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Petitioner: Asif Hussain VS Respondent: Election Commission of Pakistan etc
Court Name: Lahore High Court Judge(s): Shujaat Ali Khan Title: Asif Hussain vs Election Commission of Pakistan etc Case No.: W.P. No. 32915 of 2022 Date of Judgment:2022-12-21 Reported As: 2022 LHC 8269 Result: Petition accepted
JUDGMENT
JUDGMENT Shujaat Ali Khan, J. Through this single judgment, I intend to decide following writ petitions having commonality of law and facts inasmuch as in all these petitions the petitioners have put a challenge to jurisdiction of the Election Commission of Pakistan ("the Commission") to initiate disciplinary proceedings against them:- Sr.No.Writ Petition No. Title 1.32915/2022 (this petition)Asif Hussain v. Election Commission of Pakistan & others 2. 32918/2022 Zeeshan Javaid v. Election Commission of Pakistan & others 3. 33714/2022 Badar Munir & others v. Election Commission of Pakistan & others 4. 33841/2022Muhammad Iqbal Khan & another v. Election Commission of Pakistan & others 5. 33842/2022Muhammad Qamar-Uz-Zaman v. The Election Commission of Pakistan & others 6. 33844/2022 Hasan Asad Alvi v. Election Commission of Pakistan & others 7. 33846/2022Muhammad Iqbal Kaloya v. Chief Election Commission of Pakistan & others 8. 34109/2022 Zulfiqar Ali Virk v. Election Commission of Pakistan & others 9. 34110/2022 Muhammad Ali v. Election Commission of Pakistan & others 10.34114/2022 Asif Nadeem Gulzar v. Election Commission of Pakistan & others
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11. 34255/2022Farkhanda Yasmeen v. The Election Commission of Pakistan & others 12. 34452/2022 Muhammad Yousaf v. Election Commission of Pakistan & others 13. 35280/2022 Zareena Shahid v. Election Commission of Pakistan & others 14.42019/2022Ghulam Haider & others v. Election Commission of Pakistan & others 15.43054/2022 Zareena Shahid v. Election Commission of Pakistan & others 16.43421/2022Muhammad Yousaf & others v. Election Commission of Pakistan & others 17. 46358/2022 Shah Jehan v. Election Commission of Pakistan & others 18.46361/2022 Shahid Imran & others v. Election Commission of Pakistan & others 19.46485/2022Maqbool Ahmed Shakir v. The Election Commission of Pakistan & others 20.47305/2022Muhammad Ramzan Kamboh & others v. Election Commission of Pakistan & others 21. 47488/2022Maqsood Khan & others v. Election Commission of Pakistan & others 2. Briefly put, the facts, forming factual canvass of these petitions are that upon death of Syed Iftikhar-ul-Hassan Shah Member, National Assembly NA-75, Sialkot-IV (hereinafter to be referred as the Constituency), bye-elections for the Constituency were scheduled for 19.02.2021. Upon completion of the polling process, out of 360 polling stations, result of 340 polling stations was received on Form-45, at around 02:53 AM, on 20.02.2021 and that of remaining 20 polling stations was not received within the prescribed time. Ms. Syeda Nosheen Iftikhar, one of the contesting candidates in the Constituency, approached the Commission with the request to withhold the election result whereupon the Commission halted the announcement of election result. Finally, through order, dated 25.02.2021, the Commission scrapped the election in the Constituency while declaring it as null and void and ordered for fresh elections in the Constituency on 18.03.2021. Being aggrieved of order of the Commission annulment of the election in the Constituency, Mr. Ali Asjad Malhi, one of the contesting candidates in the Constituency, filed Civil Appeal No.166 of 2021 before the Hon'ble Supreme Court of Pakistan. On the other hand, the Commission vide Notification, dated 05.04.2021, ordered for Fact-Finding Inquiry by a committee, constituted under the convenorship of Mr. Saeed Gul, Joint Provincial Election Commissioner (Admn), Punjab, which gave its findings through Report, dated 29.09.2021. Pursuant to the report of the Fact Finding Inquiry Committee the Commission, on 14.02.2022, filed complaint, under sections 184, 186, 187 read with sections 188 & 190 of the Elections Act, 2017 (the Act, 2017) as well as under sections 365, 120-B, 171-F, 164, 386 & 368 of PPC, before the District & Session Judge, Sialkot, against certain persons, including some of the petitioners. The Hon'ble Supreme Court of Pakistan dismissed the appeal filed by Ali Asjad Malhi through short order, dated 02.04.2021, followed by detailed reasoning, issued in the month of August, 2022 inter-alia with a direction to the Commission to hold inquiry into the matter and unearth the means used by perpetrators for disappearance of 20 Presiding Officers on the day of bye-election. The Commission ordered for initiation of inquiry against the petitioners vide order, dated 05.01.2022 and issued Show Cause Notices to them with a direction to submit to their written defence/reply. Aggrieved by initiation of disciplinary proceedings against them by the Commission, the petitioners have filed these petitions. 3. Hafiz Tariq Nasim, Advocate, representing the petitioner in this petition, states that upon annulment of election in the Constituency by the Commission, his client being no more election
