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Petitioner: Engineer JAMEEL AHMED MALIK VS Respondent: PAKISTAN ORDINANCE FACTORIES BOARD, WAH CANTTHonorable Justice NAZIM HUSSAIN SIDDIQUI,Hafiz S.A. Rehman
2004 P L C (C
2004 P L C (C.S.) 130
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ
Engineer JAMEEL AHMED MALIK
Versus
PAKISTAN ORDINANCE FACTORIES BOARD, WAH CANTT Through Chairman and others
Civil Appeals Nos. 1505, 1506 of 1997, 971 of 1998 and Civil Petition No.249 of 1997, decided on 10th September, 2003.
(On appeal from the judgments dated 12-3-1996, 24-3-1996, 8-12-1996 and 30-1-1997 of Federal Service Tribunal, Islamabad passed in Appeals Nos.344(R)/95, 385(R)/95, 531(R)/96 and 205(R)/96 respectively).
(a) Constitution of Pakistan (1973)-----
----Art. 19---Freedom of speech/expression and press---Essential requirements of democracy---Democracy cannot survive without such freedom---Such right is not absolute, but reasonable restrictions can be imposed upon the same on reasonable grounds---Reasonable classification is always permissible in law.
Zaheeruddin and others v. The State and others 1993 SCMR 1718 rel.
(b) Government Servants (Efficiency and Discipline) Rules, 1973-----
----Rr. 2(4) & 4(1)(b)(ii)---Government Servants (Conduct) Rules, 1964., Rr. 22 & 29---Compulsory retirement from service---Charge against civil servant was that he addressed press conference and issued pamphlets criticizing his administration and talked about latest happening in New World Order and geopolitical situation, and addressed letters to higher Authorities including the President and the Prime Minister of the country in disregard of normal procedure in that regard---Civil servant did not deny such facts, rather, asserted that whatever was stated therein was correct---Validity---Not within realm of permissible limits of freedom of speech expression for a Government servant to discuss about latest happening in New World Order and geopolitical situation---Such conduct of civil servant would be in violation of Rr.22 & 29 of Government Servants (Conduct) Rules, 1964 and misconduct within meaning of R.2(4) of 'Government Servants (Efficiency and Discipline) Rules, 1973---Such charge stood squarely proved against the civil servant.
(c) Government Servants (Conduct) Rules, 1964-----
----Rr. 22 & 29---Constitution of Pakistan (1973), Art. 19---Restriction on freedom of speech of Government servants---Essential in interest of public order---Reasons stated.
In order to maintain the proper discipline in public servants and efficiency in administration, it is necessary to place certain restrictions on the freedom of the speech of Government servants, which are essential in the interest of public order, otherwise there would be chaos, anarchy and maladministration in every department, as its employees would not only criticize each other publicly, but would frustrate every policy framed for the interest of general public.
(d) Government Servants (Conduct) Rules, 1964-----
----Rr. 22 & 29---Govetnment Servants (Efficiency Discipline) Rules, 1913, R. 2(4)---Government servant prohibited from taking part in politics, participating in functions of political parties, supporting students agitations, discussing politics in offices/clubs/ restaurants and other public places---Action could be taken against defaulting servants under Government Servants (Conduct) Rules, 1964 and Government Servants (Efficiency and Discipline) Rules, 1973.
(e) Civil service----
----Annual Confidential Report---Duty of Reporting Officer and Countersigning Officer stated.
Annual Confidential Reports play pivotal role in service career of an employee. It is a duty of Reporting Officer as well as Countersigning Officer to see that the reports shall not reflect undue generosity or harshness and be as objective and circumspect as possible.
General Standing Instructions about `Performance Evaluation Reports' by Nabi Bux Khoso, Director-General (PPARC) Management Services Division ref.
(f) Words and phrases-----
----"Circumspect"---Meaning.
F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.-W.F.P. 1994 SCMR 722 fol.
(g) Words and phrases---
----"Objective"---Meaning.
F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.-W.F.P. 1994 SCMR 722 fol.
(h) Civil service-----
----- Annual Confidential Report---Advisory remarks recorded in ACR-- Effect---Advisory remarks are meant for improvement, which can neither I be taken as stigma nor be treated as adverse.
Government of the Punjab and another v. Ehsanul Haq Sethi PLD 1986 SC 684 rel.
(i) Civil service-----
---- Annual Confidential Report with "Average" entries---Not adverse-- No representation/appeal is maintainable against "Average ACRs".
