' SYED ABDUR REHMAN, J.---This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan.
2. Petitioner, S.A. Rizvi was a member of an 'All Indian Class-I Service having joined the same in May, 1942, as Assistant Industrial Planning Officer in Industries Division, Government of India Delhi. He was then transferred to Calcutta. Consequent upon the partition of the sub-continent, the petitioner opted for Pakistan and was posted as Assistant Director, Disposal, at Lahore in August, 1947 and remained detailed to Ministry of Industries, Government of Pakistan. In July, 1958, the petitioner's services were given on loan to WAPDA on terms approved by the Central Government and accepted by the petitioner. Consequently he was transferred to Karachi and posted to the Regional Office in April, 1962. In July, 1968, he was promoted as Director. The petitioner was to retire from Government service on 13-10-1968 and such a Notification about his retirement was issued on 12- 6-1968. Chairman, WAPDA, however, did not allow the petitioner to proceed on L.P.R. And recommended to the Central Government to grant extension to the petitioner. Consequently his services were extended for two years in suppersession of the earlier Notification. This decision to extend the service of the petitioner was reviewed by a Special Review Committee appointed by Late Genl. Yahya Khan and this Committee also approved the extension. Only after 40 days of this approval of two years' extension in service i.e, on 6th December, 1969, the petitioner was asked by the Deputy Commissioner, Karachi to collect a secret letter received from the West Pakistan Government. On going through the letter, the petitioner came to know that he was suspended from service without notice or enquiry under the orders issued by the Chief Secretary of West Pakistan.
On 8th December, 1969 the names of 303 Class-I Officers were published in newspapers as having been suspended under M.L.R.
58. On 8-12-1969, the petitioner handed over the charge to the next below Officer. Few days thereafter he received a Charge Sheet and Statement of Allegations, both signed by office of Chief Secretary, Government of West Pakistan. He was also directed to submit his written demand within seven days to the Martial Law Administrator Zone 'A', at Karachi, communicating, if he desired to be heard in person. He complied with the instructions. He was not allowed to engage a lawyer to assist him in pleading his case before the Tribunal. The so-called hearing before the Tribunal was just a smoke screen and the Tribunal was there only to implement the decision already taken by the Authority concerned and communicated to it through a secret list in which amongst other Officers, the petitioner was also earmarked for dismissal followed by a trial. The petitioner was verbally informed by the Chief Accountant, WAPDA that he would not be paid the suspension salary any further after 13-4-1970. The Chief Secretary, Government of West Pakistan, Lahore issued his dismissal order, but did not endorse a copy to the petitioner. In 1974, the then Prime Minister of Pakistan set up a Federal Service Tribunal and extended the date enabling the Central Government Officers dismissed under M.L.R. 58 to file appeals against their dismissal orders. The petitioner filed appeal before the Tribunal which was disallowed for want of jurisdiction. The petitioner appealed to the Supreme Court against the said decision. The Supreme Court allowed the appeal and remanded the same to the Federal Service Tribunal to consider the appeal both on merits and law.
The Federal Service Tribunal allowed the appeal of the petitioner and ordered his reinstatement in service. Against the said order, the Government filed an appeal in the Supreme Court. Special leave to appeal was granted and the appeal was to be heard by the Supreme Court in November, 1982.
On 30-8-1982, the then President Genl. Muhammad Zia-ul-Haq promulgated C.M.L.A. Order No,3 of 1982 known as Second Amendment, whereby Article 13-A was added to Provisional Constitution Order. This Article has now been merged in Article 270-A of the Constitution. It purported to validate all orders made and actions taken under M.L.R.
58. The jurisdiction of Courts and Tribunals, including the Supreme Court was ousted. All proceedings pending before all the Courts and Tribunals stood abated and all orders made and judgments given by the Courts and Tribunals were nullified. Taking refuge behind this provision, , the Government turned a deaf ear to all the requests of the petitioner and abstained from reinstating him in service. Hence this petition with the following prayer:-- "(1) That the order of dismissal issued by the Chief Secy. In respect of petitioner (dated 2nd May, 1970) may be set aside.
(2) The date of retirement may kindly be fixed. Under the existing rules, the date of retirement should be 13-10-1977. This may please be allowed.
