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Petitioner: M.A. TANVIR VS Respondent: WAPDA
1990 P L C (C
1990 P L C (C.S.) 73
[Federal Service Tribunal]
Before Kh. Abdul Jalil and Ch. Hasan Nawaz, Members
M.A. TANVIR
versus
WAPDA through its Chairman
Appeal No.282 (L) of 1986, decided on 6th August, 1989.
(a) West Pakistan Water and Power Development Authority Employees (Retirement) Rules, 1979‑‑
‑‑‑R.3(b)‑‑‑North‑West Frontier Province Civil Servants Act (XVIII of 1973), S.13(1)‑‑‑Compulsory retirement of employee in "public interest"‑‑‑Colourable exercise or abuse of power by employer to be determined by Court‑‑‑Employer's determination of the question of "public interest" is not conclusive‑‑‑Such question has to be based on objective assessment of certain facts relevant to and having a bearing upon further usefulness of an employee in public service‑‑‑Court is not required to sit in judgment over the action of Government except where from the material disclosed, the action taken appeared to be in colourable exercise or in abuse of power‑‑‑Court has to determine whether subjective satisfaction of the employer was in the abuse of the power or in colourable exercise of that power, which would leave it to the determination of Court whether the material on record justified a particular conclusion as also if the same was not the result of rank considerations.
P L D 1981 Pesh. 1 and 1985 P L C (C.S.) 368 rel.
(b) North‑West Frontier Province Service Tribunals Act (I of 1974)‑‑‑
‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212‑‑‑Appellate powers of Service Tribunal‑‑‑Extent of‑‑‑Service Tribunal can examine all questions of fact as well as of law including questions of actions taken mala fide, lack of jurisdiction, and of the validity of orders‑‑‑Appellate powers of Service Tribunal are far wider than the power normally exercise-able in the absence of a right of appeal by the High Court in exercise of its extraordinary jurisdiction‑‑‑Appellate powers of High Court and those of Service Tribunal detailed.
A Tribunal established by law made under Article 212 of the 1973 Constitution has the exclusive jurisdiction and that jurisdiction is very wide. On the language of the relevant provisions of the Service Tribunals Act (LXX of 1973), also the Tribunal is not debarred from examining the propriety of an order of the Departmental Authority because the law made m this behalf confers on the Tribunal powers to confirm, set aside, vary or modify the order appealed against and for the purpose of deciding an appeal it shall have the powers of a Civil Court that are vested in such Court under the Civil Procedure Code (V of 1908). The Tribunal is not a Court of extraordinary jurisdiction to make a judicial review of the administrative actions like the High Court exercising power under Article 199 of the Constitution. The powers of the High Court are very limited and it cannot go beyond the tight corners of the said Article and would not interfere with the order of an authority unless it is made without jurisdiction or without lawful authority. The High Court cannot interfere with the discretion exercised by any Government or Local Authority unless there is involved some violations of any provisions of the Constitution or of law or of the principles of natural justice. The Tribunal on the other hand, being a Court of Appeal has wide powers and can in appropriate cases examine the propriety of an order passed by a departmental authority, though ordinarily it would not interfere in the discretion of an authority which itself is more concerned with the questions of usefulness and competency of a civil servant.
PLD1980 S C 22 rel.
(c) Civil service‑‑‑
‑‑‑ Further usefulness in service of an employee ‑Competent authority to direct itself and attend to the matters which it was bound to consider excluding those considerations which were irrelevant and extraneous‑‑‑Decision based on the recommendations of the Review Committee could not reasonably be taken to have been made by the competent authority itself which had been entrusted with responsibility of due application of mind.
1985 P L C (C.S.) 368 rel.
(d) North‑West Frontier Province Civil Servants Act (XVIII of 1973)‑‑‑
‑‑‑S. 13(1)‑‑‑North‑West Frontier Province Service Tribunals Act (I of 1974), S.4‑‑‑Suspension for a period of more than four years‑‑‑Grounds given for civil servant's suspension were never in existence‑‑‑Civil servant was punished first by suspension for more than four years and then by premature retirement on the basis of allegations, which were palpably false‑‑‑Material on record showed that there was no basis for a finding that civil servant had outlived his utility and that his retention in service on completion of fifty‑five years of age, was no longer in public interest‑‑‑Civil servant's premature retirement was evidently in colourable exercise and abuse of power which was set aside by Service Tribunal on acceptance of appeal.
