1. ' SARDAR SAID MUHAMMAD KHAN, J.-This is a certificated appeal against the judgment and decree of the High Court dated 28-3-1973, whereby the appeal of the appellant was dismissed.
2. ' The facts giving rise to the present appeal are that plaintiff-appellant brought a declaratory suit in the Court of Sub-Judge, Mirpur, alleging that he was holding the post of Director of Industries in Azad Jammu and kashmir Government when he was suspended and an inquiry was ordered against him, under rule 32 of K. S. R , Vol. II. The aforesaid inquiry was still pending when the plaintiff- appellant was proceeded against under the provisions of an Act known as the Azad Jammu and Kashmir Public Conduct (Scrutiny) Act, 1959 (hereinafter shall be called the Act). It has been alleged by the plaintiff-appellant that the inquiry which was conducted vide Government Order dated 29-6-1959, under the provisions of K. S. R., was mala fide because the Inquiry Officer, Col. Adalat Khan, who happened to be the Secretary of the Industries Department at the relevant time, entertained bias against the plaintiff-appellant and the President of Azad Jammu and Kashmir (at the relevant time) was interested to appoint one of his relatives against the post which was being held by the plaintiff-appellant. The plaintiff-appellant has also assailed the order No, 339/60, whereby his compulsory retirement was ordered on the ground that the Screening Committee on whose recommendations the aforesaid order was passed was not legally competent to issue second notice-89/SCA/60 because, according to the plaintiff-appellant, there was no such provision in the relevant law or rules framed thereunder to issue a supplementary notice. The recommendations of the Screening Committee were also assailed on the ground that no inquiry was held and the said Committee based its recommendations on the biased report of the Inquiry Officer, Col. Adalat Khan. The impugned order has also been challenged on the ground that the notice issued by the Screening Committee was ambiguous and suffered from legal infirmity and thus proceedings taken in pursuance of the aforesaid notice do not fulfil the requirements of law.
3. ' In the written statement the jurisdiction of the Civil Court to take cognizance of the matter was challenged on the ground that civil Court bad no jurisdiction to try the suit.
4. ' The learned counsel for the respondent has raised a preliminary objection with regard to the validity of certificate of fitness issued by the High Court. His first ground of objection was that it was issued on a time-barred application ; because under section 14 (4) of the Azad Jammu and Kashmir Judicial Board (Constitution and Jurisdiction) Act, 1974, in case of judgment, decree or order passed by the High Court after the 18th of August, 1971, the appeals referred to in section 7 of the said Act were competent to the Judicial Board within a period of three months for the date of coming into force of the said Act. Thus, the application for grant of fitness certificate in the instant case could be made till 30-12-1974 ; while it was preferred on 3.5-1975.
5. ' In reply it has been contended that as the High Court duly considered the reasons for the condonation of delay in filing the aforesaid application and after applying its mind condoned the delay, there exists no valid ground for interference with the discretion exercised by the High Court. A perusal of the application for the condonation of delay reveals that, according to the appellant, he entertained the belief that the limitation under section 14 of the Azad Jammu and Kashmir Judicial Board (Constitution and Jurisdiction) Act, 1974, would start when the Judicial Board would start functioning.' It is not con troverted that although the Act with regard to the constitution of the Board, was assented to by the President on 4th September, 1974 yet the Judicial A Board itself was constituted much later and started functioning on 15th March 1975. It is evident that in the absence of existence of any Judicial Board the possibility that plaintiff-appellant entertained a bona fide belief that the Board having not been constituted the period of limitation would not start running cannot be excluded. It is correct that the Registrar of the High Court was nominated as Ex-of Registrar of the Judicial Board on 2nd November, 1974, but all the same the fact remains that it is not shown as to when the order of appointment of the Registrar of the Judicial Board was published in the official Gazette. In the identical circumstances the delay in filing the appeal was condoned in appeal entitled Lai Khan and others v. Mst. Makhmi and others Civil Appeal No, 44 of 1975, decided on 2-7-1983. Under these circumstances we are of the view that the discretion exercised by the High Court the delay in condoning for filing the application for the grant of fit " certificate does not suffer from any legal infirmity calling for an interference.
