IBAD-UR-REHMAN LODHI J.---The petitioner is aggrieved of an order dated 05.08.2015, passed by the Government of Pakistan in Ministry of Defence, whereby, a decision of the competent authority has been conveyed to the petitioner that the approval for the dismissal from service of the petitioner, was granted under Section 16 of the Pakistan Army Act, 1952 (hereinafter to be referred as 'the Act').
2. The relevant facts of the case, in brief, are that the petitioner had been performing his duties as Major General in Pakistan Army under Personal No,PA-13080, and by means of an Order No,15/2008, issued by the CORO, GHQ, dated 28.02.2008, the petitioner was allowed to proceed on LPR for a period of twelve months, to be started from 27.02.2008 and his date of retirement/relinquishment of appointment was given in the said order as 27.02.2009', and the petitioner was held entitled to special additional pension along with other benefits, to be effective from 27.02.2009 for life. The authority for such order was given as under:- "Auth: GHQ MS Branch ltr No,0313/13080/MS-IB dated 05 Jan. 2008.
' Auth: PP&A Dte GHO ltr No, 4630/901/PPA-1 dated 30 Jan 2004"
3. The petitioner had been enjoying his such status of a Retired Army Officer, when vide letter No,4821/2582/12616/PS-1(A)/2, dated -13.09.2011, issued by the Adjutant General's Branch Personnel Services Directorate, Rawalpindi, the petitioner was required to report to the Headquarters 10-Corps on 19.09.2011, for disposal of the case pertaining to alleged irregularities in National Logistic Cell
(NLC) affairs. It would be relevant to mention here that in the said letter, the petitioner was addressed as Retired Major General of Pakistan Army.
' In compliance of said letter, the petitioner reported to the concerned Corps Headquarters, where subsequently neither he was issued any show cause notice nor charge sheeted or tried, but without any such formal proceedings, the impugned order was conveyed vide letter dated 05.08.2015, which has been called in question by the petitioner by filing present Constitutional petition before this Court.
4. The respondents were directed to furnish para wise comments in this petition, which, after a great hesitation, were filed on 24.11.2015, but respondents still avoided to comment upon the merits of the case and instead confined themselves to address only legal aspects of the matter and reserved the right to make submissions, as deemed appropriate to the respondents at the time of hearing. This avoidance to furnish any comments on merits of the case is taken by the Court as an attempt on the part of the respondents to avoid any admission or to provide any catch point.
5. The learned counsel for the petitioner and the learned Additional Attorney-General for Pakistan, who was having assistance of learned Standing Counsel and also representative from JAG Branch, were heard, in detail.
6. The petitioner, who stood retired from Pakistan Army w.e.f, 27.02.2009, was recalled under Section 92 of the Act, which reads as under:- "92. Liability of offender who ceases to be subject to the Act. -
(1) Where an offence has been committed by any person while subject to this Act, and he has ceased to be so subject, he may be taken into and kept in military custody and tried and punished for such offence as if he had continued to be so subject.
(2) No such person shall be tried for an offence, unless his trial commences within six months after he had ceased to be subject to this Act: ' Provided that nothing contained in this subsection shall apply to the trial of any such person for an offence of desertion, fraudulent enrolment, or for any of the offences mentioned in section 31 [or section 40] or shall affect the jurisdiction of a criminal court to try any offence triable by such court as well as by a court martial".
7. The basic point for determination is as to what authority would be available with the respondents, when an already Retired Army Officer is recalled under Section 92 of the Act. The case, in hand, will be examined in light of the following provisions of Army Laws, which are reproduced herein-below for ready reference:- "Section 2(2) of the Act.
"Every person subject to this Act under clause (a) or clause (b) [or clause (e) of subsection (I) shall remain so subject until duly retired, released, discharged, removed or dismissed from the service"
Section 16 of the Act.
"Dismissal or removal by Federal Government.- The [Federal Government] may dismiss or remove from the service any person subject to this Act".
' Section 40 of the Act.
