1. JUDGMENT Muhamnad Afzal Zullab Chairman, J.-The controversy ia these appeals relates to the p ovtsioas of Section 15 (i) and (ii) of The Civil Servants Act (No. LXX1) of 1973 and similar provisions in the Cantonment as also in the Provincial Service Laws. Except for the p.Ovision ia the law relating to Cantonments service, the others have been declared by the Federal Shariat Court as against the Injunctions of Islam.
2. Seetion 13 reads as follows ; "13, Retirement from service.-A. Civil servant shall retire from service : -
(I) in the Mst of a person holding tho post of Additioaal Searatary to the Federal Government or aay equivalent or higher post, on such data as the competent authority may, in the public interest, direct;
(ii) in any other case, on such date after he has completed twenty-five years of service qualifying for pension or ether retirement benefits as the competent authority may, in the public interest, direct; or
(fil) where no direction is given under clause (i) or, as the case may be, under clause (it), on the completion of the Sixtieth year of his age , Bxplaantion i-In this section "competent authority" means the appointing authority or a person duly authorised by the appointing authority in that behalf, not being a person lower in rank than the Civil servant concerned."
2. It has been provided in sub-clause (lit) that if no direction is given under clauses (0 and (it), the retirement age of a Civil servant would be on completion of sixtieth years of his age. It signifies important aspects of Civil serviea t One.-that normal age of retirement is sixty years ; Two.-that some Civil servants (the two eategories mentioned in clauses (i) and (it)-the affected Civil servants) can be retired prematurely before age of sixty ; Three.-this retirement can be without the consent of the Civil servant-a compulsory curtailment of his normal period of service ; Four-it would be without notice or right of hearing to the affected Civil servant and could also be without enquiry or reasons for the finding regarding public interest; and, Ffro.-when public Sinterest requires the curtailment of normal period of service of the affected person, it also implies that he is not fit to continue in service, except perhaps in few bom fide retrenchment cases.
3. The question arises whether such law is valid on the touchstone of the Islamic injuctions. This Court has in Pakistan v. Public at large (PLD 1986 SC (Shariat Appellate Bench) 240 laid down the procedure and principles in this behalf. At page 23$ of the Report it was observed as follows j "In addition to the foregoing guidance from the Holy Qur'an and Sunnah itself, regarding the importance of the Sunnah in our constitutional and legal system, the main provision of the Constitution itself which confers special jurisdiction on the Federal Shariat Court (Article 203-D), has made it mandatory to discover the Injunctions of Islam, both from the Holy Qur'an and the Sunnah of the Holy Prophet (s.a.w.s.). It is not permissible for Court to ignore or attempt to ignore the Sunnah Although as already discussed in detail, briefly stated again, the exercise by the Court will be as follows : (*) Specify the law or its particular provision which needs to be examined ;
(b) Discover the Qar'anie and/or Sunnah Injunctions which can be attracted to the subject-matter of the law and state and specify the text; (*) Where a direct text is not in conflict, but the same arises from the deductions and principles therefrom, to state so and clarify the same in the manner discussed in the preceding parts of this judgement ;
(d) After due comparison, to state the exact extent of repugnancy, if there is any; of course, after expounding and interpreting the Injunctions; M* ** ... Tl ! ... ...
4. In the above referred case it was held that it is within the jurisdiction of the Court to declare a law as against the injunctions of Quran and Sunnah, even if it is not repugnant to the text, of the Injunctions, if it is in conflict with their principles and or deductions. In this behalf the approach of the Federal Shariat Court is unexceptionable and is approved,
5. Bat in the present ease as would be presently shown the conflict of the impugned provisions is directly with the text of Injunctions and strictly speaking it is not necessary to find out whether any principles deductions from the Injunctions are violated. However, after stating the conflict with some injuctions, it would also be seen whether the conclusions so reached are supportable from the principles and deductions derivable from ether Injunctions.
6. At this stage, the nature of the impugned provisions of law needs to be further examined vis-a- vis their effects, it is clarified that tnis exercise does not relate to the cases of retrenchment which have no nexus witn the conduct of the Civil servant.
7. The retirement is admittedly premature. Thus, it is deprivation of right to continue up to age of sixty which the other civil servants even placed in the same categories, not to talk of the civil servant in general, do not suffer. Right to work in this context is very valuable, widen is denied. This denial is more significant when it is visualised that in both categories, nature, experience and those placed in higher strata are normally hit by these provisions. It becomes more harsh when looked at from the angle that at the relevant stage of one's life and service, he needs the job to show his ultimate worth on the one hand and settle his affairs including family and children on the other. The application of this law also involves element of compulsion. The Civil servant is forced to retire.
3. Although no fault need be attributed and none is in fact attributed; however, the. Rules and practice relating thereto assume that it is not without fault or deficiency. Thus, it carries the stigma and disgrace in the public eye. This inference gets confirmed from the fact tbat the law itself is explieit in informing the enquirer, whosoever may be, that the retirement is in public interest. In other words, that continuance any further in the service of the affected officer is not in the public interest. This cannot be without a fault, deficiency etc. Thus, this type of retirement adversely affects his reputation also. And as the curtailment of service is summary and sudden, the injury to reputation is also pronounced and acts as severe blow to the self-respect and dignity of man.
4. Further, it is hnown in the community of the Civil servants that the normal procedure for premature retirement is through an inquiry and opportunity of showing cause. When an officer is retired under the summary procedure and window of only pronouncement of "puolic interest" without a visible finding on facts in that behalf, it definitely operates as a penalty and thus is a penal action and the provision is penal, Otherwise too, if action is not taken under the impugned law the compulsory retirement under the normal law is a major penalty. Thus, looked at from whatangver angle, the retirement under the impugned laws is a punishment, in a way denial of right to work as also right to earn and right to reputation. If that is so, it has to be seen when so construed, whether they are repugnant to the Injunctions of the Quran and Sunnah. As has been already observed, there are some injunctions which are directly violated by these laws when they are applied without the safe- guards of notice and opportunity of hearing. They would be stated expounded and interpreted presently. In addition there are means of Injunctions, the spirit and underlying principles whereof are also violated. They are stated in the Schedule to this judgement.
5. The first Quranic \ erse to be noticed here is Surah-17, Verse 79. Translated into English it reads as follows ; "NOW, INDEED, we have conferred dignity on the children of Adam, and borne them over land and sea, and provided for them sustenance out of the good things of life, and favoured them far above most of Our creation."
6. A commentator has interpreted the clause as follows; * *>** 1 StL-yi ji Js* I 'J * J*t jjl t uiv < CfijtZ ( t <-jj t (Jfik t ji jjl f |j>.| fc'jjiT jjl jljjl I (tj^.1 fjr] iSjLt W^l 4?U , Together with the afore-quoted clause is to be read clause 93 of Surah 10. "Nor repulse the petitioner (unheard)"
7. It has often been interpreted as relating to charity but it can also be interprpreted as conferring a right to human dignity; that is why it is translated in urdu as ji To the similar effect is Surah 4, Verse 148, which reads as follows j "Allah loveth not that evil Should be noised abroad 1a public speech, exeept Where injustice hath been Done; for Allah Is He Who heareth And knoweth all things."
8. See also Surah 49 Verge 11. "O ye who believe ! Let not some me among you laugh at others. It may he that the (latter) are better than the (former). Nor let some women laugh at others. It my be that the (latter) are better than the (former). Nor defame nor be sarcastic to each other, nor call each other by (offensive) nicknames. Ill-seeming is a name connoting wickedness, (to be used of one) after he has believed. And those who do not desist are (indeed) doing wrong."
8. All these injunctions when expounded in the language of the Sunnah of the holy Prophet (PBUH) would mean also as follows (Taken from Islam-fa-Paujdari Nizam by Abdnl Qadir Audah, translated by Sajidur Rehman Kandhalvi -Islamia Publications Limited).
9. 9.The foregoing narration of some of the Injunctions of the Quran and the Sunnah do establish beyond any shadow of doubt the right to honou: and reputation is one of the inviolable rights of man in addition to othei valuable rights. Can this be taken away without due process as enjoincc by the Quran and Sunnah ?
10. What is that due process can be spelled out from the other Injunctions. Some are general others are specific. Here only few of them are taken from Moqalate-e-Seerat (Part-1) 9th National Seerat Conference 1984-Pare 68 :
11. It is clear from various Injunctions of the Quran that Adal, Qist and Iksan are the components of total and complete justice in Islam. It requires not only equal treatment between man and man out also protects the lights of one against uni air treatment, This part of discussion is closed by quoting from me Commentary of the Holy Quran by A. Yusuf Ah. (S. 16 V-19 Note 21 : it reads as follows; "Justice is a comprehensive term, and may include all the virtues of cold philosophy. But religion asks for something warmer and more human, doing of good deeds even where perhaps they are not strictly demanded by justice, such as returning good fox ill, or obliging those who in worldly language "have no claim" on you : and of course a fortiori the fulfilling of the claims of those whose claims are recognised in social life. Similarly, the opposites are to be avoided : every-thing that is recognised as shameful, and everything that is really unjust, and any inward rebellion against God's Law or our own conscience in its most sensitive form,"
11. Here it would be of advantage to cite three more verses from the Holy Quran where in one or the other from proper/due opportunity of hearing is to be afforded, before an individual's rights are affected : (Translation by A. Yusuf Ali).
12. Surah 4 Verst 83 "When there comes to them some matter touching (Public) safety or fear. They divulge it.
13. If they had only referred it to the Apostle, or to those Charged with authority Among them, the proper investigators would have Tested it from them (direct). Were it not for the grace And Mercy of Allah unto you, All but a few of you would have fallen Into the clutches of Satan."
14. Surah 4 Verse 94 "O ye who believe ! When ye go abroad In the eauie of Allah, Investigate carefully, And say not to anyone Who offers you a salutation t "Thou art none of a believer 1"-Coveting the perishable goods of this life ; With Allah Are profits and spoils abundant. Even thus were ye yourselves Before, till Allah conferred On you His favours : therefore Carefully investigate : For Allah is well aware Of all that ye do."
15. Surah 49 Verse 6 Commentary - F. No. 5 of Muhammad Asad's Translation.
16. "O ye who believe ! If a wicked person comes To you with any news. Ascertain the truth, lest Ye harm people unwittingly, And afterwards become Full of repentance for What ye have done.
17. 5 I.e., verify the truth before giving credence to any such report or rumour. The tale-bearer is characterized as "iniquitous" because the very act of spreading unsubstantiated rumours affecting the reputation of other persons constitutes a spiritual offence.
12. The Shard Nazool of each one of the afore-quoted verses makes it clear that condemning some one without making proper inquiry has been prohibited. The word "Tabeyaanu" in clause 94 has been repeated twice. It is not without significance. Some Commentators have laid great stress on it and gave it the meaning of "investigation" as also "interrogation". This purpose cannot be achieved without a notice and proper opportunity of showing cause.
13. In the light of this brief discussion of the few Quranic Injunctions and in view of what punishment, deprivation and disgrace a civil servant suffers by application of impugned law, can it be said that the Quranic justice visualised above would be satisfied without notice and without affording an opportunity of defence against such an action. The answer is in the negative.
18. 14, . The Quranic Commands in this behalf arc also supplemented and interpreted by Sunnah Injunctions.
19. Sunnah : Commands at Hajat-ul-Wida-Supplement to Paighambar- e-Azam-wa-Akhir by Dr. Naseer Ahmad Nasir-Pages 644 and 646 :
15. Right to property and honour, in addition to life, were alio declared saered which means ; not only that their violation is to be punished and/ or compensated but also that it is to be prevented.
20. In this behalf while the victim needs to be protected against the violation, the one who violates is made accountable. All this cannot be possible without a notice and opportunity of hearing. The denial of these sale-guards for doing Justice would amount to Zulm and Ziaditi against one self as also the victim.
21. Sunnah i-Mishkat-ul-Masabih, An English Translation with Arabic Text of Selection of Ahadis from the Highly Voluminous Works of Bokhari, Muslim and other Traditiooists of Repute, by Al-Haj Maulana Fazlul Karim published by Law Publishing Company, Lahore, Volume-IIChapter XXVI section 7-i282-Administration of Justice. A1-Hadis No. 62 at page 611 ; "Ali reported : The Messenger of Allah sent me to Yemen as a judge. I said : O Messenger of Allah I you are sending me while I am youag in years and I have no knowledge of judge-ship. He said | Verily Allah will soon give guidance to your heart and make your tongue firm. When two persons come to you for decision, don t give decree in favour of the first till you hear the argument of the other, because that is more necessary that decision may become clear to you. He said 11 had afterwards entertained any doubt in decisions, (Tirmizi, Abu Daud, Ibn Majah)'* This Command is specific to the effect that when a public authority Is to be exercised for resolving a controversy regarding rights and liabilities, the decision would not be rendered with out proceedings in which the person affected is also afforded an opportunity of hearing.
22. Two illustrative oases decided by the Holy Prophet (P.B. U.H.) can be cited here with advantage I 0} Case of Hatib bin Abi Balta'a taken from The Translation of the Meanings of Sahih Al-Bukhari (Arabic-English) Volume-VIII by Dr. Muhammad Muhsin Khan, Islamic University, Al-Madina Al- Munawwara, published by Kazi Publications, Ganpat Road, Lahore. Al;Hadis No, 276 at page 182 and 183.
23. '276. Narrated 'Ali (R.U.) ; Allah's Apostle (P.B.U H.) sent me, Az-Zubair bin Al-Awwam and Abu Marthad Al-Ghanawi. And all of us were horsemen, and he said, ''Proceed till you reach Rawdat Khakh where there is a woman from the pagans carrying a letter sent by Hatib bin Abi Balta'a to the pagans (of Meeca)." So we overtook her while she was proceeding on her camel at the same place as Allah's Apostle (P.B.U H.) told us. We said (to her), "Where is the letter which is with you ?"
24. She said, "I have no letter with me." So we made her camel kneel down and searched her mount (baggage etc ) but could not find anything. My two companions said, "We do not see any letter." I said, "I know that Allah's Apostle (P B.U.H.) did not tell a lie. By Allah, if you (the lady) do lot bring out the Utter, I will strip you of your clothes". When she noticed that I was serious, she put her hand into the knot of her waist sheet, for she was tying a sheet round herself, and brought out the letter. So we proceeded to Allah's Apostle (P.B.U.H.) with the letter The Prophet (P.B U.H.) said (to Hatib), "What made you do what you have done, O Hatib Hatib replied, "I have nothing except that I believe in Allah and His Apostle, and I have not changed or altered (my religion). But I wanted to do the favour to the people (pagans of Mecca) through which Allah might protect my family and my property, as there is none among your companions but has someone in Mecca through whom Allah protects his property (against harm).'' The Prophet (P.B.U B ) said, "Hatib has told you the truth, so do not say to him (anything) but good". 'Umar bin Al-Khattab said, "Verily he has betrayed Allah, His Apostle, and the believers 1 Allow me to chop his neck off !'* The Prophet (P.B.U.H ) said, "O 'Umar ! What do you know ; perhaps Allah looked upon the Badr warriors and said, "Do whatever you like, for I havo ordained that you will be in Paradise.' 'On that 'Umar wept and said, "Allah and His Apostle know best.''
