ABDUR RASHID KHAN Versus FEDERATION OF PAKISTAN

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 Order No. 17; which means that it ceased to remain effective with effect from the "appointed day" which according to paragraph 2(a) of this Order was 30‑12‑1985, when the Proclamation of 5‑7‑1977 was revoked by the issuance of Proclamation of Withdrawal of Martial Law.

20. To the extent of these considerations, the argument advanced by the appellant's learned counsel seems to be attractive, in that it brings out an effective defence against the respondent's contention in respect of Tribunals' jurisdiction. Since Martial Law Order No. 17 does not find place in the Schedule of Martial Law Order No. 107 of 29‑12‑1985, the provisions of paragraph 12 of the Order regarding ouster of jurisdiction are no longer available to the respondent's learned counsel Therefore, the orders passed in exercise of powers conferred by Martial Law Order No. 17 can be called in question in the Courts or Tribunals and I feel like observing that thus for the point raised by the appellant's learned counsel appears to be substantial.

21. But a closer application to the provisions of Martial Law Order No.107 would show that an attempt has been made to restrict the scope of judicial scrutiny of the actions taken, orders passed, things done or powers exercised under the Order. Paragraph 4 of Martial Law Order No. 107 lays down that the cancellation of Martial Law Regulations and Martial Law Orders referred to in clause (1) of paragraph 3 shall not affect the previous operation thereof and anything done, action taken, obligation, liability, penalty, or punishment incurred, or proceedings commenced shall be deemed to have been properly and validly done, taken, incurred or commenced as the case may be. It may be mentioned that life, has been given to the provisions of Martial Law Order No. 107, irrespective of its absence from the Schedule, by paragraph 10 thereof which provides that the provisions of this Order shall have effect notwithstanding the repeal of Martial Law Regulations or Martial Law Orders. It is, therefore, abundantly clear that paragraph 4 of this Order purports to convey an intention of validating the actions taken under Martial Law Order No. 17. In the background of these considerations, it will have to be seen whether the impugned order passed in purported exercise of powers under Martial Law Order No. 17 can stand the test of judicial review.

22. The effect of paragraph 4 of the Martial Law Order No. 107 was considered by the Supreme Court in Malik Ghulam Mustafa Khar's case (PLD 1989 SC 26), which is the latest authority in point. There in that case, the learned Attorney‑General contended that paragraph 4 of the Order had the effect of validating all acts, actions and proceedings done, taken or held under any Martial Law Order or Regulation and that the validity extended by this paragraph embraced such acts, actions, and proceedings also which were improperly or invalidly done, taken or held.

23. This contention was repelled by the Supreme Court with the following observations: "A careful reading of this paragraph would show that the words "previous operation" as occurring therein furnish the test for determining the kinds of acts, actions, obligations, liabilities, penalties, punishments or proceedings which fall within its ambit. Acts, actions or proceedings which could not be treated as relatable or having nexus with the `previous operation' of the Martial Law Orders and Regulations would hardly fall within the protection offered by this paragraph. As observed by Kaikaus, J., in Abdul Rauf v. Abdul Hamid Khan PLD 1965 SC 671, "no Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power; a mala fide order is a fraud on the statute. Apart from that, in view of the assurance given to the citizens by Article 4 of the Constitution, such acts, actions or proceedings which suffered from lack or excess of jurisdiction or were mala fide or were coram non judice could not conceivably be regarded as done, taken or held in connection with the previous operation of a Martial Law Regulation or Martial Law Order. It is also doubtful if the said assurance could be circumvented by ex post facto sub‑constitutional legislation by validating acts or proceedings which were patently illegal at the time they were performed. It is difficult to believe, in the absence of clear words to the contrary, that by paragraph 4 it was intended to legalize them also." On the basis of Supreme Court ruling, therefore, I feel no hesitation in holding that the provisions of paragraph 4 of Martial Law Order No. 107 do not constitute any hurdle in setting aside the impugned order on the ground of presence of malice.

24. It now remains to be seen what are the implications of the provisions of Article 15(2) of the Provisional Constitution Order, 1981. Merits of these provisions apart, I fail to understand as to how they can be of any help to support the‑ contention of respondent's learned counsel in respect of jurisdiction, considering that this order is no longer on the Statute book. On 30‑12‑1985, as already noticed before, the Chief Martial Law Administrator issued Proclamation of withdrawal of Martial Law. Besides revoking the Proclamation of 5‑7‑1977, imposing Martial Law in the country, it repealed the Laws (Continuance in Force) Order, 1977 and the Provisional Constitution Order, 1981. This being so the provisions of this Order cannot be pressed into service to sustain the contention that the impugned order cannot be called in question on the basis of the provisions of Article 15(2) of the Order.