Syed Jamshaid Ali for Appellant.
S. Iftikhar Ahmad with Muhammad Saddiq Khan, D.R. for Respondent
Date of hearing: 19th July, 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 by the appellant to challenge the validity of the order of his premature retirement with effect from 6‑10‑1986 (A.N) from WAPDA service on attaining the age of 55 years, passed by the competent authority under Rule 3(b) of the Pakistan WAPDA Employees (Retirement) Rules, 1979.
2. These are the facts in the background: After having started his career as Sub‑Engineer, in the year 1955 in Irrigation Department of the Government of Punjab, on 1‑4‑1959, he was transferred to WAPDA (respondent) along with other employees of the department, where he was subsequently promoted as Junior Engineer in the year 1966. On 1‑9‑1974, his services were placed at the disposal of M.C.P.L. on deputation where he was promoted as' Project Engineer in the rank and status of a Senior Engineer.
3. In the year 1979, during his posting in the Drainage Division of M.C.P.L. at Peshawar, when he was in-charge of the project of re‑modelling of Budni Drain, a case under Section 409/420/409/471, P.P.C. read with Section 5(2) of the Prevention of Corruption Act, 1947 was registered against him by the F.IA. on 9‑8‑1980 on the allegation that he made bogus payment of Rs.21,500 to Qaiser Khan Contractor in collusion with co‑accused Syed Sadiq Hussain, Assistant Project Engineer, in abuse of his official position, for a work which had not been accomplished on the site. Sanction for his prosecution in a Court of Law was also granted by the Government of Pakistan on 18‑3‑1982, where after he was suspended from service on 17‑6‑1982 on the direction of the Ministry of Interior.
4. On 5‑7‑1982, while still being under suspension, the appellant was repatriated to the respondent authority which refused to accept him, resulting in exchange of correspondence between the M.C.P.L. and the respondent authority. Ultimately, the appellant was accepted by the Authority after he was obliged to have recourse to the High Court with a Writ Petition which was accordingly disposed of on 23‑4‑1983. The period of his suspension was, however, extended from time to time by the competent authority from 3‑4‑1983 to 16‑9‑1986. Eventually, on 30‑7‑1986, he was reinstated in service as Junior Engineer in compliance with the Service Tribunal's direction issued on 19‑7‑1986 on a Miscellaneous Petition filed by him in his appeal (210(R)/1986) under Section 4 of the Service Tribunals Act, 1973 which he had instituted to assail the validity of his suspension from service for a period of more than four years. On reinstatement, his services were placed at the disposal of General Manage (Water North), Peshawar for absorption against an existing vacancy in the Design Office at Lahore. Shortly afterwards on 6‑10‑1986, he was prematurely retire from service, on attaining the age of 55 years under Rule 3(b) of the WAPDE Employees (Retirement) Rules, 1979 which makes the following reading:‑
"Rule 3 (b): Notwithstanding anything to the contrary contained in the order or the letter of appointment of an employee or in the terms of hi service or in any other rule applicable to him, the WAPDA employee shall retire from service on such date after he has completed 25 years o service qualifying for pension/gratuity or other retirement benefits, or of completion of 55 years of his age, as the competent authority may in the public interest direct."
5. Prayer for setting aside the impugned order of premature retirement dated 6‑10‑1986, is based on the following grounds which were also canvassed during the course of arguments at the Bar:
(a)??????? The WAPDA Employees (Retirement) Rules, 1979 are not intended to serve as substitute for a disciplinary action and the sole object o1 providing for premature retirement is that inefficient employees should no longer be a strain on the public funds. This is what exactly was meant to be conveyed by the expression, "public interest".