(2) Case of a Lewed Woman. Taken from Maqalat-e-Seerat Part-1 (December 1984) 9th National Seerat Conference English section, 'Prophet Muhammad's (P.B.UH.) System of Justice' by Dr. Muhammad Muslehuddin-P. 24 "It is further necessary in Islamic law, that the case must be proved by the evidence of the witnesses of undeniable integrity. The Prophet is reported to have said about a woman against whom there was subsequently liaan or sworn accusation of adultery : "If I were to order lapidation without evidence, I would have ordered it in her c*se, because she appears lewed from her way of speech, demeanour and from her visitors'. But without the requisite evidence, she was not punished' (Sunan Ibne Maja, Vol. II)."
25. Id. One of the above cited cases is within the administrative Justice and the other in the criminal justice. It is common principle which governs the administration of justice in Islam that ia case of liability with peaal or quasi-penal consequences and/or deprivation of basic lights a notice as well as an opportunity of hearing, are of absolute necessity. This by itself has to be recognised as a basic right.
26. In this context few more cases which can be treated as illustrative of the opposite view are also to be noticed ; Case No. 1 taken from Sunan Nisai-Urdu Translation by Dost Muhammad Shakir and Hafix Muhammad Abdul Sattar Qadri, Hamid and Company, Lahore. Volume-Ill, at page 473 I tr I UJ? iSjti \S 4* Ull I |L*J ail KfS'jj\ m (jjjT UM tZnAi. Mjb* c& 17. It is obvious from the reproduced text that ; Firstly, the case relates to a family matter : and secondly, it is illustrative of the right of a wife to use the property of her husband for the expenses of the family in absence of her husband when he either has not provided for the same or has done so too miserly. Such legislation in favour of a wife in matter of maintenance if it ever comes before the Court for examination, one view worth consideration would be that under the Islamic Injunctions the wife has such a right on the property of her husband even if before the exercise thereof the husband is not questioned about the same due to his absence. It is, therefore, clearly distinguishable.
27. Case No. 2 taken from Al-Farooq, Madina Publishing Company, Karachi, Volumes I and II combined page 250 et sequence. It is said that Khalid-bin-Waleed Razi-Allah Unho (R.U.) was administratively dealt with rather punished by Mazrat Umar (RU) without affording him an opportunity of hearing.
28. Shibli No'mani the author of Al-Farooq relates the incident as follows j- plinary action against a Chif Administrator, the set up then was that it would be treated as a constitutional removal, as in our present set up a Governor is removable. The present case does not relate to either the removal of military commanders or governors. However, it needs to be noticed that at both the occasions, demotion as well as removal, Khalid- Bin-Waleed (R.U.) was not only afforded opportunity of showing cause but also he availed of it and rendered answers to the allegations, on first occasion. And on the second occasion the representative of the Caliph did afford an opportunity to him-obviou*ly, it must have been on the direction of the Caliph to aecept or deny the allegations. Be that as it may, it is very important to note that the decision by Hazrat Umar (R.U.) was not based on, as he himself later on stated in various letters obviously to vindicate the honour of Khalid-Bin-Waleed (R.U.) (I.e.) punitive action was not on account of) the latter's mis- conduct.
29. 17.As compared to this it would be appropriate here to refer to the general practice of Hazrat Umar (R.U ) with regard to inquiry, examination and decision of complaints against public servants.
30. Amongst other reforms the Caliph introduced a system of aecountablity in this behalf As Annual Conference in Mecca of Governors and other state officials and civil servants was used to be arranged wherein complaints and grievances used to be inquired into in their presence. It is also necessary to note that he tried to use the same methods in civil administration as were adopted by prophet (P.B U.H.) and the First Caliph dealing with personal and government offioials. See Administrative Development and Islamic Perspective by Muhammad Ali Buraey, Dahran, Saudi Arabia-page 252, Case No. 3 I Dr Taha* Hussain relates the case of Ibne-Abbas (R.U.) in his Book 'Ali Tarifth Aur Siasat kt Roshni main*-Urdu Translation by Abdul Hameed No'mani pages 138 to 147. It may be mentioned here that the learned Author takes note of the fact that this incident has not been noticed by all the commentators and also gave reasons for it. Be that as it may, Hazrat Ali (R.U.) had brought to the notice of Ibne-Abbas (R.U.) a complaint which was against him. Explanation was offered and charge was denied. The subsequent correspondence shows that there was no occasion for fear that he would condemn anybody without due notice and opportunity of showing cause. Therefore, it would not be correct to say that in case of Ibne-Abbas (R.U.) Hazrat Ali (R.U.) had taken any unilateral decision.
18. As against the afore-noted cases it would not be out of place to mention here some of the decided cases involving, one way or the other, some of the Prophets (P.B.U.H.). The narration is contained in the Holy Quran and forum of justice is that of Allah. The notable cases, amongst others, in the present context are that of Hzt Adam (P.B.U.H.) and Hzt Dawood (P.B.U.H.). For all the relevant verses from the Holy Quran, in this behalf, see the Schedule to this judgement. On being misled by Iblees, Hzt Adam (P.B.U.H.) committed the mistake of doing the forbid- dened act whereupon after proper notice the Almighty Allah made him to suffer the consequences In case of Hzt. Dawood, he was found, by Almighty Allah, lacking in fair judgement. When the case on 99 sheep, was presented to him, he without hearing the absent side had given a verdict in favour of the complainant on which he was told about the defect in his decision and was guided accordingly. Although other similar instances of due notice as a demand of Allah's justice can be cited from the Holy Quran, bat it is not necessary. In so fat as the general aspects of the proposition are concerned the relevant verses, however, have been included in the Schedule.
19. Allah's justice, as being inclusive of due opportunity is demonstratable in another manner also.
31. Three instances related in the Holy Quran are highly relevant in this context. Man, Iblees and animals were treated at par by the Almighty Allah in the rendering of justice to them. Regarding man, the example of Hat Adam (PBUH) and Hzt Dawood (PBUH) have already been cited. In so far as man in general is concerned, there are numerous verses in the Holy Quran (refer to the Schedule) which clearly show that on the Day of Judgement everyone will be confronted with the evidence of his deeds during the present life and he would have an opportunity of denial. But the evidence and the atmosphere would be such that he would not be able to deny the strength of the evidence. Here it may be explained that in the exercise of judgment making there are always three main elements: the maker of the judgment, the party/s about whom the judgement is made and the matter/substance of the judgement. As the maker of the judgement in the case under discussion would be Almightly Himself, therefore, it is futile to imagine that he would be making wrong judgement. In any case, man would be made aware of the accusation. And notwithstanding the reality it being question of principle, Allah Almighty has bestowed the right on man to be aware of what he is being punished for. Something can be said about the fact that when made aware, man would have an opportunity of offering an explanation or making a plea of guilty or denial. In other words, there would be an opportunity of making a plea regarding accusation. But mostly the opportunity when availed of would result in the plea of admission as the evidence would be strong and over-whelming.
20. Next instance is that of Iblees. He was scolded for having misled Hzt Adam (P.B.U.H) into dis- obedienee of Allah's Command. Although, it had all happened in the presence of the Judge (Almighty Allah), the accused (Iblees) and Hzt Adam (PBUH); and, may be, upon the now prevailing judicial norms, it could be said that there was no need for an inquiry; yet Allah Almighty called upon Iblees to explain his conduct. It was after hearing the explanation from him which was not found tenable, that he was condemned and punished for all times to come.
32. The third instance relates to demonstration of Islamic justice even when the delinquent involved is an animal. The case relates to the reign of Hzt Suleman (P.B.U.H.) when Hudhud was found amiss in the performance of some duties. It may be mentioned here that in the context of Hzt Suleman's
(PBUH) dominion over Mulk, man and animals, the bird was performing the functions of a state servant. It is clearly stated in the Quran that Hzt. Suleman (P.B.U.H) did not render judgement in the matter til], according to him, the bird was summoned and heard in an opportunity of showing cause against the accusation.
33. A critic may say that these instances do not apply to the present case in strict sense. True, there may not be any direct application but they do reveal the philosophy underlying Allah's justice. Man having been born in the image of Allah cannot be permitted, in matters of judgement, to do injustice. There are innumerable Commands in the Quran and Sunnah, in this behalf. And what is justice or injustice and bow it should be rendered, man has been guided through the instances narrated above and others. It will be a folly to treat them as mere stories or just having a value of part time. This view gets further strengthened by the fact that the Holy Prophet (P.B.U.H.! Left with us the Sunnah Injunctions already noticed whieh in turn have to be expounded and interpreted in accordance with the guiding principles and cases contained in the Holy Quran. Thus, it is the combined reading and interpretation of both the Quran and Sunnah that the best possible results with regard to the understanding of the Injunctions can be achieved.
24. It has been argued from the Government a side that the State when exercising disciplinary powers over its employees' is in reality discharging functions as representative of Almighty Allah and this being public power is exercised in public interest. It should be immune from the ordinary rules of rendering justice as the public interest could not be sacrificed for the sake of the individual.
34. It is the same old theory of divine prerogative which has been given up even in the West. The Quran and Sunnah and the principle underlying the same which this Court is bound to follow cannot support any such theory. Allah in His Supreme Wisdom has declared that: If anyone slew a person.............. It would be as if he slew the whole people. And if anyone saved a life it would be as if he saved the life of the whole people,"
25. Therefore, generally speaking, exceptions which are deducible from the Quran and Sunnah apart, the rights of any individual eannot be sacrificed on the mere assumption that it is in public interest. On the contrary it is also in public interest as is visualised by the Islamic Injunctions that justice in the Islamic sense be meted out to the individual, That will serve the public interest in more than one way and in addition the observance of the Islmic Injunctions, in this behalf, would attract the benefactions of Almighty Allah,
26. Actually the action in public interest, is in essence, the discharge of a public trust which (in an Islamic polity) was explained by this Court, in the well-known case of Miss Asma Jilani v. The Government of the Punjab and another PLD 1972 S.C. 139-at Pages 182 and 235, as follows j- P.182. "The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign or commits any other breach of trust or fails to discharge his obligations under a trust. The functional Head of the State is chosen by the community and has to be assisted by a Council which must hold its meetings in public view and remain accountable to public. It is under this system that the Government becomes a Government of laws and not of men, for, no one is above the law. It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system "the law rules through the utterance of justice, and the power of the Governor carries out the utterance of it."
35. P.235. "We should, therefore, turn more appropriately to Islamic jurisprudence for the definition of "law". One method of defining "law", is to know its source. In Shariat laws have divine origin. They are contained in the Holy Quran, and Hadith, namely, precepts and actions of the Holy Prophet (peace be upon himj. The other sources are Ijma* : Consensus and juristic deductions including Analogy, Istihsan or Juristic Equity, Public Good, Istidlal; Reason and Ijtihad; Juristic Exposition. While Juristic Deductions are judge-made laws, lima' is based on the doctrine of Imam Shafi'i that "the voice of the people is the voice ot God", and is the most fruitful source of law-making in Shariat."
36. It is true that in sub-para (tit) at Page 254 of our decision in Pakistan v. Public PLD 1986 S.C. 240 we approved the use of Rules of Masalah and Urf amongst others and it might have been of advantage to examine them in the present context. But it is not necessary to do so because the controversy can be resolved by direct resort to the Quran and Sunnah. However, the commentaries on Urf Am. Including by Imam Abu Hanlfa, might be relevant (See Hayat of Hzt Abu Hanifa by Muhamman Abu Zahar, translated by Ghulam Ahmad Hurari, published by Malik Sons, Tajran Kutab, Faisalabad ; and, Research Institute, Islamabad, on doctrine of Masalah.
27. Itwas also argued that the impugned provisions of law amount to a contract between the Government and the Civil Servant and thus they involve his consent. In fact, it is not in the nature of a free consent between free agents. On the one hand. State power is projected in the form of the Statute and on the other, the civil servant has no choice of a bargain on these provisions when joining the service. He cannot get it changed. In this sense it is distinguishable from a true "contract appointment", by the Government which, of course, would be dealt with differently. This assumption is supported by the language of the provision. The retirement has to be in "public interest". This element needs determination of a factual nature in each case. There is no question of consent by the affected person that his retirement would in fact be in public interest. In this behalf, there is no difference between retirement due to mis-eonduet and retirement due to public interest. In either ease, there has to be a determination and finding of fact. If in one there cannot be assumed any consent, it cannot be assumed in the other also. Thus, if the law provides safeguards against unjust retirements, it will not be the negation of the Quranic provision on contract and consent. Similarly, the arguments based on the relationship of master and servant in matter of unilateral removal without notice; as also, the husband and wife, on the question of unilateral action on the part of the husband in connection with talaq are untenable, as they are clearly distinguishable. Moreover, it may be explained that the controversy regarding the relative rights of each party in these two instances and the law if any relating thereto are not before the Court for examination, in this case. E g. It might need consideration whether 'talaq', which is a permitted act but abhorable also, can be pronounced without justifiable cause. It is, therefore, not necessary and proper to make any further comment on this argument advanced from the side of the appellants.
37. 2B. In the light of the foregoing discussion the conclusion drawn is that the impugned provision of law as they stand at present are against the Injunctions of Islam contained in the Quran and Sunnah, as explained above. The next question is whether the only way out to remove the repugnancy is the total repeal of those provisions or their amendment or repeal and re-enactment, would serve the purpose. The latter course would also be possible by introducing the minimum safe-guards, providing, of course, also the exceptions permissible under the Islamia Injunctions. Another possibility can also be visualised 'hat the procedure of retirement after due notice under the impugned provisions be prescribed in the rules.
29. All this would also apply to Cantonments* employees involved in Shariat Appeal No. 14 of 1984.
38. There is no valid reason for creating any distinction between these and the Civil servants covered by the Civil Servants Acts. The Cantonment Boards are the institutions acting in connection with the affairs of the Federation. Moreover, they are such local authorities who are subject to even the writ jurisdiction of the High Courts. Their employees perform public service. For purpose of the questions involved in this case relating to the application of the Injunctions of Islam to the rules of service of the employees of Cantonment Boards, which admittedly fall within the definition of law for this purpose, the case of those employees cannot be treated differently.
30. It is, however, clarified that the other provisions of those laws including the rules made there- under are not in question, in these appeals. There fore, the treatment of other public or Civil servants including temporary, ad hoc or those purely on contract, the military employees, the state functionaries like the Governors, private and company employees etc, or, for that matter treatment of exceptional cases including those of emergency, and/or state security, by various provisions of laws and rules is not involved in these appeals. This decision, therefore, will be restricted to question of retirement of Civil Servants of two categories mentioned in the opening part of this judgement. It is also clarified that when a new law is made regaruing tnese employees it will be open for the law makers to make provision for exceptional eases, permissible by the Injunctions of Islam including the Quran and Sunnah together with the principles.