25. I might as well deal with the contention of the respondent's learned counsel regarding abatement. The relevant provisions of Article 15(6) are that every such order, injunction or process as is referred to in clause (5) made, granted, or issued, at any time before or after the commencing day shall, notwithstanding any judgment of any Court, be null and void and of no effect whatsoever and any proceedings for the making, grant, or issue of such order, injunction, or process which may be pending before any Court, including the Supreme Court and a High Court shall abate.

26. Reference to clause (5) of Article 15 necessitates an application to its relevant provisions; which are that notwithstanding any judgment of any Court, including any judgment in respect of the powers of Courts relating to judicial review, any Court, including the Supreme Court and a High Court, shall not make an order relating to the validity or effect of any order or Martial Law Regulation made by the Chief Martial Law Administrator or a Martial Law Administrator or of anything done or action taken, or intended to be done or taken thereunder.

27. The effect of these provisions can correctly be ascertained only in the light of certain observations made by the Supreme Court in various rulings, arising out of orders passed by the concerned Authorities during Martial Law Regime. The first in point are those made by Kaikaus, J., in the case of Abdul Rauf v. Abdul Hamid Khan (PLD 1965 SC 671), which have already been seen. It was laid down that no Legislature when it grants power to take action or pass an order, contemplates a mala fide exercise of power; a mala fide order is a fraud on the Statute. This apart, in view of the assurance given to the citizens by Article 4 of the Constitution, such acts, actions or proceedings which suffered from lack or excess of jurisdiction or were mala fide or coram non judice could not conceivably be regarded as done, taken or held in connection with previous operation of a Martial Law Regulation or Martial Law Order.

28. In Mian Jamal Shah v. The Member of Election Commission (PLD 1966 SC 1) while commenting on Article 2 of the Constitution of 1962 which had the same language as Article 4 of the Constitution of 1973. Kaikaus, J., made the following observations:

"It embodies an important charter. It prevents the Government from taking any action in this country for which there is no legal sanction, and it at the same time debars the Legislature from creating an authority whose actions are not subject to law. The Legislature cannot, in the face of Article 2, enact that whatever action a particular person may take shall be immune from challenge. All persons exercising authority in Pakistan must do so only in accordance with law.

29. While examining the effect of Article 281(2) of the Interim constitution, the observations made by Mr. Hamoodur Rehman, C.J., in Zia -ur-Rehman case (PLD 1973 SC 49) are also in point:

"The result, therefore, that has, in my view, been achieved by Article 281 is that the legislative measures themselves have been validated and Courts have been debarred from questioning their validity. Similarly, persons or authorities acting in the exercise of or the purported exercise of powers given by these measures have been protected from legal proceedings, but the acts done, proceedings taken or orders made in the exercise or purported exercise of powers derived from measures have only been validated without ousting the jurisdiction Courts."

30. In Saeed Ahmad Khan's case (PLD 1974 SC 151), while interpreting, he provisions of Article 281 of the Interim Constitution as amended by President's Order No. 3 of 1973 and Articles 269 and 270 of the Permanent Constitution, 1973, it was held as follows:

"We are still unable to agree, upon the accepted principles construction to which we have adverted earlier, that acts, orders or proceedings, which are done, taken or made without jurisdiction, mala fide or coram non judice, have been saved from the scrutiny of the Courts by the ouster clause now incorporated in these provision. However wide a meaning is given to the word "validly", the result would still be the same, for, the validity that has been conferred is to acts done or purported to be done in the exercise of or in the purported exercise of powers derived from such Orders, Regulation, Enactments, Rules, Orders, Bye‑laws, etc. and to nothing else."

