MUHAMMAD RAFIQUE Versus ZILLA COUNCIL, LAHORE
Petitioner through this Constitutional petition calls in question an order of the Chairman, Zila Council, Lahore, dated 4-6-1983 passed under rule 4(a) of the West Pakistan. Local Councils and Municipal Committees Servants (Retirement) Rules, 1966, retiring him from service on completion of 25 years service.
2. Facts giving rise to this petition, briefly stated, are that the petitioner joined service of Zila Council as a clerk on 1-2-1951 and he was H.V.C. at the time when the impugned order was passed. Cases of the officers/officials in the employment of Zila Council, Lahore, who had completed - were about to complete 25 years service by 31-12-1979 were reviewed in December, 1979, and the Review Committee after scrutinising the service record of all the officers/officials in the light of the guidelines contained in Government letter No. SO(S)14-6/78, dated 4-12-1979 found that "their ACRs are clear, they enjoy good reputation regarding efficiency and integrity, they have no political leanings, nor any one of them is mentioned in the White Papers published by the Government. As to the guidelines (c) and (e) quoted above, it has been feli that the District Council is already under staffed:' The Review Committee thus decided to retain all the officers/officials and information in that behalf was conveyed to the Secretary, Local Government, Punjab, vide letter dated 18-1-1980. Petitioner thus continued in service. After about three years, he received a letter dated 7-9-1982 informing him that he had been retired from service in public interest. This letter, it appears, was based on an order of the Chairman dated 5-9-1982 photocopy whereof has been produced during the hearing of this petition. Petitioner is stated to have made a representation against his retirement and the letter in question was accordingly rescinded vide letter dated 25-9-1982 (Annex. `A').
3. Petitioner's case was once more brought under review together with the cases of nine other employees of the Zila Council. Five amongst them were Grade-IV employees. The Review Committee in its report pointed out that the integrity of the petitioner was doubted by various officers. Relevant portion of the report reads as follows:-- ,
4. Relying on the aforementioned report of the Review Committee, Chairman, Zila Council ordered the petitioner's retirement vide the' impugned order observing therein that he had completed more than 25 years service and his integrity was doubtful. The impugned order was conveyed to the petitioner through letter dated 6-6-1983 (Annex. `B'). Petitioner challenged the order of his retirement in an appeal (Annex. `C') filed before the Commissioner, Lahore Division, wherein he, inter alia, asserted that Muhammad Riai Toor, Member, Zila Council, who was a member of the Review Committee had a personal grudge against him for the reason that the petitioner had served on him letter dated 26-8-1982 for adjustment of the amount received by him as an advance and also because the petitioner had forwarded certain complaints of the public against him to the higher authorities. The Commissioner dismissed the petitioner's appeal by his order dated 3-9-1983 (Annex. `D') with the observation that "the cases of many other officials of the respondent were considered along with his case and that he was retired on account of adverse entries contained in his Character Roll:" Petitioner then sought the review of the Commissioner's order which was declined vide order dated 25-7-1984 (Annex. `E'). Hence the present writ petition.
5. I have heard the learned counsel for the parties at full length and have also examined in detail the original record of Zila Council. Learned counsel appearing in support of this petition assailed the validity of the impugned order on various grounds which may be reproduced hereunder:--
(i) That for the purpose of determining whether an employee is liable to premature retirement, his case can be examined only once on his completing 25 years of service and if the competent authority decides to retain him that is the end of the matter and thereafter his case cannot be reviewed at all so as to retire him before he reached the age of superannuation;
(ii) That the case of the petitioner was examined twice before and a decision was taken to retain him. It could not, therefore, be brought under review for the third time;
(iii) That even if it be assumed that further and repeated reviews for the aforesaid purpose were permissible yet the petitioner could not be retired on the basis of the material available with and examined by the respondents at the time of previous review;
(iv) that in any case, the entries in the petitioner's Character Roll said to be adverse which have been noted in the order of the Commissioner could not in law form valid basis of the impugned order for the reason that the entries in question were either not communicated to the petitioner or stood expunged; and
(v) that the impugned order was based on mala fides in so for as one of the two members of the Review Committee which gave adverse report against the petitioner was inimical to him on account of personal grudge which the member nursed against him.
6. It is not denied on behalf of the respondents that the case of the petitioner for the purpose of premature retirement had been examined twice previously; first in December, 1979 when the cases of all the employees of Zila Council were reviewed and it was decided to retain all of them, and second time in December, 1982 when the petitioner, in the first instance, was retired but soon thereafter, the order of retirement was rescinded. Their contention, however, is that there was no limit on the number of reviews and work and conduct of an employee after he had completed 25 years service remained under constant review and he could he retired any time thereafter even though it was earlier decided to retain him. Reliance for this proposition was placed on the instructions contained in Government of Punjab's letter No. SO(S)-14-6/78, dated 18-12-1979 with particular reference to the following:--
"Under section 12(ii) of the Punjab Civil Servants Act, 1974, retirement can be ordered after completion of 25 years service qualifying for pension. This implies that the work and conduct of the civil servant will remain on review continuously after completion of 25 years service and in case he shows signs of deterioration, he can be retired any time after completion of 25 years qualifying service. The Act does not envisage any periodic reviews. There is no limit on the number of reviews between completion of 25 years service; and attaining the superannuation age."