39. 31, With the above clarifications appeals No. 6 of 1983, No. 15,19 and 34 of 1984 and No, 1 of 1985, are dismissed and Shariat Appeal No. 14 of 1984 is allowed with the direction that the relevant provisions be repealed with option of re-enactment or amendment so as to make provision for the issuance of proper show-cause notice followed by opportunity of showing can se against the relevant retirement, with option to make special provisions including those relating to exceptional cases as already indicated. The appellant in cases other than S. Appeal No. l4of lv84 shall pay the costs of those who appeared to oppose them at the rate of Rs.
40. 3,000 per individual. The appellant in Shariat Appeal No. 14 of 1984 shall be paid Rs. 3,000 as costs by the respondents therein.
41. S. A. No. 6/1983 SCHEDULB to the S. As. Nos. 14 ; 15 ; 19 St 34 of 1984 Jundgment S. A. No. l/195 Part-1.
42. Selected verses from the Holy Quran translation by A. Yusuf AU.
43. Sura Ac. 7 V,rse 21-33.
44. And he (Iblis) swore to them (Adam & his wife) Both, that he was Their sincere adviser, So by deceit he brought about Their fall, when they Tasted of the tree. Their shame became manifest To them, and they began To sew together the leaves Of the Garden over their bodies. And their Lord called Unto them : "Did I not Forbid you that tree, And tell you that Satan was an avowed Enemy unto you?"
45. They said. "Our Lord 1 We have wronged our own souls : If thou forgive us not And bestow not upon as thy mercy, we shall Certainly be lost. (Allah) said "Get ye down, With enmity between yourselves.
46. On earth will be your dwelling place And your means of livelihood. For a time." He said, "Therein shall ye Live, and therein shall ye Die. But from it shall ye Be taken out (at Last)."
47. Sura Na. 38 Verse 71-85.
48. Behold, the Lord said To the angel. "I am About to create man From clay. "When I have fashioned him (In due proportion) and breathed Into him to My spirit. Fall ye down in obcsance Unto him". So the angels prostrated themselves All of them together;. Not so Iblis; he was houghty, and became One of those who reject Faith, (Allah) said. "0 H blis ! What prevents the from Prostrating thyself to one Whom I have created with My hands? Art thou haughty? Or art thou one Of the high (and mighty) ones? (Iblis) said: "I am better Than he; Thou createdst Me from fire, and him Thou ereatedst from clay." (Allah said: Then get the Out from here: for thou Are rejected, accursed. "And My ourse shall be On the till the Day Of judgment." (Iblis) said: "O my Lord! Give me then respite Till the Day The (dead) are raised." (Allah) said; 'Respite then Is granted the "Till the Day Of the Time Appointed." (Iblis) said: "Then, by Thy Power, I will Put them all in the wrong:-"Except Thy Servants Amongst them, sincere And purified (by Thy grace)." (Allah) said : "Then It is just and fitting-And I say what is Just and fitting-*'That I will certainly fill Hell with the And 'those that follow the. Everyone." Say : "No reward do I ask Of you for this (Quran), Nor am I a pretender. This is no less than A Message to (all) The Worlds "And ye shall certainly Know the truth of it (all) After a while."
49. Sura No. 7 Verse 11, 12.
50. It is we who ereated you And gave you shape ; Then we bade the angels Bow down to Adam, and they Bowed down, not so Iblis ; He refused to be those who bow down. (Allah) said : "What prevented Thee from Bowing down when I commanded the? He said : "I am better Than he 5 Thou didst create Me from fire and him from clay."
51. Sura No. 7 Verse 21-23 "And he Swore to them Both, that he was Their sincere adviser." "So by deceit he brought about Their fall: When they Tasted of the tree. Their shame became manifest To them, and they began To sew together the leaves Of the Garden over their bodies. And their Lord colled Unto them : "Did I not Forbid you that tree And tell you that Satan was an avowed Enemy unto you ?
52. Sura No. 38 Verse 11-26 Have patience at wbat they Say, and remember Oar Servant David, the man of strength For he ever turned (to Allah). It was We that made The hills declare. In unison with him. Our Praises, at eventide And at break of day, And the birds gathered In assemblies) ; all with him Did turn (to Allah). We strenthened his kingdom, And gave him wisdom And sound judgment In speech and decision. Has the Story of The Disputants reached the ? Behold 1 they climbed over The wall of the private chamber; When they entered The presence of David, And he was terrified Of them, they said : "Fear not; we are two Disputants, one of whom Has wronged the other : Decide now between us with truth, and treat us not With injustice, but guide us To the even path "This man is my brother; He has nine and ninety Ewes, and I have (but) one; Yet he says. "Commit her To my care and is (moreover)
53. Harsh to me in speech." (David) said ; "He has Undoubtedly wronged the In demanding thy (single) ewe To be added to his (flock Of) ewes ; truly many Are the Partners (in business) Who wrong each other s Not so do those who believe And work deeds of righteousness, And how few are they?" And David gathered that We Had tried him : he asked Forgiveness of his Lord, Fell down, bowing (In prostration) and turned (To Allah in repentence) "So We forgave him This (lapse): he enjoyed Indeed : of Near Approach to Us. And of beautiful Place Of (final) Return. O David : We did indeed Make the of vicegerent On earth : so judge thou Between men in truth, (and justice): Nor follow thou the lusts (Of thy heart), for tbey will Mislead the from the Path Of Allah : for those who Wonder astray from the Path Of Allah, is a Penalty Grievous, For that they forget The Day of Account.
54. Sura No. It Verse 31 (The King) said (to the ladies); "What was your oflfair when ye did seek to seduce Joseph from his
(true) self ? Preserve us ; "Allah Preserve us! No evil know we against him ! Said the 'Aziz's wife "Now is the truth manifest (To all) ; it was I who sought to seduce him From his (true) self 1 He is indeed of those who are (ever) true (and virtuous).
55. Sura No. 12 Verse 55-56 (Joseph) said ; "Set me Over the store-house of the land I I will indeed guard them, As one that knows (Their importance)." Thus did we give Established power to Joseph in the land, to take possession Therein as. When, or where we pleased. We bestow of our lost, the rew rd of those who do good.
56. Sura Mo. 27 Verse 20-71-22 And he took a muster of the Birds ; and he said; "Why is it I see not The Hoopoe ? Or is he among the absentees ?
57. I will certainly punish him with a severe penalty, Or execute him, unless he Bring me a dear reason (For absence)."
58. But the Hoopoe tarried net Far ; he (come up and) said : "I have compassed (territory) And which thou host not compassed, and I have come to the From Saba with tidings trae.
59. Sura No. 11 Verse 134 That was a people that hath passed away. They shall reap The fruit of what they did, and ye of what ye do ; of their merits There is no question in your ease Sure No. 11 Verse 141 j- "That was a people that hath passed away. They shall reap the fruit of what they did, And ye of what ye do I Of their merits There is no question in your case."
60. Sura No. 11 Verse 178 1- "Ye who believe The law of equality is prescribed to you in ease of murder : The free for the free. The slave for the slave. The woman for the woman. But if any remission is made by the brother of the slam, then grant Any reasonable demand, And compensate him with handsome gratitude | This is a concession and a merey from your Lord. Alter this whoever Exceeds the limits shall be in grave penality.
61. Sure No. 11 Verse 313 I Mankind was one single nation, And Allah sent Messengers with glad tidings and warnings ; and with them he sent the book in truth ; To judge between people in matters wherein they differed ; But the people of the Book, After the clear Sing came to did not differ among themselves. Except through selfish contumacy. Allah by His Orace guided the believers to the Truth, concerning that wherein they differed. For Allah guides.
62. Sura No. 4 Verse 41-43 i- How then if we brought From eaeh People a witness! And we brought the As a witness against These People.
63. On that day Those who reject Faith And disobey the Apostle will wish that the earth were made one with them But never will they hide A single fact from Allah 1 Sura No. 4 Verse 55-59 Allah doth command you To render back your Trusts to those to whom they are due ; and when ye judge between man and man, That ye judge with justice ; Verily how excellent is the teaching which he giveth you : For Allah is he who heareth and seeth all things.
64. O ye who believe ; Obey Allah, and obey the Apostle, and those charged with authority among yon, If ye differ in anything among yourselves, refer it to Allah and his Apostle, if ye do believe in Allah and the Last Day : That is best suitable fev final determination.
65. Sara No. 4 Versa 53 ;- When there comes to them Some matter touching (Public) safety or fear, they divulge it. If they had only referred it to the A- postle or to those charged with authority among them, the proper investigation would have tested it from them (direct). Were it not for Grace and Mercy of Allah unto you, all but a few of you would have fallen into the clutches of Satan.
66. Sura No. 4 Verse 56 $- When a (Courteous) greeting is offered you, meet it with a greet* ing still more courteous, (at least) of equal courtesy. Allah takes careful account of all things.
67. Sura No. 4 Verse 94 : Ye who believe 1 whea ye go abroad in the cause of Allah, investigate carefully, and say not to anyone who offers you a salutation : "Thou ait none of a Believer 1 Coveting the perishable goods of this life : With Allah are profits and spoils abundant. Even thus were ye yourselves before, till Allah conferred on you his favours I therefore carefully investigate : for Allah is well aware of all that ye do.
68. Sura No. 4 Verse 105 We have sent down to these the Book in truth, That thou mightest judge between men, as guided by Allah j so be not (used) As an advocate by those who betray their trust; Sura No. 4 Verse 115 If anyone cantends with the Apostle even after Guidance has been plainly conveyed to him, and follows a path other to him, than that becoming to men of Faith, we shall leave him in the path he has chosen, and land him in Hell, what an evil refuge ?
69. Sura No. IV Verse 135 Ye who believe ! Stand out firmly For justice, as witnesses To Allah, even as against Yourselves, or your parents Or your kin, and whether it be (against) rich or poor ; For Allah can best protect both.
70. Follow not the lusts (Of your hearts ; lest ye Swerve, and is ye Distort (justice) or decline To do justice, verily Allah if well acquainted With all that ye do. ^ Sara No. 1V Verse 148 Allah liveth not that evil Should be noised abroad In public speech, except Where injustice hath been Done : for Allah Is He who heareth And knoweth all things.
71. Sura No. V Verse 9 \- Oye who believe I Staid out firmly For Allah, as witnesses To fair dealing, and let not the hatred of others To you make you swerve To wrong and depart from justice. Be justj that is Next to Piety ; and fear Allah, For Allah is well acquainted with all that ye do.
72. Sura No. V Verse 42 j- But if the their repent After his crime. And amend his conduct, Allah turneth to him In forgiveness; for Allah Is oft-For- giving, Most Merciful.
73. Sura No. V Verse 47 j- It was we who revealed The Law (to Moses) ; Therein was guidance and light By its standard have been judged The Jews, by the Prophets who bowed (as in Islam) To Allah's will, by the Rabbis and the Doctors of Law ; For to them was entrusted The protection of Allah's Book And they were witnesses thereto ; Therefore fear not men But fear Me, and sell not My signs for a miserable price. If any do fail to judge By (the light of) what Allah Hath revealed, they are (No better than) unbelievers.
74. Sura No. V Verse 45-46 : * (They are fond of) listening To falsehood, of devouring Any thing forbidden. If they do come to there. Either judge between them. Or decline to interfere. If thou decline, they cannot Hurt the in the least. If thou judge, judge In equity between them ; For Allah liveth those Who judge in equity. But why do they come To the for decision, When they have (their own) Laws before them ? Therein is the (plain) Command of Allah { yet Even after that, they would Turn away. For they Are not (really) People of Faith.
75. Sura No. V Verse 48 1- We ordained therein for them ; Life for life, eye for eye, Nose for nose, ear for ear, Tooth for tooth, and wounds Equal for equal" But if Anyone remits the retaliation By way of charity, it is An act of atonement for himself. And if any fail No judge By (the light of) what Allah Hath revealed, they are (to better than) wrong- doers.
76. Sura No. V Verse 1161- They said I We only wish To eat thereof and satisfy Our hearts, and to know That thou hast indeed Told us the truth ; and That we ourselves may be Witnesses to the miracle.
77. Sura No. VI Verse 116 Were thou to follow The common run of those On earth, they will lead Thee away from the way Of Allah. They follow Nothing but conjecture j they Do nothing but lie.
78. Sura No. VI Verso 131-38 (The apostles were sent) thus, For thy Lord would not Destroy for their wrongdoing Men's habitations whilst Their oceupants were unwarned. To all are degrees (or ranks) According to their deeds; For thy Lord Is not unmindful Of anything that they do.
79. Sura No. VI Verse 151J - And come not nigh To the orphan's property, Except to improve it, Until he attain the age Of full strength ; give measure And weight with (full) justice ; Ne burden do we place On any soul, but that Which it can bear ; Whenever ye speak, speak justly, Even if a near relative Is concerned : and fulfil The Covenant of Allah ; Thus doth He command you, That ye may remember.
80. Sura No. VI Verse 160 i- He that doeth good Shall have ten times As much to his credits He that doeth evil Shall only be recompensed According to his evil t No wrong shall be done Unto (any of) them.
81. Sura No. VI Verse 161 {- Say I "Verily, my Lord Hath guided me to A way that is straight, A religion of right, The Path (trod) by Abraham The true * in faith. And he (certainly) Joined not gods with Allah."
82. Sura No. VII Verse 9 t- The balance that day Will be tree (to a nicety) { Those Whose scale (of good) Will be heavy, will prosper I Sura No. VII Verse 29 : Say I "My Lord hath commanded justice ; and that ye set Your whole selves (to Him) At every time and plaoe of prayer, and call upon him, Making your devotion sincere As in His sight j Such as He created you In the beginning, so Shall ye return.
83. Sura No. VII Verse 42 ;- But those who believe And work righteousness. No burden do we place On any soul, but that which it can bear, They will be companions Of the Garden, therein To dwell (for ever).
84. Sura No. VII Verse 85 To the Madyan people We sent Shu'aib, one Of their own brethren ; he said ; "O my people worship Allah : Ye have no other god But Him. Now hath come Unto you a clear (Sign) From your Lord 1 Give just Measure and weight, nor withhold From the people the things That are their due ; and do No mischief on the earth After it has been set In order that will be best For you, if ye have Faith.
85. Sura No. VII Verse lif j- "Those who follow the Apostle, The unlettered Prophet, Whom they find mentioned In their own (Scriptures), In the law and the Gospel; For he commands them What is just and forbids them What is evil: he allows Them as lawful what is good (And pure) and prohibits them From what is bad (and impure) He releases them From their heavy burdens And from the yokes That arc upon them.
86. Sura No. XIV Verse 51 That Allah may require Each soul according To its deserts : And verily Allah is Swift In calling to account.
87. Sura No. XVI Verse 33-34 i- Do the (ungodly) wait until The angels come to them. Or there comes the command Of thy Lord (for their doom)? So did those who went Before them. But Allah Wronged their own souls. But the evil results Of their deeds overtook them. And that very (wrath) At which they had scoffed Hammed them in.
