' BRIG. (RETD.) ABDUR RASHID (MEMBER).-Mr. Siddique Suleman, the appellant then Deputy Inspector-General of Police, Malakand Range, consequent upon the disciplinary action taken against him, was retired from service under rule 3 of the Government Servants (Efficiency and Discipline) Rules 1973, vide Notification No, 4/Police/Est., dated 30th of October, 1976. The order is at Annexure 'G' of the file.
2. The appellant joined the Police Service of Pakistan on 11th December, 1956. After completing his training at the Police Training College, Sarbrah (then East Pakistan) and Rawalpindi, he was posted as Assistant Superintendent of Police Headquarters, Sargodha, in January, 1959.
3. He was promoted in the then senior scale in February, 1962, He held various appointments as.
Superintendent of Police in district including that of Assistant Inspector-General, Traffic, for over a year (1970-71).
4. In April, 1972, he was promoted to the rank of Deputy Inspector General, of Police and served as Deputy Inspector-General-Multan and Lahore Ranges from April, 1972 to August, 1974 whereafter he was transferred as a Director of Federal Investigation Agency (FIA) and remained so posted till April, 1975.
5. In April, 1975 a new post of Inspector-General of Police, Northern Areas, was created to which the appellant was posted as first Inspector-General.
6. Vide Notification No, 10/18/1976-Police, dated 17th April, 1976 the services of the appellant were placed at the disposal of the Punjab Government and he was appointed as Deputy Inspector- General of Police Lahore Range, where he assumed charge on 21st April, 1976. However, on 26th April, 1976 the appellant was ordered, at the behest of the Establishment Division, to proceed to Gilgit immediately and "remain there till such time the Prime Minister's tour of Gilgit has ended". On 6th May, 1976, the Establishment Division issued a telegram, saying that in view of forthcoming visit of the Prime Minister to Northern Areas, services of Siddique Suleman were required there during and after the said visit. The earlier orders of placing his services at the disposal of the Punjab Government stood cancelled and he was ordered not to proceed to Lahore without further instructions from the Establishment Division.
7. Vide Establishment Division's Gazette Notification of 1st June, 1976 the services of the appellant were placed at the disposal of the Government of N.-W. F. P. And he took over charge as Deputy Inspector-General (Headquarters) Peshawar. From there, he was transferred in July, 1976 and posted as Deputy Inspector-General Malakand Range, from where he was retired, vide Gazette Notification dated 30th October, 1976 already mentioned at para. I.
8. The Show-Cause Notice No, 4/Police Estt. Dated 16th October, 1976 issued under the signature of the then Establishment Secretary, Mr. Vaqar Ahmad, is at Annexure 'H' of the file. The two charges levelled against the appellant were :-
(i) took bribe through traffic staff while posted as A.I.-G. Traffic and later D.
1.-G., Lahore Range :
(ii) have a reputation of being drunkard and a womaniser.
9. The aforesaid two charges are so vague or ambiguous that these could be levelled against anybody. The very nature of their vagueness and ambiguity, therefore, warranted a thorough enquiry to establish the said charges. The Authorised Officer, viz., Secretary Establishment 1 Division, however, thought otherwise and by invoking rule 5(1) (iii) of Government Servants (Efficiency and Discipline) Rules, 1973, appears to have decided that it was not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee. While exercising this discretion, he appears to have acted arbitrarily and does not seem to have gone into the nature of the allegations against the appellant. In this connection, a relevant extracts para. 4 of Office Memorandum No, 6/8/79-D.I_ dated 10th July, 1979. Pages 266-67 of ESTACODE 1979 would he in order :- "The requirement of reasonable opportunity of showing cause against proposed action will only be satisfied if particulars of the charge or charges, substance of evidence in support of the charges and specific punishment which would be called for after the charge or charges are established are communicated to the civil servant, who is given reasonable time and opportunity to show cause."
