ordinance IX of 1969 titled as "The Improper Acquisition of Property Ordinance, 1969" was promulgated on 22‑4‑1969. A Special Committee was set up as contemplated in the above Ordinance to enquire into the proper acquisition of property by certain persons and for matters ancillary thereto. Section 6 of the above‑referred Ordinance as amended by Ordinance XII of 1969, promulgated on 2‑6‑1966, provided for action on the statement of properties upon receiving a statement under section 5 from a person. The Committee, after making such inquiry as it may think fit, would determine correctness or otherwise of the statement and also the legality or propriety of acquisition by such persons of any property or assets. The Committee was also empowered to record its finding and recommendations for the President or for an officer authorised by him in this behalf. The appellant filed a statement of assets and properties as required by section 4 of the Ordinance, referred to above, and attended the inquiry conducted by the Special Committee within the meaning of section 6(1) of the Ordinance. It has been alleged that no opportunity to explain any facts and circumstances was given by the Committee to the appellant before the Committee proceeded to record its findings and submitted the same together with its recommendations to the President. These recommenda tions were submitted to the President several months after the promulga tion of Ordinance XII of 1969 under which vide section 6(2) such an opportunity was contemplated. The recommendations of this Committee were based on certain findings submitted to the President regarding the acquisition of assets and properties by the appellant on which final action was ordered. This report of recommendations of the Committee was not made available to the appellant although he requested for it repeatedly. On 7‑1‑1970, Notice of Action under M. L. R. 58 along with charge -sheet listing four charges and statement of allegations was served on the appellant. It has been alleged in the appeal by the petitioner that the charge‑sheet and the statement of allegations are inconsistent, incoherent, contradictory and misleading. A detailed charge‑by‑charge explanatory statement was submitted by the petitioner to the Tribunal established under para. 3 of M. L. R. 58, in defence of the charges. The Tribunal without going into the merits of the contentions contained in the defence statement recorded a recommendation for dismissal about the officer which was submitted to the President. It has also been alleged that opportunity, to be heard in person as, contemplated in M. L. R. 58, was not afforded. It has further been contended by the petitioner that the action under this Regulation taken by the President was based on mala fide intentions and interference was made by the Headquarter, C. M. L. A. and his functionaries in the deliberations and recommendations of the Military Tribunal which was competent to examine the appellant, in terms of M. L. R.

58. During the examination of the Tribunal neither the prosecution produced any evidence in support of the allegations, nor did it consider the weight of the evidence presented by the appellant in support to his contentions. A review petition against the order of dismissal was submitted by the appellant to the President with a request for interview. No action was taken on this request in spite of a reminder given by the appellant. The appeal under disposal was submitted to the Service Tribunal on 15‑8‑1974. It was admitted for regular hearing on 6‑12‑1974. The appeal was dismissed for want of jurisdiction along with other identical cases vide our judgment dated 20‑11‑1977 after repeated regular hearings on the point of jurisdiction. The appellant went in appeal to the Honourable Supreme Court regarding the jurisdiction of the Service Tribunal to adjudicate the cases covered by M. L. R.

58. The case has been remanded by the Honourable Supreme Court vide their judgment in Civil Petition No. 37 of 1978 dated 22‑1‑1980. The above judgment of the Supreme Court, inter alia, holds that the Service Tribunal has full jurisdiction to go into facts and merits of the cases under M. L. R.

58. In fact, it has a liability to call for all the relevant record and to consider relevant factors to decide the case. This case was accordingly re-fixed for regular hearing on facts and merits on remanding of the case by the Honourable Supreme Court. During the hearing on 16‑2‑1981, the Tribunal first permitted hearing confined to the points of law and procedure involved in this case before full‑fledged hearing could be done on the facts and merits of each case. The learned counsel for the appellant argued; that M. L. R. 58 was a tainted and invalid piece of legislation, it was only temporarily validated, and then allowed to expire. Validation action under a law which was essentially invalid at its inception has to be strictly and rigorously scrutinised. He supported his argument with the famous judgment delivered on dais point in Asma Jilani's case (P L D 1972 S C 139). He further argued that the impugned order is bad in law because it is purported to have been passed under such provisions of M. L. R. 58 which are repugnant to the Proclamation dated 25‑3‑1969, and, therefore, void to the extent other repugnancy. He continued to argue that the provisions of M. L. R. 58 are subordinate to the Proclamation. This Regulation has not to be effective "notwithstanding anything contained in the Proclamation". Articles 177, 178 and 185 of the 1962 Constitution of Pakistan were kept alive by para. 5(c) of the Proclamation. The above Articles of the Constitution prescribed, inter alia: ‑‑ (i) That a civil servant shall not be dismissed, removed or reduced in rank, unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken with respect to him. (ii) That the President shall consult with the Central Public Service Commission in disciplinary matters (before final orders). (iii) Right of review after final orders. It was argued by the learned counsel on the basis of the above Constitutional provisions that show‑cause opportunity against proper punish ment was held to be essential and overriding in a chain of Rulings by superior Courts. P L D 1948 P C