6. ' The learned counsel for the respondent has also argued that the fitness certificate was issued without jurisdiction because the High Court was only competent to issue such a certificate if some constitutional law points were involved in the case. He has referred to section 42 (11) (f) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, in support of his contention. The objection is devoid of any force on the short ground that the aforesaid provision did not apply to the instant case because the same was not on the statute book at the relevant time. The fitness certificate in question was granted under section 7 (2) (b) of the Azad Jammu and Kashmir Judicial Board (Constitution and Jurisdiction) Act, 1974, and not under the provisions of section 42 of the Interim Constitution Act, 1974. Section 7 of the Constitution of Board Act does not envisage that certificate could be issued by the High Court only if a constitutional law point was involved in a case. Under section 7 (2) (b) of the Azad Jammu and Kashmir Judicial Board (Constitution and Jurisdiction) Act the High Court was competent to certify a case fit for filing an appeal in the Judicial Board and there was no stipulation in the relevant provision that certificate could be issued only if a question of law relating to the interpretation of the Constitution was involved.
7. ' The learned counsel also assailed the fitness certificate on the ground that the appeal was decided by a Division Bench of the High Court whereas the certificate was issued by the learned Chief Justice, sitting as Single Bench. A perusal of the relevant order reveals that the other Judge, who was the member of the Bench which decided the appeal, had been appointed as Judge of the Judicial Board at the relevant time. Even otherwise, under section 24 of the Azad Jammu and Kashmir Courts and Laws Act, 1449, any function which is to be performed by the High Court can be performed by a Single Judge or Division Bench appointed for the purpose by the Chief Justice ['here is no authority in support of the proposition that if the appeal is decided by a Division Bench, the fitness certificate to file the appeal should have also been granted by the Division Bench. In view of the provisions contained in section 7 (2)(h) of the Constitution of the Judicial Board Act read with section 24 of the Azad Jammu and Kashmir Courts and Laws Code Act, 1949, the fitness certificate to file an appeal cannot be said to be violative of any provision on the statute hook, governing the matter.
8. ' The learned counsel has also argued that the appeal is time-barred. Under section 14 (I) (b) of the Act, the appeal could be filed within ninety days from the date of grant of certificate of fitness. In the instant case the certificate of fitness was granted on 3-5-1975, whereas the appeal was filed in the Judicial Board on 2-8-1975, within the period of ninety days and thus it was not time-barred.
9. Coming to the merits of the case, first point which needs determination is as to whether the plaintiff-appellant proved as alleged by him. It may be mentioned of the very outset that in case of allegation of mala fide the particulars at mala fide should be specifically pleaded and E proved as any other fact. In the instant case, as has already been pointed out, the case of the plaintiff- appellant is that Col. Adalat Khan, the Inquiry Officer, entertained bias against him and the President of the time wanted to appoint and post a man of his own choice and a relative as Director Industries in place of the plaintiff-appellant. There are concurrent findings of all the Courts below that plaintiff-appellant failed to prove the alleged by him. We have gone through the record and we find no fault with the findings of the Courts below. There is no evidence except the statement of the plaintiff-appellant that the President of the time was interested in the removal of the plaintiff-appellant so as to appoint a person of his own choice in place of the plaintiff- appellant. Who that person was and whether he was so appointed, there is nothing on the record?
