S. ABDUL JABBAR KHAN (CHAIRMAN). - Ayub Hassan, ex-Additional District and Sessions Judge, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Government of the Punjab through Chief Secretary to Government of the Punjab, Civil Secretariat, Lahore, Additional Chief Secretary to Government of the Punjab, Civil Secretariat, Lahore and Maulvi Mushtaq Hussain, ex-Chief Justice of the Lahore High Court as respondents.
2. By virtue of this appeal he has prayed that the impugned order dated 10-12-1979, passed by Mr. Masud Nabi Noor, Chief Secretary to Government of the Punjab, in the name of Governor of the Punjab in s exercise of the powers conferred upon him by section 12 (ii) of the Punjab Civil Servants Act, 1974, be set aside as well as the notification dated 20-3-1982, whereby the appellant has been granted L.P.R. For 365 days w.e.f. 16-12-1979, under revised Leave Rules, 1978, and his retirement from service on the expiry of the said leave, be also set aside and declared illegal. It has been prayed by the appellant that he may be re-instated in service with all back benefits.
3. Brief facts of the case are that the appellant while serving as Additional District and Sessions Judge, was found not behaving in the way a Judge should behave and his case was referred to the Administrative Committee of the Lahore High Court for necessary action. The Adminis--trative Committee after considering the allegations levelled against the appellant which formed part of the record at page of the file did not proceed further as in the meanwhile the appellant had applied for retire--ment. The application of the appellant dated 2-12-1979, addressed to the Chief Secretary to Government of the Punjab through the Registrar of Lahore High Court, Lahore, was recommended and forwarded by the Administrative Committee headed by ex-Chief Justice Maulvi Mushtaq Hussain and on the strength of the same the Governor of the Punjab while exercising power conferred upon him by section 12 (ii) of the Punjab Civil Servants Act, 1974, was pleased to retire the appellant as he had completed 25 years service qualifying for pension, with immediate effect. The appellant accepted the position but later on filed writ petition on 3-5-1981, before the Lahore High Court, in which he made grievance that his retirement was not legal as it was under coercion and his entitle--ment to L.P.R. Should not have been refused by the Government of the Punjab viz. Respondent No. 1 in the writ petition. This writ petition remained pending before the High Court whereas later on an amended writ petition was also filed but was disposed of on 4-4-1982, by Mr. Justice Gul Muhammad Khan with the observation that as the petitioner had been granted L.P.R for 365 days w.e.f. 16-12-1979, under revised Leave Rules, 1978, therefore, his grievance was redressed. Moreover as the jurisdiction of the said Court was barred under Article 212 of the Constitution, therefore, he was advised to seek remedy before the Service Tribunal, Lahore. Hence this appeal.
4. This case was put up before us for admission on 11-5-1982, and we made it very clear to the appellant as well as learned counsel Syed Hilal Hussain, Advocate that in view of Provisional Constitutional Order, 1981, his retirement under section 12 (ii) of the Punjab Civil Servants Act, 1974, could not be challenged, if it was found that the appellant had completed 25 years of service and the order of retirement was passed by the competent authority. The appellant pointed out that he was relying his case on Shabi-ur-Raza v. The Inspector-General of Police, Punjab, in which this Tribunal has held that, malice would be one of the grounds for interference, if it is so proved against the competent authority. The appellant accepted this position and contended that although he would not be able to prove malice against the Governor and the Chief Secretary but he would be in a position to establish that the head of Judiciary ex---Chief Justice Maulvi Mushtaq Hussain nurtured animosity and malice against the appellant when he failed to oblige him in a judicial case so pending before him for adjudication and it would -be sufficient to show that such a high powered person like Maulvi Mushtaq Hussain, ex-Chief Justice as he then was, could be in a position to secure his retirement. On this point he also sought permission to lead evidence which he was allowed to do so. We also called upon the ex-Chief Justice Maulvi Mushtaq Hussain, who has been cited as respondent No. 3. He has submitted his comments and he did provide us with his observations regarding the entire history of the case and vehemently pleaded that he did not bear any grudge to the appellant in any manner of whatsoever and allegations levelled against him were false and frivolous and moreover the decision taken by him was not his own but was that of the Administrative Com--mittee comprising of a number of Judges of the Lahore High Court in a meeting presided over by him.
5. We have heard the learned counsel for the appellant as well as learned District Attorney alongwith Malik Azam Rasool, Advocate representing the High 'Court and have perused the evidence of the wit-- nesses so produced by the parties as well as have carefully attended to the other record of this case which was made available to us for adjudication of the issue of malice.
