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Petitioner: MUHAMMAD TAIYAB ALI VS Respondent: THE PROVINCE OF EAST PAKISTAN
P L D 1960 Dacca 842
P L D 1960 Dacca 842
Before Hamoodur Rahman and K. M. Hasan, JJ
MUHAMMAD TAIYAB ALI‑Petitioner
versus
THE PROVINCE OF EAST PAKISTAN AND OTHERS ---Respondents
Writ Petition No. 71 of 1959, decided on 11th May 1960.
(a) Public Conduct (Scrutiny) Ordinance (III of 1959), S. 10 Laws (Continuance in Force) Order (I of 1958), Art. 6 (4) (5) (a) [as added by Laws (Continuance in Force) (Amendment) Order (I of 1959)]‑Order of appointing authority cannot be called in question in any Court‑Conditions for operation of bar.
Held, that under Article 6 (4) of the Laws (Continuance in Force) Order (I of 1958) (as amended) the order of the appointing authority removing a Government servant from service on the find ings of a screening committee appointed under Public Conduct (Scrutiny) Ordinance, 1959 could not be called in question in any Court.
Where the Screening Committee was lawfully appointed or constituted, the Advisory Committee was also a body duly consti tuted in exercise of the powers given under the rules the appointing authority was also duly authorised and competent to take action under the provisions of the Laws (Continuance in Force) (Amendment) Order 1959 ; the person proceeded against, was also a person subject to the jurisdiction of that authority being a person in the service of the Province ; the grounds on which action was taken, namely, misconduct was one of the grounds within the statute and the order made was one which clearly could have been made under the provisions of such statute.
Held, that the bar aforesaid was therefore operative.
Zafar‑ul‑Ahsan v. The Republic of Pakistan P L D 1960 S C (Pak.) 113 rel.
(b) Public Conduct (Scrutiny) Rules, 1959, r. 7‑"Advisors" Advisory Committees‑Name immaterial‑Findings referred to Advi sory Committee‑Not illegal.
(c) Public Conduct (Scrutiny) Rules, 1959, r. 7‑"Advisers" not bound to follow procedure of Screening Committees‑Failure to follow any prescribed procedure‑Not an illegality but only an irre gularity‑Show‑cause notice not necessary.
(d) Public Conduct (Scrutiny) Ordinance (III of 1959), S. 4 read with Public Conduct (Scrutiny) Rules, 1959, r. 4----`Finding" different from recommendation‑Every finding whether adverse or in favour must be communicated to appointing authority.
Section 4 of the Public Conduct (Scrutiny) Ordinance, 1959 requires that whether there is a "recommendation" or not, every "finding", whether against or in favour of the person, must be placed before the appointing authority and that authority shall pass orders thereon according to law. The Rules also maintain this distinction between a "finding" and a "recommendation".
The authority, therefore, acquires also jurisdiction to consult such advisors as he thinks fit in accordance with the power given to him under rule 7 of the Rules.
(e) Mala fides‑Committee comprising three members‑Mala fides of one not material in absence of proof how far such mala fides influenced opinion of other members.
(f) Mala fides‑Must be pleaded "with particularity" like fraud etc.
S. R. Pal and Jahurol Hoq Khan for Petitioner. A. S. Chowdhury, Advocate‑General and K. M. Subhan for Respondents.
Date of hearing: 4th May 1960.
JUDGMENT
H. RAHMAN, J.‑This Rule for a writ of mandamus or any other appropriate writ of a like nature was issued at the instance of the petitioner herein on the 20th of July 1959 calling upon the respon dents to show cause as to why the Notification No. 4161. Medl., dated the 29th of June 1959, purported to have been issued by order of the Governor, removing the petitioner from service with effect from the 30th of June 1959 for misconduct, should not be cancelled, withdrawn and/or rescinded.
The petitioner, it appears, was appointed as an Assistant Surgeon in the employment of the Province of East Pakistan on the 28th of May, 1952, was confirmed in the said post on the 8th of January 1955 and was at the relevant time posted as the Senior Demonstrator of Anatomy attached to the Medical College, Dacca.
