Sardar Muhammad Nawaz Khan, C.J.--The above captioned petitions, filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, raise identical questions of facts & law, hence, were heard together and decided as such.
The facts of the cases are that petitioners in petitions No,385/2003, 396/2003, 388/2003, 395/2003, 15/2004, 422/2004 and 412/2003, allegedly entered into plea-bargain with the Ehtesab Bureau while their cases, with regard to corruption and corrupt practices, were being investigated. They, in view of proviso to Section 16(1) of Azad. Jammu and Kashmir Ehtesab Act, 2001 (Hereinafter shall be referred to as Ehtesab Act, 2001), were deemed to be convicted. Their cases were referred to the Government/Authority, who has issued notices to them under the provisions of The Removal From Service (Special Powers) Act, 2001 (Hereinafter shall be referred to as Special Powers Act, 2001), whereby they have been asked to show cause as to why they may not be dismissed from Service under section 3(2)(b) and 5(5) of Special Powers Act, 2001. They, feeling aggrieved by the show cause notices, have brought these constitutional petitions, challenging the vires of Special Powers Act, 2001 and Ehtesab Act, 2001.
The petitioners, in petition Nos,391/2006, 186/2006, 217/2006, 4/2006, 531/2004, 111/2004 and 42/2004, though not found to have been proceeded on the ground of plea bargain, have also challenged the vires of Special Powers Act, 2001. They are either in the service of AJ&K Government or AJK Council. All the petitioners have raised the following points:-
(1) That the Special Powers Act, 2001 is void being inconsistent with fundamental rights guaranteed by the Azad Jammu and Kashmir Interim Constitution Act, 1974, especially fundamental right No,15 regarding equality of State Subjects. Exhaustive rules made under Section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976 regulating the conduct and discipline of the civil servants known as Azad Jammu and Kashmir Civil Servants (Efficiency & Discipline) Rules, 1977 already hold the field.
In presence of the said law the legislation of Special Powers Act, 2001, on the same subject and that too without any justification and rationale, is against the spirit of the Constitution.
(2) That the Special Powers Act, 2001 does not make any classification, whatsoever, not to speak of any reasonable classification. The law is purely discriminatory in nature, which gives unguided, arbitrary and unreasonable powers to the executive.
(3) That the law offends the fundamental rights also for the reason that, it is more harsh and cruel as compared to the Efficiency & Discipline Rules, 1977 framed under the Azad Jammu and Kashmir Civil Servants Act, 1976. The right of defence as contained in the aforesaid Efficiency and Discipline Rules stands curtailed/minimized and in some cases even extinguished under the Special Powers Act, 2001 The application of the law has been left at the unguided and uncontrolled discretion of the executive authorities thus depriving the persons proceeded against under the Special Powers Act, 2001 at the mercy of the executive.
(4) That the right of appeal as guaranteed to all the civil servants under the Efficiency & Discipline Rules, read with the' Service Tribunal Act, 1975, has also been subjected to unreasonable limitations and restrictions under the Special Powers Act which practically amount to total negation of the right of appeal. Again, this discrimination is without any reasonable cause and devoid of any reasonable classification.
(5) That the show cause notices are without jurisdiction and coram-non-judice for the reason that it declares the petitioners as a convict and disqualified to hold an office in the Government service on the basis of Section 16 of the Ehtesab Act, 2001. Such a declaration in advance without affording the petitioner an opportunity of hearing and showing cause is violative of the principles of natural justice. Further the aforesaid declaration is based on a total wrong assumption and interpretation of the legal provisions. Section 16 of the Ehtesab Act does not, in any way, declares the civil servants who have entered into a plea-bargain as convicts and the provisions of the said Section apply only to the offices held in representative capacity. The show cause notices issued on the basis of deeming or declaring the petitioners as convict under Section 16 are without jurisdiction.
(6) That the show cause notices are without jurisdiction also for the reason that the provisions of Section 28(3) of the Ehtesab Act which has an overriding effect as compared to Section 16 of the said Act, do not declare the civil servants who have entered into a plea bargain as convicts.
Section 28(3) declares such civil servants as "discharged" which term cannot be equated with conviction by any standard. The issuance of show cause notices to the petitioners basing it on the provisions of Section 16 Of the Ehtesab Act while ignoring Section 28(3) of, the said Act are not only an illegal exercise of jurisdiction, but also without jurisdiction.
In writ petition No,395/2003 and 396/2003, constitution of the Ehtesab Bureau etc. has been challenged in the following words:--
(1) That the Ehtesab Act is violative of Section 31(2)(a) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 because the Legislative Assembly of Azad Jammu and Kashmir has got no constitutional and legal powers to make any law in relation to the functions & duties of the Chairman of the Azad Jammu and Kashmir Council, hence, Section 6 & 7 of the. said Act are ultra- wires to the Constitution and the appointment of the Chairman as well as Deputy Chairman Ehtesab Bureau are also unconstitutional.
(2) That the allegation of plea-bargaining factually is incorrect as the petitioners have never been associated with any inquiry and neither they made any application for plea-bargaining nor had deposited any amount, therefore, the whole proceedings regarding the alleged plea of bargaining on behalf of the petitioners and conviction in furtherance of notices issued to them on the basis of so called conviction, are without lawful authority.
The defence of the respondents is common in all the petitions, therefore, for the sake of brevity need not to be mentioned separately, however, the common grounds of defence in all the petitions are as under:--
(1) That the petitions have been filed against show cause notices which are not maintainable because no final order has been passed against the petitioners.
(2) That after passing of final order, the petitioners have an alternate and efficacious remedy before the Azad Jammu and Kashmir Service Tribunal, therefore, jurisdiction of this Court stands ousted in view of bar contained in Section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
(3) That the High Court has no jurisdiction to transfer the proceedings pending before an executive or judicial authority to itself for decision nor the opinion of an administrative officer could be substituted in exercise of writ jurisdiction.
(4) That even the law known as Azad Jammu and Kashmir Removal From Service (Special Powers)
Act, 2001 is a law relating to the disciplinary proceedings against the civil servants which falls within the definition of terms and conditions of service, hence, is not challengeable before this Court.
(5) That the said law has competently been promulgated by the legislature and its preamble expressly contends the wisdom and purpose of its legislation. Mere presence of the earlier law on the subject does not make this piece of legislation invalid.
(6) That the petitioners have duly participated in the proceedings and their offer has been accepted by the Ehtesab authorities. They deposited the calculated amount; therefore, stand convicted under proviso to Section 16(1) of the Ehtesab Act, 2001. Now they cannot challenge the provisions of the Ehtesab Act nor the request of plea-bargaining.
(7) That they have not approached the Court with clean hands and the petitions badly suffer from laches
(8) That the provisions of the Ehtesab Act, 2001 are not against the fundamental rights enumerated in Section 4 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and the Legislative Assembly of the Azad Jammu and Kashmir has competently enacted the same. The petitioners have no locus standi to challenge this piece of legislation.
The learned counsel for the petitioners argued that respondents misstated and twisted the facts while submitting their written statements and during the course of arguments, especially with regard to writ petitions No,395, 396 and 111. The petitioners in the said writ petitions were on Ex- Pakistan leave, after obtaining permission and necessary NOCs from the appointing authority. Their stand is that they did not return to Azad Kashmir neither they were informed regarding any inquiry or investigation undertaken by the Ehtesab Bureau/investigating agency, nor they ever associated in any such inquiry. It was further submitted by the learned counsel that none of them submitted any application for entering into plea of bargain according to section 28 of the Ehtesab Act, 2001.
Therefore, per arguments of the learned counsel, plea of bargain, alleged by the respondents, was factually in correct and being so was not sustainable. Their further claim is that the respondents failed to submit befike the Court any documentary proof of plea of bargain, according to the spirit of law. Plea of bargain is not mere factor of investigation; but it is an agreement/contract between the parties in accordance with legal requirement of free will, offer and acceptance, the learned counsel maintained. The learned counsel, during their arguments, relied upon case law like PLD 2003 SC 837 and PLD 2002 Lahore 607.