6. Learned counsel for the appellant has laid down main stress on an alleged incident which according to him was casusb-elli of this entire episode was an incident which made the appellant to incur displeasure of the then Chief Justice of the Lahore High Court Maulvi Mushtaq Hussain when annoyed saw it that the appellant was thrown out of service on one pretext or other. The detail of the incident as given in the grounds of appeal is as under :-
(i) In March, 1978, respondent No. 3, Maulvi Mushtaq Hussain ex-Chief Justice Lahore High Court, directed the then learned District and Sessions Judge, Lahore, Sh. Ejaz Nisar to ask the appellant to decide an Appeal No. 62 of 1978 entitled "Lahore Development Authority and another v. Deepwell Corporation and three others" in his Court against the order of a Civil Judge passed on an application for temporary injunction. Learned District and Sessions Judge called the appellant in his chamber alongwith the appeal file and directed him to set aside the order of the Court below, telling the appellant that it was the wish of the learned Chief Justice Maulvi Mushtaq Hussain. The appellant was shocked to learn about interference of the learned Chief Justice in a judicial matter pending in his Court and told the learned District and Sessions Judge that he would decide the 'appeal according to his own conscience as he was answerable to Allah Almighty as a Judicial Officer.
(ii) That the said appeal was decided by the appellant according to his own conscience and he did not oblige the learned Chief Justice by acceding to his wish as conveyed by the learned District and Sessions Judge.
(i.e) That after the decision of the said appeal on 11-4-1978, the respondent No. 3 Maulvi Mushtaq Hussain, ex-Chief Justice let loose a bell of terror upon the appellant thereafter never lost any opportunity to disgrace him in every possible way. It was also conceded by the appellant that earlier to this incidence he bad nothing to complain against the ex-Chief Justice.
7. To supplement his argument on this incident learned counsel for the appellant has tried to lead evidence about another incident which according to him would show that the ex-Chief Justice was bent upon insulting the appellant even after he had retired from service. It has been submitted that when the appellant appeared before the ex-Chief Justice in a case as a counsel, he was rebuked and disgraced by the ex-Chief Justice by asking the appellant to remove his cap twice in the Court. An evidence has been led by the appellant with regard to this incident also. The evidence led by the appellant in this case consisted of Mr. Muhammad Riaz, Superintendent : Confidential, Lahore High Court, Muhammad Bashir Mirza, Advocate Lahore, Kh. Riazuddin Ahmad, Ahalmad to Mr. Muhammad Ashraf Civil Judge, Muhammad Yaqub Butt Secretary to the Chief Justice and Sh: Ejaz Nisar, Secretary Law, Govern--ment of the Punjab, Lahore, who- at the time of said incident was District and Sessions Judge, Lahore. However the respondents produced Hafiz Hussain, Assistant Director (Legal), L. D. A./WASA, Gulberg, Lahore, to rebut the allegations levelled by the appellant.
8. Reliance has been placed on behalf of the appellant on Iqbaluddin Ahmad v. Federation of Pakistan and others (1982 SCMR 614), Abdur Rashid Abbasi v. S. P., Muzafargarh (PLD 1974 SC 393) and 1980 PLC (C. S.) 139, a decision of the Division Bench of Lahore High Court, to show that if resignation was found unvoluntarily, action taken upon it was quashed.
9. On the other hand learned District Attorney as well as Malik Azam Rasool, Advocate on behalf of Lahore High Court, have vehemently contested the plea of-the appellant that the ex-Chief Justice interfered in his working as a judicial officer and have submitted that the appellant by his own evidence has failed to prove the same. 1t was contended that the case of the appellant did dot fall within the purview of the law so cited above as it was a case of retirement under section 12(ii) of the Punjab Civil Servants Act, 1974, when it was found that the person has completed 25 years of service and the competent authority had passed his order of retirement with all pensionary benefits. The stand of the counsel for the respondents in this case is that this action is, protected by Article 13(a) of P. C. C. Of 1981, which came into operation an 24-3-1981 and the jurisdic--tion of all Courts including the High Court', Supreme Court and this Tribunal was positively barred. With regard to the pronouncement of this Tribunal in Shabir-ur-Raza v. L-G. P. Case, it was submitted that the only ground available to the appellant was that of malice which he has miserably failed to prove as all his witnesses have stated against him and even he did not have the courage and come forward on oath as his own witness in this case which he was under obligation to do so. The respondents have further submitted that the appellant's case is hopelessly time-barred as the impugned order was passed in the year 1979 and he has come to this Tribunal in the year 1982. It was further pointed out that he accepted the position as it was and only made his grievance before the High Court through writ petition that too after a lapse of a more than one year.
Learned counsel for the respondents have elaborated their arguments with regard to the writ petition by submitting that the incident which is now being made the basis of the entire case for malice, was never mentioned in the writ petition which was filed after a lapse of a period of more than one year.
