S. ABDUL JABBAR KHAN (CHAIRMAN).-The appellant Shabihur Raza, has filed an appeal against his retirement from service under section 12(11) of the Punjab Civil Servants Act, 1974 vide order dated 29th February. 1980, passed by S. P., Crime Branch, Lahore. By virtue of this appeal the appellant has prayed that the impugned order be set aside and the appellant re-instated in service with effect from 1st March, 1980 with full benefits along with the costs of the appeal.
2. Brief facts of the case are that the appellant was retired under section 12 ii) of the Civil Servants Act by an order of the D.I.-G. Crime Branch, dated 2nd July, 1979. Aggrieved by this appellant made a representation before the I.-G., Police who vide his order dated 23rd February, 1980 re-instated the appellant as it was found that the D.I.-G. Was not the competent authority to retire him.
However, his retirement has now been effected by a fresh order of the competent authority. i,e, Mr. Ghulam Rasul Qureshi, S.P., Crime Branch.
3. We have heard the learned counsel for the appellant as well as the counsel of the respondents assisted by the Departmental Representative and have perused the record of this case carefully with their assistance. The main argument led in this case by the learned counsel for the appellant is of malice which, according to him, the D.S.P. Ch. Muhammad Yaqub, immediate boss of the appellant, harboured against the appellant. It was submitted that this D.S.P. Was responsible for the appellants' misfortunes which first of all appeared on the scene in the form of adverse entries against him, then reversion from the post of Sub-Inspector to A.S.!. And ultimately culminated into his retirement under section 12(ii) of the Civil Servants Act. To substantiate his contentions the learned counsel has relied on the report of P.I. Latif Akmal of the Crime Branch as well as on the order of the Additional 1.-G., Police by which order he was re-instated to the rank of S.I. Once again.
We have in or judgment in Appeal No, 284/247 of 1973 accepted this plea of malice against the D.S.P. Pertaining to the adverse entries for the year 1976 and have expunged the same. In that judgment we have referred to the observations made by P. 1 Latif Akmal and the Additional I.-G.
Police which we need not reiterate in this case. However, to accept the plea of malice we will examine the record before us and will dwell upon the same later in this judgment. At this stage we will dispose of the objection taken up by the learned counsel for the respondents that in view of the Provisional Constitution Order, 1981, all appeals pertaining to retirement of civil servants under section 12(ii) automatically abate and stand dismissed. He has also vehemently contended that if it is held by this Tribunal in a case that the period of 25 years qualifying for pension and other benefits is not complete and that retirement by competent authority is sine qua non of the P.C.O., 1981, even then the plea of malice cannot be entertained as the same stands ousted by the words "on any ground whatsoever".
4. Before coming to the point of malice we have no doubt in or mind that the wording of the P.C.O., 1981 is absolutely clear and lays down two conditions before the ouster of jurisdiction of this Tribunal, the High Court or the Supreme Court eau come into play. Those conditions are that -
(a) a civil servant can only be retired if he has completed twenty-five years of service qualifying for pension and other benefits ; and
(b) the authority retiring him should be 'competent authority.'
With regard to malice we accept that there is no mention of the same in the P.C.O. Of 1981 and that the wording used is "for any ground whatsoever". To examine this point we have gone minutely into the earlier ouster clauses which came from time to time and find that the words "on any ground whatsoever" form the integral part of the ouster clause. For the purpose of reference we reproduce the relevant extracts from the said provisions of law Article No, 269 of Constitution, 1973 : "269. Validation of Laws, Acts, etc..-(1) ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ......
(2) All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or 011C, On purported to have been made, taken or done, between the twentieth day of December, one thousand nine hundred and seventy-one. And the twentieth day of April, one thousand nine hundred and seventy-two (both days inclusive), in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of 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.
(3) ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ......
(4) No action taken, order passed, thing done or power exercised under this Regulation 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."
However, we find that the Supreme Court while dwelling on theissue relating to borrowing clauses as contained in a large number of Statutes, despite this phraseology held that these clauses do not give any legal cover to the mala fide orders. In Re : Saeed Ahmad Khan and others v. Government of the Punjab , at p. 156 their Lordships of the Supreme Court gave their verdict with regard to mala fide as under :- 1"mila fides' literally means 'in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom thc action is taken or to benefit oneself. Action taken in colourable1 exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or actions taken in fraud of the law are also mala fides."
Similarly it would be necessary to reproduce the observations of their Lordships of the Supreme Court in Abdul Rauf and others v. Abdul Hamid Khan and others : "The decision of the question whether the civil Court had jurisdiction in the present case would depend on whether the impugned orders and proceedings were without jurisdiction. There is in this case an attack on the proceeding on the ground of mala fide too. A mala fide act is by its nature an act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a main fide exercise of power. A "Iola fide order is a fraud on the Statute. It may be explained that a mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes."
