This is a second appeal by the Province of the Punjab against the judgment and decree of the learned Additional District Judge, Sahiwal, dated 8th July 1971, who dismissed the first appeal and affirmed the order of the trial Court dated 14th January 1970, granting a declaratory decree to the plaintiff-respondent to the effect that the order of his retirement dated 26th April 1968, after 25 years qualifying service was null and void and inoperative.
2. Brief facts of the case are that Amanat Ali was serving as a permanent Head Clerk in the office of Employment Exchange, Sahiwal. On his completing the 25 years qualifying service his case was referred to the Advisory Committee for review, and- ultimately he was made to retire with effect from 1st May 1968. The respondent filed a suit on 30th April 1968 challenging the order on the ground that it was not passed by a competent authority as required by Article 178(4)(a) of the Constitution of the Islamic Republic of Pakistan, 1962. He complained of lack of show-cause notice and opportunity of hearing and claimed that he continued to be an employee under the Provincial Government. He also prayed for a perpetual injunction as a consequential relief.
3. The defendant-appellant contested the suit on the ground that the plaintiff was retired on account of his unsatisfactory record and due to the recommendation of the Divisional Advisory Committee, Lahore. A preliminary objection was also raised against the Issuance of permanent injunction as the plaintiff had gone out of service. It was further alleged that the suit had become infructuous. On the pleadings of the parties following issues were framed :-
(1) Whether the suit has become infructuous ?
(2) Whether the order of defendant No. 2 dated. 26th April 1968, is null, void and inoperative upon the plaintiff's rights ?
(3) Whether the plaintiff continues to be employed under the defendant ?
(4) Relief.
After recording the evidence of the parties the suit was partly decreed and only declaration vas granted. The appeal of the Provincial Government failed.
4. It was argued by the learned counsel for the appellant that by virtue of Sixth Amendment Act of 1966, which received the assent of the President on 31st March 1966, ample power was given to the Government under amended Article 178(4) (a) to retire any person who has put in 25 years of service and no show-cause notice was necessary before passing such an order. He relied on two judgments of the Division Bench of the former West Pakistan High Court reported as Ch. Muhammad Ismail v. The Punjab Province (PLD 1956 Lah. 129) and S. Sajlad Haider v. Government of West Pakistan (PLD 1967 Lah. 938). He further submitted that the lower Appellate Court has based its judg--ment on the West Pakistan Government Servants (Further Usefulness in Public Services) Rules, 1963 which have become obsolete by virtue of the Constitution (Sixth Amendment)
Act, 1966 and this now being a Constitutional provision should have been followed. It is true that by virtue of the Sixth Amendment the Constitutional provision has superseded the rules mentioned above and the Government has been given power to retire a person under new clause (4) of Article 178, but the main question for consideration in this second appeal is as to whether a Government servant has to be retired on completion of 25 years qualifying service for pension by any official of the Government at randum or an order has to be passed by a competent authority after review of his service record Obviously the position is that an order has to be made by the competent authority which is defined in explanation to clause (6) of Article 178, after scrutiny of the record. In this case the competent authority, which is the appointing authority under the Constitution and the West Pakistan Labour Welfare Department Ministerial Service (Regional) Rules, 1962, is the Deputy Director, or Assistant Director in charge of the region. The order passed in this case is by the Director who no doubt is a Superior Authority than the Deputy Director. The Director, Multan, in whose region Sahiwal district falls was. In fact a person competent to pass the order. It was argues on behalf of the respondent that the order was not passed by the competent authority and even if it is assumed that the superior authority could pass such an order he has not applied his mind as he hat just countersigned the note submitted to him. It is urged that such an order could not bean order in the eye of law. Reliance was placed on Ghulam Mohi-ud-Din v. Chief Settlement Commissioner, Lahore and others (PLD 1964 SC 829). There is considerable force in the submission made by the respondent and I am of the view that the order was not legally passed s by the competent authority with application of mind.
5. The question raised by learned counsel for the appellant that the Government was clothed with the authority to pass the order of retirement by virtue of Article 178(4) of 1962-Constitution and no show-cause notice was necessary requires examination. In order to find the solution one has to keep in mind the entire Article 178. Clause (1) deals with the appointment to All Pakistan Service and the Provincial Civil Service, by the President or the Governor, as the case may be, while clause (2) provides the framing of rules by the Centre arid the Province. Clause (3) relates to the framing of rules in such a manner so that the terms and conditions of remuneration or age fixed for superannuation are not varied to the disadvantage of the public servant, and where an order is made which punishes, or formally censures a person, alters or interprets to the disadvantage of any rule affecting his terms or conditions of servivel or terminates the employment of a person otherwise than upon his reaching the age fixed for superannuation he shall, except where the order is made by the president or a Governor, have so least one appeal against the order and, where the order is made by the President or a Governor, he shall have the right to apply to the President or the Governor for a review of the order.
