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Petitioner: QURBAN ALI ABBASI VS Respondent: PROVINCE OF SINDH through Chief Secretary and 3
Court Name: Sindh High Court Judge(s): Anwar Zaheer Jamali, Muhammad Karim Khan Agha Title:QURBAN ALI ABBASI vs PROVINCE OF SINDH through Chief Secretary and 3
JUDGMENT
Reported As: PLD 2009 Karachi 327 Result: Order accordingly Judgment JUDGMENT ' MUHAMMAD KARIM KHAN AGHA, J.---The petitioner, elected Taluka Nazim of Taluka Municipal Administration, Larkana, (hereinafter referred to as Taluka Nazim) has preferred this Constitutional Petition to call into question the Notification No,S0- 1V/LG/1-187/2008. Dated 25th November, 2008 (the Impugned Notification) issued by the Local Government, Government of Sindh, which reads as under:-- "Government of Sindh Local Government Department Karachi, dated the 25th November, 2008. NOTIFICATION No,SO-IV/LG/1-187/2008.---On the recommendation of Provincial Local Government Commission and with the approval of Competent Authority i,e, Chief Minister Sindh, Mr. Qurban Ali Abbasi, Taluka Nazim, Taluka Municipal Administration, Larkana, District Larkana, is hereby removed from the office of Taluka Nazim, Taluka Municipal Administration, Larkana, District Larkana, with immediate effect. Ghulam Ali Shah Pasha Additional Chief Secretary (LG)" 2. The case of the petitioner is that since taking over his office as Taluka Nazim of Taluka Municipal Administration Larkana, he has been effectively and very sincerely performing his functions and exercising his powers under the Sindh Local Government Ordinance, 2001 (hereinafter referred to as the "Ordinance"). According to the petitioner in his capacity as Taluka Nazim, he had always stood
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for the cause of rights of the people of the locality and protected their rights and interests. That he has not committed any illegality during his tenure as Nazim. 3. The petitioner contends that after the formation of the present Government by the ruling party in the Province of Sindh, it has started a campaign to destabilize the local administration/government headed by those who belong to the rival political party/group (including the petitioner) by levelling false, frivolous and unfounded allegations with the sole intent to sideline/oust the said elected representatives and to induct their own favourites to the said posts for mala fide reasons and ulterior motives. 4. The petitioner alleges that he has been subjected to political victimization by his rivals because he refused to accept the illegal orders and directions gived to him from time to time by the high- up's in the current Government. 5. Initially the petitioner was suspended under section 132(3) 'of the Ordinance for 90 days vide order, dated 27-8-2008. The said suspension order was challenged by him through C.P. No,D- 88/2008, before the Larkana Bench of this Hon'ble Court, which was subsequently transferred to the principal seat at Karachi for hearing. 6. The case was fully argued by both the parties and was reserved for judgment but unfortunately, the judgment could not be announced as one of the Additional Judges who had heard his case ceased to be a Judge of this Hon'ble Court after completing his tenure. The said petition, as such, was ordered to be heard afresh. 7. The petitioner contends that the mala fide on the part of the respondents is apparent from the fact that just before his 90 days suspension from office expired, a Summary, dated 22-11-2008, from the. Local Government Department Government of Sindh was forwarded to the Chief Minister Sindh, (hereinafter referred to as the "Summary"), containing absolutely false, frivolous and baseless allegations against the petitioner seeking his approval for the removal of the Taluka Nazim under section 132(4) of the Ordinance.Thereafter, without any delay the impugned Notification removing the Taluka Nazim from office was issued on 25-11-2008. 8. The petitioner contends that the Summary which gave rise to the issuance of the Impugned Notification contains absolutely false ,and fabricated allegations, which are based on mala fide and ulterior motives and therefore, the Impugned Notification is not sustainable in law. Furthermore, the petitioner contends that he was not associated with the inquiry mentioned in the Summary upon which the Impugned Notification was based and as such it cannot be relied upon for use against him especially as he was denied the right to be heard. 9. The petitioner further contends that there has been an infringement of various provisions of the Ordinance and in particular that the Provincial Local Government Commission (hereinafter referred to as the "Commission") (Respondent No,2) has not been constituted in accordance with the provisions of section 131 of the Ordinance. 10. The petitioner has sought the following reliefs:--- (a) Declare the Impugned Notification, dated 25-11-2008 as arbitrary, ex facie illegal and without jurisdiction having been issued/passed by the concerned respondents with the motive other than in accordance with law and thus liable to be quashed/set aside. (b) Declare that the Impugned Notification having been issued/ passed by the concerned respondents without observing/ fulfillment of the requirement/formalities as envisaged under the Local Government Ordinance, 2001, is without lawful authority and therefore of no legal effect. (c) Declare that the constitution of Sindh Local Government Commission, respondent No,2, is without lawful authority and, therefore, of no legal effect. (d) Direct the respondents to produce the record and Proceedings of the inquiry conducted by the respondents in this particular case for the perusal by this Honourable Court.