31. In the case of Malik Ghulam Mustafa Khar, the following observations are relevant:

"Taking into account the background in which Article 270‑A was enacted, the language in which it, is phrased and the absurd result which would follow if it is construed widely, it appears that the object was merely to afford protection to the dispensation which came in to existence as a result of `Constitutional deviation'; it is difficult to interpret it as conferring validity and immunity upon such acts, actions and proceedings as were illegal or indefensible even under that dispensation. Thus, this Article does not take away the jurisdiction of the High Courts from reviewing acts, actions or proceedings, which suffered from defect of jurisdiction or were coram non judice or were mala fide. For this purpose it is unnecessary to draw a distinction between malice in fact and malice in law:'

32. If examined in the light of these observations, the provisions of Article 15(6) are by no means suggestive of the fact that abatement of proceedings is automatic. There can be no abatement in the absence of a positive order, which will be passed in the light of facts of each particular case. For reliance in support, we have an authority in the case of Syed Mahmood v. Pakistan Railway Board and another (1982 PLC (C.S.) 231). Whether the proceedings did abate in a particular case, has to be decided with reference to the facts of that case, which will necessarily involve a determination of the legality or otherwise of the order challenged in that case. Expressed in different words the fact of abatement in one case cannot be made to serve as an authority for another case with different facts in the background.

33. The provisions of Article 15(6) even when alive, did not take away the jurisdiction of Courts to examine whether the action taken under the Marital 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 malacious acts or proceedings and put them beyond the reach of Courts and deprive the aggrieved persons of any remedy or relief whatsoever. As noticed in Malik Ghulam Mustafa Khar's case, 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 like it was done in that case in respect of those of Article 270‑A clauses (2) and (5) of the Constitution.

34. The crux of the matter is that 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. The result of Supreme Court's rulings mentioned above is that 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. As would appear from the observations noticed in the earlier paragraphs, no Legislation can contemplate the conferment of a power, which would authorise, either directly or indirectly, the malacious and illegal execution of any thing. Therefore, seen in the context of these considerations, no automatic abatement of any proceedings can come about and the Court has to pass an order, with reference to the facts of each case, on whether any such thing did happen. This would necessarily involve the examination of the impugned order with a view to determine whether it suffers from the presence of taint of mala fide, for in that situation it would not be deemed to have been passed under the relevant Martial Law Regulation or Order. .

35. Another aspect of the matter is also worth notice. The provisions regarding abatement in Article 15(6) of, the Provisional Constitution Order indirectly amounted to the enactment of an ouster clause. They should, therefore, be assumed to be subject to the same considerations which weighed with the Supreme Court in the cases of Zia‑ur‑Rehman, Saeed Ahmad Khan and Malik Ghulam Mustafa Khar cited at the Bar, while examining the effect of provisions of Article 281(2) of the Interim Constitution of 1972, Article 269(2) and Article 270‑A(2)(5) of the Constitution of 1973. It was held that the provisions of these Articles did not take away the jurisdiction of the High Court from reviewing acts, actions or proceedings, which may be tainted with malice. In this view of the matter something, which was not enacted directly cannot be deemed to have been so enacted in an indirect manner.

36. It will be of advantage 'to take notice of an unreported case, Muhammad Ahmad Ali Khan v. President of Pakistan and others (1989 SCMR 1240), decided by the Supreme Court on 8‑4‑1989 on appeal from judgment dated 19‑2‑1978 delivered by the Camp Office of the Service Tribunal at Lahore in Appeal No. 349(L)/1974. The services of the petitioner/appellant were terminated under Martial Law Regulation 114 on 13‑3‑1972 and he approached the Supreme Court on dismissal of his appeal by the Service Tribunal, where he had questioned the order of termination as being one without jurisdiction. The impugned order was set aside by the Supreme Court on acceptance of appeal and the case remanded to the Tribunal for a fresh decision on the grounds taken in the appeal in accordance with law. It appears that the question of abatement was not raised before the Supreme Court. However, the fact remains that the relief was granted to the appellant, irrespective of the fact that the petition/appeal was pending before the Court at the time of promulgation of Provisional Constitution Order, 1981.

37. It may be mentioned that reliance has not been placed on ‑the provisions of clauses (3) and (5) of Article 270‑A of, the Constitution to canvass that the impugned order is immune from judicial review and that the Tribunal has no jurisdiction to decide the matter. It may have been thought that the law on the point is settled and the history of judicial decisions arising out of the Constitution development in our country has left little room for any doubt on this point. May be that it was felt that the gamut of judicial scrutiny has ceased to remain a matter of discussion, in view of the Supreme Court's rulings in those' cases. Be that as it may, the provisions of Article 270‑A(2) and (5) of the Constitution may still be mentioned to make out the point that if the Legislature cannot be taken to have intended the ouster of Court's inherent jurisdiction of judicial review by placing them on the Statute Book, it would be much less so in the case of Article 15(5)(6) of the Provisional Constitution Order of 1981, especially now when it is a dead letter. 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 are in existence, they will 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 powers and with no taint of malice.

