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Official Citation: 2017 PLC(CS)N 68
Court / Jurisdiction: PUNJAB-SUBORDINATE-JUDICIAL-SERVICE-TRIBUNAL
Parties: Mrs. NADIA SIDDIQUE ASAD vs The REGISTRAR, LAHORE HIGH COURT, LAHOREHonorable Justice Faisal Zaman KhanMehmood Ahmad Qazi,Ghulam Hussain Awan
This judicial decision was delivered by the PUNJAB-SUBORDINATE-JUDICIAL-SERVICE-TRIBUNAL. The matter involves proceedings between Mrs. NADIA SIDDIQUE ASAD and The REGISTRAR, LAHORE HIGH COURT, LAHOREHonorable Justice Faisal Zaman KhanMehmood Ahmad Qazi,Ghulam Hussain Awan, officially reported as 2017 PLC(CS)N 68. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
2017 P L C (C.S.) Note 68 [Punjab Subordinate Judiciary Service Tribunal] Before Shahid Waheed, Chairman and Faisal Zaman Khan, Member Mrs. NADIA SIDDIQUE ASAD Versus The REGISTRAR, LAHORE HIGH COURT, LAHORE and another Service Appeal No.26 of 2014, heard on 15th April, 2016. (a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)--- ----S. 5---Constitution of Pakistan, Art. 10-A---Judicial officer---Representation for grant of back benefits---Representation of Judicial Officer was decided without affording opportunity of hearing---Effect---Fair trial and due process---Audi alteram pattern, principle of---Applicability---Judicial officer was terminated from service but Service Tribunal reinstated her into service---Service Tribunal had observed that appellant could approach the authority for back benefits and if representation was filed then same should be decided within a period of two months---Appellant submitted departmental representation for grant of back benefits but same was declined by the authority without affording an opportunity of hearing to the judicial officer---Validity---Every person should be given a right of fair trial and due process---No person should be condemned unheard---If employee who had put forth his/her grievance before the competent authority was not given an opportunity of hearing , that would negate the rights guaranteed by the Constitution---Direction had been given by the Service Tribunal that representation filed by the appellant qua grant of back benefits should be decided in accordance with law---Deciding the said representation without affording an opportunity of hearing had militated the principles of natural justice, fair trial and due process---Impugned notification was not in accordance with law which was set aside---Departmental representation filed by the judicial officer should be deemed to be pending before the competent authority who should re-decide the same in accordance with law affording an opportunity of hearing to the appellant and all other concerned parties---Appeal was allowed in circumstances. [Paras. 7, 10, 11 & 12 of the judgment] Justice Khurshid Anwar Bhinder v. Federation of Pakistan and another PLD 2010 SC 483; Warid Telecom (Pvt.) Limited and 4 others v. Pakistan Telecommunication Authority through Chairman 2015 SCMR 338 and Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another PLD 2014 SC 585 rel. (b) Maxim--- ----"Audi alteram partem"---Meaning. [Para. 7 of the judgment] Mehmood Ahmad Qazi for Appellant. Ghulam Hussain Awan for Respondents. Date of hearing:15th April, 2016. JUDGMENT FAISAL ZAMAN KHAN, (Member).--- This appeal under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act (No.XII of 1991) (Act) has been filed impugning Notification No.974/RHC/C-I dated 12.11.2014, whereby representation filed by the appellant for grant of back benefits was declined. 2. Succinctly, the facts of the case are that the appellant was appointed as Civil Judge/Judicial Magistrate on 28.04.2004, due to non-submission of declaration of assets, she was terminated from service on 25.06.2005. After availing departmental remedy, appellant approached this Tribunal through Appeal No.05/2006, which was accepted on 08.04.2011 and she was reinstated in service. As regards her back benefits, it was observed that she may approach the respondent with a representation, which shall be decided within a period of two month. As the appellant was a probationer, after her confirmation in 2014, she filed a departmental representation on 25.07.2014 for grant of back benefits, which was declined vide impugned order, therefore, this appeal. 3. Learned counsel for the appellant submits that the representation filed by the appellant was decided without affording an opportunity of hearing to the appellant, which is violative of principle of natural justice, therefore, the impugned order is not sustainable. 4. Learned counsel for the respondent although admits the fact that no opportunity of hearing was afforded to the appellant, yet he supports the impugned notification. 5. Arguments heard. Record perused. 6. From the perusal of the record as well as admission made by the learned counsel for the respondent it is manifest that no opportunity of hearing was afforded to the appellant prior to dismissal of her representation. 7. The golden principle of audi alteram partem contemplates that no person will be condemned unheard. This principle has also been reiterated in Article 10-A of the Constitution of the Islamic Republic of Pakistan which envisages that every person should be given a right of fair trial and due process. If an employee, who has put forth his/her grievance before the competent authority is not given an opportunity of hearing for explaining his/her position, the same negates the afore-noted principle and the rights guaranteed by the Constitution. 8. There is no cavil with the proposition that the latest pronouncement by the Honourable Supreme Court of Pakistan would suggest that in every case an opportunity of hearing is not a sine qua non. In these pronouncements, the Honourable Apex Court has laid down parameters for the application of principle of audi alteram partem. In case titled Justice Khurshid Anwar Bhinder v. Federation of Pakistan and another (PLD 2010 SC 483) while interpreting the above rule the Honourable Court has identified the circumstances where opportunity of hearing is not required, which are reproduced below: "(i) When an authority is vested with wide discretion ----- (ii) When the maxim 'expressio unius est exclusio alterius' is involved ------ (iii) Where absence of expectation of hearing exists----- (iv) When compulsive necessity so demands ----- (v) When nothing unfair can be inferred ----- (vi) When advantage by protracting a proceeding is tried to be reaped ----- (vii) When an order does not deprive a person of his right or liberty ----- (viii) In case of arrest, search and seizure in criminal case ----- (ix) In case of maintaining academic discipline ----- (x) In case of provisional selection to an academic course ------ (xi) In case of enormous malpractices in selection process -----" 9. This view has been reinforced and followed in judgments reported as Warid Telecom (Pvt.) Limited and 4 others v. Pakistan Telecommunication Authority through Chairman (2015 SCMR 338) and Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another [PLD 2014 SC 585]. 10. In the present case, the above principle enunciated by the Honourable Apex Court is not attracted, as the case of the appellant does not fall within the exceptions enumerated supra. Since a direction was given by this Tribunal that the representation filed by the appellant qua grant of back benefits will be decided in accordance with law, therefore, deciding the same without affording an opportunity of hearing to her would militate the principle of natural justice, fair trial and due process. 11. For what has been discussed above, we find that the impugned notification is not in accordance with law, therefore, the same is set aside. As a sequel to the above, departmental representation filed by the appellant shall be deemed to be pending before the competent authority who shall re-decide the same strictly in accordance with law after affording an opportunity of hearing to the appellant and all other concerned parties. 12. In the above terms, this appeal is accepted. ZC/9/PST Appeal allowed.