10. So far as the alleged bias in the mind of the Inquiry Officer, Col. Adalat Khan, is concerned, no particulars have been mentioned in the plaint justifying any such bias. Although a perusal of the record reveals that plaintiff-I appellant made various representations to the Government for appointing-another Inquiry Officer in place of Col. Adalat Khan, yet this would not furnish ground to hold that the Inquiry Officer was biased merely because he happened to be the Secretary of the Department of Industries or that the plaintiff-appellant did not want that inquiry should be conducted by him. Exh. P. D. The copy of the letter, which was written by the plaintiff-appellant to the Government, shows that the plaintiff-appellant was interested in the appointment of another Inquiry Officer because he intended to produce Col. Adalat Khan as a defence witness. Exh. P. G., the copy of the letter written by Col. Adalat Khan, Inquiry Officer, to the Secretary-General of the Government, shows that Adalat Khan was not interested to conduct the inquiry against the plaintiff-appellant ; rather he moved the Government to appoint another Inquiry Officer in his place. Under these circumstances, we find no valid reason to interfere with the concurrent findings of the Courts below that Col. Adalat Khan, who conducted the inquiry under K. S. R. With regard to some of the charges levelled against the plaintiff-appellant, had any bias in his mind against the plaintiff-appellant.
11. ' It has been argued by the learned counsel for the appellant that notice 89/SCA/60, dated 20-1- 1960, issued by the Screening Committee under rule 2 of the Rules called the Azad Jammu and Kashmir Public Conduct (Scrutiny) Rules, 1959 (hereinafter shall be called the Rules), is ambiguous and does not conform to the requirement of law. He has argued that first part of the aforesaid notice is a verbatim reproduction of rule 2 of the aforesaid Rules, and the facts mentioned as 'reasons' in support of the charges are deficient in details. It is correct that first part of the aforesaid notice is more or less a reproduction of Rule 2, but all the same the reasons mentioned in support of the charges are unambiguous and clearly indicate the facts on which the charges against the plaintiff-appellant are biased. A perusal of the aforesaid notice Exh. P. B. Is indicative of the fact that more reasons were mentioned on the next-sheet of the paper. No 'next-sheet', containing reasons, was placed on the record by the plaintiff-appellant. He has not alleged in his plaint that reference to 'next-sheet' in Exh. P. B. Was erroneous and that no other sheet containing further reasons was supplied to the plaintiff-appellant. He has merely alleged in his plaint that the notice was ambiguous. The allegation with regard to the 'ambiguity' cannot be interpreted to mean that the ccmplete list of reasons as indicated in Exh. P. B. Was not supplied to the plaintiff-appellant. A perusal of the copy of the order containing the findings of the Screening Committee, which is Exh. P.
12. D. Is also indicative of the fact that at least there were 'five-reasons' or 'grounds', some of which also contained sub-grounds, or reasons in support of the allegations against the plaintiff- appellant. It has not been alleged by the plaintiff-appellant in his plaint that Screening Committee has wrongly mentioned in Exh. P. D. That 'reasons' supplied to the plaintiff-appellant were five or more than five in number and in fact he was supplied with notice which contained only three 'reasons'. This fact lends further support to the findings recorded by the High Court that the 'next sheet' of notice containing further reasons was withheld and was not produced in the Court. Even otherwise, had the plaintiff-appellant been not communicated more 'grounds' or 'reasons' as mentioned in Exh. P. B.. He would have definitely raised this objection before the Screening Committee or at least in his plaint filed in the trial Court. Even if it be assumed for the sake of the argument that the other sheet containing reasons, as indicated in the relevant notice, was not supplied to the plaintiff-appellant, he could not be said to have been prejudiced because charges found proved by the Screening Committee, vide Exh. P. D., are based on three 'reasons' or 'grounds' mentioned in Exh. P. B.; and thus it cannot be Said that no 'reasons' were communicated to the appellant in support of the charges which have been held proved by the Screening Committee. So far as the argument that 'reasons' lacked details is concerned, we are of the view that the supply of the detailed statement of facts on which the charges are based is not necessary under the relevant Rules as in case of inquiry under West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, referred to in some of the authorities cited by the learned counsel for the appellant. Under those rules a detailed statement of facts, on which the charges are based, is also to be supplied to the concerned person along with the charge-sheet. Under rule 2 of the Rules framed under the Act only 'fact' or 'circumstance' appearing against the plaintiff-appellant was to be furnished to him to get the explanation and after considering the explanation. If any, the Screening Committee had to record its finding. The relevant Act or Rules does not envisage any detailed inquiry by the Screening Committee as is done in cases under the Efficiency and Discipline Rules. In this view of the matter, we are of the opinion that the 'facts' or 'grounds' appearing against the plaintiff-appellant were duly communicated to him, as stipulated under the relevant Rules, and the Screening Committee recorded its finding after considering the explanation furnished by the plaintiff-appellant as is evident from the Exh. P. D.