New clause 4 (a) of Article 178 lays down that a person shall retire from service on such date after he has completed 25 years service. Sub-clause (c) mentions the age of superannuation as 55th year of his age. Clause (5) gives ample power to the competent Authority for extension in service beyond the date of retirement to any person whore retirement becomes effective my virtue of sub- clauses (b) and (c) of clause (4). Lastly clause (6) deals with the grant of leave preparatory retirement.
6. Relying on Ch. Muhammad Ismail v: The Punjab Province it was argued that the provision of retirement on putting 25 years qualifying service was first provided In the rules and it was held that such a retirement was not removal within section -277 of the Government of India Act, 1935 and no regular enquiry was necessary in terms of section 240 of the said Act. It was not necessary for the Government to state any reason or to communicate it to the Government servant concerned.
These rules as interpreted in the above case, have now been converted into Constitutional provision. I have gone through the judgment. The incumbent concerned seas given a show-cause notice along with the copies of his adverse reports and he was required to show cause within 10 days of his intended retirement. This was the factual position. Learned author of the judgment - Muhammad Munir, C. J., referred to Rule 5.33 of Civil Services Rules (Punjab), Volume 11 and observed on pages 133 and 134 as under:- "When Government takes action under rule 5.33 (b) it is not necessary for it to state any reason or to communicate it to the Government servant concerned. The procedure of communicating confidential remarks in the service book to the servant whom it Is intended to retire is adopted seat because it is a legal or departmental necessity but merely with a view to giving him an opportunity of showing that the adverse remarks on the strength of which action is proposed to be taken against him were in fact unfounded or that they were made by the superior officer maliciously or on the basis of false or incorrect data. The servant concerned cannot as of right claim that this procedure be adopted because the rules do not recognize any such right in him arid tire on not impose upon the authority entitled to take action the obligation to adopt such procedure. Nor is this procedure the same as or analogous to the procedure prescribed by Rule 14.13 of the Civil Services Rules, Volume 1, when disma l or removal of a Government servant is contemplated under Rule 14.10 of that Volume. The true position in such cases is that Government may require a servant in Its employ to retire after 25 years' qualifying service, and even if the reason for such retirement be corruption or Inefficiency or some other similar reason, the Government cannot withhold the pension which that servant has earned. It is of course open to the Government not to take action under rule 5.33 (b) and to institute a regular inquiry under rule 14.13 of Civil Services Rules (Punjab), Vol. 1 and if the enquiry establishes any such ground as Government considers to be sufficient for his -dismissal or removal, to dismiss or remove him from service, and in such a case the dismissal or removal will amount to a penalty and may disqualify him for pension which in the case of an action under Rule 5.32 -he would be entitled to. We are, therefore, of the view that the present case did not amount to the penalty and may disqualify him for pension, which in the case of an action under Rule 5.32 he would be entitled to. We are therefore of the view that the retirement in the present case did not amount to the penalty of dismissal or removal that no inquiry into the appellant---s conduct was necessary.
It is quite obvious from the above passage that although the learned Judge held that no enquiry was necessary for passing such an order but has clearly said that show-cause notice was a must so that the incumbent should know the ground on which he has been made to retire and he Is not made the victim of any malice of his superior. The principle of audi alteram partem will apply even if no show-cause notice was mentioned in those rules and it is not a Constitutional requirement.
There is a string of authorities by the Supreme Court on this point out of which I will mention two of them namely, The Univer.41y of Dacca and another v. Zakir Ahmad (PLD 1965 SC 90) and Board of Intermediate and Secondary Education, Lahore v. Ala-ud-Din (1972 SCMR 13)- It is now well- settled law that even if show-cause notice is not mentioned in the Statute this maxim has to be adopted where an action has to be taken against a person. Obviously the retirement on completion of 25 years service i ordered for those persons whose record is not good in the view of the Authority and it would be unjust to lay down the law that such a person should be condemned unheard and he should not be given a right of appeal as is enshrined by the various provisions of Article 178 of 1967 Constitution.
7. The next case cited by learned counsel for the appellant S. Sajjad Haider v. Government of West Pakistan and another (PLD 1967 Lah. 938) deals with the case of a person who has attained the 55th year of his age. This is the age of superannuation and in such a case no notice is required and retirement takes place ipso facto. This judgment is, therefore, distinguishable. In my humble view the order of retirement passed under Article 178(4)(a, is a penal termination of employment before the Incumbent reaches the age fixed for superannuation in sub-clause (c) of the said Article in the Constitution i.e. 55th year of his age. The pre-requisite of an order for retiring a person under Article 178(4)(a) on putting in 25 years qualifying service requires review of his case on account of his blemished record or physical incapacity as the case may be. It has to be passed in pursuance of the rules required to be framed under this Article. Such an, order of retirement distinguishes the service career of a person who is allowed to continue in service until the age of 55 years and retires on account of superannua--tion. In such an extent the order would be unjustified, harsh and against the well established principle of maxim audi alieram partem.
8. I would, therefore, dismiss the appeal and restore the order of the trial Court as affirmed by the appellate Court granting the decree to the plaintiff-respondent. The respondent will have the benefit of costs.