10. The appellant was given seven days within which to reply to the two charges. However, by no stretch of imagination can this be construed to be a reasonable opportunity of showing cause because of the vagueness of the charges and because of the fact that no specific evidence had been made available to the appellant to rebut because none had been collected ; The following laconic reply, vide letter No, HQ/VC/13198, dated 10th June, 1977 of a Deputy Director of F. I. A. (Agha Muhammad Hadi) typifies the slipshod and brusque manner in which this case involving the reputation and honour of a senior Police Officer was handled :-- "Mr. Abdul Aziz, ' Joint Secretary, ' Establishment Division, Government of Pakistan, ' Rawalpindi ' Subject :-Officers retired compulsory in October, 1976. Sir, ' Kindly refer to D.
0. Letter No, 12/1/76-Rev., dated the 19th May, 1977, from Cabinet Secretary to the Director-General. F, I. A on the above subject.
' The case of Mr. Siddique Suleman, Ex-DIG was looked into .Urther in the light of his explanation as desired. The allegations of corruption, drinking and womanizing against the Ex.-Officer have been found correct without any iota of doubt. We have also identified some of those Police Officers who had been making payments to him and providing him wine and women. Similarly, we also know the names of some women who were supplied to him, but neither the Police Officers nor the women concerned are likely to support the charges foil obvious reasons.
3. Reports in respect of remaining Officers will follow shortly.
(Sd/-)
' AGHA MUHAMMAD HADI Deputy Director/Crime for Director-General, F. I. A., ' Islamabad PI
11. It does not go to the credit of F. I. A. When Agha Muhammad Hadi insisted by way of private opinion that the allegations against the B appellant have been found correct "without any iota of doubt", while at the same time, ludicrously, expresses inability to produce any evidence.
12. In Roberts v. Hopwood (1925) quoted at page 146 of Maxwell on the Interpretation of Statutes, it says : " A discretion", said Lord Wren burry, "does not empower a man to do what he likes merely because he is minded to do so-he must in the exercise of his discretion do not what he likes, but what he ought. In other words, be must by use of his reason, ascertained and follow the course which reason directs. He must act reasonably".
' At page 148 of Maxwell, it says- "... When" said Lord Halsbury, "it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice and not according to private opinion, according to law and not humour. It is to be not arbitrary, vague and fanciful but legal and regular. And it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself."
13. It is obvious that neither the Authorised Officer, viz. The then Secretary, Establishment Division, nor the F.I.A. Acted reasonably or in accordance with law.
14. The appellant's reply No, 1 Con-PF-MKD, dated 22nd October, 1976 to the Show-Cause Notice is at Annexure 'J' of the file. The appellant denied the charges and, inter alia, said in his two-page reply : "Sir, there is no material for styling me as corrupt or guilty of misconduct within the meaning of Efficiency and Discipline Rules, 1973."
15. The appellant stood retired on 30th October, 1976. On 7th June 1977, Mr. Afzal Khan, the then Minister for Water and Power, recommended to the Prime Minister to reinstate the appellant. The then Prime Minister asked for the comments of the then Establishment Secretary.
16. The then Prime Minister appended the following note in his own these comments are reproduced below :- "One Mr. Siddique Suleman, a former Deputy Inspector-General of Police, was compulsorily retired from service alongwith a number of other officers of the Central and Provincial Governments as part of the general screening process undertaken in October, 1976. The Minister for Water and Power, Mir Afzal Khan, has recommended reconsideration of this case on the ground that Mr. Siddique Suleman was a good officer and the Minister can vouch for his integrity and discipline.
The Prime Minister has been pleased to ask for comments.
2. The charges against Mr. Siddique Suleman as reported by the Federal Investigation Agency were :-
(i) took bribe through traffic staff while posted as A. I.-G Traffic and later D. I.-G., Lahore Range,
(ii) had a reputation of being a drunkard and womaniser.
' A show-cause notice was issued to him on 16th October, 1976. He denied both the above charges but in view of F. I. A., report, he was retired on 30th October, 1976. The representation submitted by him was referred by us to Federal Investigation Agency for a second check. They have reported that the case against Mr. Siddique Suleman has been looked into further. According to F. I. A. The allegations of corruption, drinking and womanising against the retired officer have been found correct and are without an iota of doubt. F. I. A. Have also stated that have identified some of the Police Officers who had been making payments to him and providing him with wine and women. F.
