' This revision petition is against an order and decree dated 26-11-1975 of Ch. Mohammad Younus, Additional District 'Judge, Lahore by which he upheld the judgment and decree dated 10-3-1973 dismissing the suit of the petitioner. The plaintiff-petitioner joined service in the Rehabilitation Department on the 20th December 1947 as Deputy Rehabilitation Officer. He was promoted as Rehabilitation Officer in August 1957. He was posted in the year 1957 as District Rehabilitation Officer Muzaffargarh. Thereafter he was transferred to Dera Ghazi Khan where he joined duty for a week only and then remained on leave till he was transferred to Lahore.
2. On the 23rd March 1959 he was served with charge-sheet (Exh. P. 2) from the Chairman Screening Committee enumerating the following charges against him :-
(1) That he was guilty of misconduct in so far as he did not stay in D. G. Khan, but proceeded on casual leave after working for merely one week, and thereafter manoeuvred his transfer to Lahore by using political influence.
(2) That his behaviour with the public and his subordinates had been unsatisfactory.
(3) That his integrity had been doubtful.
(4) That he did not exercise proper control and supervision over his staff and that his disposal was unsatisfactory.
(5) That he had been censured for disobedience of orders of his superior officers and had failed to improve despite this departmental punishment,
3. He was directed to submit explanation before the 30th March 1959 and if he wished to be heard in person to appear before the Screening Committee on the 30th March 1959.
4. After hearing the petitioner the Screening Committee submitted a report recommending that in view of the thoroughly unsatisfactory service, gross misconduct, inefficiency and reputation for corruption the petitioner should be dismissed under the Public Conduct (Secrutiny) Ordinance, 1959 and the Rules thereunder. By an endorsement dated 23-4-1959 the said Committee advised him to file an appeal against these recommendations to the appointing authority within one week of the receipt of the communication (see Exh. P. 3).
5. An appeal was filed by the petitioner but the recommendation of the Screening Committee was accepted and by Notification No, 2035-U-RR/59 dated 26-E-1969 (Exh. P. 1) he was retired from service in view of the powers conferred upon the Government of West Pakistan by sub-clauses (a) and (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958.
6. The petitioner challenged this order by Writ Petition No, 181 of 1962 (Exh. D. 1) which was filed on the 19th January 1962. The writ petition was dismissed by a Division Bench of the High Court of West Pakistan on 7-3-1962 on ground of inordinate delay (Exh. D. 2).
7. Thereafter the petitioner filed a suit on 19-6-65 for declaration that he was still in service of the defendant as Additional District Rehabilitation Officer and the order of his retirement was illegal, inoperative and ultra vires. He alleged the following ground, for challenging the Notification Exh. P. 1 :-
(a) The Screening Committee had acted mala fide by curtailing the time limit of appeal to one week as against fifteen days which was provided against recommendation of punishment of dismissal from service for purposes of sub-clause (a) of clause 5 of Laws (Continuance in Force)
Order, 1958.
(b) The Screening Committee disallowed the plaintiff to inspect the record.
(c) The inquiry being for purposes of sub-clause (a) of clause 5 of Laws (Continuance in Force)
Order 1958, the Screening Committee had no jurisdiction to give any finding on grounds of inefficiency (rule 2(c) of Public Conduct Scrutiny Rules, 1959) as that ground had been deleted by Notification S. R.
0. 87 dated .28-2-1959 and published in the Gazette, Extraordinary on 2-3-1959.
(d) Absence of the petitioner on medical grounds did not amount to commission of act of misconduct.
(e) The Scrutiny Committee acted without jurisdiction in holding the plaintiff guilty of having reputation for corruption.
8: This suit was dismissed by the learned trial Court on 10-3-1973 and that decree was maintained as stated above by the learned Additional District Judge on 26-11-1975.
9. The only issues which were agitated before the learned Additional District Judge were 1st and the 4th which are as follows :-
(1) Whether this Court has no jurisdiction to try this matter?
(4) Whether the action taken against the plaintiff was mala fide, illegal and ultra vires?
10. He held that the mere fact that seven days were allowed to the petitioner for filing of appeal against the recommendation of dismissal from service did not vitiate the proceedings. Reliance was placed upon PLD 1964 (W. P.) Lah. 531; where it was held that as a rule if longer period is provided for the performance of an act a lesser period for the same does not amount to an irregularity or illegality vitiating the proceedings. He further found that no prejudice had been caused to the petitioner by the shortening the period of appeal.