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(e) Suspend the operation of the impugned Notification, dated 25-11-2008, allowing the petitioner to continue to his position and hold and act as Taluka Nazim, Taluka Municipal Administration, Larkana. (f) Any other relief(s) as this Honourable Court may deem fit and proper under the circumstances of the case may also be awarded. 11. During his arguments learned counsel for the petitioner raised and particularized the following additional grounds. Firstly, he contended that section 131(7) of the Ordinance had not been complied with, secondly, that under section 164 the impugned Notification ought to have been issued by the Chief Election Commissioner and published in the official Gazette, which had not been done and thirdly, that the inquiry had not been carried out by the Commission which was a requirement under section 132(1)(b) of the Ordinance. Learned counsel for the petitioner placed reliance on the following authorities in support of his various contentions:-- (i) Bombay Dyeing and MFG. Co. Ltd., v. Bombay Environmental Action Group (AIR 2006 SC 1489). (ii) Yusuf Haji Ismail v. Hussain Mumtaz (PLD 1989 Karachi. 299). (iii) Ghulam Muhammad Lali v. Imtiaz Ahmed Lali (PLD 2006 Lahore 661). (iv) Abdul Karim v. Karim Nabi (PLD 1979 SC (AJK) 74). (v) Nasimul Hague Malik v. Chief Secretary to Government of Sindh (1996 SCMR 1264). (vi) Ghazi Khan v. State (1985 SCMR 1856). (vii) Atlas Autos Limited v. National Industrial Relations Commission (PLC 1990 SC-369). (viii) Qasu v. State (PLD 1969 Lahore 48). (ix) Ghulam Mustafa Khar v. Pakistan (PLD 1988 Lahore 49). (x) Tata Iron and Steel Co. Ltd. v. State of Jharkhand (AIR 2005 SC 2871). (xi) Kotumal v. The State (PLD 1960 (W.P.) Karachi 15). (xii) Rangal Shah v. Mula Jadal (PLD 1960 (W.P.) Karachi 512). (xiii) Shahid Mehmood v. Nasreen Masood (PLD 2007 Karachi 178). 12. Respondent No,3 in his counter-affidavit contends that the petitioner has filed this petition with ulterior motives and all the adverse allegations in it. Regarding mala fide etc. Are denied. He further contends that the Commission was legally constituted and has been notified in accordance with the Ordinance. That the Commission fully provided the petitioner with an opportunity to be heard during the course of the inquiry and that the petitioner was served with a notice to attend the hearing but failed to do so. At a minimum the petitioner had knowledge of the inquiry proceedings and deliberately failed to associate himself with the same. That after finding that the allegations against the petitioner had been proved during the inquiry, the Commission had quite properly in accordance with the law recommended the removal of the Taluka Nazim. Accordingly the Taluka Nazim was removed in full compliance with the procedures laid down in the Ordinance. In support of his contentions, the learned Advocate General referred to numerous documents placed on file along with the counter-affidavit of respondent No,3. 13. During arguments, the learned Advocate-General in order to justify that there had been no breaches of the procedure laid down in the Ordinance, which warranted interference by this Hon'ble Court, relied almost exclusively on a judgment of a Division Bench of this Hon'ble Court, dated 21-2-2009 in C.F. No D-2406/2008 (hereinafter referred to as the "Judgment"). In the judgment the petitioner was the Taluka Nazim of Dadu and the respondents were the same as in the present case. The learned Advocate-General submitted that the case as contained in the judgment was identical to the current case and that it had found against the petitioner in all of the matters, which had been raised by the petitioner during the current petition. As such this case stood on an equal footing and was liable to be dismissed based on the findings in the judgment. 14. With regard to the constitution of the Commission, the learned Advocate General submitted that the Commission had been properly constituted in accordance with section 131 of the Ordinance