I. A. Know the names of some of the women who were supplied to him but in a formal inquiry neither the police officers nor the women concerned are likely to support the charges for obvious reasons.
3. In view of F. I. A.'s report, Mr. Siddique Suleman has been correctly retired and there is no justification for his re-instatement.
4. Submitted for orders.
' Sd/- ' Vaqar Ahmed, Secretary"
' Secretary to the Prime Minister.
16. The then Secretary to the then Prime Minister remarked as under on the above note and sent it up :- "5. It appears that the officer was retired on inadequate grounds. The charges against him were not substantiated. They have not been substantiated now.
6. In the letter Mir. Afzal Khan has given his views about the officer. The case is submitted for orders.
' Sd/- ' Secretary to the Prime Minister..." ' hand marked it to Mir Afzal Khan :- ' "He does drink very heavily. I saw him very tight in the company of Air Marshal Rahim Khan and General Gul Hassan in the Intercontinental Hotel, Rawalpindi in April 1971.
' However, he can be reinstated as a special case, because I believe my Minister from Mardan. You may ask him personally and tell him that I am doing it as an exceptional case.
(Sd/-) Z. A. BHUTTO Prime Minister, 21/6 ' Mir Afzal Khan ' Establishment Secretary.
18. Mir Afzal Khan on 3rd July, 1977 spoke to the appellant and marked the case to the Establishment Secretary. The appellant stood re-instated. The only formality, now, was to issue a gazette notification. But before that could happen, there was a change of Government on 6th July, 1977, and Martial Law promulgated in the country.
19. The case of the appellant was dealt with further from where the former Prime Minister's order of re-instatement had left it and the summary was put up to the Chief Martial Law Administrator by the Establishment Secretary (Mr. K. Mahmood), which was the repetition of the previous one, submitted to the then Prime Minister, except the following additions (observations made by the then Prime Minister) : "He does drink very heavily. I saw him very tight in the company of Air Marshal Rahim and General Gul Hassan in the Intercontinental Hotel, Rawalpindi in April, 1971. However, be can be reinstated as a special case because I believe my Minister from Mardan. You may call him personally and tell him that I am doing it as an exceptional case."
20. The summary was marked to the Secretary General-in-Chief (Mr. Ghulam Ishaque Khan), who minute on 25th July, 1977 :- "6. In view of what is stated by the F.I.A and F.I.A has looked into the case of this officer twice.
Reinstatement would not appear justified."
21. The then Chief of Staff, Lt-Gen. F. A. Chishtiminuted :- "7. The C.M.L.A. Has not approved the re-instatement."
22. Here, certain points of law are involved. First whether it was at all necessary for the case to be put up to the Chief Martial Law Administrator when the then Prime Minister had already reinstated the appellant and the only requirement was that of a gazette notification. Since, however, despite the existence of the Prime Minister's orders as to re-instatement of the appellant, the case was put up to the President/ C.M.L.A. It may have been considered necessary to do so. However, the case of Muhammad Abbas Khan v. Establishment Division in the High Court Karachi Petition No, D-24 of 1979 has a remarkable similarity with that of the appellant (Mr. Siddique Suleman), Mohammad Abbas Khan an Engineer Officer of Telagraph and Telephone Department was served a show- cause notice dated 19th October, 1976, containing the charges ;-
(1) had reputation of being corrupt ;
(2) had been taking bribes for arranging out of turn telephones;
(3) was mixed up with women of ill repute.
23. Muhammad Abbas Khan's case was put up before the then Prime Minister with the recommendation of the Minister for Communications for re-instatement. The then Prime Minister ordered re-instatement on 3rd July, 1977 but the petitioner did not come to know of this re- instatement as no gazette notification could be issued before 5th July, 1977. In due course, the petitioner's case came up for review under MLO 23, but his petition was rejected. The petitioner, therefore, submitted a Mercy Petition to the C.M.L.A. On 17th August, 1978. The petitioner was informed that his case already stood decided by the competent authority under M L 0 23. However, once the petitioner came to know that the then Prime Minister had ordered his re-instatement he (then serving at Karachi) brought his case to the Sind High Court under Article 169 of the Constitution (since ousted as a result of the Provisional Constitution Order, 1981).