150. The denial as in this case, of the opportunity makes the impugned order of dismissal a nullity in the eye of law. Reasonable opportunity means adequate opportunity. The learned counsel further explained that being subordinate to the supra‑Constitutional Proclamation, the provisions of M. L. R. 58 would be void to the extent of their repugnancy to the Proclamation. Even though the Provisional Constitution Order was subjected to M. L. R. 58 in a general way, the supra‑Constitutional Proclamation could not be so subjected. In other words, Para. 5(c) of the Proclamation preserving constitutional provisions remained supreme. The learned counsel continued that under the orders of the Government vide Memo. No. 9/9/69, dated 26‑1‑1970, it was mandatory to make a reference to the Central Public Service Commission before final orders could be passed in respect of the civil servants. Its operation could not be excluded in any action taken under para. 3(1) of M. L. R. 58, despite the words "notwith standing anything to the contrary contained in the terms and conditions" occurring in the Regulation, because the said directive was issued on 26‑1‑1970, whereas the M. L. R. 58 was put into effect on 2‑12‑1969. It was the case of the learned counsel that non‑consultation with the Public Service Commis sion was an act of bad faith and of discrimination and also an exercise of an arbitrary power against the mandatory provisions of the Proclamation. Another constitutional guarantee which has been denied is the right of review, and the petition for review addressed to the competent authority by the appellant, was not even acknowledged. His request regarding the supply of reports of the Military Tribunal and Special Committee constituted for the consideration of the cases of the category to which the appellant belonged, was not acceded to. Again assuming that M. L. R. 58 was a valid law, the order is still illegal due to non‑compliance with the mandatory provisions of this Regulation itself. The said Regulation provides that "no action shall be taken against a Civil Servant except after giving him an opportunity to show cause as to why action should not be taken against him." This mandatory require ment was not met, because the nature or extent of the action proposed to be taken was not specified in the Notice of Action dated 7‑1‑1970 served on the appellant. The accused officer was given no idea as to whether the action against him was going to entail his dismissal or retirement or any lower penalty. In the circumstances, he could not be expected to show cause against an unspecified vague action contemplated in the show‑cause notice. In any case, the Authority did not specify the action before the Military Tribunal examining the charges. Thus mandatory conditions of M. L. R. 58, backed by the Proclamation, were not complied with, creating an incurable jurisdictional defect, which vitiated the order passed ultimately. The appellant was to be informed of the reasons for the contemplated action against him under para. 3 of M. L. R.

58. This meant the disclosure of evidence in support of the charges with a view to enabling him to refute the contentions of the prosecution. In this respect, the charge‑sheet was deficient, inaccurate, misleading and contradictory, as well as deliberately designed to prejudice the defence. Again the accused officer was to be given a hearing as provided by the said regulation, but without the full disclosure of the evidence against him and without an opportunity to cross‑examine the prosecution witnesses and demonstrate their untruthfulness and incredibility not being allowed to call evidence in defence, it was not a hearing, as recongnised by law and as laid down in the said regulation. As contemplated in M. L. R. 58, the Military Tribunal after hearing, was required to report on the merits of the officers' contentions. The Tribunal did not at all report on the merits of the appellant's contentions and, therefore, failed to comply with the mandatory provisions of the said regulation. It should not be considered sufficient for the Tribunal to say that the concerned Officer has not been able to disprove the allegations against him. The same could be, called a finding, but cannot be described as a report on the merits of the appellant's contentions. The learned counsel further argued that the finding of the Tribunal is itself manifestly perverse and inconsistent with the evidence presented by the appellant. The learned counsel also pointed out that the Military Tribunal traversing beyond its functions and jurisdiction laid down by M. L. R. 58 went to the extent of reporting how a trial could be planned on the charges, by taking undue advantage of the material provided by the appellant, during his so‑called hearing. The function of that Tribunal as laid down in para. 3(2) of the Regulation and the verdict thereunder were vitiated by the facts that it was acting as a prosecutor more than as a Judge. The learned counsel made a reference to a letter dated 5‑2‑1970 issued by the Headquarter Martial Law Administrator Zone `A' to the H. Q. C. M. L. A. Secretariat, in the case of M. H. Shamim, whose facts and charges were almost identical to those of the appellant, and who was in the same manner punished under M. L. R.

58. Under this letter, the Military Tribunals were expected to seek clarifications from the C. M. L. A, before passing the verdict. It was the case of the learned counsel that such a direction from the ultimate punishing authority or by a functionary purported to be acting on his behalf before passing the final orders, vitiated such orders. This also proved that the Tribunal was not free to examine and report regarding the merits of the contentions of the appellant. Their discretion and powers to examine and to report on the merits of the contentions of the appellant .as provided by the Regulation, were seriously circumscribed due to interference from or on behalf of the competent authority empowered under this regulation to award ultimate punishment. The learned counsel raised a further point of law that under para. 3(1) of M. L. R. 58, the competent authority was required to express its opinion after personally examining the case before passing the impugned order. There is no delegation of authority available under the text of M. L. R.

58. Since it is not possible for the respondent Government to show any such formation of opinion recorded anywhere, the impugned action has been taken without fulfilling the requirements of the above para. of the Regulation. The omni‑bus order issued by the President on the statement prepared for him does not indicate any expression of this opinion. It was the case of the learned counsel that the orders were pre‑determined and arbitrary, based on a secret list, rather than on the report of the Tribunal after examina tion of the merits of the contentions of the appellant. According to the opinion of the learned counsel, in the circumstances of the case, and the nature of the orders passed, the orders are completely vitiated and are illegal, and void. The learned counsel further pointed out that the Press Note released on 3rd March, 1970 says that the President after personally examining the cases, has passed the orders. The record belies this assertion. The Press Note confirms that the officers were not given show cause opportunity, as contemplated in the text of M. L. R.

58. Such an order is illegal and void. The learned counsel, at this stage, also pointed out another important factor governing these cases with reference to the wording of the recommendations of C. M. L. A. Secretariat. The wording runs as follows: ‑‑ "This officer was on the list of those who were considered fit for dismissal followed by trial." It was the point of view of the learned counsel that this action against the officer having been based on a pre‑determined list vitiates further proceed ings under M. L. R. 58, inasmuch as, they violate the orders on the show‑cause notice and opportunity contemplated in the text of the Regulation itself. The learned counsel further extended his argument to the circumstances of this individual case that the officer was on three years' extension of service, but his extension period was suddenly terminated soon after its commencement. He was unceremoniously thrown out of service when neither the post he held was abolished, nor was there any retrenchment in the establishments. This was; therefore, not a bona fide exercise of powers under the extension of service rules. The officer was suspended by an order issued on 4‑12‑1969 under M. L. R. 58 when lie had already retired and was on leave. He was neither recalled to duty, nor was his leave cancelled. The charge‑sheet had still to be served. Suspension in the circumstances, was in excess of the jurisdiction contemplated under para. 4 of M. L. R.