Province of the Punjab through Chief Secretary, Punjab, Lahore and another v. Sardar Noor Ilahi Khan Leghari and another 1992 SrMR 1427 and Federation of Pakistan through the Secretary. Health Division v. Dr. Najmul Ghani Khan PLD 1995 SC 556 rel.
(j) Civil service---
----Annual Confidential Report---Adverse remarks---Non-recording of adverse remarks by Reporting Officers and Countersigning Officers against corrupt and inefficient officers---Contributory factor towards corruption and inefficiency---Supreme Court emphasized on elimination of such tendency.
The experience has shown that there is growing inclination among Reporting Officers/Countersigning Officers recording Adverse Remarks, even against corrupt and inefficient officers for some reasons. One can be that they do not want to displease anybody. Secondly, they also feel highly embarrassed when they are called upon to substantiate their adverse remarks. This lack on the part of higher authorities is a contributory factor towards corruption and inefficiency and must be eliminated to help the system work smoothly. Such officers must exercise restraint to act upon on the basis of discredited information, but at the same time, they shall canvass in objective way the true picture about the real performance of concerned officer.
(k) Civil service------
----Annual Confidential Report---Evidentiary value---Conflict between reports of Reporting Officer and Countersigning Officer---Procedure to be followed stated.
Reports of Reporting Officer and Countersigning Officers, unless contrary is proved by a strong piece of evidence, must be accepted as true and having legal and moral sanction behind it. Acceptance of such reports shall be a rule and rejection an exception. In case of conflict between the reports of Reporting Officer and Countersigning Officer, the entire record/personal file be thoroughly scrutinized and weighed keeping in view the intrinsic value of the material available on record for evaluating the correctness and propriety of the remarks recorded in ACR. The remarks of higher authority, as a rule, command more respect and cannot be equated with that of Reporting Officers.
Petitioner in person.
Hafiz S.A. Rehman, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.
Nasir Saeed Sh., Advocate Supreme Court (Standing Counsel for Respondents (in C.As. Nos. 1506 of 1997, 971 of 1998 and C.P. No. 249 of 1997).
Date of hearing: 2nd May, 2003.
JUDGMENT
NAZIM HUSSAIN SIDDIQUI, J---This judgment will dispose of Civil Appeals Nos. 1505, 1506 of 1997, No. 971 of 1998 and Civil Petition No.249 of 1997. Engineer Jameel Ahmed Malik is appellant/petitioner, hereinafter referred to as "the appellant" in above matters.
2. The facts forming the background are as follows.
CIVIL APPEAL No. 1505 OF 1997
This is the main matter. The appellant was appointed as an Assistant Works Manager (Civil) on contract basis on 6-5-1978 in Pakistan Ordnance Factories Board, Wah Cantt. hereinafter referred to as "POF" and his appointment was regularized on 24-6-1979 by the then President/CMLA. He was promoted on officiating basis as Works Manager on 15-6-1991 and was made regular Works Manager on 16-9-1991. His seniority, however, was antedated to 26-10-1986, the date when his juniors were promoted. He remained under suspension from 11-6-1985 to 10-2-1989. According to the appellant, the suspension was illegal and contrary to law, while the respondents maintained that it was due to his subversive activities. His promotion was withheld for a period of one year from the date of his reinstatement i.e. 11-2-1989.
(2). It is the case of appellant that learned High Court, Rawalpindi Bench, vide order dated 3-11-1990 passed in Writ Petition No.433 of 1989, set aside said punishment but allowed the department to recommence the proceedings against him. The respondents have claimed that in good gesture they treated his total suspension period as on duty for all intents and purposes. It is alleged that the appellant, in spite of above gesture continued to attack, blame and scandalize the top management of "POF". Further, it is said that all the time the appellant used intemperate/insolent and derogatory language against POF.
(3) One of the charges against the appellant is that in the capacity of a presidential candidate of POF Officers Association, he addressed a Press Conference, which was published in daily Muslim dated 20-11-1991, which, inter alia, was as follows:--
"Engineer Jameel Ahmed Malik said the elections for which a firm schedule had been formally announced, were postponed to deprive him of sure victory as head of the association. He said it was for the first time that he had stood up opposed the Managing Director for the top slot which annoyed the top bosses who postponed the- elections at the eleventh hour when their pressure on him did not work.
Mr. Jameel deplored that against all norms of democracy, the Election Authority did not even bother to inform him about the postponement of elections which it was legally and morally bound to do.
Mr. Malik in 1984, he said, faced a similar situation when he was contesting the vice-president ship of Ordnance Club. Engineer Jameel alleged that elections had been postponed at the instance of the POF Chairman, Gen. Sabeeh who did not want him (Mr. Jameel) to win. He said the Chairman was interfering in the affairs of the association.