88. Sura No. XVI Verse 90 S- Allah commands justice, the doing Of good, and liberality to kith And kin, and He forbids All shameful deeds, and injustice And rebellion the instructs you. That ye may receive admonition.
89. Sura No. XVI Verse 111 i- One Day every soul Will come up struggling For itself, and every soul Will be recompensed (fully)
90. For all its actions, and none Will be unjustly dealt with.
91. Sara No. XVI Verse 126 j- And if ye do catch them out, Catch them out no worse, Than they catch you out 9 But if ye show patience, That is indeed tike best (course) For those who are patient.
92. Sura No. XVl1 Verse 13 to 16 j- Every man's fate We have fastened On his own neck On the Day of Judgment We shall bring out For him a scroll. Which he will see Spread open. (It will be said to him) "Read thioe (own) record : Sufficient is thy soul This day to make out An account against the."
93. Sura No, XVII Verse 13-16 f- Who reeeiveth guidance, Receiveth it for his own Benefit; who goeth astray Doth so to his own loss : No bearer of burdens Can bear the burdens Of another ; nor would we Visit with our wrath Until we had sent A An postle (to give warning . When we decide to destroy A population, we (first) send A definite order to those Among them who are given The good things of this life And yet transgress I so that The word is proved true Against them ; then (it is) We destroy them utterly.
94. Sura No. XVII Verse 70 We have honoured the sons Of Adam ; Provided them With transport on land and sea ; Given them lor sustenance things Good and pure ; and conferred On them special favours, Above a great part Of our Creation.
95. Sura No. XXIV. Verse 4.
96. And those who launched A charge against chaste women, And produce not four witnessess, To support their allegation, Flog reject their evidence Ever after ; for such men Are wicked transgressors; Sura No. XXIV Verse 11.
97. Those who brought forward The lie are a body Among yourselves: think it not To be an evil to you; On the contrary it is good F>r you: to every man Among them (will come The Punishment) of the sin That he earned, and to him who took on himself the lead A Penalty grievous.
98. Sura No. XXIV. Verse 12.
99. Why did not Believers-Men and women-When ye Heard of the affair,-put The best construction on it In their own minds And say, "This (charge) Is an obvious lie ?"
100. Sura No. XXIV. Verse 13.
101. Why did they not bring Four witnesses to Prove it? When they have not brought The witnesses, such men. In the sight of Allah, (Stand forth) themselves as liarsl Sura No, XXIV. Verse. 15.
102. Behold, ye received it On your tongues, And said out of your mouths Things of which he had No knowledge ; and ye had No knowledge : and ye thought It to be a light matter, Wnile it was most serious in the sight of Allah.
103. Sura No. XXtV. Verse 16.
104. And why did ye not. When ye heard it, say "It is not right of ns To speak of this : Glory to Allah 1 this is A most serious slander 1 Sura No. XXlV. Verse. 17.
105. Allah doth admonish you, That ye may never repeat Such (Conduct), if ye Are (true) Believers.
106. Sura No. XXIV. Verse. 18.
107. And Allah makes the Signs Plain to you: for Allah Js full of knowledge and wisdom, Sura No. XZIV. Verse. 24.
108. On the Day when their tongues, Their hands, and their feet will bear witness against them As to their actions.
109. Sura No. XXIV. Verse. 49-51.
110. When they are summoned To Allah and His Apostle In order that he may judge Between them, behold gome Of them decline (To come). But if the right is On their side, they come To him with all submission. Is it that there is A disease in their hearts? Or do they doubt, Or are they in fear. That Allah and His Apostle Will deal unjustly with them ? Who do wrong. The answer of the Believers.
111. When summoned to Allah And His Apostle, in order That he may judge between them. Is no other than this : They say, "We hear and we by". It is such as these That will attain felicity.
112. Sura No. XXVIH. Verse. 26-27.
113. "Said one of the (damsels): "O my (dear) father engage Him on wages; truly the best Of man for the to employ is The (man) who is strong and trusty." Sura No. XXVIH. Verse. 27.
114. He said "I intended to wed One of these my daughters To the, en condition that Thou serve me for eight years. But if thou complete ten years, It will be (grace) from the. But I intend not to pl*ce Thee under a difficulty : Bara No. XXVIH. Verst. 59.
115. Nor was thy Lord the one To destroy a population until He had sent to its Centre An Signs : nor are We Going to destroy a population Except when its members Practise inequity.
116. Sure No. XXVIH. Verse. 84.
117. If any does good, the reward To him is better than His deed; but if any Does evil, the doers of evil Are only punished (to extent) Of their deeds.
118. Sure No. XXVIH. Verse. 46.
119. And dispute ye not With the people of the Book, Except with means better Than mere disputation), unless it be with those of them who inflict wrong (and injury) But say, "We believe in the Revelation which has Come down to us and in that Which came down to you ; Our Allah and your Allah Is one, and it is to Him We bow (in Islam).
120. Sure No. XXXIV. Verse. 25.
121. Say: "Our Lord will gather us Questioned as to our sins, Nor shall we be questioned As to waht ye do."
122. Sura No. i(XXIV. Verse. 33.
123. Those who had been despised Will say to the arrogant ones ; "Nay ! It was a plot (Of yours) by day and by night 5 Beholdl ye (Constantly) ordered. To be ungrateful to Allah And to attribute equals to Him.*' They will declare (their) repentance. When they see the Penalty : We shall put yokes On the necks of the Unbelievers) It would only be a requital.
124. Sura No. XXXI X. Verse. 69.
125. And the Earth will shine With the glory of its Lord 3 The Record (of Deeds) Will be placed (Open) The Prophets and the witnesses Will be brought forward : And a just decision Pronounced between them ; And they will not Be wronged (in the least).
126. Sura No. XL1. Verse. 46-47.
127. Whoever works righteousness Benefits his own soul; Whoever works evil, it is Against his own soul s Nor is thy Lord ever Unjust (In the Least) To his servants. To him is referred The knowledge of the Hour (Of judgment; He knows all) : No date fruit comes out Of its sheath, nor does A female conceive (within Her womb) nor bring forth (Young), but by His Knowledge. They day that (Allah) will Propound To them the (Question) "Where are the Partners (Ye attributed) to Me? They will say,"
128. We do Assure the not one Of us can bear witness".
129. Sura No. XL1X. Verse. 6.
130. O ye who believe I If a wicked person comes To you with any news, Ascertain the truth, lest Ye harm people unwittingly. And afterwards becomes Full of repentance for What ye have done, Hra No. XL1X Verse 10-13.
131. The believers are but A single Brotherhood : So make peace and Reconciliation between your Two (contending) brothers; And fear Allah, that ye May receive Mercy. O Ye who believe j Let not some men Among you laugh at others : It may be that The (latter) are better That the (former) } Nor let some women Laugh at others It may be that The (latter) are better Than the (former) Nor defame nor be Sarcastic to each other, Nor call each other By (offensive) nicknames; Ill-seeming is a name Connoting wickedness, (To be used of one) After he has believed And those who Do net desist are (Indeed) doing wrong. O Ye who believel Avoid suspicion as much (As possible): for suspicion In some eases is a sin; And spy not on each other. Nor speak ill of each other Behind their backs.
132. Would any Of you like to eat The flesh of his dead Brother? Nay, ye would Abhor it............ But fear Allah : For Allah is Oft-Retuning, Most Merciful.
133. No I L. n.Ai.
134. And there will come forth Every soul; with each will be an (angel) to drive. And an (angel) to Bear wisness. (It will he
7. In the result, I set aside the impugned order of the Labour Court No IV Karachi and order the reinstatmeat of the appellant forthwith. As regards the back beneifits, he be paid only 50% (fifty per cent) of the back benefits.
8. It is amazing that the impugned order has not dealt with the defence witnesses at all. He has not attended or referred the defence version and he has entirely placed reliance on the version of the respondents establishment. Therefore, the result is that the appellants do not seem to be guilty and I dis-agree with the impugned orders passed by the Learned Labour Court. They merit to be reinstated. Accordingly the appeals of these two appellants are allowed and they be reinstated. As regards the back benefits, I am reluctant to give them the back benefits, therefore, they be only reinstated forthwith.
9. It appears that for the purpose of payment of Social security contributions, pay roll or wage sheet are to be first approved by the Institution Wd if they are not approved then alternatively *1 Contribution Schedule"
11. Record clearly shows that the finding of the Commissioner Social Security's was not justified. No objection was taken on the use of form of "MILL WAGE " by the Establishment which was being so used since the inception of the Establishment. Social Security Ordinance is promulgated to provide benefits to certain employees or their dependents in the event of sickness, maternity, employment injury or death, and for matters ancillary thereto. This ordinance exempts overtime from the payment of social security contribution for the reason that it is not part of wages. It is for the Establishment to maintain the record and the wage sheet produced was not objected to by the institution, as such it was a valid document for all intents and purposes particularly when it had a separate subheading for overtime Audit team inspected the record of the Establishment repeatedly and sufficient proof was provided by the Establishment in support of overtime, which should have been accepted in the ordinary
6. I have heard Mr. S. M. Kohistani, the learned Advocate for the appellant. An application for adjournment of the hearing was sent by the learned representative of the respondent establishment, which was rejected. None was present on behalf of the respondents. However, statement of Dr. Capt, Muhammad Hussain was recorded by this Tribunal, It was contended by Mr. S. M. Kohistani for the appellant that as the respondent management did not like the appellant and was making efforts to get rid of him, therefore, he was involved in a false case of the theft of 106 cartons of soap-cakes and got arrested by the police and in eonseqoence thereof a challan was submitted by the Police against the appellant before the ACM. III (West) Karachi and thus the appellant was in police custody. It was further pleaded by Mr. Kohistani that while the proceedings were pending before the Magistrate, the respondent sent him a charge-sheet for the sub-judice offence and this charge-sheet was not served upon him and after hi s release on bail, the appellant was not permitted to roiume his duties. Further, it was argued that the domestic said) "Thou wast heedless Of this: now have we Removed the evil, A nd sharp is thy sight This Day!'* ,111. 21.
135. And those who believe And whose families follow Them in Faith-to them Shall we join their families; Nor shall we deprive them (Of the fruit) of aught Of their works { (Yes) is each individual In pledge for his deeds."
136. Sura No. LV. Verse. 7-9 And the Firmament has He Raised high, and he has set up The Balance (Of Justice), In order that ye may Not transgress (due) balance. So establish weight with justice And fall not short In the balance.
137. Sura Na, LX, Verse. 8.
138. Allah forbids you not, With regard to those who Fight you not for (Your) faith Nor drive you out Of your Homes, From dealing kindly and justly With them; for Allah loveth Those who are just.
139. Sura No. LXV. Verse. 7.
140. Let the man of means Spend according to His means1 and the man Whose resources are restricted, Let him spend according To What Allah has given him. Allah puts no burden On any person beyond What he has given him. After a difficulty, Allah Will soon grant relief.
141. Sura No. LX1X Verse. 30.
142. (The stern command will say) "Seise ye him. And bind ye him,"
143. Sura No. LXXV. Verse. 13-15 That Day will Man Be told (all) That he Put forward, and all that he put back. Nay, man will be Evidence against himself, Even though he were To put up his excuses.
144. Sura No. LXXV1. Verse. 4-3.
145. We showed him the way; Whether he be grateful Or ungrateful (rests on his will). For the Rejecters We have prepared Chains, yokes and A Blazing fire, LXXXI. Verse. 8-9.
146. When the female (infant), Buried alive, is questioned For What crime She was killed,"
147. Sura No. LXXXII. Verse. 10-11.
148. But verily over you (Are appointed angels) To protect you. Kind an honourable. Writing down (Your deeds).
149. Maq-Afat-e-Seerat, Part -1 9th National Seerat Conference, 6-7 December, 1984.
150. "If I were to order lapidation without evidence, I would have ordered it in her case, because she appears lowed from her way of speech, demeanour and from her visitors'. Bat without the requisite evidence, she was not punished' (sunaa Ibne Maja, Vol.II)."
151. "The Prophet said to his cousin Alt when he was appointed as the Governor of Yemen ; "O Ali, people will come to you for justice. If two contestans come to you for decision, do not rule for the one, before you have equally haired the other. It is more proper for truth to become evidence to you and for you to know what is right' (Tirmidhi)".
152. The Prophet said (People are like the teeth of a comb) Address at the last Haj or Hajjatuwida).
153. "No Arab has any superiority or excellence over a non-Arab and no red-coloured man has any superiority or excellence over any black coloured man, save in respect of piety and fear of Allah".
154. "No Arab has any superiority over a non-Arab, nor any non-Arab ever an Arab nor any white man over a black man, nor a black man over a white man, save in respect of piety and fear of Allah".
155. 'By Allah if Fatima daughter of Muhammad (P.B.U.H) had committed theft, I would have certainly cut off her hand (agreed)".
156. "The famous tradition of the Prophet has it that when Hazrat Mo'az bin label Was appointed as the Governor and the Chief Judge of Yemen he asked him how would he proceed to decide matters coming before him for decision. According to the injunctions of the Holy Quran replied he. What if no such injunctions is available ; inquired the Prophet? Then according to the Sunnah replied Hazrat Ma'az. But suppose no such Sunnah is available, again inquired the Prophet. In that case I shall exert (Ijtahad) and apply myself submitted Hazrat Ma'az. You are so right confirmed the Prophet. (Islami Sayasat by Maulana Gauhar Rahman Darul Uloom Tafheemul Quran Mardan, Second Edition Page 379)."
157. There is yet another tradition of the Holy Prophet whieh has come down to us from Hazrat Ali. He inquired from the Prophet what if we are faced with a situation whieh can not be answered by referring to the direction or guidance in the Holy Quran or Sunnah "They consult and go by the advice of those who are experts in Shariah instructed the Prophet (Majmae Zavaid, as quoted by Maulana Gouhar Rahman in his Islamic Sayasat page 283)".
158. Nasim Hasan Shah, J.-This judgment will dispose of Shariat Appeal No. 9 of 1983 ; Shariat Appeals Nos. (4, i5, 19 & 34 of 1984 and Shariat Appeal No. 1 of 1983, as all of them involve similar questions of law.
159. In Shariat Appeal No. 6 of 1983 Pakistan v. Public at Large), the question involved is whether sub- sections (1) and (ii) of section 13 of the Civil Servant Act (LXX1 of 1973) whereunder the Federal Government is authorised to retire a person holding the post of (i) an Additional Secretary or (ii) any civil servant who has completed twentyfive years of qualifying service for pension are repugnant to the Injunction of Islam ?
(2) The Federal Shariat Court vide judgement dated 26-9-1983 found that both the above- mentioned provisions are repugnant to the Injunctions of Islam and accordingly has directed that both the said provisions be rev pealed.
(3) The provisions of section 13 of the Civil Servants Act (LXX1 of 1973) whieh have been found to be repugnant to the iQujnctions of Islam are couched in the following terms "1. 13 Retirement from serviceA Civil Servant shall retire from service-
(f) in the case of a person holding the post of Additional Secretary to the Federal Government or any equivalent or higher post, on such date as the competent authority may, (in the public interest, direct I
(ii) in any other case, on such date after he has completed twenty-five years of service qualifying for pension or other retirement benefits as the competent authority may, in the public interest, direct.
