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Petitioner: ABDUR RASHID KHAN VS Respondent: FEDERATION OF PAKISTAN
1993 P L C (C
1993 P L C (C.S.) 419
[Federal Service Tribunal]
Before Abdul Jalil and Ch. Hasan Nawaz, Members
Rao ABDUR RASHID KHAN
Versus
THE FEDERATION OF PAKISTAN through Secretary, Establishment Division, Government of Pakistan, Rawalpindi
Old Appeal No. 99(R) of 1978 (Appeal No. 20(L) of 1980), decided on 23rd July, 1989.
(a) Service Tribunal Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑Dismissal from service‑‑‑Appeal‑‑‑Non‑availability of inquiry report‑‑‑Effect‑‑‑Enquiry report, on basis of which order in question, was passed was not made available to Service Tribunal on the pretext of same having been not traceable‑‑‑In absence of such report, no direct evidence was available to determine whether Inquiry Officer was authorised by competent Authority to regulate his own procedure and make rules for carrying out the inquiry against the civil servant and whether the rules so framed by Inquiry Officer were in fact followed by him during the conduct of inquiry‑‑‑In the absence of relevant record possibility could not be ignored that Inquiry Officer might not have followed the relevant procedure‑‑‑Benefit of non‑availability of inquiry report would be allowed to civil servant.
(b) Martial Law Order, 1977 [C.M.LA's] No. 17‑‑‑
‑‑‑‑Para. 9(3)‑‑‑Dismissal from service‑‑‑Inquiry against civil servant was conducted when he was in jail and he was not associated with its proceedings‑‑‑Show‑cause notice was issued to civil servant without approval of competent Authority‑‑‑No legal basis existed for conduct of any inquiry against civil servant‑‑‑No material was brought on record to show whether requirements of law were fulfilled; thus, proceedings of Inquiry Officer suffered from a radical defect and as such were incompetent and without jurisdiction; and what followed did not have the sanction of law either and therefore, unsustainable‑‑‑Order of dismissal emanating from inquiry report and consequential show‑cause notice were void and of no legal effect.
(c) Mala fides‑‑‑
‑‑‑‑Mala fide order is a fraud on the statute.
(d) Martial Law (Pending Proceedings) Order, 1985 [C.M.LA s] No. 107‑‑
‑‑‑‑Para. 4‑‑‑Constitution of Pakistan (1973), Art 4‑‑‑Provision of para. 4, Martial Law (Pending Proceedings) Order, 1985, whereby previous acts, actions or proceedings were legalised, whether beyond the scrutiny of Courts‑‑ Provision of Art. 4 of the Constitution guarantees right of individuals to be dealt with in accordance with law‑‑‑Where acts, actions or proceedings suffered from lack or excess of jurisdiction or were mala fide or coram non judice, mere fact that same were purported to have been done or performed in connection with previous operation of a Martial Law Regulation or Martial Law Order and were legalised by para. 4 of Martial Law Order No. 107 would not create any hurdle in setting aside such order on the ground of presence of malice.
Malik Ghulam Mustafa Khar's case PLD 1989 SC 26 and Abdul Rauf v. Abdul Hamid Khan PLD 1965 SC 671 ref.
(e) Provisional Constitution Order (1 of 1981)‑‑‑
‑‑‑‑Art. 15(2)‑‑‑Laws (Continuance in Force) Order, 1977‑‑‑Proclamation of Withdrawal of Martial Law (1985), Para 1‑‑‑Martial Law Order, 1977 (C.M.LA's) No. 17, para. 9(3)‑‑‑Dismissal from service‑‑‑Petitioner could not challenge his dismissal because of bar to challenge the same imposed by Art. 15(2), Provisional Constitution Order, 1981‑‑‑Provisional Constitution Order, 1981 and Laws (Continuance in Force) Order, 1977, having been withdrawn by Proclamation of withdrawal of Martial Law (1985), provisions of Art. 15(2), Provisional Constitution Order 1 of 1981 could not be pressed into service to sustain the contention that impugned order (dismissal from service) could not be called in question.