Mr. Malik also alleged that Gen. Sabeeh was using the present office-bearers of the association to influence the Defence Ministry to cancel his transfer to Steel Mills, Karachi. It may be added that Gen. Sabeeh Qamruzaman has been transferred but he has not so far handed over charge to the new incumbent. Mr. Malik accused the administration of victimizing him and transferring him to Karachi so that he could not take part in the elections.
He also lashed out at the present President of the Association, Abdul Qadeer also a member of the POF Board, who he alleged has never been sincere towards the people he has been representing as their President in the past.
He demanded that a new schedule should be announced forthwith.
He also appealed to the President and Prime Minister of Pakistan to intervene to save the situation from further aggravation. Transfer of the Chairman, POFs., Lt.-Gen. Sabeeh Qamruzaman to Pakistan Steel Mills, Karachi should be effected as no one was indispensable Engr. Jameel Malik concluded."
(4) Besides above, he also published pamphlets in Urdu and English for wide circulation amongst the officers of POF and others in spite of the fact that the Government had granted recognition to-the POF Officers Association vide letter dated 27-7-1966. Inter alia, subject to the following conditions:--
" (a) ...........................................
(b) Representations from the Association, whether made orally, by deputation, or in writing, will be made to the Chairman, Pakistan Ordnance Factories Board, Wah, who will refer the case to higher authorities concerned wherever necessary. The Association will not communicate direct with any authority higher than the Chairman Pakistan Ordnance Factories Board. Wah.
(c) .....................
(d) The Association will not directly or indirectly communicate with the press,
(e) ....................
(f) The Association will not engage itself in any subversive activity nor will it indulge in criticism considered detrimental to the interests of the State.
(g) ...............
(h) ...............
(i) The notices and handbills of the Association will not be posted anywhere in the area of Pakistan Ordnance Factories nor propaganda in any form will be permitted there.
.. ..
(5) The election was due on 10-11-1991 but the same was postponed and the appellant was transferred to Karachi. He filed Writ Petition No, 1402 of 1991 in Lahore High Court assailing his transfer, which was stayed. The election was held on 25-1-1992, whereby the appellant was elected as President of the POF Officers Association.
(6) The Federation filed Civil Petition No.26 of 1992 before this Court and above judgment of High Court staying the transfer of the appellant, was set aside.
(7) On 26-1-1992 a charge-sheet was served upon him containing the following charges:--
(i) At 07-15 hours on 11 Nov., 1991 you refused to accept the relieving orders issued vide Chief Engineer Works Note No.98284/Admn/CEW, dated 10 Nov., 1991 marked through S.E./Sanjwal; and absented from the office without informing your superior officers. Your non-compliance to lawful order amounts to an act of insubordination falling within the purview of misconduct as enumerated in the Civil Servants Act, 1973.
(ii) On 18 Nov., 1991, you addressed a Press Conference un authorisedly, published in "The Daily Muslim" on 19 Nov., 1991 wherein you openly criticized the actions taken by POF's management, which is contrary to Government Servants (Conduct) Rules, 1964.
(iii) In connection with POF's Officers Association Election you circulated 2. pamphlets in Urdu and English wherein you published serious allegations against the senior management of POF's Army Personnel and FIU. Your this act is detrimental to good order and service discipline and amounts to causing subversion against the interest and working of POF's."
(8) The departmental inquiry was held, wherein full opportunity was given to the appellant to cross-examine six prosecution witnesses, which he availed of over a period of one year by asking record number of 799 questions. Full opportunity was also given to him to produce his evidence.
(9) It is the case of the respondents that during inquiry proceedings the appellant desired that Lt.-Col. Muhammad Siddique, who was appointed as Inquiry Officer, be changed. The respondents have claimed that, although there was no justification for above request, yet, it was acceded to and Mr. Mukhtar Ali Malik, Deputy Secretary was appointed to hold inquiry against him, who found him guilty on charges Nos.2 and 3. Thereafter, on 27-11-1993 alongwith a copy of Inquiry Report, final show-cause notice was served upon him asking him to appear for personal hearing on 31-7-1994. Instead of complying said notice, he filed Writ Petition No.788 of 1994 against the disciplinary proceedings before High Court, which in the first instance granted interim injunction in his favour. Later on, said interim injunction was vacated on 7-8-1994.
(10) Vide notification dated 26-4-1995, the appellant was awarded major penalty of compulsory retirement to which he filed departmental appeal on 20-5-1995 to the President of Pakistan and failing to get any response within the statutory period of 90 days, he filed appeal before learned Federal Service Tribunal, which was dismissed vide judgment dated 12-3-1996 against which this appeal has been filed.
