S. ABDUL JABBAR KHAN (CHAIRMAN).-Ghulam Qadir Dahir, formerly Superintendent of Police, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 against the order of his dismissal dated 14th April, 1970 issued by respondent No. 1. It has been prayed by virtue of this appeal that the impugned order be set aside and the appellant be re-instated with all the back benefits to which he was entitled in accordance with the law.
2. Brief history of the case is that the appellant joined the Bahawalpur Police Service on 1st March, 1949. After completing his preliminary training he was posted as Assistant Superintendent of Police in which capacity he served till 1955. When the State of Bahawalpur was merged with the defunct Province of West Pakistan on the formation of One Unit, his services were also merged with the West Pakistan Police Service and he was posted as Deputy Superintendent of Police. It was in July, 1961 that the appellant was promoted to the rank of Superintendent of Police and was serving in that capacity at Dadu when the Chief Martial Law Administrator promulgated M L.R. 37 which dealt with the subject of Improper Acquisition of property. It was on 23rd April, 1969 that Improper Acquisition of Property (Special Committee) Ordinance IX of 1969, was promulgated. M.L.R. 37 required the appellant to submit his Statement of Assets to the Special Committee so constituted under the above-mentioned Ordinance. The appellant submitted the Statement of Assets to the said Committee, which, after going through his Statement, approved the same. The approval of the said Committee was presumed by the appellant from the fact that no action was taken against him regarding the said Statement of Assets so provided to the Committee. However, the appellant was suspended by the Chief Martial Law Administrator and President of Pakistan vide his order dated 5th December, 1969 under the powers conferred upon him by pare, 4 of MLR-58. The respondent No, I served a charge sheet and statement of allegations on the appellant on 2nd January, 1970. The appellant submitted his explanation to all the for charges so levelled against him and denied all the allegations as without any foundation. It was on 14th April, 1970 that respondent No. 1 issued a notification that the appellant was dismissed from service under M. L. R.
58 with effect from 1st April, 1970. The appellant filed a Writ Petition No, 293 of 1972 before the High Court alongwith many other similar petitioners and this was decided alongwith Saeed Ahmad Khan's case on 3rd August, 1973 vide PLD 1974 Lah.
18. In that judgment the Lahore High Court held that the impugned order could only be challenged on the limited grounds of mala fide and cor am non judice. Against the said decision of the High Court, the Government of Pakistan went in appeal before the Supreme Court of Pakistan where the appellant was one of the respondents. The Supreme Court of Pakistan in the case titled Federation of Pakistan v. Saeed Ahmad Khan , upheld the judgment of the High Court and remanded the case to the High Court for a fresh decision vide order dated 11th March, 1974. The petitioner's case alongwith others was taken by the Lahore High Court and it was decided vide judgment in the case of As/am Bajwa v. Federation of Pakistan , that the appeals stood abated in view of Article 212 of the Constitution of the Islamic Rupublic of Pakistan. Due to uncertainty prevailing about the maintainability of appeals which were not based on the plea of mala fide or coram non judice, the petitioner did not file any appeal before the Tribunal as under the law no remedy was so available to him. It was only after lot of litigation that the Supreme Court of Pakistan held in M. Yameen Qureshi v. Islamic Republic of Pakistan , that cases like that of the appellant were maintainable, to be heard as regular appeals on both law and facts. The appellant lost no time for filing of the present appeal which is before us.
3. We have heard the learned counsel for the appellant as well as Malik Azam Rasool, learned counsel for the respondents, assisted by the representative of the Establishment Division, Government of Pakistan. The learned counsel for the appellant has raised several legal objections against the maintainability of the impugned order which we summarise as under :-
(1) that the appellant being in the service of the Province of West Pakistan, the competent authority to remove him from service would be the Governor and not the President of Pakistan ;
(ii) that the respondent No. 1 has only acted on the direction of respondent No, 2 without applying his mind independently in this case ;
(iii) that the appellant was not given either reasonable or fair opportunity of hearing before passing the order of his dismissal. Therefore, the principle of audi alterampartern was fully attracted in this case. In this matter he has relied on the verdict of the Federal Service Tribunal given in W. A. Shaikh's case ;
(iv) that the appellant having been cleired by the Special Committee constituted under Ordinance IX of 1969, read with M.L.R. 37, he could not be charged once again for the same matter. Therefore, the Maxim Autre fois applied with full force to this case as the appellant was being made victim of double jeopardy. Lastly, with regard to the legal objection, the appellant has drawn or attention to M. If. Sharnim v. Establishment Division, Government of Pakistan . It has been held in the above- mentioned case that it was incumbent upon the President of Pakistan, or an officer specially authorised by him to give notice to the civil servant in respect of the action being taken against him and since no notice by the President or an officer authorised specially by him the role of delegation of the powers could not be attracted in his case because no delegation of powers was available under M. L. R. 58.
