' A.
0. RAZIUR REHMAN (MEMBER).-This is an appeal against an order of termination of service under paragraph 6, read with paragraph 11 of M. L. R.
52. The appeal was filed on 19th February, 1983, admitted for hearing on 11th April, 1984 and finally heard on 15th July, 1984.
2. In the written objections filed by the department and during the course of arguments, preliminary objection was raised that the appeal was hit by the provisions of M. L. R. 52 and that it was not maintainable in view of paragraphs 1 and 6 of the said M. L. R.
1 So far as the first point is concerned, we could not make out what was meant by the statement that the appeal was hit by the provision, of M. L. R.
52. So far as M. L. R. 52 is concerned, action has already been taken against the appellant under it. If anything, the appellant has already been hit by the said M. L. R. And, there being no provision in the said M.L.R. Barring appeal against an order made under it, the present appeal cannot be hit by any provision of that M. L. R.
4. As for the contention that the appeal is not maintainable, in view of paragraphs I and 6 of M. L. R.
52 of 1981, it is observed that paragraph 1 does not exclude the jurisdiction of the Service Tribunal, so far as appeals made against departmental actions are concerned. The paragraph in question reads as follows :-- "This Regulation shall come into force at once and shall have effect, notwithstanding anything contained in the Pakistan Essential Services (Maintenance) Act, 1952 (L III of 1952), the Pakistan International Airlines Corporation Act, 1956 (XIX of 1956), the Industrial Relations Ordinance, 1969 (XXIII), the Airports Security Force Act, 1975 (LXXVII of 1975) or rules or regulations made thereunder, or any other law, Martial Law Regulation or Martial Law Order for the time being in force of any decision or award given or judgment passed at any time by any Court, Tribunal, or other authority, including the Supreme Court and a High Court."
4-A. The bar language of the above provision shows, in the first place, that, although the jurisdiction of the Supreme Court and the High Courts has been ousted, that of the Service Tribunal has not been ousted, even though the word "Tribunal" has been used and, in the second place, that the ouster only protects the Regulation as such but not the orders passed thereunder. Thus, even if it were conceded that the mention of "Tribunal" in the above paragraph should be interpreted as referring to a Service Tribunal, the intention of the provision is clearly to protect the Regulation from being impugned on the ground of its being in conflict with any other law, rule, order, decision, or judgment but not to exclude the jurisdiction of any Court or authority in regard to any specific order passed under this M. L. R., on the ground either that the order is no justified on merits or that it has not been passed in accordance with the 't provisions of this M. L. R. Actually, what has been excluded is the application of any other law, rules instruction or judgment having the force of law to action taken under this Regulation.
5. In this connection, it is worthwhile to refer to the Tribunal's decision in Appeal No, 189 (R) 82 Tufail Muhammad v. Secretary General, Defence, wherein it has been observed :- "A plain reading of the above (para. 1) would clearly show that the said provision is not an ouster clause but only declares that the Regulation shall have effect, notwithstanding anything contained in any other law for the time being in force or any decision, award or judgment of any Court, Tribunal or other authority including the Supreme Court and a High Court. It follows, therefore, that the overriding effect and immunity has been given to the provisions of the Regulation and not to the orders passed thereunder, if some law makes such order subject to appeal before any forum."
Since the Federal Service Tribunal has exclusive jurisdiction in regard to appeals relating to the terms and conditions of service of a civil servants appeal against an order passed under M. L. R. 52 would be competent, because the M. L. R. Does not oust the jurisdiction of the Tribunal in third behalf.
6. Even otherwise, it is clear from the provisions of paragraphs 4, 5 and 6 of M.L.R. 52 that the intention was not to give arbitrary powers to the relevant authorities to take action under the Regulation. In the proviso to sub-para. (1) of paragraph 4, it has been clearly laid down that "no action under this clause shall be taken unless such employee, member or officer has been afforded an opportunity of showing cause against the action proposed to be taken in respect of him." Similarly, paragraph 5 provides for a review petition against an order passed under paragraph 4. Had the intention been to close the doors against the affected persons agitating the matter before a higher forum, the above two provisions would not have been incorporated in the regulation. Even C paragraph 6, which gives unfettered powers to the Competent Authority to dispense with the services of any member of the Airport Security Force, does not deprive the said member of the right which accrues to him under section 4 of the Service Tribunals Act, 1973.
7. In the light of the above discussion, we have no doubt in our mind that, so far as the present appeal is concerned, it is fully competent and maintainable and cannot be dismissed, as pleaded by the respondent, on the ground of incompetence or want of jurisdiction.