(f) Provisional Constitution Order (1 of 1981)‑‑
‑‑‑‑Art. 15‑‑‑Constitution of Pakistan (1973), Art. 270‑A‑‑‑Power of judicial review‑‑‑Bar‑‑‑Extent-----Abatement of proceedings which were pending in Courts for adjudication and which were hit by provision of Art. 15(6) ‑ Order 1 of 1981 was not automatic‑‑‑No abatement, in the absence of a positive order, which had to be passed in the light of the facts of each particular case was warranted‑‑‑Provisions of Art. 15(6), Provisional Constitution Order, 1981, even when alive did not take away jurisdiction of Courts to examine whether the action taken under Martial Law Regulations or Orders passed suffered from defect of jurisdiction or was coram non judice or mala fide‑‑‑Power of judicial review which is inherent in a Court can be destroyed only by abolishing the Court itself.
The provisions of Article 15(6) of Provisional Constitution Order, 1981 were by no means suggestive of the fact that abatement of proceedings was automatic. There can be no abatement in the absence of a positive order, which would be passed in the light of facts of each particular case.
The provisions of Article 15(6), Provisional Constitution Order, 1981 even when alive, did not take away the jurisdiction of Courts to examine whether the action taken under the Martial Law Regulations or Orders suffered from defect of jurisdiction or was coram non judice or mala fide. The Legislature cannot be taken to have intended the production of a result which would have the effect of validating even malicious acts or proceedings and put them beyond the reach of Courts and deprive the aggrieved persons of any remedy or relief whatsoever. There is a presumption that Legislature does not perpetuate inequity or injustice and there is no reason why such a presumption should not be invoked while interpreting the provisions of Article 15(6) of the Provisional Constitution Order. Protection was provided by clauses (5) and (6) of Article 15 of the Provisional Constitution Order only to those actions which had been taken under any Martial Law Regulation or Order. No legislation can deprive the Courts of their right to examine and determine whether any such action was in fact taken in accordance with those Martial Law Orders and Regulations by the competent authority in good faith.
The power of judicial review which is inherent in a Court can be destroyed only by abolishing the Court itself and it is not possible to detach that power from it. Therefore, so long as the Courts/Tribunals were in existence, they would continue to exercise the Constitutional power to examine whether an order has been passed in accordance with law by a competent Authority in bona fide exercise of powers and with no taint of malice.
Mian Jamal Shah v. The Member of Election Commission PLD 1966 SC 1; Zia‑ur‑Rehman's case PLD 1973 SC 49; Saeed Ahmad Khan's case PLD 1974 SC 151 and Syed Mahmood v. Pakistan Railway Board and another 1982 PLC (C.S.) 231 ref.
(g) Judicial Review‑‑‑
‑‑‑‑ Power of judicial review which is inherent in a Court can be destroyed only by abolishing the Court itself; such power cannot be detached from it‑‑‑So long as Courts/Tribunals are in existence, they would continue to exercise the Constitutional power to examine whether an order had been passed in accordance with law by a competent authority in bona fide exercise of power and with no taint of malice.
(h) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑Scope of Service Tribunal's jurisdiction in service matters was larger than that of High Court.
The scope of Service Tribunal's jurisdiction in Service matters seems to be larger than that of the High Court, for the exercise of its power is not limited to the striking down of only those actions which were mala fide, without jurisdiction or coram non judice. Service Tribunal was under an obligation to decide all questions of law and fact sought to be raised by the aggrieved person to challenge the order of dismissal including his contention that no evidence was heard in his presence and that he was not given an opportunity to show cause against the proposed punishment.
(i) Martial Law Order, 1977 [C.M.L.A's] No. 17‑‑‑
‑‑‑‑Para 9(3)‑‑‑Service Tribunals Act‑ (LXX of 1973), S. 4‑‑‑Dismissal from service‑‑‑Validity‑‑‑Order of dismissal was unsustainable and of no legal effect, being mala fide and the result of an incompetent notice and inquiry proceedings which were conducted during
detention of civil servant without giving him opportunity to defend himself against the proposed action‑‑‑Civil servant was reinstated in service with effect from the date of the impugned order with all consequential benefits.
(j) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑S. 4‑‑‑Appeal before Service Tribunal‑‑‑Limitation‑‑‑Appeal was filed within thirty days of the communication of the review order dated 17‑11‑1978 to the civil servant‑‑‑Appeal was thus, in accordance with provisions of S.4(1) Service Tribunals Act, 1973, and thus, competent.
Shaukat Ali and Abdul Waheed for Appellant.
Hafiz Tariq Naseem for Respondent.