24. The learned Judges (S. Nusrat and Abdul Hafeez Memon) among other things, held that because the former Minister's order had not been recalled and had thus remained intact calling for its implementation : We are of the view that the petitioner stood reinstated by virtue of the order of former Prime Minister dated 3rd July, 1977 and it is, therefore, directed that the first respondent should implement the said order forthwith by reinstating the petitioner to the same post from which he was retired with all standing benefits and consequences arising therefor."
25. Second, it does not appear legally correct and justifiable for the Secretary General-in-Chief to recommend "re-instatement would not appear justified" when he was neither the Authorised Officer nor the Authority. It would seem that it was the recommendation of the Secretary Generalin- Chief which appeared to have worked against the appellant and ultimately brought about the COS's remarks " the C.M.L.A. Has no approved the re-instatement". Third, the order the C.M.L.A. Has not approved the re-instatement" was made by the COS. In other words this order by someone who was not competent even though it was made on behalf of the competent authority viz., the President and C.M.L.A, (Law does not recognise an order which is not made by the competent authority himself). The order of the COS (Lt. Gen. F. A. Chislity): "the CMLA has not approved the re- instatement" will, therefore, have to be vacated and same will apply to the order of the COS (Lt. Gen. K. M. Arif) at para 34. The President shall, therefore, be deemed never to have rejected the case of the appellant. Fourth, when the case summary was put up to the President and C.M.L.A. On 23rd July, 1977 and subsequently, no evidence was appended to indicate that the charges against the appellant stood sub satiated. Reliance was placed merely on what the F.I.A. Had said and it is on record that F.I.A had simply failed to produce any evidence whatever on the basis of which the appellant could or should have been punished. Serious victimization has, therefore, been the natural consequence for which the F.I.A. And the Establishment Division are responsible for neither the one nor the other collected any evidence and yet they, have Succeeded to this day in thwarting the re-instatement of the appellant, since the then Prime Minister's order of reinstatement dated 21st June,' 1977 which was never recalled directly or indirectly and, thus, remained. ' in force as cited from the case of Muhammad Abbas Khan v. Establishment Division.
26. On 27th June, 1978, the President and C.M.L.A. Appended the following note in respect of re- instatement of the appellant and marked it to it. General F. A. Chishty "From what I have heard about this man, he should have been reinstated. What went against him ?
Can I see his file ?"
27. The then Establishment Secretary put up the Summary for the C.M.L.A. The President and C.M.L.A was pleased to make the following orders on the summary ; "15. Please review his case again. I am given to understand that he was and is an honest man. His drinking habits may be checked again through reliable agency."
28. The then Establishment Secretary (N. H. Jafary) entrusted the task to Director, Intelligence Bureau. However, Director, Intelligence Bureau subsequently convinced the Establishment Secretary that D.I.B was not equipped for this type of inquiry. Once again the task was made over the F.I.A. The agency which had already given adverse though unsubstantiated, report in respect of the appellant and could hardly be expected to revise their subsequent report and this is precisely what happened.
29. The Establishment Secretary put up another summary for the President and C.M.L.A on 14th October 1978. The COS to the President (Lt. Gen. K. M. Arif) remarked on the above summary on 20th October, 1978 :- "37. Please elucidate "other acts of immorality."
30. To seek elucidation, the file was marked by the Establishment Secretary to the Acting Director- General, F.I.A. Mr. Obaidur Rehman, whose note is reproduced below :- "39. Returned.
40. From the enquiries held by F.I.A. It was established that Mr. Siddique Suleman, retired D.I.G. Of Police indulged in heavy drinking and womanizing. Other acts of 'immorality' obviously indicate his propensity to indulge in womanising.
