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Petitioner: Ch: GHULAM RASOOL VS Respondent: PROVINCE OF THE PUNJAB
Court Name: Lahore High Court Judge(s): Rustam S. Sidhwa Title: Ch: GHULAM RASOOL vs PROVINCE OF THE PUNJAB Case No.: Writ Petition No. 6887 of 1980 Date of Judgment:1982-01-31 Reported As: PLD 1982 Lahore 264 Result: Petition dismissed
JUDGMENT
JUDGMENT This is a constitutional petition filed by Ch. Ghulam Rasul, petitioner, for quashment of the Provincial Government's order dated 16-10-1976 compulsorily retiring him on his completing twenty-five years of service. 2. The brief facts of the case are that Ch. Ghulam Rasul, petitioner, was posted and serving as Conservator of Forests in the Provincial Forest Department, Punjab, when on 16-10-1976 be was retired by the Provincial Government in view of his having completed twenty-five years of service qualifying him for full pension. The said order, a copy of which is filed as Annexure `A' to the petition, was passed by the Governor of the Punjab under section 12 (ii) of the Punjab Civil Servants Act, 1974. The petitioner did not prefer any appeal against his compulsory retirement to the. Punjab Service Tribunal constituted under the Punjab Administrative Tribunals Act, 1974, which was then functioning. However, on the coming into force of C. M. L. A's. Martial Law Order No. 23 on 22-10-1977, the petitioner prefer--red a review petition before the Review Board constituted under the said Order. On 27-12-1977 the petitioner was heard by the members of the Review Board and on 14-1- 1978 the petitioner's review petition was rejected by the Martial Law Administrator Zone `A', who was the competent authority to pass the final order on the said review petition. Though the law does not provide a second review, the petitioner preferred a review petition before the Martial Law Administrator, Zone `A' Punjab, against his order dated 14-1-1978 which second review was rejected on 19-7-1978. Though no further remedy is provided, the petitioner then filed a representation, on the strength of the C. M. L. A's Martial Law Order No. 10, against the order dated 19-7-1978, which was rejected by the Chief Martial Law Administrator on 3-4-1980. On 19-6-1980 the petitioner filed a writ
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petition in the High Court challenging the order of his compulsory retirement passed by the Provincial Government on 16-10-1976, which is now before me for disposal. 3. The learned counsel for the petitioner submits that the impugned order of the Provincial Government dated 16-10-1976, compulsorily retiring the petitioner, was passed by the Provincial Government under compulsion brought to bear on it by the Central Government and that the Provincial Government was not given the choice of exercising its own judicial discretion and that since the action of the Government was mala fide, the impugned order was void and of no legal effect. In this connection, it was submitted that the Government of Pakistan deputed Mr. Abdul Aziz, Joint Secretary, Establishment Division, to personally carry their Letter No. 1661/JSF/76 dated 13-10- 1976 to the Provincial Government compelling the Provincial Government to compulsory retire certain Provincial Government Servants and to take disciplinary action against certain others. It was also submitted that the Provincial Government was not given the normal time to look into the cases independently and to exercise its independent discretion in the matter, but that it was taken for granted that compulsory retirement would be ordered and disciplinary action would be taken against the Officers named in the list who had or had not completed twenty-five years' service and that the whole operation, both of compulsorily retiring Government Servants who had completed twenty-five years' service and of taking disciplinary action against the rest, who were named in the list, were all rushed through in a mala fide manner within a matter of days, in some of which proceedings Mr. Abdul Aziz, Joint Secretary, Establishment Division, participated and he did not leave Lahore until the task was accomplished in its entirety. It was also submitted that so hurriedly was the operation performed that the orders of the Chief Minister with regard to th8 retirement and termination of services of Senior Gazetted Officers of and above the status of N. P. S. 19. Was not taken till 21-10-1976, though so many officers (including the petitioner) were compulsorily retired or disciplinary action taken against them before that date by the Chief Secretary. Since post facto approval was given by the Chief Minister on 21-10-1976 to the compulsory retirement of the p- titioner it was urged that the same was void in the eye of law. In these circumstances, it was submitted that the action against the petitioner was mala fide, that the Provincial Government did not exercise its own discretion when compulsorily retiring the petitioner, but acted under command and pressure from the Pakistan Government and that, therefore, the