8. The above position had more or less emerged during arguments at the hearing of the case on 15th July, 1984 when, after the parties had been heard at length, judgment had been reserved and the following directions recorded :- "Meanwhile the departmental representative (Mr. Saeed Muhammad, Deputy Secretary) has been directed to produce the following documents within a week's time :-
(i) The basis on which action was taken against the appellant and who initiated the action.
(ii) Order of the Secretary-General.
(iii) A.C.Rs, of the Appellant.
' It has been made clear to the departmental representative that, if the aforesaid documents are not received within a week, ex parte orders will be passed."
9. Three day after the above order had been passed, two representatives of the department, a Section Officer, Mr. G. Mustafa, and an. Assistant, Mr. Imtiaz Ali, both of the Aviation Division, requested that they may be allowed temporarily to take back two files which had been retained by us for reference, after the hearing had been concluded. Since it was represented to us that the Secretary General required the files for official use, we allowed the departmental representatives to take away the files, on the understanding that these would be returned, alongwith the record ordered for by use on 15th July, 1984. The acknowledgment-cumundertaking given by the departmental representatives, in this behalf, is reproduced below - {{TABLE TEXT}} #TBS File No, Section 4 (26)/81 #TBE "Appeal No, 33 (R)i83.
Miss Shagufta Ranaa v. Secy. Defence.
(1) Note portion pages 1 to 20
9. Pages 1 to 14 Connoting File No, Section 4 (81)/82 ' Received back above-noted two files for placing before the 'Secretary-General Defence as desired by him. These would be returned to the Tribunal alongwith the record ordered by the Tribunal on 15th July, 1984.
(Sd.)
Imtiaz Ali Assistant, Aviation Division.
Countersigned (Sd.)
G. Mustafa 18-7-84"
10. After some days, a miscellaneous petition was filed, on behalf of the respondent, stating that the respondent was of the view that the production of the documents asked for by the Tribunal would be of no assistance in the case because the jurisdiction of the Service Tribunal in respect of action taken under M.L.R. Stood ousted. Nevertheless, it was stated in the petition that "if in spite of the above submissions the Hon'ble Tribunal still desires the production of the relevant record, the respondent will submit the same".
' The petition was placed before us on 27th July, 1984, when an order was passed rejecting the plea of the respondent that he may not be required to produce the documents ordered for.
11. Because of the extraordinary nature of the contents of the miscellaneous petition, the same is reproduced in extenso "Before the Federal Service Tribunal, Islamabad.
Appeal No, 33 (R)I 1983 MISS SHAGIJFTA RANAA versus SECRETARY-GENERAL DEFENCE ' The respondent submits that the above appeal was heard by the Honourable Federal Service Tribunal on 15th Jul? 1984, when the Tribunal was pleased to direct production of certain documents such as A.C.Rs,, and original order of Secretary-General, Defence, regarding dispensation of service of the appellant.
(2) The respondent has given due attention to the above directions of the Honourable Tribunal and is of the view that the production of the documents asked for by the Tribunal will be of no assistance in the case because the jurisdiction of the Service Tribunal in respect of an action taken under M.L.R. Stands ousted. In this connection it is submitted that the word "tribunal" falls within the definition of a Court when it exercises the judicial power giving a definitive and binding judgment which is an essential concomitant of a judicial power. The Service Tribunal therefore falls within definition of a Court (PLD 1978 Quetta 91) at p.
94. Moreover appeal against an order of the Service Tribunal lies to the Supreme Court whose jurisdiction has been specifically ousted under clause 5 of Article 15 of the P.C.O. And thus the jurisdiction of the Service Tribunal also stands ousted.
(3) It may be added that the Secretary-General Defence acted in this case under the authority given to him by the C.M.L.A. Under the provisions of M. L. R.
52. The correctness, legality or propriety of his action cannot, therefore, be called in question in any Court, tribunal or other authority including the Supreme Court or High Court in accordance with pars, (b) of M. L.
0. 10.
(4) If in spite of the above submissions the Honourable Tribunal still desires the production of the relevant records, the respondent will submit the same.
(5) The Service Tribunal is requested to give its verdict with regard to its jurisdiction before pronouncing any judgment on the merits of the case in view of the fact that it involve a very important and substantial question of law of public importance.
(Sd.)
Said Muhammad Deputy Secretary on behalf of the respondent through (Sd.)
Syed M. Shahudul Haque Advocate Federal Government Standing Counsel, Service Tribunal."
12. Because of its relevance to the points raised by the respondent in his application and to his own conduct, then and subsequently, the order passed by us on the application is also reproduced in extenso : ``Seen.