5. It will be useful to mention here that when the above observations of their Lordships of the Supreme Court were made in PLD 1974 S C151 and PLD 1965 SC 671, the ouster clause 'on any ground whatsoever' was always there. To make it more effective to discuss the present issue on any ground whatsoever', the following observations of their Lordships would make the matter conclusive : "The learned counsel appearing on behalf of the Governments in these appeals have, however, relied to the further amendments introduced by Article 269 in support of their contention that the cumulative effect of the amendments brought in by President's Order No, 3 of 1973 and the Permanent Constitution had removed all defects, if any, in the legislative phraseology employed to manifest the intention of the Constitution-makers that actions under the Martial Law Regulations promulgated either under the second Martial Law regime or the third Martial Law regime, shall not be called in question in any Court on any ground whatsoever, even though such action may be coram non judice or tainted by maia fide But this contention has been repelled by holding that : "The addition of the words 'on any ground whatsoever' by Article 269 of the permanent Constitution does not also, in or opinion. Make any material difference."
And thus their Lordships reached the following conclusion :- "The result, therefore, to which we have arrived as a result of the interpretation of the provisions of Article 281 of the Interim Constitution as amended by President's Order No, 3 of 1973 and Articles 269 and 270 of thc permanent Constitution, is that we are still unable to agree, upon the accepted principles of 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 clauses now incorporated in these provisions."
6. In view of these authoritative pronouncements of the Highest Court, we are fortified to hold that no Government can allow to perpetuate dishonest decisions or be party to fraud played against the Statute. We are further strengthened in or view when we look into Article 12(11) of the P.C.O., 1981 which had allowed a review to the competent authority against retirement under section 12(ii) of the Civil Servants Act. It would be a mockery of justice if we hold that the authority against whom the act of malice is being attributed would be asked by the Legislature to sit in review and be. a Judge of his own cause. We have thus reasons to hold that this sphere of malice would be looked into by an independent authority, i,e,, the Tribunal, High Court and the Supreme Court who will be in a position to judge whether the act is without jurisdiction o A the result of ulterior motive and for extraneous consideration. We, therefore, hold that Article 13 of the P.C.O., 1981 would be no bar to look into the following matters :- (1)Completion of 25 years service qualifying for pension and other benefits.
(2)That the order is by the competent authority.2 (3)That the order is bona fide and without any malice.
7. While dealing with the contentions of the appellant that the impugned order is malicious, it is for him to show that the person responsible for taking the action has been motivated by any animus or bias against him. The mere allegation that action has been taken wrongly is not sufficient to establish the case of mala fide, nor can a case of mala fide be established by searching the same in the file for the benefit of the person who makes such allegation. The allegation should be concretes and should directly connect the authority who has passed such order with such allegation in an unequivocal manner. It could be preposterous to hold that some one else in the Department lower in rank was in a position superior to act in an unjust manner to the to direct his detriment of the said contender. In Chairman East Pakistan, Rail way Board v. Abdul Majid Sardar it was held : "Acts performed and orders made by the public authorities deserve due regard by Courts and every possible explanation for their validity should be explained and the whole field of power in pursuance to which the public authorities act and perform their functions examined and only then, if it is found that act done, order made or proceeding undertaken is without lawful authority, should the Court decline them to be of no legal effect."
This principle was reiterated in PLD 1971 SC 811 at page 837.
8. In view of the above we have first to see whether the appellant in this case has brought any tangible as well as substantive evidence against the competent authority to make us believe that.
Mr. Ghulam Rasul Qureshi was acting under the guidance of Ch. Muhammad Yaqoob.
9. Undoubtedly in the case of the appellant the D. S. P. Ch. Muhammad Yaqub has been proved inimical towards him after the year 1975, yet there is nothing on the record to show that the competent authority (Mr. Ghulam Rasul Qureshi, S.P., Crime Branch) passed the impugned order either due to malice against the appellant or under the direct influence of the D. S. P. Ch. Muhammad Yaqab or any other erstwhile enemies of the appellant. We have carefully looked into the documents and have also attended with patience to the lengthy arguments advanced on this subject by the learned counsel for appellant but failed to detect any evidence or proof which could convince us that Mr. Ghulam Rasul Qureshi did not retire the appellant subjectively or was under the influence of the D. S. P. Ch. Muhammad Yaqub. It would be useful to mention here that this Ch. Muhammad Yaqub was also charged for corruption in the enquiry report of Latif Akmal, P.I., Crime Branch. Thus a person with this record could hardly be in a position to make out c the appellant as a scoundrel and himself as a saint. They both were sailing in the same boat and thus have sunk together, as they are no more in service to continue their war against each other in the Department.
10. The result is that we do not find any justification to interfere in the impugned order of retirement under section 12(ii) of the Civil Servants Act and dismiss the appeal as being without any force.
However, there will be no order as to costs. PLD 1974 SC 151 PLD 1965 SC 671 PLD 1966 SC 725 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.