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Petitioner: MUHAMMAD TARIQ AMEEN and others VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and others
Court Name: High Court of Azad Jammu and Kashmir Judge(s):Ghulam Mustafa Mughal, Sardar Muhammad Nawaz Khan, Rafi Ullah
Sultani Title:MUHAMMAD TARIQ AMEEN and others vs AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and others Case No.:Writ Petitions Nos.385, 388, 395, 396, 412, 422 of 2003, 15, 42, 111, 531 of 2004, 4, 186, 217 and 391 of 2006 Date of Judgment:2007-11-08 Reported As: 2008 PLC (C.S.) 29 Result: Petitions disposed of Judgment ORDER ' SARDAR MUHAMMAD NAWAZ KHAN, C.J.--- The above captioned petitions, filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, raise identical questions of facts and law, hence, were heard together and decided as such. The facts of the cases are that petitioners in Petitions Nos.385 of 2003, 396 of 2003, 388 of 2003, 395 of 2003, 15 of 2004, 422 of 2004 and 412 of 2003, allegedly entered into plea-bargain with the Ehtesab Bureau, while their cases, with regard to corruption and corrupt practices, were being investigated. They, in view of proviso to section 16(1) of Azad Jammu and Kashmir Ehtesab Act, 2001 (hereinafter shall be referred to as Ehtesab Act, 2001), were deemed to be convicted. Their cases were referred to the Government/Authority, who has issued notices to them under the provisions of The Removal from Service (Special Powers) Act, 2001 (hereinafter shall be referred to as Special Powers Act, 2001), whereby they have been asked to show cause as to why they may not be dismissed from service under sections 3(2)(b) and 5(5) of Special Powers Act, 2001. They, feeling aggrieved by the show-cause notices, have brought these constitutional petitions, challenging the vires of Special Powers Act, 2001 and Ehtesab Act, 2001. ' The petitioners, in Petitions Nos.391 of 2006, 186 of 2006, 217 of 2006, 4 of 2006, 531 of 2004, 111 of 2004 and 42 of 2004, though not found to have been proceeded on the ground of plea bargain, have also challenged the vires of Special Powers Act, 2001. They are either in the service of AJ&K Government or AJK Council. All the petitioners have raised the following points:--
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(1) That the Special Powers Act, 2001 is void being inconsistent with fundamental rights guaranteed by the Azad Jammu and Kashmir Interim Constitution Act, 1974, especially fundamental right No,15 regarding equality of State Subjects. Exhaustive rules made under section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976 regulating the conduct and discipline of the civil servants known as Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 already hold the field. In presence of the said law, the legislation of Special Powers Act, 2001, on the same subject and that too without any justification and rationale, is against the spirit of the Constitution. (2) That the Special Powers Act, 2001 does not make any classification, whatsoever, not to speak of any reasonable classification. The law is purely discriminatory in nature, which gives unguided, arbitrary and unreasonable powers to the executive. (3) That the law offends the fundamental rights also for the reason that it is more harsh and cruel as compared to the Efficiency and Discipline Rules, 1977 framed under the Azad Jammu and Kashmir Civil Servants Act, 1976. The right of defence as contained in the aforesaid Efficiency and Discipline Rules stands curtailed/minimized and in some cases even extinguished under the Special Powers Act, 2001. The application of the law has been left at the unguided and uncontrolled discretion of the executive authorities thus depriving the persons proceeded against under the Special Powers Act, 2001 at the mercy of the executive. (4) That the right of appeal as guaranteed to all the civil servants under the Efficiency and Discipline Rules, read with the Service Tribunal Act, 1975, has also been subjected to unreasonable limitations and restrictions under the Special Powers Act which practically amount to total negation of the right of appeal. Again, this discrimination is without any reasonable cause and devoid of any reasonable classification. (5) That the show-cause notices are without jurisdiction and coram non judice for the reason that it declares the petitioners as a convict and disqualified to hold an office in the Government service on the basis of Section 16 of the Ehtesab Act, 2001. Such a declaration in advance without affording the petitioner an opportunity of hearing and showing cause is violative of the principles of natural justice. Further the aforesaid declaration is based on a total wrong assumption and interpretation of the legal provisions. Section 16 of the Ehtesab Act does not, in any way, declare the civil servants who have entered into a plea-bargain as convicts and the provisions of the said section apply only to the offices held in representative capacity. The show-cause notices issued on the basis of deeming or declaring the petitioners as convict under section 16 are without jurisdiction. (6) That the show-cause notices are without jurisdiction also for the reason that the provisions of section 28(3) of the Ehtesab Act which has an