41. Being a confirmed bachelor, Mr. Siddique Suleman could not resist the temptation of falling in the company of women of ill-repute.
31. The COS to the President suggested no further action. However, the President appended the following note :-
42. I have also heard some good comments about this officer. I would like to see D.I.B, D.G, F.I.A. And then this officer before I give my final decision."
32. Again, the Tribunal is constrained to point out, no evidence in culpating the appellant was put up to the President and the "private opinion" of the D.G, F.I.A. At para, 30 was given credence against all cannons of justice and fair play.
33. Also, because the President was said to have rejected the re-instatement of the appellant the Review Board, too, rejected his appeal as mentioned by the Establishment Secretary in his note dated 14th October 1978. The Review Board was, palpably, influenced by the earlier decision attributed to the President and the appellant was denied justice.
34. The meeting as desired by the President at para. 31 took place on 14th March, 1979. The D.I.B.
(who had expressed inability to inquire into the conduct of the appellant as explained at para. 28) and the D.I.G. F.r.A. Saw the President followed by the appellant. The C.O.S. To the President recorded the following note :- "44..... ...The President heard Mr. Siddique Suleman and rejected his petition.
45. The President told the petitioner that any request for a job from him will be considered purely on humanitarian considerations on merits of the case."
35. The unfettered exercise of power by the executive as exhibited in this case needs to be contained within reasonable limits so that the 'public servants' confidence in Government machinery is not altogether eroded. One way of achieving this objective would be to apply section 5 (1) (iii) of the Government Servants (Efficiency and Discipline) Rules, 1973 as an exception rather than a rule and even when it is applied, the charge o charges must be substantiated by collection of adequate information in writing to be made available to the official to rebut. At no stage should the private or fanciful opinion of any department be swallowed, hooking and sinker, as has been done in the present case causing grievous hurt to the appellant. Also, no case should ever be put up to the Authority by the Authorised Officer without a written summary mentioning the charge or charges substantiated and the established basis thereof.
36. The appellant, Mr. Siddique Suleman stands reinstated into service and shall be entitled to all consequential benefits accruing from this order.
' SHAH ABDUR RASHID (CHAIRMAN).-I agree with my brother that this appeal should be accepted and it should be declared that the appellant stands reinstated by the order of the Prime Minister. In the first instance, the Authorised Officer acted arbitrarily when he decided to give up the formality of holding inquiry through an Inquiry Officer or an Inquiry Committee as the charges were such as needed investigation by a competent Inquiry Officer and everything should not have been left to the reports of Federal Investigation Agency. In the case of Abdul Chabot Junejo v. Islamic Republic of Pakistan (1) this Tribunal had held, and my learned brother has further strengthened the conclusion arrived at in that case by quoting extracts from Maxwell's Interpretation of Statutes that where discretion is given under a statute to an authority, that authority is expected to exercise the discretion judiciously and not arbitrarily. The charges were so vague that the appellant could not be expected to explain them. The entire proceedings against the appellant, therefore, ab initio suffered from infirmities and this Tribunal would have given relief to the appellant even if subsequent events had not taken place.
37. The Prime Minister passed an order of re-instatement of the appellant meaning thereby that the order of his compulsory retirement stood vacated. It was for the Administrative Division to carry out that {{FOOT NOTE}}
(1) PLJ 1979 Tr. C. 183 {{FOOT NOTE}} ' order and issue necessary notification, but instead of doing that, they restarted the case against the appellant. The case of the Government is that the re-instatement was declined by the Chief Martial Law Administrator when the matter was referred to him. However, the learned counsel for State failed to show us any order of the CMLA/President in this respect. The order is of General Chishti to the effect that the President has not approved the re-instatement. The order of the President is, however, not on the file. When a power is given to an authority, it exercises it after applying its own mind. In this case, there is nothing to show that the CMLA/President was appraised of the whole facts of the case to enable him to arrive at a definite conclusion. Even otherwise, his predecessor having in suo motu review, accepted the appellant's prayer for reinstatement, a second review could not be made by his successor:, as there is no such provision in any law or rule. 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.