10. We have given our anxious thought to the arguments so advanced by both the parties and what we are called upon is to determine whether the sheet anchor of the case of the appellant for interference in his judicial work by the ex-Chief Justice is proved on the record or not. To prove this incident the appellant himself produced Muhammad Riaz, Superintendent Confidential Lahore High Court, who has stated on oath that he was present on the day the Administrative Committee met to discuss the case of the appellant. The proceedings of such meetings of the Committee were recorded by the P. S. To Chief Justice and I had only to produce the record of the appellant's case.
He denied that he ever talked to the appellant outside the Committee Room or was angry with him.
He has also refuted his suggestion that he asked him to proceed on L. P. R. Under the instructions of the ex-Chief Justice or Registrar of the said institution. The witness was subjected to a Court question whether it was correct that he on 12-12-1979, took a typed application for L. P. R. Signed by the appellant in the Confidential Branch of Lahore High Court but he declined this suggestion by submitting that he had no recollection of the said event as whatever he does he always records the same in the Receipts Register. On the question put up by Malik Azam Rasool, Advocate that he was never asked by the ex-Chief Justice/Registrar of the Lahore High Court or any other functionary of the said institution to write an adverse note against the appellant. Appellant's witness No. 2 Muhammad Bashir Mirza, Advocate Lahore, related the incident when ex-Chief Justice Maulvi Mushtaq Hussain ordered the appellant to put of the cap before starting the arguments.
According td the second witness the appellant removed his cap in obedience to such order. After the arguments were concluded the appellant going out of the Court again put on his cap while he was still in the Court room. Maulvi Mustaq Hussain, ex-Chief Justice as he then was, called the appellant again and asked him to remove his cap and he showed annoyance at that particular time. The appellant ultimately put on his cap when actually came out of the Court Room. This witness on the cross-examination conceded that he was junior of Ayub Hasan appellant and enrolled on the High Court in the year 1980. The appellant's third witness Kh. Riazuddin Ahlmad to Ch. Muhammad Ashraf, Civil Judge, Lahore, stated on oath that he was working as Ahlmad with the appellant in the year 1978-79 when he was working as Additional District and Sessions Judge, Lahore. He accepted that he did submit the file 'L. D. A. v. Deepwell Corporation' to the High Court under the orders of the District and Sessions Judge, Lahore. During the course of cross-examination he accepted that this file pertains to an appeal which was instituted in the Court of District and Sessions Judge on 20-3-1978. This appeal was decided by the appellant on 11-4-1978. Muhammad Yaqub Butt witness No. 4, submitted on oath that he has seen the letter A/I which was addressed to him by the District and Sessions Judge, Lahore. The file under reference was requisitioned by him from District and Sessions Judge, Lahore, on telephone at the behest of ex-Chief Justice, Lahore High Court, Lahore. After receiving the said file he presented it to the ex-Chief Justice Mautvi Mushtaq Hussain in his chamber. The same was returned to him by the ex-Chief Justice and he returned the same (Dasti) to Ahlmad of the District and Sessions Judge, Lahore. He also affirmed that the file did not contain anything written on it by ex-Chief Justice Maulvi Mushtaq Hussain. The stall witness in this case was No. 5, Sh. Ejaz Nisar. The witness stated on oath that he has seen the letter at A/I which was written by him. He was informed by the Secretary to Chief Justice on telephone for sending the record of appeal titled L. D. A. v. Deepwell Corporation. However, he submitted that he did not ask the Secretary to Chief Justice the purpose for sending this record to him. When the record was summoned through him by the ex-Chief Justice, Lahore High Court, he consulted the record to find whether it pertained to some matter of public, importance for the reason that such records are only summoned by the High Court when there must have been some matter of public importance. He positively denied of ever asking the appellant to dispose of the appeal as the ex-Chief Justice wanted the disposal of the same in a particular manner. He also vehemently denied that the ex-Chief Justice ever asked him to collect some material against the appellant in any manner of whatsoever. The witness further submitted that he sent report against the appellant to the High Court when he found that his conduct was improper. Hafiz Hussain, Assistant Director (Legal) L. D. A./ WASA, Gulberg, Lahore, appeared as witness for the respondents.
He submitted on oath that there have been a number of cases wherein WASA/L. D. A. Has requested the High Court through Member Inspection Team and Advocate-General that these cases may be expeditiously disposed of because foreign assistance is involved in the various projects of WASA/L. D. A. This request was made about the cases pending in all Courts including the High Court. In cross-examination he affirmed that WASA wanted early order in the instant appeal and Mr. Muhammad Ilyas Khan, Advocate under the instructions of the Department used to request for early disposal. However, he has denied that it was within his knowledge that L. D. A. Has approached ex-Chief Justice for the early disposal of this case. He has also denied that he ever approached Sh. Ejaz Nisar, who was District and Sessions Judge, Lahore with regard to this case.