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official, as defined under section 2(xviii) of the Act, 2017, no proceedings could be conducted by the Commission against him; that though a Show Cause Notice cannot be challenged in writ petition but when the same is found patently illegal, jurisdiction of this Court is aptly attracted even to strike down a Show Cause Notice; that upon declaring the election in the Constituency as null and void, the Commission became functus officio, thus, it had no jurisdiction to initiate the impugned disciplinary proceedings against the petitioners, who are no more under its control; that according to section 55 of the Act, 2017, the Commission has jurisdiction to proceed against an election official only, thus, the impugned proceedings are coram-non-judice; that according to section 56 of the Act, 2017, before declaring a person as election official, it is prime duty of the Commission to administer oath and if a person is deployed for election duty without adhering to the said statutory provision, he does not fall within the definition of election official, thus, the Commission cannot take disciplinary action against such person while assuming jurisdiction under section 55 of the Act 2017; that as per section 15 of Punjab Employees Efficiency, Discipline and Accountability Act 2006 (hereinafter to be referred as PEEDA Act, 2006) if a borrowing department decides to initiate proceedings against a deputationist it is bound to solicit prior permission from his/her parent department but having not done so the proceedings initiated by the Commission against his client are ultra vires to the clear cut provisions of the PEEDA Act, 2006; that since no recommendations were given by the Fact Finding Inquiry Committee, the action against his client is not justified; that while filing complaint before the District & Sessions Judge, Sialkot, the Commission has declared the petitioner and other persons as guilty, thus, impartial inquiry is not expected at the hands of the Commission; that as the Commission is complainant against the petitioner and other officers/officials, it cannot be permitted to determine the fate of disciplinary proceedings initiated against his client; that though persons, hired by the Commission from the other departments, have been made to suffer by initiating multiple proceedings in the shape of departmental inquiry as well as complaint but the employees of the Commission, who, in fact, had the duty to ensure holding of fair elections, have been let unscathed; that mala-fide on the part of the Commission is evident from the fact that it disclosed its mind by ordering the Chief Secretary, Government of the Punjab, to suspend his client through order, dated 25.02.2021, in addition to depriving him of appointment for election duty in future, thus, it cannot be expected that the Commission shall hold fair and impartial inquiry; that according to section 55(4) of the Act, 2017 the Commission has to appoint one Authorized Officer to initiate and finalize departmental proceedings against an election official but nomination of panel of four members for inquiry against his client and others speaks volumes about the fact that while initiating the impugned disciplinary proceedings the provisions of the Act, 2017 have been violated; that if the Commission is allowed to continue with the impugned disciplinary proceedings, the petitioners would be deprived of their right of review/appeal in terms of section 16 of PEEDA Act, 2006 as well as that of revision as postulated under section 18 of PEEDA Act, 2006, hence, impugned proceedings cannot be allowed to remain intact; that if the impugned proceedings are allowed to be continued against the petitioner and others, there would be an anomaly in respect of filing appeal against any penultimate order to be passed by the Commission inasmuch as according to section 55(7) of the Act, 2017 an aggrieved person can file an appeal against any penal order of the Commission but according to PEEDA Act 2006 no appeal can be filed before the Service Tribunal until and unless departmental appeal has been filed by an aggrieved person and that since Fact Finding Inquiry has already been got conducted by the Commission it cannot be allowed to initiate the same afresh. Relies on PESCO, WAPDA House through Chief Executive v. Ishfaq Khan and others (2021 SCMR 637), Justice Muhammad Farrukh Irfan Khan, Judge, Lahore High Court, Lahore v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs Division Government of Pakistan, Islamabad and 4 others (PLD 2019 SC 509), Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.)