According to the learned counsel, all the writ petitions raise identical question of law especially the vires of the Acts passed by the Legislature, and known as Special Powers Act, 2001 and Ehtesab Act, 2001. The respondents raised objection of acquiescence and estoppel against the petitioners which is merit-less because it is now universally accepted principle of law that there is no acquiescence or estoppel against law/statute, the learned counsel argued. On this point, the learned counsel cited Tehreek-e-Amal's case reported as PLD 1985 (AJK) 85.
While dealing with the objection regarding jurisdiction of this Court, the learned counsel submitted that it was baseless and misconceived. The respondents have mainly based their arguments on the ground that the matter relates to the terms and conditions of service, regarding which the exclusive jurisdictions vests in the Service Tribunal. This objection is legally and factually incorrect because here in these writ petitions, the vires of the Acts, passed by the AJ&K Legislative Assembly and the Azad Jammu and Kashmir Council, have been challenged. The AJ&K Legislative Assembly and AJK Council do not fall within the definition of competent departmental authority, the learned counsel contended. It was further argued that the Acts, passed by the Legislature, were not orders passed by the departmental authority. Service Tribunal, according to the learned counsel, has got exclusive jurisdiction only against the final order passed by the departmental authority and has got no jurisdiction to look into the vires of a piece of legislation passed by the legislature. On this point, section 4 of Service Tribunal Act is very much clear which speaks that any civil servant aggrieved by any final order, whether original or appellate, passed by departmental authority, may appeal to Service Tribunal". These clear words used by the Legislature indicate its intention that before Service Tribunal, an appeal can be filed only when an order is passed by the departmental authority which causes grievance relating to the terms and conditions of service of civil servants.
The law passed by the AJ&K Legislative Assembly or AJK Council are not orders passed by the Departmental Authority, therefore, per contention of the learned counsel, Service Tribunal has got no jurisdiction to look into the vires of law/Acts passed by the Legislature. They further submitted that the rules, including Efficiency and Discipline Rules, are ordinarily made by the Government which is also a departmental authority, hence such Service Rules may fall into the definition of an order passed by the Departmental Authority; but the Act' passed by the Azad Jammu & Kashmir legislative Assembly or AJK Council cannot be brought into the definition of an order passed by the Departmental Authority, by any stretch of imagination. The learned counsel went on to submit that the writ jurisdiction of the High Court was not excluded in all cases relating to the terms and conditions of service. According to them, the High Court is the only forum to issue direction for implementation of service laws, rules and orders. To strengthen and elaborate their point of view, they relied upon latest case law reported as 2007 SCR 62 and 2002 PLC (CS) 821 The learned counsel for the petitioners during their arguments controverted the contention of the respondents, raised in the written statements, about the terms and conditions of service. They submitted that this objection was misconceived. According to them, the terms and conditions and law relating to the terms and conditions of service have specifically and categorically been identified in laws made according to the spirit of section 49 of the Interim Constitution Act, 1974, except those specific laws not made according to the spirit of section 49 of The Interim Constitution Act, 1974, nor in accordance with the spirit of civil Servants Act, 1976, therefore, cannot be treated' as laws relating to the terms and conditions of ,Civil Servants. To their estimation, the Legislature has passed an Act to regulate appointments and terms and conditions of Civil Servants in respect of persons in the service of AJ&K or employees appointed with the affairs of the Government or the matters connected therewith and this law is known as AJ&K Civil Servants Act, 1976. The aforesaid Act clearly demarcates and identifies the terms and conditions of service of Civil Servants, without leaving any ambiguity or providing any room for inclusion of any other law in relation to the terms and conditions of service. It was further argued that the rules, have been framed under Civil Servants Act, 1976, dealing with Efficiency and Discipline of the Civil Servants.
These rules still hold the field. When a departmental authority interprets such rules in disadvantage of civil servants, the order of authority can be challenged before the Service Tribunal along with the vires of rules; but not the Act passed by the Legislature, the learned Advocates submitted. The laws known as Special Powers Act, 2001 and Ehtesab Act, 2001, passed by the Legislature do not fall into the category of laws/rules dealing with the terms and conditions of Civil Servants, They placed reliance upon a case law of Apex Court of the State reported as 1994 SCR 402.
The learned counsel further contended that the laws like Special Powers Act, 2001 and Ehtesab Act, 2001 have been legislated in contravention of section 49 of the Interim Constitution Act, 1974. The aforesaid provision of the Constitution, according to the learned counsel is evident of the fact that the laws should be subject to Interim Constitution Act, especially fundamental right No,4 (15) enshrined under the constitution. According to the learned counsel, both the Acts i,e, Special Powers Act, 2001 and the Ehtesab Act, 2001, do not deal with the terms and conditions of service, neither they 'regulate the matters of appointment and service, therefore, they do not relate to the matters of terms and conditions of Civil Servants nor they are made according to the spirit of section 49 of interim Constitution Act, 1974. They further submitted that the legal position in view of section 49 of the Interim - Constitution Act was that the impugned Legislation runs counter and parallel to the already enforced service laws and this Act of Legislation, being against the spirit of Constitution, was beyond their competence, therefore, on this score is liable to be struck down. It was also the argument of the learned counsel that the' impugned legislation was harsh as compared to Efficiency and Discipline Rules; thus creating an anomaly with regard to service matters. This anomalous position allows the departmental authority an unguided, arbitrary and discriminatory powers to misuse the provision of law for its personal likings and dislikings, the learned counsel submitted. No reasonable, valid, justifiable, rational and comprehensive classification has been provided under Special Powers Act, 2001, the learned counsel submitted.
Sub-legislation, according to the learned counsel, can easily be misused by the concerned authorities in an arbitrary and discriminatory manner. It is left to the sweet will of the authority to proceed against one Civil Servant under the provisions of Efficiency and Discipline Rules and to proceed the other one under the provisions of Special Power Act, 2001, hence this is a clear violation of equality clause provided in the Constitution. The Act known as Special. Powers Act, 2001, therefore, being ultra vires to the Constitution, is liable to be struck down by this Court. On this point, the learned counsel placed reliance on the following case law:--
1. 1994 SCR 341; PLD 957 SC Pak. 157; PLD 1983 SC (AJK) 95; PLD 1979 SC (AJK) 139; PLD 1988 SC 416 & 465; PLJ 1998 SC
(AJK) 1991; PLD 1997 SC 473; PLD 1992 SC 295; PLD 1992 Fed. Shariat Court 412 and Another objection with regard to curtailment of right of appeal has been raised by the learned counsel for the petitioners. According to them, no Civil Servant, under Special Powers Act, 2001, is allowed to file direct appeal before the Service Tribunal. The right of appeal is available to a Civil Servant only against a final order passed under section 9 of the said Act. Section 10 of the said Act provides the right of appeal which, according to the learned counsel, is curtailment of right of appeal. Similarly the employees of the Courts or Tribunals, according to the learned counsel, have not been provided right of appeal because they have got no right of representation according to the provisions of section 9 of the said Act and an appeal can only be filed against a final order passed under section 9 of the said Act. Thus, the employees of the Courts or Tribunals have been deprived of right of appeal through the Act impugned before this Court and being so such law cannot be allowed to sustain. The learned counsel, on this point, referred a legal report of the Apex Court of the State (2002 SCR 455).
The learned counsel also challenged the contention of the respondents with regard to section 11 of Special Powers Act, 2001, raised in the written statement and contended that this provision of law has impliedly made the Constitutionally valid Service Laws redundant. According to them the said provision of law has been given preference over all other service laws which is violation of Section 49 of the Interim Constitution Act, 1974. The Acts impugned before this Court, according to the learned counsel, are violative of fundamental rights and such laws cannot be given preference over the Constitutionally valid laws. These impugned Acts, being in-conflict with the Civil Servants Act, cannot be allowed to exist. They further contended that the argument by the learned counsel for the respondents, about overriding effect of section 11, of Special Powers Act, 2001, is also misconceived. According to them, co- existence of Efficiency and Discipline Rules and Special Powers Act, 2001 provide a parallel legislation and to avoid this anomaly in service matters, the impugned Act (Special Powers Act, 2001), cannot be allowed to hold the field in view of previous service laws holding the field at the moment.