overriding effect as compared to section 16 of the said Act, do not declare the civil servants who have entered into a plea bargain as convicts. Section 28(3) declares such civil servants as "discharged" which term cannot be equated with conviction by any standard. The issuance of show-cause notices to the petitioners basing it on the provisions of section 16 of the Ehtesab Act while ignoring section 28(3) of the said Act are not only an illegal exercise of jurisdiction, but also without jurisdiction. ' In Writ Petitions Nos.395 of 2003 and 396 of 2003, constitution of the Ehtesab Bureau etc. Has been challenged in the following words:- (1) That the Ehtesab Act is violative of section 31(2)(a) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 because the Legislative Assembly of Azad Jammu and Kashmir har got no constitutional and legal powers to make any law in relation. To the functions and duties of the Chairman of the Azad Jammu and Kashmir Council, hence, sections 6 and 7 of the said Act are ultra vires to the Constitution and the appointment of the Chairman as well as Deputy Chairman Ehtesab Bureau are also unconstitutional. (2) That the allegation of plea bargaining factually is incorrect as the petitioners have never been associated with any inquiry and neither they made any application for plea-bargaining nor had
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deposited any amount, therefore, the whole proceedings regarding the alleged plea of bargaining on behalf of the petitioners and conviction in furtherance of notices issued to them on the basis of so-called conviction, are without lawful authority. ' The defence of the respondents is common in all the petitions, therefore, for the sake of brevity need not to be mentioned separately, however, the common grounds .Of defence in all the petitions are as under:-- (1) That the petitions have been filed against show-cause notice which are not maintainable because no final order has been passed against the petitioners. (2) That after passing of final order, the petitioners have an alternate and efficacious remedy before the Azad Jammu and Kashmir Service Tribunal, therefore, jurisdiction of this Court stands ousted in view of bar contained in Section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. (3) That the High Court has no jurisdiction to transfer the proceedings pending before an executive or judicial authority to itself for decision nor the opinion of an administrative officer could be substituted in exercise of writ jurisdiction. (4) That even the law known as Azad Jammu and Kashmir Removal From Service (Special Powers) Act, 2001 is a law relating to the disciplinary proceedings against the civil servants which falls within the definition of terms and conditions of service, hence, is not challengeable before this Court. (5) That the said law has competently been promulgated by the legislature and its preamble expressly contends the wisdom and purpose of its legislation. Mere presence of the earlier law on the subject does not make this piece of legislation invalid. (6) That the petitioners have duly participated in the proceedings and their offer has been accepted by the Ehtesab Authorities. They deposited the calculated amount; therefore, stand convicted under proviso to section 16(1) of the Ehtesab Act, 2001. Now they cannot challenge the provisions of the Ehtesab Act nor the request of plea-bargaining. - (7) That they have not approached the Court with clean hands and the petitions badly suffer from laches. (8) That the provisions of the Ehtesab Act, 2001 are not against the fundamental rights enumerated in Section 4 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and the Legislative Assembly of the Azad Jammu and Kashmir has competently enacted the same. The petitioners have no locus standi to challenge this piece of legislation. ' The learned counsel for the petitioners argued that respondents misstated and twisted the facts while submitting their written statements and during the course of arguments, especially with regard to Writ Petitions Nos.395, 396 and 111. The petitioners in the said writ petitions were on Ex- Pakistan leave, after obtaining permission and necessary N.O.Cs. From the appointing authority. Their stand is that they did not return to Azad Kashmir neither they were informed regarding any inquiry or investigation undertaken by the Ehtesab Bureau/investigating agency, nor they ever associated in any such inquiry. It was further submitted by the learned counsel that none of them submitted any application for entering into plea of bargain according to section 28 of the Ehtesab Act, 2001. Therefore, per arguments of the learned counsel, plea of bargain, alleged by the respondents, was factually incorrect and being so was not sustainable. Their further claim is that the respondents failed to submit before the Court any documentary proof of plea of bargain, according to the spirit of law. Plea of bargain is not mere factor of investigation; but it is an agreement/contract between the parties in accordance with legal requirement of free will, offer and acceptance, the learned counsel maintained. The learned counsel, during their arguments, relied upon case law like PLD 2003 SC 837 and PLD 2002 Lah. 607.