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and even if there was a vacancy in or a defect in the constitution of the Commission no act or proceedings of the Commission could be held to be invalid on this account pursuant to section 131(5) of the Ordinance. 15. He rejected the petitioner's contention that the impugned Notification needed to be issued by the Chief Election Commissioner and published in the official Gazette under section 164 and that in the instant case of removal under section 132(4) of the Ordinance only a simple notification was required. 16. Since the learned Advocate-General has pinned virtually his entire case on the aforesaid judgment of the Sindh High Court, the most pertinent part of the findings in the judgment as they relate to the petitioner's contentions are reproduced below as under:-- "(12) Be that as it may, when the applicability of section 132(3) is seen in the facts and circumstances of the present case, indeed in the Impugned Notification few things i,e, reference of opinion and recommendation from the PLGC; relevant provision of the Ordinance and; reason for such action and time frame are lacking. In this context, the moot point for consideration is that whether such procedural defects in the impugned Notification have caused any prejudice to the petitioner or have vitiated the very legality of the impugned Notification. Leaving apart the explanations offered in this regard by the respondents which are not altogether devoid of force, learned counsel for the petitioner has failed to show us that what prejudice has been caused to the petitioner due to lack of such shortcomings in the impugned ' Notification which can be easily termed as badly drafted one. Besides a comparative reading of the two provisions of Ordinance, 2001 i,e, empowering the Chief Executive to suspend the Nazim for a period not exceeding ninety days i,e, sections 129(1) and 132(3), show that in case of exercise of powers under section 129(1) of the Ordinance, 2001, the Chief Executive while suspending the Nazim has to record reasons for this purpose, which are to be conveyed to the Nazim, but under section 132(3) such requirement has, been done away, and substituted by the recommendations of PLGC, when the Chief Executive is exercising his authority for suspension of Nazim for a maximum period of ninety days, as in the instant, case. This petition further weakens the submissions of Mr. Pirzada as regards the impugned Notification, as the requirement of opinion and recommendation by the PLGC seems to have been fully met from the contents of the Minutes of Item No,3 of the Second Extraordinary Meeting of PLG, dated 30-8-2008. (13) Mere fact that no reference of such recommendation is available in the impugned Notification will not vitiate its validity. This view also finds support from the judgment of the apex Court in the case of Saghir Ahmed through Legal Heirs v. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others (PLD 2004 SC 261), wherein taking into account number of judgments. Of the superior Courts about the validity of Notification not published in the official Gazette or otherwise, it was held that no hard and fast rule of universal application can be laid down on the legal effect of non-publication of a Notification in the official Gazette, which may be in some cases mandatory in nature and not in the other case. Based on such observations, the impugned Notification was held to be valid despite non-publication in the official Gazette. (14) The submission of Mr. Abdul Mujeeb Pirzada, referring to section 164 of the Ordinance, 2001, seems to be entirely misdirected as this provision of law relating to the issuance of Notification by the Chief Election Commissioner finds place under Chapter XVII of the Ordinance, which deals with the Local Government Elections. Even from the plain reading of this section one can see that - issuance of Notification by the Chief Election Commissioner is only for the purpose of notifying every election, by-election and result of such election and resignation, removal or re-call of a member, Nazim or Naib Nazim and therefore, it has nothing to do with the Notification issued in terms of section 132(3) of the Ordinance, 2001.