58. The learned counsel also explained that unlawful suspension order not only vitiated further proceedings under M. L. R. 58, but it also meant that the officer could not be dealt with at all under the Regulation, as he ceased to be a civil servant on being suspended from service while on L. P. R. A person on L. P. R. could not be suspended under para. 4 of the M. L. R. 58, and if suspendend he ceased to be the person on L. P. R. under para. 5 of the same Regulation. Thus the effect of termination of service of the appellant under the said Rules was that the appellant retired from service on 26‑4‑1969, and no action under the Regulation cited above, could validly be taken against any person who was no more in service. The learned counsel contended that there was no order of the President initiating action against the Officer, as required under the Regulation, and there is no order passed by him to place ‑him under suspension. The proceedings could not be started against the appellant and suspension could not be ordered unless the President, after examining the case satisfied himself and recorded his approval for this action. The proceedings under the Regulation were, therefore, without jurisdiction. The proceedings commenced with the order of suspension unaccompanied by charge‑sheet. The delay of over a month in the service of the charge‑sheet establishes that the inquiry had not been completed and that the material necessary and sufficient for the President to authorise action, was not available when the notion was, in fact, started. The learned counsel also pointed out that non‑observance of the due process of law is also witnessed in the report of the Special Committee set up under the Ordinance No. IX of 1969, which was incorporated in the charge‑sheet. No opportunity under section 6(2) of the said Ordinance was given to the appellant to explain any fact and circumstances against him before the Committee submitted the said report to the President for orders. It was also pointed out by the learned counsel for the appellant that the then President/C. M. L. A. who passed the order against the appellant, had personal grudge, and as such, mala fide is involved in this case. After the detailed arguments, the learned counsel analysed the legal position and submitted that action taken against the appellant under M. L. R. 58 and the impugned orders were unlawful and of no legal effect. He accordingly prayed the Tribunal to vacate the respondent's order dated 2‑3‑1970, dismissing the appellant. He also prayed that the respondents be directed to grant all benefits to the appellant which would have ordinarily been derived had the said order not been passed against the appellant. He also prayed for the cost of this appeal, and such further reliefs as may appear fit and appropriate in the case. The learned Deputy Attorney‑General, representing the State, started his arguments regarding the validity of the orders and regulations made by and during the period of late General A. M. Yahya Khan, the then President/ C. M. L. A. He particularly made a reference to the pleadings made on behalf of some of the appellants covered by M.' L. R. 58, regarding the arguments on the late President being usurper. The Tribunal pointed out that since this sensitive question has already been argued in the concerned legal forums, including the Honourable Supreme Court, it. may not be necessary to enter into a fulfledged discussion on this issue. It was also pointed out that this particular issue has been considered and decided in the judgment of the Honourable Supreme Court delivered in the case of M. Yamin Qureshi v. State, through which the case of the appellant along with other identical cases has been remanded to this Tribunal. The Deputy Attorney General, however, was at liberty to express his views on behalf of the State, regarding the validity of the orders passed by late General Yahya Khan including M. L. R. 58, although‑ this issue has also been examined and decided by the Honourable Supreme Court in the judgment, referred to above. The Deputy Attorney‑General then turned to reply to the points raised by the learned counsel, for the appellant regarding expression used in para. 3(1) of the Provisional Constitution Order that "the State of Pakistan would be governed as nearly as may be possible in accordance with the said Constitution". It was his point of view that this expression relates and is confined to the structure of the Government and not to other provisions of the Constitution. He based his arguments on West Pakistan v. M. Mehdi Khan (P L D 1959 S C (Pak.) 387). What he precisely meant was that the survival of any provisions of law including the Constitution derives their identity and existence not form any provisions of the Constitution, but only because of any by reason of Martial Law and only to the extent that the Martial Law by expression does not recall or avoid them. The learned Deputy Attorney‑General further argued that the provisions of the Constitution do not survive after the issue of Provisional Constitution Order, but if any such provisions were meant to be operated after issue of the P. C. O., they have been permitted to survive through the P. C. O. and not through the Constitution. It was also argued that statutory rules and orders, administrative instruction, directives, notifications and other instruments, which were existing before the enforcement of Martial Law continued to exist after the Martial Law unless they were modified, amended or cancelled by the competent authority. ‑ These regulations, etc. however, owed on their survival not to the Constitution, but to para. 5 of the Proclamation and Para. 3(1) of the P. C. O. He further extended his arguments and explained that M. L. R. made by the Chief Martial Law Administrator overrides even the provisions of the Proclamation and the P. C. O.' The provisions of the Proclamation and the P. C.' O, are subject to the provisions of M. L. R. so made. He read out the relevant portion of para. 5(a) of the Proclamation of 25‑3‑1969 "Notwithstanding the abrogation of the Constitution and subject to Regulations or Orders made by the C. M. L. A. (a) all laws, including Ordinances, Martial Law Regulations, Orders, rules, bye‑laws, regulations, notifications and other instruments in force immediately before the abrogation of the ,Constitution shall continue to be in force." In view of the above provision of the Proclamation, the rules, notifications, directives and other instruments stand amended and modified to the extent they are repugnant to any of the provisions of M. L. R.

