MUHAMMAD MUNEER AWAN Versus AZAD JAMMU AND KASHMIR GOVERNMENT
ORDER
1. 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.
2. 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.
3. 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:‑‑
4. 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.
5. 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.
6. 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).
7. 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)
8. 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:‑‑
9. "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."
10. 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:‑‑
11. "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."
12. 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:‑‑
13. "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:‑‑
14. Rule 3(a) reads as under:
15. "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) ??????? ??????????????????
16. ??????????? (b) ????????????????..
17. 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 "
18. 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:‑‑
19. ?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."
20. 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:‑‑ ??????????
21. "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."
22. 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:‑‑
23. 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:‑‑
24. Notification means:‑
25. "To bring before the public, as for sale or distribution; to print, or cause to be printed and to issue from the press, either for sale or general distribution, as .a book, newspaper, piece of music, engraving etc."
26. On going through the definition described above it has to be accepted that significance of word 'notification' is quite exhaustive. Its scope is wide enough as its emphasis is on bringing of a matter in the notice of public in the shape of its print, publication in the press, as a book, newspaper, piece of music and engraving etc. The object is to bring a matter in limelight and clear notice of the public. An action shortfall or in derogation to aforesaid description would not bring such action within the scope and framework of the term 'notification'."
27. Again it is observed at page 583:‑‑
28. "It is evident from the language of the provisions that the Legislature framed an adequate scheme of law for assumption of control and management of Waqf property and providing of opportunity, procedure and forum to an, interested person in such Waqf property for the redress of grievance, if any. Under section 6, Administrator was empowered to take over any Waqf property but the section laid a condition precedent that it shall be taken over after a notification has been issued. Action of taking over of Waqf property follows issuance of notification and not otherwise. Next it was postulated under section 7(1) that any interested person in such Waqf property in respect of which notification has been issued may bring his claim in the District Court within 30 days of the publication of the such notification. Here aggrieved person is provided with remedy of petition to District Court against notification. The limitation for preferring petition is 30 days. It starts running with effect from the publication of such notification. It is permissible to construe the meaning of 'notification' by reference to the scheme of law regulating the procedure to be adopted by Administrator in assuming the control and management of Waqf property; likewise the procedure to avail remedy against the action of Administrator. In view of the complete scheme of the law the meaning of 'notification' used in section 6 by necessary implication would include its publication. Thus we have to assign popular meaning to the word 'notification' accompanying the word 'publication' as used in section 7(1) of the Act. Next we examine the meaning of word 'publication'. In dictionary the word 'publication' is described as:
29. 'Communication to the public: public announcement: legal notification: the act or process of issuing copies for general distribution to the public: a published work: the distribution in print esp. In technical journals of a taxonomic name together with such descriptive or illustrative material as will characterize and distinguish the organism of group named:'
30. It is agreed that there is no reference to publication of notification in the Official Gazette. One may agree that publication of notification does not mean necessarily its publication in the Officials Gazette but its non‑publication in one of the manners, listed above, cannot be reconciled with its true meanings. Simply drawing of an order on the file of Administrator Waqf Property and not making it public, as in this case, would not give it legal character of notification in the popular use of the term. Therefore, agreeing with the contention of the learned counsel for the appellants, it is maintained that provisions of section 6 were only to be compiled with when control and possession of Waqf property was taken over in consequence of a notification duly published in one of popular methods of publication, as described above. This is not shown to have been done; or it is claimed as such by the respondents."
31. In view of the aforesaid precedent of the Supreme Court, it can safely be held that the notifications have been issued without lawful authority and the very constitution of the Committee and the subsequent proceedings conducted by the Committee are also declared as such. The contention of the learned counsel for the petitioner that this client has not been provided an opportunity of hearing by the Committee needs not to be dilated upon for the reason that the notifications are declared illegal in view of the aforesaid legal position. Be that as it may the findings of a Commission that too in absence of a party does not carry any legal value.
32. The issuance of the aforesaid notifications and constitution of the Committee also appears to be purposeless in presence of the notification dated 29‑6‑1998. In this constitution the Government has already directed to proceed under E&D Rules against the responsible persons. If, the Government so wishes, it can proceed against any person as is mentioned in the notification dated 29-6‑1998. The contention of the learned counsel that a vested right has accrued in favour of the petitioner, in view of above needs not to be discussed.
33. The argument of the learned counsel for the respondents that the petitioner was directly responsible for the excessive extraction of the Kuth and he has committed irregularities arid illegalities is to be looked into by the authority in view of the notification dated 29‑6‑1998. The letter of the Chief Conservator Forests referred to in the earlier part of the order extenuated the petitioner. The fact remains that even then the authority of the Government is there to proceed against any person if it is of the opinion that any misconduct is committed by a civil servant during his posting. The stand of the learned counsel is even contradictory to the Government Notification dated 19‑6‑1998, hence is devoid of any force. I have considered the authorities cited by the learned counsel for the respondents. Altogether different proposition is laid down in the aforesaid authorities. The facts in the authorities are distinguishable, hence not applicable to the controversy involved in the present case.
34. In view of what has been stated above, the writ petition is accepted and the notifications dated 24‑2‑2000 and 2‑12‑2000 are declared to have been issued without lawful authority. The proceedings taken by the‑ Committee constituted in pursuance of the aforesaid notifications are also held to be without lawful authority. It may be observed that observations made in this judgment will not stop the Government to implement the notification dated 19‑6‑1998. No order as to costs.
35. ??????????? Petition accepted.
36. H.B.T./33/AJ&K