JUSTICE SHAH ABDUR RASHID (CHAIRMAN).--This appeal by Ramzan Muhammad Chaudhry was heard on 27-8-1984 by Full Bench of this Tribunal, consisting of the Chairman and the following three Members: --
(1) Mr. A.O. Raziur Rahman;
(2) Mr. Muhammad Irshad Khan, and
(3) Brig Abdur Rashid.
The judgment was initiated by the Chairman himself and Mr. Raziur Rahman also signed it.
However, before it could be taken up by Mr. Muhammad Irshad Khan, Mr. Raziur Rahman and Brig.
Abdur Rashid, ceased to be Members of this Tribunal. While the file was to be submitted to Mr. Muhammad Irshad Khan, the appellant filed an application that he had been head only on merits and legal aspect of the case, and that his contention that the impugned order was mala fide had not been taken up during the course of arguments. His request was to the effect that his arguments on this plea should also be heard and decision made accordingly.
2. The order written by the Chairman and signed by Mr. Raziur Rahman had not been communicated. A question arose whether two members of the Bench having not signed the order and two Members having left the Tribunal, the appeal should be heard in entirely or on the question of mala fide alone. After hearing the parties and counsel for respondents on this aspect, we made an order, on 9-6-1985 that to avoid any legal complications, the entire appeal should be heard afresh on all the issues involved in the appeal. It was consequently re-heard on 10-7-1985.
3. The appellant, while serving as Joint Director in the Central Board of Revenue, was retired from service by order, dated 26-12-1983 under section 13(ii) of the Civil Servants Act (LXXI of 1973)
(hereinafter referred to as the Act), on the assumption that he had completed 25 years service qualifying for pension. Since the order was passed by the President', the appellant, made a review petition, but without any success. The present. Appeal was filed under section 4 of the Service Tribunals Act (LXX of 1973) before us.
4. The appellant has challenged the order of retirement on two grounds: first that he had not completed 25 years service qualifying for pension as envisaged under section 13(ii) of the Act, and secondly that the order of retirement was mala fide.
5. The appellant started his career by joining the North Western Railway (N.W.R.) on 17-1-1953.
Thereafter, he served twice with the Pakistan International Airlines Corporation (P.I.A.C.) and with the Federal Government in the intervening period. With effect from 1-2-1968, he rendered uninterrupted service with the Federal Government. The following table would explain his service record:-- YearMonthDay (1)17-1-1953 to 31-7-1960Service under the N.W.R. 7 6 5 (2)1-8-1960 to17-10-1962.Service with the P. I. A. C. 2 2 l0 (3)18-10-1962 to 17-9-1964.Service under the Federal Government.1 11 (4)17-9-1964 to 31-1-1966Service with the P.I.A.C. 1 4 14 (5)1-2-1966 to 26-12-1983.Service under the Federal Government.17 10 25
6. The appellant's case is that his service under the Federal Government which, in terms of section 13(ii) of the Act qualifies for pension, is only 17 years, 10 months and 25 days counted from 1-2-1966 (item 5 of the table in para. 5) from which date he rendered un-interrupted service with the Federal Government. It was contended that the other service rendered by him does not qualify for pension and, therefore, he having not completed 25 years service qualifying for pension on 26-12-1983, the order of retirement was without jurisdiction.
7. On behalf of the respondents, it has been argued that by a special order made by the Government, the entire service of the appellant has been declared to be service qualifying for pension and, therefore, the appellant cannot claim that the service rendered with the N.W.R. And the P.I.A.C. And with the Federal Government in the intervening period cannot count towards service qualifying for pension as envisaged by the provisions of section 13(ii) of the Act.
8. Article 361 of the Civil Service Regulations (C. S. R.), which is relevant in the present case, reads as follows:-- "The service of an officer does not qualify for pension unless it conforms to the following three conditions:-- First-- The service must be under Government.
Second-- The employment must be substantive and permanent.
Third-- The service must be paid by Government."
It was agreed at the time of arguments by both the parties that the second condition no longer remains in existence because by a special order even temporary service can count for pension if it is-followed by substantive and permanent service. The appellant's case is that his continuous service under the Government being 17 years, 10 months and 25 days, the First condition is not satisfied. Likewise, it was pointed out that as the service under the N.W.R. And P.I.A.C. Was not paid by the Federal Government, this too cannot count for calculating 25 years service.
9. In support of his contention, the appellant has relied on some decisions of the Tribunal and the High Court, but it is not necessary to refer them, because the matter was discussed in detail in the case of Secretary to the Government of Punjab, Education Department, Lahore and others v. Noor Muhammad Khan PLD 1984 SC 80. That case arose out of the retirement of a civil servant of the Punjab Government under section 12 (ii) of the Punjab Civil Servants Act, the provisions of which are identical with section 13(ii) of the Act. In that case, the Supreme Court upheld the decision of the Punjab Service Tribunal that service rendered under the Federal Government does not qualify for pension in terms of section 12(ii) of the Punjab Civil Servants, Act, in case of an employee to whom pension was to be paid out of the Provincial Consolidated Fund. It was also held that the period during which a civil servant remains on extraordinary leave without pay by an order passed under M.L.O. 23 against termination of service under M.L.R. 114 does not qualify for pension, but is only a bridge between the two periods of qualifying service. In view of this legal position, we are in, agreement with the appellant that ordinarily the service rendered by l him with N.W.R. And the P.I.A.C. Is not a service which qualifies for pension or retiring benefits, as provided for in section 13(ii) of the Act.