(b)??????? The appellant remained on deputation with M.C.P.L. from 1‑9‑1974 to 30‑7‑1986 during which period the respondent authority had no occasion to watch his work and conduct and was not, therefore, in a position to form any opinion on whether his retention in service beyond 55 years would or would not be in the public interest. This being so, the impugned order is unjustified and arbitrary.
(c)??????? The appellant had a blotless career as an Engineer with the respondent as also the M.C.P.L. and there was no basis for a finding that his premature retirement was in the public interest.
(d)??????? The impugned order is mala ride, which is evident from the fact that the respondent authority was adamant to accept the appellant is service on repatriation and that it was done only after the institution of a Writ Petition before the High Court. The Retirement Rules were used only as an excuse to get rid of the appellant.
(e)??????? The respondent authority was forced to reinstate the appellant in service in compliance with the Tribunal's order which caused an, annoyance, ultimately resulting in the passage of the impugned order.
(f)???????? WAPDA Employees (Retirement) Rules, 1979 amount to an excessive subordinate legislation and are ultra vires of Articles 25 and 27 of the Constitution of the Islamic Republic of Pakistan and are thus void by virtue of Article 8 of the Constitution.
(g)??????? Neither the WAPDA Act nor the Retirement Rules exclude the opportunity of hearing before passing an order of premature retirement. The appellant was never given an opportunity to plead against passage of the impugned order which amounts to unheard condemnation.
6. The defence is that the appellant's case for retention in service on attaining the age of 55 years was scrutinized by the Board concerned along with other officers and that the order of his premature retirement was passed in lawful exercise of authority.
7. Before proceeding further, it seems to be necessary to deal with the contention that the appellant's retirement was ordered by the competent authority in the public interest and that the question whether it did serve such an interest, was within the exclusive jurisdiction of the competent authority. The argument was that the determination of this question must of necessity be left to the subjective satisfaction of respondent authority. Reliance in support was placed on the Supreme Court authority in the case of Lt.‑Col. Farzand Ali and others P L D 1970 S C 98 where the provisions of sub‑clause (a) of clause (4) of Article 178 of 1962 Constitution were under examination. The contention was that action under those provisions of the Constitution could only be taken in the public interest and since there are no words in the clause to show that the maker of the Constitution intended to leave this question merely to the subjective satisfaction of the authority, it must be inferred that the question as to whether action was taken in the public interest or not, was objectively determinable.
8. It may be mentioned that the Supreme Court's ruling in Lt.‑Col. Farzand Ali's case was the result of four certified appeals, which arose out of the judgment of a Division Bench of the High Court of West Pakistan, whereby some 105 petitions filed under Article 98 (2) of the Constitution of 1962 by Government Servants to challenge the validity of respective orders of their retirement under Article 178 of the Constitution of 1962 were heard and dismissed.
9. While dealing with the aforementioned contention the Supreme Court held as follows:
"Compulsory retirement which carries with it no stigma and no vindictiveness against the person concerned is different from removal from service or dismissal. There may be a variety of reasons which may impel a Government to compulsorily retire an officer on its having completed the period of service qualifying him for pension and Government alone is the best judge of these reasons. It is not possible for the Court to sit on judgment over the action of Government, if from materials disclosed it does not appear that the action taken was merely in colourable exercise of or in abuse of power. It must of necessity be left to be Government itself to decide as to whether retirement of the officer concerned was in public interest or not. The Government, it is said, has an absolute discretion to retire any of its officers at this stage. In the absence of any words in the statute omitting the discretion of the Government this must be so, for, it is difficult to lay down any yardstick by which "public interest" can be measured in this connection. There may well be circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for being continued in public service. An over punctilious or over fastidious person may well in certain circumstances be just as unsuitable as a lax or careless officer having regard to the nature of his employment. But this is a matter which the employer alone can determine and therefore, it must of necessity be left to the subjective satisfaction of the employing authorities."
Relying on these observations, it was argued by the respondent's learned counsel that the impugned order of retirement in this case was the result of respondent's subjective satisfaction and that it was not within the competency of the Tribunal to go into the manner of how that satisfaction was brought about. It was contended that the respondent was the sole judge of whether the appellant's retirement from service was or was not in the public interest.