7. Assuming for the sake of argument that repeated reviews as contended by the respondent were permissible, yet even on the terms of the afore-referred instructions, the petitioner could be retired only if he had shown "signs of deterioration" in his work and performance since the last review. Now, in the i instant case it is an admitted position that there was no adverse report against the petitioner's work and conduct ever since his case was examined along with others in December, 1979, for the purpose of premature retirement and it was decided to retain him. That being so, even according to the departmental interpretation, there was no valid basic justifying further review of the petitioner's caste so as to retire him prematurely vide the impugned order. It is apparent from the record that the impugned order of the petitioner's retirement was passed not on any fresh material but on the basis of some old entries in his Character-Roll. Reference may pertinently be made to the appellate order of the Commissioner which shows that the Zila Council sought to justify before the Commissioner the premature retirement of the petitioner with reference to the following adverse entries:--
Sr. No. Year Remarks
1. 19617 An average worker. Should take more interest in his work. Needs improvement.
2 1968 Integrity--Doubtful
He should improve his reputation.
3 1970 Needs improvement.
4 1973 A case is being investigated by Anti-Corruption
Establishment for embezzlement.
5 1975 Integrity--Doubtful.
Not fit for promotion. He is not inarticulate even
His service conduct has been under enquiry. He believes in Sifarash and not work.
It cannot be said nor has it been urged on behalf of the respondent that the afore-referred remarks/entries were not in the knowledge of the authorities or were not examined by them when they reviewed the petitioner's, case in December, 1979, and decided it) retain him or when the order of his retirement passed on 5-9-19$2 was later rescinded vide letter dated 25-9-1992 (Annex. 'A') In fact, the order passed in December 1979 quite clearly shows that the then Review Committee had scrutinised the service record of all the employees of Zila Council. It can, therefore, quite jutifiably be assumed that the authorities concerned were well-aware of the aforementioned entries in the character-roll of the petitioner and they must also have, examined them when his case was reviewed on precious occasions and decision was taken not to retire him. It is nobody's case that the service record in question was suppressed or withheld when the petitioner's case was examined earlier. In the circumstances, it was not available to the respondents to pass the impugned order on the basis of the same material and service record which was very much in possession of the authorities and which must also have been examined by them when they had earlier considered the case of the petitioner and decided to retain him. The impugned order quite clearly tantamounted to reviewing the previous orders passed by the competent authorities in December 1979 and September 1982 for which there was neither any warrant in law nor any justification on facts. It cannot, therefore, be sustained.
8. Apart from what has been said above, the aforenoted entries in the character-roll of the petitioner which the respondents pressed into service to justify the impugned order could not in law be made the basis thereof for the reason that they were either not communicated to the petitioner or stood expunged. Case of the petitioner on the factual plan is that the entries in question excepting the one relating to the year. 1975 were never communicated to him and the adverse remarks recorded in the year 1975 were on his representation expunged on 18-12-1978 and information in that behalf was conveyed to him vide letter dated 8-1-1979 (Annex. `F'). These facts, it may be noted, though specifically averred in para. 6(f) of the writ petition have not been denied by the respondents by filing any counter-affidavit or even a proper written statement. That being so, the facts stated in the writ petition have to be taken as correct. Not only that, the fact that the adverse remarks recorded in the year 1968 were not communicated to the petitioner and those pertaining to the year 1975 stood deleted on his representation was even admitted by Zia-ud-Din, Accounts Officer of the Zila Council, who appeared with record during the hearing of this petition. The officer quite frankly stated on the basis of the record that the only really adverse entries in the petitioner's service record were those which related to the years 1968 and 1975. It is thus not in dispute that the entries in question which the respondents had relied upon to order the premature retirement of petitioner were either not communicated to him at all or stood deleted from his service record. It is beyond question that an adverse remark duly expunged/deleted by a competent authority would be deemed to be non-existent and could not be made use of for any purpose. As regards the entries not communicated, )earned counsel for the petitioner relied upon a judgment of the Supreme Court reported in P L D 1987 S C 271 and the Government instructions reproduced therein to contend that the adverse remarks not communicated to an employee are not to be taken into account for the purpose of prem;iturc retirement. The instructions relied upon by the petili<;ncr \vcre issued by the Government of Punjab vide SOR-IV (S&(iPD). dated January 1, 1981. Relevant portion thereof reads as follows:--
"I am directed to refer to this Department Circular letter No. SOR-III (S&GAD)14-2-72, dated 9th June, 1973 and to say that the instructions have been reviewed and it has been decided that if adverse remarks are not communicated, or if communicated there is no record of their having been communicated and acknowledged by the concerned officer, such adverse remarks should be ignored for, purpose of promotion and premature retirement."
9. Their Lordships of the Supreme Court while commenting on the afore- referred instructions observed that "in paragraph I, it is directed that if the adverse remarks arc not communicated, or if communicated there is no record of their having been communicated and acknowledged by the concerned officer, such adverse remarks should be ignored for purpose of promotion and premature retirement.