4. With regard to the facts it was submitted that out of the for charges, Charge No. 1 related to his accepting illegal gratification from one Khadim Hussain of Multan District, as a motive or reward for showing favour to his father-in-law, Rana Allah Wasaya, in two cases registered against him at Police Station, Karor Pacca, whereas the charge No, 3 which was based on Charge No, I was found1 2 3 4 to be not proved by the Military Tribunal, a fact which is borne out from the record of this case.
According to the learned counsel, the appellant is now faced with only two 'charges, namely, that "in order to conceal the income supplemented by you through illegal means, you deliberately made an incorrect declaration of your assets and properties in the Statement of Assets, submitted under Ordinance (IX of 1969), you are thus charged with misconduct" and that "the remarks recorded by your superior officers in your Annual Confidential Reports reflect that you are not efficient, you are thus charged with inefficiency". In a nutshell, according to the learned counsel, the appellant is now faced with Charge No, 2 which relates to certain misstatements on behalf of the appellant in the Declaration of his Assets dated 20th January, 1951 and with the charge of inefficiency due to adverse entries in his Character Roll. It has been submitted, and vehemently argued, that the charge of misstatement was due to a clerical error which would be evident from the analysis of the same, and the charge of inefficiency would fall to the ground for the simple reason that the adverse entries so mentioned were never conveyed to the appellant while the remaining cannot be considered in any manner as adverse. The appellant was promoted to the higher post despite these adverse entries in his Character Roil, although not conveyed to him, and he was always considered an efficient person in the discharge of his duties by his superiors, at fact which is averred on the basis of later promotions. The learned counsel has addressed lengthy arguments with regard to the legal points as well as the analysis of Charges Nos. 2 and 4 to make out a case in favour of the appellant.
5. On the other hand, Malik Azam Rasool, learned counsel for the respondents, has submitted, basing his arguments on the parawise comments so filed by the Department, that the appeal is hopelessly time-barred and is liable to be dismissed on this score alone. The appellant, according to the learned counsel, can rely on section 375 of the Limitation Act only if he could show that he was misguided either by the practice of the Court or an erroneous judgment given by such Court.
The only plea advanced by the appellant is that he did not file an appeal before this Tribunal because of lack of jurisdiction of this Tribunal to decide on merits, a plea which should not be accepted as this was not a circumstance beyond his control. With regard to the legal objections of the case it was submitted that this Court has repelled such like contentions in the cm?. Of Irshad Ahmad Khan v. Government of the Punjab (Appeal No, 125/470 of 1975) vide its judgment dated 2nd June, 1981. Therefore, this plea was not available to the appellant in this case. With regard to the case of Mr. M. H. Shamim, relied upon by the learned counsel for the appellant, it was submitted that the appeal had been filed against the judgment of Federal Service Tribunal in the above- mentioned case before the Supreme Court of Pakistan, therefore the authenticity of this pronouncement stood challenged. With regard to facts it was submitted that the Tribunal was within its competence to take into consideration the adverse entries in the Character Roll of the appellant, although not communicated to him, for the purpose of assessing of his efficiency. It was further argued that the appellant was responsible for making a Declaration which was factually incorrect. However, it was accepted that the charges of accepting illegal gratification from one Khadim Hussain and of persistent reputation of being corrupt were held as not proved by the Military Tribunal.
