' RAJ MUHAMMAD KHAN, J.---Sardar Fatehullah Khan Mian Khel, Tehsil Nazim, Tehsil Municipal Administration (T.M.A.), D.I. Khan, hailing from a reputable political family and enrolled as an Advocate of this Court through this writ petition has assailed his suspension as Teshil Nazim T.M.A., D.I. Khan by the Chief Executive of the N.-W.F.P. Vide Notification No, SECY/LGC/1-1/2006 dated 7-5- 2007 in view of the recommendations made by the Provincial Local Government Commission N.- W.F.P. (hereinafter referred to as the Commission) and in exercise of the powers conferred by section 132(3) of the N.-W.F.P. Local Government Ordinance, 2001 ,N.W.F.P. Ordinance No,XIV of 2001), (hereinafter referred to as the Ordinance), for ninety days with immediate effect so that 'a fair inquiry is conducted by the Commission against him under section 132(1)(b) of the Ordinance. It was provided in the impugned notification that the Commission shall finalize its inquiry within ninety days from the date of suspension of the Teshil Nazim, failing which the Tehsil Nazim shall automatically stand reinstated.
2. There' are two other Writ Petitions Nos. 148 and 149 of 2007 filed against the impugned notificatiOn and this judgment shall dispose of all these three petitions together by this consolidated judgment. The petitioners therein, who are Naib Nazims of various Union Councils of District D.I. Khan and Members of Tehsil Council D.I. Khan, all numbering seventeen,, have alleged that the impugned notification has caused great alarm, unrest and grievance among the public in general which is stated to be the result of political rivalry between two political groups and thus the issue has created hurdles against the functioning of the Tehsil Nazim in developmental public works and the entire progress has stood hampered. They have shown their full confidence in the petitioner Fatehullah Khan of Writ Petition No,141 of 2007 in his capacity as Tehsil Nazim and have prayed for declaration of the impugned notification to, be illegal, ineffective and without lawful authority.
3. The background of the impugned suspension is that the petitioner was elected as Tehsil Nazim D.I. Khan for the first time in the year 2001 and re-elected to the same office in the Local Government Elections, 2005. Since the petitioner was accused of financial, mismanagement in his functions and works carried out by him as Tehsil Nazim, T.M.A., D.I. Khan during financial year 2004- 2005, the Commission had proposed on 9-12-2006 to conduct inquiry against him through its Members under subsection (1)(b) of section 132 of the Ordinance. For this purpose, the, Commission constituted an Inquiry Committee consisted of M/s. Noor-ul-Qamar, Sardar Muhammad Anwar, Members of the Commission and Shahid Khattak, T.M.O. T.M.A., Kohat was to assist them as Technical Member vide its Notification No,DS/LGS/5(55)/06 dated Peshawar 12-12-2006 to inquire the alleged mismanagement. Besides that, criminal cases had also been registered against the petitioner vide F.I.R. Nos. 4 dated 2-1-2006 and 5 dated 16-9-2006, both under sections 409/420/468/471, P.P.C. Read with section 5(2) of the Prevention of Corruption Act at Police Station Anti-Corruption Establishment D.I. Khan and audit of his accounts was carried out by the Auditors into the affairs of T.M.A., D.I. Khan. Moreover, the Provincial Inspection Team N.-W.F.P. Had also inspected the entire record of the T.M.A. And NAB had too initiated inquiry into the affairs of the T.M.A. In August, 2006,but no corrupt practices had yet been established against him nor had misused his public office.
4. Subsequently the members of the Commission/Committee, namely, M/s. Noor-ul-Qamar and Sardar Muhammad Anwar vide their correspondence bearing No, LGC/Inq-Finan-Miss-Manag/DIK dated 22-1-2007 wrote to the Chairman of the Commission that the Committee had initiated inquiry under section 132(1)(b) of the Ordinance and had collected the material produced by Tehsil Nazim himself pertaining to Gatta Pal and installation of Hand Pumps but during the process of inquiry, it was noticed that the matter was extremely complicated and technical in nature as the works carried out by the T.M.A. \were spread over a vast area. They, therefore, recommended that independent investigation and broadened detailed inquiry into the alleged financial mismanagement of the Tehsil Nazim may be carried out through all the four members of the Commission and Civil Engineer may also be provided to the Commission for ensuring fair, transparent and thorough inquiry into the matter.