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Ltd. (2009 SCMR 1279), Azizullah Memon v. Province of Sindh and another (2007 SCMR 229), Al Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal (1993 SCMR 29), Chairman, Federal Land Commission v. Mst. Sanam Iqbal and others (PLD 2021 Lahore 42), Messrs Karachi Golf Club (Private) Limited through Manager Accounts and Finance and others v. Province of Sindh through Director Sindh Revenue Board and others (2021 PTD 558), Reliance Commodities (Private) Ltd. v. Federation of Pakistan and others (PLD 2020 Lahore 632), Muhammad Ashraf and another v. Additional Commissioner (Revenue), Rawalpindi Division and others (2019 YLR 2800), Haji Muhammad Arif Khattak and 2 others v. Chairman/Director General, National Accountability Bureau and another (PLD 2018 Peshawar 207), Shaikh Atif Zia v. Province of Sindh through Chief Secretary Government of Sindh and 3 others (2018 MLD 181) and Muhammad Ashraf v. Election Commission and others (2017 MLD 1209). 4. Barrister Haris Azmat, Advocate representing the petitioner in WP No.32918/2022, in addition to adopting the arguments advanced by Hafiz Tariq Nasim Advocate, states that since his client (Zeeshan Javaid) was not assigned any election duty, no proceedings could be conducted against him by the Commission; that disciplinary proceedings against his client are to be governed under Civil Servants (Efficiency & Discipline), Rules, 2020 according to which competent authority in respect of his client is the Prime Minister, thus, no proceedings could be initiated against his client without seeking permission of the competent authority and that even in the Fact Finding Inquiry, nothing adverse was proved against his client, so the impugned disciplinary proceedings against him are not tenable. 5. Mr. Mobeen ud Din Qazi, Advocate, representing the petitioner in WP No.34255/2022, while embracing the legal points agitated by Hafiz Tariq Nasim Advocate, states that since his client was never appointed as election official, he was not amenable to the jurisdiction of the Commission; that after 18th amendment in the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution) terms and conditions of service of employees of a province cannot be regulated by the Federal Government or any of its institution, thus, the proceedings initiated by the Commission, against his client, are coram-non-judice; that mala-fide conduct of the Commission is manifest from the fact that though his client repeatedly requested for provision of adversarial material, being used as edifice for disciplinary proceedings against him, but the same was not provided to him and that after holding of Fact Finding Inquiry, the Commission could not initiate impugned proceedings as the same amounts to double jeopardy which is prohibited under Article 13 of the Constitution. 6. Mr. Muhammad Iqbal Mohal, Advocate, representing the petitioners in WP Nos.43421/2022, 43054/2022 and 33846/2022, in addition to following the submissions made by Hafiz Tariq Nasim, Advocate states that since no duty was assigned to his clients, they were not amenable to disciplinary proceedings under section 55 of the Act, 2017. 7. Mr. Mohammed Ali Johri, Advocate, representing the petitioner in WP No.46485/2022, while adopting the arguments canvassed by Hafiz Tariq Nasim Advocate, submits that since no duty was assigned to his client, he could not be proceeded against by the Commission. Adds that since no oath, as mandated under section 56 of the Act, 2017, was administered to his client, he could not be considered as election official justifying the impugned disciplinary proceedings initiated by the Commission against them. Further adds that since no overt role was attributed to his client even in the Fact Finding Enquiry, the impugned disciplinary proceedings against him are baseless. Argues that since disciplinary proceedings were initiated against his client 15-days prior to his retirement, same stood abated on his retirement. 8. Mr. Ghulam Farid Sanotra, Advocate representing the petitioner in W.P.No.47305/2022, while adopting the arguments put forwarded by Hafiz Tariq Nasim Advocate, states that since his client has not been arrayed as accused in the complaint submitted by the Commission before the
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District & Sessions Judge, Sialkot, the disciplinary proceedings initiated against him are not maintainable; that since no independent charge has been framed against each accused officer/official (petitioners herein) without assigning their individual role, initiation of proceedings against them through omnibus order are not justifiable; that since no complaint from the area, wherein his client was posted for election duty, was received, his client cannot be made scapegoat for the misdeeds of the others and that when law requires a thing to be done in a particular way same cannot be allowed to be by-passed by any authority. 