order was basically mala fide and void and without lawful authority. In support of his submissions, the learned counsel for the petitioner cited Mubarik Ahmad Malik and four others v. Federation of Pakistan (1), Ch. Habib Ullah v. Punjab Province (2) White Paper on the Conduct of General Elections in March, 1977, issued by the Pakistan Government, 1978 Edition, page 75, The State v. Zia-ur---Rahman (4) and Khan Muhammad Nisar v. National Industrial Relations Commission etc. (4) 4. Mr. S. M. Zubair, learned Assistant Advocate-General, Punjab, who appeared for the State, firmly opposed the petition and submitted that under clause (1) of Article 13 of the Provisional Constitution Order, 1981, the present proceedings before this Court were incompetent. He also submitted that the petitioner, under clause (2) of Article 13 of the Provisional Constitution Order, 1.981, could have filed a petition before the competent authority for the review of the order of his compulsory retirement within thirty days from the commencement of the Provisional Constitution Order. He also submitted that under clause (2) of Article 15 of the Provisional Constitution Order, 1981, all orders made, proceedings taken and acts done under the C. M. L. A's. Martial Law Order No. 23 should be deemed to have been validly made, taken or done and they cannot be called in question in any Court on any ground whatsoever and that under clause (4) read with para. (a) of clause (5) and clause (6) of Article 15 of the said Provisional Constitution Order, this Court cannot make any order relating to anything done or action taken under that Martial Law Order and that since the order passed by the Review Board and by the other Officers thereafter are immune from challenge and since the said orders supersede the earlier retirement order, the present writ filed to
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challenge the earlier retirement order is legally incompetent. In this connection it was also submitted that as the orders of the Review Board, the Martial Law Administrator, Zone 'A', and the Chief Martial Law Administrator dated 14-1-1978, 19-7-1978 , and 3-4-1980 respectively had not been challenged in this petition, the writ was legally defective and merited instant dismissal. The learned Assistant Advocate-General also submitted that under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, which had been preserved by Article 2 of the Provisional Constitution Order, 1981, this Court could not go into a matter relating to the terms and conditions of service and that the proper remedy for the petitioner was to move the Punjab Service Tribunal constituted under the Punjab Administrative Tribunals Act, 1974. In these circumstances, the learned Assistant Advocate-General submitted that there was no merit in this petition and that., the same should be dismissed. (1) 1980 PLC (C S) 418 (2) NLR 1978 Service 565 (3) PLD 1973 SC 49(4) PLD 1977 Lab. 449 5. Replying to some of the submissions made by the learned Assistant Advocate-General, the learned counsel for the petitioner submitted that the bar contained in clause (1) Of Article 13 of the Provisional Constitution Order, 1981, did not apply to the instant case as the order of the petitioner's com--pulsory retirement was not passed by the Chief Minister, who was the "competent authority," but by the Chief Secretary and. That the Chief Minister's ratification was not secured till 20-10-1976, which had no validity. Unless the order was passed by a "competent authority", the bar of jurisdic-- tion, as contemplated under clause (1) of Article 13 of the Provisional Constitution Order, 1981, was not available. As regards the submission of the learned Assistant Advocate-General that since the petitioner had approached the Review Board constituted under C. M. L. A's. Martial Law Order No. 23 and other authorities thereafter, which review petition and other representations had been rejected, the petitioner could not challenge the earlier order, the learned counsel for the petitioner submitted that the petitioner was not given an appropriate hearing by the Review Board constituted under para. 4 of the C. M. L. A's. Martial Law Order No. 23 and that, therefore, the said Constitutional immunity did not apply to the petitioner's case. In the said connection, the learned counsel for the peti--tioner cited Nawab Khan v. N.