The petitioners, according to their counsel, have also challenged the validity of sections 6 and 7 of Ehtesab Act, 2001, for being beyond the legislative competence of AJ&K Legislative Assembly, because through these provisions, the AJ&K Legislative Assembly, by legislation, has imposed duty of consultation upon the President of the State of Azad Jammu and Kashmir, while making appointment of Chairman and Deputy Chairman of Ehtesab Bureau. According to them, under section 31 of the Interim Constitution Act, 1974, the AJ&K Assembly has got no powers to legislate in relation to council, its chairman or officers; thus appointment of Chairman and Deputy Chairman of Ehtesab Bureau are unconstitutional in view of section 19 of the Constitution.
Conversely the learned counsel for the respondents, while controverting the arguments addressed on behalf of the petitioners, submitted that Special Powers Act, 2001, being a law relating to the terms and conditions of service including disciplinary matters with respect to a civil servant, cannot be challenged before the High Court, in view of bar contained in section 47 (2) of the Interim Constitution Act, 1974; thus jurisdiction of the High Court stands ousted. It was further submitted by them that all the petitioners before the Court, being Civil Servants could not challenge the vires of section 16 and 28 of Ehtesab Act, 2001. According to the learned counsel, the provisions of Special Powers Act, 2001 and Ehtesab Act, 2001, impugned before this Court, could be challenged before the Service Tribunal, as is held in PLD 1980 SC (AJK)
05. The learned counsel, apart from the said legal report by the Apex Court of the State, relied upon the following case law while dealing with the question of jurisdiction of this Court:-
2. 2001 PLC (CS) 781 and
3. 2002 PLC (CS) 442 The learned counsel while dealing with show cause notices, issued to the petitioners herein, submitted that the same was a step towards passing of final order under Special Powers Act, 2001, therefore, writ petitions, challenging the validity of show cause notices, are not maintainable particularly when final order under Special Powers Act, 2001 is yet to be passed. They could challenge the final order before the Service Tribunal under section 4 of Service Tribunal Act; thus High Court has no jurisdiction to substitute its own opinion for the opinion of executive and similarly has no jurisdiction to transfer the proceedings pending before an executive and decide itself. The learned counsel placed reliance on:
1. 2000 SCR 308;
2. 2001 PLC (CS) 781 and
3. 2000 PLC (CS) 762.
It was further submitted that in case of Muhammad Ikram etc. v AJK Council, the petitioners have submitted to the jurisdiction of AJK Council Removal From Service (Special Powers) Act, 2001; thus said petitioners (Muhammad Ikram etc.) cannot object to the jurisdiction of the functionaries under the AJ&K Council Removal From Service (Special Powers), Act, 2000, on the principle of acquiescence. To support this contention, the learned counsel relied upon:-- 1. PLJ 1984 SC (AJK) 17;
2. 2002 SCR 97;
3. 2000 SCR 308;
4. 2001 PLC (CS) 1 and
5. 2002 PLC 762.
The provisions of Special Powers Act, 2001, according to the learned counsel, have been enacted with a view to provide more effective relief to civil servants as compared to relief available to them under Efficiency and Discipline Rules. The learned counsel, by referring rule 8 and 9 of Efficiency and Discipline Rules, contended that the same are more harsh than the provisions available under Special Powers Act, 2001, dealing with removal of civil servants in case of conviction order. Thus, according to the learned counsel, Special Powers Act, 2001 is more beneficial for civil servants and this view has been upheld by the Superior Courts in Pakistan. They placed reliance on:--
1. 2001 PLC (CS) 781 and
It was further argued that the existence of laws relating to Civil Servants, prior to enactment of Special Powers Act, 2001, did not mean that Legislature had become incompetent to Legislate any other law dealing with the same matter. The learned counsel attacked the arguments raised in the petitions about the malafide of the Legislature and contended that legislative measures were presumed to be bonafide always. Reliance has been placed on the following legal reports:--
1. PLD 2001 (AJK) 60;
2. 2001 PLC (CS) 781 &
While dealing with the question of appeal provided under Special Powers Act, 2001, it was contended that in view of section 49 of the Interim Constitution Act, 1974, the Azad Jammu and Kashmir Service Tribunal Act, 1975 has been enacted and section 4 of the said Act is comprehensive in its nature providing appeal against any order passed by the departmental competent authority, notwithstanding the availability of any other departmental remedy. Apart from the fact that Service Tribunal is competent to examine the vires of law under which action is taken against a civil servant and where the Tribunal finds that the law under which action is taken against a civil servant is not validly made, the action can be struck down. The petitioners, according to the learned counsel, in presence of an adequate and efficacious remedy, in shape of appeal before the Service Tribunal, cannot file writ petitions before this Court. Reliance has been placed on the following case law:--
1. PLD 1980 SC (AJK) 05;
3. 1999 SCR 204;
4. 2001 PLC (CS) 781 &
The learned counsel, while defending the appointment of chairman and Deputy Chairman of Ehtesab Bureau, submitted that as the petitioners, at the time of plea of bargain, have submitted to the jurisdiction of Charmin and Deputy Chairman of Ehtesab Bureau, therefore, on the principle of estoppel, they could not challenge the validity of appointments of chairman and deputy chairman.
On this point, they relied upon PLJ 1984 SC (AJK)
17. It was further contended that the enactment of section 6 and 7 of Ehtesab Act was not beyond the legislative competence of AJ&K Legislative Assembly, as it provides that the Chairman of the Ehtesab Bureau shall be appointed by the President after consultation with the Chairman of AJK Council. The arguments on, behalf of the petitioners with regard to appointment of Chairman and Deputy Chairman of Ehtesab Bureau, according to the learned counsel, are misconceived for the reason that the legislative Assembly has not legislated into the powers of the Council, rather it has created a provision with the view to co-operate with AJK Council, regarding appointment of Chairman and deputy Chairman of the Bureau. The learned counsel further submitted that even otherwise, perusal of section 19(3) of AJ&K Interim Constitution Act, 1974, provides that the Government/AJ&K Legislative Assembly may entrust any function to the Council or its officers. The above provision is sufficient to hold that the Chairman of AJK Council is a functionary of AJ&K, in view of Interim Constitution Act, 1974, therefore, office of Chairman is not an alien to the Constitutional Provisions of AJ&K. Combined reading of section 19 of AJ&K Interim Constitution Act, 1974 is sufficient to say that the words "after consultation with the Chairman of AJK Council" inserted in section 6 and 7 of Ehtesab Act, cannot be said to have been enacted beyond the legislative competence of Legislative Assembly.