10. The argument on behalf of the appellant was that the determination of question regarding service or otherwise of "public interest" was justiciable and that its determination by the employer could not be conclusive. The appellant's learned counsel argued that subjective satisfaction of the employer can only be the result of objective determination of the question of whether an employee on retention in service would be useful and serve the public interest. Reliance was placed by the learned counsel on some of the observations made by the Supreme Court in the same case. Reference was made to where it was said that it is not possible for the Court to sit in judgment over the action of the Government if from the materials disclosed it does not appear that the action taken was merely in colourable exercise or in abuse of power. (The underline is mine).
11. We are inclined to hold that the learned counsel's contention is not without substance. It is clear from the observations made by the Supreme Court that determination of the question of public interest by the employer is not conclusive and that it has to be based on objective assessment of certain facts relevant to and having a bearing upon further usefulness of an employee in public service. We are aware of the observation that it is not possible for the Court to sit in judgment over the action of the Government, but this is clearly qualified by the statement that this would be so only if from the materials disclosed, it does not near that the action taken was merely in colourable exercise or in abuse of power. This evidently allows the Court or a Tribunal to see whether the employer's action is in colourable exercise or abuse of power, which jurisdiction can be exercised only after an address to the material on the record. In other words, it can be seen whether subjective satisfaction of the employer is in abuse of the power or in colourable exercise of that power; which would leave it to the determination of the Court whether the material on the record justifies a particular conclusion and if it was not the result of rank considerations.
12. The principle of justiciability of "public interest" was recognized in cases of premature retirement by the Peshawar High Court in Mian Amanul Malk v. N.‑W.F.P. through Chief Secretary cited at the bar as P L D 1981 Pesh. 1, where, after detailed examination of relevant case‑law, it was held as follows: "We are of the opinion that the Tribunal can examine, if required so to do, if an order passed by a departmental authority retiring a person on completing 25 years service qualifying for pension is in `public interest' or not because the Tribunal in this respect has to examine the matter in the same manner in which the other departmental authorities do. It cannot refuse jurisdiction by saying that it cannot interfere with the subjective satisfaction of departmental authority that the order is made in `public interest'. In fact the Tribunal can examine all questions of fact as well as of law including questions of actions taken mala fide, lack of jurisdiction, and of the validity of orders. The power of appeal by the Tribunal is far wider than the power normally exercise-able in the absence of a right of appeal by the High Court in exercise of its extraordinary jurisdiction." In this case the petitioner who was an officer in Grade‑17 was made to retire by the Governor of the Province in "public interest" in exercise of powers conferred by Section 13(1) of the N.‑W.F.P., Civil Servants Act, 1973 on the assumption that he had completed 25 years of service qualifying for pension and other retirement benefits. He challenged the order of his retirement by invoking extraordinary jurisdiction of the High Court under Article 199 of the Constitution read with Laws (Continuance in Force) Order 1977.
13. While deciding Mian Amanul Malk's case, reliance was mainly placed on the Supreme Court ruling in the case of Muhammad Yamin Oureshi P L D 19,0 S C 22 where the following observations were made: "A Tribunal established by law made under Article 212 has the exclusive jurisdiction and that jurisdiction is very wide. On the language of the relevant provisions of the Service Tribunals Act (LXX of 1973), also we are of the opinion that the Tribunal is not debarred from examining the propriety of an order of the Departmental authority because the law made in this behalf confers on the Tribunal powers to confirm, set aside, vary or modify :he order appealed against and for the purpose of deciding an appeal it shall have the powers of a Civil Court that are vested in such Court under the Civil Procedure Code (Act V of 1908). The Tribunal is not a Court of extraordinary jurisdiction to make a judicial review of the administrative actions like the High Court exercising power under Article 199 of the Constitution. The powers of the High Court are very limited and it cannot go beyond the tight corners of the said Article and would not interfere with the order of an authority unless it is made without jurisdiction or without lawful authority. The High Court cannot interfere with the discretion exercised by any Government or Local Authority unless there are involved some violations of any provisions of the Constitution or of law or of the principles of natural justice. The Tribunal on the other hand, being a Court of Appeal, has wide power and can in appropriate cases examine the propriety of an order passed by a departmental authority, though ordinarily it would not interfere in the discretion of an authority which itself is more concerned with the questions of usefulness and competency of a civil servant."