58. What would prevail after the imposition of the Martial Law, would be the text of the M. L. Rs. irrespective of anything contained in such rules and regulations and other instruments even the provisions of any Article of the abrogated Constitution. The learned Deputy Attorney‑General did not subscribe to the view that provision of M. L. R. 58 has been violated in respect of the show cause notice, as provided in para. 42) of M. L. R.

58. The provision for a second show‑cause notice contemplated in the E. & D. 'Rules, 1960 issued under Articles 177, 178 of 1962 Constitution has been modified to the extent of the provisions of M. L. R.:

58. This Regulation overrides all the terms and conditions contained in the E & D Rules operative immediately before the imposition, of Martial Law. The operative meaning of the show‑cause notice would be that which, existing in para. 3(2) of the said Regulation only. The overriding. provisions of this Regulation as they stand‑ do not permit interpretation to relate to a second show‑cause notice previously known within the framework of the E &, D Rules, 1960 to be given after competi tion of the inquiry with reference to a precisely enumerated penalty. The show‑cause notice which has been given in the case of the appellant before taking action against him under the said M. L. R. is all that is required by the provision of this para. and there is no other‑ provision in this M. L. R. to justify the second show‑cause notice. Regarding the examination and report on the merits of the contentions of the accused officer by the Military Tribunal constituted under para. 2(c) of M. L. R. 58, he explained that it was not necessary nor was laid down anywhere in the Regulation to tabulate the contentions and to comment on the merits of each contention. The recommendation made by the Military Tribunal in the case of the appellant is all what is required and desired by the provisions of the M. L. R. He also did not agree with the arguments of the learned counsel for the appellant that observation made in a letter by Martial Law Administrator, Zone `A', in the case of M. H. Shamim was in the nature of any instruc tion issued by or on behalf of the C. M. L. A. In spite of this observation, the concerned Tribunal was competent to see or call for any information from any source with regard to the charges of all the accused officers against whom action was contemplated under M. L. R.

58. It was further explained that the expression of 'opinion' by the competent authority while making an order of suspension was also not necessary within the meaning of para. 4 of M. L. R.

58. Once the President has passed the order of suspension under this regulation, it has to be presumed that he has made the opinion, and that the suspension was necessary in his opinion. He further explained that the right of suspending a civil servant rests with the Government irrespective of what is contained in the text of M. L. R.

58. The relevant portion of the judgment in P L D 1964 S C 321, on which the learned Deputy Attorney‑General relied, runs as follows: "The power is relatable both to the general duty of maintaining high standards in the administration, as well is to the requirements of service Management. Therefore, I can see no difficulty in supposing that the executive authority acts within the pleasure of the Governor, when it suspends a public employee from the discharge of the duties of his office, pending an inquiry into his actions." He also referred to P L D 1977 S C 397/428 in this context. After hearing both the parties, the first issue required to be settled before going into other points of law is the limitation. The provision of section 4 of the Service Tribunals Act, 1973 is relevant, and is reproduced below: "Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him (or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal." Since the case of the appellant does not belong to the category of abated cases, his time for limitation would start running from 22‑9‑1974, which is the date of establishment of the Service Tribunal. He has accordingly a right to prefer an appeal to the Tribunal within six months from that date. The period expires on 22‑8‑1974. The appeal under disposal was registered in the Service Tribunal on 15‑8‑1974, and is, therefore, in time. The question of limitation having been settled, we now proceed to examine the arguments on points of law and procedure raised by the learned counsel for the appellant, and replied to by the learned Deputy Attorney- General, on behalf of the State. The question of validity of action taken under M. L. R. 58 has been considered in the case of M. Yamin Qureshi v. Islamic Republic of Pakistan and another (Civil Appeal No. K‑1 of 1978) After hearing the arguments of the appellant and those of the learned Deputy Attorney‑General. As appreciated in the judgment of their Lordships, the effort on the part of the appellant in that case also was to argue that all actions taken under M. L. R. 58 stood completely wiped out irrespective of the provisions as to validity contained in clause (4) of Article 270 of the Constitution of 1973, for the reasons that in its inception, the Regulation had been made by an incompetent and illegal authority, and it had not been followed by the Parliament within the prescribed period of two years. Their Lordships, after careful consideration of all these submissions, have held the view that the same are irrelevant in the context. Accordingly, their Lordships have concluded in their judgment, as follows: ‑ ". . . In the circumstances, we consider that the correct position is that all questions relating to the validity and continuing effect and opera tion of proclamations, President's Orders, Martial Law Regulations and Martial Law Orders promulgated during the regimes of General Agha Muhammad Yahya Khan and the late Mr. Zulfiqar Ali Bhutto should be examined by reference to the provisions contained in the two Articles just mentioned (269 and 270), and not by recourse to Article 268 of the Constitution, which provides for the continuing operation of all existing .laws. The makers of the Constitution have made their intention absolutely clear that they were treating these instruments in a class by themselves, as distinct from the other laws which already formed a part of the legal order in Pakistan before the promulgation of Martial Law on the 25th of March, 1969 . . . ." Their Lordships further said that: ‑ "Having found that all proceedings taken, orders made and done or purported to have been taken, made or done under Martial Law Regulation No. 58 fall within the purview of the validity and immunity from judicial review granted by clause (4) of Article 270 of the Constitution, we now turn to the question of the scope of the appeal as provided in section 4 of the Service Tribunals Act, 1973 . . . ." In view of the above judgment of the Honourable Supreme Court, the question of validity of action takes under M. L. R. 58 stands settled. The validity of actions taken under this M. L. R. has not expired till today as held by their Lordships and, therefore, action under this Regulation taken or purported to have been taken has to be examined and considered accordingly. This takes us directly to the question of repugnancy of the provisions of M. L. R. 58 to the Proclamation dated 25‑3‑1969 raised by the learned counsel for the appellant. The relevant portion of the text of para. 5(a) of Proclamation is reproduced below for the sake of convenience "Notwithstanding the abrogation of the Constitution and subject to 'Regulations or Orders made by the C. M. L. A.: (a) all laws, including Ordinances, Martial Law Regulations, orders, rules, bye‑laws, regulations, notifications and other instruments in force immediately before the abrogation of the Constitution shall continue to be in force." We have gone through this para again: and again. We do not find any support from the words of this para to agree to the contention of the learned counsel for the appellant that the provisions of the Proclamation would prevail notwithstanding the provisions contained in the Martial Law Regula tion. In fatty the case appears to be otherwise. The words "subject to regulation or orders made by the C. M. L. A." support the arguments of the learned Deputy Attorney‑General that the prevailing piece of law would be the provisions of Regulation and not the proclamation. In view of the above reading, we do not find it possible to hold that under para. 5(a) of Proclamation, the orders and rules operative immediately before the issue of this Regulation would prevail. The text of para. 5 excludes the operation of the then existing laws and orders to the extent they have not been protected in their survival by M. L. R.