While dealing with the objection regarding provisions of Special Powers Act, 2001 and that of Ehtesab Act, 2001 on the point that the same are violative of fundamental right No,15 (equality clause), the learned counsel maintained that while interpreting a provision of law, it is to be read in toto and not in isolation; The pre-amble of Special Powers Act, 2001, when read in conjunction with the provisions of section 1(4) 2 (c) and (d), clearly shows that law applies to all persons in Government Service, corporate service including every person holding a civil post in connection with the affairs of Azad Jammu and Kashmir. According to the learned counsel, the learned counsel for the petitioners during their arguments suppressed the comprehensive provisions like section $, 4, 5, 6 and 7 of Special Powers Act, 2001, while reading certain provisions in isolation keeping away the full text of the relevant section. It was further argued that section 11 of the Special Powers Act, 2001 provided that it shall have effect notwithstanding anything to the contrary in the Civil. Servants Act, the rules made there under and any law for the time being enforce. The aforesaid state of affairs was indicative of the fact that after coming into force the Special Powers Act, 2001, AJ&K Civil Servants (Efficiency and Discipline) Rules do not exist; thus no question of parallel legislation or creating any class arises. Section 28 of Ehtesab Act, 2001 provides a comprehensive procedure for plea bargaining. Sub-section (3) of the said section provides that- irrespective of anything contained in section 16 or any other law for the time being enforce, where holder of a public office retained illegal gains or caused loss to the state exchequer, the Chairman may accept the offer and after depositing the amount, discharge such person of all his liability relating to the matter or transaction in issue. The learned counsel for the petitioners did not keep in mind the aforesaid provision in juxta position With section 16 of the Act. The aforesaid provision clearly postulates that irrespective of any conviction order by the Court under section 11 of Ehtesab Act, 2001, the effect of plea bargaining under section 28(3), to the extent to a person who entered into plea bargaining so as to declare such person to be a convicted one only for the purpose of disqualification. According to the learned counsel, the word used in section 28 (3) does not mean "discharge" as defined in section 253 Cr.P.C.; rather this word used in section 28(3) is to be read with "liabilities relating to the matter or transaction in issue". Thus, according to them, there is no contradiction between section 16 proviso to sub-section 1 and section 28(3) of the Act. The petitioners who are civil servants, fall into the definition of holder of public office mentioned in the Ehtesab Act, 2001, therefore, section 16 (1) is applicable to them. The learned counsel while elaborating this point referred Asfand Yar Wali's case (PLJ 2001 SC 817). The objection with regard to the non-availability of right of appeal against plea bargaining and the conviction order passed upon it is also dealt with, the learned counsel submitted. According to the learned counsel, concept of plea bargain is based on voluntarily return of loss of the amount to the state exchequer and offer of plea bargain is tantamount to confession. Legislature, according to the learned counsel, has extended a benefit to the accused so as not to put him behind bars to undergo a sentence, therefore, the question to provide forum of appeal did not arise. However, according to the learned counsel, the person aggrieved of plea of bargaining, has remedy before the Chairman Ehtesab Bureau or to challenge the same in the High Court by filing an appeal under section 40 of Ehtesab Act, 2001, in case the order is passed by the Court and in all other matters in view of section 439 read with section 561-A Cr.P.C. The learned counsel went on to clarify the position of the law and submitted that in case the aforesaid remedies are not available, the proceedings of plea bargaining can be challenged even by filing a writ petition. The petitioners were served with show cause notices long before filing of present writ petitions. They kept themselves silent for no, reasons, therefore, they cannot be allowed to challenge the vires of laws Impugned before this Court through present writ petitions. The Superior judiciary, according to the learned counsel, have never declared any enactment invalid merely on the ground that necessary provision of appellate jurisdiction has not been provided. The learned counsel placed reliance on PLJ 2001 SC 817 and contended that the honourable Judges in the aforesaid case were found to have issued direction to amend the law suitably so as to allow right of appeal.
It was also case of the learned counsel for the respondents that sections 9 and 10 of Special Powers Act, 2001, when viewed in juxta position with section 4 of AJ&K Service Tribunal Act, which provides that a civil servant may file appeal against an original or appellate order adversely determining his terms and conditions of service, have two remedies so as to challenge it and it is for the civil servant to choose as to which remedy is first availed. The civil servant is free to file a representation before the Prime Minister and when it is decided, he can challenge the order before the Service Tribunal by filing an appeal. The filing of appeal before the Service Tribunal against the order of Prime Minister, under law, is an appeal against appellate order. However, according to the learned counsel, if a civil servant does not want to file representation under section 9 of the Act, he can competently challenge the order passed against him under section 3 of Special Powers Act, 2001, by filing a direct appeal under section 4 of the Service Tribunal Act, which is called "Original order".
In this view of the matter, as per contention of the learned counsel, the provisions of Special Powers Act, 2001, regarding right of appeal does not curtail the appellate jurisdiction to be exercised against an order passed under section 3 of the Act. To strengthen this argument, the learned counsel relied upon the case law like 2002 PLC (CS) 442.
After having considered the pleadings and the arguments addressed at bar, the following points of controversy need resolution by this Court:--
1. Whether this Court is seized with the jurisdiction to decide the controversy in hand in view of bar contained in section 47 of the AJ&K Interim Constitution Act, 1974?
2. If the answer of No,1 is in affirmative, whether the provisions of Special Powers Act, 2001 and that of Ehtesab Act, 2001 are ultra vires to the equality clause enshrined under the Constitution. If so, then what are the consequences?
3. Whether Efficiency and Discipline Rules made under the AJ&K civil Servants Act, 1976, hold the field, even after enactment of Special Powers Act, 2001?
4. If answer of No,3 is in yes, whether it creates anomaly . which allows the departmental authority an unguided, arbitrary and discriminatory powers to decide the cases of civil servants to his likings and dislikings?
5. Whether plea bargaining, by the petitioners, is legally correct and can be made basis for show cause notices?
6. Whether conviction under proviso to sub-section (1) of Sec. 16 of Ehtesab Act, 2001, relates to any other action, except disqualification to contest election or to hold public office and;
7. Whether sections 6 and 7 of Ehtesab Act are beyond the legislative competence of AJ&K Legislative Assembly, hence liable to be struck down.
The first point of controversy is about the jurisdiction of this Court. According to the learned counsel for the respondents, Special Powers Act, 2001, is a law relating to the terms and conditions including disciplinary matters with respect to Civil Servants and the petitioners being Civil Servants could not challenge the vires of this Act through present writ petitions before the High Court, in view of bar contained in section 47 (2) of the AJ&K Interim Constitution Act, 1974. In other words, according to the learned counsel, the High Court has no jurisdiction to hear and decide these constitutional petitions. Likewise, the learned counsel maintained that vires of section 16 and 28 of Ehtesab Act, 2001 could not be challenged because the petitioners, being civil servants, can challenge it before the Services Tribunal, in case a final order is passed against them. The Service Tribunal is competent to determine the vires of above mentioned enactments. He, in support of his contention, placed reliance on Ghias-ul-Haq's case (PLD 1980 SC (AJK) 05). He has cited a few other legal reports from Pakistan and Azad Kashmir; but mainly relied on the aforesaid first mentioned case. We feel it advised to have a brief survey of Ghias-ul Haq's case. In the precedent case, some Civil Servants were dismissed, removed and compulsorily retired from service by interpreting Efficiency and Discipline Rules. They filed appeal before the Services Tribunal, against the order passed under Efficiency and Discipline Rules. During pendency of their appeal, they separately filed a writ petition in the High Court, challenging the vires of the rules under which they were proceeded and finally removed, dismissed and compulsorily retired from service. The High Court accepted the writ petition, consequently, the dispute went to the Supreme Court of Azad Kashmir. The Apex Court; while deciding the controversy, held that if a penalty is imposed upon a civil servant by interpreting Civil Servants (Efficiency and Discipline) Rules, made under Civil Servants Act, the Services Tribunal is fully competent to go into the vires of the rules and even can strike them down while deciding the main dispute. The order of the High Court was reversed with the direction to the appellants to challenge, if so advised, the vires of the rules before the Services Tribunal.
Against this, the case of the petitioners is that in all the writ petitions, filed in this Court, the vires of the Acts passed by the Legislative Assembly have been challenged. The Azad Jammu and Kashmir Legislative Assembly and the Azad Jammu and Kashmir Council, are not departmental authorities, neither the Acts passed by them are orders by the competent department& authority. The Service Tribunal has got exclusive jurisdiction to hear the appeal against a final or original order passed by a departmental authority and while deciding the main dispute, the Tribunal can look into the vires of the rules made by the departmental authority. The laws, passed by Azad Jammu and Kashmir Legislative Assembly and the Azad Jammu and Kashmir Council, are neither orders nor passed by the Departmental authorities, therefore, Service Tribunal has no jurisdiction to look into the vires of laws/Acts passed by the legislature. Their case further is that subordinate law, including Efficiency and Discipline Rules, are ordinarily made by the Government which is also a departmental authority, hence such rules may fall into the definition of orders passed by the departmental authority, however, the Acts/laws by the Legislature, by no stretch of imagination, fall into the definition of orders passed by the departmental authority. It is also the case, of the petitioners that writ jurisdiction of High Court is not excluded in all matters relating to the terms, and conditions of service. Their counsel has placed reliance on case law like 2002 PLC (CS) 821 and 2002 SC (AJK) 62, wherein it has-been laid down that under section 44 of the AJ&K Interim Constitution Act, 1974, High Court is fully competent to issue direction for implementation of service laws, rules and orders etc. The relevant portion of Syed Shakir Shah's case (2002 PLC (CS) 821) is as under:-- "10. The contesting respondents wanted the implementation of three Government Notifications, dated 06.061996, 11.05.1999 and 26.03.1992 as mentioned by us in the earlier part of this judgement.