38. Finally, reference may be made with advantage to a circumstance appearing from PLD 1989 SC 26 (Federation of Pakistan v. Malik Ghulam Mustafa Khar).Civil Appeal No. 285 of 1987 in that case was preferred by one Nazar Muhammad Khan who was serving as Assistant Security Officer in the Air Force Security Force when his services were terminated under Martial Law Regulation 58. He filed an appeal before the Service Tribunal but it was dismissed on the ground of limitation. He then invoked the Constitutional jurisdiction of the High Court to question the legality of the order of termination of his service without success. The Supreme Court dismissed his appeal in this case with the observation that he failed to come to that Court in appeal, which course was open to him after the dismissal of his appeal by the Service Tribunal on the ground of limitation. It would thus appear that the observations made by the Supreme Court in the authority are equally applicable to his case, irrespective of the dismissal of his appeal.

39. Before leave of the matter is taken, a few words about the extent of Tribunals powers. Reference may be made to the case of Muhammad Yamin v. Islamic Republic of Pakistan and another (PLD 1980 SC 22) where the question before the Supreme Court was whether the right of appeal under section 4(1) of the Service Tribunals Act, 1973, has been impliedly taken away by clause (4) of Article 270 of the Constitution as held by the majority of the Service Tribunal: The appellant was dismissed from service by Gazette Notification dated 25‑5‑1970 with effect from 19‑5‑1970 under Martial Law Regulation 58, promulgated in the regime of Agha Muhammad Yahya Khan. His appeal was dismissed by the Tribunal on 20‑11‑1977 for want of jurisdiction. On appeal, the Supreme Court laid down that the appeal being one within the ambit of section 4 of the Service Tribunals Act, 1973, was fully competent and it was the duty of the Service Tribunal to examine on merits all questions of law and facts, sought to be raised by the appellant to challenge the order of dismissal made under Martial Law Regulation 58. As, I see from thus ruling, 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 d6wn of only those actions which were mala fide, without jurisdiction or coram non judice. As held in this case, it is under an obligation to decide all questions of law and fact sought to be raised by the appellant 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.

40. In the final analysis, it is held that the impugned order is unsustainable and of no legal effect as being mala fide and the result of an incompetent notice and inquiry proceedings which were held during detention of the appellant without giving him an opportunity to defend himself against the proposed action. It is, therefore, set aside in acceptance of the appeal. The appellant shall be reinstated in service with effect from the date of the impugned order with all consequential benefits. There will, however, be no order as to costs. The parties shall be informed.

KH. ABDUL JALIL (MEMBER). ‑‑‑In exercise of the powers conferred by sub‑para (3) of para. (9) of Martial Law Order No. 17 the appellant Rao Abdur Rashid Khan, a Grade‑22 officer of all Pakistan Unified Grades, was dismissed from service by the competent authority vide notification dated 21st March, 1978. The appellant submitted a review petition under sub‑para (1) of para. 11 of the Martial Law Order No. 17 but it was rejected by the competent authority vide Establishment Division Memorandum dated 19‑11‑1978. The appellant filed this appeal before this Tribunal under section 4(1) of the Service Tribunals Act, 1973 on 23rd December, 1978. The Establishment Division Memorandum dated 19‑11‑1978 was sent to the appellant at the address of his counsel Mian Tariq Mahmood, Advocate who in his note recorded at the end of the memo of appeal has stated that this was delivered by him to the appellant on 4‑12‑1978 when the appellant was released from District Jail Attock. We have no reason to doubt the statement of Mian Tariq Mahmood, Advocate who was then the counsel for the appellant and therefore hold that the appeal was filed within thirty days of the communication of the review order dated 19‑11‑1978 to the appellant in accordance with the provision of section 4(1) of the Service Tribunals Act, 1973.