(3) Respondent No,1, may please be directed to implement the order passed by the Federal Service Tribunal in Appeal No,658 (K)/74, dated 12th April, 1981.
(4) Any other relief, by way of compensation for the material and mental losses suffered by the petitioner and his dependents, may please be granted."
3. Counter-affidavit was filed by M. Akhtar-ul-Islam, Section Officer, Establishment Division, Islamabad, wherein the following preliminary objections were taken:--
(i) The petition as framed was not maintainable in law and facts.
(ii) The petitioner had no locus standi.
(iii) The writ petition was barred by laches.
(iv) All matters pertaining to terms and conditions of civil servants were within the exclusive jurisdiction of the Service Tribunal. Hence the jurisdiction of this Court was barred.
(v) The petition is barred under Article 270-A of the Constitution of Pakistan.
(vi) The petition is bad for misjoinder of causes of action.
' The facts stated by the petitioner were generally admitted, but it was alleged that the actions were taken under M.L.R.-58 which had been saved by Article 270-A of the Constitution. Hence the petition was not maintainable.
4. We have heard Mr. Sarmad Usmani, learned counsel for the petitioner and Mr. Shahoodul Haq, Advocate for Deputy Attorney-General. Mr. Shahoodul Haq's mainstay of the arguments was that the services of the petitioner were terminated under M.L.R.
58. All the actions taken under M.L.R. 58 were given protection under Article 13-A of the Provisional Constitution Order, which reads as under:-- "13-A. Validation of action taken under the Removal from Service (Special Provision) Regulation, 1969:-
(1) All orders made and actions taken or purporting to have been made or taken, against any person under the Removal from Service (Special Provision) Regulation, 1969, shall, notwithstanding any judgment or order of any Court, Tribunal or other authority, be deemed to be and always to have been, validly made or taken and--
(a) no Court or Tribunal, including the Supreme Court, a High Court and a Service Tribunal, shall have any jurisdiction to entertain any proceedings whatsoever in respect of, or in any manner relating to or arising out of, such orders or actions;
(b) any such proceedings pending before any such Court or Tribunal immediately before the commencement of the Provisional Constitution (Second Amendment) Order, 1982 (C.M.L.A. Order 3 of 1982), shall abate forthwith;
(c) every judgment or order of any such Court or Tribunal given or made at any time before the commencement of the Provisional Constitution (Second Amendment) Order, 1982 (C.M.LA. Order No,3 of 1982), which is repugnant to the provisions of this Article shall be, and shall be deemed always to have been, null and void and of no effect whatsoever; and
(d) any person who, having been dismissed, removed or prematurely retired from service under the aforesaid Regulation, has, at any time before the commencement of the Provisional Constitution (Second Amendment) Order, 1982, been reinstated into service and is holding office immediately before such commencement, shall stand retired from service on such commencement.
(2) Where any person who was dismissed, removed or prematurely retired from service under the aforesaid Regulation has, at any time before the commencement of the Provisional Constitution (Second Amendment) Order, 1982, been reinstated into service or granted a pension or other monetary benefit, nothing contained in paragraph (d) of clause (1), shall be deemed to--
(a) affect the validity of any action taken or order passed or jurisdiction exercised by such person by virtue of the office for the time being held by him; or
(b) require such person to refund any salary, pension or other monetary benefit drawn by him before such commencement, or
(c) entitle such person to have the period between his dismissal, removal or premature retirement from service under the aforesaid Regulation and his subsequent reinstatement into service treated as service for purposes of pension or other retirement benefits, or affect the right of such person to have the period of service following his subsequent reinstatement treated as service for purposes of pension or other retirement benefits."
' On the restoration of democracy, Article 13-A was re-enacted in the shape of Article 270-A of the Constitution. It reads as under:-- "270-A.--(l) The Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P.O. No,11 of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December, 1984, General Muhammad Zia-ul-Haq became the President of Pakistan on the day of the first meeting of the Majlis-e-Shoora (Parliament) on joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of 1973 Order, 1985 (P.O. No,14 of 1985), the Constitution (Second Amendment) Order, 1985 (P.O. No,20 of 1985), the Constitution (Third Amendment) Order, 1985 (P.O. No,24 of 1985), and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever: ' Provided that a President's Order, Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to, the revocation of the Proclamation of the fifth day of July, 1977.
(2) All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever.