5. Qazim Anwar, Sanaullah Khan Gandapur, Chd. M. Sharif and Daud Khan for Petitioner. In view of the suggestions/recommendations of the aforesaid Committee, a fresh Committee consisting of M/s. Muhanunad Jalaluddin Advocate, Sardar Muhammad Anwar, Tariq Mansoor and Asif Qadir A Members of the Commission was constituted vide Order No,DS/LGC/5(55)/06 dated Peshawar 18- 4-2007 to probe into the financial mismanagement of T.M.A., D.I. Khan M/s. Yousuf Afridi TO(I) T.M.A.
Town-IV Pehawar and Zakir Hussian ATO(I) T.M.A., Town-III Peshawar were to provide technical assistance to the said Committee. It may be stated here that the tenure of four years of the earlier Commission had expired in February, 2007 and except Mr. Noorul-Qamar Member who had been replaced by Mr.Asif Qadir in March, 2007, the tenure of the rest of earlier Members of the Commission had been extended for further four years vide Notification No,AO/LG/LCB/5-55/02 dated 13-2-2007.
6. The, petitioner vide his application No, 441/T.M.A. Dated 24-4-2007 addressed to the Secretary to Government of Local Government Department Peshawar, had objected to the appointment of M/s. Jalauddin Advocate and Asif Qadir Advocate as Members of the Inquiry Committee as they were alleged to be biased against him and other two co-opted Members also being in the service of the Provincial Government to be under the influence of his political rivals and so deposing no confidence in them had apprehended disciplinary action from their hands. He had requested for their deletion from the Inquiry Committee.
7. The reconstituted Committee of four Members of the Commission after perusal of the record and the proceedings already carried out by the previous Committee, observed on 20-4-2007 that the record pertaining to Pal Gattajat and Hand Pumps was in the personal custody of the petitioner which he will produce himself to the Commission and as per statement -of Abdul Qadir, Ex-Head Moharrir of the T.M.A., D.I. Khan, that the petitioner had misplaced his service book for an year in order to deprive him of his pension because the Moharrir had, applied against petitioner to the NAB, that the petitioner had adopted delaying tactics in the production of record to the previous Committee and had tried to prevail upon the witnesses against him, the Committee opined that the petitioner as Tehsil Nazim required suspension of ninety days in order to conduct independent inquiry against him into the matter.
8. After considering the opinion of the Inquiry Committee, the Commission in its meeting dated 3- 5-2007 recommended the suspension of the petitioner whose suspension was accordingly ordered by the Chief Executive of the Province vide impugned notification dated 7-5-2007 under section 132(3) of the Ordinance. Hence these writ petitions.
9. After obtaining comments from the respondents and rejoinder thereto from the petitioner, we heard learned counsel for the parties, perused the record and also gone through the relevant provisions of the Ordinance.
10. It is asserted by the petitioner that he has been victimized due to political rivalry as the. Chief Minister/Chief Executive of the Province is taking side with his rival political group and had been using DCO/respondent No,6 as an instrument against him for which he is re-employed for three years and to whom special task is assigned to involve him in false cases and at whose instance, the entire Provincial Administration has been put in action against him. He alleged that the entire proceedings against him are based on mala fide and his suspension is without lawful authority, jurisdiction and unjust. It was added that he was neither issued any notice before his suspension nor the Chief Executive could suspend him under section 132 of the Ordinance, as there was no enabling provision for ordering suspension under it. According to him, the Chief Executive could order suspension only under section 129 read with section 128 of the Ordinance, but his case did not fall within its ambit. He, therefore, termed the impugned notification to be in excess of the jurisdiction of the Chief Executive.
11. On the other hand, the respondents maintained that the petitioner has challenged an interim and premature action of his suspension as the inquiry envisaged against him is yet to be completed and so he had no right to challenge the interim order of his suspension which was in accordance with law contained in section 132(3) of the Ordinance as was necessitated for the fair conduct of impartial inquiry against the petitioner.