10. On behalf of the respondents, however, it has been explained that on a representation being made by the appellant, his entire service with N.W.R. And the P.I.A.C. Has been, by relaxation of relevant rules; allowed to count as service qualifying for pension. The said order is, dated 13-5-1979 and reads as under:-- Government of Pakistan Central Board of Revenue No. 6(40)-Admn. /76Islamabad, the 13th May' 1979 From:Mr. Syed Itrat Hussain, Second Secretary.
ToThe Accountant-General, Pakistan Revenues, Islamabad.
Subject:-- Counting of the periods of past service rendered in Pakistan Railways and P.I.A.C. By Mr. Ramzan Muhammad Chaudhry.
Sir, I am directed to convey the sanction of the President to the counting of the service rendered by Mr. Ramzan Muhammad Chaudhry in the Pakistan Railways Department from 27-1-1953 to 31-7-1960 and in the Pakistan International Airlines Corporation from 7-8-1960 to 17-10-1962 and 18-9-1964 to 31-1-1966 as duty performed in Government service for the purpose of pension only subject to the condition that he pays himself the pension contribution in accordance with the rates prescribed in Appendix II-A to F.R. Vol. II for the service in the Pakistan International Airlines Corporation.
(2) The sanction is also accorded for payment of the pension contribution in equal monthly instalment of Rs.50 (fifty) each.
(3) This issues with the concurrence of the Finance Division (Regulation Wing), Islamabad, vide their U.0. No. D-525-Reg. (6)/79, dated 8-5-1979."
11. With regard to the service with the Federal Government from 18-10-1962 to 17-9-1964 (item 3 of the table in para. 5), the appellant contends that this service ordinarily could not qualify for pension as it was followed by a service with P.I.A.C., and that on 17-9-1964, he severed his connections with the Federal Government by resigning therefrom and that his service from 17-9- 1964 to 31-1-1966 cannot be considered to be service on deputation with the P.I.A.C.
12. In ordinary circumstances, we would have no hesitation in accepting the stand taken by the appellant that his service with N. W. R. And the P.I.A.C. Is not the service as envisaged under section 13(ii) of the Act. However, as already stated, the entire service of the appellant rendered with the N.
W. R. And the P. I. A. C., has been declared to be service qualifying for pension. It is to be seen whether this relation renders the entire service of the appellant as service qualifying for pension under section 13(ii) of the Act.
13. The learned counsel for respondents contends that the appellant has relied on Article 361 of the C.S.R. Only, but has omitted to bring to the notice of the Tribunal the effect of Article 361-A of the C.S.R. This Article reads as follows:-- C.S.R. 361-A.-- The Government of Pakistan may, however, in the case o service paid from General Revenues, even though either or both of conditions (1) and (2) are not fulfilled:--
(1) declare that any specified kind of service rendered in a non-gazetted capacity shall qualify for pension;
(2) in individual cases and subject to such conditions as it may think fit to impose in each case, allow service rendered by an officer to count for pension: Subject to such conditions as it may think fit to impose, the Government of Pakistan may delegate its power under this Article to Provincial Government, Minor Local Governments and Heads of Departments."
The learned counsel argued that since the service of the appellant rendered with N.W.R., and the P.I.A.C., has been declared to be service qualifying for pension, his entire service is to be counted for the purpose of section 13(ii) of the Act.
14. The appellant, however, argues that under Article 361-A ibid only that service which is paid from General Revenues can be counted as service qualifying for pension, the service of the appellant with N.W-.R., and the P.I.A.C., not: being paid from General Revenues does not qualify for pension and, therefore, is outside the ambit of Article 361-A ibid. There may be some doubt about the service with the P.I.A.C., but as far as the service with N.W.R., is concerned, that is a service which is paid from the General Revenues and, as such, is to count towards pension. From the table given in para. 5 of this judgment, it is obvious that the appellant rendered 7 years, 6 months and 5 days service with the N.W.R. There was then service with the P.I.A.C., which, at the worst, if not counted towards pension, is a bridge between the service rendered with N.W.R. And the Federal Government. There is again service with the Federal Government for one year and 11 months (item 3 of table in para. 5). After this, the appellant again went to P.I.A.C., where he rendered service for one year, 4 months and 14 days. This service also can, at the worst, be treated as a bridge between the two services rendered with the Federal Government. Thus, the total service with the N.W.R., and the Federal Government alone exceeds 25 years which qualifies for pension. The order of retirement, in these circumstances, cannot be held to be without jurisdiction or having been passed without the appellant having completed 25 years service qualifying for pension.