160. As regards the remaining five appeals, three of them, namely, Shariat Appeal Nos. IS, 19, 34 of 1984 pertaia to the corresponding previsions of the four Provincial Laws, namely, section 12 of the Punjab Civil Servants Act (VIH of 1974) ; section 13 of the Sind Civil Servants Act (XIV of 1973; lection 13 of the Baluchistan Civil Servants Act (IX of 1974) ; section 13 of the NWFP. Civil Servants Act (XVIH of 1973), while the fourth appeal fit. Shariat Appeal No. 14 ef 1984 pertains to the corresponding provision framed under the Cantoament Act (II of 1924). The above mentioned five enactments, it may be mentioned, were examined suo motu by the Federal Shariat Court alongwith the service laws pertaining to certain Statutory Corporations like WAPDA and the Universities. In the judgment dated 27 3-1984 rendered by the Federal Shariat Court in these matters, the earlier opinion expressed by it with regard to the corresponding provisions contained in the Civil Servants Act of 1973 were reiterated so far as the four provincial laws are concerned. However, the Federal Shariat Court found that the corresponding provisions of the Cantonment Act, the Water & Power Development Authority Act and of the Universities Actg were not repugnant to the Injunctions of Islam. Shariat Appeals Nos. 13 19 & 34 of 1984 and Shariat Appeal No. 1 of 1985 have been preferred before us by the four Provincial Governments while Shariat Appeal No. 14 of 1984 has been filed by an employee of a Cantonment Board, namely, Muhammad Ramzan Qureshi.
(4) The appeal of Muhammad Ramzan Qureshi calls in question the vim of sub-rule (3) to Rule 44 of the Pakistan Cantonment Servants Rules, 1934 (as added by SRO No. 909(1) framed under the Cantonments Act and published in the Pakistan Gizette, Extra-ordinary, dated 20th of September, 1982. This rule provides that; "The Director may, in the public interest, compulsorily retire a cantonment servant on any date after he has completed twenty-five years of service qualifying for pension or other retirement benefits'*.
161. As for the appeals by the four Provincial Governments, the provision involved in Shariat Appeal No. 19 of 1984 (Province of Punjab v Hassan AH Qureshi) is section 12 of the Punjab Civil Servant Act, 1974. This runs as follows t- "S. 12-Retirement from Service j-A Civil Servant shall retire from service.
(i) in the case of a person holding a post equivalent to the post of Additional Secretary to Government of Pakistan or a higher post on such date, as the competent authority may, in the bublic interest, direct
(ii) in any other case, on such date, after he has completed twentyfive years o service, qualifying for pension or other retirement beat- fits, as the competent authority may, in the puolie interest, direct: or
(Hi) where no direction is given under Clause (i) or Clause (ii) on the completion of the sixtieth year at his age.
162. Explanation,-In this section "competent authority" means the appointing authority or a person duly authorised oy the appointing authority in that behalf, not being a person lower in rank to the civil servant concerned."
(5) While in Shariat Appeal No. 34 of 1984 (Province of Baluthistan etc. v Public at large), section 13 of the Baluchistan Civil Servants Act, 1974, Is involved. This prevision is similarly worded as section 12 of the Punjab Act. Tc Shamt Appeal No. 15 of 1984 (Province of Sind etc. v. Pubiie at barge), the provisions of section 13 of the Sind Civil Servants Act. 1973, require consideration ; while the subject matter of Shariat Appeal No. 1 of 1985 (Government of NWFP. Etc. v Federal Shariat Court ete). Is again section 13 of the NWFP Civil Servants Act, 1973. The provisions of section 13 of both the last mentioned two Acts are worded differently from the provision made in section 12 of the Punjab Act and Section 13 of the Baluchistan Act. The difference is that while the Provincial Governments in the last two mentioned Provinces are empowered to retire a civil servant after twenty-five years service qualifying for pension and may also retire a person holding a post of an Additional Secretary or equivalent or higher post, the Provincial Governments of Sind and NWFP, do not possess the power to retire a person holding a post of an Additional Secretary or above but can only retire civil servant after 25 years service qualifying for pension.
(6) In the first mentioned appeal, namely, Pakistan v. Pubiie at Large (Shariat Appeal No. 6 of 1983), the judgement of the Federal Shariat Court has been challenged mainly on the following two grounds --
(1) that neither of the two clauses of Section 13 of the Civil Servants Act violate any express Injunctions of Islam. Hence the Federal Shariat Court was not justified in striking them down ; and
(2) that the entire infra-structure of the Givil Servant is the prerogative of the Government and as such the Government is not debarred from making any provision with regard to the tenure of Civil Servants including & provision for retiring them even before the normal age of superannuation or in other stated circumstances.
163. While Muhammad Ramzan Qureshl (employee of the Cantonment Board; has, in shariat Appeal No. 14 of 19&4, challenged the judgment of the Federal Shariat Court submitting that the Federal Shariat Court in deciding bis case did not discuss 'he question why the newly added provisions of sub-rule (3) of rule -.4 of the Pakistan Cantonment service Rules 1954 were not invalid although they were identical in effect to the provisions of Section 13 of the Civil Servants Act (LXX1 of 1973) which the Federal Shariat Court found to be repugnant to the injunctions of Islam by merely making a reference to it* earlier decision Uaryab Yousa/ Qurcehl v. Chairman Wapaa PLD i983 P SC 17 and observing that seiviee of the Cantonment Board as constituted under the Authority of Cantonment Act 1924, which was a Local Authority, stood on the same footing as service under the WAPDA and the Universities, which are statutory Corporations and that their empl >>ees are not entitled to the same safeguards as are available to eivil servants under the Federal & Provincial Laws except the safegunds laid down in the case of Daryao Qureshi. This finding of the Federal Shariat Co >rt is criticised on the ground that the term "Law" has been defined in clause (c) of Article 2Q3-B to include any custom or usage having the force of law except the Constitution, any fiscal law, Muslim Personal Law, or any law relating to the procedure of any Court or Tribunal or any law relating to toe levy and collection of taxes and lees or insurance practice and procedure. This definition would include, in its ambit, the Cantonment Act 1924 and the rules framed thereunder.
164. The said rules being statutory rules have, for all intents and purposes, the force sf law. Accordingly, the Federal Shariat Court which had already held that the similar provisions of Section 13 of Civil Servants Act are repugnant to the Injunctions of Islam should have on the same reasoning found sub section (.) of Rule 44 of the Cantonment Servants Act 1954 also to be contrary to the Injunctions of Islam. The judgement of the Federal Shariat Court, therefore, suffers from a self- contradiction and is thus liable to interference by this Court,
(7) In support of the appeal filed by the Federal Governments lengthy argument were addressed by Syed Riazul Hussain Gilani, Deputy Attorney General end Mr. Khalil Ramday, Additional Advocate General, Punjab ; while some retired civil servants and even a serving civil servants addressed us in support of the judgement of the Federal Shariat Cnurt insofar as its finding with regard to the impugned provisions of the Federal Civil Servants Act and the Provincial Service Laws are concerned.
(8) Mr. Khalil Ramday, in support of the appeal filed by the Province of the Punjab (Shariat Appeal No. 19 of 1984), drew our attention to Article 203-D of the Constitution which confers on the Federal Shariat Court the jurisdiction to examine whether any existing law is repugnant to the Injunctions of Islam and provide that the Court can "................ Examine and decide the question whether or not any law or provision of law is repugnant to the Injunction of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (P.B. U.H) and submitted that the Article as worded allows any law -r a provision of law to be examined and tested only as against any Injunction of Islam as laid down iu the Holy Quran or the Sunnah of the Holy Prophet. Thus, the Federal Shariat Court can declare a law or a provision of law as un-islamic only if it finds that the same is violative of any Injunction of Islam as discernable only from these two sources of Islam, namely, the Holy Quran and the Sunnah.
165. Accordingly, even if a law or a provision of a law is inconsistent with a principle or the spirit of Islam, as these are not "injunctions" because an injunction means as "authoritative or emphatic order "
166. (Shorter Oxford Dictionary), the Court would not have the jurisdiction to declare such a provision of law to be un-islamic.
167. Elaborating his submission further Mr. Ramday submitted that in the absence of any clear injunction to the contrary, in the Holy Quran or the Sunnah of the Holy Prophet any law or provision of law even if it is in consistent with any principle of Isiam that may have been enunciated through ljma or Qiyat or any other source or mode cannot be declared to be repugnant to the Injunctions of Islam because, according to Mr. Ramday, all sources other than the Holy Quran and the Sunnah Me controversial and the validity of these sources is seriously disputed by various schools of thought.
168. Consequently, the legislator, in his wisdom, has confined the testing of laws only on the basis of agreed, undisputed and accepted sources. Mr. Ramday further submitted that the jurisdiction of the Federal Shariat Court is not Islamisation of laws I e. To make laws according to the principles of Islam because this is the exclusive domain cf the legislature and the Islamic Ideology Council its function is only to declare whether any existing law is or is not in conformity with the injunctions of Quran and the Sunnah. If the impugned provisions of law are examined is this context it will be seen as that they are not in conflict either with the Holy Quran or the Sanuah in so far as there is no reference to the terms and conditions of service of civil servants in the Holy Quron or in the Sunnah of the Holy Prophet, a fact which is admitted by the Federal Shariat Court itself in para 48 of the judgement. Hence the question of inconsistency with the injunctions of the Holy Quran and the Sunnah did not arise.
169. Mr. Ramday further submitted that Islam Is a Code for all times and for all societies. Accordingly, such matters like the terms and conditions of service of civil servants have not been prescribed by Allah because the conditions and requirements of his people in such like matters keep altering with the times and He left such like matters to the deeision of ULUL AMAR, but with the proviso that his decisions should not be inconsistent with the commands of Allah and the Rasool Hence in the absence of any injunction of Allah and the Hasool on the subject, the Federal Shariat Court had no jurisdiction to declare the provisions of law in question to be repugnant to the Injunctions of Islam.
170. Mr. Ramday further submitted that the basic rule prescribed by the Holy Quran is that the Muslims must follow Allah and thereafter the Holy Prophet and after that the ULUL AMAR with the rider that the commands of ULUL AMAR shall not be inconsistent with the commands of Allah and the Rasool, if any, on the subject. The reason for this is that the requirement of any given society change with the times and also that what is proper for one society may not be equally appropriate for another.
171. Therefore, the Almighty in his infinite wisdom provided only very few basic and fundamental 'Dos' and 'Donts' and left the rest to be decided by the ULUL AMAR according to the requirements of the given time and of a given society. This Islamic foundation of the chain of command is followed even by western jurists when they said that the legislature possesses greater knowledge of the needs and the circumstances and the rule laid down by it should not be interfered with by the Courts of law ; see for instance Louisville Gat A Electric Co v. Veil Colemn 277 U S 32 and Rem Krishna Dalmia's case AIR 1938 SC 538. ULUL AMAR in the modern state is not just one individual but a combination of the legislature, the executive and the judiciary. Therefore, in any matter where the field has been left open by Allah and the Rasool, the legislature ULUL AMAR is at liberty to give any command i.e. Make any law which it deems best for the people and the ULUL AMAR (legislature) is the best and the sole judge of the requirement and the circumstances. Consequently, the Civil Servant* Act 1973 and the provisions of law relating to civil servants having been framed by the appropriate legislature must be accepted as being most appropriate for the requirements of the society at the present time.
172. Moreover, there is much wisdom behind the tules prescribed by the legislature which were found to be repugnant to the injunctions of Islam by the Federal Shariat Court. Thus, so far as retirement after completion of 25 years of service is concerned, the provision has existed in the tub- continent since before the year 1925 and exists both in India and Pakistan even today, Therefore, besides providing a continuous check on an employee's performance and acting as a deterrent from becoming slack, the provision can be sustained even on the basis of URF (Custom) as having been universally followed for over 60 years.
(9) So fat at the retirement of Secretaiies it concerned, the eivil servants of this category are in the inner-most circle of the executive involved ia the framing and execution of policies. At this level, the ULUL AMAR in the executive must act as one team. Supposing the thinking and the views of a person at Secretary's level are absolutely opposed to the views of the people at the helm of affairs, then it will be difficult for them to work together. Thus, for instance, if the Government of the day has absolute Islamic views and wishes to implement Islam in all respects but the Secretary has socialistic or communistic views--which it no crime or ffence-it will not be possible for the two to work harmoniously. However, no action can be taken against the Secretary under the Efficiency A Discipline Rules and he cannot be removed from service for his views. Hence there is necessity to relieve people at such level of their duties if their thinking is not in line with the policies of the ULUL AMAR. Supposing also that the employee is honest and is not guilty of any misconduct but is over punctilious or over fastidious. He cannot be removed from service under the Efficiency & Discipline Rules but his retention therein would not serve either. Therefore, the need to have power to retire such a person. See Farzand Ali's case PLD 1970 SC 9S at 130. To avoid such problems a test could be provided for an employee for his further continuance in service and if then Legislature ULUL AMAR has fixed it at 2j years of service, then there is nothing unreasonable therein. Mr, Ramday also submitted that laws made by ULUL AMAR can be un- islamic only if they are found to be inconsistent with the commands of Allah md the Rasool but they certainly cannot be termed as un-Islamie only because they are found to be less desirable from the Islamic point of view. For instance keeping a beard may be more desirable in Islam, as per the Sunnah of the Holy Prophet.
173. But it does not mean that a person, who does not keep a beard, is un-islamic or a Kafir.
174. Mr. Ramday also submitted that the judgement of the Federal Shariat Court was self-contradictory.
175. In the impugned judgement the provisions of WAPDA Act of 1958 and the provisions of various other Acts relating to Universities, Cantonment Boards and other Statutory Corporation which were even harsher than the impugned provisions of the Civil Servants Acts/had been found to be valid as against the much milder provisions contained in the various Civil Servants Acts. This was a contradiction in terms. If the learned Federal Shariat Court was convinced of the soundness of its findings in respect of civil servants, then the same findings should have been adopted in the case of employees of WAPDA, the Universities, Cantonment Boards and the employees of other Statutory Corporation. The distinction drawn by the Federal Shariat Court between the two sets of emyloyees was imaginary and unreal. In fact and in reality, there was hardly any distinction between an employee of the Government and an employee of a Statutory Corporation which was managed, run, administered and financed by the Government. Die WAPDA, Cantonment Boards, Universities etc. Were all performing important governmental functions and the duties being performed by their employees were as important as the duties being performed by the employees of any Department of the Government. Further assignment of such important public functions to such organisations instead of Government Departments was not because the duties being performed by them were unimportant but beeause of certain technical and legal reasons as pouted in Muhammad Amir v, Province of Sind tPLD 1984 Lah . 295 at 3u7),
(10) According to Mr. Ramday, the contradiction in tha judgment of the Federal Shariat Court was evident from the fact that the Holy Quran and the Sunnah did not provide anywhere that security of service will be given only to those who are defined as 'CIVIL SERVANTS' in various Civil Servants Act and to none-else, even if the other employees were also being paid out of public funds and were performing equally important governmental functions. Moreover, prior to 1973, the position might have been different as the Constitution provided certain guarantees to the civil servants but thereafter both the civil servants and the employees of statutory bodies were governed by their respective statutes and were at par in that respect. From this point of view also the distinction drawn between civil servants and the employees of WAPDA and the Universities etc. Was not tenable. Syed Riaz-ul-Hassan Gilani, Deputy Attorney- General has submitted that the question of appointment and dismissal of civil servants is in the discretion of the competent authority and that no limitation or restrictions have been imposed in the Holy Quran and the Sunnah as to how and in what circumstancesjpowers in this respect are to be exercised. Therefore, the Federal Shar at Court erred in holding that the provisions of sub-section (i) and sub-section (fi) of Section 13 of the Civil Servants Act and the corresponding provisions in the Provincial Laws empowering the retirement of persons who have completed 25 years service qualifying for pension and of Additional Secretaries and above were against the Injunctions of Islam.