12. The respondents defending the case, maintained that the suspension order could not be challenged in a writ petition in view. Of the bar under Article 212 of the Constitution of Islamic Republic of Pakistan 1973,as' suspension order or holding of an inquiry against civil servant being step towards passing of a final order and that suspension is neither a penalty or punishment nor violates any legal right vested in some suspending official, because the employee in such a case can make a claim for the balance of his unpaid salary for the- period of his suspension and that he continues to remain in service still. That suspension is one of a temporary phase would not arise any cause of action for the suspending employee to challenge the same in the Court of law. A Government servant can be suspended by an appointing authority even in the absence of any law or rule on the subject. Reliance was placed on the authorities laid down as 2002 PLC (C.S.) 816 Lahore, 1970 SCMR 103, PLD 1978 Lahore 1108 and PLD 1964 Dacca 671. However, the said authorities pertains to Government employees and are not applicable to the case of the petitioner who is not a civil servant.
13. On the point of jurisdiction, learned counsel for respondents stated that under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, where impugned order was made for valid reasons, the exercise of constitutional jurisdiction being discretionary would be denied and mere irregularity in the impugned order, if any, would not be sufficient to subject the same to scrutiny in the exercise of such jurisdiction. Reliance was placed on the authority laid down in 2005 PLC (C.S.)
1207 Peshawar. It was added that a party invoking the Constitutional jurisdiction of the High Court had to establish the existence of a clear legal right which must be so clear that no reasonable doubt of controversy is there. The authority laid down in 2002 CLC 147 Karachi were referred to.
While the authority referred to as 2005 PLC (C.S.) 1207 pertained to civil service, the authority cited as 2002 PLC 147 Karachi pertains to bank employee and were, therefore, not applicable to the case in hand.
14. With regard to interpretation of Statutes, it was contended that intention of the Legislature to be gathered from the words used by it. PLD 1973 Supreme Court 49 was referred to. It was added that where the main object and intention of a Statute is clear, it must not be reduced to a nullity by draftsman's unskillness or ignorance of law, except in a case of necessity or absolute illegality of the language used (2001 SCMR 103 relied upon).
15. We do not controvert the legal dictum in the above referred two authorities but we are of the view that while the manner of suspension is provided under section 129 of the Ordinance, no such manner is given in section 132(3) thereof.
16. Since the suspension in this case is made under the provisions of the Ordinance, we may reproduce relevant sections thereof for facility of reference:--
128. Directions by Chief Executive of the Province.--(1) The Chief Executive of the Province may by himself or through any office specifically authorized by him, issue directives in public interest to a Nazim for implementation.
(2) Where the situation demands immediate action and the Nazim fails to comply with the directions given to him under subsection (1), the Chief Executive of the Province may require the Chief Secretary to direct the Provincial Police Officer and the District Co-Ordination Officer concerned to take such actions as the situation may necessitate: ' Provided that where a grave threat to law an order exists and requires immediate action and the Zilla Nazim wilfully abstains from the district, Goverment may authorize, in writing, the Naib Zilla Nazim or, where the Naib Nazim is also not available, the senior most Presiding Officer of the Zilla Council, to act as officiating Zilla Nazim: ' Provided further that such authorization shall cease forthwith upon the return of Zilla Nazim to his office.
129. Suspension of a Nazim.--(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, 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 enquiry along with its recommendations which may include removal of the Nazim to the Chief Executive of the Province for appropriate action in 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.
17. Section 131 provides for the appointment of Provincial Local Government Commission by the Provincial Government.
18. Section 132 of the Ordinance lays down the functions of the Provincial Local Government Commission and enables it, inter alia, under subsection (1)(b) to 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.
' Subsection (3) of section 132 provides as under:-- ' Where the 'Provincial Local Government Commission is of opinion that suspension of a Nazim is necessary for the fair conduct of the enquiry under clause (b), of subsection (1) or preventing the Nazim from continuing with any unlawful activity during the pendency of enquiry, 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.
19. The perusal of section 129 of the Ordinance would indicate that the requirements for 'suspension of the Nazim including Tehsil Nazim (as per definition of Nazim given under section 2(xxiv) of the Ordinance) are the opinion of the Chief Executive, deliberate avoidance or wilful abstaining or failing of Nazim to comply with the directions given to him by the Chief Executive under section 128 of the Ordinance. The . Suspension may be for a maximum period of ninety days for reasons to be recorded and conveyed to the Nazim.
