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Petitioner: MUHAMMAD MUNEER AWAN VS Respondent: AZAD JAMMU AND KASHMIR GOVERNMENT
2002 M L D 1953
2002 M L D 1953
[Azad J&K]
Before Ghulam Mustafa Mughal, J
MUHAMMAD MUNEER AWAN‑‑‑Petitioner
Versus
AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 5 others‑‑‑Respondents
Writ Petition No.390 of 2000, decided on 27th March, 2002.
(a) Administration of justice‑‑‑
‑‑‑‑ Where the vested rights of parties are likely to be infringed or taken away by executive order/notification, then law required that such a Notification/Order must have been issued in exercise of statutory rules.
Azad Government v. Kh. Abdul Aziz PLD 1982 SC (AJ&K) 16; Muhammad Siddique Farooqi v. Azad Jammu And Kashmir Government PLD 1994 SC (AJ&K) 13; Sajid Hussain v. Muhammad Latif 1992 SCMR 468; State‑v. Muhammad Ismail 1980 SCMR 268; Lt.‑Col. G.L. Battacharya v. The State PLD 1964 SC 503; Ch. Muhammad Siddique v. Deputy Collector 1992 SCR 110; Abdul Jamil v. Registrar of Trade Union PLD 1971 Lah. 220; Syed Sharif Hussain Bukhari v. Azad Government and 3 others PLD 1983 AJ&K 10; M.D. Tahir v. Federat Government PLD 2000 Lah. 251 and Muhammad Bhai v. Islamic Republic of Pakistan PLD 1980 Kar. 166 ref.
(b) Practice and procedure‑‑‑----
‑‑‑‑Where law required performance of function in a specific manner that function must be performed in that manner alone.
PLD 1978 SC (AJ&K) 37; Ghulam Nabi Mir v. Sarkar PLD 1971 Azad J&K 118; PLD 1954 FC 248;, PLD 1954 Lah. 37; AIR 1949 Mad. 710 and Alam Din and 12 others v. Administrator Auqaf and 2 others 1989 CLC 578 ref.
Raja Muhammad Hanif Khan for Petitioner.
Sardar Muhammad Yasin Khan for Respondents.
ORDER
This writ petition has been directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 whereby the Notifications dated 24‑2‑2000; 2‑12‑2000 and the report of the committee made on 27‑4‑2000 have been challenged.
The facts necessary for the disposal of the present writ petition are that petitioner retired from the service of Forest Department of Azad Jammu and Kashmir on 6th June, 1998. During his posting as Conservator Forest, a tender notice was issued by the Forest Department for extraction of Kuth (Sassurea‑lappa) from Karen and Sharda Division, Tehsil Authmuqam. After complying with the procedure, the contract was awarded to Mian Ikhlaq‑ur‑Rasool, Contractor. It is averred in the petition that Officers posted at Sharda and Karen Division were responsible to supervise the extraction and transportation of the Kuth. Respondent No.5 as stated to be incharge of the U.T. division, he in that capacity accepted and dealt with a large quantity, of the Kuth which was deposited with the U.T. Division by the Contractor. Resp6ndent No.5 is also stated to have verified the aforesaid facts by the reports dated 3‑2‑1998, 1‑9‑1998, 10‑9‑1998, 21‑9‑1998 and 23-9‑1998.