(2) The Tribunal has already directed the respondent to produce the documents in question, vide its order, dated 15th July, 1984. There is no question of entertaining any objection at this belated stage.
(3) Whatever points, in this connection, could be raised were pressed by the learned counsel for the respondent at the time of hearing. The direction for the production of the documents was given after due consideration of those points. The Tribunal cannot revise its own order, merely because the respondent thinks that the documents required by the Tribunal "will be of no assistance in the case".
(4) It appears from the conduct of the respondent that he is shy of producing the documents because he apprehends that these may expose some weakness in his. Case.
(5) In view of the above, the respondent is directed to produce the documents in question by 29th July, 1984.
(6) He should also return the two files taken back by his representatives on 18th July, 1984, on the plea that they were required by the Secretary-General and would be returned alongwith the record ordered by the Tribunal on 15th July, 1984.
(7) We are unable to appreciate the conduct of the departmental representatives in not honouring their commitment, given in writing, to return the files taken back by them and to produce the documents they were directed to.
(8) As for the request contained in the last paragraph of this application, the point was stressed during the hearing of the case and need not have been repeated one week after the hearing was closed.
(Sd.) Member (Sd.) Member"
13. Since hearing of the appeal had been concluded on 15th July, 1984 and more than one week, originally allowed to the respondent for the production of the documents in question, had elapsed, it was expected that the respondent would not fail to produce the documents by the extended dead-line indicated, namely, 29th July, 1984. But, on 29th July, 1984, the respondent prayed for a further extension by one week. In the application made by him in this behalf he stated ; "The respondent has been in constant touch with the A. S. I. Headquarters at Karachi but the required documents have not been received in the Aviation Division due to shifting of various sections in the A. S. F. Headquarters in the past few months, it is therefore, requested that the date for submission of documents may kindly be extended by one week.
(Sd.)
Said Muhammad D. S. Aviation Division on behalf of the respondent through (Sd.)
Syed Shahudul Haque Federal Government Standing Counsel."
14. The order passed on this application is reproduced below : "After perusal of the previous papers, it has been decided, in consultation with the other Member, to allow time to the Applicant respondent in the appeal) to produce the documents latest by 4-30 p.m. Of 2nd August, 1984. The Standing Counsel for the Government has been verbally informed.
But the Department may also be informed in writing.
(Sd.)
A.
0. Raziur Rahman Member.
29-7-84"
15. On 2nd August, 1984, the Deputy Secretary, Aviation Division, came to the office of the senior Member of the Tribunal after office hours and tried to hand over certain documents without any application in proper form. He was, therefore, directed to do so in the proper manner. Thereafter, on 5th August, 1984, he submitted an application, through the Standing Counsel of the Federal Government, presenting an order, dated 31st July, 1984, purporting to have been passed by the C.M.L.A., under M.L.O. 10 (issued by the C.M.L, A.). While doing so, the departmental representative, in a most unorthodox manner, and without the slightest regard for official etiquette and decorum that the department owed to the Federal Service Tribunal, set up under the Service Tribunal Act, 1973, whereby the Tribunal has been vested with the powers of Civil Court under the Code of Civil Procedure, 1908, including the power of compelling the production of documents, arrogated to himself the right to decide whether the documents were required to be furnished to the Tribunal or not. The exact words used in this connection on behalf of the respondent are reproduced below : - "In view of the order of the Chief Martial Law Administrator on 31st July, 1984 that the word 'Court' shall include 'A Service Tribunal' and other similar bodies, Ministry of Defence (Aviation Division) feels that the documents called for in the Service Tribunal, Islamabad, vide interim order dated 15th July, 1984 are not required to be furnished to the Service Tribunal, Islamabad."
16. Apart from the impropriety of the respondent's conduct in taking a decision on a question which was pending consideration by the Tribunal and for a decision on which the respondent should have awaited the judgment of the Tribunal, the manner and the circumstances in which the respondent virtually refused to produce the documents required and also with-held those he had taken back, with the promise to resubmit later, exposed the fact that the respondent never had any intention of producing the documents wanted and that he was only trying to buy time to create a situation in which, according to his own calculations, he would no longer be compelled to produce the documents, which, for some reason or the other, he thought, should not be seen by the Tribunal. We are not inclined to believe that the respondent was personally responsible for such a development and that he knowingly and wilfully created such an unseemly situation. But we do hope that the departmental authority competent to deal with an act of misconduct, which, the Tribunal has always held, refusal to furnish information and documents required is will take due notice of this occurrence and take appropriate action against those responsible not only for deliberate defiance of the Tribunal's order but also for deception and bad faith and ensure that, in future, the concerned functionaries conduct themselves with a greater sense of responsibility and observe a higher standard of official decorum.