6. We have given or anxious thought to all the contentions raised in this case and would first of all deal with the question of limitation so raised by Malik Azam Rasool. Learned counsel for the respondents. In PLD 1970 Pesh. 194, a Division Bench comprising Sardar Muhammad Iqbal and Sher Bahadur Khan, JJ, in the case of Mst. Sardar Begum v. Mst. Sherin Taja, a very important question of law was settled with regard to limitation and its impact in the matter of the rights of a person so hit by the same. We reproduce the same as follows :- "Needless to add here that the Law of Limitation is a procedural law and except for section 28 whereunder a person, by adverse possession, acquires a title in an immovable property, it does not extinguish a right, but only bars the remedy. Therefore, in a case where the remedy is barred but the right exists, the law should not be strictly interpreted against a person whose right is to be adversely affected."
We have also before us the case of Inttiaz Ahmad v. Ghulam All , in which Kaikaus, J. Observed as under "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which or own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
In the present case the appellant has a vested right to file an appeal to agitate his dismissal from service which, according to him, is not justified both on law as well as on facts. We have also looked carefully into the merits of this case on facts before addressing ourselves to this legal hurdle of limitation in his way so as to find out whether he has got a strong case in his favour to establish that he was removed from service on the grounds which were factually incorrect and of no consequence. While we will elaborate the same in the latter part of or judgment we are of the considered opinion at this stage that the appellant has got a very good case on merits and the appeal is liable to be accepted on merits alone. In view of the golden principle of law enunciated above by the learned Judges of the High Court, and keeping in view the fatual position of the case, we will not allow the technicalities to stand in his way, particularly when we also find that he did agitate the matter before the High Court initially, was respondent before the Supreme Court in that /is and accepted those decisions with grace when he found that he could not make out a case against the respondent either based on the principle of mala fide or that of coram non judice. He was resigned to his fate and did not indulge in frivolous, baseless and fruitless litigation with his employer. It was only when the avenue before him was opened after the pronouncement of the Supreme Court Judgment in M. Yameen Qureshi's case that he lost no time and came forward before us for the redress of his grievance as well as to seek remedy against the injustice inflicted upon him. We are strengthened in or belief by the latest judgment in C.P.S.L.A. No, 1350/80, a copy of which has been produced before us by the learned counsel for the appellant. In this case Mr. Hammad Raza filed an appeal before the Federal Service Tribunal alongwith the application under section 5 of the Limitation Act for the condonation of the delay. This officer has also waited for a long time to get the law settled and wanted to take advantage of the pronouncement of the Supreme Court in M. Yameen Qureshi's case which gave powers to the Tribunal to decide the case both on law as well as on facts. His plea was not accepted for the condonation of delay by the Federal Service Tribunal against which he filed a petition for the grant of special leave to appeal.
The Supreme Court agreed with the observations of the Federal Service Tribunal and refused to grant leave to appeal to the petitioner. In this way the Supreme Court of Pakistan upheld the view of the Federal Service Tribunal which we reproduce to show that it also goes in favour of the appellant and strengthen or view that the delay in the case of the present appeal is worth condonation :- "We are not at all convinced with the arguments for the short and simple reasons that assuming the appellant has a right to come to the Tribunal in the light of the Supreme Court judgment, he should have come to us within the shortest possible time from the announcement of the judgment which appeared in the Pakistan Times, dated 9th February, 1980 or at the least after the publication of the Supreme Court judgment in PLD March Issue, 1980."5 In this way the Federal Service Tribunal expressed its opinion that in case Mr. Hammad Raza had availed himself of his right within the shortest possible time after the publication of M. Yameen Qureshi's case in the PLD they would have condoned the delay in his case, but as he did not do so and waited for a considerable time to avail himself of this opportunity they refused to condone the delay. In the present case, what we find is that the appellant had filed his appeal without wasting any time as well as within the time limit so provided under the Law of Limitation before us. In view of the above discussions we are of the considered opinion that the condonation of delay in this case will be in the larger interest of justice and that refusal of the same would amount to denial of his rights, particularly when we are of the confirmed view that this case is liable to succeed on merits alone. We, therefore, proceed to accept the application of the appellant filed by him under section 5 of the Limitation Act duly accompanied by his affidavit and condone the delay which ash occurred in this case due to the circumstances discussed in the earlier part of or judgment.
7. With regard to the legal objections as to the validity of M. L. R. 58 or its compliance by the Military Tribunal, we will not burden this appeal as we have already by or detailed judgment in Irshad Alunad Khan's case (Appeal No, 125/470 of 1975) repelled these arguments and have refused to be persuaded by the judgment delivered by the Federal Service Tribunal in W. A. Sheikh's case by repeating the same arguments once again. We will also not proceed to enter the realm of other legal objections now relied upon by the learned counsel for the appellant on the strength of another judgment of the Federal Service Tribunal in M. H. Shamim's case for the reason that we are deciding this case on merits and facts alone.