For the reasons listed in the writ petition, the excessive extraction and transportation of the Kuth was made by the contractor and the aforesaid situation was apprised to the Secretary, Forest and the Chief Conservator Forest. The Government considered the matter in a High Level meeting chaired by the Minister Forest held on 28‑4‑1998. After evaluation of the whole circumstances and with consultation of the Finance Department, a Notification was issued on 19‑9‑1998 whereby it was ordered as under:‑‑
In compliance with the Notification dated 19‑9‑1998, 35 officers mentioned in the letter dated 27‑11‑1999 were held responsible for excessive extraction of the Kuth and it was, however, recommended that proceedings under Efficiency and Discipline Rules may be initiated against the aforementioned officers. This letter dated 27‑11‑1999 issued by the Chief Conservator Forest is placed on record as Annexure "FP" The proceedings initiated at the Departmental level are still under progress at secretariat level. It is worth mentioning here that the name of he petitioner is not included in those who were held responsible for excessive extraction of the Kuth. The Government of Azad Jammu and Kashmir on 24‑2‑2000 issued a Notification whereby a committee was constituted to inquire into the alleged irregularity and illegality committed during the process of the extraction and transportation of the Kuth by the contractor concerned. A notice was issued to the petitioner on 30‑2‑2000 by the committee and a clarification/reply was sought from him. The petitioner informed the committee that since he is retired from service, therefore, until and unless the allegations and record are not provided to him in concrete shape, it is difficult for him to reply. In the meantime, the petitioner claims to have replied the matter on the basis of his own memory. It is further averred that the committee, without providing record and an opportunity of hearing to the petitioner, made a report to the Government on 27-4‑2000. In this report, the petitioner is also held responsible for excessive extraction of the Kuth. The recommendations were made that alongwith others he may also be proceeded against. The aforesaid notification and report has been challenged by the petitioner by filing this writ petition. One of the grounds on which the notification dated 24‑2‑2000 has been challenged is that it does not disclose the source of power under which it has been issued. During the pendency of this writ petition, the notification was amended by the notification dated 2‑12‑2000 which postulates that the notification dated 24‑2‑2000 may be deemed to have been issued in exercise of the powers conferred on the Government under section 3 of the Pakistan Commission of Inquiry Act, 1956 as adopted in Azad Jammu and Kashmir. The petition was accordingly amended and this notification was also challenged.
The respondents filed their written statements and controverted the stand taken in the writ petition and alleged that the petitioner was responsible for excessive extraction of the Kuth. It is further stated that a perusal of letter dated 21‑8‑1997 issued to the D.F.O. Karen and Sharda clearly shows that Kuth was only to be extracted from the areas specified by the department. According to the respondents, under section 4 of the Kuth Regulations, any unauthorized cultivation, extraction, possession and transportation or sale of the Kuth was prohibited, therefore, it was unlawful on the part of the contractor to purchase the Kuth from the local residents and the officials in their supervisory capacity slept over the matter and have not stopped the same in proper time due to which the Government suffered a huge loss. It is also contended that committee has rightly been constituted by the Government and defect in the notification under challenge has been removed by issuance of , the subsequent notification dated 2‑12‑2000. The petitioner, according to the respondents, was provided full opportunity to explain his position before the committee but he failed to answer properly the allegations levelled against him and has rightly been included in the report of the committee. The recommendations of the committee were to be considered by the authority, therefore, the writ petition is not maintainable.
Raja Muhammad Hanif Khan, the learned counsel for petitioner, raised the following grounds in support of the writ petition:‑‑
(I)??????? That the Competent Authority (Government) has issued notification dated 19‑9‑1998 after consultation with Department in which the excessive extraction of the Kuth has been regularized. The Government being the Competent Authority, under the Efficiency and Discipline Rules, 1977, has rightly ordered for initiation of proceedings against the officers who were involved in excessive extraction of the Kuth or by whom irregularity or illegality in excessive extraxtion of the Kuth is stated to have been committed. The Chief Conservator Forest, according to the learned counsel, vide his letter dated 27‑11‑1999 recommended the Secretary Forest for proper action against 35 officers responsible for the aforesaid irregularity or illegality. The, petitioner in that report is not mentioned as one of the officers responsible or who has been assigned any role for excessive extraction of the Kuth. In presence of the aforesaid notification, no other notification can be issued by the Government;
(II)?????? that no source of power is mentioned in the notification dated 24‑2‑2000 under which it was issued, therefore, this notification cannot nullify the effect of the notification dated 19‑9‑1998. The subsequent amendment made in the notification through notification dated 2‑12‑2000 is a mala fide and that too is without any lawful authority and coram non judice, as the requirement of section 3 of the Pakistan Commission of Inquiry Act, 1956 is‑ missing, therefore, the notification is violative of the law;
(III)????? that the notification dated 24‑2‑2000 and 2‑12‑2000 have not been published in Official Gazette as required by the law, therefore, the very constitution of the committee and its report are without any lawful authority;
(IV)????? that the proceedings of the committee have been conducted without associating the petitioner and thus, Winding of guilt, recorded by the committee without providing an opportunity of hearing to the petitioner, is mala fide and offensive to the principle of natural justice;
(V)?????? that at the most, the proceedings conducted by the committee could not be utilized or read against the petitioner. No action can be initiated on the basis of this report in presence of the notification dated 19‑9‑1998 which has been issued under statutory provision, i.e. E&D Rules;
(VI)????? that a vested right has accrued in favour of the petitioner in view of the notification dated 19‑9‑1998 and the report of the Chief Conservator Forests dated 27‑11‑1999, therefore,, without hearing, no action can be taken against the petitioner.
