MUHAMMAD ISRAR NABI Versus PROVINCE OF PUNJAB

ORDER

1. ANWARUL HAQ, - C. J.--This petition seeks leave to appeal against an order made by the Punjab Service Tribunal on the 5th of April, 1978, whereby the Tribunal has refused to interfere with an order of premature retirement made against the petitioner on the 13th of March, 1972, by the President of Pakistan under Martial Law Regulation 114.

2. It was contended on behalf of the petitioner that he had earned good reports during his service of 22 years in the Building Department of the P. W. D. and that the action against him was male fide for the reason that he had earned the displeasure of the then Chief Engineer Mr. Zubair owing to a matrimonial dispute, his wife being a relation of Mr. Zubair. He placed before the Tribunal certain documents in support of this allegation.

3. Relying upon the dictum of this Court in the Federation of Pakistan v. Saeed Ahmad Khan and another (P L D 1974 S C'151), the Tribunal observed that it was necessary for the petitioner to establish male fides on the part of the authority taking action, naively, the President of Pakistan, but he had only alleged male fides on the part of the then Chief Engineer, and there was no suggestion or evidence to show that the President of Pakistan was influenced by the Chief Engineer concerned. The Tribunal then went on to say that the petitioner had failed to prove his plea of mala fides, and since nothing was produced in support of the other issues, the appeal had to be dismissed.

4. In seeking leave to appeal it is submitted by Mr. Muhammad Shaukat Tarar, learned ,counsel for the petitioner, that the Tribunal has failed to exercise the jurisdiction vested in it under the law, namely, sections 4 and 5 of the Punjab Administrative Tribunals Act, 1974, according to . which the Tribunal may on appeal confirm, set aside, vary or modify the order appealed against, :in respect of any of the terms and conditions of service of a civil servant including disciplinary matters. The learned counsel contends that the Tribunal was in error in thinking that the petitioner could . succeed only by establishing mala fides on the part of the President of Pakistan. who had passed the final order under Martial Law Regulation 114, as it was the duty of the Tribunal to also examine the merits of the case and to give a finding whether there was justification for the premature retirement of the petitioner, but the Tribunal failed to examine this aspect of the matter.

5. We had requested the learned Advocate-General to make the record of the case available at to day's hearing. The same has been produced before us by Mr. lftikharul Haq Khan, Advocate, and we have also heard him on the legal contentions raised on behalf of the petitioner. He is not in a position to contend that the Tribunal was right in confining itself only to the question of mala fides, but submits that the last few sentences in the Tribunal's order are to be construed as indicating that the Tribunal had also examined the A. C. Rs, of the petitioner on merits.

6. After hearing the learned counsel for both the sides, we have decided to convert this petition into an appeal and to dispose it of accordingly.

7. We consider that although the petitioner had failed to establish mala fides on the part of the President of Pakistan, in whose name the order of the petitioner's premature retirement was passed under Martial Law Regulation 114, yet the Tribunal sitting as a Court o appeal on the administrative side, had the power, and, in fact, a obligation, to examine the petitioner's case on merits and to come to its own conclusion on the question whether the petitioner was rightly retired or not. We find that the solitary sentence in the paragraph of the order of the Tribunal to the effect that , "since nothing was produced in support of the other, issue, the same is also decided against the appellant", hardly satisfies this requirement. There is no indication that the Tribunal had examined the entire service record of the petitioner as well as the correctness of the allegations which had been made against the petitioner for the purpose of his compulsory retirement. It is clear that the petitioner has been deprive of a valuable right by the failure of the Tribunal to examine this matter proper detail.

8. As a result, we would accept this appeal, set aside the order of the Tribunal, and remit the case for a fresh decision on merits in the light of the petitioner's service record and the other relevant material.

9. In the circumstances, there will be no order as to costs.

10. Cite remanded.