14. The case of Muhammad Yamin Qureshi was the outcome of an order passed under Martial Law Regulation No.58, promulgated by General Muhammad Yahya Khan. The Supreme Court examined in detail the extent of the jurisdiction of the Service Tribunal in matters relating to the terms and conditions of the persons in service of Pakistan. With a majority judgment the Tribunal refused to interfere on the ground that they had no jurisdiction in the matter for the reason that the action taken under M.L.R. No.58 had been validated by the 1973 Constitution. The member who dissented was of the opinion, relying upon Saeed Ahmad Khan's case P L D 1974 S C 157 that the Tribunal can interfere only with the acts, orders, or proceedings which had been done, made or taken without jurisdiction or were mala fide or in the nature of coram non judice. The Supreme Court ruled that the view taken by all the learned Members was erroneous and the Tribunal had full jurisdiction to entertain the appeal on questions of fact as well as law. The Supreme Court's decision in substance was that it had exclusive jurisdiction in matters regarding the terms and conditions of service of a civil servant, not only to interfere with the orders which are wrong on facts but also when they are void, mala fide, without jurisdiction, or in the nature of coram non judice. The Court accepted the position that scope of interference by Tribunal was not subject to the limitation spelled out by the Supreme Court in Saeed Ahmad Khan's case and that, that limitation was only to the extent of judicial review of administrative action by the High Court under Article No.199 of the Constitution.
15. A reference was also made in Muhammad Yamin Oureshi's case with favour to the view taken in Muhammad Aslam Bajwa v. Federation of Pakistan P L D 1.974 Lah. 545. The following observations are in point: "A similar view was taken by a Division Bench of the Lahore High Court in the case of Muhamad Asiam Bajwa v. Federation of Pakistan. After alluding to the observations of the Supreme Court reproduced above, the learned Judges proceeded to state that it had been conceded before them by the learned Attorney‑General for Pakistan that the impugned orders had become appeal-able under sections 4 and 6 of the Service‑ If bubals Act, 1973, where the scope of appeal according to the Central Gover4ent's own contention before them, was obviously very wide; and that this will have effect of taking these cases out of the purview of Article 269 and 269 (sic) of the Constitution. It was further observed that the bar of jurisdiction contained by these two Articles was only against Courts as distinct from Tribunals or other executive authorities. The learned Judges concluded their discussion on this point by saying that they endorsed this standpoint of the Central Government, and the cases will get reopened and the petitioners before them would be provided an opportunity of defending themselves before the Tribunal."
16. After detailed address to the Supreme Court's rulings in the cases of Saeed Ahmad Khan P L D 1974 S C 151 and Muhammad Yamin Oureshi P L D 1980 S C 22, the High Court of Peshawar came to the following conclusion: "The observations of the Supreme Court in the case of Saeed Ahmad Khan relate only to those cases where the High Court is exercising its extraordinary Constitutional jurisdiction. Thus when the Tribunal examines the question of malice or mala fides on the part of a departmental authority, it can allow the aggrieved civil servant to allege mala fides in accordance with the provisions of Code of Civil Procedure and to prove it by the affidavits or otherwise. There shall be no restriction on the powers of the Tribunal to examine the bona fides of the Government, for it has to decide the matter as a Court of appeal after finding out facts on which the conclusion of the departmental authority rests." It was noticed by the High Court that in Muhammad Yamin Oureshi's case, the Supreme Court endorsed the view that the jurisdiction of the Tribunal is wide enough to determine the questions of law as well as of facts and there are no such limitations on its powers as are on the High Court exercising its extraordinary jurisdiction under Article No.199 of the Constitution.
17. We are of the view that leaving the existence or otherwise of "public interest" to the subjective satisfaction or determination of the employer, would virtually result in ousting the jurisdiction of the Tribunal and would thus involve a negation of the Supreme Court's dictum in Muhammad Yamin Qureshi's case regarding the scope of…
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