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P L D 1976 Supreme Court 258

 

Present : Muhammad Yaqub Ali, C. J., Salahuddin Ahmed, Anwarul Haq and Muhammad Gul, JJ

 

THE CHAIRMAN, DISTRICT SCREENING COMMITTEE, LAHORE AND ANOTHER‑‑Appellants

 

versus

 

SHARIF AHMAD HASHMI‑Respondent

 

Civil Appeal No. 57 of 1974, decided on 20th February 1976.

 

(On appeal from the judgment and order of the Lahore High Court,. Lahore, dated 7th February 1974 in L. P. A. No. 337 of 1971).

 

 

Mahbub‑ur‑Rahman v. Government of West Pakistan P L D 1968 Lah. 313; Sheikh Shaida‑i‑Rasul Siddiqui v. The Chief Engineer, Irrigation Department, West Pakistan P L D 1968 Lah. 1085 and Mubarak Ali v. The Settlement and Rehabilitation Commissioner P L D 1968 Lah. 903 ref.

Riaz Ahmad, Assistant Advocate‑General Punjab instructed by Ijaa Ali, Advocate‑on‑Record (absent) for Appellant.

Respondent in person. Dates of hearing : 5th and 6th November 1975.

 

JUDGMENT

 

MUHAMMAD GUL, J.‑This appeal by special leave is from the judgment of a Division Bench of the Lahore High Court dated 7‑2‑1974 in L. P. A. No. 337 of 1971 reversing the judgment of a learned Single Judge of that Court by which Writ Petition No. 1412‑S of 1971 filed by the respondent herein was dismissed in limine on 8‑11‑1971 on the ground of laches without considering his grievance on merits.

 

Mr. Sharif Ahmad Hashmi, the respondent herein joined the Irrigation Department of the Government of Punjab as Zilladar probationer on 25‑7‑1945. On 3‑12‑1953 his service was terminated by the Appointing Authority, appellant No. 2 for his failure to pass the departmental examina tion within the prescribed time. The respondent however, represented to the Governor that his failure to pass the departmental examination was not the sole reason for termination of his service: but it was really due to certain adverse entries in his Annual Confidential Reports (ACRs) which were never conveyed to him as required by rules. The Governor by order dated 5‑6‑1954 accepted the respondent’s representation, restored him in service and allowed him to pass the departmental examination within extended period. The respondent passed the departmental examination within the extended time and was confirmed in service with effect from 15‑8‑1947.

 

On 18‑3‑1959 the respondent again received a notice from the Executive Engineer (Irrigation) Kasur, informing him that he had been considered inefficient and unfit for retention in service. The notice required him to show cause in writing not later than 23‑3‑1969 why his service should not be terminated on account of inefficiency and to indicate whether he desired to be heard by the District Screening Committee in which case he was required to appear before the Screening Committee on 25‑3‑1959. The respondent appeared before the Screening Committee on the appointed date and it is alleged that he was not shown his ACRs. It is also alleged that the Committee by a majority found him fit for retention in service but nevertheless in accordance with the opinion of the Chairman of the Committee, his compulsory retirement was recommended and was informed to file appeal before the Appointing Authority within a week against his proposed com pulsory retirement, should he wish so to do. The respondent filed appeal which was dismissed and be was retired from service as from 30‑6‑1959.

 

It appears that from 30‑6‑1959 until 26‑3‑1970, the respondent made repeated representations variously described as appeals and mercy petitions to different authorities including the President, the Governor, the Martial Law Authorities for setting aside the order of his compulsory retirement. The last of these representations was rejected by the Chief Secretary vide order dated 26‑3‑1970 and he was informed as it was done on some earlier occasions, that no further representation shall be entertained.

 

Ultimately on 25‑10‑1971 that is to say after more than 12 years of the order of his compulsory retirement, the respondent moved Writ Petition No. 1412‑S of 1971 for setting aside the order of his compulsory retirement. A learned Judge dismissed the petition on 8‑11‑1971 on the ground of gross ]aches, without considering merits of the case.