176. In its judgement the Federal Shariat Court has accepted that neither the Quran nor the Sunnah of the Holy Prophet have provided as such any safeguards to the eivil servants against the above eventualities but it has taken the view that to hold that "the Court has jurisdiction only to find out the repugnancy from specific injunctions in the Quran and the Sunnah and that if no such injunctions is found the law will be treated to be good is to say the least a very narrow view of the constitutional jurisdiction of this Court. Specific laws in the Quran and the Sunnah arc not many but the principle laid down therein embrace everything inter-alia in the field of legislation In view of the absence of specific provision pertaining to a particular matter it becomes Court's duty to discover and find out whether a particular legislation is not repugnant to the principle had down in or emanating from the Quran and the Sunnah''. Explaining their point of view further it was added that "the repugnancy is to be discovered lnter- alia not only against a specific provision Ibaaat-ul-Nas) but also what is described by the jurists and eommentators of the Holy Quran as I jUl t aJVa (Dalalat-uh- Nas, Isharat-un-Nas, Iqtada-un- Nas), that is something which emanates from the Verse by necessary intendment".
177. Proceeding further the Court observed "In addition a number of laws have been evolved by the use of Qiyas or analogy from the injunctions in Holy Quran and the Sunnah of the Holy Prophet (peace be upon him). Principles and rules evolved from the Quran and the Sunnah are equally binding and no law can be in accord with the Quran or the Sunnah which is repugnant to such principles. Thus, one of the main principles is the principle of Adi on which the whole superstructure of Islamic Polity is founded. The word Fasad (iUi) is an antonym of Adi. The principle of legislation should, therefore, be to advance Adi and to frustrate Fasad or mischief. Any legislation which does not advance what should be advanced in Islam and does not frustrate which should be frustrated cannot enjoy the sanctity of being in accord with Bthe Quran and the Sunnah".
13. After laying down the above principle the Federal Shariat Court examined the question whether the impugned provisions did or did not tend to advance Ail (J>u) and to frustrate Fasad (aUi). In this connection, the question was discussed whether classification was permissible in Islam and held that although classification per se was not forbidden in Islam but the classification must stand the test of "reasonableness and intelligibility" and that the "classification must have a reasonable relation to the object or the purpose sought to be achieved by the impugned legislation". It was further observed that "the power of the legislation should be exercised in a manner that the chanees of oppression and discrimination" are reduced as far as possible. Another question discussed was how the "State service" should be organised and the opinion was expressed that while State service is subject to the rules of security of tenure and protection against removal and dismissed, service other than State service is based upon a contractual relationship where these eafegurds are not essential. It was observed that;- "All legislation should creat conditions that every civil servant may be in a position to refuse to obey an order which is contrary to Sharia without fear of earning bad reports which may ultimately and in his premature retirement. A person in authority, however, lowly placed has the right to order Mareof and to restrain from Munkar. He has a duty to act with Adi and to remove Fasad (mischief).
178. In fact it is a maxim that removal of mischief is preferable to and better than the acquisition of benefits."
179. The above concept was further explained in these words j- "A civil servant is required to act as a servant of the State and not virtually as a servant of even the Head of the State, Governor or any other appointing or competent authority. This being so no constitutional Government can be allowed to act in a manner which may jeopardize the legal exercise of power by a public servant. A fortiori no opportunity can be provided in an Islamic State to any one to curb the urge and instinct of ethers to disobey his arbitrary, dishonest and orders which are contrary to Sharia. Security of tenure of a civil servant can be an incentive to him for discharging his duties honestly, constitutionally and according to Sharia. On the other hand any apprehension in his mind against this security is liable to breed in him what is known as servility to the boss. This is something which may make him corrupt. Security, therefore, tends towards the advancement of the welfare of the society and elimination from it of the main source of mischief, i.e. Corruption : servility is likely to endanger hi independence of action and make his actions subservient to the wishe* of the boss, howsoever, unlawful and un-islamic they may be. A1* process ofluw making is within the scope of Verses i.e. Q. 2?: 41 and Q.4; #9", Coming to the question of removal of civil servants it was observed : - "If the Head of State wants to remove his subordinate, he can do so only if he entertains some doubts about him because it is the rule that the retention of such a person is likely to create mischief end does not advance welfare or benefit. It is immaterial whether the incum- bent is a holder of (General authority) or coVj (special authority). However, if there be no such cause, there are 3 alternatives. The first alternative is that he may remove him to substitute him with a person of lower qualifications. This is not permissible since therein lies the loss of public interest in view of the superiority of his qualifications and it is not open to the Imam to act against public interest. The second alternative is to remove him for appointing in his place a better person. This certainly advances public interest or interest of the Muslims and is permissible. The third alternative is that the man to be appointed holds similar qualifications as the one who is to be removed. Some of the' jurists permit it on ground of use of discretion among two equal but others consider it to be unlawful, Such a replacement is not permissible according to this opinion."
180. In this view of the matter the Court opined i- "The rule, therefore, is that the authority cannot pass an order of removal of the executor except for cause. It the Waliul Amor jVill (person in authority) removes any office holder from the office for eause, it is permissible ; but if it is not for cause, it is not permitted. Removal is not permitted except for cause."
181. Coming to the question of the description of the authorities the Court held "The discretion of the authorities is not to be exercised arbitrarily ........... ..................... If the power pertains to the rights of Allah the persons in authority are bound to act according to the requirements of public interest. If denial of exercise of authority be in public interest, it must be denied but if it be in public interest to act upon it, it must be acted upon. This is a rule whieh was made at a time when there were no written laws nor any guiding principles were statutorily set down. Now-a-days the power can be exercised by the highest authority only if it is conferred by legislation. It is, therefore, the duty of the Legislature to lay down principle which may check the misuse of the power".
182. To prevent misuse of power the need for providing an opportunity of hearing before taking action against the civil servant was emphasised and in this connection it was observed ;- "It appears odd that while a civil servant is given full opportunity of beaing heard if disciplinary action is require u to be taken on inter alia the same grounds, he is denied that opportunity completely if action is taken under section 12, sub-sections (1) and (2). Both actions separate him from the office and if it is neceesary to spare a eivil servant the ajony of stigmatization, there is no reason why he may be left open to that evil by clothing those grounds with the garb of retirement in the public interest. Pension or other retirement benefits cannot be a compensation for the stigma he is bound to suffer. There is an other disparity also. Section 13 of the Punjab Act provides that a retired civil seivant shall not be re-employed in the Government unless such re-employment is necessary in the public interest The public interest in this section has an altogether different connotation but his re-employment in Government cannot be allowed because he was retired in the public interest on charges of having out-lived his utility on grounds of inefficiency, corruption and subversion. His retirement becomes a disqualification for him. And if public interest can be served by his re-employment, obviously his retirement in public interest was wrong."
14. Since removal of civil seivant can only be ordered for a eause, for this reason also it would be necessary to give the person affected an opportunity of being heard, because "cause" cannot be decided by a competent authority in the secrecy of his office because the object is to minimize rather to eliminate mischief or possibility of corruption and arbitrariness.
183. The conclusion was expressed thus :- "Section 12(f) & (ff) of the Punjab Act and corresponding sections of the Provincial laws are therefore, repugnant to the Quran and the Sunnah. These sections are violative of the principle of Musawat (equality before law) also as there appears to be no reasonable classification of Additional Secretaries or persons of equal of higher ranks on the one hand and other employees of lower ranks on the other. The denial of security of service was really subject to make the holder of this office subordinate to the will of the person in authority in respective of whether his order is in accord with Sharia or contrary to it. The interest of legislation cannot be served without making it necessary to issue notice to the employee to show cause against retirement.,'
184. Ultimately the following directions were issued j- "We, therefore, direct the Government of the Punjab to repeal the provisions of section 12(f) and (ff) of the Punjab Civil Servants Act, 1974, by 30th September, 1984. Similarly *e direct the Government of NWFP, Sind Baluchistan to repeal by the same date the provisions of section 13(f) in each of the NWFP Civil Servants Act, 1973, asd Sind Civil Servants Act, 1973, and section 13(f) and (if) of Baluchistan Civil Servants Act, 1974, respectively. Consequential amendments will be made in other parts f the same sections."
15. A close analysis of the judgment of the Federal Shariat Court shows that the impugned provisions have ultimately been declared to be repugnant to the Injunctions of Islam mainly because they did not provide for a prior opportunity of showing cause against the action of premature retirement or retirement of officers of the rank of Additional Secretaries and above by the competent authority under sub-sections and (4) of section t3 of Civil Servants Act, 1973 and the corresponding provisions of the Provincial ivi! Service Laws. In other words the defects pointed out for holding these provisions as repugnant to the Injunction* of Islam were removable according to the Fedoral Shariat Court if the 'cause" for which the action was being taken under the impugned provisions was communicated to the person affected and they were afforded an opportunity of hearing before the adverse action was actually taken. The conclusions arrived at by the Federal Shariat Court really as that (0 the provision whereunder civil servant can be retired after 25 years service qualifying for pension is bad because this provision is liable to oppressien/abus* (mischief ; (/i) the provision enabling the Federal Government and the Governments of Punjab and Baluchistan to retire officers holding posts of Additional Secretaries and above is bad because it militates the concept of equality in as much as a similar provision is not contained in the Sind & NWFP Acts ; and (iii) if an opportunity was provided to the persons affected to show cause before the adverse action was taken against them most of the mischief liable to be caused by the existence of these provisions could be avoided.
16. The fault, thus, is not so much in the provisions themselves but in the possibility if these provisions being misused and becoming instruments of ''oppression" and tyranny". Hence these provisions should be repealed.
185. But we do not think that this is a sound reason for holding the provisions to be invalid. Only because a provision can be used in an oppressive or capricious manner or is capable of being misused does not mean that the provision itself becomes invalid. The impugned provisions are not per se bad because so far as retirement after completion of 25 years of service is concerned such a provision nas existed in the sub-continent since before the year 1925 and can be considered a salutary provision for providing a check on an employee's performance and acting as a deterrent from his becoming slack. So far as the provision relating to the retirement of Additional Secretaries and Secietaries is concerned this too may be useful for getting rid of civil servants who have outlived their utility but have nevertheless attained high positions on account of their seniority and action against them is not etnerwise possible under the normal Efficiency & Dici tip line Rules.
186. However, where the action is taken whimsically capriciously or on account of malafide and in bad faith, under these provisions, against a competent and efficient civil servant remedies exist in law for challenging such an action both under the writ jurisdiction as well as by appeal to the Service Tribunal.
17. So far as the argument that such a provision impaires the sense of security of the civil servant and may force him to do anytning which an unscrplous superior may desire of him ; the other view can be that absolute securi y could also lead to undesirable results and make t ie civil servant totally disinterested in his work in the belief that he cannot be touched until the age of 60 years, unless some actual misconduct is proved against him, which is not easy. As a balance nas to be struck between ensuring security and efficiency and this balance has been devised by the legislature in the form of the impugned provisions, which is not unreasonable. In any case, if an employee has been wronged for not acting m acc- dance witu the wishes of his unscrupulous superior then judicial forums are available to him such as the Service Tribunal where he can challenge the unjustihable action taken against him and he can bring his grievance right upto the level of the Supreme Court- Tnis should be enough consolation to a civil servant who works honestly and if ha is indeed a God fearing individual he should not be more afraid of his immediate superior than of his ultimate supior, namely, Almighty Allah.
18. Thus it will lead us nowhere, nor will it be profitable if the validity of the impugned provisions are sought to be tested on grounds of reasonableness and fairness, about which concepts differ and conflicting views can be entertained. The sole test that should guide us, therefore, for seeing whether the impugned provisions are bad is the test of repugnancy with the Quran & Sunnah, in other words what we have to see is only whether they are in fact repugnant to the Quran or the Sunnah. Indeed this is really what the Constitution requires the Federal Shariat Court to do.
187. The Federal Shariat Court under Article 203-D (1) is empowered to "examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and the Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam" and according to sub-article (2) of Article 203-D 'If the Court decides that any law or provision of law is repugnant to the Injunction of Islam, it shall set out in its dscison (?) the reasons for its holding that opinion ; and (?) the extent to which such law or provision is so repugnant j and specify the day on which the decision shall take effect'".
188. Thus under the Constitution, a law can be declared repugnant to the Injunctions of Islam only if it is repugnant to any injunction laid down in the Holy Quran or is against the Sunnah of the Holy Prophet and reasons have to be given for arriving at this conclusion. Moreover, the extent to which the law is found to be so repugnant has also to be clearly indicated. The view expressed by the Federal Shariat Court that in the absence of any specific injunction of the Holy Quran or the Sunnah of the Holy Prophet, the Court can still declare a law to be bad on account of its repugnancy to the principles laid down in or emanating from the Holy Quran and the Sunnah, though correct theoretically as held by this Court in "Pakistan etc. v. Public at large etc(PLD 1*86 SC 240 at p. 248) does not appear to us to have been correctly applied to the facts of this ease. The law in question in this ease was enacted by the National Assembly of Pakistan in 1973 and was a law made by a representative body of Muslims. Such a law should not be declared to be un-islamic lightly and only because the views about its propriety and reasonableness are net in conformity with or are not shared by another body of Muslims, sitting as members of a Court. Accordingly unless it can be shown definitively that the body of Muslims sitting in the legislature have enacted something which is forbidden by Almighty Allah in the Holy Quran or by the Sunnah of the Holy Prophet or of some principle emanating by neeessary intendment therefrom no Court can declare such an enactment to be un-islamic. The question of the reasonableness of a law or the possibility that it is likely to be unjustly observed in practice is a matter which oan be examined by the Superior Courts in exercise of their jurisdiction to enforce Fundamental Rights which, inter- alia, guarantees equality of eitiiens under Article 25 of the Constitution. Furthermore, as pointed or already the Service Tribunals can, in exercise f the appellate powers conferred upon them, under Section 4 of the different Service Laws, also examine whether the action taken against a Civil servant under the impugned provision has been taken improperly.