9. Mr. Muhammad Ahsan Bhoon, Advocate representing the petitioner in W.P No.33844/2022, in addition to espousing the legal prepositions formulated by M/s Hafiz Tariq Nasim and Barrister Haris Azmat, Advocates, submits that no objectionable material has been brought on record against his client during the proceedings conducted by the Fact Finding Inquiry Committee, hence, the impugned proceedings are not justified; that when a person does not fall within the definition of election official as to how the Commission can conduct disciplinary proceedings against him; that if any person, who was not assigned any election duty, was found involved in any omission or commission, the Commission can refer his case to the relevant quarter and that since the impugned proceedings are void ab-initio the constitutional jurisdiction of this Court to determine their validity is fully attracted. 10. Mr. Khanzada Mukarram Khan, Advocate appearing on behalf of the petitioner in W.P. No.33842/2022, while toeing the line of Hafiz Tariq Nasim, Advocate, submits that though his client retired from service, on 31.12.2021, but he has also been enrobed in the impugned disciplinary proceedings which speak volumes about mala-fide on the part of the Commission. 11. M/s Naveed Ahmad Khawaja, Abdul Rehman Bajwa, Ahmad Yar Khan, Shah Nawaz Khan Niazi and Rana Abdul Sattar, Advocates, have adopted the arguments put forwarded by Hafiz Tariq Nasim, Advocate. 12. Learned counsel appearing on behalf of the Commission, while opposing the submissions made by the learned counsel for the petitioners, submits that since these petitions have been filed against issuance of Show Cause Notices regarding initiation of disciplinary proceedings against the petitioners, the same are not maintainable; that the illegalities/irregularities, pointed out by the Hon'ble Supreme Court of Pakistan in its decision, containing detailed reasons, rendered in Civil Appeal No.166 of 2021, can only be probed into by the Commission through detailed inquiry, hence, no interference is called for in these petitions; that allegation of mala-fide against the Commission by the petitioners is not justified for the reason that bona-fide on the part of the Commission has already been endorsed by the Hon'ble Supreme Court of Pakistan while delivering detailed reasons of its short order, dated 02.04.2021; that in view of the fact that negligence on the part of the persons, who were deployed for election duty in the Bye-Election in the Constituency, was of grave nature, the Hon'ble Supreme Court of Pakistan directed the Commission to conduct inquiry to unearth the means used for the same and the persons involved therein, thus, no exception can be taken against the proceedings initiated by the Commission against the petitioners; that as the decision of the Commission for re-election in the entire Constituency has been appreciated by the Apex Court of the country, no ill-will or mala-fide can be attributed to it; that since the petitioners were deputed for election duty, they were at the strength of the Commission, thus, the proceedings against them can only be conducted by it and not by anybody else; that the Commission provides protection to the persons deployed for election duty against any kind of outer pressure or influence, thus, proceedings being conducted by the Commission cannot be thwarted at this stage; that according to Article 218 of the Constitution, it is duty of the Commission to hold fair elections and the provision of the Act, 2017, which otherwise offends against constitutional mandate, cannot be used to deprive the Commission of its role assigned under the Constitution; that as the Commission has been saddled with the responsibility to ensure holding of fair and
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transparent election, it cannot be nipped off its right to bring any delinquent to the book by initiating appropriate proceedings as envisaged under section 55 of the Act, 2017; that according to Article 219 of the Constitution, the Provincial and Federal governments are bound to assist the Commission to hold fair elections and if any of its employees are found involved in any dissident activities to sabotage the process of fair elections, the Commission can proceed against the delinquents without intervention of their parent departments as according to section 55 of the Act, 2017 the Commission has been declared as the competent authority in such matters; that as per Article 222 (d) of the Constitution it is the mandate of Election Commission to conduct elections and to deal with doubts and disputes arising in connection with elections thus it cannot be divested of its power to proceed against a deputationist; that even according to entry at Sr. No.41 of the Federal Legislative List (Fourth Schedule) appended with the Constitution it is the duty of the Election Commission to ensure holding of fair elections for the post of President, National Assembly, Senate and Provincial Assemblies and if the Commission is denuded of its power to proceed against any delinquent person, who was assigned election duty, then it would not be able to discharge its duties efficiently and that the Apex Court of the country in