17. Be that as it may, we have given our most serious and earnest consideration to the plea of the respondent that, in view of the order of the Chief Martial Law Administrator, dated 31st July, 1984, purported to have been made in exercise of the powers conferred by Martial Law Order No, 10, by which the word "Court" occurring in clauses (5) and (6) of Article 15 of the P.C.O. 1981, shall include "A Service Tribunal" and other similar bodies. We regret to have to say that we are unable to accept the contention of the respondent on this point. We are definitely 0 and firmly of the view that P. C.
0., 1981, (C. M. L. A. No, 1 of 1981) cannot be subjected to the operation of an order passed under M. L.
0. No 10. The relevant portion of M. L. O. No 10 reads as follows:- "If any question arises as to the interpretation of any Martial Law Regulation or Martial Law Order, it shall be referred to the Martial Law Authority issuing the same for decision and the decision of such Martial Law Authority shall be final and shall not be questioned in any Court, Tribunal or other Authority, including the Supreme Court and a High Court."
' The above provision relates to the interpretation of a Martial Law Regulation or a Martial Law Order.
The P. C.
0. Is neither a Martial Law Regulation nor a Martial Law Order but the present day constitution of the country, promulgated through a special category Of Orders called "C. M. L. A. ORDER" Since M. L. O.
No, 10 is not intended to provide for the interpretation of such a constitutional document, the interpretation produced before us in support of the respondent's stand is not relevant.
18. Apart from the above, M. L. R. 52 itself, which is dated 15th August, 1981, and is subsequent to the P. C. 0 , 1981, places no bar on the jurisdiction of the Federal Service Tribunal in respect of action taken against civil servants who have right of appeal against departmental action under the Service Tribunals Act. That being the position, even ,if we were to accept the position that an interpretation under M. L.
0. 10 is relevant to clauses (5) and (6) of Article 15 of the P. C.
0., the fact that M. L R. 52, which affects the terms and conditions of service of civil servants, does not take away their right of appeal to the Tribunal under the Service Tribunals Act, 1973, is enough for repelling the claim of the respondent that action taken by him under the said M. L. R. Cannot be challenged by way of appeal before the Tribunal.
19. An interesting point to note in this connection is that, both in the written objections filed by the respondent and during the hearing, his stand was that the jurisdiction of the Tribunal was ousted by virtue of the provisions of paras. 1 and 6 of M. L. R. 52, 1981. As we have already observed there is nothing in these paragraphs which operates against the jurisdiction of this Tribunal. It was, perhaps, because of a realisation of the weakness of his position on this point that the respondent tried to take shelter behind an interpretation of clauses (5) and (6) of Article 15 of the P. C.
0., which also, as we have already seen, is of no help to him.
20. For the above reasons, we are firmly and definitely of the view that this Tribunal is fully competent to entertain and dispose of appeals from civil servants whose services are dispensed with under M. L. R. 52 j or who are punished under the said M. L. R. We shall, therefore, now proceed to deal with the appeal on merits.
21. The facts of the case are that the appellant was appointed as Inspector (N. P. S.-11) in the Airport Security Force on 21st July, 1976. Her work in this capacity was greatly appreciated by the authorities and she received commendation certificates from her superior officers, including one from the Force Commander, for the detection of a number of cases of attempted smuggling of Narcotics. In June, 1978, she completed the A. S. F. Security Course and in August of the same year another course conducted by the Pakistan Air Force. In April 1980, she was promoted as Assistant Security Officer (Grade-16), after selection by the Federal Public Service Commission, superseding a number of her seniors. In June 1980, she was awarded honorarium for her performance during the Islamic Foreign Ministers Conference held in May, 1980. Thereafter, in November, 1980, she was deputed on Air Guard duty. According to the appellant, it was about this time that the then Chief Security Officer started asking her for a date. The appellant complained about this in September, 1980 to her officer, Mrs. Mubashir. The latter brought this matter to the notice of the Force Commander Brig. Saleem Zia, who conducted an oral enquiry, as a sequel to which the Chief Security Officer, Aslam Shah, was transferred to Karachi. At the same time, the Force Commander banned the entry of one Abid Ali, a friend of the said Aslam Shah, who, according to the appellant wanted to abduct her. After about a year, M. L. R. 52 was issued for reforms in the P. I. A. And the A. S. F. Because of special precautionary measures to prevent sabotage and undersirable activities, special passes were required to be issued for all persons entering the restricted area on the night of 15th August, 1981, when the said M. L. R. Was issued. Because of her reliability as a member of the A. S. F. She was on duty on that night. However, by an order dated 27th August, 1981, the appellant's services were dispensed with under the provisions of paragraph 6, read with .Paragraph 11, of M. L. R.