15. The question that remains to be decided is with regard to the alleged mala fide of the functionaries of the Government in arriving at the decision that the appellant should be retired from service. In this respect, the appellant brought to our notice several instances which, according to him, show that the Cenrtral Board of Revenue and, to some extent, the Establishment Division were not favourably inclined towards him and that from the date of his selection by the Federal Public Service Commission hurdles were put in the way of the appellant preventing him from joining the service and, thereafter, to continue thereunder or to earn promotion. Our attention was also drawn to a decision of this Tribunal in the appellant's case, in which it was ordered that the appellant be considered for further promotion. This order was not complied with and instead the appellant was retired from service under section 13(ii) of the Civil Servants Act, 1973.
16. The learned counsel for State has, however, argued that firstly this Tribunal cannot examine the question of mala fide in retiring the appellant after completing 25 years service qualifying for pension in view of the bar placed by Article 13 (1) of the Provisional Constitution Order, 1981, and secondly that the facts brought to the notice of the Tribunal do not establish mala fide on the part of any functionary of the Government. In this respect, the learned counsel drew our attention to the case of Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151, where at page 170, it was observed as follows:-- "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri, mala fides must be pleaded with particularly, and one one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case."
The learned counsel for State vehemently urged that on the standard laid down by the Supreme Court, none of the facts brought to the notice of the Tribunal are sufficient to establish mala fide on the part of the Government Departments.
17. On the question of jurisdiction, it has been held in the case of State v. Zia-ur-Rahman PLD 1973 SC 49 and also in the case of Federation of Pakistan v. Saeed Ahmad Khan that the acts which are mala fide are acts without jurisdiction and that no legislative document including the constitutional document saves such acts from the scrutiny of the Courts. However, the jurisdiction of the Tribunal extends only to those matters in which it has been conferred such jurisdiction under the Service Tribunals Act, 1973, read with Article 212 of the Constitution. The said Act ousts the jurisdiction of the Tribunal in certain matters. Article 13(1) of the Provisional Constitution Order, 1981 also ousts the jurisdiction of the Tribunal where retirement has been made from service under the orders of the competent authority after the person in the service completes 25 years service qualifying for pension or other retiring benefits. The jurisdiction of the Supreme Court and the High Court has also been excluded by this provision. As far as this Tribunal is concerned, it is the creation of the Service Tribunals Act and can exercise that jurisdiction only which is conferred on it. When jurisdiction in certain matter is ousted, the Tribunal cannot go into that matter. The position of the High Court, on the other hand, is somewhat different. Article 9 of the Provisional Constitution Order empowers the High Court to adjudicate in matters where no other adequate remedy is provided by law. The jurisdiction of the civil Courts is also analogous, inasmuch as, a civil Court can go into merits of any case where the civil rights of a person are involved. In the case of State v. Zia-ur- Rahman, the decision in the case of Muhammad Jamil Asghar v. Improvement Trust PLD 1965 SC 698 was discussed with approval and it was held that with respect to mala fide, the jurisdiction of the civil Court can never be taken away; for a mala fide act is in its very nature illegal and void and the civil Court can always pronounce an act to be mala fide and, therefore, void. Reference was also made to the case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kqshmiri PLD 1969 SC 14, wherein it was held that the High Court in the exercise of its extraordinary jurisdiction of issuing writs would be entitled to go into the question of mala fide or colourable exercise of power, for such exercise of power is not regarded to be an act in accordance with law.
18. What we have been able to understand from the decisions in the case of State v. Zia-ur- Rehman and Federation of Pakistan v. Saeed Ahmad Khan, is that the High Court in the exercise of its writ jurisdiction and the civil Courts in exercise of its ordinary jurisdiction have full power to set aside an order passed mala fide, even if the law including the constitutional document protects it.
This power vests in the Courts only and not in the Tribunals. We may, however, not be understood to say that when any order relating to the terms and conditions of a civil servant is alleged to be mala fide, the Tribunal cannot set it aside. The correct position is that where the Tribunal has jurisdiction in certain matters, it can strike down an order in respect of such matters when it is established that the order is mala fide. However, if the mala fide is alleged in respect of an order which cannot be questioned even otherwise before the Tribunal, the Tribunal has no jurisdiction to quash it on the issue of mala fide. That power is a general power and vests in the civil Courts and the High Courts whose jurisdiction to examine the mala fide exists even in respect of matters excluded from the scope of scrutiny of the Courts.
19. In view of what we have stated above, we are firmly of the opinion that since the jurisdiction of the Tribunal does not extend to examine the question of retirement of a person by a competent authority after 25 years service qualifying for pension, it cannot examine the question of mala fide which either falls in the domain of the High Court or the civil Court.
20. For the reasons stated above, this appeal is dismissed with no order as to costs.
A.E