(11) Leave to appeal was granted by this Court on 10-12-1997 in Civil Appeal No. 1505 to consider as to whether the order of retirement of the appellant and impugned judgment of Tribunal are in accordance with law.
CIVIL APPEAL No. 1506 OF 1997
In this matter, the judgment dated 24-3-1996 of Federal Service Tribunal, Islamabad, delivered in Appeal No.385(R) of 1995 has been impugned. The appellant was aggrieved by the remarks recorded in his ACR for the period from 22-6-1994 to 31-12-1994, which were communicated to him through letter dated 22-3-1995. The remarks of the Reporting Officer are as under:--
"The officer is of such a nature that he cannot improve his habits, as is evident from his behaviour. All the times, he used to make statements against the Chairman and Management in various newspapers and pamphlets" and `does not take interest in his official work'.
(Underlining for Emphasis)
(2) Learned Tribunal having taken into consideration all the pleas raised on behalf of the parties held that the appellant was advised to take more interest in the official responsibilities and the remarks being advisory in nature could not be challenged. Further, it was held by the Tribunal that advisory remarks were not to be treated adverse for the purpose of promotion, unless it was established that the officer concerned had not paid any heed to the piece of advice given to him and failed to show any improvement. With above remarks, the appeal was found misconceived and was dismissed.
(3) Vide order dated 11-12-1997, leave to appeal was granted to consider whether the appeal was rightly dismissed by the Tribunal.
CIVIL APPEAL No.971 OF 1998
In this matter, the appellant impugned the judgment dated 30-1-1997 of learned Federal Service Tribunal, Islamabad delivered in Appeal No.531(R)/1996, whereby the appeal was dismissed in terms of said judgment. In this appeal, the appellant claimed fixation of his pay w.e.f. 2-5-1985 i.e. from the date he was deferred for promotion by the Promotion Board. His case was that on promotion to B-18 his pay was not fixed properly and he was drawing less pay than his juniors, who were promoted alongwith him or after him.
(2) Vide order dated 24-6-1998, leave to appeal was granted to consider whether the appellant was not only entitled to count his seniority with effect from 2-5-1985 but also entitled to recover consequential arrears of pay from the aforesaid date till 15-7-1991.
CIVIL PETITION NO.249 OF 1997
In this matter, the judgment dated 8-12-1996 of learned Federal Service Tribunal, Islamabad has been impugned, whereby Appeal No.205(R) of 1996 filed by the appellant was dismissed.
(2) It appears that in the ACRs for the years 1983, 1984, 1985, 1991, 1992 and 1993, the appellant was rated as "Average". He filed appeal before the Tribunal for upgrading his said ACRs from "Average" to "Good". The appeal was dismissed by the Tribunal as being time barred, incompetent and not maintainable, besides being hit by section 4(1) of the Service Tribunals Act, 1973.
3. Rules 22 and 29 of the Government Servants (Conduct) Rules, 1964, hereinafter referred to as "the Rules of 1964", are relevant for purpose of these matters, which read as under:--
22. Publication of information and public speeches capable of embarrassing the Government.---No Government servant shall, in. any document published, or in any communication made to the press, over his own name, or in any radio broadcast delivered him, make any statement of fact or opinion which is capable of embarrassing the Government:
Provided that technical staff (both gazetted and non-gazetted) may publish research papers on technical subjects, if such papers do not express views on political issues or on Government policy and do not include any, information of a classified nature.
.. ..
29. Use of political or other influence.---No Government servant shall bring or attempt to bring political or other outside influence, directly or indirectly, to bear on the Government or any Government servant in support of any claims arising in connection with his employment as such.
4. It is contended by the appellant in Appeal No. 1505 that charge sheet and show-cause notices were issued to him by the Secretary, Defence -Production Division contrary to rules, as the Secretary, Ministry of Defence was the authorized officer and not Secretary, Defence Production Division as such the entire proceedings from the stage of charge-sheet and the superstructure raised thereon were illegal. The appellant also argued that major penalty of compulsory retirement was not passed by the competent authority i.e. Prime Minister and on this score also the impugned judgment should have been set aside by the Tribunal. It is also urged that rule 22 of the Rules of 1964 is ultra vires to the Constitution being in violation of Article 19 of the Constitution of 1973. He referred to various notifications issued from time to time regarding Authority and Authorised Officer, which are as under:--
"1. Cabinet Division Notification No. 104/12/72-Min, dated 17-4-1972 regarding creation of Defence Division and Defence Production Division.