20. Evidently, the suspension of a Nazim, inter alia, requites reasons to be recorded and to be conveyed to the Nazim. Against such prerequisites for suspension specifically provided for under section 129 ibid, section 132(3) of the Ordinance provides simply for opinion of the Commission that suspension of Nazim would be necessary for the fair conduct of the enquiry under clause (b) of subsection, (1) of section 132 or preventing the Nazim from continuing with any unlawful activity during the pendency of enquiry, that it may recommend to the Chief Executive of the Province for making appropriate order for suspension of Nazim for a maximum period of ninety days. Evidently, this subsection does not elaborate or reproduce all those requirements for suspension laid down under section 129 but still, when an appropriate order for suspension is to be made by the Chief Executive under section 132 (3), the Chief Executive has to fulfil the 'requirements on the analogy of section 129 ibid. An appropriate order would require the application of the mind, the recording of reasons as well as observance of natural justice enshrined in the principle of audi alteram partein.
Therefore, the respondent/Chief Executive has not acted in accordance with law and thus his action of suspending the petitioner is in an unlawful manner and without proper application of the mind which would, therefore, have to be struck down. PLD 1969. Supreme Court 14 may be referred).
21. If we go through the record, we can find it easily from the correspondehce dated 22-1-2007 of, the earlier Inquiry Committee Members, that it does, not contain anything adyerse to the petitioner except that according to them the inquiry was to be broadened and to be conducted by all the four Members of the Commission for indepth investigation into the allegations against the Tehsil Nazim. Again, the so-called report dated 20-4-2007 made by the reconstituted four Member Committee does not show if they have ever conducted a preliminary inquiry into the matter or to have heard the petitioner before forming an opinion necessitating his suspension for carrying impartial inquiry against him. It was emphasized by the learned counsel for the petitioner that the.
Suspension order in this case could rather be considered to be removal of the Nazim for the interim period and appears to be based on malice and mala fide. It amounts to. Restraining the petitioner from his public function and his mandatory duties and to humiliate him in the eyes of his voters at least.
22. Admittedly, the Chief Executive is not empowered to suspend a Nazim for more than ninety days. In this case, he has ordered the suspension for such maximum period which, therefore, amounted to a final action against the petitioner. The suspension of a political elected representative from his office is totally different from suspension of any Government employee for the reason that it will be a big stigma, strong condemnation, insult and humiliation and is to cause great loss to his reputation as well. Thus such restraint order against the petitioner is equivalent to his removal, though may be temporary, in the circumstances of the case.' Therefore, he could not have been condemned unheard, because a show-cause notice is to be needed in each and every Statute unless specifically barred. Reliance in this respect may be placed on the authorities laid down by the Honourable Apex Court in 2007 SCMR 300 and also PLD 1987 SC 304.
23. The 'Ordinance does not provide for reconstitution of Inquiry Committee if once an inquiry is initiated to it. Thus the reconstitution of the Inquiry Committee by the Commission in the case of the petitioner also required a show-cause notice to -him particularly when he had objected to certain Members of the substituted Committee vide his application dated 24-4-2007 which does not appear to have been considered at all. -24. In view of what has been stated above, we hold that after substitution of the first Committee of the Commission for inquiry into the affairs of D.I. Khan and suspension of the Tehsil Nazim therefor, the petitioner was required to be given show-cause notice and to be heard before suspending him by the Chief Executive since he could not be compensated in any way for the suspended period when his office happened to before a specified period, moreso when he had no remedy against his suspension in the Ordinance. Consequently, we accept the instant writ petition and declare the impugned notification to the extent Of suspension of the petitioner, to be illegal, unjust and unfair.
The proposed inquiry against the petitioner has to take its own course since he has not challenged specifically the relevant Order No, DS/LGC/5 (55)/06 dated 18-4-2007 providing for the inquiry, by four Members of the Commission in this case. The CM No, 117/2007 for staying the proceedings of the inquiry is accordingly dismissed. The petitioners of the other two connected Writ Petitions No, 148 and 149 are not personally aggrieved of the impugned notification. Their writ petitions are; therefore, dismissed.