"Fraudulent offence in respect of property.- Any person subject to this Act who commits any of the following offences, that is to say,-
(a) dishonestly misappropriates or commits theft of, or criminal breach of trust in respect of any property belonging to the Government or any service property or the property of any person subject to this Act, H ' [or the Pakistan Air Force Act, 1953 (VI of 1953),] or to the [Pakistan Navy Ordinance, 1961 (XXXV of 1961), or of any person serving with or attached to any of the armed forces of Pakistan; or
(b) dishonestly receives or retains any stolen property of the nature specified in clause (a), knowing or having reason to believe the same to be stolen; or
(c) is guilty of any other act or omission with intent to defraud, or to cause wrongful gain or wrongful loss to any person, shall on conviction by court martial, be punished with rigorous imprisonment for a term which may extend to five years, or with such less punishment as is in this Act mentioned".
' Section 60 of the Act.
' Punishments.-Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by courts martial according to the scale following, that is to say,- .(a) ------------------------------------------- (aaa)
(b)
(c)
(cc)
(d) dismissal from the service.
(e)
(8) --------------------------------------
(h) -----------------------------
(i) -----------------------------
(k) ------------------------------------- 'Rule 269-A of The Army Regulations (Rules), 1998: - "Dismissal, Removal, Premature or Voluntary Retirement/ Resignation of Officers for Misconduct etc. Procedure. The following procedure will be observed to deal with cases in which it is not practicable or desirable to convene a court martial for the trial of an officer against whom misconduct or inefficiency etc; is imputed and his retention in service is not considered to be in the interests of the Army:- a. The Chief of Army Staff may order a Court of Inquiry to investigate the matter and submit its findings together with his recommendations to the Government, for decision, or b. The Chief of Army Staff may call upon an officer to show cause why action should not be taken against him for his dismissal, removal or premature retirement from the service under the PAA Rules and submit the officer's explanation together with his recommendations to the Government for decision; or c.
When it is not expedient either to hold a court of Inquiry or call for the officer 's explanation, the Chief of Army Staff may submit a report giving all the circumstances of the case and evidence, if any available, together with his recommendations for the decision of the Government".
'Rule 269-C of the Rules, 1998.
"If it is necessary to remove an officer immediately from his appointment pending decision on his case, he may be.-- a. Suspended from duty; or b. Sent on leave, under orders of the Chief of Army Staff according to leave at his credit. "
8. The requirements of Section 92 of the Act, under which the petitioner was recalled are that, if, a person, who has ceased to be subject to Army Act, has committed some offence, he may be taken into and kept in military custody and tried and punished for such offence, as if he had continued to be so subject. As such, when the petitioner was recalled with particular reference of Section 92 of the Act, there was no other option with the respondents, except to try him and punish him for such offence, allegedly committed by the petitioner. Such mode was not adopted.
' There is an exception however to such requirement of trial. Rule 269-A of The Army Regulations (Rules), 1998, provides a procedure to be observed to deal with the cases in which it is not practicable or -desirable to convene a court martial for the trial of an officer against whom misconduct or inefficiency is imputed and his retention in service is not considered to be in the interest of the Army and in such case, an order of Chief of Army Staff to convene a Court of Inquiry to investigate the matter and submit its findings together with the recommendations to the Government, for decision, is required or in alternate, the Chief of Army Staff may call upon the officer to show cause why action should not be taken against him for his dismissal, removal or premature retirement from the service under the Pakistan Army Act, 1952, and submit the officer's explanation together with his recommendations to the Government for decicion or when it is not expedient either to hold a Court of Inquiry or call for the officer's explanation, the Chief of Army Staff may submit a report giving all the circumstances of the case and evidence together with his recommendations for the decision of the Government.
'Nothing of the sort happened in the case, in hand.
9. During hearing, time and time again, the learned Additional Attorney-General, was asked to show any order passed by the Chief of Army Staff regarding constitution of Court of Inquiry or to issue a show cause notice to the petitioner, but, firstly; the respondents failed to answer satisfactorily to such query, however, on insistence, the representative from JAG Branch produced original record, which, too, did not contain any order passed by the Chief of Army Staff, which is the designated authority in the Act under the referred Rules but only the letters signed by the Adjutant General of Pakistan Army, have been referred in this regard. Ultimately, the learned Additional Attorney-General has admitted that the relevant file does not contain any order, passed by the Chief of Army Staff in this regard, as such, the respondents have failed to demonstrate as to whether at any point of proceedings, subsequent to recalling the petitions under Section 92 of the Act, the Chief of Army Staff by exercising his jurisdiction as provided under Rule 269-A, passed any order.