 

The respondent filed a Letters Patent Appeal. Before the Letters Patent Bench it was conceded on behalf of the Government that the order of the respondent’s compulsory retirement dated 30‑6‑1959 was bad in law. Neverthless, it was sought to be supported on the ground of gross laches which had weighed with the learned Single Judge. The learned Judges of the Division Bench however, took the view that since it was conceded that the order of respondent’s compulsory retirement was “without jurisdiction” therefore “it was without lawful authority and void ab initio”. In taking that view, the learned Judges were influenced by the fact that throughout these twelve years since his compulsory retirement, the respondent had been trying to get his grievance redressed and “thus kept his cause alive.” It appears that a number of precedent cases for and against the above proposi tion were cited before the learned Judges, but they preferred to follow the dictum in this Court’s judgment in Abdul Qadir v. Government of Pakistan (P L D 1967 S C 506) and held that the principle of laches would not apply in the instant case to refuse redress to the respondent and he was restored to his office from which he had been compulsorily retired, about twelve years ago on 30‑6‑1959.

Leave to appeal was granted to consider‑

 

(1) Whether the learned Judges of the Division Bench rightly interfered with exercise of discretion by the learned Single Judge, whereby he refused relief to the respondent on the ground of laches; and

 

(ii) Whether the matter in dispute between the parties is not referable to the Tribunal established under the Punjab Administrative Tribunals Act 1974 (Act IX of 1974).

 

The learned Assistant Advocate‑General appearing on behalf of the appellants, conceded that the impugned order having been made long before the Ist July 1969 was not appealable before the Punjab Service Tribunal under the Punjab Act IX of 1974. The Tribunal has jurisdiction under the Act, to hear appeals against orders made subsequent to that date. Therefore, in support of the appeal, he confined his argument only on the first ground. He submitted that after the rejection of his departmental appeal, as allowed under the rules and his first representation to the Governor, the respondent had been vainly agitating before various authorities, when at long last be filed his writ petition, after the lapse of more than twelve years. It was stressed that the respondent’s numerous representations, mostly described as mercy petitions were entirely in the nature of miscellaneous applications, not allowed by any rule, regulation or instruction. These miscellaneous applications, it was urged could not keep the respondent’s “cause alive” for twelve long years. In support of his argument learned counsel among others, relied upon judgments of the two Division Bench cases of the High Court of West Pakistan in Mahbubur Rahman v. Government of West Pakistan (P L D 1968 Lah. 313), Sheikh Shaide‑i‑Rasul Siddiqui v. Chief Engineer, Irrigation Department, West Pakistan (P L D 1968 Lah. 108). 1 will presently revert to these two cases in some detail.

 

The respondent appeared in person, He addressed a spirited argument in support of the judgment under appeal and also handed in a nicely bound volume of written arguments studded with a number of photographs. The photographs are hardly relevant to the case. The respondent argued that during his service in the Irrigation Department extending to about 14 years he had never been informed of any adverse entry in his service record charging him with inefficiency and that during his initial probationary period when his service was terminated owing to his failure to pass the departmental examination, the Governor set aside that order because certain entries reflecting .on his efficiency were never conveyed to him. lie therefore, argued that after his confirmation these adverse entries could not form a basis for a fresh .disciplinary action.

 

On the question of delay, the respondent submitted that in the course of his numerous representations at times genuine hopes were created in him ,that justice will be done to him. Once he was even interviewed by the Governor (General Muhammad Musa), on the 5th March 1962, who directed the Minister of Irrigation and Power to look into his case. He complained that the Governor’s direction was not complied with, although he kept on reminding the Secretary (Irrigation Department). The argument therefore was that there was no negligence on his part to disentitle him redress in writ jurisdiction and the delay, if any, was sufficiently explained and rightly condoned by the learned Judges of the Division Bench. In support of this part of his argument, the respondent referred to among others the case of Abdul Hamid in which, inter alia, eight years delay was condoned ,in a service matter.

 

Lastly, the respondent urged equally forcefully that it being conceded that the order of his compulsory retirement was without jurisdiction it was void ab initio and therefore, an absolute nullity which had no existence in the eye of law, and which the Courts are bound to ignore any passage of time, notwithstanding. A fortiori, on the principle of de the in diem there can be no question of any laches, the impugned order being in the nature of a continuing wrong.

 

It seems proper to consider at this stage, whether the order of the respondent’s compulsory retirement, was void ab initio in the sense of an absolute nullity in law as the learned Judges of the Division Bench seem to have thought or was a merely wrongful act voidable at the instance of the respondent by appropriate proceedings.