58. We would turn to this issue at the proper stage again, In the context of the arguments produced by the learned counsel for the appellant, with reference to para. 5 of the Proclamation, it was not necessary for the punishing authority to observe all the prerequisites contained in Articles 177, 178 and 185 of 1972 Constitution, and the statutory rules made thereunder. The surviving prerequisites have been set out in M. L. R. 58 para. 3(2) and the Proclamation is itself subject to this Regulation. The provisions of the Proclamation have not, therefore, been violated. As regards arguments of the learned counsel for the appellant that the provisions of supra‑Constitutional Proclamation could not be subjected to provisions of M. L. R. 58, we again do not find it possible to agree with him, for the simple reason that the words of pare. 5(a) of the Proclamation do not preserve the Constitutional provisions, and therefore, do not support' this contention. We also do not agree with the learned counsel for the appellant that in terms of orders of the Government Memo: No. 9/9/1969, dated 26‑1‑1970, it was mandatory to make a reference to the Federal Public Service Commission before final orders could be passed against the civil servant concerned. These orders, as is clear from the reading, relate to and have been issued in connection with the disciplinary actions covered by ordinary Efficiency and Discipline Rules only. We would turn to this issue again at the proper stage. Similarly, the question of right of review, would be examined at a later stage. Regarding the allegation of male fide intentions against the President/ C. M. L. A., advocated by the learned counsel for the appellant, since sufficient material and details have not been provided in this respect, male fide intentions alleged in general cannot be accepted: We do not consider it necessary to comment, in detail, on the points raised by the learned counsel for the appellant regarding the formation and expression of `opinion' by the. President to initiate action or to decide upon suspension. The representative of the, State has placed on record orders recorded by the President in individual cases for suspension. It is, therefore, presumed that he has formed an opinion for suspending the officer and has passed final orders of punishment. The words of para. 3(1) regarding the formation of opinion relate to the final action of dismissal, removal, etc., and not to initiating of action. 'We also do not consider the order of suspension passed during L P R .as vitiative of the procedure and provisions. Under para. 5 of M. L. R. 58, L P R has been treated as service for the purpose of this Regulation. A perusal of F. R. 86 (5), 67 and Article 199 of C. S. R. also confirms this view. This brings us to the crucial and important issues remaining to be examined. We refer to para. 3(1) of the Provisional Constitution Order. It is necessary to quote full text of the sub‑pare as under: ‑ "Notwithstanding the abrogation of the Constitution of the Islamic Republic of Pakistan brought into force on the 8th day of June 1962, hereinafter referred to as the said Constitution, by the Proclamation and subject to any Regulation or Order made from time to time, by the Chief Martial Law Administrator, the State of Pakistan shall, except as otherwise provided in this Order, be governed as nearly as may be in accordance with the said Constitution." After reading this sub‑pare. again and again, we do not find it possible to agree with the interpretation put by the learned Deputy Attorney‑General on this text of the para to the effect that it relates only to the structure of the Government. If the intention of this para is only to apply the surviving constitutional provisions to the structure of the Government the purpose for which their Lordships in the Supreme Court considered the survival of the constitutional provisions and other laws and orders necessary on the basis of condonation, even if enacted and passed by an usurper, to avoid political, judicial and administrative anarchy would stand completely defeated. If the provisions of the Constitution and other pieces of law and orders survive to the extent they relate to the structure of the Government the remaining affairs of the State of Pakistan in their vast dispersal of activities in various sectors would be found in complete legal and administrative vacuum. We, therefore hold that unless specifically abrogated, amended or excluded by the proclama tion or by any orders or Regulations bade by C. M. L. A. directly or by implication, the provisions of the 1962 Constitution of Pakistan would survive not only in respect of structure of the Government but in respect of all other matters also. When the Articles of the Constitution survive, the statutory rules made thereunder and orders issued from time to time as prevailing, immediately before the imposition of Martial Law would also survive with their full qualifications, conditions, import, usage and meaning known and understood on the day of imposition of Martial Law. The contention of the appellant has to be examined carefully in this context. For facility of reference, we reproduce the relevant provisions of Articles 177, 178 and 185 of 1962 Constitution: Article 177 (1)(b): subject to clause (2) of this Article, an officer shall not be dismissed or removed from service, or be reduced in rank, unless he has been given a reasonable opportunity of showing cause against the‑action proposed to be taken with respect of him. Article 178 (3)(a) that the terms and conditions of service of a person (in so far as. those terms and conditions relate to remuneration of age fixed for superannua tion), are not varied to his disadvantage ; and "(b) that where an order is made which‑ (i) punishes or formally censures a person ; (ii) alters or interprets to the disadvantage ‑of‑,a person any rule affecting his terms or conditions of service ; or (iii) terminates the employment of a person otherwise than upon his reaching the age fixed for superannuation; he shall, except where the order is made by the President or a Governor, have at least one appeal against the order and, where the order is made by the President or a Governor, he shall have the right to apply to the President or the Governor for a review of the order. Article 185(2) Except to the extent that the President, after consulting the Commission, may provide otherwise by Order, the President shall in relation to the All‑Pakistan Services, the civil services of the Centre and civil posts in connection with the affairs of the Centre, consult the Central Public Service Commission with respect to‑ (d) matters affecting terms and conditions of service and proposals adversely affecting pension rights ; and (e) disciplinary matters. The survival of the constitutional provisions and then the existing laws and orders and statutory rules, and administrative instructions cannot be con ceived in isolation because the same would not complete the picture and only provide a trailer which is unable to fill the legal, administrative and political vacuum. In this survival of the provisions of Articles 177, 178 and 185 of the 1962 Constitution, referred to above, subj5ct to the provisions of M. L. R. No. 58 and any other regulations or orders made by the Chief Martial Law Administrator from time to time; or is it a survival notwithstanding anything contained in this Regulation and other Regulations and orders made by the C. M. L. A. The expression "subject to regulation" occurring both in para. 5(a) of the Proclamation and para 3(1) of the Provisional Constitution Order leaves no doubt, regarding the interpretation of this issue. The surviving Articles of the Constitution, referred to above, and the rules made thereunder survive to the extent they have not been modified and amended by Regula tion 58 and other Regulations and orders, directly or by implication. In other words, any terms of the service and other rules applicable under the abrogated Constitution and rules made thereunder, which are repugnant to the text of M. L. R. 58 or any other regulation or rules made by the C. 'M. L. A. would not be available for application. Let us now examine what has been amended and what has been left out by M. L. R. No. 58 and other orders issued. Para. 3(b) of M. L. R. 58 authorises dismissal, removal, reduction in mala and compulsory retirement of civil servants, notwithstanding anything to the contrary contained in the terms and conditions of service of such persons provided the officer is ‑‑ (a) informed of the reasons for action ; (b) afforded opportunity to show cause in writing ; and (c) given right for hearing in person by a Military Tribunal. The other constitutional, legal and statutory safeguards stand destroyed by exception in the above proviso of para. 3(b). The net result of this discussion is the prerequisites (mentioned below i for the punishment action relevant to the appeal under disposal, as contem plated in the above‑quoted Articles of 1962 Constitution, are not available ; (i) Right of appeal or review to the competent authority. (ii) Reference to Public Service Commission in matters affecting terms and conditions of service and proposals adversely affecting persons, rights. A careful reading of para 5(a) of the Proclamation quoted earlier leads us to the conclusion that all laws, Ordinances, Rules, Orders, Notifications, Regulations and instruments in force immediately before the abrogation of the Constitution survive to the extent they are not repugnant to M. L. R.