The learned counsel for the respondents, therefore are justified in arguing that their clients never challenged the validity and correctness of these notifications rather they sought the help of the Court for a direction that they being the employees of the Azad Government Secretariat Service be considered for promotion in BPS-20. Writ of mandamus is issued to compel holder of public office to Act in discharge of legal duty. Such powers have been given to the High Court which it can exercise under section 44 of the Azad Jammu and Kashmir interim Constitution Act, .1974. The writ jurisdiction available to the high Court in Azad Kashmir is no doubt a discretionary jurisdiction which is to be exercised within the limits laid down by the interim Constitution Act 1974. This is clear from the opening word 'subject to this Act' used in section 44 of the interim Constitution Act. These words definitely mean that prohibition contained in any other provisions of the interim constitution Act, 1974 like subsection (2) of section 47 of the Act shall not be violated by the High Court while exercising writ jurisdiction.
After examination of pleadings and the case law cited for and against at bar, we are of the view that in the instant writ petitions, this Court is seized with the jurisdiction to hear and decide them.
This is because the petitioners through the present writ petitions, seek nullification of certain provisions of Special Powers, Act, 2001 and Ehtesab Act, 2001, passed by the Azad Jammu and Kashmir Legislative Assembly. There is no cavil with the principle laid down in Ghias-ul-Haq's case.
In the precedent case, aggrieved civil servants were terminated or, compulsorily retired from service by the departmental authority through interpretation of Efficiency and Discipline Rules. They challenged the order passed by the departmental authority before the Service Tribunal and separately challenged the vires of the rules before the High Court. Here in these cases, the vires of Acts/laws passed by the Legislature are under challenge and the petitioners seek direction against the respondents to go by what the law says or abstain from what not required by law. Had it been a case of a civil servant wherein penalty was imposed through interpretation of the rules by the departmental authority, then of course, this Court has no jurisdiction because in that eventuality, Service Tribunal, while deciding the main dispute, could go into the vires of the rules. No doubt, petitioners are civil servants and Special Powers Act, 2001 is a law which relates to the terms and conditions of service; nevertheless it is an Act of parliament vires of which could not be determined by the Service Tribunal except High Court. Similarly, the vires of Ehtesab Act, 2001 has also been challenged through these constitutional petitions, hence their nullification can only be sought by filing a constitutional petition before the High Court. Even otherwise, when a direction is sought against the respondents with regard to nullification of laws dealing with service matters, the only forum from where direction can be issued is the High Court. We, therefore, are of the considered view that while determining the question of vires of an Act of parliament, the High Court is the only forum before whom the remedy lies in shape of writ petitions, thus, the writ petitions are maintainable and we proceed to decide them on merit.
The vires of section 9, 10 and 11 of Special Powers Act, 2001 are challenged on the ground that these provisions of law create anomaly in view of section 4 of the Service Tribunal Act. Moreover the right of appeal to civil servants has been curtailed, as no appeal has been provided against an original order passed by a competent departmental authority. To have a correct perception of the matter under controversy, we feel it expedient to reproduce above mentioned provisions of Special Powers Act which are as under:-- "9. Representation and review:--(1) A person who has been dismissed or removed or compulsorily retired from service or reduced to lower post or pay scale or against whom any order has been made under section 3 by the competent authority, may, within fifteen days from the date of communication of the order, prefer representation to the Prime Minister or such officer or authority as the Prime Minister may designate; Provided that where the order has been made by the Prime Minister such person may, within the aforesaid period, submit a review petition to the Prime Minister.
(2) The prime Minister, or an officer or authority, as may be designated for the purpose by the.
Prime Minister, may, on consideration of the representation, review petition and any other relevant material, confirm, set aside; vary or modify the order in respect of which such representation or review petition is made within sixty days thereof.
[Provided that the Government may extend the said period whenever it deems appropriate." This proviso added by Act XII of 2002 dated 13.12.2002 10.Appeal:--Notwithstanding anything contained in any other law for the time being in force, any person aggrieved by any final order under section 9 may, within thirty days of the order, prefer an appeal to the Service Tribunal established under the AJ&K Service Tribunals Act, 1975 (XXII of 1975)
11.Act to override other laws:--The provisions of this Act shall have effect notwithstanding any thing to the contrary contained in the Civil Servants Act, 1976 (VI of 1976) and the rules made there under and any other law for time being in force.
The language used in section 10 of the Special Powers Act, 2001 shows that it is an absolute and unqualified provision of law. To put it in other words we can say that irrespective of any other law for the time being in-force, this provision of law shall prevail for the purpose provided in it. It has an overriding effect. This legal position suggests to say that a civil servant cannot have resort to section 4 of Service Tribunal Act, which provides right of appeal to a civil servant against an original order too. According to this provision of law, appeal is provided against a final order passed under section 9 of Special Powers Ad, 2001. It further means that right of appeal, available to a civil servant under section 4 of Service Tribunal Act, had been snatched from him. Similarly. section 11 of Special Powers Act has an overriding effect on any other law for the time being in-force in AJ&K. By virtue of this provision, all other laws relating service matters are kept in redundant position, so far as they are in-conflict with the purpose and intent of Special Powers Act, 2001. The position which, therefore, emerges out is that at one hand sections 10 and 11 of the aforesaid Act have been given overriding effect by keeping section 4 of Service Tribunal Act subservient to the said provisions and on the other side, respondents claim that sections 10 and 11 should be seen in view of section 4 of the Services Tribunal Act. Their claim is that by placing the said provisions of Special Powers Act, 2001 and section 4 of Services Tribunal Act in juxta position, the petitioners or any other civil servant has a .right of appeal against the original order passed by a departmental competent authority.
This argument, being merit-less, cannot be allowed to prevail for the reason that by giving overriding effect to sections 10 and 11 of Special Powers Act, 2001, the provisions of section 4 of Service Tribunal Act have practically become nonoperational. These provisions, thus, curtail the right of appeal to a civil servant and, as such, they run counter to the spirit of the Constitution, especially right to service, guaranteed under it. To put it in other way, we can say that when a right attach to service is refused or curtailed, it practically amounts to refusal of right to service.
There is yet another aspect of this case which is very important; section 10 does not provide right of appeal to the employees of the Courts; therefore, a class of civil employees have been deprived of their service right. Another factor which cannot escape the attention of this Court is that on one side, the Court employees are deprived of their legal right of appeal through section 10 of Special Powers Act, 2001, whereas on the other hand, section 4 of Services Tribunal Act undermines the independence of judiciary. The reason is that under section 46 of the AJ&K Interim Constitution Act, 1974, it is the High Court which supervises and superintendents the matters of subordinate judiciary; but an order relating to the terms and conditions of a Court employee, passed by his departmental competent authority, is subject to appeal before the Service Tribunal. This scheme of law, certainly jeopardises the independence of judiciary, guaranteed under the Constitution.
Sections 10 and 11 of Special Powers Act, 2001 and section 4 of the Service Tribunal Act, to the extent of Court employees, run counter to another provision of the Constitution i,e, section 49 which allows enactment of laws with regard to terms and conditions of civil servants in line with the spirit of the Constitution. The said provision i,e, section 49 is usefully reproduced hereunder:-- "The Services.--(1) Subject to this Act, the appointment of persons to, and the terms and conditions of service of persons in the service of Azad Jammu and Kashmir may be regulated buy law.
