1981 PLP (C (PLC(CS))

ZAFFAR HUSSAIN MIRZA, J.‑‑This petition under Article 199 of the Constitution seeks to call it question the orders of retirement of the petitioner by Government of Sind, respondent No. 1 herein.

2. Briefly the facts forming the background of this case are that the petitioner was a permanent employee of the Karachi Development Authority having put in 15 years' service and in May 1974, he was serving as Inspector in the Budget & Estate Department of the K. D. A., On 17th May, 1974 a Press release was issued by the Government of Sind inter alia, announcing the list of officers including the petitioner who were placed under suspension with a view to prosecute them on specific charges of corruption, misappropriation of public funds and accumulation of wealth beyond their known sources of income, "in a bid to eradicate malpractices within the administration heirarchy'.'. On the same day the petitioner was served with an order by the Director‑General of the K. D; A. under sub‑clause (a) of clause (2) of Article 8 of the Karachi Development Authority Order, 1957 read with clause (1) of Regulation 76 of the K. D. A. Employees (Service) Regulations, 1977 suspending the petitioner with immediate effect. Subsequently although the petitioner was directed to appear before the Special Judge‑cum‑Enquiry Officer, Anti‑Corruption, Karachi for being produced a1ongwith a challan of a case under section 161, P. P. C., but according to the petitioner, no incriminating evidence having been secured against the petitioner the case against him was dropped. 'This case pertained to an allegation that in 1971 one Riaz Qayyum, Assistant Building Inspector, Architect Control Department, K.D.A. had taken illegal gratification of Rs. 1,000 from one Mirza Pervez Ali for the petitioner. A departmental enquiry was however, conducted and the petitioner was exonerated from the charge, by the competent authority vide Office Memorandum dated 12th July.. 1973 issued by the Deputy Secretary‑III, K.D.A.

3. According to the petitioner, after the Government Press release the petitioner was served with an order of the Director‑General dated 9th August 1974 offering option to him either to retire voluntarily or face prosecution. The contention of the petitioner is that "on account of the atmosphere of awe, terror and dismay the petitioner accepted the option to retire under duress".

4. On the promulgation of C.M.L.A.'s Martial Law Order No. 23 the petitioner submitted a revision petition against his retirement, which was referred to the Review Board No. 2, Hyderabad. The Review Board after hearing the petitioner recommended his re‑instatement and submitted its report to the competent authority as required by paragraph (5) of the M.L.O.

23. Subsequently on 23rd August, 1978 the petitioner received a communication from the Section Officer (R. B.) for Chief Secretary to Government of Sind informing the petitioner that his revision petition after considering the report of the Review Board was not accepted by the competent authority".

5. It was contended on behalf of the petitioner that his review petition has not been disposed of according to law. 1n this behalf it was pointed out that after the receipt of the recommendations of the Review Board the matter was once again referred by the Additional Secretary (Co‑ordination) Services & General Administration Department, Govern ment of Sind to the Director‑General (Inquiries) who made his recommendations contrary to the recommendations of the Review Board. The) contention of the learned counsel is that this procedure is palpably in viola tion of the provisions of paragraph (5) of M.L.O. 23 and therefore the orders passed on the review petition of the petitioner are illegal and without lawful authority. Paragraph (5) of M.L.O.‑23 reads as under: ‑ 'Review Board, on receipt of a review petition forwarded to it by the competent authority, shall review the said petition and, after giving an opportunity to the petitioner of being heard and making such further enquiry as it may deem appropriate, submit its report to gether with its recommendations to the competent authority who may pass such orders as he may deem appropriate." It was urged by the learned Additional Advocate‑General that the afore said provisions cannot be construed in the restricted manner contended for on behalf of the petitioner and that the report of the Review Board being only a recommendation is not binding on the competent authority who is free to pass any order deemed appropriate. We are inclined to agree with this submission. The only grievance of the petitioner is that his own case should not have been referred by the competent authority to the Director -General (Enquiries) for further report. The power conferred by M. L. O. 23 on the competent authority for disposal of review petitions, in terms of paragraph (5) of the M.L.O. as we produced above is couched in very wide terms, inasmuch as, the competent authority was empowered to pass any order deemed appropriate after receiving the report of the Review Board. It cannot, therefore, be argued that the competent authority was obliged to pass‑orders on the review petition only on the basis of the recommendation received from the Review Board. The expression such order as he may deem appropriate" seems to us wide enough to include an order to refer the case for further enquiries to any official agency by the competent authority. At the request of the petition, himself the records of this case were ordered to be produced and the learned additional advocate‑General has placed before us the relevant records. We find in the record the letter dated 7th July, 1978 referring the case to the Chairman, Enquiries & Anti- Corruption Establishment, Government of Sind which reads as under: ‑‑ "I am directed to state that Martial Law Administrator Zone (C), while reviewing the recommendations of Review Board‑II on the review petition of Syed Ali Mehdi, Retired. Estate Inspector, K.D.A has directed for a report by the E. & A. C. Wing regarding poor reputation for integrity enjoyed by the Officer and also his involve ment in some corruption cases, (2) I am, therefore, to request you to please forward your report it the matter (within 15 days from the receipt of this communication' for re‑submitting the case for Martial Law Administrator's further order. (3) This Wing's File No. S. O. (S & GAD)/RE/48/73 (containing 71 pages) relating to review petition of the aforesaid Officer is forwarded for reference, which may please be returned with your report." It was in consequence of this reference that further report was made on the basis of which the review petition of the petitioner was disposed of. It is significant that no allegation of mala fides has been made against the Director General (Enquiries) by the petitioner.