41. The objection of the respondent that the appeal is hit by para. 12 of Martial Law Order No. 17 and sub‑para (6) of para. 15 of the Provisional Constitution Order, 1981 do not lose validity by the subsequent repeal of both these orders as a result of promulgation of the Martial Law (Pending Proceeding) Order, 1985. In this connection it will be of advantage to reproduce below the relevant portion of the judgment of the Supreme Court in the case reported as 1989 SCMR 856: ‑

"The plea that the appeal of the respondent which was pending at the time of the promulgation of the Order, 1981 would be deemed to have abated under para. 13, has force. However, on our own, the questions; whether, the respondent had completed 25 years service, and whether, he was retired by competent authority, have been examined. The impugned judgment of the Tribunal has not proceeded on the assumption that the required 25 years service had not been completed. Nor it has proceeded on the basis of a finding that the order impugned before the Tribunal was not passed by the competent authority. The judgment has been based on the finding that competent authority did not pass a proper order on the assumption that it was influenced by the recommendations of a Scrutiny Board. This, by itself, it is obvious, could not save the appeal of the respondent from abatement under paragraph 13 of the P.C.O. That being so we accordingly, while allowing this appeal, set aside the impugned judgment. No costs:"

42. However, this bar to jurisdiction will. be of avail to the respondent only if we come to the conclusion that the disciplinary proceeding taken against the appellant in exercise of powers under MLO No. 17 are in accordance with the provisions of the said Order. Reliance is placed on the ratio of the judgment of the Supreme Court in the case reported as 1988 PLD Supreme Court 13 wherein it has been held "that the Provisional Constitution Order (Article 13) excluded the jurisdiction only where such an order has been passed by the competent authority and only where the civil servant concerned has completed 25 years qualifying service. If any of these conditions is wanting the bar of jurisdiction is in terms not attracted."

43. The learned counsel for the appellant has, inter alia, contended that the disciplinary action taken against the appellant stood vitiated on the following grounds: ‑

(a) The show‑cause notice issued to the appellant on 21st January, 1978 under the proviso to sub‑para (3) of para. 9 of Martial Law Order 17 did not have the approval of the competent authority namely the Chief Martial Law Administrator.

(b) The inquiry was conducted behind the back of the appellant who at the relevant time was under detention. No witnesses against the appellant were recorded in the presence of the appellant not any opportunity provided to him to cross‑examine the witnesses nor to produce any evidence in his defence.

44. After an Inquiry Officer has been` appointed by the competent authority under sub‑para (1) of para. 2 of MLO No. 17 for the purpose of making an inquiry into the allegations against a Government servant, the inquiry officer is required by sub‑para (1) of para. 9 of the said Order to submit his report to the competent authority within the period specified by the competent authority. On receipt of the inquiry report the competent authority may take any of the following decisions as laid down in sub‑para (2) and sub -para (3) of para. 9 of MLO No. 17:‑

(a) The competent authority may direct the Inquiry Officer to take such additional evidence as may be deemed necessary.

(b) Issue a show‑cause notice in writing to the Government servant concerned requiring him to explain why disciplinary action should not be taken against him.

45. As in this case the inquiry report was not brought to the notice of the competent authority before the issue of show cause the appellant's case was seriously prejudiced. It is possible that the competent authority could have come to the conclusion that the evidence collected by the inquiry officer was not adequate to sustain the charges against the appellant and therefore might have directed the Inquiry Officer to take additional evidence. The consideration of the report by the competent authority before taking a decision to issue a show‑cause notice to the appellant was quite essential before initiating further disciplinary action against the appellant. This is a material omission and vitiates ultimate action resulting in the dismissal of the appellant from service.

46. In order to examine the second contention I may refer to para. 6 of MLO No. 17 and which is produced below:

"6. Unless otherwise directed by the competent authority, the Inquiry Officer shall have power to regulate its own procedure (including the fixing of place and times of his sittings and deciding whether to sit in public or in private) and make rules to carry out the purpose of this order relating to inquiry."

47. As the inquiry report has not been made available to this Tribunal by the respondent on the ground that it was no longer traceable it is not possible for us to determine whether the Inquiry Officer was authorisd by the competent authority to regulate his own procedure and make rules for carrying out the inquiry against the appellant and whether the rules so framed by the Inquiry Officer were in fact followed by him during the conduct of inquiry. In the absence of the relevant record there is the possibility that the Inquiry Officer might not have followed the procedure laid down in para. 6 of MLO No. 17 and therefore, allow its benefits to the appellant.

48. For the above reasons I agree with the order proposed by my learned brother Ch. Hasan Nawaz.

A.A./785/Sr. F Appeal accepted.