[(2) Until an Act of the Council in respect of persons, in the service of Azad Jammu and Kashmir employed in connection with the affairs of the Council, or an Act of the Assembly in respect of such persons employed in connection with the affairs of the Government makes provision for the matters referred to in sub-section (1), all rules and orders in force immediately before the commencement of this Act, shall continue in force and may be amended from time to time by the Council or, as the case may be, the Government.
The above mentioned provision of law would show that laws relating to 'the terms and conditions of service shall not offend Any provision of the Constitution. As stated earlier, these provisions are not in line with the Constitutional mandate, therefore, they need to be suitably amended so as to provide right of appeal to civil servants against an original order passed by a departmental competent authority. We therefore, hold that till the time the required amended is effected, overriding effect of section 11 of Special Powers Act, 2001 shall remain non-operational to the extent of right of appeal and any civil servant shall have right of appeal before Service Tribunal in view of section 4 of Service Tribunal Act.
Coming to the case of Court employees, we command that in order to uphold the independence of judciary, there should be a tribunal within the High Court to look into the validity of the orders passed in service matters of employees of judiciary. However, till the establishment of such service tribunal, the Court employees shall be entitled to right of appeal under section 4 of the Service.
Tribunal Act, irrespective of what has been provided under section 10 of Special Powers Act, 2001. It is further observed that under section 2(a) of Special Powers Act, 2001, the competent authority, with regard to Court employees, is not the Prime Minister or any person authorised by him. The competent authority for the employees of the Court is the appointing authority of such employees.
If the orders of competent' authority, in case of Court employees, are allowed to be subject to scrutiny by Services Tribunal, it would mean that order of the competent authority in case of Court employees is to be judged by the Service Tribunal which would further mean that authorities of the judiciary are subservient to Service Tribunal which definitely negates the concept of independence of judiciary, guaranteed by the Constitution. Reference may be had to a legal report (2002 SCMR 455) in which it is held by the Apex Court of the State that the High Court is vested with the authority to superintendent and control all the Courts which are subordinate to it and all laws in- force are to be enacted, read and interpreted under section 46 of the Constitution and not beyond that. It clearly shows that sections 9 and 10 of Special Powers Act. 2001 and section 4 of the Services Tribunal Act, to the extent of Court employees, are not in line with the spirit and command of the Constitution.
The controversy whether co-existence of Civil Servants Act and rules made thereunder, known as Efficiency and Discipline Rules, create anomaly in the Service structure and in this view of the matter, Special Powers Act, 2001 is liable to be struck down, has also been considered. It may be observed that Special Powers Act, 2001 is in fact a substitution of Efficiency and Discipline Rules, With few exceptions discussed in the preceding paragraph of this judgement. The other provisions of Special Powers Act and Efficiency and Discipline Rules, when put together, lead to the conclusion that Special Powers Act, 2001 is a reasonable and effective law to curb the corruption and corrupt practices. We are conscious of the fact that with the passage of time, evil of corruption has gone so deep in the society that it has refused to go away. So it was the need of the hour to legislate an effective law to root out the evil of corruption. This law deals with the terms and conditions of service of Government Servants and Corporation employees. We do not agree with the argument by the learned counsel for the petitioners that in view of pre-amble of this new law, it appears that it is not a law relating to the terms and conditions of service, for the reason that pre-amble of any law or constitution cannot.be allowed to pluck the other provisions of law embodied in the legislation. The pre-amble can be looked into and it helps resolve any controversy with regard to interpretation of any provision of law or Constitution. This new law provides a reasonable classification, as is evident from its pre-amble showing its application to persons from Government Service and Corporation service. A further classification has been made under section 3 of this Act which enumerates and categorises the persons in Government or Corporation service. Thus, the argument by the learned counsel for the petitioners that this new law does not provide reasonable classification, is without merit and is hereby repelled. The Special Powers Act, 2001 reasonably provides right of defence as well 'as right of hearing. Any category of employees mentioned in. this Act has been given full chance to defend the allegations levelled against them. There appears nothing except those provisions of law and question of plea bargain about which we have observed in the earlier part of the judgement or going to observe in the succeeding part of the judgement. While considering the question of co-existence of laws, Special Powers Act and Efficiency and Discipline Rules, it is found that the purpose and intent of new legislation like Special Powers Act, 2001, is the same as that of old law (E&D Rules). However, as sated earlier, the new law has been enacted in view of growing tendency of corruption in the society. It has been given overriding effect, as provided under section 11 of the Act. The provisions of this Act are effective irrespective of anything contrary contained in Civil Servants Act, 1976 and the rules made there under. It clearly means that Efficiency and Discipline Rules have become redundant in presence of new law. As we are going to issue proper direction about section 3(d) (5) and sections 10 & 11 of the Special Powers Act, 2001, the remaining provisions of this Act are neither irrational or unreasonable nor offend any Constitutional provision.
The provisions of Special Powers Act, 2001 have been given overriding effect on any other law for the time being in-force; but at the same time, no repeal clause about Efficiency and Discipline Rules has been provided in this Act, therefore, this creates a confusion in the scheme of law and this state of affairs genuinely creates apprehension in the mind of civil servants that they may be discriminated by the competent departmental authority while proceeding against them in service matters. To remove this confusion and anomaly in the service structure of AJ&K, we are of the opinion that in order to have a fair-play in the service matters, Efficiency and Discipline Rules, which are in redundant position, should be repealed by providing a repeal clause in Special Powers Act, 2001 with the direction to the respondents to suitably amend section 10 of the Special Powers Act, 2001.
The controversy about show cause notices, on the basis of plea bargain, has been considered in view of relevant provisions of Ehtesab Act, 2001 and Special Powers Act, 2001. The relevant provisions (section 16 and 28 of Ehtesab Act and Section 5(5) of Special Powers Act) of the aforesaid Acts are usefully reproduced hereunder:-- "16. Disqualification to contest Elections or to hold Public Office.-
(1) Where an accused person is convicted for the offence of corruption or corrupt practices as specified in the Schedule 1 or II or under section 11 of this Act, he shall stand disqualified for 21 years for seeking, or from being elected, chosen, appointed or nominated as a member or representative of any public office, or any statutory or local authority of the Government: Provided that any accused person who has availed the benefit of Section 28 of this Act shall also be deemed to have been convicted for an offence under this Act, and shall stand disqualified for 21 years as above.
(2) Any person convicted of an offence of corruption and/or corrupt practices as described at serial No,1 of the Schedule 1 shall not be allowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances or other financial accommodation by any bank or financial institution in the public sector, for a period of 10 years from the date of conviction.'
"28. Voluntary Return (Plea Bargaining).--(1) Where at any time whether before or after the commencement of trial the holder of a public office or any other person accused of any offence under this Act, returns to the Ehtesab Bureau the assets or gains acquired through corruption or corrupt practices: (a)if the trial has not commenced, the Chairman Ehtesab Bureau may release the accused; and (b)if the Court has taken cognisance of the offence or the trial has commenced, the Chairman may, with the approval of Court, release the accused.
'(2) The amount deposited by the accused with the Ehtesab Bureau shall be transferred to the Government or the concerned bank or financial institution, etc. within one month from the date of such deposit.
(3) Notwithstanding any thing contained in Section 16 or in any other law for the time being in- force where a holder of public office or any other person voluntarily comes forward to return the illegal gain made by him or loss caused by him to the state exchequer through corruption and corrupt practices the Chairman may accept the offer and after determination of the amount of illegal gain or loss caused, as the case may be, and its deposit with Ehtesab Bureau, discharge such person of all his. liabilities relating to the matter or transaction in issue."
Section 5(5) of Special Powers Act, 2001.