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' According to the learned counsel, all the writ petitions raise identical question of law especially the vires of the Acts passed by the Legislature, and known as Special Powers Act, 2001 and Ehtesab Act, 2001. The respondents raised objection of acquiescence and estoppel against the petitioners which is meritless because it is now universally accepted principle of law that there is no acquiescence or estoppel against law/statute, the learned counsel argued. On this point, the learned counsel cited Tehreek-e-Amal's case reported as PLD 1985 (AJK) 85. ' While dealing with the objection regarding jurisdiction of this Court, the learned counsel submitted that it was baseless and misconceived. The respondents have mainly based their arguments on the ground that the matter relates to the terms and conditions of service, regarding which the exclusive jurisdictions vests in the Service Tribunal. This objection is legally and factually incorrect because here in these writ petitions, the vires of the Acts, passed by the AJ&K Legislative Assembly and the Azad Jammu and Kashmir Council, have been challenged. The AJ&K Legislative Assembly and AJK Council do not fall within the definition of competent departmental authority, the learned counsel contended. It was further argued that the Acts, passed by the Legislature, were not orders passed by the departmental authority. Service Tribunal, according to the learned counsel, has got exclusive jurisdiction only against the final order passed by the departmental authority and has got on jurisdiction to look into the vires of a piece of legislation passed by the legislature. On this point, section 4 of Service Tribunal Act is very much clear which speaks that "any civil servant aggrieved by any final order, whether original or appellate, passed by departmental authority, may appeal to Service Tribunal". These clear words used by the Legislature indicate its intention that before Service Tribunal, an appeal can be filed only when an order is passed by the departmental authority which causes grievance relating to the terms and conditions of service of civil servants. The law passed by the AJ&K Legislative Assembly or AJK Council are not orders passed by the Departmental Authority, therefore, per contention of the learned counsel, Service Tribunal has got no jurisdiction to look into the vires of law/Acts passed by the Legislature. They further submitted that the rules, including Efficiency and Discipline Rules, are ordinarily made by the Government which is also a departmental authority, hence such Service Rules may fall into the definition of an order passed by the Departmental Authority; but the Act passed by the Azad Jammu & Kashmir legislative Assembly or AJK Council cannot be brought into the definition of an order passed by the Departmental Authority, by any stretch of imagination. The learned counsel went on to submit that the writ jurisdiction of the High court was not excluded in all cases relating to the terms and conditions of service. According to them, the High Court is the only forum to issue direction for implementation of service laws, rules and orders. To strengthen and elaborate their point of view, they relied upon latest case law reported as 2007 SCR 62 and 2002 PLC (C.S.) 821. ' The learned counsel for the petitioners during their arguments controverted the contention of the respondents, raised in the written statements, about the terms and conditions of service. They submitted that this objection was misconceived. According to them, the terms and conditions and law relating to the terms and conditions of service have specifically and categorically been identified in laws made according to the spirit of section 49 of the Interim Constitution Act, 1974, except those specific laws not made according to the spirit of section 49 of The Interim Constitution Act, 1974, nor in accordance with the spirit of civil Servants Act, 1976, therefore, cannot be treated as laws relating to the terms and conditions of Civil Servants. To their estimation, the Legislature has passed an Act to regulate appointments and terms and conditions of Civil Servants in respect of persons in the service of AJ&K or employees appointed with the affairs of the Government or the matters connected therewith and this law is known as AJ&K Civil Servants Act, 1976. The aforesaid Act clearly demarcates and identifies the terms and conditions of service of Civil Servants, without leaving any ambiguity or providing any room for inclusion of any other law in relation to the terms and conditions of service. It was further argued that the rules have been