8, With regard to the facts contained in Charge No, 2 we find that the appellant, as far back as the year 1951, when he was a young Officer undergoing training, filed a statement which, according to the prosecution, gave the area of land belonging to his father as 4000 Bighas whereas he did not repeat the same in his Declaration of Assets before the Special Committee set up under M.L.R. 37 and changed the earlier figure of 4000 Bighas to 400 Bighas. The prosecution has tried to take advantage of this discrepancy by emphasising that the appellant had at that time given an inflated figure while he concealed the same by reducing it to 400 Bighas only. The fallacy of the arguments of the prosecution is so obvious that it can be proved so mathematically. The appellant while showing that his father was in possession of 4000 Bighas of land in village Kotla Musa Khan also gave the income from the same as Rs, 40000 per annum. We have divided the 4000 Bighas by the figure of 50 Bighas which will convert the area into 80 squares of land as one square is equal to 50 Bighas. Similarly, we have divided the sum of Rs, 40000 by 80 and find that the income of one square according to the above-mentioned statement, which was filed by the appellant in 1951, would come to Rs, 500 per square which is neither logical nor believable. On the other hand, if we accept that it was a clerical mistake, and the area mentioned was only 400 Bighas (8 Squares only), then the income per square would be Rs, 5,000 which is both logical as well as believable. In this way we are fortified in or conclusion that the addition of one zero to the figure of 400 Bighas was nothing but a clerical mistake. Similarly, we also find no discrepancy in the Declaration of Assets given by the appellant vis-a-vis his earlier Declaration showing 174 Bighas of agricultural land and 44 Bighas of orchard area, as during the passage of time his father went on adding to his holding by 65 and 125 Bighas at two different times which by merger came to 175 Bighas so correctly declared by the appellant in the Declaration of Assets. The appellant made it amply clear that his father was alive and the agricultural land was not regularly mutated in his favour but by family arrangements (Taqseem-i-Khangi) he as well as his brother were delivered the physical possession of this landed property by their father who was a very old person and leading a retired life. This fact was fully substantiated by filing the copies of Khasra Gardawari pertaining to Kharif 1967 to Rabi 1969. The appellant has only claimed the income derived from this land since the date of his possession and not from an earlier date. Therefore, no adverse inference can be drawn against him for his claim that he was deriving income from the above-mentioned landed property of his father. It is a matter of common knowledge that such like arrangements are not uncommon in the rural society of or country when the elder in the family finds that God, the Almighty, had bestowed upon him a very long life and the sons or the issues have now grown up and are required to maintian their own families with the help of the ancestral property.
9. In view of the above facts we do not find any substance in Charge No, 2 against the appellant vis-a-vis his claim as beneficiary of his father's property due to his physical possession. The appellant has acted faithfully by giving these details, as he was required under Ordinance IX of 1969 of property, both movable and immovable, acquired in his own name or in the name of any other person or in possession or controlled whether directly or indirectly. This property, according to the Khasra Gardawari, was under the direct control of the appellant. With regard to the second part of this charge that he purchased a new car in 1966 for Rs, 17,373 and disposed of art old car for Rs, 12,500, we find that it is nowhere mentioned in the Statement of Assets that the old car was purchased by him in the year 1956 for Rs, 12,500. The footnote in his Declaration of Assets Form, reads as under collectively :- "The purchase of last car has been mentioned at S. No. 1. Regarding the purchase of 3 second hand cars previously between the year 1958 and 1966 I don't remember the names of the actual owners and the exact amount paid to them."
He has also further mentioned that the difference of these transactions was always supplemented by his father from his personal resources. We have no dispute with the proposition that the car was sold by the appellant on the same price for which he purchased earlier but we also cannot reject the explanation of the appellant that the price of the car is always in accordance with the maintenance of such vehicle and the demand of the model in the market. It would not be fair to impute any motive to this bargain, as we find that when the appellant sold this car he was not holding the charge of any District but was working as Superintendent of Police, Railways. Moreover, it is proved from the record that the car was sold to a person who was in no way connected with the appellant's official duties, neither was the appellant in a position to bestow upon such person some benefits due to his official position. As such, the charge will not hold water.