58. Again, a perusal of proviso under para 3(b) of M. L. R. 58 establishes beyond doubt that provision of Efficiency and Discipline Rules, 1960 relating to. (a) reasons for such action ; (b) show‑cause notice ; and (c) personal hearing, are not repugnant to the provisions of M. L. R. 58 or any other Regulation or Order made by the C. M. L. A. In fact, these three prerequisites have been set out in the above para. of M. L. R. 58 as mandatory requirements of this new law. These statutory rules shall, therefore, survive. Once they survive, they come out with their body and spirit in that and retain their original meanings as standardised in their interpretations through judicial effort spread over the last half century right from. I. M. Lall's case of Privy Council to numerous judgments of our respected High Court and the Supreme Court available on record of judicial decision; Let us now reproduce the provision of E & D Rules, 1960 relevant to reasons, show‑cause and personal hearing, survival of which we have so painfully discovered against the forceful advice of our learned friend, Deputy Attorney‑General. Rule 6‑A (1): The authority shall frame a charge and communicate it to the Government Servant (hereinafter called the accused) together with a statement of the allegations on which it is based and of any other circumstances which the authority proposes to take into consideration when passing orders on the case: Provided that the authority or, in cases where the President is the authority, the Secretary of the Administrative Ministry or Division may, if he thinks fit; appoint an officer senior in rank to the accused to examine and report on the allegations against him to enable the authority to decide whether a formal inquiry should be held, and the officer may also informally examine the accused. (2) The authority shall require the accused within a reasonable time, which shall not be less than severs days nor more than fourteen days, from the day the charge has been communicated to him, to put in a written defence, stating at the same time whether he desires to be heard in person. (5) After the authority or, in cases where the President is the authority, the Secretary of the Administrative Ministry or Division to which the accused belongs, has considered the report and arrived at a provisional conclusion in regard to the penalty to be imposed, the accused shall, if the penalty proposed is any of the major penalties, be supplied with a copy of the report, and asked to show cause within a specified time which shall not ordinarily exceed one month against the particular penalty proposed to be inflicted ; and any representation submitted by the accused in this behalf shall be taken into consideration before final orders are passed. These expressions have not been specifically defined and interpreted in the text of this Regulation or in any other law, rules or orders passed by the C. M. L. A. These expressions have, therefore, to be interpreted in the sigh N of the usage, import and commonly known meaning of the terms as prevailing immediately before the imposition of Martial Law, except that the personal nearing has to be accorded by the Tribunal instead of the punishing authority. The known meaning and usage of informing of the reasons include full exposure of the material and evidence collected, selected and used against the accused. This conclusion is fully supported by the extract of Efficiency and Discipline Rules, 1960 (rule 6‑A (1) quoted above). It is also not possible to agree with the learned Deputy Attorney‑General that show‑cause notice, as contemplated under rule 6.A(2), before starting the inquiry fulfils the requirement of proviso under para. 3(2) of M. L. R. 58 Looking at the wording in which three requirements have been set out under this proviso, gives an impression that the first show cause is the only require ment of reasonable opportunity. This is not the case because the words used in the proviso are "giving him an supportunity to show cause in writing". These words have been taken from the Efficiency and Discipline Rules, 1960 (Rule 6.A(1)(5) in the context of second show‑cause notice, and unless there is a specific clarification in the Regulation or any orders issued in this behalf, context would be the same and no change would be justifiable. The words "opportunity to show cause" which makes it mandatory for the authority to supply a copy of the inquiry report, therefore, means the show cause against all the material, circumstances and evidence used in the case. This show cause has to be given at two stages‑‑Firstly before the inquiry is started to examine and investigate the charges ; and secondly at the stage of provisional decision taken by the competent authority to impose a major penalty. At the second stage, he is necessary, under the rules, to specify precisely one of the enumerated penalties in case the proposed penalty is a major one. Since in this case, the proposed penalty is dismissal, which is admittedly a major penalty, second show‑cause notice specifying the penalty was necessary which has not been given in this case. To that extent, pro cedural illegality has occurred. The first show‑cause notice given regarding the action to be taken does not fulfil the requirements of the show‑cause notice within the meaning of the terms known immediately before the imposition of Martial Law. We are inclined to take the view that under the serving part of rule 6‑A of E & D Rules 1960, it is the second show‑cause notice specifying a particular major penalty which is intended to be manda tory because rule 6‑A has been specifically added on 3‑12‑1968 to these Rules, in connection with major penalties. As regards the hearing in person, the term has again not been explained and defined in M. L. R. 58 or any Rule or Orders made by the C. M. L. A., except that the hearing has to be given by the Tribunal and not the President. The meaning of personal hearing has also to be inferred from the usage, interpretation and meaning known in respect of this term immediately before the imposition of Martial Law in the absence of any new meaning lent to this expression by M. L. R. 58 or any other Regulations issued. Personal hearing has to be differentiated from the hearing of merely a noise. The hearing should be with reference to details of charges sad material available to establish those charges and used against the officer for arriving at a decision for punishment or for making an opinion in that respect. Since full material, complaints and evidence used against the officer have not been exposed to him, the personal hearing granted by the Tribunal does not fulfill the require ment of the hearing, provided under M. L. R.