And further that when the adverse remarks arc not communicated or there is no proof that they were ever communicated, in that case they would be ignored for purpose of promotion and premature retirement."
The aforementioned instructions and the comments of their Lordships seem to support the petitioner's contention. Even on principle of natural justice, adverse remarks recorded in the character roll of an employee unless communicated to him so as to afford him an opportunity of representing against them cannot be utilised to his prejudice.
10. In the aforesaid view of the matter, the Chairman Zila Council as also the appellate authority, the Commissioner, acted without lawful authority in basing the impugned orders on the entries/remarks in the service record of the petitioner which could not he legally taken into consideration. It may pertinently be observed that there is no other adverse entry in the character-roll of the petitioner.
11. The last contention of the petitioner based on his allegation of mala fides against one of the members of the Review Committee also appears to have force. According to the petitioner, Muhammad Ria7 Toor, a member of the Zila Council had developed, a grudge against him for the reason, inter alia, that he (i.e. the petitioner) had got a demand notice served on him for adjustment of Rs.15,00p which he had taken as an advance and this amount he had to deposit and out of this grudge he maneuvered the impugned order. Allegation in this behalf was set forth in detail in paras.6(c) and (d) of the writ petition which may be reproduced hereunder for facility of reference:--
"6. (c) That as per proceedings of respondent No. 1, the record of the petitioner was not objectionable and so his retention in service was not considered as against the interest of public up to 25-9-1982. Suddenly, his retention in service became undesirable and against the public interest which led respondent No.1 to retire the petitioner vide order dated 6-6-1983. In fact, Mr. Muhammad Riaz Toor, Member Zila Council, Lahore developed personal grudge against the petitioner within the intervening period of 9 months who got a committee constituted of which he was a member and with mala fide intention, out of lot of 10 employees, recommended to retire the petitioner and Ch. Shah Muhammad, the then Chairman, Zilla Council, Lahore being in league with his payment, issued the impugned order without applying his independent mind and without hearing the petitioner. Therefore, the impugned order is mala fide and inconsistent to two decisions already taken in favour of the petitioner on the same data and record.
(d) That the petitioner in discharge of his official duties got Mr. Muhammad Riaz Toor, served with letter No. 3045-87, dated 26-8-1982 for the adjustment of the advance amount of Rs.15,000 and consequently Zila Council was benefited to that extent as Mr. Muhammad Riaz Toor had to deposit the said amount against the demand-notice. There were few complaints sent by public against Mr. Muhammad Riaz Toor, which the petitioner was bound to forward these complaints to the higher authorities which the said member desired to hand him over such complaints without any action. The petitioner did not accede to his request. Complaint received vide receipt registered No. 728, dated 19-1-1983 and a telegram sent by Contractor's Association dated 27-11-1982 are the two instances which led Mr. Muhammad Raiz Toor, Member Zila Council, Lahore to become revenge against the petitioner and he got a Review Committee reconstituted of which he was one of the members and recommended retirement of the petitioner with mala fide intention."
12. The aforementioned allegations have remained unrebutted as the Zilla Council has not cared to file any written statement pr even a counter-affidavit to controvert them. In the circumstances, there should be no difficulty in accepting the petitioner's categorical assertion that the impugned order of his premature retirement was manipulated by Riaz Toor, Member Zilla Council, who on the facts stated hereinabove bore personal grudge against him. It may pertinently be noted that the said Riaz Toor was a member of the Review Committee which gave adverse report against the petitioner. The Reveiw Committee in its report reproduced in para. 3 ante stated that various officers from time to time gave reports about the petitioner's integrity being doubtful. The Chairman, Zilla Council, simply acted on this report and did not apply his own independent mind to the service record of the petitioner. Had he cared to look into the record himself, he would have noticed that in the entire service record of the petitioner extending over 30 years, there were only two adverse entries about his integrity. First was recorded in 1968 which was never communicated to him and the second recorded in 1975 stood expugned in 1978. Petitioner is also shown to have earned good reports from 1976 onward. The Accounts Officer of the Zilla Council stated on the basis of the record that the petitioner was described as "efficient, hardworking and dutiful official" in 1976, "obedient, honest and hardworking in 1978, "efficient cooperative, intelligent, and hard worker" in 1978, "efficient, cooperative and hard worker" in 1979, "hardworking, honest and efficient official" in 1980 and 1981, and "hardworking and responsible official" in 1982. These important facts were not brought out in the report of the Review Committee and the Chairman also did not bother to examine the record himself with the result that he remained uninformed about the correct factual and legal position and proceeded to pass the impugned order basing himself entirely on the report of the Review Committee. The impugned order of the Chairman is thus rendered unsustainable in law.
13. Upshot of the above discussion is that viewed from whatever angle, the impugned orders cannot be sustained. They are accordingly declared to be without lawful authority and of no legal effect. Writ petition is accordingly allowed but with no order as to costs.
H.B.T./M-2002/L Petition allowed: