MAYOR, MUNICIPAL CORPORATION, RAWALPINDI vs MUHAMMAD GHAFFAR
This matter arises from four petitions seeking leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, which allowed writ petitions filed by municipal employees challenging their compulsory retirement. The core legal question is whether an employee compulsorily retired after 25 years of service under the relevant retirement rules is entitled to an opportunity of hearing prior to the passing of the retirement order, and whether such retirement was vitiated by mala fides. The Supreme Court held that compulsory retirement involves an element of compulsion and stigma, and therefore principles of natural justice require that an affected employee must be given an opportunity of hearing before the retirement order is passed, with adequate disclosure of material supporting the conclusion that retirement is in public interest. The Court ruled that a subsequent hearing before an appellate forum cannot cure the absence of a pre-decisional hearing. Consequently, the Supreme Court refused leave to appeal and dismissed the petitions.
- Whether an employee compulsorily retired from service is entitled to an opportunity of hearing before the retirement order is passed?
- Does a hearing before an appellate forum cure the lack of a pre-decisional hearing prior to compulsory retirement?
- Whether compulsory retirement carrying a stigma requires adherence to the principles of natural justice?
- Rule 4(1), Local Councils and Municipal Committees Servants (Retirement) Rules, 1966
ORDER
SAJJAD ALI SHAH, J: --Through these four petitions leave is sought to file appeal against judgment dated 20-1-1993 by Rawalpindi Bench of Lahore High Court, whereby four writ petitions filed by the private respondents herein have been allowed holding that compulsory retirement of the said respondents is not in public interest and is mala fide. Further, their cases have been remanded to the competent authority for fresh consideration in accordance with law if any action is intended to be taken against them.
2. In each petition before us respondent No. 1 is employee of Municipal Corporation, Rawalpindi, Mayor of which is petitioner. For the sake of convenience and brevity respondent No. 1 in each petition before us would be referred hereafter as employee. It is the case of employees that they have been compulsorily retired from service under Rule 4(1) of the Local Councils and Municipal Committees Servants (Retirement) Rules, 1966 after completion of 25 years in service. Their departmental appeals were dismissed by the Commissioner: They filed writ petitions in the High Court which have been allowed mainly on the ground that they were not heard before, orders of retirement were passed against them which were also mala fide.
3. Learned counsel for the petitioner submitted before us that the employees could not and did not get hearing before the orders of retirement for the reason that relevant rules do not allow such hearing. In any case employees were heard in detail during hearing of appeals before the Commissioner which is sufficient compliance of the requirement. Secondly, mala fides were not alleged and were not proved and brought on the record during the hearing of appeals. Thirdly, orders of retirement are justifiable as they are in public interest and according to law.
4. Perusal of the impugned judgment shows that in arriving at the finding, High Court has relied upon judgment of Shariat Appellate Bench of Supreme Court in the case of Pakistan and others v.
Public-at-Large and others (PLD 1987 SC 304). It is held by the Supreme Court that law under which such retirement is made involves element of compulsion and carries stigma and disgrace in the public eye and if such action is taken in public interest then opportunity of hearing must be given to the affected civil servant.
5. Contentions raised on behalf of the petitioner before us are untenable. Hearing before appellate forum is not adequate and effective hearing to take the place of hearing before the order of retirement is passed. Case-law cited by the learned counsel PLD 1966 Lah. 464, PLD 1970 Pesh. 1 and (PLD 1971 Pesh. 210), are not attracted as they do not cover the point in issue. Employee must know as to how it is in public interest to retire him from service. In that connection if there is any material or grounds to support, such conclusion should be intimated to him. We have perused the orders passed by the Commissioner in appeals. In the appeals which have been allowed orders are speaking and in the appeals which have been dismissed orders are not speaking in the sense that they do not indicate as to on the basis of what material conclusion is drawn that retirement is in public interest. After reading the order one gets impression that formality of hearing was fulfilled without judicial application of mind.
6. Learned counsel for the respondents defended impugned judgment and submitted that orders of retirement were passed with mala fide intention for the reason that employees affected thereunder had already agitated question of seniority, rank and grade and the matter was sub judice, hence orders of retirement passed during pendency of such proceedings suffer from mala fides. We are unable to find any flaw or legal infirmity in the impugned judgment of the High Court and moreover, it is apparent that High Court has remanded the cases leaving it open to the competent authority to take action, if so intended, strictly according to law. For the facts and reasons stated above, we are of the view that interference is not warranted. Resultantly leave is refused and petitions are dismissed.