(VII)??? The learned counsel referred to and relied upon the following authorities in support of the petition:‑‑
(1)??????? Azad Government v. Kh. Abdul Aziz (PLD 1982 SC (AJ&K)
(2)??????? Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government (PLD 1994 SC (AJ&K) 13.
(3)??????? Sajid Hussain v. Muhammad Latif (1992 SCMR 168).
(4)??????? State v. Muhammad Ismail (1980 SCMR 268).
(5)??????? Lt.- Col G.L. Battacharya v. The State (PLD 1964 SC 503).
Sardar Muhammad Yasin Khan, the learned counsel for the respondents, controverted the arguments raised by the learned counsel for the petitioner and reiterated mostly the same facts and grounds which have been taken in the written statement and the comments. Besides the facts and law referred to in the written statement, the learned counsel has vehemently contended that petitioner was posted as a Conservator Forest at the relevant time so he was directly responsible for the excessive extraction of the Kuth and the irregularities and illegalities committed by his subordinates. The provisions of the Kuth Regulations have been violated by the respondents. The committee provided the opportunity of hearing but the petitioner himself did not appear before the committee. Due to the conduct of the petitioner, the Government suffered from huge loss. The excessive extraction of the Kuth, according to the learned counsel, has been made with connivance of the contractor for ulterior motives. The writ petition has been filed with unclean hands and the petitioner deserves no relief. The learned counsel also maintained that the notifications under challenge have been issued by the Government and the wisdom of the Government cannot be questioned in writ jurisdiction. The learned counsel relied upon the following authorities:‑‑
(1)??????? Ch. Muhammad Siddique v. Deputy Collector (1992 SCR 110).
(2)??????? Abdul Jamil v. Registrar of Trade Union (PLD 1971 Lahore 220)
I have heard the learned counsel for the parties and gone through the record carefully. So far the first contention of the learned counsel for the petitioner is concerned it is on the record as well as in the written statement that excessive extraction of the Kuth has been made. The aforesaid excessive extraction is stated to be violative of the Kuth Regulations as well as contrary to the other policies laid down by the Government from time to time. The Government in a high level meeting held on 28‑4‑1998 regulated the matter with the consultation of the Finance Department, the notification is still holding the field The Government is a competent authority to regulate the same even in view of the delegation of Financial Powers Rules, 1994. A proper action also appears to have been ordered against the local employees posted at the relevant time. This action has its source under the E&D Rules, therefore, is justified and is also properly backed 6y. the statutory rules. It has rightly been contended by Raja Muhammad Hanif Khan, the learned counsel for the petitioner, that no source of power is shown in the notification dated 24‑2‑2000. Where the vested rights of the parties are likely to be infringed or taken away by the executive order/notification A then the law requires that such a notification/order must have been issued in exercise of some statutory rules. The proposition came under consideration before the Division Bench of this Court in a case titled Syed Sharif Hussain Bukhari v. Azad Government and 3 others (PLD 1983 AJ&K 10). In the aforesaid case, a notification was issued by the Government whereby a restriction was imposed on accommodation facilities in guest houses and MLA hostels. The Division Bench of this Court opined as under:‑‑
"Coming to the points raised by the learned counsel for the petitioner, it may be observed that according to the contents of the impugned order. it was issued by the Section Officer Services, in compliance of some directions. It is not evident from the impugned order as to who had issued the direction which resulted in the impugned order. Even if it is assumed that the impugned order was issued in pursuance of direction by the Government, it still remains to be seen as to wh6ther Government had any such powers under any statutory provisions. No law has been cited by the learned, advocate General that Government had power to make any such order under any law on the Statute Book of the Azad Jammu and Kashmir State. If an order issued by the Government which affects the right of a citizen adversely, is not shown to have been made in pursuance of some statutory provisions, that order, being without any lawful authority, is to be struck down, especially when it offends against any Constitutional provisions. It may be observed that the aforesaid Disqualification Ordinance does not visualize any, such restrictions on the disqualified politicians. Even if it is assumed for the sake of arguments that such an order can be issued in exercise of executive authority of the Government without any backing of law, the question arises that if the impugned order offends against the right of equality before law, how it can be held to be a valid order, passed in exercise of executive authority."
