MALIK MUHAMMAD QAYYUM, J.---This appeal under section 3 of the Law Reforms Ordinance, 1972 arises out of W.P. No.678/92 filed by the appellant against the order of termination of his services which was dismissed by a learned Single Judge of this Court on 9-6-1992.
2. The appellant was serving as a Divisional Forest Officer in the Forest Department of the Government of Punjab when he was dismissed from service by Notification dated 2-5-1970 issued under Martial Law Regulation No.58. This order was challenged by the appellant by filing an appeal before the Services Tribunal which was partly accepted on 25-2-1981 and the penalty was reduced from dismissal to compulsory retirement. Still feeling dissatisfied the appellant filed a petition for special leave to appeal (C.P.S.L.A. No.652/81) before the Supreme Court of Pakistan. However, proceedings before the Supreme Court abated in view of paragraph 13-A of the Provisional Constitution Order, 1981 which validated all orders and actions taken under Martial Law Regulation No.58. The appellant filed a review application, which was dismissed on 7-11-1988.
3. Subsequently, on 23-12-1991 the appellant filed the Constitutional petition bearing No.678/92 out of which this appeal has arisen challenging the order of his dismissal and the notification issued in this behalf of various grounds. The learned Single Judge, however, dismissed the Constitutional petition on 9-6-1992 who was of the view that the petition suffers from gross laches inasmuch as review petition had been dismissed by the Supreme Court on 7-11-1988 whereas the present petition had been filed on 23-12-1991 after about 3 years. The learned Single Judge was of the view that the appellant by filing the Constitutional petition had in effect sought rehearing of the matter which stood decided by the Supreme Court of Pakistan and as such the petition was not maintainable.
4. In support of this appeal, Syed Jamshed Ali Shah, Advocate, has contended that the appellant's petition before the Supreme Court was not decided on merits but stood abated on promulgation of the Provisional Constitution Order, 1981 and as such it could not have been held by the learned Single Judge that the order of the Supreme Court of Pakistan was a bar to the maintainability of this petition. As regards laches, the learned counsel relied upon the pronouncement of the Supreme Court in Pakistan Post Office v. Settlement Commissioner and others (1987 SCM R 1119) to contend that laches by itself was not a ground for refusing the relief in Constitutional jurisdiction and, in any case, it cannot be held in the facts and circumstances of the case that the appellant had abandoned his challenge to the order of dismissal of his services.
On merits, the appellant's learned counsel has emphasized that the appellant was not granted proper opportunity of being heard by the Tribunal which passed the order of his dismissal as neither any witness was examined in his presence nor was he allowed to lead evidence in defence.
According to the learned counsel, the so-called hearing was an eye-wash as the appellant's name-has already been earmarked for dismissal in the list provided by the Martial Law Authorities to the Tribunal. Syed Jamshed Ali Shah urged that the impugned order was not based upon any material or evidence and was arbitrary and capricious. It was explained that there was another employee by the name of Muhammad Munir who was being proceeded against having acquired some land and the order of dismissal related to him and not to the appellant whose full name was Muhammad Munir Ahmad. In that context the learned counsel stated that the list of assets furnished by the appellant has already been scrutinized and found by the Committee set up for that purpose which was headed by Mr. Justice Qadir Nawaz Awan, to be in order.
5. We have also heard the learned Additional Advocate-General who has appeared on behalf of the respondents.
6. In view of the plea raised by the learned counsel for the appellant that the impugned order was not based upon any evidence nor was there any material on the record to sustain the order of dismissal of the appellant from service, we had directed the respondents to produce the relevant record. They were also asked to produce a copy of the list prepared by the Martial Law Authorities which was supplied to the Tribunal but despite having repeated adjournments, the learned Deputy Attorney-General for Pakistan as also the learned Additional Advocate-General were unable to produce any record. In these circumstances, both the contentions raised, firstly, that the impugned order was not based upon any material and secondly that the so-called hearing was merely an eye-wash as the Tribunal had acted under the dictated exercise of the Martial Law Authorities, who have furnished the list of the Officers who were to be removed from service, had remained un- rebutted on the record. The impugned order is, therefore, clearly liable to be struck down on these grounds. It may also be noted that another ground which was raised by the appellant was that there was no order of the President, who was the competent Authority, for dismissal of the appellant from service. Again in the absence of any such order having been produced by the respondents, this plea must succeed.
7. It is not disputed by the respondents that earlier the appellant had been asked to submit declaration of his assets under Ordinance IX of 1969 which were scrutinized by a Sub-Committee headed by Mr. Justice Qadir Nawaz Awan, who found the same to be in order. We may also note that the appellant had earlier challenged his dismissal by filing an appeal before the Services Tribunal which after inquiry came to the conclusion that the charge of corruption against the appellant was not proved but his appeal was dismissed on the ground that he has been found inefficient in view of some adverse remarks. As already observed, the order of the Service, Tribunal was challenged by the appellant by filing an appeal before the Supreme Court, which was, however, abated in view of paragraph 13-A of the Provisional Constitution Order, 1981. The order of the Tribunal, as such did not become final and is, therefore, of no effect. We may, however, observe that the only ground for dismissing the appeal which prevailed with the Service Tribunal was that certain adverse remarks have been given against the appellant in the service record which show that he was not efficient. The learned counsel for the appellant has contended that these remarks were never communicated to the appellant and, as such could not be used against him.
8. Be that as it may, after hearing the learned counsel for the parties, we find that the facts of the case in hand appear to be the same as in the case of S.A. Rizvi v. Islamic Republic of Pakistan through Secretary, Establishment Division and others 1991 M LD 1834 decided by Sind High Court wherein the order passed under Martial Law Regulation No.58 was set aside on the ground that the name of the appellant stood included in the list which contains the names of those Officers who were marked for dismissal and that the impugned order was not passed after due application of mind but under dictated exercise of jurisdiction. This judgment was approved by the Supreme Court of Pakistan when it refused to grant leave against it in the case of Islamic Republic of Pakistan v. S.A. Rizvi 1992 SCM R 1309 We are also of the view that the hearing granted to the appellant did not meet the requirement of law and the principle of natural justice inasmuch as neither any witness was examined nor was the appellant given any opportunity to E lead evidence.
We are supported in this behalf by the judgment of the Sind High Court in Constitution Petition No.D-618/92 as also the judgment of the Supreme Court in Federation of Pakistan etc. v. Nawazish Ali Shah etc. C.P. No.941-1-/94, decided on 17-1-1995.
9. So far as the ground of laches is concerned, it is clear from the facts stated above that the appellant has never accepted the order of his dismissal and had been agitating against it right from the beginning before various forums. Be that as it may, the learned Single Judge could not have dismissed the petition on the ground of laches in view of the law declared by the Supreme Court in Pakistan Post Office v. Settlement Commissioner and others 1987 SCM R 1119 without having examined the merits of the case. As the order of dismissal of the appellant has been found by us to be wholly without jurisdiction, the refusal to interfere in the matter would result in perpetuation of an illegality.
In view of above, we allow this appeal and accepting the Constitutional petition declare the order of dismissal of the appellant from service to be without any lawful authority and no legal effect. No order as to costs.