58. In case of documentary evidence or written material available against the officer, it was also necessary to confront him with the same. This has not been done and; therefore, viola tion has been committed to that extent also. If it had been intention of the authority to lend any new meanings to these expressions, the simplest way was to provide them in this Regulation or any other Order/Ordinance. Their Lordships of the Supreme Court have agreed to the validity of actions taken under M. L. R. 58 and other such Regulations and orders to avoid political, legal, judicial and administrative anarchy in the country. We cannot, therefore, be pursuaded to surrender the situation to an anarchy of interpreta tion and meanings as urged by the learned Deputy Attorney‑General to road these expressions as completely divorced from the original context as well as from their standardized meanings. We do not think, it was the intention of the Martial Law Authorities as well 'to cause this large scale destruction unnecessarity in respect of laws, rules. orders and their interpretation. After all, the claim was to save the country from chaos and collapse. The Cons titution and the Law may be suspended temporarily in the over‑all interest of the State, but you cannot destroy this "Life‑blood of master spirits embalmed and preserved for purpose from age to ago" called the heritage of judicial effort. No, Mr. Deputy Attorney‑General, we would not go with you on this mission: Taking the learned Deputy Attorney‑General into confidence as above, we proceed to quote an extract from "Service Laws Manual", based on P L D 1970 Lah. 811 and also an extract from Muhammad Azhar v. Commis sioner of Karachi (P L D 1966 S C 253), relevant to the concept of reasonable opportunity to show cause: "It will be observed that the authority issuing notice has to come to a conclusion of guilt and to provisionally determine the penalty before it issues a show‑cause notice. The show‑cause notice served by the Commissioner was, therefore, void and front this point onwards the proceedings were without jurisdiction." Provision of rule 6‑A(5) is mandatory: "Non‑compliance with rule 6‑A(6), Government Servants (Efficiency and Discipline) Rules, 1960, constitutes denial of reasonable opportunity which per se would vitiate the action, taken. Rule 6‑A(5) of the Government Servants (E & D) Rules, 1960, which deals with cases in which major penalty is called for, provides that the authority having power to impose the penalty shall frame a charge and communicate it to the accused together with a statement of allegations, on which it is based and of any other circumstances which the authority proposes to take into consideration when passing orders on the case. This is a mandatory provision of law and the use of the word "shall" which applies both to the framing of the charge‑sheet communicating it to the accused and to the supply of a statement of the allegations makes it incumbent upon the authority to comply with it. A non‑compliance with it would amount to transgression of an obligatory rule which lays down the minimum standards comprising reasonable opportunity to be afforded to a Government servant against whom action is sought to be taken. The amount of prejudice, which would be caused to the person concerned, need not be taken into consideration, for non compliance with the rule itself, would vitiate the action taken." The word "shall" also exists in the proviso of para. 3(2) of M. L. R.

58. It is also not possible for us to agree with the learned Deputy Attorney General that it was not necessary for the Military Tribunal to tabulate the merits of the contentions accused officer in connection with their report and recommendations made under M. L. R.