The matter also came under consideration before the Lahore High Court in the case of M.D. Tahir v. Federal Government (PLD 2000 Lahore 251), Federal Government ‑in that case constituted the Khidmat Committees in exercise of . executive powers through a Notification and no source of power was mentioned in the Notification setting up such Committees and the Lahore High Court observed that such a Notification is violative of law, A similar proposition came under consideration before Karachi High Court in the case of Muhammad Bhai v. Islamic Republic of Pakistan (PLD 1980 Karachi 166). It is useful to reproduce the relevant portion of the judgment which is as follows:‑‑
"It was argued that the policy decision though not incorporated in the rules will have the force of rules as it has been taken by the rule‑making authority. The leading case on this subject is Pakistan v. Abdul Hamid PLD 1961 SC 105 in which Office Memoranda printed as appendices to the rules were held to have the force of statutory rules as in many respects, they possessed the characteristics of formal rules framed and were issued by the Authority competent to frame rules. The test laid down for official instructions to be given the effect of the Rules was that they must be expressed in precise terms which are capable of being ‑applied with particularity to a great variety of cases. The text of the policy decision relied upon has not been placed on the record and we are, therefore, unable to examine the validity of the contention advanced by the learned Additional Advocate ?General. We have perused the letter produced in this behalf by the petitioner in Petition No.1432 of 1978 which merely refers to the latest Government Policy which required that the detenu Mir Muhammad was to complete 14 years' substantive sentence excluding remissions. Besides any policy decision contrary to the Remission Rules which have been framed under the provisions of the statute cannot be held to have been amended by an inconsistent policy decision. If the intention of the Government was to amend the Rules by the so‑called policy decision, the necessary amendment could have been made in the Rules. We cannot, therefore, attribute to the Government any intention that the policy decision was intended to alter or amend the existing Rules. Be that as it may, even if the decision relied upon is regarded as having the effect of amending the Rules, clearly the amendment in the Rules, extending the minimum period of actual substantive sentence to be undergone by the life convicts from 10 years to 14 years, cannot be given retrospective effect as to operate against the detenus in these petitions, as already held by us."
The Supreme Court of Azad Jammu and Kashmir also approved the tame view in the case of 'Azad ('government and another v. Saif Ali and 10 others' in Civil Appeal No. 138 of 2001, decided on 15‑10‑2001. The observation of the Supreme Court is as under:‑‑
"Even if it is assumed for the sake of argument that the High Court had the jurisdiction in the instant case to entertain the writ petition, the fact remains that in view of rule 3(a) of the Rules of 1983, the High Court was not legally justified to 4old that the concerned authorities were bound‑ to post the respondents as Private Secretaries and Personal, Assistants to the Ministers and others by giving them preference over others. For elucidating the matter, it would be expedient to reproduce below rule 3(a) of Rules of 1983 and the Notification dated 30‑12‑1999:‑‑
Rule 3(a) reads as under:
"3. Methods of Recruitment:
(a)??????? (i) Appointment to the posts detailed in the Part 1 of Schedule shall be made, as the case may be, at the discretion of the President, Prime Minister/Chief Executive, Ministers, Advisors and the Presidential Assistant out of the regular service of Azad Jammu and Kashmir. These appointments shall be purely on temporary basis and the appointments shall, on the President, Prime Minister/Chief Executive, Minister Advisor or Presidential Assistant, on whose discretion they were appointed, ceasing to hold such office, be reverted to their parent cadres, if the successor no longer requires their services, or if there is no successor. (ii)??????? ??????????????????
??????????? (b) ????????????????..