(3) All President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority.
(4) No suit, prosecution or other legal proceedings shall lie in any Court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
(5) For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.
(6) Such of the President's Orders and Ordinances referred to in clause (1) as are specified in the Seventh Schedule may be amended in the manner provided for amendment of the Constitution, and all other laws referred to in the said clause may be amended by the appropriate Legislature in the manner provided for amendment of such laws."
' He then placed reliance on Nazar Muhammad's case reported in PLD 1986 Kar. 516, where a Full Bench of this Court held as follows:- "11. As regards the order terminating the service it may be stated that it was passed under paragraph 4 of Martial Law Regulation No,52.
' Now, taking up the first objection, it may be stated that instead of provisions of Article 15(5)(d) of the Provisional Constitution Order 1981, the provisions of Article 15, clauses (2) and (5)(a) are attracted. The provisions have already been quoted above. It will be seen from the above provisions of clause (2) that on or after fifth day of July, 1977, they protect all orders made, proceedings taken and acts done by any authority in the exercise or purported exercise of powers derived from any President's Order or Orders of Martial Law Administrator, Martial Law Regulations, Martial Law Orders etc., notwithstanding any judgment of any Court, deemed to be and always to have been validly made, taken or done and they could not be called in question in any Court on any ground whatsoever. Since the order of termination of the service of the petitioner was passed under Martial Law Regulation No,52, therefore, it could not have been called in question."
' Mr. Shahoodul Hach therefore, contended that the jurisdiction of this Court to entertain this petition and to question the validity of the orders passed under M.L.R. 58 was barred completely and such orders enjoyed blanket immunity from judicial scrutiny.
' It was then contended by Mr. Shahoodul Haq that the petitioner was dismissed from service in 1969. He filed this constitutional petition in 1989. A period of more than 20 years had elapsed in between. Even if the case is looked at from the angle that he could have come to this Court only when the decision of Services Tribunal /dated 21-3-1981 reinstating him was not honoured by the respondent, then also he has been slumbering over his right for the last eight years. Hence the petition is liable to be dismissed on the ground of laches.
' Lastly he contended that the petitioner has not made any specific allegation of malice, although he was required to do so. Hence he cannot plead malice. In this connection he placed reliance on the well known case of Saeed Ahmad Khan reported in PLD 1974 SC 151 where it was held as follows:- "Mala fides" literally means 'in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fides. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people. Thus action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterised as action taken mala fide. But in order to make out a case of mala fide, an individual must establish that his land was taken not for the purposes authorised by the law but for the personal aggrandisement of the person empowered with the power to make the order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken."
We are not in agreement with the contentions raised by Mr. Shahoodul Haq. Article 270-A of the Constitution does not completely oust the jurisdiction of the superior Courts from going into the vires of the actions taken under M.L.R.-58 as well as the actions taken under any other laws which were protected by Article 13-A of the P.C.O. Or Article 270-A of the Constitution. A number of cases, including the case of Nazar Mohammad reported in PLD 1986 Kar. 516, were taken in appeal to the Supreme Court. The Supreme Court in the judgment reported in PLD 1989 SC 26 (Federation of Pakistan v. Malik Ghulam Mustafa Khar) held as follows:-- "In enacting clauses (2) and (5) of Article 270-A the main object of the Parliament was:--
(a) to confer validity upon acts, actions and proceedings, done or taken when the Martial Law was in force, and
(b) to oust the jurisdiction of the Courts from examining their validity.
' Taking into account the background in which Article 270-A was enacted, the language in which it is phrased and the absurd results which would follow if it is construed widely, it appears that its object was merely to afford protection to the dispensation which came into existence as a result of 'Constitutional deviation'; it is difficult to interpret it as conferring validity and immunity upon such acts, actions and proceedings as were illegal or indefensible even under the dispensation. Thus, this Article does not take away the jurisdiction of the High Courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide.
For this purpose it is unnecessary to draw a distinction between malice in fact and malice in law."
From the perusal of the above judgment of the Supreme Court it is quite clear that in spite of such an exhaustive and detailed ouster provided under Article 270-A of the Constitution, the orders made, proceedings taken and acts done, inter alia, under N.L.R. 58 were justiciable before the superior Courts, if the same were coram non judice, patently illegal, without jurisdiction or mala fide.