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framed under Civil Servants Act, 1976, dealing with Efficiency and Discipline of the Civil Servants. These Rules still hold the field. When a departmental authority interprets such Rules in disadvantage of civil servants, the order of authority can be challenged before the Service Tribunal along with the vires of Rules; but not the Act passed by the Legislature, the learned Advocates submitted. The laws known as Special Powers Act, 2001 and Ehtesab Act, 2001, passed by the Legislature do not fall into the category of laws/rules dealing with the terms and conditions of Civil Servants. They placed reliance upon a case-law of Apex Court of the State reported as. 1995 PLC (C.S.) 46. ' The learned counsel further contended that the laws like Special. Powers Act, 2001 and Ehtesab Act, 2001 have been legislated in contravention of section 49 of the Interim Constitution Act, 1974. The aforesaid provision of the Constitution, according to the learned counsel, is evident of the fact that the laws should be subject to Interim Constitution Act, especially Fundamental Right No,4(15) enshrined under the Constitution. According to the learned counsel, both the Acts i,e, Special Powers Act, 2001 and the Ehtesab Act, 2001, do not deal with the terms and conditions of service, neither they regulate the matters of appointment and service, therefore, they do not relate to the matters of terms and conditions of Civil Servants nor they are made according to the spirit of section 49 of Interim Constitution Act, 1974. They further submitted that the legal position in view of section 49 of the Interim Constitution Act was that the impugned Legislation runs counter and parallel to the already enforced service laws and this Act of Legislation, being against the spirit of Constitution, was beyond their competence, therefore, on this score is liable to be struck down. It was also the argument of the learned counsel that the impugned legislation was harsh as compared to Efficiency and Discipline Rules; thus creating an anomaly with regard to service matters. This anomalous position allows the departmental authority an unguided, arbitrary and discriminatory powers to misuse the provision of law for its personal likings and dislikings, the learned counsel submitted. No reasonable, valid, justifiable, rational and comprehensive classification has been provided under Special Powers Act, 2001, the learned counsel submitted. Sub-legislation, according to the learned counsel, can easily be misused by the concerned authorities in an arbitrary and discriminatory manner.It is left to the sweet will of the authority to proceed against one Civil Servant under the provisions of Efficiency. And Discipline Rules and to proceed the other one under the provisions of Special Powers Act, 2001, hence this is a clear violation of equality clause provided in the Constitution. The Act known as Special Powers Act, 2001, therefore, being ultra vires to the Constitution, is liable to be struck down by this Court. On this point, the learned counsel placed reliance on the following case law:-- (1) 1994 CLC 2339, (2) PLD 1957 SC (Pak.) 157, (3) PLD 1983 SC (AJK) 95, (4) PLD 1979 SC (AJK) 139, (5) PLD 1988 SC 416 and 465, (6) PLJ 1998 SC (AJK) 1991 (sic), (7) PLD 1997 SC 473, (8) PLD 1992 SC 295, (9) PLD 1992 FSC 412 and (10). PLD 1983 SC (AJK) 95. ' Another objection with regard to curtailment of right of appeal has been raised by the learned counsel for the petitioners. According to them, no Civil Servant, under Special Powers Act, 2001, is allowed to file direct appeal before the Service Tribunal. The right of appeal is available to a Civil Servant only against a final order passed under section 9 of the said Act. Section 10 of the said Act provides the right of appeal which, according to the learned counsel, is curtailment of right of appeal. Similarly the employees of the Courts or Tribunals, according to the learned counsel, have not been provided right of appeal because they have got no right of representation according to the provisions of section 9 of the said Act and an appeal can only be filed against a final order passed under section 9 of the said Act. Thus, the employees of the Courts or Tribunals have been deprived of right of appeal through the Act impugned before this Court and being so, such law cannot be allowed to sustain. The learned counsel, on this point, referred a legal report of the Apex Court of the State 2003 PLC (C.S.) 664.