The petitioner was also, it appears, the General Secretary of the Pakistan Medical Association (East Zone) and claims that he performed his duties as such Demonstrator of Anatomy to the best of his ability and to the satisfaction of the authorities concerned. It is further claimed on his behalf that he never participated in any political activity, nor was he ever connected with any political organisation. The Pakistan Medical Association was, it is said, also a purely non‑political Organisation.
Notwithstanding these facts, the petitioner, it is alleged, was on the 31st of March 1959 served with a communication, marked "Secret and Immediate" which purported to have been issued on behalf of the Provincial Screening Committee on the 30th of March 1959 under the signature of the Secretary, W. H. & S. (Irrigation) Department and Chairman, Screening Committee, calling upon him to show cause as to why disciplinary action should not be taken against him for "unsatisfactory service and also for misconduct in attending and addressing a political meeting held in August 1958, at the Bar Library, Dacca, under the auspices of East Pakistan Peace Committee."
On the same day the petitioner was also served with another notice issued under the signature of the Secretary of the Department placing the petitioner on supernumerary duty at the Dacca Medical College. The petitioner thereafter showed cause on the 4th of April 1959 and contended that to the best of his knowledge and belief he had rendered satisfactory service and that he was never told by anyone that his service was not satisfactory. Further that the petitioner had no know ledge that the East Pakistan Peace Committee was a political organisation. He was invited to the meeting held in August 1958 at the Bar Library, Dacca, as the General Secretary of the East Pakistan Medical Association (East Zone) and attended the same in that capacity. The said meeting was presided over by the then Chief Minister of the Province Mr. Ataur Rahman Khan and it was at the request of the President of the said meeting that he spoke only a few words to the effect that peace was necessary for medical welfare of the nation. According to him, circumstanced as he then was, he could not have refused the request of the Chief Minister to address the meeting. Apart from this, he also contended that he did not there after or at any time before attend any meeting of the said peace Committee.
The Screening Committee, it is said, after considering the cause shown by him and other relevant materials did not record any finding adverse to the petitioner, nor make any recommenda tion for any penal action against him but merely referred back the matter to the Department concerned.
To the utter surprise, however, of the petitioner, he was, notwithstanding the above facts, served with another communi cation, being Memo. No. 3907‑Medl. dated the 5th of June 1959, purporting to have been issued by the Deputy Secretary, Health and Local‑Self Government (Medical Branch) Depart ment, Government of East Pakistan, saying that "the Screening Advisory Committee No. III had recommended his removal from service" and enclosing a copy of the alleged recommendation of the Screening Advisory Committee. This Memo. also called upon the petitioner to submit an appeal to the Governor within 15 days, if he wished to do so. The petitioner, in response to the said Memo. on the 17th of June 1959, submitted a representation to the Governor challenging the validity of the findings and recommendations of the Screening Committee both in law and in fact. Nevertheless, on the 29th of June 1959, at about 4 p.m. the petitioner was under a Memo. No. HS/E(1)‑10844 dated the 29th of June 1959 issued under the signature of one Mr. T. Hossain for the Director of Health Services, Govern ment of East Pakistan, informed that pending formal orders of the Government removing him from service from the 30th of June 1959 he was to be relieved from his duties from the afternoon of the same day.
On the next day he also received the copy of the impugned Notification, purporting to have been issued by Order of the Governor, removing him from service with effect from the 30th of June 1959 and he made over charge of his office under protest.
Upon these facts, the petitioner challenged the validity of the said order removing him from service upon, inter alia, the following grounds :‑---
(1) That the said order is arbitrary, malafide and in contravention of the provisions of the Public Conduct (Scrutiny) Ordinance, 1959 (Ordinance III of 1959) and the Rules framed thereunder, being the Public Conduct (Scrutiny) Rules, 1959.
(2) The recommendations and findings of the Advisory Committee are illegal and ultra vires ; because, (a) the Advisory Committee has no legal existence and (b) assuming but not conceding that the Advisory Committee was legally consti tuted, it required no jurisdiction to make any recommendation in respect of the petitioner.