It is evident from the rule that under rule 3(a) the Private Secretaries and Personal Assistants are to be appointed from regular service of the Government. Therefore, no embargo could be placed on rule 3(a) of the said rules by the notification dated 30‑12‑1999, which has been interpreted by the High Court to mean that in the first instance the Private Secretaries and Personal Assistants to the Ministers etc., must be appointed from the cadre of the respondents; such restriction being contradictory to the statutory rules would have no legal effect "
As mentioned in the earlier part of the judgment, the Government has amended the Notification by issuing another Notification dated 2‑12‑2000 whereby it is shown that the Notification dated 24‑2‑2000 shall be deemed to have been issued under the provisions of Pakistan Commission of Inquiry Act, 1956 (hereinafter shall be referred as the Act). The learned counsel contended that this amendment has been made after his objection in the writ petition, therefore is a mala fide. Moreover, the learned counsel contended that a Notification could only be issued in view of section 3 of the Pakistan Commission of Inquiry Act, 1956. For the proper perception of the matter, section 3 of the Act is reproduced as under:‑‑
?3???????? Appointment of Commission. ‑‑‑(1) The Central Government may, if it is of opinion that it is necessary so to do, by notification in the official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry, into any definite matter of public importance and performing such functions and within such time as maybe specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly.
(2)??????? The Commission may consist of one or more members appointed by the Central‑ Government, and where the Commission consists of more, than one member, one of them may be appointed as the President thereof."
A perusal of the above provision reveals that a Notification could only be issued in the circumstances enumerated in the section for the purpose of public importance. A perusal of the aforesaid Notifications even otherwise reveals that no reasons are listed or given in the Notifications. In this regard, the learned counsel has placed reliance on the case of Azad Government v. Kh. Abdul Aziz (PLD 1982 SC (AJ&K) 16) wherein in the similar circumstances, the apex Court of Azad Jammu and Kashmir upheld the judgment of the High Court by declaring the Notification under section 3 of the aforesaid act to be without lawful authority and alien to the scheme provided in section. Leaving aside the controversy whether the Notifications referred above have rightly been issued or not there is‑still another lacuna which affects the very issuance of the Notifications and the conduct of the inquiry. Section 3. reproduced above provides that Notifications for the appointment of a Commission of Inquiry shall be published in the Official Gazette. I have perused the Notifications, they have not been published in the Official Gazette nor have been sent to the Controller, Government Printing Press for Publication. Therefore, the very issuance of the Notifications is void and the constitution of the Committee and proceedings conducted in pursuance thereof becomes without lawful authority. The point has finally been set at rest by the superior Courts that where law requires the performance of function in a specific manner that function must be performed in that manner alone. I am supported in this regard by the dictum of the Supreme Court in a case reported as PLD 1978 SC (AJ&K) 37. The question of publication of the Notification also came under consideration before the High Court of Azad Jammu and Kashmir in the case of Ghulam Nabi Mir v. Sarkar (PLD 1971 Azad J&K 118). The relevant observation is as under:‑‑ ??????????
"As it was mandatory that the Government Order under section 11 of the Criminal Law Amendment Act empowering officers to grant sanction for prosecution under this Act of the staff removable by them, to be published in the Official Gazette and as the same has not been so published, this order, in the lighting of the wording of rule 10 of the Rules of Business, has not come into force so far. The result is that there is no sanction of valid sanction in the present case. Sanction in such cases invests the Court with jurisdiction; that without such a sanction the Court has no jurisdiction to try the accused and the proceedings are invalid, require no authorities as the matter is itself very clear. However, reference may be, made to PLD 1954 FC 248, PLD 1954 Lah. 37 and AIR 1949 Mad. 710. The sanction granted by Mr. A.R. Saleem the Deputy Commissioner of the time for prosecution of the appellant being thus without proper authorization, is therefore, ineffective and illegal."
The Supreme Court of Azad Jammu and Kashmir in the case of Alam Din and 12 others (1989 CLC 578) also approved the same view‑and observed as under:‑‑
The controversy emanating from the facts confines to interpretation of meanings of the term 'notification' as contemplated under section 6 of the Azad Jammu and Kashmir Waqf Properties Act, 1960 (hereinafter referred to as the Act). The grammatic meanings of word 'notification' were examined by the learned Judges in the High Court, in the light of its definition described in Webster's 'New International Dictionary'. The relevant definition is reproduced:‑‑
Notification means:‑
"To bring before the public, as for sale or distribution; to print, or cause to be printed and to issue from the press, either…
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