"Where a person who has entered into plea bargain under any law for the time being in-force, and has returned the assets or gains acquired through corruption or corrupt practices voluntarily, the inquiry shall not be ordered provided that show cause notice shall be issued on the basis of such plea bargaining to such person informing of the Action proposed to be taken against him and the grounds of such Action requiring him to submit reply within fifteen days of the receipt of the notice."
The examination of section 16 of Ehtesab, Act, 2001, would show that proviso to subsection (1) of section 16 provides a deeming clause which says that any person who has availed benefit under section 28 of the Act shall be deemed to be convicted for the purpose of disqualification to contest elections or to hold public office. Under section 16, both the persons who stand convicted under section 11 (through 'a regular trial) of the Act for any offence provided in schedule I or II of the Act and the person who has entered into plea bargain under section 28, are liable to be disqualified to contest elections or to hold public office for 21 years. It would further show that proviso to subsection (1) of section 16 provides conviction for a specific purpose. It is a deeming clause for the purpose of disqualification for elections or public office. It does not mean for any other purpose neither it is a conviction for an offence through a regular trial before a Court of law. It has nothing to do with the conviction of an accused through a regular trial before a Court of law. Normally a departmental competent authority, while dealing with the case of a civil servant, adopts the procedure of holding an inquiry through inquiry committee or inquiry officer, as the case may be, but in case of sentence through a Court of law, the legislature has allowed the competent authority to forgo the normal procedure before imposing any penalty provided under law. This is because the departmental competent authority cannot adjudge the validity of a Court order, except to impose penalty provided under service laws/rules. Therefore, the argument that conviction under proviso to subsection (1) of section 16 of Ehtesab Act would mean conviction for the purpose of Special Powers Act, 2001, is misconceived. Under subsection (5) of section 5 of Special Powers Act, 2001, the competent departmental authority, in case of plea bargaining, shall not order inquiry unless a show cause notice is served upon the civil servant. Under these provisions of law, the departmental authority, after reply by the civil servant, is authorised either to discharge the employee or to order the inquiry, as in case of other cases. Under the later case, the civil servant is entitled to avail full right of hearing. In case of an adverse order against him, he has right of appeal, as observed in the earlier part of this judgement. So, to us, there is nothing in law like subsection (5) of section 5 of Special Powers Act, 2001 that a civil servant, in case of plea bargaining, is deemed to be convicted for the purpose of law governing his terms and conditions of service. However, we feel it advised to dilate upon section 16 and 28 of Ehtesab Act, 2001. As stated earlier, section 16 provides a punishment apart from conviction order by a Court of law on the basis of deeming clause like proviso to subsection (1) of the said section, therefore, it has to be seen that whether plea bargain before an executive authority can be accepted as conviction under law. Under section 28 of Ehtesab Act, 2001, several eventualities have been dealt with. When a person, having apprehension in his mind, voluntarily comes forward and offers return of what he has illegally gained through corruption or corrupt practices, the Chairman of the Bureau, may accept his offer and after determination of the amount of illegal gains or loss caused to the State exchequer, may discharge him relating to the matter or transaction in issue. In case of inquiry or investigation, the Chairman is empowered to release the accused but where the Court has taken cognisance or the matter is under trial before the Court, the accused can be released with prior approval of the Court.
The perusal of entire section would reveal that plea bargaining before an executive authority (Chairman) and the release order passed by him is deemed to be a conviction order under proviso to subsection (1) of section 16 of Ehtesab Act, 2001. We are afraid to accept' such scheme of law which is against the settled norms of justice. Plea bargaining, though slightly different from civil contract or an agreement for it is somewhat criminal in nature; but the fact remains that it should be out of free will and consent, without compulsion, duress and coercion. The Chairman of Ehtesab Bureau is no more than a head of an institution; his job is to hold inquiry and carry out investigation for the offences mentioned under schedule I or II of the Act, therefore, by no stretch of imagination, he can be equated with the status or function of a Court of law. The element of compulsion, coercion and duress cannot be ruled out when the matter is before an investigating agency. So, what we want to say is that plea bargaining, if rained before the Chairman Ehtesab Bureau during inquiry or investigation, i,e, before the trial commenced or Court has taken cognisance, release order cannot be accepted as conviction order, unless approved by the Court. There should be an offer and acceptance in black and white showing signatures of both the parties and having done so, the Chairman should determine the amount payable on the part of accused. When amount is determined, the matter should be referred to Ehtesab Court and the Court, after its satisfaction, should pass a speaking order showing agreement as voluntarily signed by the accused. This is what natural justice demands and only in this way, the Court order can be made basis of conviction for the purpose of proviso to subsection (1) of section 16 of Ehtesab Act, 2001 and plea bargaining for the purpose of subsection (5) of section 5 of Special Powers Act, 2001. In case the above stated requirement is fulfilled, only then it can be accepted as plea bargarning and could be made basis of show cause notices issued to the petitioners herein, who are aggrieved by the notices under section 5(5) of Special Powers Act, 2001. We respectfully subscribe to the view taken in Syed Ali Nawaz Shah and two others' case (PLD 2003 SC 837) in which it has been held that policy of law is that plea bargaining must be executed in writing and in plan and expressed words, showing intention to avail the benefit of section 28 of Ehtesab Act, 2001 which should be voluntarily- and free of the element of threat, pressure and compulsion etc. The agreement of the accused with prosecution must contain the essential element of offer and acceptance in expressed words and the Court must pass a speaking and proper order of its approval. Similarly in case of disqualification to contest elections or to hold public office, the punishment provided for disqualification is too harsh and is required. to be curtailed down to the extent of ten years, as has been done in Pakistan.
The petitioners have also challenged the vires of sections 06 and 07 of Ehtesab Act, 2001 on the ground that these provisions of law are beyond the legislative competence of AJ&K Legislative Assembly. These provisions -of Ehtesab. Act provide procedure for appointment of Chairman and Deputy Chairman of Ehtesab Bureau. They authorise the President of the State of Azad Jammu and Kashmir to appoint Chairman or Deputy Chairman in consultation with the Chairman of Azad Jammu and Kashmir Council. Any Chief Executive of Pakistan, by virtue of his office, is the Chairman of AJK Council, as provided under AJ&K Interim Constitution Act, 1974. Both, the President of the State of Azad Jammu and Kashmir and the Chairman of AJK Council, are the authorities recognised by the Interim Constitution Act, 1974. They deal with those affairs of Azad Jammu and Kashmir which they are permitted under the Constitution. To have correct perception of law, while resolving the controversy raised at bar, we feel it advisable to reproduce the relevant provisions of Ehtesab Act, 2001 and the Interim Constitution Act, 1974 which help resolve the controversy. These provisions of law are section 4 (n)(iii) and (t), section 6 and 7 of Ehtesab Act and section 2 and 31 of the AJ&K Interim Constitution Act, 1974, which are as under:-- Sections 4(n)(iii) and 6 and 7 of Ehtesab Act.
"4 (n)(iii) is holding, or has held, an office or post in the services of Azad Jammu and Kashmir or any post or any service in connection with the affairs of the State, or of a local council constituted under any State law relating to the constitution of local councils, or in the management of corporations, banks, financial institutions, firms, concerns, undertakings or any other institution or organisation established; controlled or administered by or under the council and the Azad Government of the State of Jammu and Kashmir, other than a person who is a member of any of the armed forces of Pakistan, or for the time being is subject to any law relating to any of the said forces, except a person who is, or has been a member of the said forces and is holding, or has held, a post or office in any public corporation, bank financial institution, under taking or other organisation established, controlled or administered by or under the Azad Government of the State of Jammu and Kashmir or any Board, team, Task force, authority or any such other body known by any name set up by the president, the Government or the council, including any post in any Development Authority or a Transport Authority.
(t). "Service" means the service of Azad Jammu and Kashmir as defined in the Interim Constitution Act, 1974."
"6 Chairman of the Ehtesab Bureau.--(1) There shall be a Chairman of the Ehtesab Bureau to be appointed by the President after consultation with the Chairman of the Azad Jammu and Kashmir Council.
