S. ABDUL JABBAR KHAN (CHAIRMAN).-Islam Hassan Khan has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, against the orders dated 2-9- 1981 and 7-1-1980, passed by the respondents by which he has been retired under section 12 (ii) of the Punjab Civil Servants Act, 1974, after completion of 25 years' service qualifying for pension and other benefits. He has impleaded the Secretary to Government of the Punjab, Industries and Mineral Development Department, Lahore and Director of Industries as respondents.
2. By virtue of this appeal he has prayed that the impugned orders be set aside as the said orders are the result of malice.
3. Brief facts of the case are that the appellant was working as Assistant Director of Industries when the Departmental Review Committee for Grade-17 Officers headed by the Secretary, Industries and Mineral Development Punjab Mr. Anwar Zahid, with three other officers, considered his case alongwith sixteen others of Grade-17 on 10-11-1979 for determining their fitness to be retained in service or retired under section 12 (ii) of the Punjab Civil Servants Act, 1974. This Committee decided to retain 14 officers in service except the appellant and one other officer Malik Muhammad Ashiq, Senior Manager, Government Press, Lahore. However it was further decided that the case of Mr. Islam Hassan Khan (appellant) would be further considered in the light of his performance on the basis of latest confidential report for the year 1979 and for additional informa--tion which was being collected. Another meeting was held on 29-12-1979, when his case was again considered by the same Departmental Review Committee, and cases of 15 officers were reviewed alongwith the appellant. Following decision in respect of the appellant was taken :- 'Service record of Islam Hassan Khan was found average/below average throughout. The officer appears to have out-lived his utility. The Committee, therefore, decided that he should be retired with full pension benefits."
Accordingly a summary dated 1-1-1980 was prepared by Mr. Anwar Zahid, Secretary, Industries and M. D. Department and submitted to the Chief Secretary, Punjab, for approval. The Chief Secretary Punjab, approved the retirement of the appellant and on 7-1-1980 thereupon retirement order under section 12 (ii) of the Punjab Civil Servants Act, 1974, was passed by the Secretary Industries and M. D. Department on 7-1-1980, alongwith four other officers of the Industries Department.
4. Aggrieved against this order the appellant filed a Writ Petition No. 196 of 1980, before the High Court and was successful in getting the order suspended and his writ petition admitted. The appellant assumed his duty and continued as such up to 2-9-1981. On 24-6-1981 the Secretary, Industries and' M. D. Department filed an affidavit with the application informing the High Court that the writ petition was liable to be abated under Article 13 of the Provisional Constitution Order, 1981.
As soon as the writ petition stood abated further order of his retirement was passed by the Secretary. Industries on behalf of the Governor with retrospective effect. In fact the second order was revival of the first order which stood suspended under the orders of High Court. The appellant filed an appeal to the Governor on 9-9-1981 and the same is pending with the said authority. Hence this appeal.
5. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case with their assistance. Learned counsel has inter alia challenged the impugned order on various grounds, but ultimately when he was confronted with Article 13 of the Provisional Constitution Order, 1961 he confined his arguments to the point of malice relying on this Tribunal's decision in Shabiur Raza v.
Inspector-General of 'Police. It has been submitted by the learned counsel that actually the appellant had become persona non grata in the Department when he initially challenged their order with regard to the fixation of seniority. This ground of litigation was mitigated by the Tribunal in 1972 and with further recommendations in their judgment dated 24-7-1972 for redressing the grievance of the appellant. However the Department did not take any action with regard to the recommendation so made by the defunct Tribunal and the appellant was forced to ventilate his grievances again before the Tribu--nal. This Tribunal directed the respondents to implement the recommenda--tions/directions contained in the judgment dated 24-7-1972, by the defunct--- Tribunal but despite this direction the Department did not implement the same. This state of affairs brought the appellant before the High Court. The High Court admitted the writ petition and finally accepted the same on 30-6-1979 on the assurance given and commitment made by the respon-- dents for implementation of this Tribunal Judgment within 3 months. According to the learned counsel an ugly effort was made at the instigation of the Department and one Mr. Aziz Ahmad Rathore fi12d L-C. A. Before a Division Bench of the High Court and Leave to Appeal before the Supreme Court of Pakistan, but both I. C.-A. And Leave to Appeal stood dismissed. It has been vehemently argued that respondent No. 1 after finding no course open to him, made it convenient for himself to retire the appellant after the completion of 25 years' service vide order dated 7-1- 1980. The main emphasis in this case has been laid on one pivotal point bN1 the appellant among others that his retirement order under section 12 (ii) came into being after the appellant was successful in getting served Mr. Anwar Zahid, Secretary Industries, Punjab, with a notice of contempt from the Lahore High Court for disobeying their order. He has also further agitated that while the case was pending before the High Court after the commitment of the Department to implement the judgment of this Tribunal within 3 months, and the appellant all again was successful in getting another order of contempt by the Lahore High Court against re9pbndent No. 1, which further caused annoyance to respondent and he took up his plea of abatement before the High Court when he found the P. C. O., 1981, had come in the field. According to the learned counsel this incident would also show how the mind of respondent No. 1 was working against him.