13. ' Another point raised by the learned counsel for the appellant is that the second notice, Exh. P. C., which is 89/S.CA/60 could not be served upon the plaintiff-appellant and in any case the findings given by Col. Adalat Khan in the inquiry held under the provisions of K. S. R. Could not be taken into consideration against the plaintiff-appellant. We have given our earnest consideration to the matter and we are of the view that there is no bar in the Act or the Rules framed debarring the Screening Committee to issue a supplementary notice. The purpose of notice is to make the concerned person abreast of the facts in support of the charges to give him an opportunity to furnish his explanation. Thus, it cannot be said that the service of the supplementary notice, containing additional reasons in support of the charges, offended against any provision of the Act or the Rules, especially so when the plaintiff-appellant also had given his objections to the said notice which were duly considered by the Screening Committee.
14. Another point which needs to be resolved is as to whether the findings given by Col. Adalat Khan as a result of inquiry held by him under the provisions of K. S. R. Could be considered by the Screening Committee while giving its findings against the plaintiff-appellant. As has already been pointed out, and 'fact' of 'circumstance' having relevancy to the charges visualised in rule 2 of the aforesaid Rules could be considered by the Screening Committee. A perusal of the Rules would reveal that even a general and persistent reputation of being corrupt is a circumstance which can form basis for inquiry against a public servant. Therefore, it cannot be said that the findings arrived at in previous inquiry under K. S. R. Could not be legally considered against the appellant while considering the 'facts' and 'circumstances' appearing against him as visualised under rule 2 of the aforesaid Rules. Moreover, Exh. P. D. Which contains the findings of the Screening Committees shows that the findings given by Coi. Adalat Khan in previous inquiry have been considered only as 'additional reason"' and not as a 'sole reason' or 'ground' for arriving at the conclusion. How much weight was given by the Screening Committee to the aforesaid findings cannot be correctly evaluated, but as we are of the opinion that findings recorded in the previous inquiry were validly considered by the Screening Committee under the relevant rules, it is not necessary to dilate upon the matter any further.
15. ' Another question whether has been subject of controversy at the Bar was with regard to the jurisdiction of the civil Court. The learned counsel for the respondent has referred to a case titled Zafar-ul-Ahsan v. The Republic of Pakistan (I), and has argued that under section 10 of the aforesaid Act, the jurisdiction of the civil Court to take cognizance of any of the matters which falls within the jurisdiction of the Screening Committee or the appointing authorities has been barred. A perusal of the aforesaid authority shows that their Lordships were of the opinion that if a statute confers exclusive jurisdiction on an authority and such authority acting under it exercises its jurisdiction within the four corners of the relevant statute, the ouster of jurisdiction of Court is complete, and irregularity in the proceedings held by the authority having exclusive jurisdiction would not furnish a ground for civil Court to take cognizance of the matter. However, it has been further opined as under :- "Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this subcontinent, be treated as an order under the statute."
16. It is evident from the above quoted observation, made by the learned) Judges that where the proceedings are taken ma!a fide or the statute is used merely as a cloak to justify an act and in fact the proceedings cannot be said to have been under the statute, the civil Court can assume jurisdiction.