11. It was also held that there was no evidence to prove that the petitioner ever requested for inspection of the record or his request was disallowed. As regards the competence of the Screening Committee to enquire into the conduct of the petitioner, it was held that no provision of law in this respect was shown under which the Screening Committee was debarred from inquiring.
Lastly it was held that there was no mala fide.
12. The learned counsel for the petitioner submitted the following points before me in his lengthy arguments :-
(1) The order passed against the petitioner was virtually an order of dismissal.
(2) The ground of inefficiency was not a ground for passing such an order under Article 6 of the Laws (Continuance in Force) Order, 1958.
(3) The Laws (Continuance in Force) Order, 1958 referred to corruption only and not reputation of being corrupt and these are basically two different things.
(4) There is nothing as to which rule was violated by the petitioner making him liable to the finding of gross misconduct.
(5) The period for filing the appeal could not be curtailed from 15 days to 7 days.
(6) No opportunity to examine the record was granted to the petitioner.
13. The first point is without any merit since though the law authorised the passing of an order of dismissal but the order in the present case is only of retirement. Article 6 of the Laws (Continuance in Force) Order, 1958 as amended by President's Order 1 of 1959 provides in clause (3) of Article 6 "notwithstanding anything in clause (1) a person in the service of Pakistan, may, if he is found inefficient 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."
14. It is clear from this clause that four punishments are provided; they are dismissal, removal, compulsory retirement and suspension. In these circumstances the retirement is a lesser punishment and cannot be equated with removal or dismissal.
15. The argument that inefficiency could not be a ground for passing the order requires some detailed reference to the state of law. As. Laws (Continuance in Force) Order, 1958 as enforced originally on the 10th October, 1958 provided for continuance of service of persons in the service of Pakistan on the same terms and conditions on which they were employed before the proclamation of the seventh day of October, 1958, when Martial Law was enforced. This article was further amended by President's Order (Post-Proclamation) No, 4 of 1958 which added clause (2) therein providing for suspension of Judges of the High Courts. Article 6 was amended by President's Order 1 of 1959 in order to invest in the appointing authority powers to purge the services of inefficient and corrupt elements and those who were guilty of subversive activities or of misconduct. It was for this reason that clauses (3), (4) and (5) were further added to the said article. Clause (3) has already been reproduced. Clauses (4) and (5) are as follows:- "(4) No rule made under clause (3) order expressed to be made in accordance with any such rule shall be called in question in any Court.
(5) Nothing in this Article or in any taw, rule or instrument 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, 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, or for inefficiency, on such pension (if any) as may be admissible to him, proportionate 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."
' This amendment was with retrospective effect.
16. Another amendment was made in clause (5) of Article 6 by President's Order 5 of 1959 which was published in the Gazette, Extraordinary, dated 24th April 1959. The words 'or for inefficiency' in clause (b) were omitted with retrospective effect. Those words were added to sub-clause after the word 'misconduct'.
17. The Central Government enforced the Public Conduct (Scrutiny) Ordinance, 1959 on 24th January 1959 to constitute a Screening Committee to scrutinize into the conduct of any person to whom the Ordinance applied and record the finding thereon and make recommendation as to punishment or other action to the appointing authority who was authorised to pass Order thereon according to law. Rules were framed under this Ordinance. They were known as Public Conduct (Scrutiny) Rules, 1959.
18. In rule 2 it was provided that if there was reason to believe that a person is corrupt or may reasonably be considered corrupt or is guilty of conduct contrary to the rules regulating the conduct of Government servants and in any other case of conduct unbecoming his office or is inefficient or has ceased to be efficient and is not likely to recover his efficiency may be called upon to explain any fact or circumstance appearing against him. Rule 3 provided for the explanation to be submitted by such person within such time as the Committee might appoint.
Rule 4 provided that having considered the explanation, 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. The 'finding submitted under rule 4 shall be accompanied by the recommendation of the Committee as to punishment or other action as required by rule 5. Rule 6 provided that where the finding is against the person concerned a copy of the finding and the recommendation shall be furnished to him forthwith and he shall be entitled within fifteen days of the receipt thereof to appeal against it to the appointing authority.
' The rule pertaining to action for inefficiency was deleted by a subsequent amendment dated 28- 2-1959.