 

There is great looseness in the use of the words “void” and “voidable” and very often they are used interchangeably. Nevertheless there is a clear distinction between things “void” and “voidable” though the two terms are, not infrequently used without special regard for the difference or distinction particularly where such distinction is of no consequence or where the attention .of the Court is not particularly directed to this distinction. The expression “void” in the strict or accurate sense means “absolutely null” that is to say incapable of ratification or confirmation and of no effect whatever. The word “voidable” on the other hand is something which could be avoided o confirmed and which is not absolutely void. In other words what is voidable has some force or effect, but which may be set aside or annulled for some error or inherent vice or defect. “Thus that which is voidable operates to accomplish the thing sought to be accomplished until the fatal vice in the transaction has been judicially ascertained and declared.” (Se Corpus Juris Secundum Volume 92 pp. 1021‑1.024). A common place instance of a void act or transaction in the sense of an absolute nullity is an agreement by a person under a legal disability e.g. a minor or a person of unsound mind. Such act is void ab initio and is incapable of ratification o confirmation. See section 11 of the Contract Act, 1872. Law forbids the enforcement of such a transaction even if the minor were to ratify it after attaining majority. This is clearly distinguishable from a case in which thing or an act is “relatively void” which the law condemns as wrong to the (individual concerned who can avoid it by appropriate proceedings. A common place instance of such transaction is that which is brought about by undue influence, fraud etc. Which remains of full effect unless avoided by appropriate proceedings. In the relevant field, an order of dismissal etc . of a Government servant by an authority who had ab initio no authority will fall under the first category. For instance, if the respondent had bee retired by a Superintendent Police instead of appellant No. 2 the order, would have been void ab initio. On the other hand an order by competent authority but suffering from a procedural defect will be voidable and fall under second category. The first case is of total incapacity, assimilable to a defect falling under section 11 of the Contract Act and the resulting act is a. dead letter. In the latter case, the order is by the competent authority though in violation of certain rules.

 

Bearing this distinction in mind, the cardinal fact in the instant case is that respondent was retired compulsorily by appellant No. 2 who was his Appointing Authority and not by an interloper. Under the Constitution of 1956 read with the Law (Continuance in Force) Order, 1958 appellant 2 being the Appointing Authority was fully competent to do so, subject however to satisfying certain procedural requirements. Appellant 2 purported to act under the Public Conduct (Scrutiny) Ordinance, 1959 (Ordinance III o 1959) and the Public Conduct (Scrutiny) Rules, 1959 framed thereunder, rule of these Rules as originally framed provided as follows:‑

 

“Where a Committee is of the opinion that there is reason to believe that person to whom the Ordinance applies‑

(a) is corrupt. ‑ ..

(b) .

(c) is inefficient, or has ceased to be efficient and is not likely to recover his efficiency. it may so inform that person and call upon him to explain any fact or circumstance appearing against him.”

 

This covered the respondent’s case. But by a subsequent amendment’ clause (c) of the rule was omitted with effect from 28‑2‑1957. Appellant however, apparently ignorant of the amendment proceeded against the respondent as if the rule as originally framed had continued and ordered respondent’s compulsory retirement, on the report of the Screening Committee constituted under section 3 of the Ordinance. Any penal action properly taken under the rules was protected under section 10 ibid. But the impugn order not being under the rules is not protected and is therefore, open challenge.

 

The result therefore is that the impugned order was made by the authority otherwise competent to make it: it is under attack because of the defective procedure. But all the same it had taken effect as from 1‑7‑195 according to its tenor and has not been recalled notwithstanding man representations made by the respondent. In this situation, it is in my opinion wholly wrong to treat he order void ab initio in the sense of an absolute nullity. It was made by the authority inherently competent t make it, though a wrong procedure was followed. Appellant 2 could have proceeded under the Civil Servants (Efficiency and Discipline) Rules. It was therefore, merely voidable which could have been avoided by the respondent by appropriate proceedings. This he did, but not until after the lapse o twelve years. Since then further three years have gone by.

 

Therefore, it can scarcely by controverted that the respondent’s writ petition in the High Court suffered from inordinate delay and ordinarily relief should have been refused to him as it was done by the learned single Judge for reasons of gross laches. What however, remains to be considered Is whether the repeated representations made by the respondent were sufficient cause for condoning the delay as held by the learned Judges of the. , Division Bench?