-W. F. P. Government (1), Mumtaz Hussain v. University of Sind (2) and Mussarrat Sultana v. B. A. Khan (3). As regards the submission of the learned Assistant Advocate-General that the present matter related to the terms and conditions of service of the petitioner and therefore, petitioner should approach the Punjab Service Tribunal, the learned counsel for the petitioner submitted that under sub-para. (2) of para. 3 of the C. M. L. A's. Martial Law Order No. 23, the petitioner, even if he had preferred an appeal before the Service Tribunal, would have had to withdraw the same when filing his review petition before the Review Board and that even in cases where civil servants had preferred such appeals and withdrawn the same when filing their review petitions and, after the dismissal of their review petitions, had petitioned the Service Tribunals to resuscitate and hear their appeals, they had failed, as the Tribunals had held that the appellants, having withdrawn their appeals, had legally waived their rights to this remedy. In this connection he referred to Muhammad Yousaf v. Chief Engineer, Irrigation (4) and Sh. Abdul Qayyum v. Federation of Pakistan (5). (1) N L 8.1980 Service Pesh. 100 (2) PLD 1966 Kar. 429 (3) PLD 1981 SC 483(4) 1982 SCMR 476 (5) 1982 SCMR 474 6. I have given my anxious consideration to this case. The preliminary objections raised by the learned Assistant Advocate-General first call for determination. The most important preliminary objection that calls for determination first is whether this petition has abated in view of Article 212 of the Constitution of Pakistan, 1973. Articles 175 and 212 of the Constitu--tion of Pakistan, 1973, are now, by virtue of Article 2 of the Provisional Constitution Order, 1981, a part of the said Provisional
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Constitution Order and have effect subject to the said Provisional Constitution Order and any Order made by the President or the Chief Martial Law Administrator in that behalf. Under Article 175 of the Constitution, no Court in Pakistan has any jurisdiction "except that which is or may be conferred on it by the Constitu--tion or by or under any law". Under Article 9 of the Provisional Constitu--tion Order, the High Court has, subject to the other provisions of the Provisional Constitution Order, the power to issue writs if amongst other things, it is satisfied that no other adequate remedy is provided by law. Under clause (1) of Article 2(2 of the Constitution, the appropriate Legislature has, notwithstanding anything contained in the earlier Articles of the Constitution, which include Articles 175 and 199, the power by Act to provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction inter alia in respect of matters relating to the terms and conditions of service of persons who are or have been in the service of Pakistan, including disciplinary matters, and under clause (2) of the same Article, where an Administrative Court or Tribunal has been established under the earlier clause, then, notwithstanding anything hereinbefore contained, no other Court can inter alia make any order or entertain any proceedings in respect of any matter "to which the jurisdiction of such Administrative Court or Tribunal extends" and all proceedings in respect of any such matter which are pending before such other Court immediately before the establishment of the Administrative Court or Tribunal, other than an appeal pending before the Supreme Court, abate on such establishment, provided that the provisions of the said clause (2) have been applied by Parliament to the Administrative Court or Tribunal concerned on the request of appropriate Legislature that has established by enactment the said. Administrative Court or Tribunal. As Article 199 of the Constitution stands replaced by Article 9 of the Provisional Constitution Order, the appropriate Legislature can, under Article 212 of the Constitution, notwith--standing anything contained in Article 175 of the Constitution and Article 9 of the Provisional Constitution Order, constitute the Administrative Courts and Tribunals having exclusive jurisdiction. Since Article 9 of the Provisional Constitution Order places fetters on the powers of the High Court to issue writs, as may be provided in the other Articles of or those forming a part: of the Provisional Constitution Order, and one of them is Article 212, the High Court is constitutionally bound by the limitations placed on it by this Article. If any support is required for this view, Majeeb Ullah Hajazi v. Director General, Telephone & Telegraph and two others (1), M. Yamin Qureshi v. Islamic Republic of Pakistan (2), Khalilur Rehman and others v. Government of Pakistan (3) and Muhammad Aslam Baiwa v. Federation of Pakistan (4) may be referred to with advantage. I now turn to clause (1) of Article 212 of the Constitution, which provides for the establishment of Administrative Courts or Tribunals to exercise "exclusive jurisdiction" inter alia in respect of matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters, and clause (2) of the same Article which provides that where any Administrative Court or Tribunal is established under clause (1), no other Court can grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends. On 20-6-1974 the Provincial Legislature enacted the Punjab Administrative Tribunals Act, IX of 1974, and on 2-5-1974, Parliament assented to the Provincial Service Tribunals (Extension of Provisions of the Constitution) Act, XXXI of 1974, extending the provisions of clause (2) of Article 212 of the Constitution to the Service Tribunals inter alia established under the Act of the Punjab Assembly. Under section 3 of the Punjab Administrative Tribunals Act, 1974, the Provincial Government constituted Tribunals to exercise "exclusive jurisdiction in respect of matters relating to the terms and conditions of service" of civil servants, "including disciplinary matters". The condition under clause (1) of Article 212 of the Constitution being fulfilled, namely the Service Tribunals having been set up by the Punjab Government to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of Punjab Civil Servants, including disciplinary matters, the ouster provided under clause