(3) Assuming but not admitting that the Advisory Committee was legally constituted, its findings and recommendations were not based on any legal evidence and were arrived at in violation of the principles of natural justice inasmuch as the petitioner was not given any opportunity of being heard.
(4) That the findings and recommendations of the Screening Committee are vitiated by reason of the fact that neither the Screening Committee nor the Advisory Committee gave any opportunity to the petitioner to show cause in relation to the allegations contained in the alleged findings of the Advisory Committee regarding the Epidemic Control Committee.
(5) That the findings and recommendations of the Advisory Committee were .in any event mala fide as one of the members of the Advisory Committee, namely, Mr. H. Raza, was a person with whom the petitioner had a quarrel over the affairs of the Epidemic Control Committee of which the said Mr. Raza was the Vice President.
(6) That the findings in any event did not amount to misconduct according to the Government Servants Conduct Rules or otherwise.
This rule is opposed on behalf of the Province of East Pakistan and the affidavit‑in‑opposition, affirmed by one A. B. M. A. Aziz, Section Officer to the Government of East Pakistan, Health Social Welfare and Local Government Department, asserts that the petitioner was lawfully and rightly removed from service by the competent authority after following the procedure provided by law and there is no substance in any one of the allegations or charges made by the petitioner. It is further asserted in this affidavit that the petitioner engaged himself in political activities for a long time, that the attendance of the petitioner at the meeting convened at the Dacca Bar Library in August 1958 under the auspices of the East Pakistan Peace Committee constituted an act of misconduct according to the Government Servants Conduct Rules as specified in the Home Department Circular No. 246‑GAC dated the 17th of May 1951. This affidavit also discloses that this was not the first occasion on which the petitioner attended meetings of the Peace Committee, for according to the Government, the petitioner also attended another meeting of the Peace Committee on the 19th of June 1958 and fur4her more that even at the meeting held in August 1958 his speech was not confined merely to saying that peace was necessary for the advancement of medical welfare of the nation. It is alleged that his speech was in the line of communist party propaganda. It was further denied, in these circumstances, that the petitioner did not know that the East Pakistan Peace Committee was a political organisation.
With regard to his posting on supernumerary duty from the 31st of March 1959, it is maintained that this was a routine order passed by the Director of Health Services, East Pakistan, in connection with the posting and transfer of Assistant Surgeons and it was not in any event a punishment or a reduction in rank or in any other sense derogatory to the petitioner, for the petitioner as an Assistant Surgeon in the Medical Service was liable to be posted in any place within the cadre in the exigencies of public service.
With regard to the other allegations, it is said that the Screening Committee was, under the Rules, namely the Public Conduct (Scrutiny) Rules, 1959, bound once a case was referred to it, to record a finding and to come to a decision with regard to a matter of which the person concerned has been informed and to submit its findings and decisions to the appoint ing authority. In the present case, too, the Screening Committee having come to the decision not to make any recommendation and to leave it to the Department to take necessary action in the case of the petitioner, the said decision was in the usual course placed before the appointing authority, namely, the Governor of the Province who, in exercise of the powers given to him under the said Rules, referred the matter to the Advisory Committee and after considering the opinion .of the Advisory Committee in the bona fide and lawful exercise of his powers, passed the order complained against. It is, therefore, main tained that the order is in every way a valid, legal and proper order which cannot be called in question in any Court of law. The Advisory Committee, it is further said, was properly con stituted under the Public Conduct (Scrutiny) Rules, 1959. The allegations with regard to the denial of natural justice are denied and it is further denied that the recommendations and findings of the Advisory Committee are based on no evidence. The allegations of mala fide are characterised as vague and indefinite and as not affecting the finding recorded by the Advisory Com mittee in any way whatsoever.
The petitioner has also filed an affidavit‑in‑reply reiterating his statements in his petition and denying that he attended any meeting of the Peace Committee in June 1958 or any other meeting at any time except the meeting held at the Dacca Bar Library in August 1958.