19. The learned counsel and the other gentleman who appeared before us, were, therefore, asked to refer us to the Verses of the Holy or to the Sunnah of the Holy Prophet relevant to the questions being considerred by us. After hearing all of them we are satisfied that the observations of the learned Federal Shariat Court that there is no direct injunction either in the Holy Quran or the Sunnah of the Holy Prophet relating to the matter of terms and conditions of service of Civil servants is correct No doubt some Verses of the Holy Quran were cited to the effect that the Almighty enquired from IblU why he had not bowed down to Adam and to the Verse that every man will be informed on the day of the Judgement the reason why he has been punished.
189. However, no Verse was cited to shew that it was necessary to issue a show cause notice before imposing any punishment or penalty.
190. The Verses of the Holy Quran on which reliance was placed were Verses 11 to 13 of Sura VII, which read sfcW Uli ^ pfrU. JSij - 11 O tr* TRANSLATION
11. It is We Who created you And gave you shape: Then We bade the angels Bow down to Adam, and they Bowed down; not so Iblis; He refused to be of those Who bow down.
191. Iii JifuJi VI Jli - 12 .** UT J,Ui O |>l & '.oSUj jU TRANSLATION
12. (Allah) said: What Prevented Thee from bowing down When I commanded the ? He said I "I am better Than he f Thou didst create Me from fire and him from clay."
192. IfvUi Jli - 13 O I (x* '-&I 01 djfct TRANSLATION
13. (Allah) said : Get the down From this : it is not For the arrogant, Here get out, for thou Art of the meanest (of creatures)"
193. And Verses 13 an 14 of Surah 17, which read j- y* *jfJ* of*>l (j> 13 O id TRANSLATION
13. Every man's fate We have fastened On his own neck I
14. (It will be said to him:) "Read thiee (own) reoord : Sufficient is thy soul This day to make out An account against the." #tbs Day of Judgement We shall bring out For him a scroll. Which he will tee Spread open.
194. TRANSLATION #the But these Verses do not show that Almighty Allah has ordained that before taking any action adverse to any person he must be issued a show cause notice, Again, this principle is also not established from the Sunnah of the "Oly Prophet. On the other hand, the following extract from Shah Wali Ullah seems to point to the contrary ;- 02, Thus although it is not possible to contend that the Holy Quran ordains that it is necessary to issue show causa notice to a person before eon* demning him and, therefore, the competent authority, acting in good faith, can take the action of prematurely retiring a Civil servant as provided for in sub-sections (1) and (#) of Section 13 of Civil Servants Act and the corresponding provisions of the Provincial Service Laws, but I feel that on the basis of the Verses of the Holy Quran cited above it can fairly be submitted that the principle emanating from the Verses, cited above, and the practise of the Almighty Allah which is evidenced therefrom entitles a Civil servant to be informed of the reasons/grounds where his retirement has been directed in "public interest". He should be told why the action has been taken against him and in the words of God Almighty be asked to read his own record which has been responsible for the fate that has befallen him. Further more, since an appeal is competent before the Service Tribunals against the action taken against him, the affected Civil servant will be in a better position to challenge the order passed against him in case he feels that he has not been dealth with justly and fairly.
21. I further feel that no difference exists in this respect between the eases of Civil servants who are in the employment of the Government and employees of the Statutory Corporation like WAPDA, Cantonment Boards, Universities etc , I would, therefore, agree with the submissions on this point made by Mr. Khalil Ramday, Additional Advocate-General (Punjab). Hence the employees of all such Organization must also be intimated the reasons/grounds for their premature retirement which may be ordered under provisions similar to those under which the Civil servants are liable to be retired.
22. In this view of the matter an amendment will be necessary in the sense indicated above in the provisions impugned before us. Accordingly, a proviso may be added to the impugned provision to the effect that in case where a direction is made to retire an employee from service under the aforesaid provisions the said person will be intimated the grounds/ reasons for the action taken against him which will be duly specified in the order of his retirement.
195. The upshot is that all the six appeals succeed and are allowed, subject, however, to the direction given above. It is further ordered that the above direction/decision shall be carried into effect by the appellants in Shariat Appeal No 6 of 19S3; the appellants in Shariat Appeals Nos. IS, 19 & 34 of 1984 and the appellant in Shariat Appeal No. 1 of 1985 as also by respondent No. 1 in Shariat Appeal No. 14 of 1984 within 90 days of the announcement of this judgement.
196. Shafiur Rahman, /.-I have had the benefit of the original draft as well as the revised draft judgment prepared by my learned brother Dr. Justice Nasim Hasan Shah and the opinion recorded by another learned brother Mr. Justice Maulana Taqi Usmani. I consider it necessity to record my conclusions and reasons separately.
(3) There is a provision, section 4 of the Civil Servants Act 1973, which reads as hereunder- "4. Tenure of office of civil servants.-Every civil servant shall hold office during the pleasure of the President."
197. Similar provision exists in all the Provincial Civil Scrvans Acts, except that of the Punjab. It is a provision which had its precedent in Article 216 of the Interim Constitution, 1972 ; Article 126 of 1962 Constitution ; Article 180 of the 1956 Constitution ; section 240 of Government of India Act 1935, section 96-B of Government of India Act 1915 introduced in 1919. It can truly be said to be our heritage of the colonial past.
(3) Section 4 of the Civil Servant Acts has, at its back, Article 240 of the present Constitution which is in the following words- "240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined- () in the case of the services of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament); and
(ft) in the case of the services of a Province and posts in connection with the affairs cf a Province, by or under Act of the Provincial Assembly.
198. Explanation.-In this Article. "All-Pakistan Service*' means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Majlis-e-Shoora (Parliament),*.
199. Such a constitutional and statutory base has prompted the Federal Government and also the Sind Government to take up the position that- "Infra structure of Civil Service is inherently a prerogative of every government", Indeed, if this power or prerogative, and the tenure at its pleasure, is conceded to the designated authorities, as it has been by the Federal Shariat Court in the impuged judgment, for no fault has been found with it, then no limitation can be placed on its exercise and the subject can admit of no debate or controversy and cannot be a subject matter of adjudication in Courts in proceedings like the one before us.
(3) The legal amplitude of tenure at pleasure appears clearly from the following comment on it (43 American Jurisprudence)- "Removals at Will of Pleasure.-The general rule as to offices created to be filled by appointment is that it the legislature does not designate the term of the office, the appointed will hold only during the pleasure of the appointing power, and may be removed at pleasure, at any time with out notiee or hearing. So, too, statutes sometimes provide with respect to certain officers that they shall within the tenure prescribed be removable at pleasure, which of course, means without requiring any cause for such removal................ No formal charges or hearings are as a rule required where a public officer holds only at the pleasure of his superiors, as where the provision for appointment prescribes no defintie term and does not require that the definite term that the removal be for cause, or where the removal depends on the exercise of personal judgment on the question whether cause for removal exists. It has been seen that the holder of a public office without a definite terms holds at the pleasure of the appointing power. So, also, a grant in general terms of the power to remove public officers carries with it the right to remove at any time or in any manner deemed best, with or without notice and hearing".
200. We have to apply so this or such a provision the test of Injunction of Islam, as laid down in the Holy Quran and the Sunnah of the Holy Prophet. With regard to State and its authority over individuals there arc verses SS and 39 of Sura Nisa. Their translation is as follows- "58 Allah doth command you to render back your Trusts To those to whom they are due ; And when ye judge Between man and man, Thai ye judge with justice I Verily how excellent Is the teaching which He giveth you For Allah is He Who heareth And sceth all things.
59. O ye who believe Obey Allah and obey the Apostle, And those charged with authority among you. If ye differ in anything Among yourselvrs, refer it To Allah and His Apostle, If ye do believe in Allah And the Last Day ; That is best, and most suitable For final determination."
201. Maulana Maudoodi in his Tafheemul Quran Vol. I page 363 commenting on these verses remarks
(5) Maulana Mufti Muhammad Shafi ia his Mariful Quran Volume 1 pp. 446 and 449 comments in the following words- The substance of these verses was adopted in the opening words of the objective Resolution of Pakistan in the following words {- "Whereas sovereignty over the entire Universe belongs to Allah Almighty alone, and the authority which He has delegated to the State of Pakistan through its people for being exercised within the limits prescribed by Him is a sacred trust"
202. These words then became the opening words of the Prcamable of enr first Constitution in the following words- "Whereas sovereignty over the entire Universe belongs to Allah Almighty alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust."
203. The subsequent Constitution continued it till 1985 when by Presidential Order No. 14 of 1985 it was incorporated in the Constitution of 1973 as Article 2-A. The opening words now are as hereunder - "Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the Authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust".
(6) The concept of Delegated Authority held in trust enshrined in Verse 58 has invariably and consistently been given an extended meaning. Additionally, all authority being delegated authority and being trust, and a sacred one for that matter, must have well defined limits on its enjoyment or exercise. In the Holy Quran more so, but also both in the Western and the Eastern Jurisprudence delegated authority held in trust has the following attributes- "CO The Authority so delegated to, and held in trust by, various functionaries of the State including its Head must be exercised so as to protect, preserve, effectuate and advance the object and purposes of the trust.
(it) All Authority so enjoyed must be accountable at every stage, and all times, like that of trustee, both in the heirarchical order going back to the ultimate Delegator, and at the other end to the beneficiary of the trust.
(tit) In discharging the trust and in exercising this delegated authority, there should not only be substantive compliance but also procedural fairness"
(5) Applying these tests, it must be held that the concept of tenure at pleausure is tepugnant to the Injunctions of Islam. It must, however, be made clear and that this provision of the Act was not n ticed, or in any ease, not dealt with by the Federal Shariat Court in the impugned judgment. Not even before us during the course of arguments its presence and legal effect was noticed. It is only when examining the legality of ssetion 13 of the Civil Servants Act and similar provision in other Acts that of necessity and not by choice, this provision had to be taken note of and it proved to be the first hurdle, and a major one, in reaching section 13 of Civil Servants Act.
204. Section 13 of the Civil Servants Act enacts as follows- "13. Retirement from service.-A civil servant shall retire from service.
(i) in the case of a person holding the post of Additional Secretary to the Federal Government or any equivalent or higher pjjt, on such date as the competent authority may, in the publio interest, direct;
(ti) in any other case, on such date after he has completed twenty-five years of service qualifying for pension or other retirement benefits as the sompetent authority may, in the public interest, direct ;
(Hi) where no direction is given under clause (I) or as the case may be, under clause (it), on the completion of the Sixtieth year of his age.
205. Explanation :-In this section "competent authority" means the appointing authority or a person duly authorised by the appointing authority in that behalf, not being a persons lower in rank tnan the civil servant concerned".
(6) Retirement in this section amounts to termination of service with all the earned benefits, without stigma, not in any case as a measure of puuish- ment. Does it not in its turn necessarily imply that if the other conditions mentioned in the section are not satisfied, though public interest demands the retirement or termination of service of such an employee, or his rerno- va1 no action can be taken against him. This makes it clear that justification for the action is not grounded so much in public interest as in bolding of the post of Additional Secretary aud above or on completing 2S years of service which by itself is not a very relevant factor. If we had in the past law justifying such an action on completion of twenty five years qualifying service, when tenure was at pleasure, it does not justify its continuance when tenure is held not to be at pleasure.
(7) Why are the public offices created and continued ? It is not because someone wants it or that someone is to be provided for. As stated in 42 American Jurisprudance "pablie offices are created for the purpose of effecting the end for which the government has been instituted, which is the e >mmon good, and not for the profit, honour, or private interest of anyone man, family or class ef men". Public interest is the predominant factor in creation of a public office, in appointment of a person to that office and of his continuance in that office. If the public interest requires the termination of service, retirement or removal from service, it shold be possible to achieve it at any stage of service, on any post one may be occupying. Such retirement, removal or termination should not be confined to particular stage, age, or post. What are the objective demands of public interest concerning a particular public office and the duties relating to it should be capable of definition and description because in reviewing the action in the heirarchy itself, or outside it before the Service Tribunal or in Court, it will have to be tested objectively. Classification and categorization on rational basis should be possible. <10l Misconduct has been defined (Rule 2(4) in Efficiency and Discipline Rules as follows- '*(4) "misconduct" means conduct prejudicial to good order or service discipline or contrary to Government Servants (Conduct) Rules, 1964 or unbecoming of an officer and a gentleman and includec any act on the part of a Government servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service ef a Gcvernment servant.'* The grounds on which a civil servant can be proceeded against a re enumerated in Rule3 in the following words- "2. Where a Government servant, in the opinion of the authority-
(a) is inefficient or has ceased to be efficient ; or
(b) is guilty of misconduct 1 or
(c) is corrupt, or may reasonably be considered corrupt because- (/) he is, or any of his dependants or any other person through him or on his behalf is, in possession (for which he cannot reasonably account) of pecuniary resources or of property disproportionate to his known sources of income : or
(it) he has assumed a style of living oeyond his ostensible means ; or (ttt) he has a persistent reputation of being corrupt;
(d) is engaged or is reasonably suspected of being engaged, in subversive activities, or is reasonably suspected of being associated with others engaged in subversive activities or is guilty of disclosure of official secrets to any unauthorised person, and hi# retention in service is, therefore, prejudicial to national^ security, the authority may impose on him one or mere penalties".
206. Section 9 of the Civil Servant Act provides that in case of selection post the promotion is on the basis of "selection on merit" and n a non- selection post on the basis of "seniority-cum-fitness".
207. On page 159 of Esta Code 1983 exists the following entry- "Higher tenure posts at the Centre.-Government of Pakistan have decided that it should be brought home once more to all concerned that higher tenure posts at the Centre (as well as in the Provinces) are selection posts which no officer can claim as of right".
(11) In this background of laws it would appear rather uncharitable and harsh to suggest that somewhat unbalanced and eccentric civil servants to enjoy the protection in service and are allowed to attain the high position of Additional Secretaries and Secretaries on the basis of seniority and it is such officers who can be usefully got rid of through such a reserve power.
208. The scheme of the Civil Servants Aet and the rules framed thereunder exhibit a more or le?s complete Code wherein an age of superannuation is prescribed, termination of service is possible in the case of a probationer, (section (1) (i) ad hoc employee or temporary employee, section 11(3) employee on contract (section (1) (i), on abolition of a post, (section li(2). For default, dereliction, disobedience, misconduct, corruption, subversion the following minor and major penalties are prescriped (section 4 of Efficiency and Discipline Rules)- "(a) Minor penalties ;
(f) censure :
(ii) Withholding, for a specific period, promotion or increment, otherwise than for unfitness for promotion or financial advancement, in accordance with the rules or orders pertaining to the service or post:
(Hi) stoppage, for a specific period, at an efficiency bar in the timescale, otheiwise than for unfitness to cross such bar ;
(iV) recovery from pay of the whole or any part of any pecuniary loss caused to Government by negligence or breach of orders ;
(b) Major penalties : (0 reduction to u lower post or time-scale, or to a lower stage in a time scale ;
(it) compulsory retirement:
(iii) removal from service ; and
(iv) dismissal from service.