 

No hard and fast rule can be laid down for condonation of delay and the question of sufficiency or otherwise of the cause is to be examined in the light of facts of each case. There have been cases as happened in the case o Abdul Hamid where eight years’ delay was overlooked. On the other hand there are cases in which few months delay was treated to be uncondonable. The principle however, is well settled that Courts of Equity have always refused aid to enforce state claims or demands. Monographs 1181‑82 at pages 641‑42 of Halsbury’s Laws of England, 3rd Edition, Volume 14 bear on the subject of laches which read

 

“A Court of Equity refuses its aid to stale demands, where the plaintiff has slept upon his right and acquiesced for a great length of time.

 

In determining whether * there has been such delay as to amount to ]aches the chief points to be considered are (1) acquiescence on the plaintiff’s part, and (2) any change of position that has occurred on the defendant’s part. Acquiescence in this sense does not mean standing by while the violation of right is in progress, but assent after the violation has been completed and the plaintiff has become aware of it. It is unjust to give the plaintiff a remedy where he has by his conduct done that which mightly fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect he has, though not waiving the remedy, put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.”

 

In Lindsay Petroleum Company v. Hurd ((1874)LR 5 PC 221) it was observed at pages 239, 240:‑

 

“The doctrine of laches in Courts of Equity is not an arbitrary or

 

technical doctrine where it would be practically unjust to give a remedy either because the party has, by his conduct done that which fairly be regarded as equivalent to the waiver of it or where by his conduct and neglect he had, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, Two circumstances, always important in such cases are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course of the other, so far as relates to the remedy.”

 

The principle that laches is fatal to the grant of relief in writ jurisdiction was to be decided on the “balance of inconvenience” was asserted and accepted recently in unpublished judgment of this Court in Civil Appeal No. K‑44 of 1965 (Wasi Ahmad Rizvi v. Pakistan). The writ petitioner in that case was employed as A Grade Clerk in the Naval Headquarters. He claimed higher pay under rule 8(a) of the Central (Non‑Gazetted) Civil Service (Revision of Pay) Rule 1959 on the premise that he had satisfied the condition laid down in the rule for higher rate of pay. His claim was refused on 6‑4‑1955. He represented against that order but his representa tion was again refused on 14‑5‑1957. A further representation was made to the Government on 31‑7‑1961 which perhaps remained unanswered. Ultimately, he filed writ petition on 20,4‑1962 for quashing the order, dated 6‑4‑1955 and 14th May 1957. The writ petition was dismissed by the High Court on the ground that rule 8(a) did not cover the petitioner’s case and therefore he was not entitled to higher rate of pay claimed by him. Leave to appeal was granted in that case to consider whether the High Court judgment proceeded on the correct interpretation of rule 8(a), After con sidering the facts of the case. and the provision of the rule, this Court dismissed the appeal on the ground of laches although claim was regarded as :not entirely “unfounded”. The following observations are instructive:

 

“From the above discussion it would seem to follow that, on the merits, the appellant bad a case for consideration. He, however, approached the High Court‑‑invoking its equitable jurisdiction, and one of the defence raised was that the application was a belated one and therefore deserved to be dismissed on account of ]aches. There appears to be substance in this objection. In his writ petition, which was filed on the 20th of April 1962, the appellant prayed for quashing of the orders contained in the letters, dated the 6th April 1955, and 14th of May 1957,‑‑‑‑‑‑. The last represen tation that he apparently made to the Government was on the 31st of July 1961. Why he went on making representations still then, against orders passed in 1955 and 1957, is not quite clear from the papers on the record‑‑‑ . The High Court could have, therefore, taken not of this fact and based its refusal to grant relief on this ground alone.‑‑‑‑ ‑‑It is evident that to interfere in 1967, with the Government orders passed in 1955 and 1957, will certainly cause a serious upset in the arrangements made in the intervening long period of time and create a disturbance which may not be repairable. We must therefore, decline to issue any writ in this case to grant relief to the appellant‑‑‑‑‑.”