52. On 1st September, 1981, she made a representation to the President, who called for a report from the Department. The Departmental report was sent by a new Force Commander, who had since replaced the former incumbent on 21st November, 1981. It appears that the President did not pass any orders favourable to the appellant but, on 16th May, 1982, a notification was issued by the Chief of Staff of the C. M. L. A. Providing for review petitions by those aggrieved by orders passed against them under M. L. R.
52. In accordance with this notification, the appellant submitted an appeal to the Secretary- General, Defence on 3rd July, 1982. This petition was rejected and the rejection conveyed to the appellant by Memo. Dated 17th January, 1983, whereafter she preferred this appeal before us.
22. According to the appellant, as stated in the memo, of appeal, and repeated by lawyer during arguments, the action taken against her under paragraph 6 of M. L. R. Is not bona fide and has been resorted to because of the personal malice of Mr. Aslam Shah, an officer of the Air Port Security Force, against whom she had levelled charges of very serious nature, as a sequel to which he had been transferred to Karachi. It was further contended that there was no material to justify the action taken under paragraph 6 of the M. L. R. ; that the appellant had an excellent record of service ; and that, on the basis of this record, it could be confidently asserted that no case for action under paragraph 6 of the M. L. R. Could be made out.
23. Against the above, the respondent's stand is that "the services of the appellant were not dispensed with on the exploitation by Mr. Aslam Shah" and that "the appellant was removed from service by the Government under para. 6 of M. L. R. 52 on the basis of adverse report from I. S. I. And the Force Commander, (Brig. Saleem Zia). These adverse remarks were also confirmed by the D. I.
B. After her removal",
24. From the documents produced before us by the appellant we are thoroughly satisfied that the work and conduct of the appellant throughout her service were of a high order and that the only adverse report, which is dated June, 1981, is subsequent to the action taken against K Mr. Aslam Shah, on the complaint made by the appellant, It is also worth noting that, till the date of termination of her services on 20th July; 1981, she continued to be treated as one of the most trusted hands in the Air Port Security Force, Therefore, there should have been some very strong and overwhelming material for the Federal Government to form the opinion that the services of this member of the Security Force 7 were no longer required. No such material was produced before us to convince us that the impugned action was justified. On the other hand. From the two departmental files Nos, Sec. (26)/84, (Pages 1-200 note portion) and Sec. 4 (81)/82 (Pages 1 to 14/Cor/noting), which were produced before us at the time of hearing, but later taken away on the promise of resubmitting them after perusal by the Secretary-General, Defence and not returned after the said perusal, we are satisfied that there was no genuine material at all against the appellant to justify the termination of her services. In this connection, it is worth nothing that the Force Commander, as well as the Secretary-General, Defence, relied entirely on an intelligence report against the appellant made by I. S. I. The I. S. I. Report was made shortly before the impugned order was passed. Prior to that there was no report against her from the I. S. I. For a period of almost 5 years that she spent in the Force from the date of her employment. Apparently, the I. S. I. Report is suspected and, most probably, manipulated in order to justify the action contemplated against her. In other words, the I. S.
1. Report was most probably the result of the action contemplated and not vice versa. It is also amusing to note that, while the I. S. I. Report mentions that the appellants affiliations were suspect, because her sister, who was also an employee of the A. S. F. Had created a scene at the Air Port when Bhutto was hanged and wept over the hanging, she was not removed from service but, on the contrary, promoted, while the appellant, as claimed by the respondent Department, was punished for the sin of the sister.
25. As regards the report of the D. I. B. Against the appellant the respondent Department has taken a most ludicrous statement while claiming that action under paragraph 6 of M. L. No,2 was taken on the basis of the adverse report from the 1, S. I. And the Force Commander, he stresses, to reinforce his stand, by observing : "These adverse remarks were also confirmed by the D. I. B. After her removal". Anybody with the meanest intelligence should be able to understand that no credibility could be attached to a report made by the intelligence agency after action had already been taken and that the credibility of such an organization is reduced to nil when report from it is obtained after action has already been taken. We, therefore, have no hesitation in saying that we are not satisfied that there was adequate material on record at the time the impugned order was passed to justify the said order.
26. In the result, we accept the appeal and order that the appellant be reinstated in service, with effect from the date of the termination, M and that she be allowed all the consequential benefits of the reinstatement.
27. No orders as to costs.