6. On the other hand learned District Attorney assisted by the representative of the Department has submitted that the allegations levelled by the appellant have no foundation. He was retired after due consideration fulfilling all the formalities in that behalf by the competent authority as he had completed 25 years' service. According to the learned D. A. The record of the appellant was below average and it was found that he had out lived his utility, therefore, the order under, section 12 (ii) of the Punjab Civil' Servants Act, 1974, was passed allowing him full pension benefits according to the rules. Learned D. A. Has vehemently contested that there was no malice on the part of Mr. Anwar Zahid in the case of the appellant, therefore, the appeal was not maintainable, in view of Article 13 of P.C.O., 1981.
7. We have given our anxious thought to the arguments so raised before us and have carefully scanned the record of this case. The only issue before us is whether the appellant was retired after due process of his case or there was a malice with Mr. Anwar Zahid who passed the impugned order on certain annoyance caused by the appellant to him. The pivotal ground taken by the appellant while stating the background of his litigation with the Department is that Mr. Anwar Zahid, the competent authority in this case, passed the impugned order under section 12 (ii) of the Punjab Civil Servants Act, 1974, when the proceedings of Contempt of Court Act were ordered by the Lahore High Court against him. The appellant has vehemently asserted that as Mr. Anwar Zahid was aware of being served with the said notice, therefore, he took steps to get rid of the appellant, by using his authority in a colourful manner.
8. We have first of all carefully read the entire file of this case which we summoned from the Government and find that the case of the appellant was duly considered by the Review Committee on two occasions and ultimately, when it was found teat the record of the appellant was average/ below average, his retirement was approved by the Chief Secretary, Government of the Punjab, and it was only then the competent authority issued the impugned order. We have been unable to find from the record of this case that there was any allegation on the part of the appellant before passing of the impugned order of any apprehension of injustice on the part of the competent authority therefore, we cannot conclude, on the basis of the said record, that the impugned order was the result of malice. However, learned counsel for the appellant has produced before us a document which is an uncertified copy of the order dated 10-10-1979 and 25-1-1982 in Criminal Or.
270/W-79 in W. P. No. 5881/S-78, of Mr. Justice Dilawar Mahmood and Mr. Justice Muhammad Afzal Lone respectively. These orders have been produced before us to show that the appellant had moved a contempt of Court proceedings against Mr. Anwar Zahid and the Lahore High Court was pleased to issue notice against him. We are afraid that the contents of these orders do not substantiate the point so raised before us. What we find is that in the order of 10-10-1979 Mr. Justice Dilawar Mahmood Judge as he was it is indicated as under :----- "No order is called for in this case at present. It may be kept pending.
To be relisted for hearing alongwith C. M. No. 5115 of 19.79 in and Writ Petition No. 5881/S/1978.
"The subject-matter of this criminal original was also the matter in issue in criminal original 283-W- 80 which was disposed of on 15-12-1981. This Court declined to intervene. In view of this decision, no further action in the instant criminal original is called for and it is disposed of accordingly."
By no stretch of imagination it can be said that Mr. Anwar Zahid, competent authority in this case was ever served with a contempt notice, therefore, the first order passed by him was a well- considered order duly processed by the Review Committee and approved by the Chief Secretary, Punjab. However, there is no dispute with the fact that at a later stage, after the appellant was retired, the matter went again to the High Court and a notice was issued for contempt proceeding as claimed by the appellant against the competent authority Mr. Anwar Zahid but nothing materialised in that behalf. While accepting this undisputed position we have no hesitation to hold that the annoyance was with the appellant and not with the competent authority as he was aggrieved by the retirement and thus naturally ventilated his feelings and remorse in the form of contempt application against Mr. Anwar Zahid. This fact would hardly affect the validity of the earlier impugned order which was the basis of the second impugned order. When the case of the appellant stood automatically abates) in the High Court by the promulgation of P.C.O., 1981, what Mr, Anwar Zahid did was, that he informed the High Court by filing an Affidavit that the case of the appellant stood abated under the P.C.O., 1981. Mr. Anwar Zahid only revived the earlier order so passed by him as the same was in abeyance due to the stay orders granted by the High Court in this case.
9. In view of the above established facts on the record, we do not find that the earlier order of retirement passed by Mr. Anwar Zahid dated 7-1-1980, was result of malice and was liable to be struck down on the said ground.
10. The result is we dismiss the appeal as being without any merits and maintain the impugned orders so passed against him by the competent authority. However the parties will bear their own costs.
Appeal 'dismissed.