 

In Ex Rel v. Lane ((1919) 63 Law. Ed. 3650) the (U. S.) Supreme Court held a delay of 20 months before seeking re‑instatement by mandamus before his removal from office by the Secretary of the Interior and his forcible ejection from the Government office building, under circumstances rendering his return to the service impossible except under a Court order was held to be fatal to his claim on the ground of laches. The principle upon which the learned Judges of that ‘Court rested their decision will appear from the following excerpt from the judgment:‑

 

“When a public official is unlawfully removed from office, whether from disregard of the law by his superior or from mistake as to the facts of his case obvious considerations of public policy make it of first importance that he should promptly take the action requisite to effectively assert his rights, to the end that if his contention be justified, the Government service may be disturbed as little as possible and that two salaries shall not be paid for a single service‑‑‑ Long delay must necessarily result in changes in the branch of service to which he was attached, and in such an accumulation of unearned salary that, when unexplained the manifest inequity which would result from reinstating him renders the application of the doctrine of laches to his case peculiarly appropriate in the interests of justice and sound public policy.”

 

See also in this behalf, the Law of Extraordinary Legal Remedies by Ferris 1926 Edition, monograph 176 at page 202 which for the relevant purpose reads:‑

 

“The writ will generally be refused in all cases where petitioner fails to show that he has proceeded expeditiously after discovering that it was necessary to resort to it, and especially its use. In all such cases of public detriment or inconvenience petitioner must act speedily, and any unreasonable delay will warrant refusal. In such cases the rule of laches is applied and enforced with particular strictness. So where petitioner delayed over ten months after his discharge, and nine months after notification thereof, ‑‑‑the right to the writ was barred by laches.”

 

From the above excerpts, two principles appear to e well settled. Court of Equity (who are otherwise not bound by Law of Limitation) will not allow enforcement of stale claims. Secondly, principle of laches is applied strictly where a public servant seeks restoration to his office or other redress. against a wrongful order. The reason for strict application of principle of ]aches in such cases is not far to seek. Having regard to the nature of his employment his office is “at pleasure” and he is to be paid out of public re venues. “Pleasure” is qualified or abridged only to the extent that if he is to be removed from service for reason of misconduct, he will be afforded “reason D able opportunity” to show cause. Nevertheless his tenure remains “at pleasure” and is removable at any time for any other cause say on account of abolition of his post. To obviate payment of unearned salary, out of public revenue, Courts of Equity have therefore insisted for invocation of their jurisdiction (which is entirely discretionary), with promptitude. Law of Limitation has not been made applicable advisedly to such a case for in that event, the matter would be beyond the discretion of the Court. It is in the light of these principles that the Courts of Equity have often refused redress for the sake of avoiding `inconvenience’ or “major upset” in the administration.

 

Bearing in mind the above principle, while it may be true, that because’ of the numerous applications made by the respondent from time to time, there is no waiver or acquiescence, all the same his case suffers from gross laches by his failure to promptly seek remedy in properly constituted pro ceedings until after the lapse of more than 12 years. It cannot be disputed that a suit, by the respondent in a civil Court would have been hopelessly barred by limitation. Sections 6, 7, and Part III of the Limitation Act, 1908 (Act IX of 1908) refer to cases, in which limitation for suits is either extended or suspended. But these are not attracted to the instant case. On no other discoverable principle of law the respondent could be deemed to have kept his “cause alive” nor the learned Judges of the Division Bench have pointed to any such principle or provision. Acceptance of any such principle would be placing premium on the recalcitrance of a public servant which inevitably leads to erosion of discipline. It cannot be again‑said that the respondents, must have been replaced by some new incumbent who must have risen in seniority and probably promoted to a higher post. To that person would not only be a “major upset” but would entail payment of unearned` salary to the respondent for all these years. The learned Judges, if I may Says’ so with respect, have been wholly oblivious to these deleterious consequence 1s which indeed are relevant factors.

 

The judgment under appeal refers to a long array of precedent cases in which plea of ]aches against the grant of redress in writ jurisdiction of the. High Court was either upheld or repelled. The learned Judges of the Division Bench however and I say so with respect‑apart from noticing these cases in their judgment, made , no attempt to analyse these cases, so as to underline the principle upon which they proceeded. Most of these cases related to settlement disputes and proceeded on their own facts without laying any principle of general application. Therefore, I need not burden this judgment with a critical examination of all these cases, and would be content with the examination of cases relating to, what are compendiously called “service matters.” The foremost among these cases are Abdul Hamid v. Pakistan (PLD1961SC8), Abdul Qadir v. West Pakistan (PLD1967SC506), and Pakistan v. A. P. Hassumani (P L D 1962 S C 409). in each of which there was a delay of few years.