' Even otherwise, plain language of Rule 269-A read with Rule 269-C of The Army Regulations (Rules), 1998, do suggest that the proceedings can be ordered against an officer, who was, at the relevant time, in active service of Pakistan Army. The said Rules do not empower any authority to proceed against an already retired officer.
10. The learned Additional Attorney-General, with vehemence, has argued that, when once the petitioner was recalled under Section 92 of the Act, he immediately attained the status of a person, subject to Army Act and, therefore, the respondents were competent to deal with him as if he was a person subject to Army Act.
' When Section 92 of the Act is to be read with the provisions of Section 2(2) of the Act and all other enabling provisions of Army Laws, it would become clear that, if an already retired officer from Army is recalled under Section 92 of the Act, he would be made subject to Army Act, but only for limited purposes i.e, to be dealt with in accordance with the situations provided in the said provision of law, which included taking into and keeping in military custody, trial and punishment and nothing else.
11. The dismissal from service is nowhere provided as an impediment to be imposed upon a retired army personnel recalled under Section 92 of the Act. Even punishment of dismissal from service as provided in Section 60(d) of the Act, may be inflicted in respect of offences committed by the persons subject to the Act and convicted by the courts martial, whereas, the dismissal from service has been imposed as against the petitioner without adopting the measures provided in such provision of the Pakistan Army Act, 1952. The petitioner was never charge sheeted for any alleged offence, committed by him and naturally, E he was never tried by any court martial and no conviction has ever been passed as against the petitioner.
' The respondents further have failed to show any enabling provision of the relevant law, where a "retirement" can be converted into It "dismissal from service". In the case, in hand, the retirement order, which was effective w.e.f, 27.02.2009, has already been acted upon and further the same has never been recalled, modified, cancelled, rescinded or replaced and in absence of any enabling provision making competent the respondent authorities to convert the retirement of Army Officer into a dismissal, the subsequent dismissal order would not stand as having some legal status.
12. By concluding his arguments, the learned Additional Attorney-General has suggested as an alternate prayer to refer back the matter to the respondent authorities for reconsideration of the issue, in question. This, itself, speaks the weakness of the respondents' case, which they have realized and now they are seeking reconsideration of the matter with a possible planning in their mind to proceed again against the petitioner, now by leaving no lapses in the proceedings.
13. As observed herein-above, that the law on the subject, does not provide a situation, where a Retired Army Officer, can be dismissed from service, after a gap of almost six years and that, too, without adopting any required process.
14. The learned Law Officer has objected to the maintainability of this Constitutional petition on the touchstone of Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973.
'In this regard, suffice it to refer a judgment of the Hon'ble Supreme Court of Pakistan reported as District Bar Association Rawalpindi and others v. Federation of Pakistan and others (PLD 2015 SC 401), wherein by referring a chain of judgments already pronounced by the apex Court, it was concluded that the bar of jurisdiction contained in Article 199(3) of the Constitution is not absolute and the Court always has the jurisdiction to examine whether the order challenged suffers from mala fide, including malice in law or is without jurisdiction or is coram non judice. Earlier in the case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61), the apex Court concluded as follows:- "In view of the above, there can be no manner of doubt that it is a settled law that any Order passed or sentence awarded by a Court Martial or other Forums under the Pakistan Army Act, 1952, included as amended by the Pakistan Army (Amendment) Act, 2015, is subject to the Judicial Review both by the High Courts and this Court, inter alia, on the ground of coram non judice, without jurisdiction or suffering from mala fides including malice in law. This would also hold true for any. Decision selecting or transferring a case for trial before a Court Martial ".
Therefore, in light of above discussion, when malice in law on the basis II of the acts performed by the respondents is proved, it is also the conclusion of the Court that the impugned order is result of a jurisdiction, which was never vested in the respondents and, thus, impugned order/action is also a coram non judice.
15. On account of what has been discussed above, the impugned order of dismissal of petitioner from service is not sustainable in law. The same is set-aside by accepting this petition.