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(15) The grievance of the petitioner as regards violation of principles of natural justice or violation of section 24-A of the General Clauses Act, have also no force as from the side of respondents sufficient material has been placed on record to show that there were number of complaints of malpractice and corruption against the petitioner; holding of inquiry in consequence thereof; non- cooperation of the petitioner in connection with such inquiry proceedings and ultimate decision of the PLGC in its Second Extraordinary Meeting, dated 20th August, 2008. As a matter of fact the decision on Item No,3 of this meeting relating to the case of the petitioner speaks about the fairness of proceedings conducted by the PLGC that instead of relying upon the complaints and the inquiry report available before it, they had decided to afford an opportunity of hearing to the petitioner and even for this purpose before unanimously recommending action of his suspension under section 132(3) of Ordinance, 2001, they had written letters and reminders to the petitioner, but he did not respond. (16) We are in full agreement with the submission of Mr. Fateh Malik that this Court in exercise of its jurisdiction under Article 199 of the constitution, is not expected to enforce observance of the technicalities of procedural laws, particularly in a situation when no prejudice seems to have been caused to the party and the purported action is otherwise in accordance with law, as in the instant case." 17. Apart from the authorities mentioned in the judgment the learned Advocate-General also placed -reliance on the case of Ghulam Sarwar v. Additional District Judge Daska District Sialkot. (YLR 2005 (Lahore) page 257). 18. We have considered, in detail, the documents filed on record and the submissions made by the learned counsel. 19. In our view the question of the impugned Notification cannot be viewed in isolation but must be seen in the context of the total circumstances leading up to the suspension and then later removal of the Taluka Nazim. As the Taluka Nazim had already challenged his suspension under the Ordinance before this Court, which regrettably could not be ruled upon and now in the present situation appears to be infructuous, this case can be seen as dealing with the second part of the process under the Ordinance which after suspension may lead to either the lifting of the suspension or the removal of the Taluka Nazim. 20. In essence the case revolves around the interpretation of various sections of the Ordinance and whether these sections have been properly complied with taking into account the particular facts and circumstances of the present case and the opportunity of the petitioner to be heard in person by the Commission/Inquiry Team. 21. The petitioner was initially suspended under section 132(3) of the Ordinance. It is instructive, therefore, to set out the relevant parts of the sections in the Ordinance dealing with the suspension of the Nazim under section 129, together with section 131 dealing with the establishment of the Commission and section 132 dealing with the functions of the Commission. In the present case the interpretation and interplay of these three sections will be of great assistance in resolving the issues arising out of the petition. Such relevant parts of these sections are set out as under:-- "(129). Suspension of a Nazim, etc.---(1) Where, in the opinion of the Chief Executive of the Province, a Nazim is deliberately avoiding or abstaining wilfully or failing to comply with the directions given by the Chief Executive under section 128, he may suspend the Nazim for a period not exceeding ninety days for the reasons to be recorded and conveyed to the Nazim. (2) During the period of suspension, the Government shall cause to. Be conducted an inquiry by the Provincial Local Government Commission which shall provide an opportunity of personal hearing to the suspended Nazim. (3) The Provincial Local Government Commission shall submit its report of the inquiry along with its recommendations, which may include removal of the Nazim to the Chief Executive of the Province
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for appropriate action in the light of such recommendations, as he may deem appropriate. (4) In case no decision is taken within ninety days from the date of suspension of the Nazim, he shall stand reinstated to his office. (5) During the period of suspension of the Nazim, the Naib Nazim shall act as Nazim." "(131). Provincial Local Government Commission.---(1) The Government shall appoint a Provincial Local Government Commission, which shall consist of persons of integrity and good track record of public service-- (a) the Minister for Local Government who shall be the Chairman; (b)two members from the civil society, one each nominated by the leader of the House and leader of the Opposition of the Provincial Assembly; (c) two eminently qualified and experienced technocrat members selected by the Government; and (d) Secretary, Local Government and Rural Development Department, shall be ex-officio member and Secretary of the Commission. ' Provided that in case of equality of vote, the Chairman shall have a casting vote. (2) The Provincial Local Government Commission may, for the performance of its functions, co-opt any official of the Government for any specific assignment. (3) (4) (5) No act or proceedings of the Provincial Local Government Commission shall be invalid by reason or existence of any vacancy in, or defect in, in the constitution of the Commission. (6) (7) The Government shall notify the organogram and schedule of establishment of the Provincial Local Government Commission. (8) The Secretary of the Provincial Local Government Commission shall be Principal Accounting Officer and the Commission shall have its own Drawing and Disbursing Officer. (9) "132. Functions of the Provincial Local Government Commission.-(1) The functions of the Provincial Local Government Commission shall be as, otherwise, provided in this Ordinance and, in particular, it shall--- (a) (b) Conduct, on its own initiative or, whenever, so directed by the Chief Executive of the Province, an inquiry by itself or through ' District Government into any matter concerning a Local Government. (c) (e) .................................. (f) ................................. (g) ........................................ (h) ........................................ (ii) (iii) ....................................... (iv) ........................................ (2) ........................................ (3) Where the Provincial Local Government Commission is of opinion that suspension of a Nazim is necessary for the fair conduct of the inquiry under clause (b) of subsection (1) or preventing the Nazim from continuing with any unlawful activity during the pendency of inquiry, it may recommend to the Chief Executive of the Province for making appropriate order for suspension of such Nazim for a maximum period of ninety days.