The entire reading of this evidence does prove one fact that the file relating to Deepwell Corporation v. WASA/L. D. A. Was summoned by the ex-Chief Justice through District and Sessions Judge, Lahore and same was sent to him for perusal but there is no evidence on the record to show that the ex-Chief Justice had shown his interest in the case and had conveyed his wish through District and Sessions Judge, Lahore, to the appellant to decide the said case in a particular manner The star witness of this case being Sh. Ejaz Nisar now Law Secretary. Government of the Punjab and then District and Sessions Judge has positively denied this allegation and we have no reason to disbelieve him. Lot of stress has been laid by the appellant on ancillary incident i.e. a letter written by the ex-Chief Justice to Mr. Ejaz Nisar in which the ex-Chief Justice asked Sh. Ejaz Nisar to clear his position. Reply of Sh. Ejaz Nisar is placed on the record in which he affirmed that he never asked the appellant to do a thing in a manner on the behest of the ex-Chief Justice. It has been argued that this action of the ex-Chief. Justice when he was called upon to comment on this case by the Tribunal was highly unethical as it in a way bound down a prospective witness of certain position.
11. We have attended carefully to this argument and do not find any force in the same as when the ex-Chief Justice wrote this letter to Mr. Ejaz Nisar he was neither Chief Justice and thus cannot influence a person who was still holding a high post in the Government and no more working under him.
12. With regard to the ex-loyalties these are always there but it would not be possible for us to hold that Sh. Ejaz Nisar, a Senior District and Sessions Judge, holding the post of Secretary Law, Punjab, appeared before this Court on oath and would commit forgery. He was thoroughly examined by the appellant but he flatly denied that he ever called him to his chamber and asked him to decide the case according to the wish of the ex-Chief Justice. For us this denial on oath would be sufficient to believe that the incident so alleged was nothing but a belated defence or an after thought to strengthen the case of the appellant. If it had happened so the mention of the same should have been found in the writ petition, which the appellant had filed before the Lahore High Court, and that too after a lapse of more than a year. We did find a passing reference in one of the paragraph of the said writ petition wherein it has been stated that the appel--lant was a victim of the Chief Justice's annoyance. The appellant was duty bound to come out with a truth if he believes in the same and has taken this plea before us after more than two years. Similarly the other witnesses so produced by him do not prove his version that actually he was made to apply his retirement under coercion either by the ex-Chief Justice or by his functionary. What we find on the record is that his case was put up before the Administrative Committee which always comprised of six to seven senior Judges of the said Court in fact representing the entire Judges of the High Court and the decision taken by them, cannot be said to be a decision of the Chief Justice alone but of the entire Administrative Com--mittee. It would be inconceivable to imagine that all the senior Judges of the Lahore High Court would act according to the wish of its Chairman and will have no independent opinion of their own. Moreover, in this case what we find is that the appellant's application was sent to the competent authority, which was the Governor in his case, and it was the Governor who took ultimate decision. It would be also too much to say that the Governor would not act independently but only follow recommendation of the High Court alone. The entire record of this case alongwith the summary so made available to the competent authority have been seen by us and we have no hesitation to hold that the decision of the competent authority was independent.
13. With regard to the case-law cited before us, a mention of the same has been made in the appeal, we are afraid, those cases are absolutely different with the facts of the appellant's case. In those cases the matter under consideration was whether the resignation so tendered by such persons, was voluntary or involuntary and at that time there was no Pro--visional Constitution Order of 1981 in the field. In the present case, the appellant has been retired under section 12 (ii) of the Punjab Civil Servant Act, 1974, by the competent authority while taking into consideration whether there was request on his behalf or not, and tote competent authority could retire any person, who has completed 25 years' service with full pension benefits and the decision has been held to be subjective in nature by the superior Courts of this country and stands protected from the purview of this Tribunal in view of Article 13 (A) of P. C. O. 1981, a thing so made clear to the appellant and his counsel at the very outset of the case, a position which they accepted as correct. So the entire case of the appellant was dependent upon the issue of malice an issue which was vital in this case but the evidence so led before us does not prove this issue in favour of the appellant.
14. With regard to the issue raised by the counsel for the respon--dents that the appeal is patently time-barred we do not find it so as the notification of 1982 would be a conclusive notification in favour of the appellant in this case.
15. As we have decided the issue of malice against the appellant and held that the appellant has failed to prove the same, we proceed to dismiss the appeal as being without any merit. The stay order issued in favour of the appellant with regard to the occupation of Government Quarter stands automatically vacated. There will be no order as to costs. To be communicated to the parties.