 

In the first case, Abdul Hamid who was a member of ministerial staff in the Ministry of Defence claimed seniority and higher rate of pay by reason of his “continuous service” in a particular grade, and on the basis of two office memoranda dated the 12th January 1948 and the 15th March 1948. His claim was refused by the department and representations made by him did not yield any favourable result. The last representation was addressed to the Governor General in 1954. He was however informed by the Chief Administrative Officer in the Ministry that “no useful purpose will be served by further representations as the fixing of seniority is solely a matter for the Administrative Authorities‑‑‑‑”. He filed a writ petition on 22‑7‑1957 after about three years of the final rejection of his representation. The High Court issued mandamus against the Government. In appeal on behalf of the Government, two points were urged namely:‑

 

(i) That no writ of mandamus lay in a dispute relating to seniority of a civil servant ; and

 

(ii) That in any event the writ ought not have been issued by the High Court on the ground of laches because it will disturb the seniorities of’ others in the grade.

We are not concerned in this case with the first ground. The plea of laches was rejected by the following observation:‑

 

We have considered the point of inconvenience in the present case, and are of the opinion that since Sheikh Abdul Hamid had now been promoted to a higher position, to allow him his seniority from a particular date, need not involve anything much beyond the correction of a few entries in his service book and perhaps some degree of accounting in respect of his salary, and that his posting need not cause disturbance to the postings of other officials who may be affected by the change . . . .”

 

Thus it will be seen that the question of “inconvenience” loomed large in the vase. But the learned Judges on a careful consideration of the ambient circumstances came to a conclusion that there will be no major inconvenience except for changing a few entries as to the seniorities of persons borne on the ,cadre nor would grant of redress to Abdul Hamid entail a displacement of any other person in the cadre.

 

Abdul Qadir v. Government of West Pakistan was a case of compulsory retirement of a Police Officer who after having been charge sheeted for in efficiency and lack of integrity was ultimately retired compulsorily by an order made by the D. I. G. Police on 12.8‑1960 under CSR 465‑A read with paragraphs 349 and 374‑A ibid. He filed an appeal but failed to obtain redress. Ultimately he moved the High Court in writ jurisdiction on 3‑10‑1963 after about three years of his compulsory retirement and one year and 10 months after the rejection of his “mercy petition” by the Inspector General of Police. His writ petition was dismissed in limine by the High Court and he was the appellant in this Court. From the report of the case, it appears that the main argument canvassed on behalf of the appellant in this Court was that the D. I: G. was not competent to retire the appellant in that case, from service. It was also urged that it was a case of dismissal and not compulsory retirement simpliciter in that he had not been afforded reasonable opportunity of showing cause against his retirement. Apart from the pleas on merits, the Provincial Government pleaded laches as ground for refusing writ to the appellant. What is important to point out in this case is, that while the plea of laches was repelled. the appeal as dismissed on merits. The D. I. G. was held competent to remove the appellant in that case from service and the order of compulsory retirement was maintained on merits. Therefore, there was no question of any “inconvenience” or “upset” which should have had arisen in an acute form had the appellant in that case been restored to his office after his removal a few years earlier.

 

The judgment in Hassumani’s case has no bearing on this case either. The main dispute in that case related to the merger of a group of officers who were initially appointed by the late Government of India to what was then described as `Emergency Cadre’ of the Military Accounts Department in the Regular Cadre and the fixation of their seniorities therein.

 

Thus it will be seen that none of these three cases supports the wide proposition upon which the judgment of the High Court proceeded. Two of the above three cases related to fixation of proper seniorities which did not entail restoration of any person to his office after his separation from his office, as in the instant case. The case of Abdul Qadir on the other hand failed on merits, though plea of laches was repelled.