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(2) of the said Article came into effect. Under section 4 of the Administrative Tribunals Act, 1974, the petitioner has the right of preferring an appeal against the order' of his retirement on completion of twenty-five years' service passed under section 12 (ii) of the Punjab Civil Servants Act, 1974. He should, E therefore, seek his remedy in the proper forum. Even otherwise, Article 9 o the Provisional Constitution Order bars the High Court from granting an, relief where another adequate remedy is provided by law. This Court, therefore, has no jurisdiction to deal with the petitioner's case. The petitioner may move the Punjab Service Tribunal, if so advised. (1) PLD 1980 Quetta 51(2) PLD 1980 SC 22 (3) PLD 1981 Kar. 750 7. Whilst dealing with the above objection raised on behalf of the State a novel argument was presented on behalf of the petitioner, namely, that initially the petitioner was not in the knowledge of facts constituting mala fide and, therefore, he did not prefer any appeal before the Punjab Service Tribunal, but that when he became aware of the facts constituting mala fide, trough the decision of the Punjab Service Tribunal in Mubarik Ahmad Malik's case, which decision was announced in September, 1978, he filed the present petition, as this Court could interfere in a matter if the order was mala fide, void or coram non judice. The learned counsel for the petitioner explained the delay in the filing of the petition by urging that when the Tribunal's decision was announced, the petitioner was then awaiting the decision of the Chief Martial Law Administrator on the representation he had made to him against the rejection of his review by the Martial Law Administrator, Zone `A', Punjab, against the dismissal of his review petition by the Review Board and as he bad to wait for that decision and it was not until 3-4-1980 when he received the final order from the Chief Martial Law Administrator rejecting his representation, that the petitioner filed the present writ petition on 19-6-1980. The petitioner has detailed grounds of mala fide in his petition, as reproduced in paras. 3 and 5 above, which have been pressed in argument. In view of the constitutional ouster contained in Article 212 of the Constitution, I doubt whether the plea of mala fide gives this Court liberty to act under Article of the Provisional Constitution Order. There are rulings of this and other High Courts both for and against the proposition, but, as already submitted above, as the Service Tribunal has jurisdiction to decide this matter, the petitioner can raise all the facts proving mala fide therein. In Muhammad Yamin Qureshi's case the Supreme Court has held that a Service Tribunal is fully competent to examine on merits all questions of law and facts which may be raised by the appellant to challenge the order passed against him. Khalilur Rahman's case follows the same view. In these circumstances, J would not like to go into the question of mala fide, etc. These being proper matters for the competent Tribunal to decide. 8. The learned counsel, in support of this Court's right to interfere in writ jurisdiction, also contended that such of the Government Servants who had filed their review petitions under C. M. L. A's. Martial Law Order No. 23 against their retirement or dismissal were not able to have their cases decided in appeal by the Service Tribunals, in view of the provision contained in sub-para. (2) of para. 3 of the said Martial Law Order which had compelled them to withdraw their appeals or petitions pending before Courts and Service Tribunals. It was submitted that such civil servants who had preferred their appeals before the Service Tribunals and had withdrawn the same to facilitate disposal of their review petitions and had, after the rejection of their review petitions, requested the Service Tribunals to re--suscitate their appeals, had failed in that respect as the Tribunals had held that by withdrawing their appeals they had waived their rights of appeal. In this connection it was submitted that some of the Government servants affected by such decisions of the Service Tribunals had filed petitions for special leave to appeal before the Supreme Court, which leave had been granted in a number of cases, including Muhammad Yousaf's case and Sh. Abdul Qayyum's case and that as the said matter had not yet been decided by a superior Court of Record, the same should be considered and decided in favour of the petitioner.