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' The learned counsel also challenged the contention of the respondents with regard to section 11 of Special Powers Act, 2001, raised in the written statement and contended that this provision of law has impliedly made the Constitutionally valid Service Laws redundant. According to them, the said provision of law has been given preference over all other service laws which is violation of Section 49 of the Interim Constitution Act, 1974. The Acts ,impugned before this Court, according to the learned counsel, are violative of fundamental rights and such laws cannot be given preference over the Constitutionally valid laws. These impugned Acts, being in-conflict with the Civil Servants Act, cannot be allowed to exist. They further contended that the argument by the learned counsel for the respondents, about overriding effect of section 11 of Special Powers Act, 2001, is also misconceived. According to them, co-existence of Efficiency and Discipline Rules and Special Powers Act, 2001 provide a parallel legislation and to avoid this anomaly in service matters, the impugned Act (Special Powers Act, 2001), cannot be allowed to hold the field in view of previous service laws holding the field at the moment. ' The petitioners, according to their counsel, have also challenged the validity of sections 6 and 7 of Ehtesab Act, 2001, for being beyond the legislative competence of AJ&K Legislative Assembly, because through these provisions, the AJ&K Legislative Assembly, by legislation, has imposed duty of consultation upon the President of the State of Azad Jammu and Kashmir, while making appointment of Chairman and Deputy Chairman of Ehtesab Bureau. According to them, under section 31 of the Interim Constitution Act, 1974, the AJ&K Assembly has got no powers to legislate in relation to council, its Chairman or officers; thus appointment .Of Chairman and Deputy Chairman of Ehtesab Bureau are unconstitutional in view of section 19 of the Constitution. ' Conversely the learned counsel for the respondents, while controverting the arguments addressed on behalf of the petitioners, submitted that Special Powers Act, 2001, being a law relating to the terms and conditions of service including disciplinary matters with respect to a civil servant, cannot be challenged before the High Court, in view of bar contained in section 47(2) of the Interim Constitution Act, 1974; thus jurisdiction of the High Court stands ousted. It was further submitted by them that all the petitioners before the Court, being Civil Servants could not challenge the vires of sections 16 and 28 of Ehtesab Act, 2001. According to the learned counsel, the provisions of Special Powers Act, 2001 and Ehtesab Act, 2001, impugned before this Court, could be challenged before the Service Tribunal, as is held in PLD 1980 SC (AJ&K) 5. The learned counsel, apart from the said legal report by the Apex Court of the State, relied upon the following case law while dealing with the question of jurisdiction of this Court:-- (1)1994 PLC (C.S.) 637, (2) 2001 PLC (C.S.) 781 and (3) 2002 PLC (C.S.) 442. ' The learned counsel while dealing with show-cause notices, issued to the petitioners herein, submitted that the same was a step towards passing of final order under Special Powers Act; 2001, therefore, writ petitions, challenging the validity of show-cause notices, are not maintainable particularly when final order under Special Powers Act, 2001 is yet to be passed. They could challenge the final order before the Service Tribunal under section 4 of Service Tribunal Act; thus High Court has no jurisdiction to substitute its own opinion for the opinion of executive and similarly has no jurisdiction to transfer the proceedings pending before an executive and decide itself. The learned counsel placed reliance on:-- (1) 2001 PLC (C.S.) 93, (2) 2001 PLC (C.S.) 781 and (3) 2000 PLC (CS) 762. ' It was further submitted that in case of Muhammad Ikram and others v AJK Council, the petitioners have submitted to the jurisdiction of AJK Council Removal From Service (Special Powers) Act, 2001; thus said petitioners (Muhammad Ikram etc.) cannot object to the jurisdiction of the functionaries under the AJ&K Council Removal From Service (Special Powers), Act, 2000, on the principle of acquiescence. To support this contention, the learned counsel relied upon:-- (1) 1983 CLC 1181, (2) 2002 SCR 97 (sic), (3) 2001 PLC (C.S.) 93, (4) 2001 PLC (C.S.) 1 and 2002 PLC 762.
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' The provisions of Special Powers Act, 2001, according to the learned counsel, have been enacted with a view to provide more effective relief to civil servants as compared to relief available to them under Efficiency and Discipline Rules. The learned counsel, by referring rules 8 and 9 of Efficiency and Discipline Rules, contended that the same are more harsh than the provisions available under Special Powers Act, 2001, dealing with removal of civil servants in case of conviction order. Thus, according to the learned counsel, Special Powers Act, 2001 is more beneficial for civil servants and this view has been upheld by the Superior Courts in Pakistan. They placed reliance on;-- (1) 2001 PLC (C.S.) 781 and (2) 2002 PLC (C.S.) 762. ' It was further argued that the existence of laws relating to Civil Servants, prior to enactment of Special Powers Act, 2001, did not…
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