 

A Division Bench case remarkably similar to the fact of this case, which the learned Judges of the Letters Patent Bench in this case did not however, follow is Sheikh Shaida‑i‑Rasul Siddiqi v. The Chief Engineer, Irrigation. That too was a case of Zilladar who like the respondent in the instant case was proceeded against purporting to be under Ordinance III of 1959 and Rules framed thereunder for “inefficiency” and was compulsorily retired as from 29‑6‑1959. Like the respondent herein, the writ petitioner in that case also made numerous representations to the various authorities including the President for the reversal of the order of his compulsory retirement. Ultimately, he filed writ petition on 4‑11‑1967, about more than 8 years after the order of his compulsory retirement. As in the instant case the main plea on behalf of the petitioner in that case was that the order was wholly without jurisdiction because the relevant rule under which disciplinary action was taken against him did not apply. The writ petitioner was resisted on the ground of laches. A Division Bench of the High Court, gave effect to the plea of laches and observed :‑

 

“The objection that the petitioner cannot be entertained on the ground of laches‑‑‑‑‑must be upheld. It is to be noted that under the then existing law there was no provision for appeal against orders passed by the appointing authority. Therefore, the time taken on appeals and petitions after the passing of the order of retirement is not condonable.”

 

Similarly, Mahboob‑ur‑Rahman v. Government of West Pakistan, was a case of an Overseas who was dismissed on 1‑7‑1959 following proceedings before the District Screening Committee constituted under Ordinance III of 1959. After an abortive appeal and a number of representations, he filed writ petition in 1962, which was dismissed on 6‑11‑1963, for non‑prosecution. A fresh writ petition was filed on 6‑8‑1966. A Division Bench of the High Court dismissed the second writ petition with the following observation:‑

 

“On this view of the matter we find that the last order by the Depart ment was made in 1962, and the present petition was moved in August 1966, and if the filing of the previous petition and its dismissal in default are ignored as being of no consequence either way, then, the petitioner has allowed a period of four years to elapse before invoking the jurisdiction of this Court. The order of dismissal was passed in 1959, as already stated above, i.e. nearly eight years ago from today. The contention that the order is without jurisdiction, and therefore, a nullity in the eye of law does not in any manner condone the delay that must be presumed to have occurred on the part of the petitioner in institutioning the present petition. We are not aware of any authority laying down the principle that once a question of jurisdiction. is raised, then the question of laches is not to be considered by the Court while acting under Article 98 of the Constitution.”

 

Incidentally one of us (S. A. Q. J.) as he then was a party to both these cases. The impugned judgment also conflicts with the principle laid down in another judgment of a Division Bench of West Pakistan High Court in Mubarak Ali v. The Settlement & Rehabilitation Commissioner (P L D 1968 Lah.903). This was. an appeal under Letters Patent. In that case the appellant had filed a writ petition after the lapse of about 18 months from the date of the last order passed against him and the learned Single Judge dismissed his writ petition on the ground of laches. A Letters Patent Appeal taken against the order of a learned single Judge was however dismissed on the short ground that the ‑exercise of discretion by the Single Judge not having been found to be based on “any erroneous or improper consideration”, the Letters Patent Bench cannot substitute its own judgment for that of the learned Single Judge who was initially seized of the matter. The learned Judge it I may say so with respect did not attempt to distinguish these cases, as they should have done, if they were to take a different view.

 

Thus it will be seen that the impugned judgment, if I may say so with respect, is unsatisfactory in more than one respect. It is not in harmony with at least three earlier Division Bench cases which in my view have a dire bearing on this case. It has also overlooked the serious implications arising from restoration to office of the respondent, after about 15 years of his wrong ful retirement. Needless to say, that in matters falling within the discretionary jurisdiction of a Court, laches always assumes crucial importance. Nothing was said to show that the refusal by the learned Single Judge, to grant redress to the respondent on the ground of laches was wrong in principle, improper or capricious. No attempt was made to distinguish the last mentioned three cases on facts either. Unless any of the above conditions was satisfied, the learned Judges of the Division Bench were not justified to interfere with the exercise of discretion by the learned Single Judge, in this case.

 

For all the forgoing reasons the judgment of the Letters Patent Bench cannot be sustained. The appeal is accordingly accepted and the order of the learned Single Judge is restored. The parties are however, left to bear their own costs.

 

MUHAMMAD YAQUB ALI, C. J.‑I agree.

 

SALAHUDDIN AHMED, J.‑I agree.

 

ANWARUL HAQ, J.‑I agree.

 

S. A. H. Appeal accepted.

 

 

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