Date of hearing: 26th April, 1989.
JUDGMENT
CH. HASAN NAWAZ (MEMBER). ‑‑‑We are concerned in this judgment, with the disposal of an appeal under section 4 of the Service 'Tribunals Act, 1973, filed on 23‑12‑1978, by Rao Abdur Rashid Khan appellant, a Grade‑22 Officer of all Pakistan Unified Grade, against the order of his dismissal from service, published in the Gazette of Pakistan (Part I) as Notification No. 9/3/38/77‑C.II, dated 21‑3‑1978, and passed by the competent authority under paragraph 9(3) of Martial Law Order No. 17 (hereinafter called the Order), after the rejection of his review petition under paragraph 11 of the Order was communicated to him through letter dated 19‑11‑1978 received by him on 4‑12‑1978 on his release from second detention in jail.
2. The facts are not in dispute: The appellant was taken into custody on 5‑7‑1977, the date on which the Martial Law was imposed and was then dismissed from service by the competent authority in exercise of powers conferred by paragraph 9(3) of the Order while he was still under detention, in e on sequence of an inquiry which purports to have been conducted under paragraph 2(1) of the Order
3. Since the report of this inquiry was used as a basis for further proceedings, resulting ultimately in the order of the appellant's dismissal from service, significance of the relevant provisions of this paragraph makes it worthwhile to take their detailed notice. Its reproduction makes the following reading:
"2. (1) Where it is brought to the notice of the competent authority that a person in the Government service or a person in Corporation Service is‑‑
(a) Corrupt or pa's a reputation of being corrupt, or has assumed a style of living beyond his known sources of income. or
(b) Guilty of misconduct or
(c) Guilty of interference in any manner whatsoever in the conduct of elections, or
(d) Guilty of any other offence under any law for the time being in force or abetment thereof, or
(e) Inefficient or has for any reason ceased to be efficient, or
(f) Engaged or is reasonably suspected of being engaged in subversive activities.
The competent authority may, notwithstanding anything contained in the terms and conditions of the service of such person, or any law, rules, regulations or instructions, if of the opinion that it is necessary so to do, by order in writing, appoint an Inquiry Officer for the purpose of making an inquiry into the accusation and the Inquiry Officer so appointed shall make the inquiry accordingly."
4. During the course of arguments, it was brought to our notice: by the respondent's learned counsel that the record of Inquiry Officer's proceedings and the inquiry report were not traceable in spite of best efforts. The result is that there is nothing on the record to show; (a) that the information required by paragraph 2(1) of the Order was in fact furnished to the competent authority to justify the initiation of proceedings; (b) that the Authority applied its mind to any such information to form an opinion regarding the necessity or otherwise of ordering an inquiry and that (c) the Inquiry Officer was in fact appointed by an order in writing in fulfillment of the requirements of these provisions; which were enacted undoubtedly to eliminate the possibility of arbitrary and unjust exercise of powers conferred by them. Therefore, I have got no direct evidence to lay my hands upon in support of the fact that an inquiry was ordered and that too by the competent authority in accordance with law and bona fide exercise of powers, to provide lawful and equitable basis for the subsequent proceedings resulting in the passage of the impugned order.
5. We have had the advantage of going through the relevant file of the Establishment Division. It shows that on 21‑9‑1977, the then Cabinet Secretary submitted a note to the Secretary General‑in‑Chief, where it was proposed that a show‑cause notice nay be issued to the appellant under Martial Law Order No. 17, as to why he should not be dismissed from service on the basis of allegations found by the Inquiry Officer in his report to have been established against him. Although it has not been so mentioned in the note, the proposed notice was the one envisaged by paragraph 9(3) of the Order.
6. The proposal regarding issuance of show‑cause notice under paragraph 9(3) of the Order was, however, never put up before the Chief Martial Law Administrator for approval and it was returned to the Cabinet Secretary on 24‑12‑1977 with the following observation made by an Officer of the CMLA Secretariat:
"The report of the Enquiry Officer alongwith the recommendations of cabinet Secretary and the Secretary General‑in‑Chief against Rao Abdur Rashid Khan, former Director, Intelligence Bureau, was examined in this Secretariat. Notice under sub‑paragraph (3) of paragraph 9 of Martial Law Order No. 17, may be issued to Rao Abdur Rashid Khan to show cause as to why, he should not be dismissed from service. The case may, then, be forwarded to this Secretariat for orders of the CMLA."