"7 Deputy Chairman of the Ehtesab Bureau.--(1) There shall be a Deputy Chairman appointed by the President in consultation with the Chairman of the Azad Jammu and Kashmir Council.
(2) The Deputy Chairman may be removed by the President after consultation with the Chairman of he Azad Jammu and Kashmir Council."
Section 2 and 31 of the AJ&K Interim Constitution Act, 1974.
"2. ----- - ----Service of Azad Jammu and Kashmir' means any service, post or office in connection with the affairs of Azad Jammu and Kashmir, including the Council, but does not include service as Chairman of the council, President, Speaker, Deputy Speaker, Prime Minister, Minister, Federal Minster I-charge of the Council Secretariat or Advisor appointed under Section 21, [Parliamentary Secretary, Advisor to the Prime Minister] or a member of the Assembly or member of the Council----;"
"31. Legislative Powers.--(1) Subject to the succeeding provisions of this Section, both the Council and the Assembly shall have the powers to make laws-- (a)for the territories of Azad Jammu and Kashmir; (b)for all State.subjects wherever they may be; and (c)for all officers of the council or as the case may be, the Government, wherever they may be.
(2) Subject to sub-section (3).
(a) The council shall have exclusive power to make laws with respect to any matter in the council legislative List set out in the Third Schedule, hereinafter referred to as the Council Legislative list; and
(b) The Assembly shall, and the Council shall not, have power to make laws with respect to any matter not enumerated in the council legislative list.
The perusal of section 4(n)(iii) of the Ehtesab Act, 2001 would show that any person who is holding an office or post in the service o Azad Jammu and Kashmir or any post or any service in connection with the affairs of the State, is holder of public office. Under section 4(t), the definition of service has been provided which means the service of AJ&K, as defined in the Interim Constitution Act, 1974.
Section 2 (definition clause of Interim Constitution Act, 1974) postulates that service of Azad Jammu and Kashmir means any service, post or office in connection with the affairs of Azad Jammu and Kashmir, including the Council. Section 31 of the Constitution provide legislative powers of AJ&K Assembly and AJK Council. Both, the council and the Assembly, are competent to make laws for the territory of Azad Jammu and Kashmir, for all the state subjects wherever they may be and for the officers of the council or as the case may be and the Government officers wherever they may be. It further envisage that the council has exclusive powers to make laws with respect to any matter in the council legislative list provided under third schedule of the Interim Constitution Act, 1974. It further goes on to say that the council is not competent to make laws, except the subjects provided in the council legislative list; meaning thereby that the legislation with respect to all other matters, is within the legislative competence of AJ&K Assembly. Thus, the above stated provisions of Ehtesab Act, 2001 and the Constitution, when put together, lead to the conclusion that all those persons who are in service of Azad Jammu and Kashmir or hold any post or office in connection with the affairs of the State of Azad Jammu and Kashmir, including the council, are subject to accountability by the Ehtesab Bureau of Azad Jammu and Kashmir. The employees of the council (except the authorities excluded under the Constitution) are, therefore, holders of public office for the purpose of Ehtesab Act, 2001. If they are found involved in corruption and corrupt practices, they can be held accountable. So the AJ&K Legislative Assembly is competent to make laws with respect to the Government Service, the Corporation Service and the council service; so far it relates to the affairs. of Azad Kashmir, the objection about its incompetence to enact section 6 and 7 of Ehtesab Act, 2001, is merit less. The AJ&K Ehtesab Act, 2001 is a law competently made by the AJ&K Legislative Assembly. It provides a complete mechanism to eradicate corruption and corrupt practices, committed by those who are in service of AJ&K or in service in connection with the affairs of AJ&K, as provided under the Interim Constitution Act, 1,974. The Chairman and the Deputy Chairman of. Ehtesab Bureau are the authorities of AJ&K Government and are in service of AJ&K Government. Their job is to investigate and inquire the complaints about corruption and corrupt practices in AJ&K and sent a reference to Ehtesab Court for proper adjudication. Therefore, to provide a method of their appointment, surely and squarely comes within the legislative competence of legislative Assembly. It is not a legislation into the affairs of council nor is included in the council legislative list. Under section 31 of the AJ&K Interim Constitution Act, 1974, the Azad Jammu and Kashmir Legislative Assembly is competent to make laws about all those matters not included in the council legislative list. The President of the State of Azad Jammu and Kashmir and the Chairman AJK Council are the authorities recognised by the Interim Constitution Act, 1974, hence to enact a law which puts a constitutional body in respect, of appointment of Chairman and Deputy Chairman under the obligation to consult with another constitutional body cannot be said to be beyond the legislative competence of Azad Jammu and Kashmir Assembly, specially so when employees of the council, who are in service in connection with the affairs of the State of Azad Jammu and Kashmir are also accountable under Ehtesab Act, 2001. It is a law which inter-alia deals with the appointment of the employees of Azad Kashmir Government (Chairman and Deputy Chairman) and we found nothing wrong on the part of AJ&K Assembly while enacting the same. The conclusion, therefore, is that it was within the competence of Azad Jammu and Kashmir Assembly to enact sections 6 and 7 of Ehtesab Act, 2001.
Initially the writ petition titled Muhammad Tariq Ameen and others was admitted for regular hearing and show cause notices, issued to the petitioners, were suspended by restraining the respondents from taking action against the petitioners on the basis of plea bargaining. Meanwhile, writ petitions No,42/2004, 111/2004, 531/2004, 4/2006, 186/2006, 217/2006 and 391/2006 were also brought in the Court which were admitted for regular hearing without examining the fact that the proceedings against the petitioners were not initiated on the basis of plea bargaining under Ehtesab Act, 2001. This was perhaps done on the arguments by the learned counsel for the petitioners that identical proposition was raised in these petitions too. Thus, subject to what has been concluded hereinafter, the provisions of Special Powers Act, 2001 are found to have been enacted reasonably with no legal flaw in them. The case of the petitioners in writ petitions Nos,391/2006, 186/2006, 217/2006, 4/2006, 531/2004, 111/2004 and 42/2004 is different and we find no illegality in the orders impugned before the Court.
The relevant law has been discussed in the judgement, however, the rest of case law being not helpful in the instant case, need not to be dilated upon.
The controversy raised in the petitions, in the light of what has been discussed in this judgement, entails following result:--
1. The writ petitions Nos, 385/2003, 396/2003, 388/2003, 395/2003, 15/2004, 422/2004 and 412/2003, challenging show cause notices, on the basis of plea bargain, are allowed, consequently, show cause notices issued to the petitioners are hereby quashed; 2.The writ petitions Nos, 391/2006, 186/2006, 217/2006, 4/2006, 531/2004, 111/2004 and 42/2004, in which show cause notices have not been issued on the basis of plea bargain under Ehtesab Act, are disallowed.. However, the petitioners shall have the right of appeal in view of section 4 of Service Tribunal Act, till the time section 10 of Special Powers Act, 2001 is suitably amended by the respondents;
3. The provision like section 10 of Special Powers Act, 2001, is struck down and the respondents are directed to suitably amend it in view of observation of this Court. The overriding effect of section 11 of Special Powers Act, 2001 shall remain under suspension till the time section 10 is suitably amended and any civil servant, aggrieved by the order of departmental authority, shall have the right of appeal under section 4 of Service Tribunal Act; 4.The quantum of punishment, provided under section 16(1) of Ehtesab Act, 2001, is curtailed to 10 years and the respondents are directed to amend it. Similarly the proviso to subsection (1) of Section 16 and 28 of the Ehtesab Act, 2001 are hereby struck down with the direction that respondents shall amend them in view of this Judgement.
5. Till the time proviso to subsection (1) of section 16 and 28 of Ehtesab Act, 2Q01 are amended, the operation of section 5(5)of Special Powers Act, 2001, shall remain under suspension.
6. The respondents are directed to provide repeal clause about Efficiency and Discipline Rules in Special Powers Act, 2001, as the said Rules serve no purpose in presence of Special Powers Act, 2001.
The petitions stand disposed of in the manner indicated above. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.