19. It is clear from these provisions that the ground of inefficiency was deleted from the Public Conduct (Scrutiny) Rules. It was never' deleted from Article 6 of the Laws (Continuance in Force)
Order. In a similar case Government of East Pakistan v. Murzuqallah and 4 others (1) it was therefore, held that the Public Conduct (Scrutiny) Ordinance, 1959 and the rules made
(1) PLD 1969 SC 1 thereunder were irrelevant since the source of power for retiring the respondent in that case was cited as sub-clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1959.
The same view was reiterated in Ch. Ali Mohammad v. Government of Pakistan (1). In the present case also the order has been passed under sub-clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1959. These authorities are on all fours with the facts of the present case. The argument of the learned counsel is untenable.
20. The ground that corruption and reputation of being corrupt are two different concepts is not a ground taken in the plaint or urged at any stage. This argument is however without force since subclause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order provides not only for corruption but also for reputation of being corrupt and the same provision is there in the Public Conduct (Scrutiny) Rules, 1959. I do not agree with the learned counsel that these are two different concepts. The only difference appears to be that in one direct evidence of corruption is required and in the other proof of reputation of being corrupt is sufficient. For this purpose clause (5) provides that when a person is proved to be corrupt, he may be suspended, reduced in rank, removed or dismissed but if he is inter alia convicted for having the reputation of being corrupt he can be retired from service. The argument in this respect also is without merit.
21. The argument about the curtailment of the period of appeal is without force. The learned Additional District Judge has rightly relied upon the Lahore Authority for this purpose. The learned counsel for the petitioner however relied upon Sardar Muhammad Zaman Khan v. M. B. Nishat (2).
In that case it was held that a final order stood vitiated by the failure of the appointing authority to grant necessary time required by law for an appeal to be preferred. But this authority is clearly distinguishable since in that case no appeal had been filed. The learned counsel also relied upon an unreported judgment of the High Court of West Pakistan in writ petition No, 147 of 1963 in which copy of the recommendation of the Screening Committee was sent to the petitioner in that case on 23rd September and he was required to file an appeal before 28th September. It was held that even if the petitioner received the document on the following day, he had only 4 days within which he was to file the appeal. This was contrary to the provisions of the law and affected a vested right of the petitioner:
22. This case is distinguishable for two reasons. Firstly the curtailment of the period of the appeal was not the only ground on which the order was passed. There were Much weightier grounds in it and secondly the period of appeal was too short. In the present case it was stated that the appeal shall be filed within a week from the date of the receipt of communication about the recommendation. It is further clear that the petitioner did file an appeal. This is not his contention that if he had full 15 days, he would have been able to take some other grounds also which he failed to take in the first instance. In these circumstances I agree with the learned Additional District Judge that the order in dispute could be vitiated only if the petitioner had proved some prejudice.
In the absence of any prejudice, the petitioner had no case on this ground.
23. On the question of inspection of record the learned counsel did not
(1) 1974 SCM R 112 (2) PLD 1962 SC 22 refer to any evidence. He submitted that there was no specific denial of the ground in regard to the inspection of record taken in the plaint. This objection is based upon the misreading of the written statement where there is an absolute 'denial.
24. I may now refer to an argument of the learned counsel for the respondent that the petitioner's writ petition had been dismissed on ground f laches in 1962. He then waited for further three years for tiling the suit and filed the same a few days before the expiry of the period of limitation n case Article 120 was applied instead of Article 14 of the Limitation Act to the suit. He submitted that a suit for declaration which is a discretionary relief can be dismissed on ground of delay alone. In this connection he relied upon the Chairman, District Screening Committee v. Sharif Ahmad Hashmi (1).
25. This was also a case against the Chairman,' District Screening Committee. It was held (vide page 267) that the principle of laches must be applied strictly where a public servant seeks restoration to his office or other redress against a wrongful order. This authority is, however, distinguishable since it was a case of writ petition. In the present case if it is once held that the civil Court had jurisdiction and Article 120 applied, the suit cannot be dismissed simply on the ground of Mches. I, however, agree that grant of a declaration being discretionary with the Court, this E may also be one of the grounds for refusing to exercise the discretion in favour of a plaintiff who seeks restoration to a public post. HOwever, this question does not arise since the suit of the plaintiff has been rightly dismissed even on merits.
26. I accordingly dismiss this revision petition with costs.
(1) PLD 1976 SC 258