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(4) Where, on an inquiry under clause (b) of subsection (1), a Nazim, Naib Nazim or a member of a Council is found guilty of misconduct by the Provincial Local Government Commission, it shall recommend appropriate action, including his removal, to the Chief Executive of the Province. (5) The Provincial Local Government Commission shall have the same powers as are vested in a civil' Court under the Code of Civil Procedure, 1908 (Act V of 1908), r respect of the following matters, namely:-- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents; (c) receiving evidence on affidavit; and (d) issuing Commission for the examination of witnesses. Suspension of the Taluka Nazim. 22. According to the petitioner the Taluka Nazim was suspended under section 132(3) of the Ordinance as it was deemed necessary for the fair conduct of the inquiry under clause (b) of subsection (1) of section 132 or preventing the Nazim from continuing with any unlawful activity during the pendency of inquiry. It will be seen that suspension of a Nazim is also dealt with under section 129 of the Ordinance. Section 129(1) however only provides for suspension in cases where a Nazim is deliberately avoiding or abstaining wilfully or failing to comply with the directions given by the Chief Executive under section 128. Since the Nazim in this case was accused of criminal misconduct as opposed to not complying with directions it was appropriate for the Commission to invoke section 132(3) for his suspension as opposed to section 129(1). 23. It is significant to note that although both section 129 and section 132(3) enable the suspension of a Nazim albeit on different grounds the procedure and consequences to be followed thereafter in both sections is quite similar. For instance, in both sections the maximum period of suspension is 90 days, in both sections an Inquiry is to be carried out by the Commission into the allegations, in both sections, the Commission can recommended the removal of a Nazim. 24. One of the main differences between the two sections is that section 129(2) specifically provides that during the period of suspension, the commission during the course of its inquiry shall provide an opportunity of personal hearing to the suspended Nazim. This is fully in line with the principles of natural justice and in the view of the Court would be equally applicable to inquiries on account of suspensions under section 132(3) especially if those inquiries involved criminal misconduct. 25. It is surprising that for a suspension under section 129(1) the Chief Executive of a Province on suspending a Nazim needs to record reasons for the suspension and convey them to the Nazim whilst suspension under section 132(3) is only based on the recommendation of the Commission with no reasons being given to the effected Nazim at the time of his suspension. There seems to be no obvious reason why this distinction has been made in the two sections and seems to put a Nazim at a disadvantage if he is suspended under section 132(3) as there is no requirement for the Nazim to be informed about the reasons for his suspension. It follows therefore that in cases where a Nazim has been suspended under section 132(3) (as in the instant case) that the procedural requirements following his suspension must be more meticulously complied with. 26. On a suspension under section 132(3) the inquiry referred to is under section 132(1)(b). In this case the Commission had decided to conduct the Inquiry by itself as it was entitled to do under the Ordinance. Constitution of the Commission 27. Before turning to the inquiry itself it is necessary to see whether the Commission was properly constituted under section 131. 28. Section 131 sets out in some detail the manner of appointment of those entitled to be appointed to the Commission and in some cases the qualifications, which such members should hold. By doing this the drafters of the Ordinance have attempted to ensure that the Commission consists,…
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