6. The first ground on which the petitioner has attacked the impugned order is that he was admittedly a Central Government employee. His services were loaned on deputation to the WAPDA.
It was only the Central Government which could dismiss the petitioner or impose any other major penalty against him. From the record, we find, and this fact is not disputed by the respondents, that the show-cause notice had been issued by the Chief Secretary, West Pakistan Government. The charge-sheet had been signed by the Deputy Secretary for Chief Secretary, West Pakistan Government. Rule 9 of Government Servants (Efficiency & Discipline) Rules, 1973, which is similar to Rule 12-A of Government Servants (E & D) Rules, 1960 prescribes the procedure of enquiry against Officers and there is no denying the fact that the said procedure has not been followed at all.
' Provincial Government without approval of the Central Government. It is well-settled that in case of a Central Government Class-I Officer, competent authority in all service matters, including disciplinary action, is the President, acting either directly or through nominated Officer. This question was taken into consideration by the Supreme Court in the case of Attorney-General v. Yousuf All Khan PLD 1972 SC 115 where it was observed as under:-- "Article 31 of the 1962 Constitution, read with rule 6 of the Rules of Business including its Schedule, as pointed out by the learned Attorney-General, is a complete answer to the respondent's contention.
Article 31 lays down that the - executive authority of the Republic shall vest in the President and shall be exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution and the law. Under rule 6 of the Rules of Business and its Schedule, certain officers named in the Schedule are empowered to execute and authenticate orders and other instruments for and on behalf of the President. The Secretary of a Department of the Central Government is one of the officers so empowered."
It is, therefore, quite clear that in the case of petitioner, who was a Central Government Officer of Class-I, the competent authority to proceed even under M.L.R. 58, was the Secretary Establishment Division, Government of Pakistan and not the Chief Secretary of Government of West Pakistan, who had no jurisdiction or power to deal with the case of the petitioner. It may be pointed out that the petitioner was suspended, charge-sheeted, served with a statement of allegations, made to face enquiry and dismissed and all these orders were passed and actions taken by the Government of West Pakistan either by the Chief Secretary or other officers on behalf of the Chief Secretary. Hence all these orders were passed and actions were taken by an authority which had no jurisdiction or power to pass these orders and take actions in respect of the petitioner.
' Reliance in this connection was placed in the decision of the Supreme Court in the case of State v.
Zia-ur-Rehman reported in PLD 1973 SC 49, where it was held as follows:- 'Purport", according to its dictionary meaning, means 'be intended to seem' but merely so showing will not be sufficient if the act done cannot be one within the authority of that officer's official capacity. In other words, only when a person or authority having jurisdiction to do a certain thing in exercise of that jurisdiction does that thing wrongfully or irregularly, can he claim to be purporting to act in exercise of the power given to him. It follows, therefore, that an act which is clearly without jurisdiction, or in the case of a judicial or quasi-judicial act, which is coram non judice, the use of the 'purported exercise' in the validating clause will not give that act the protection which the learned Attorney-General of Pakistan and the learned Advocate of Punjab contend for."
7. Hence we are of the clear view that the orders passed and actions taken as above, culminating into the termination of service of the petitioner, were patently illegal and coram non judice. The words coram non judice' are of Latin origin. The meaning of the words coram non judice , according to Oxford Universal Dictionary, is 'before a Judge'. Hence the meaning of coram non judice' will be to (bring a case or cause) before some one, who is not a Judge or has no jurisdiction.
The trial of the petitioner by the Military Tribunal also appears to be just a smoke screen. The Tribunal did not appear a free agent to take any decision. It was furnished with a secret list in which the petitioner, amongst others, was earmarked for dismissal followed by a trial. In this case it would be of interest to reproduce the following extract of the judgment of Federal Service Tribunal in Appeal No,658(K)/74 (SA. Rizvi v. Government of Pakistan):-- "We also do not agree with the learned State Counsel that the list of officers, on which earmarking for action was done, was preliminary/tentative list, prepared to initiate action against certain Officers. The wordings of the recommendation quoted earlier does not support this view to be taken. It is one thing else to prepare list for investigation against certain officers than a list prepared in which earmarking was done to dismiss officers and try certain officers. We accept the view of the appellant regarding the existence of a list prepared beforehand of the officers who were ultimately punished. Similarly we accept the view of the appellant that the Military Tribunal was not free in matters of the contentions, investigations and recommendation on merits of the concerned civil servants."