the case reported as Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681) has defined the pre and post election duties of the Commission and the assertion of the petitioners that after annulment of the subject election, they were not subject to jurisdiction of the Commission is ill-founded as every issue pertaining to conduct of particular election is to be adjudicated upon by the Commission; that the Commission has limited staff and for that reason it has to rely upon the staff hired from other departments for holding elections at different levels, thus, it can take action against the deputationists if they are found involved in subversive activities; that according to Section 55 of the Act, 2017, the Commission can initiate proceedings even against the person(s) who has/have not been formally appointed as election official, thus, plea of the petitioners that upon annulment of subject election they no more remained election officials and proceedings against them by the Commission are not sustainable, has no substance; that opening words of Section 2 of the Act, 2017 clarifies that the said provision, being conceptual in nature, cannot be given precedence over the constitutional mandate; that there is hell of difference between the appointment of person(s) for election duty or their deployment for the said purpose, hence, the persons, who were deputed by their respective departments, without intervention of the Commission, cannot be equated with those who were formally appointed by the Commission; that the persons, who otherwise are found involved in any dereliction, can be proceeded against by the Commission irrespective of the fact that they were formally appointed/deputed or not; that plea of the petitioners, that if proceedings are conducted by the Commission, they would be deprived off their right of appeal, is not entertainable for the reason that in the event of any penal action against them, the petitioners would be at liberty to challenge the penultimate order before the Service Tribunal concerned; that even otherwise, the remedy of departmental appeal being illusionary in nature cannot be used to hold the proceedings, being conducted by the Commission against the petitioners and others, untenable as the appellate authority can withhold the appeal and the aggrieved employee, upon expiry of requisite period, can approach the Service Tribunal concerned irrespective of the fact as to whether the appeal filed by him/her has been decided or not; that once a person is appointed as election official, he remains so forever and if any question relating to election arises, the Commission has the exclusive jurisdiction to proceed against such person without intervention of his parent department just to provide shield against any kind of outer pressure including by his parent department; that according to rule 49 of the Election Rules, 2017 an election official has to take oath upon his appointment in terms of section 56 of the Act, 2017 and the Provincial Election Commissioner has to administer oath to the District Returning Officers of the province whereas rest
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of the persons deployed for election duty are to take oath before the authorities mentioned under rule 49(2)(b) to (e) and if any person, other than the District Returning Officer, has not been administered oath, the fault does not lie with the Commission rather the authority concerned is answerable in that regard; that the documents relating to administration of oath to the District Returning Officers by the Provincial Election Commissioner have already been brought on record which stand proof of the fact that the Commission diligently discharged its duty assigned under section 56 of the Act 2017; that as the departmental proceedings have already been initiated against the employees of the Commission, who were found involved in negligence towards holding of fair elections in the Constituency, the point of discrimination, agitated by the petitioners, is of little importance; that criminal proceedings in the shape of complaint have only been filed against the persons on whose part criminal negligence was established during Fact Finding Inquiry and since no such negligence has been established against the employees of the Commission as they had been performing their supervisory duties while sitting at their respective places of posting, they could not be held responsible for any criminal act which otherwise took place in the field, hence, omission of their names in the complaint submitted by the Commission before the District & Sessions Judge, Sialkot, is duly justified; that the contention of the petitioners that the Commission cannot be judge of its own cause, is not sustainable for the reason that nowhere the Commission held them guilty of any omission or commission, proof whereof is that the Commission has filed complaint before the forum concerned to determine the guilt or otherwise of the persons, whose names have been mentioned in the said complaint as…
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