6. Learned counsel for the petitioner then contended that there is nothing on record to show that the Martial Law Administrator Zone `C' who was the competent authority under M. L. O. 23 has passed the final orders on the review petition of the petitioner. We find no substance in this contention as the letter of the Section Officer referred to above clearly mentions that the competent authority taking into consideration the recommendations of the Review Board had declined to accept the petition. There is a presumption of regularity attached to all official acts and we have no reason to believe that the contents of this letter are false. The letter reproduced above also indicates that the Martial Law Administrator had considered the case of the petitioner.

7. It is. however, contended by the learned Additional Advocate -General that the petitioner having voluntarily opted to retire to avoid facing criminal prosecution in pursuance of the letter issued to him by the Director‑General, K.D.A. dated 9th August, 1974 (Annexure `G' to the petition) the petitioner had no right to invoke the special remedy provided under M.L.0,

23. On the other hand, it was urged on behalf of the petitioner that he having exercised the option to retire under threat of prosecution, it cannot be argued that his retirement was voluntary and, therefore, he must be deemed to have been compulsorily retired. The office records show that the petitioner filed a review petition first on 10th September, 1977 before the promulgation of M. L. O. 23 on 22nd October, 1977. On 29th October, 1977 he submitted a review petition under M. L. O. 23 in continuation of his previous petition. Paragraph (3), sub‑paragraph (1) of M. L. O. 23 as originally promulgated provided as under: ‑ "Any person who was in Government service and was compulsorily removed from such service between the first day of January, 1972 and the 5th day of July, 1977, and every person who was in cor poration service and was removed from service under the Removal From Service (Special Provisions) Regulation, 1972, may submit a review petition to the competent authority." The expression "compulsorily removed" was defined in clause (d) of paragraph (2), M. L. O. 23 to mean "dismissed or removed or prematurely retired from service etc," It is, therefore, clear that under M. L. O. 23, Paragraph (3) (1) as originally promulgated a person in corporation service as was the petitioner, could invoke the remedy under the said M. L. O. if he had been removed from service under the removal from Service (Special Provisions) Regulation, 1972. There is nothing on the record to show that the petitioner had been removed under the aforesaid Regulation of 1972. He could not, therefore file a review petition under M. L. O. 23 as originally promulgated. However, by C. M. L. A. Order No. 43 dated 30th March, 1978 which was given retrospective effect from 22nd October, 1977 the aforesaid paragraph (1) was substituted with the following:‑ "Any person who was in Government service or in corporation service and was compulsorily removed from service between the first day of January, 1972 and 5th day of July, 1977, may submit a review petition to the competent authority." With this amendment the case of Government and employees corpora tion became on par. We agree with the argument of the learned Addi tional Advocate‑General that a person said to be prematurely retired from service if he has been retired under orders of the Government and not as a result of his own option to retire. We cannot enter into the question of fact as alleged by the petitioner that he retired on account of atmos phere of awe and terror. It is clear on the record that the petitioner made no such grievance at any time from date of his retirement until the filing of the review petition. It seems to us, therefore, that the petitioner had no right to file the review petition under M. L. O. 23, in view of the fact that he was not prematurely retired from service and, therefore. in terms of the definition referred to above he cannot be said to have been! compulsorily removed within the meaning of M. L. O. 23.

8. The learned Additional Advocate‑General has also raised the question that this Court has no jurisdiction to issue a writ against the order of the Martial Law Authority, but we do not feet called upon to decide this question in view of what has been stated above on the merits of this petition.

9. In the result, this petition fails and is dismissed accordingly. Petition dismissed.