' From above observations, it would follow that the allegation contrary to the publicity given that each officer's case was examined, with full application of mind by the C.M.LA., was factually incorrect. He could not even conceive that the concerned officer was not a Provincial Officer. The fact of the matter is that the officers, including the petitioner, were not dismissed under the provisions laid down in the M.L.R.
58. The officers were dismissed on the basis of a secret list prepared beforehand of the Officers, without giving them an opportunity to prepare their defence, or to examine the evidence available with the C.M.LA./Chief Secretary, Government of West Pakistan. Officers were not allowed to obtain legal aid or to cross-examine those who must have been treated as witnesses. On top of this, officers were denied the right of an appeal and the doors of the Courts were closed. Efforts were made to ensure that the illegal drama must be preserved as the perpetual reminder of the vanished Rule of "Usurper". The 'Secret list' which was the only basis for dismissal, has not been protected, validated or even condoned by any Constitutional measure even by any clause of the Article 270-A of the present Constitution.
8. It was observed by the Federal Service Tribunal, in their judgment on the appeal filed by WA.
Shaikh, reported in 1981 PLC (CS) 363, that it was the mandatory requirement to provide a copy of the report of the Director Anti-Corruption, Government of West Pakistan, Lahore, to the petitioner enabling him to prepare his proper defence. The copy of the said report was neither endorsed nor its contents were made known to the petitioner. In spite of promises made by the then Dy.
Secretary, Division, before the Federal Service Tribunal, the report had not been furnished which suppression of a material evidence was with an ulterior motive. The concealment of an important evidence was mala fide.
9. The petitioner, as required under M.L.R. 37, had submitted the actual cost of construction of his house No,153/E/2, PECHS, Karachi. The first floor was constructed in 1953 and the second in 1967.
Money was taken from the Government and the Scheduled Banks and certificates from the four (4)
Banks concerned were enclosed in original, as required by the high powered committee. The Chief Secretary, incorporated his own estimated cost of construction of petitioner's house, which in his opinion was inflated enough to serve the purpose. The house was inspected by the Officers of the Chief Engineer West Pakistan Government. The estimate, as a result of the inspection, was revised from the original (Rs,2,29,050 to Rs,1,80,000). Yet the Chairman, Military Tribunal did not revise the cost of construction. The non-revision of the cost of construction and the break-up compiled on the basis of inflated cost, was clearly mala fide.
10. The impugned order dated 2-5-1970 as well as the proceedings taken in the Martial Law Tribunal are glaring examples of the mala fides and coram non judice. The Federal Service Tribunal has gone into this aspect of the case in detail as per its order passed in petitioner's case which is Annexure 10 to the petition and the Tribunal has come to a definite conclusion in favour of the petitioner. We are also of the view that words "this officer was held on the list of those who were earmarked for dismissal followed by trial" clearly show that the Military Tribunal was acting mala fide as far as the Petitioner's case is concerned. Similarly we also agree with the observations of the Service Tribunal that the Martial Law Court was not free to make up its mind regarding the case.
Since as per letter issued on 5th February, 1970 by the M.LA. Zone 'A' Lahore to Headquarters C.M.LA., Rawalpindi relating to the case of M.H. Shamim, in which the M.LA. Zone 'A' Lahore had recommended to the Headquarters, C.M.LA., Rawalpindi that if certain doubts had been created during the trial of the accused Officer as to the veracity of the charges levelled against him then the Martial Law Court should have sought instructions from the concerned Headquarter. Thereafter the M.LA. Zone 'A' Lahore has recommended that the accused should be tried under M.L.R.59 (instead of M.L.R.58) despite his acquittal. Reliance is placed in the case of Anwer v. Crown reported in PLD 1951 Federal Court 1985. In this report the Federal Court has formulated the principles according to which bias in a Judge in to be discovered. It has been laid down that where the Judge is finally under any influence then the trial is not fair. Bias in a Judge is the paralysis, complete or partial, of adequate faculties. In the case of Abdul Rauf v. Abdul Hameed Khan reported in PLD 1965 SC 671, it has been held that "A mala fide act is by its nature an act without jurisdiction. Any legislature when it grants power to take action or pass an order, does not contemplate a mala fide exercise of powers. A mala fide order is a fraud on the statute. A mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purpose."