(2) Removal from service does not, bat dismissal from service doss, disqualify for future employment".
(21) There is no rational basis for carrying over a residual plenary power to retire or terminate employment any time after 25 years service or of those who by their efficient and long service have come to hold the post of Additional Secretary and above. On the contrary, such a reservation of power, cuts across the entire scheme of classification and control, protection and punishment, it has the appearance of being arbitrary and subjective and this is what is repugnant to the concept of a delegated power held in trust.
(13) Accountability in the exercise of power demands that it should be exercised objectively on material which is relevant ana there should be afforded an opportunity at least of showing the correctness or incorrectness, relevance or irrelevance of the material. I would not for a moment suggest adoption of any particular provision but can refer to a provision to be found in the American Civil Service Act 1946 in the following words- *'No person in the classified Civil service of the United States shall be removed therefrom except tor such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against Dim, and be furnished with a copy thereof, and also be allowed a reasonable time for personally answering the same in writing; and affidavits in support thereof; out no examination of witness nor any trial or hearing snail be required except in the discretion of the officer making the removal; and copies of charges, notice of hearing, answer, reasons for removal, and of the order of removal shall be made part of the records of the proper department or office, as shall also the reasons for reduction in rnlc or compensation; and copies of the same shall be furnished to the person affected upon request, and the Civil service Commission shall also, upon request, be furnished copies of the same".
(14) Such a provision requires application of mind, verification of the material and associating the individual concerned before striking him and the record so prepared will at once be available to the reviewing authorities, be it in the heirarchy or outside it, of the fairness of the action both in substance and in form. The provision as it stands at present permits not in words but in practice hurried action on extraneous or unverified material and a leisurely and usually half-hearted defence in protracted litigation, throwing avoidable burdens on Courts and Tribunals,
(15) For the reasons stated above, my conclusions are as follows-
(1) Though not directly under challenge, but of necessity, while examining the challenged provisions of the Statutes taken note of I find the following provisions to be repugnant to Verse 5a, Sura Nisa of the Holy Quran- (0 Section 4 of Civil Servants Act.
(ii) Section 4 of Sind Civil Servants Act 1973.
(iii) Section 4 of Baluchistan Civil Servants Aet 1974.
(iv) Section 4 of NWFP Civil Servants Act 1973.
(2) The following provisions of the Statute/Statutory Rule* under challenge are found to be repugnant to the injunctions of Islam (Verse 58, Sura Nisa. Holy Quran)-
(i) Section 13 clauses (i) and (ii) of Civil Servants Act 1973.
(ii) Section 12 clauses (i) and (ii) of Punjab Civil Servants Act 1973.
(iii) Section 13 clause (i) of Sind Civil Servants Act 1973.
(iv) Section 13 clauses (i) and (ii) of Baluchistan Civil Servant* Aet 1974.
(v) Section 13 clause (i) of the NWFP Civil Servants Act 1973.
209. On these findings, I would dismiss all the appeals except SA 14/84 which shall be allowed. I would allow a period of six months from the announcement of the judgment to the concerned Governments to take consequential steps failing which this decision shall take effect.
210. No order as to costs.
211. ORDER OF THE COURT By majority, the following appeals are dismissed I -Shariat Appeal No. & of 1983 ; Shariat Appeal No, 15 : 19 and 34 of 1984 ; Shariat Appeal No. 1 of 1985.
212. And Shariat Appeal No, 14 of 1984, is allowed.
213. The provisions of the Statutes and statutory rules specified below, under challenge, in these appeals, are found to be repugnant to the Injunctions of Irlam ; in so far as they do not provide for due notice of the action proposed to be taken and opportunity of showing cause against such action j
(i) Section 13 clauses (1) and (ii) of Civil Servants Act, 1973.
(ii) Section 12 clauses (i) and (ii) of Punjab Civil Servants Act, 1973.
(iii) Section 13 clause (i) of Sind Civil Servants Act, 1973.
(iv) Section 13 clauses (i) and (ii) of Baluchistan Civil Servants Act, 1974.
(v) Section 13 clause (/) of the N.-W.F.P. Civil Servants Act, 1973.
(vi) Sub-Rule 3 of Rule 44 of Pakistan Cantonment Servants Rules, 1954 framed under the Cantonments Act, 1924.
214. The competent authorities are hereby allowed a period of six months from today to amend the law so as to bring it into conformity with the Injunctions of Islam, failing which they shall cease to have legal effect.
215. The appellants in cases other than Shariat Appeal No. 14 of 1984 shall pay the cost of those who appeared to oppose them at the rate of Rs. 3000 per individual. The appellant in Shariat Appeal No. 14 of 1984 shall be paid Rs, 3000 as costs by the respondents therein, K.L.R. Labour and Service Cases [Karachi] Present: Mansoorul Haq Effendi, (Member)
216. MUHAMMAD MUEEN versus THE DISTRICT & SESSIONS JUDGE (SOUTH) KARACHI and others Appeal No. 58 of 1985, decided on 3rd March, 1987.
217. Sind Civil Servants (Efficiency and Discipline) Sales 1973 --Disciplinary proceeding-Disciplinary action-Panishnsent-Allegation that appellant a habitual late comer and failing to issue summons, warrants etc., in various criminal cases-Enquiry officer holding all charges against appellant proved -Competent authority dismissing appellant from service-Appellate authority upholding findings of guilt recorded against appellant but altering punishment of dismissal to reduction in rank-Appellant reduced to the rank of Junior Clerk from that of Senior Clerk-Held ; There seemed no reason to disagree with the findings of appellate authority-Appeal meriting no consideration dismissed, (Para. 4)
218. Apptllant in parson : Muhammad Mueen.
219. Counsel for the Government I Rasheed Akbtar Querehi.
220. Menzoorul Haq Effendi, Member, J.-Ibis appeal arose on the orders of Respondent No. 2 dated t>th June, 1980, whereby the appellant Muhammad Mueen Senior Clerk, District Court (South) Karachi was reverted as a Junior Clerk in the departmental appeal, decided by the Chief Justice, High Court of Sind against the order ol District & Sessions Judge, Karachi dated 27 November, I9fc4, dismissing the appellant from seivice with immediate effect.
221. As disclosed in Charge-sheet and statement of allegations dated 26th June, 1984, the allegations against the appellant were j
(i) That be was habitual late comer and usually attended the Office at 8-35 a.m. As reported by the Additional District & Sessions Judge VII th Karachi on 8th May 1984.
(fi) That vide Memo No. A/2952/84 dated 9th May, 1984. He was called upon to show cause as to why disciplinary action under Sind Civil Servant (Efficiency and Discipline) Rules, 1973 should not be taken against him for not mending his ill habits of late coming despite warnings to which he did not care to reply and submitted explanation for late coming on 9th May, 1984.
(iil) That he failed to issue summons, warrants, non-bailable warrants and Notices to sureties, in Criminal Cases No. 330/84, 390/84, 6811/76, 62*2/76, 59/78, 826/79, 745/81, 6716/76, 6338/76, 546/80, 325/77 and 93/82 fixed for hearing on 2nd June, 1984 as reported by the learned Additional District and Sessions Judge VII, Karachi n 2nd June, 1984. [1] dismissal of the accused official was passed by the District an4 Sessions Judge, Karachi on 27th November, 1984.
222. Against the order of the Distriot & Sessions Judge, the appellant submitted an appeal to the Chief Justice High Court of Sind on 26th December, 198 seeking a elean acquittal in the matter. The learned Chief Justice, High Court of Sind heard the accused and also perused his re* cord. Me has upheld the findings of the guilt recorded against him but reduced the sentence to reduction in his rank from the senior clerk to junior clerk lor a period of three years commencing from 16th June.
223. 1985. Heard the arguments of the appellant who appeared in person and also counsel for the Government Mr. Rasheed Akhtar Qureshi at length and also perused the record relevant for the disposal of the appeal. In the coarse of his submissions before the Tribunal the ap> pellant has made very forceful plea that he being the junior official has not received justice as the reporting officer and the enquiry officer were colleagues and therefore his submissions were not properly considered and he did not get justice. He has also raised the plea that before the above matter could be decided Respondent No. 1 issued transfer order of the appellant from the Court of Additional District & Sessions Judge VII to Civil Nazsrat and appellant's successor Mr. Muhammad Ali Memon also reported to take over the charge from the appellant, the then presiding officer of his Court requested Respondent No. 1 for detention of the appellant in his Court for the period of 10 days to complete the papers both of two murder cases and as such appellant had handed over the charge of criminal cases to his successor and remained busy in preparation of paper books of above two murder eases. Ali of a sudden he received charge-sheet by Respondeat No, 1 which has been discussed above. The appellant has also detailed in his statement before the Tribunal that the Respondent No, 2 modified the penalty from dismissal to reverision on the basis of ACR's for the year 1974 to 1978 for which the appellant was never called upon to explain as such he has been condemned unheard. Finally he has also drawn the attention of the Tribunal to the fact that the enquiry officer did not apply his mind to the statement of the witness Mr. Hassan Zaki Serrithtedar of District Court who had even deposed before the enquiry officer that appellant used to come to Offiee in time and even seme time he used to sit very late in the evening to complete his work.
224. 3, On the other hand, the counsel for Government Mr. Qureshi has argued that the appellant was ehronic late comer and he was repriman- ed for his late coming several time before issue of this charge-sheet. Almost all the presiding officers of the District Court had made observations of his behaviour and late coming. It was also brought to our notice that the appellant was appointed as junior clerk on 4th October, 19/2 and promoted as Senior Clerk as late on 1st February, 1982, as he had unsatisfactory record A number of clerks junoir to him superseded him in promotion as his conduct and work remained unsatisfactory in the past. He has not been punctual in his duties since the date of his appointment. He was issued show-cause notice and presiding officer assessed him ad- versly but showed leniency towards the appellant. The Tribunal feels that the appellant has been arrogant and his behavior smacks of insubordination. He is challenging the judgment of senior judicial officers of the rank of District Judges and some of whom are now sitting Judges of the High Court of Sind. The Chief Justice of High Court of Sind has been lenient and reduced the sentence of dismissal from service to that of reversion from senior clerk to junior clerk for period of three years commencing from 16th June, 19*5. Finally he has presented a Misc.
225. Application o < 5th March, 1987 praying that the orders have been reserved in case without observing the mandatory provision of law, especially Rule No. 17 of Sind Service Tribunals (Procedure) Rules, 1974 and it was incumbent that issues ought to have been framed and in case it was found necessary evidence ought to have been invited for the determination of issues, and prays it was also clear in the rule that in case a party affected by the affidavit/evidence appellant could have cross examined the persons filing affidavit or giving evidence in addition to that. The net result is "audi alterm partem" Since the arguments concluded on 3rd March, 1987 and the case was fixed for orders, we feel that the application cannot be considered at this stage.
4. Upshot of the discussion is that there is word against work and we have no reason to disbelieve and discard the testimony of senior judicial officers who are occupying the seat of justice and to presume that they would victimize a clerk is figment of imagination. We do not see any reason to disagree with the findings of the chief Justice of High Court of Sind and as such the appeal does not merit any consideration and is dismissed with no orders as to costs.
226. Given under our hand and seal of this Tribunal this 12th day of March, 1987.
227. S.L.R. 1987 Laboar and Service Cases 214 [Karachi] Present: Abdul Jabbar Baehant, J.
228. KHUSHI MASIH venue (M/S) PAKISTAN MACHINE TOOL FACFORY In the matter of Appeal No. 01 of 1985 Under section 17 of P.W, Act, 1936. Decided on 20th April, 1987).
229. Payment of Wages Act (IV of 1936) --Appellant not falling in the class of persons employed in industry nor ia those working in manufacturing process-Appeal not covered by the provisions of the Act-Held Not maintainable.
230. (Para, 1)
231. For the Applicant; Naseem Mirza Respresentative, For the Respondent t Muhammad Humayun, Advocate and Fareedul Haq, Advocate.
232. Date of hearing ; 20th April, 1987.
233. Abdnl Jabbar Bachani, J.-Learned counsel Mr. Humayun has questioned the maintainability of appeal on the ground that the applicant who is aggrieved against the order of Authority under the payment of Wages Act, is not covered by the provisions of the payment of Wages Aet. Mr. Humayun has rightly taken this position of law.
234. Preamble of Act No. 4 of 1936 IV of 1 36 known as the payment of Wages Act refers as follows ; "Whereas it is expedient to regulate the payment of Wages to certain classes of persons employed ia an industry. It is hereby enacted as follows ; Section 1 reads : With the title and commencement of application, further refers that it extends to the whole of Pakistan and sub seetion 4 reads that it applies in the first instanca of the payment of Wages to the persons employed in any factory and to persons employed (otherwise than in factory) upon Railway by Railway administration or either directly r through some contractor by a person fulfilling a contract with Railway administration The factory has been defined in the Factory Act, means, any premises including the precincts, whereon 20 or more workers are working or were working on any day of the preceding 12 months and in any part of which a manufacturing process is being carried on with aid of power or is ordinarily cerried on but does not inelude miner subject to the Minor Act. In view of this definition under the payment of Wages Act, it follows that this act, applies only to classes of persons employed in industry and those who work in manufacturing process. In the present case, the learned authority has not drawn its attention to the provisions of the paymeat of Wages Act whether the learned authority possessed the jurisdiction to deal with the case of a sweeper who may be be working ia Pakistan Machine Tool Factory but is not employed in industry for the purpose of the meaning of the payment of Wages Act or who is working in manufacturing proceess to bring himself within the purview of the Act whieh is intended for the benefit of only certain classes of persons in industry. However the learned authority dismissed his claim directing to take the legal entitlement of the dues w iich the respondant had deposited, ia the absence of his failure to produce the relevant data to which he had quarreled with the deposited claim, As this Appellate jurisdiction is not going into this question by reference to the fact of the jurisdictional aspect that the payment of Wages Aet is not applicable to him, the appellant has only forum, either to pursue his remedy, what the law suggests him or to take the dues which are deposited by the respondent which is based, according to the respondent on the genuine claim, where respondent has given him the bonuses, encashment of leave, the difference and gratuity etc : from the date of employment till termination. The applicant has also admitted to have received the dues in the eviden ce. However irrespective of what the stand is taken by the applicant, this appeal has no force on the point of law and is dismissed. If the order is passed in an appeal observing that he can take the dues as deposited, being offerred by the respondent, the Appellate Court has also jurisdiction to pass any order which is equitable in any way to meet the ends of justice, (PLD 1964, Karachi 569 DB, AIR 192 Madras page 620), But the Appellant has still open forum to pursue his legal remedy as the law suggests for the satisfaction of his point of view in respect of adjudication if he so desires.
235. 2, Appeal is dismissed on point of law of jurisdiction concerning the paymeat of Wages Act.
236. Aanounced in open court this 20th day of April 1985,