58. We have already held earlier, in connection with the reasonable opportunity to show cause, that a copy of the report of the investigating agency is a mandatory requirement under rule 6.A(5) of E & D Rules, 1960, which has survived for its application after the imposition of Martial Law. Unless the proceed ings of the investigating agency (Military Tribunal) are recorded, and there is also record of evidence and the material examined, the contents of this report cannot be made known to the accused officer for affording him a reasonable opportunity to offer his defence in respect of these contents and provisionally proposed specific penalty. It is, therefore, apparent from the above discussion that a record of evidence, as provided under rule 6‑A (5) of E & D Rules, 1960: was required to be maintained by the concerned Tribunal with reference to the merits of the contentions of the accused and to formulate the recommendations m that respect. We are conscious that the learned Deputy Attorney‑General would take objection regarding the survival of the provisions of E & D Rules, 1960, relating to the record of evidence with reference to proviso to‑ Para 3(2) of M. L. R.

58. We would refer to the following extract from the judgment of Honourable High Court Federation of Pakistan v. S. Morad Ali (P L D 1961 Kar. 285), in which their Lordships, although aware of the absence of any law in that particular case for supply of copies of the inquiry report, but still they have considered necessary to supply adequate information about the contents of inquiry report to the accused officer. "There is no law which makes it specifically necessary that copies of inquiry reports should be supplied but it is almost a corollary to the broader principle of providing reasonable opportunity to defend that in a large majority of cases adequate information of the contents of inquiry reports must be supplied. To say that copies of such reports should be supplied is to reduce the corollary to a safe working formula for departmental use." Once we accept the position that record of evidence is a corollary to the provisions of reasonable opportunity to show cause, cross‑examination as a part of recorded evidence would also become a requirement included in such reasonable opportunity. Without cross‑examination of the witnesses and the evidence and without confrontation with the documentary record, which has formed a basis for a recommendation for punishment, opportunity to defend is inconceivable. Since this right of cross‑examination has not been given by the Military Tribunal, the requirements of opportunity to show cause within the meaning of para. 3(2) of M. L. R: 58, have not been properly and adequately observed. We now turn to' two other important aspects of the case relating to the recommendations of the investigating agency, i.e. the Military Tribunal, which recommended the punishment culminating into the final order of dismissal passed by the Chief Martial Law Administrator. The first point is regarding the independence of the investigating agency to act freely to make opinion on the merits of the contentions of the appellant. The observation made by the Headquarter Martial Law Administrator, Zone `A', Lahore, as contained in their letter dated 5‑2‑1970, addressed to Head quarter C. M. L. A., President's Secretariat, Rawalpindi, runs as follows: ‑‑ (1) Mr. M. H. Shamim, P. S P., has been exonerated from all the ten charges by Tribunal No. 3 for reasons not known to this Headquarter. (2) If during the hearing the accused officer has created any doubt in the minds of the members of the Tribunal as to the veracity of the charges, it would have been appropriate and legal for the Tribunal to have sought further clarification from this Headquarter as is being done by other Tribunals. (3) In view of the above, it is strongly recommended that this officer should be dealt with under the provisions of M. L. R. 59 despite the Tribunal's verdict. Furthermore, the issue raised by the learned counsel for the appellant regarding the recommendations of the Military Tribunal being based on a pre‑determined decision to punish certain officers, who were already included/ earmarked in a list for such an action, has to be considered carefully by us. We reproduce a brief para. from the recommendations of the C. M. L. A. H made in respect of the appellant, as follows :‑‑ This officer was on the list of those who were considered fit for dismissal followed by trial." The Military Tribunal made a Special Report in respect of this officer in addition to the investigation and report assigned to it under M. L. R.

58. In the Special Report, they recommended that trial should be planned on the basis of the additional evidence available in the defence statement of the accused officer. We reproduce below the Special Report made by the Tribunal in respect of the appellant: ‑‑ " . . The Tribunal recommends that this is a fit case for trial. During the trial, special care may be taken to‑‑ (a) substantiate charge No. 1 in the light of defence put up by the officer in his defence statement. (b) get the value of property assessed by an independent technical hand. (c) frame charge No. 2 for inefficiency and not for misconduct. (d) collect evidence of his high standard of living and of general talk of misconduct against him. These facts of the case prove, (i) the existence of a list prepared before‑hand, and the officer earmarked for dismissal. (ii) existence of element of interference in the work of the Military Tribunals from the Martial Law Headquarters, (iii) over‑stepping on the part of Tribunal to investigate and report beyond the functions assigned ‑to it by M. L. R.

58. In the circumstances, we do not find it possible to discard the contention of the learned counsel for the appellant that the exercise of the Military Tribunal to investigate and report regarding the merits of the contentions of the appellant, was a tainted and a colourable exercise. It is also not possible for us to ignore the fact that the position of the investigating Military Tribunal was more or less compromised in respect of their freedom to act in terms of the powers and functions assigned to them by the text of M. L. R.

58. These procedural illegalities discussed in the foregoing paragraphs committed during the process of investigation, report and recommendations made in respect of the accused to the punishing authority vitiate the whole action of investigation and report on the merits of the contention of the officer. The ultimate order based on these recommendations would also be vitiated in the eye of law. "And' Sir, when the plate falls, along with it go the spoons, the' forks and the knives ; what to speak of the contents 1 . ." (Late Mr. Justice M. R. Kiani). In view of the deficiencies in the observance of the legally prescribed procedures, we do not consider it necessary to go into the merits and facts of the case. The evidence collected, sifted and marshalled without proper observance of legal procedures, would be of no value td us. In the ultimate analysis, we do not find any alternative but to accept the appeal of Mr. W. A. Shaikh, and vacate the orders of the President passed regarding his dismissal from service. He shall be deemed to have been in service as if no action under M. L. R; 58 had been taken against him. He shall, however, retire under the application of normal rules available after survival of such rules and orders to the extent they remained applicable to the present case. He would be entitled to all other benefits of pay, allowances, pension, gratuity, etc., under the applicable rules. Parties to be informed accordingly. Order accordingly.