' In the case of Province of Pakistan v. Saeed Ahmad, reported in PLD 1974 SC 151, it has been held that "action taken in colourable exercise of powers, i.e, for collateral purposes not authorised by the Law under which the action is taken or actions taken in fraud of the Law are also mala fide."
12. In the case of State v. Zia-ur-Rehman reported in PLD 1973 SC 49, it has been held that an act done mala fide is an act without jurisdiction. It is thus clear that the opposite of this proposition must also be true that an act without jurisdiction is an act done mala fide. All the actions taken against the petitioner were by or on behalf of the Provincial Government i.e, West Pakistan Government, which had no jurisdiction to do so as the petitioner was a Central Government employee. Therefore, all the actions taken against the petitioner i.e, of suspension and dismissal were without jurisdiction and hence mala fide.
13. As regards the point of lathes, the petitioner's counsel submitted that he was always vigilant and sought his remedy whenever the same was available to him. It is submitted that upto 1974 no remedy was available to the petitioner because Martial Law Regulation, 1958 was saved under the P.C.O.
1969. In 1974 the Federal Services Tribunal was established upon the enactment of 1973 Constitution and the petitioner promptly appealed to the Services Tribunal in which it remained pending till it was finally allowed on 14th April, 1981. Thereafter Article 13-A to the P.C.O. 1981 was enacted which factually ousted the jurisdiction of all Courts and Tribunals to sit upon judgments of any orders given under Martial Law Regulation 58. Article 13-A has been saved by Article 270-A of the present Constitution, thus ousting jurisdiction of all the Courts, uptil the Supreme Court in Khar's case laid down the four exceptions upon which the validity of Martial Law Orders could be challenged and accordingly the present petition was filed in April, 1989. Even otherwise, it was submitted, that during all this period of time i.e, from 1982 till 1989, the petitioner addressed over 66 letters to the respondent No,1, and other Central Government agencies/functionaries requesting that the Service Tribunal's decision in his case be implemented, but to no avail. Either his letters were not replied to or he received evasive answers for example that the matter had been endorsed to so and so Ministry etc. For comments.
14. It is, therefore, clear that the petitioner has always been vigilant and in fact there has been no delay at all in approaching this Court for obtaining relief by way of a writ. According to Black's Law Dictionary at page 787 `laches' has been described as follows:-- "The Doctrine of Laches is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as a neglect to assert a right or claim, which taken together with a lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a Court of Equity."
15. It is thus clear that the essential ingredients of laches is unreasonable and unexplained delay for an extended period of time and secondly the causing of prejudice to the other party by reason of such delay. In the present case there is no delay as explained above and even if there is, it has been adequately explained and accounted for by the petitioners. In Muhammad Sadiq v. Anver Majeed 1989 P Cr. L J 1223 it was held by a Division Bench of this Court consisting of Ajmal Mian, Acting C.J. And Saleem Akhtar, J. (as they then were) that the question whether delay in filing of a Constitutional petition was fatal, would depend upon facts of each case. It was observed that delay in some cases of even several years could be overlooked, while short delay/laches could be fatal in other cases. Where Constitutional petition directed against an order suffered from unexplained delay/laches, such delay was fatal. In this ruling the decisions in the following cases were referred:--
(1) The State v. Muhammad Saleh and another PLD 1980 Kar. 131,
(2) Hussain Bakhsh v. Allah Bakhsh and others 1981 SCMR 410,
(3) Nazar v. The State 1968 SCMR 415,
(4) Jalal Khan v. Lakmir 1968 SCMR 1345,
(5) Muhammad Khan Sultan 1969 SCMR 82,
(6) Piran Ditta v. The State 1970 SCMR 282,
(7) Noor Muhammad v. The State 1972 SCMR 331, and
(8) Settlement Authority through The Chief Settlement Commissioner, Lahore and another v. Mst.
Akhtar Sultana PLD 1976 SC 410.
16. We are, therefore, of the clear view that the impugned order is patently illegal, clearly mala fide and coram non judice. We, therefore, allow the petition and set aside the impugned order and direct respondent No,1 to refix the date of his retirement in the light of this judgment.