7. After the case was received back in the Cabinet Division with the aforementioned observations, draft show‑cause notice addressed to the appellant was, after due approval in the Division itself, sent to the Ministry of s justice (then Law) for vetting before it could be issued. After examination, the Ministry of Justice discovered the existence of a legal flaw in the matter which was pointed out in the following words in their note dated 14‑1‑1978 sent to the cabinet Division:
"It is presumed that the Cabinet Secretary, under whose signature the show‑cause notice in this case is proposed to be issued has been authorised under paragraph 1(2)(a) of Martial Law Order No. 17 to exercise powers of competent authority in relation to the officer to whom the notice is proposed to be issued. Otherwise, it may please be noticed that on the summary submitted to the Chief Martial Law Administrator, there are no orders by the Chief Martial Law Administrator to serve show‑cause notice under paragraph 9(3) of M.L.O. NG. 17 on Rao Abdul Rashid Khan. Instructions in this regard appear to have been issued by Lt.‑Col. Ahmad Jhanzeb, AJAG of CMLA's Secretariat, Rawalpindi. This cannot be considered to be sufficient compliance of the requirements of paragraph 9(3) of Martial Law Order No. 17, inasmuch as, only the competent authority after examining the report of Inquiry Officer and after affording opportunity to show cause as contemplated by proviso to sub‑para (3) ibid can impose one of the penalties enumerated in sub‑para (3) of para. 9 of M.L.O. No. 17."
8. Irrespective of the Justice Division's opinion, however, show‑cause twice dated 21‑1‑1978 was sent to the appellant without the approval of the competent authority as required by paragraph 9(3) of the Order which is to the following effect:
"9(3) Notwithstanding anything contained in the terms and conditions of service of the person against whom the inquiry has been made, the competent authority may, after examining the report of the Inquiry Officer, by order in the official Gazette, dismiss or remove such person from service, or reduce him in rank, or direct that he shall prematurely be retired from service or refer his case to any ordinary Criminal Court or a Military Court, as the case may be, for trial:
Provided that no action under this paragraph shall be taken in respect of any person, except after informing him of the reasons therefore and giving him opportunity to show cause in writing within a period of 7 days as to why such action should not be taken against him."
9. The allegations in this notice were in respect of misconduct and conduct prejudicial to good order and service discipline, misappropriation of Government money, conduct unbecoming of an Officer and gentleman, interference in diverse manner in the conduct of elections and assumption of style of living beyond known sources of income. He was called upon to show cause within seven days of the receipt of the notice as to why disciplinary action, which may amount to his dismissal from service, should not be taken against him under paragraph 9(3) of the Order. The appellant submitted a detailed explanation in writing in response to this notice.
10. The grounds of appeal are that the appellant had unblemished record of service; that the impugned order is unjust and arbitrary; that it is mala tide on account of having been passed for political considerations because the appellant refused to yield to pressure by the respondent's officials; that the inquiry was held against him while he was under detention and that he was not given an opportunity to defend himself and that the impugned order is in violation of the principles of natural justice.
11. What this examination brings us to is that there is no denial of the following facts:
(a) The appellant was taken into custody on 5‑7‑1977, the date on which the Martial Law was promulgated.
(b) There is no evidence to bear out that (i) the information required paragraph 2(1) of the Order was brought to the notice of t , competent authority, (ii) that the Authority formed an opinion, after due application of mind, that initiation of an inquiry was necessary and (iii) that an order in writing was passed in accordance with the provisions of this paragraph appointing an Inquiry Officer for the purpose of making an inquiry into the accusations against the appellant.
(c) The inquiry was held against the appellant when he was in jail and he was not associated with its proceedings.
(d) No evidence was recorded in his presence with the result that he could not avail of the right of cross-examination which amounted to palpable denial of the right of defence.
(e) The show‑cause notice was issued to the appellant without approval the competent authority in violation of provisions of paragraph 9(3) of the Order.
(f) There is no proof of the fact that the Cabinet Secretary under whose signatures the show‑cause notice was issued had been authorised by the Chief Martial Law Administrator in terms of paragraph 1(2)(a) of the Order to exercise the powers of the competent authority.