2 Establishment Div. S.R.O. No.1213(1)73, dated 18-8-1973 wherein President appointed Authority and Authorised Officers.
3. Cabinet Div. S.R.O. No.1562(1)73, dated 7-11-1973 wherein President appointed Authority and Authorised Officers in respect of Government servants employed in Central Secretariat.
4. Defence Production Div. S.R.O. No.1180(1)74 dated 4-9-1974 wherein President appointed Authority and Authorised Officers in respect of Civilian employees paid out of Defence Estimates under the administrative 'control of the Defence Production Division.
5. Defence Production Div. S.R.O. No. 1180(1) 74, dated 4-9-1974 amended vide Defence Production Division S.R.O. No.143(1)/78, dated 4-2-1978, adding Additional Secretary and Joint Secretary when there is no Secy.
6. Establishment Div S.R.O. No.987(1)/76., dated. 9-10-1976 wherein President appointed Secretary Establishment, as Authorised Officer in respect of Government servants in Grade 17 to 20.
7. Ministry of Defence U.O. No.3/4/73/1862/D-13 (Regs)/76, dated 23-12-1976 intimating S.R.O. No. 987(1)/76 dated 9-10-1976 to all concerned.
8. Establishment Div. S.R.O. No.14(1)/77, dated 7-1-1977 whereby President rescinded the Establishment. Div S.R.O. No.987(1)/76, dated 9-10-1976 where Secretary Establishment Div. was appointed as Authorised Officer in respect of BS-17 to BS-20.
9. Ministry of Defence U.O. No.3/4/73/136/D-13(Regs)/77, dated 29-1-1977 intimating S.R.O. No.987(1)/76, dated 9--10-1976 to all concerned.
10. POF Daily Order Part-I No.114, dated. 2-3-77 reproducing U.O. dated 29-1-1977 of Ministry of Defence and erroneously mentioned that Secretary Ministry of Defence instead of Secretary Establishment Division shall be the Authorised Officer in respect of POF Officers in BS-17 to BS-20.
11. Establishment Division S.R.O. No.615(1)/79, dated 5-7-1979 (pages 500-501 of ESTACODE) whereby in super session of S.R.O. No.1562(1)/73, dated 20-11-1973 President appointed Secretary of Division concerned as Authorised Officer for BS-17 to BS-20.
12. Establishment Division S.R.O. No. 1011(1)85, dated 20-10-1985 wherein President made amendment in Establishment Division SRO No. 615(1)/79, dated 5-7-1979 and appointed "Secretary" as Authorised Officer for. officers of BS-17 to BS-20.
13. POF Daily Order Part 1 No.651, dated. 3-12-1985, whereby POF reproduced S.R.O. No.987(1)76, dated 9-10-1976 with clarification that Secretary means Secretary of Division concerned.
14. POF Daily Order Part 1 No.651/1, dated 3-12-1985 read with Daily Order Part 1 No.562, dated 12-11-1974 on the authority of Establishment Division Notification No.7/1/73-D.1, D.2/R-1, dated 20-10-1985, received under DPD U.O. No.1-9(1)81/DP-5, dated 14-11-1985 President appointed Secretary of Division concerned as Authorised Officer for BS-17 to RS-20."
5. However, he heavily relied upon Ministry of Defence U.O. No.3/4/73/136/D-13(Regs)/77, dated 29-1-1977, which reads as under:-
"Establishment Division have rescinded their Notification No.S.R.O. 987(I)/76, dated the 9th October, 1976, by their Notification No.S.R.O. 14(I)/77, dated the 7th January, 1977 (copy enclosed). With the issue of rescinding notification dated the 7th January, 1977, the notification issued by this Ministry specifying Authorised Officer' for officers in grades 17 to 20, and which were in force immediately before the issue of the Establishment Division notification dated the 9th October, 1976, would automatically stand revived. The position now, therefore, is that the powers of the `Authorised Officer' under the Government Servants (Efficiency and Discipline) Rules, 1973, in respect of officers in grades 17 to 20 employed in the departments; offices under this Ministry have again become available with the secretary, Ministry of Defence as was the position before the issue of Establishment Division Notification No.S.R.O. 987(1)/76, dated the 9th October, 1976."
6. He strenuously argued that after above regulations, the powers of Authorised Officer under the Government Servants (E&D) Rules, 1973 in respect of offices of grade 17 to 20 employed in the departments/offices under Defence Ministry again vested with the Secretary, Ministry of Defence. According to him, this notification clinches the issue and its perusal alongwith other…
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