10. We will now deal with the charge No, 4, i,e, of inefficiency against the appellant on the basis of his Annual Confidential Reports. We find that the reports pertaining to the years 1950, 1955, 1956, 1957, 1958, 1960, 1961, 1964, 1965, 1966 and 1967, on which reliance was placed by the Military Tribunal, nowhere categorise the appellant as dishonest officer or a person of dubious moral integrity. Moreover, the remarks pertaining to the years 1950, 1955, 1956, 1957, 1958, 1960, 1961 and 1967 were never communicated to the appellant. Therefore, the same could not be taken into consideration against him. It was observed in the A.C.R. Relating to the year 1964 that (1)
Intelligence and mental alertness and (2) judgment and sense of proportion was good. In the adverse remarks for the year 1965, which were communicated to him through the Inspector- General of Police, it was mentioned that "While your annual confidential report for the year 1965 is otherwise good, it contains the following adverse remarks : Integrity (a) Intellectual-Average. Has reached his peak. Is inclined to Resent being pulled up." Against these adverse remarks it has been submitted that this was the outcome of personal annoyance of Mr. B.C. Allum, the then Deputy Inspector-General of Police, Rawalpindi Range, over an incident of breakdown of loud-speaker at a wayside meeting addressed by late Field Marshal Muhammad Ayub Khan. As the D.I.-G., P.
Admonished the appellant in public due to the sudden breakdown of the loudspeaker, he took exception to the same, as a senior officer like him would not be insulted in public for no fault of his.
Propriety demanded that even if at all he was at fault he should have been told by his superior in private, in his office and not before the subordinates of the appellant. We are taking these remarks at their face value and find that these are vague and not supported by specific instances, so that the person so affected be in a position to refute the same or prove the unjustification of such observations. It is also noteworthy that, despite these observations which were not communicated to the appellant, he was promoted in due course and also earlier re-instated when an enquiry was conducted against him. The Government has time and again laid emphasis on this subject by pointing out that the officers should ensure that the adverse remarks are accompanied by a citation of faults which must be communicated to the Officer concerned so that he should have a fair opportunity to speak in his defence, and in case of failure of communication, the adverse remarks would be of no effect against such a person. The stand of the appellant that these remarks, whatever their worth as on the whole, were with the Government and must have been consideerd at the time of his initial promotion in 1961 and repromotion in the year 1968, is not without lb, e, ',s we do not find any cogent reason with the authorities declaring him insentient when upto the year 1968 he was considered efficient. Nobody will be promoted to a higher post unless he is a fit person for the job. The use of the word 'inefficient' as mentioned in the Regulation is to be assessed with the following sentence : "Is inefficient or has ceased to be efficient."
These are the only two categories of inefficiency which attracted the provision of M. L. R.-58. In the case of the appellant he could not be considered inefficient by any stretch of the imagination in the year 1968 as this was the year of his repromotion. There is nothing on the record to show that after this year, and before the date he was suspended, he did anything by which he ceased to be efficient or became inefficient.0 The prosecution has failed to produce before us any data between the year 1968 to the date of his suspension in the year 1969 that we should accept the verdict of the Military Tribunal that the appellant had to be removed from the office as being either an inefficient person or had ceased to be efficient.
11. After coming to the considered decision that charges Nos. 2 and 4 are perfunctory, baseless and without any foundation, mainly based on technicalities of very flimsy nature and absolutely unwarranted, we proceed to set aside the same as being unjustified and thus being of no legal effect. The appellant has been exonerated by the Military Tribunal of the charges pertaining to corruption, and the Annual Confidential Reports of the appellant nowhere condemn him as a person of doubtful integrity, whether moral or financial. We, therefore, direct that the appellant be re-instated in service with effect from the date he was dismissed, if no action under M. L. R.-58 had been taken against him. He would be entitled to pay, allowances and other benefits consequential upon his re-instatement, including restoration of seniority and consideration for promotion, if any, available under the rules. PLD 1974 SC 151 PLD 1974 Lab. 455 PLD 1980 SC 21 1981 PLC (C. S.) 337 P D 1963 SC 382