The petitioner does not either in his petition or in his affidavit‑in‑reply or even before us through the learned Advocate appearing on his behalf, challenge either the constitution of the Provincial Screening Committee or the validity of its decision ; but the gravamen of his complaint appears to be against the so‑called Advisory Committee. Indeed, as far as we have been able to make out from the arguments advanced before us and the papers on the record, the petitioner appears to be of the view that the order of the Governor is bad by reason of the inter vention of the Advisory Committee in this matter. There is no allegation of any kind whatsoever as against the appointing authority or as to the competence of the appointing authority in making the impugned order.
In these circumstances, the learned Advocate‑General appear ing on behalf of the Government has taken a preliminary objection to the maintainability of this application. It is contended that since the impugned order is an order made in exercise of the powers given to the appointing authority under sub‑clause (a) of clause (5) of Article 6 of the Laws (Continuance in Force) (Amendment) Order, 1959, the said Order cannot be questioned in any Court. The relevant provisions of the Laws (Continuance in Force) (Amendment) Order, 1959, namely, the President's Order No. 1 of 1959 are as follows :‑
Art. 6 clause 3.‑"Notwithstanding anything in clause (1) a person in the service of Pakistan may, if he is found ineffi cient or guilty of subversive activities, corruption or misconduct, under rules made in that behalf by the President or a Governor be suspended, compulsorily retired (whether he has reached the age of retirement or not), reduced in rank, removed or dismissed in accordance with those rules by an authority not subordinate to that by which he was appointed . . . . . . Then clause (4).‑No rule made under clause (3) or order expressed to be made in accordance with any such rule shall be called in question in any Court.
Clause (5).‑Nothing in this Article or in any law, rule or instru ment having the force of law shall prevent a person mentioned in clause (1) from being‑
(a) suspended, reduced in rank, removed or dismissed for being corrupt, or for misconduct or for inefficiency after such enquiry as may be held under the orders of the Central Government, or
(b) retired for any cause mentioned in the preceding sub‑clause or for having the reputation of being corrupt on such pension (if any), as may be admissible to him, pro portionate or otherwise‑by an order of the authority mentioned in clause (3) made before the first day of July 1959, and no appeal shall lie against such order nor shall such order be called in question in any Court."
The impugned Order was admittedly made on the 29th of June 1959, and on the admission of the petitioner himself served upon him on the 30th June 1959.
In pursuance of the proclamation of the 17th of October 1958 the President was also pleased to promulgate the Public Conduct (Scrutiny) Ordinance, 1959 being Ordinance No. III of 1959. Under clause 3 of this Ordinance the following provisions were made:‑---
"Powers to appoint Committees.‑If the Central Government sees fit to do so it may constitute or direct to be constituted one or more Committees, sole or corporate, to scrutinize the conduct of any person to whom this Ordinance applies and record a finding thereon and to make a recommendation as to punishment or other action."
By this Ordinance power was also given under clause 8 to the Central Government to make rules to carry out the purposes of the said Ordinance. Rules were so framed by the President and the Chief Martial Law Administrator on the 24th of January 1959 being S. R. O. No. 21.
By clause 4 of the Ordinance itself, it was further provided that every finding recorded by a Committee under section 3 shall together, in the case of a finding against the person con cerned, with the recommendation provided for in that section be submitted to the authority by which the person concerned was appointed (hereinafter called the appointing authority) and that authority shall pass. orders thereon according to law. Again, under the rules it was specified by rule 4 that having considered the explanation, if any, made under rule 3 the Committee shall record a finding on the matter of which the person concerned has been informed under rule 2, and submit the finding to the appointing authority.
That this finding does not include the recommendation is clarified by the next succeeding provision, namely, rule 5, which reads as follows :‑----
"The finding submitted under rule 4 shall be accompanied by the recommendation of the Committee as to punishment or other action."
Rule 6 provides for communication of an adverse finding to the person concerned, grants a right of appeal and fixes a time limit for the purposes of appeal. Rule 7 then provides that having considered the finding, the recommendation and the appeal if any, the appointing authority shall forthwith either pass an order or refer the proceeding to such advisers as he may think it fit and pass an order after considering their opinion.