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9. In dealing with the above contention, a number of matters arise for determination. First, whether the order of review is immune from challenge, in view of clause (2) of Article 15 of the Provisional Constitution Order. Second, whether the act of a civil servant in preferring a review petition against his retirement amounts to a waiver his right of appeal. Third, whether an order passed on a review filed under C. M. L. A.'s. Martial Law Order No. 23 is an order made by the "departmental authority". And fourth and last, which is the "original"/"final order" against which an appeal can be preferred. 10. I will now deal with the first point. The effect of clause (2) of Article 281 of the Interim Constitution of Pakistan, 1972, in respect of a Government servant's right of appeal before the Service Tribunal was first considered by the Supreme Court in the case of Federation of Pakistan v. Saeed Ahmad PLD1974SC151in which it was held that the validity and immunity granted by the said clause to orders made under Martial Law Regulations 58 of 1969, and 114 of 1972, did not bar any appeal or revision allowed to the Govern--ment servant after the 25th of March, 1969, under the Service Tribunals Act, 1973. In Muhammad Aslam Bajwa's case the Lahore. High Court was confronted with Articles 269 and 270 of the Constitution, when protection was sought for orders passed under Martial Law Regulation No. 114 and it was claimed that the same were immune from .Challenge in appeal under section 4 of the Service Tribunals Act, 1973. In that case, the State, through the learned Attorney-General, conceded that the impugned orders were appealable under sections 4 and 6 of the Service Tribunals Act, 1973, and these cases fell out of the pale of Articles 269 and 270 of the Constitution. It was observed in that case that the bar of jurisdiction contained in that Article was only against "Courts" as distinguished from "Tribunals" or other executive authorities. In Muhammad Yamin Qureshi's case the Supreme Court also held that the validity and immunity granted by clause (4) of Article 270 of the Constitution to orders passed under Martial Law Regulation No. 58 did not bar any appeal provided by section 4 of the Service Tribunals Act, 1973. Clause (2) of Article 15 of the Provisional Constitution Order, 1981, is in pari materla with clause (2) of Article 269 and clause (4) of Article 270 of the permanent Constitution. Learned Assistant Advocate-General clearly stated that the appeal to the Administrative Tribunal was still there. In these circumstances, clause (2) of Article 15 of the Provisional Constitution Order does not bar any appeal which may preferred against the final order passed by the departmental authority, which has also, been the subject of review under C. M. L. A's. Martial Law Order NQ. 23. 11. The second question that now falls for determination is whether the act of the petitioner in filing a review petition before the Review Board under C. M. L. A's. Martial Law Order No. 23 impliedly amounts to his having waived his right of appeal. Section 4 of the Punjab Administrative Tribunals Act provides an appeal to a civil servant against a "final order" whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service, including disciplinary matter: Provided that where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Ordinance, 1974, or any Rules made thereunder, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such application or representation was so preferred. Under the Explanation to section 4 of the said Act, "departmental authority" means any authority, other than the Tribunal, which is competent to make an order in respect of any of his terms and conditions of service. It cannot be denied that C. M. L. A's. Martial Law Order No. 23 was specifically enacted to give to persons who were in Government and corporation service and had been compulsorily removed from such service between the 1st day of January, 1972, and the 5th day of July, 1977, a right of representation, other than by way of a formal appeal, on lines similar to that generally provided by Service or Departmental Rules applicable to civil servants. This special remedy was granted in view of the Government's own finding, as reported in the White Paper on the Conduce of the General Elections in March,…
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