17. 'In Muhammad Sajjad Ali Mazumdar v. Province of East Pakistan and another (2), Zafa-ul- Ahsan's case was considered and it was opined that in Zafar-ul-Ahsan's case the learned Judges did not make any departure from the general principle that civil Court has got the jurisdiction despite exclusion to that effect when an act is committed in excess of jurisdiction or it is clearly ultra vires or mala fide or where the statute is used for collateral purpose. The relevant extract from the judgment in the said case is reproduced as under :- "In the category of actions considered to be mala fide the Courts have often' included actions which have been variously described as `misuse of powers' or even "abuse of powers" or as acts done in "colourable exercise of powers". We would, however, be content to say that a total disregard of the provisions prescribed, by the statute or rules framed under the statute may well be characterised as a misuse of powers and bring it at least within the ambit of an act which, in the language of the Supreme Court in Zafar-ul- Ahsan's case, "in fact is not taken though it purports to have been taken under
(1) PLD 1960 SC 113 (2) P D 1960 Dacca 854 the statute." Prom this point of view, we are of the opinion that since the charge of inefficiency was never communicated to the petitioner and he was never given an opportunity of offering any explanation thereto, his punishment on that ground was illegal and not an order made in accordance with any rule framed under the Public Conduct (Scrutiny) Ordinance or according to law."
18. ' The learned counsel for the plaintiff-appellant relied upon Chairman, Road Transport Corporation v. Bashir Ahmed (1), Muhammad Zaman Khan v. M. B. Nishat and others (2), Ghulam Hussain v.
19. Nasarullah and others (3), Secretary of the State v. Mask & Co. (41 and Abdul Qayyum v. The State and others (5), in support of his contention that if an act is proved to be mala fide or in excess of jurisdiction, it cannot be said to have been passed under the relevant statute and the statute would be deemed to have been used be merely as a cloak. In such cases, the learned counsel maintained, the ouster of jurisdiction of the civil Court would not absolute and the civil Courts would have the jurisdiction to entertain a suit despite the exclusion of the jurisdiction. After considering the arguments advanced at the Bar, we are of the opinion that the question of the jurisdiction in cases where the statute ousts the jurisdiction of the civil Court is to be decided in the light of the averments made in the plaint. Evidently, if according to the allegations mad in the plaint the action of an authority is challenged as being mala fide or in excess of jurisdiction or on the ground that it offends against the state and cannot be said to have been passed under the relevant statute, the civil Court would assume jurisdiction. However, ultimately if the fact alleged are not proved, the suit would fail on merits and in that case the question of ouster of jurisdiction would be merely of an academic interest ; because the civil Court, after recording the evidence and considering the relevant provisions of the statute, would give its findings one way or the other.
20. If it is found that the averments made in the plaint have been proved, despite the exclusion of the jurisdiction, the civil Court is col-ripe- K tent to interfere with the matter on the basis of mala fide or other ground already referred to and would decide the case on merits. Naturally, if the Court comes to the conclusion that allegations of mala fide or lack of jurisdiction or violation of the statutory provision of law have not been proved, the suit would be dismissed and the question of jurisdiction would be merle of an academic interest because the aggrieved person would be non- suited on the merits of the case itself. In the instant case, as has already been pointed out, as the plaintiff-appellant has failed to prove any mala fide or the violation of the Act or rules framed thereunder, his suit has rightly been dismissed and the question of bar of jurisdiction is merely of a formal nature and it can be safely said that though the civil Court had the jurisdiction in the matter in view of the averments made in the plaint, but plaintiff failed to prove his case.
21. ' Another point raised by the learned counsel for the plaintiff-appellant was that the departmental appeal filed by the plaintiff-appellant was disposed of without affording an opportunity of hearing to the plaintiff-appellant. A perusal of rule 7 would reveal that it does not visualise personal hearing of the aggrieved person at the time of disposal of his appeal. We are fortified in our view in a case entitled Hatnid-ud-Din v. The Provincial
(1) PLD 1973 Note 34 at p. 43 (2) PLD 1962 SC 22
(3) PLD 1970 Azad J & K 44 (4) AIR 1924 P C 105
(5) PLD 1968 Pesh. 6 Government of West Pakistan and another (1), wherein it has been held that I view of the phraseology employed in rule 7 of Public Conduct (Scrutiny) Rules, 1959, the personal hearing of the appellant was not necessary before the disposal of the appeal.
22. ' In the light of what has been stated above finding no force in this appeal it is hereby dismissed.
23. However, in view of the facts of the case, we make no order as to costs.
(1) PLD 1963 Lah. 1