In exercise of the powers under Rule 7 of the above mentioned Rules the Governor by a Notification No. 1848‑G.A. dated the 6th of April 1959 appointed some three Advisory Committees for various grades of Gazetted, Officers "to advise him by the 30th May 1959 at the latest on the findings and recommendations of the various Screening Committees in respect of the Gazetted Officers and the appeal, if any, submitted by the Officers concerned." It is to one of these Advisory Committees that the present case was also referred and it is against the findings and recommendations of this Advisory Committee that the attack is now directed.
But before we enter into this question, it is necessary that we should take up for consideration the preliminary objection raised on behalf of the Government. As already indicated reliance is placed on the provisions of the Laws (Continuance in Force) (Amendment) Order, 1959 to show that the order of the appointing authority cannot be called in question in any manner in any Court. In support of this contention reliance is also placed on a decision of the Supreme Court in the case of Zafar‑ul‑Ahsan v. The Republic of Pakistan (P L D 1960 S C (Pak.) 113). In this case their Lordships of the Supreme Court held that the jurisdiction of the Supreme Court to call in question the proceedings of a Screen ing Committee is barred by section 10 of the Public Conduct (Scrutiny) Ordinance, (Ordinance No. III of 1959) and that an order made by the President under sub‑clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) (Amendment) Order cannot be called in question in any Court. With regard to the effect of section 10 of the Ordinance itself, their Lordships further held that even if the Screening Committee never informed the appellant in accordance with rule 2 of the Public Conduct (Scrutiny) Rules, 1959 that it had reason to believe that he was corrupt or guilty of misconduct, the omission would be no more than a mere irregularity in procedure of which the Supreme Court could not take cognizance.
Their Lordships further adumbrated the principles to be applied when considering such cases of ouster of jurisdiction made by statutes and laid down that :‑----
"If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been com mitted by the authority."
Applying these principles to the facts of the present case, it is argued that all the tests have been satisfied. The Screening Committee was admittedly lawfully appointed or constituted. The Advisory Committee was also a body duly constituted in exercise of the powers given under the rules. The appointing authority was also duly authorised and competent to take action under the provisions of the Laws (Continuance in Force) (Amendment) Order. The person proceeded against, namely, the petitioner was also a person subject to the jurisdiction of that authority being a person in the service of East Pakistan. The grounds on which action was taken, namely, misconduct is one of the grounds within the statute and the order made is one which clearly could have been made under the provisions of such statute.
Apart from the question of mala fide action, which their Lordships excepted from the ambit of the above principles, upon the ground that in such a case the statute would merely have been utilised as a cloak to cover an act and the act itself could not be treated as an order under the statute, it seems to us that this contention put forward by the learned Advocate‑General must' be upheld.
As already pointed out, the petitioner himself does not challenge either the constitution or the validity of the action of the Screening Committee nor does he challenge the competence of the appointing authority to pass the order made.
There is no allegation also of mala fides either against the Screening Committee or the appointing authority. All the allega tions that have been made in the present case are against the Advisory Committee. Firstly, with regard to its constitution. We have already quoted the relevant provisions of the Ordinance and from them it will be observed that under clause 3 of the Ordinance the power given to the Central Government is to constitute or direct to be constituted not a single committee but one or more committees, sole or corporate, for the purposes of the said Ordinance. It appears further that in exercise of this power the Central Government issued a directive under the President's Secretariat (Establishment Division) Notification No. 1/3/59‑S.R. dated the 24th of January 1959 directing the Government of East Pakistan to constitute such Committees. In exercise of this power the Provincial Government by its Notification No. 842 G‑A dated the 7th of February 1959 constituted various Screening Committees. Furthermore, under the rules framed under the said Ordinance the appointing authority was clearly given a right before passing any order to consult such advisers as it may think fit. The appointing authority, being the Governor in the present case, decided by his Notification No. 1848 G‑A dated the 6th of April 1959…
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