(g) The order regarding rejection of the review petition has not been produced and it is not possible to discover whether it was passed by the competent authority after due consideration of the matter in accordance with paragraph 11(2) of the Order. Letter dated 19‑11 1977 is not of any value, when primary evidence of the passage of the order could be available
12. The situation thus emerging out of this analysis brings us to the irresistable conclusion that there was no legal basis for the conduct of an inquiry. The requirements of law might have been fulfilled, but it is not shown' to have been so done and something which is not duly proved does not exist. Therefore, all I know is that the proceedings of Inquiry Officer suffer from a radical defect and were thus incompetent and without jurisdiction; and what followed did not have the sanction of law either and was therefore equally unsustainable; all the more so, when the proposal for issuance of show‑cause notice was never submitted before the Chief Martial Law Administrator for approval and it was issued under the signature of an Officer who had not been duly authorised to do so under paragraph 1(2)(a) of the Order and had nothing to do with the matter; and that too, to crown it all, regardless of the Justice Division's opinion which pointed out that the Chief Martial Law Administrator's order had not been obtained on the proposal for issuance of show‑cause notice to the appellant under paragraph 9(3) of the Order.
13. In the background of these facts, it is not possible to withstand the conclusion that the order of dismissal emanating from the inquiry report and the consequential show‑cause notice is void and of no legal effect. The entire proceedings were vitiated and therefore, too unsound to sustain the edifice of this order, which is in say the least.
14. Further, nothing more is required to conclude that the impugned action was mala fide. The appellant's arrest on the very date the Martial Law was imposed, lopsided inquiry proceedings in his absence and the issuance of an incompetent show cause notice, are enough to give rise to a reasonable belief that the allegation regarding the presence of malice, as motivation to the passage of the impugned order, is not without substance; particularly when seen in the context of allegations that the appellant has been victimised for political considerations, simply because he refused to succumb to the pressure brought to bear upon him for achievement of certain goals.
15. In actual fact, as it could be gathered from the submissions made at the bar by the respondent's learned counsel, there is no dispute about the facts and the appeal is being contested only on the ground that impugned order cannot be called in question before the Tribunal under paragraph 12 of the Order read with Article 15(2) of the Provisional Constitution Order of 1981. Reliance has also been placed on Article 15(6) of this Order in support of the contention that the appeal stands abated.
16. Considering that reliance on behalf of the respondent is exclusively on paragraph 12 of the Order and Article 15(2)(6) of the Provisional Constitution Order, 1981, detailed notice of their provisions will be expedient. Paragraph 12 of the Order provides that no action taken, order passed, thing done or power exercised under the Order shall be called in question by or before any Court including the Supreme Court and a. High Court or a Tribunal, or any other Authority.
17. "Article 15(2). ‑‑‑All Orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the fifth day of July, 1977, in exercise of the powers derived from any President's Orders, Orders of the Chief Martial Law Administrator, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye‑laws, or in execution of any Orders made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid shall notwithstanding any judgment or any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever, provided that nothing in this clause shall apply to transactions past and closed."
18. I will first deal with the objection regarding lack of jurisdiction on the basis of provisions of paragraph 12 of the Order. As already noticed, it purports to oust the jurisdiction of the Courts and the Tribunals to call in question the actions taken, orders passed, things done, or powers exercised under the Order. It was contended by the appellant's learned counsel that this Order was no longer in the field and that the provisions of paragraph 12 cannot be pressed into service to support the exception taken by the respondent's learned counsel in respect of jurisdiction of the Tribunal.
19. Proper examination of this contention would require an address to the provisions of Martial Law Order No. 107 called the Martial Law (Pending Proceedings) Order, 1985 promulgated by the Chief Martial. Law Administrator on 29‑12‑1985 in exercise of powers conferred by proviso to Article 270‑ A (1) of the Constitution which allowed him to make provisions which would facilitate or be incidental to the revocation of the Proclamation of 5‑7‑1977. Paragraph 3(1) of this Order provides that all Martial Law Regulations and Martial Law Orders, made and promulgated on or after the 5th day of July, 1977, by the Chief Martial Law Administrator and all Martial Law Orders made and promulgated by the Martial Law Administrators of Zones A, B, C, D and E, as mentioned in Martial Law Order No. 3 notwithstanding its cancellation on or after the said day, other than those specified in the Schedule to this Order, shall stand cancelled on the appointed day. In the Schedule of this Order, we f‑end no mention of Martial Law…
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