ALI AKBAR QURESHI, J. --- This order shall dispose of Writ Petition 11371 filed by petitioner Raja Asghar All to assail the validity of order dated 15.11.2007 purported to have been passed by respondent No. 1 withdrawing the order dated 10.10.2007.
On 18th of June, 1973 petitioner is stated to have joined Sargodha Improvement Trust and eventually promoted as Senior Accounts Officer and continued to discharge his duties from 1995 to 23.6.2000 until the said post was abolished. Being aggrieved, petitioner invoked the Constitutional Jurisdiction of this Court through Writ Petition No. 18081 of 2000, but withdrew the same on account of the assurance emanating from letter dated 12.9.2000 to the effect that his case for release of salary in BPS 19 was being referred to Divisional Director Local Fund Audit. It is alleged that notwithstanding unequivocal undertaking petitioner's grievance was not redressed which constrained the petitioner to file another writ petition bearing No. 2476 of 2003, and eventually, petitioner was ordered to be placed at the disposal of DG/RDA with direction to adjust the petitioner against the vacant post of Senior Accounts Officer vide order dated 27.5.2004 purported to have been issued by the Secretary Housing Urban Development & Public Health Engineering Department, but on account of non-issuance of NOC, petitioner could not report to join RDA Rawalpindi. Contemporaneously, petitioner also moved the departmental authorities in this regard and ultimately succeeded in getting the post of Senior Accounts Officer BPS-19 restored with all benefits vide order dated 10.10.2007 of the Chairman, Sargodha Improvement Trust Sargodha, and placed at the disposal of respondent No. 1. It is alleged that said order was endorsed to the Additional Registrar of this Court affirming the redressal of petitioner's day viz. 11.10.2001 said petition was fixed and heard by this Court and representative of the respondents submitted copy of order dated 10.10.2007 and thus, the same was disposed of in the terms incorporated therein.
Consequently, on 11.10.2007 petitioner resumed his duty and his joining report was forwarded for release of his salary vide letter dated 5.11.2007.
3. It is alleged that petitioner was called by respondent No. 2 in office and asked to submit relevant bills with regard to period from year 2000 to 2007, and directed the Head Clerk and Accountant to calculate outstanding amount in favor of the petitioner. Subsequently, respondent No. 2 directed the petitioner to surrender his outstanding amount to him approximately Rs. 17 lacs by signing blank cheque in favor of respondent No. 2. And on the refusal of the petitioner to do so, he was threatened with dire consequences culminating in impugned order dated 15.11.2007.
4. It is the case of the petitioner that order dated 10.10.2007 was implemented in letter and spirit and the petitioner discharged his duties for more than a month without any complaint or grievance: Adds that before passing the order impugned dated 15.11.2007, neither any charge-sheet was served nor any inquiry conducted condemning the petitioner unheard in utter 'defiance and deviation of the settled principles of audi alteram partem and locus poenitentiae. On the strength of 1990 SCMR 1414, learned counsel canvasses that order impugned is liable to be set aside on the sole ground that the authority who passed the order dated 10.10.2007 was functus officio to review its own order. Adds that petitioner suffered a lot through the investigations by NAB, Anti-Corruption Establishment and the department itself right from year 2000 to 2007. In nutshell, learned counsel says that order impugned is not only vexatious but predominantly contemptuous which speaks volume of ulterior motives being in direct conflict with the law laid down in the case reported as 2002 SCMR 1124.
5. With reference to Writ Petition No. 2416/2003, learned counsel reiterates on the contents of the legal opinion dated 19.6.2003 to the effect that on the basis of departmental record, the post of Senior Accounts Officer was abolished without any show and that petitioner had withdrawn earlier Writ Petition No. 18081/2000 on the assurance of the Chairman Sargodha Improvement Trust and that even the Divisional Director Local Fund Audit approved petitioner's case, hence, decision to abolish the post of Senior Accounts Officer was invalid and inoperative qua the rights of the petitioner.
6. At one point of time, legality of questioned F.I.R. No. 530, dated 19.7.1997 registered with Police Station City Sargodha for offences under Sections 409/420/468/471, P.P.C. Against the petitioner and other co-accused namely Zafar Hussain Bajwa was challenged before this Court in Writ Petition No. 27308 of 2007 which was disposed of on 18.1.2000 due to droppage of inquiries against the petitioner, as the charges did not prove against them in the said criminal case.
7. Furthermore, by passing the impugned .Order, respondent No. 2 pre-empted and transgressed the domain of the departmental inquiry committee constituted through resolution No. 11, dated 14.2.2002 to deal with the issues with regard to demotion and re-instatement of the employees of respondent No. 1. With regard to the observations as contained in the order impugned with reference to letter dated 8.11.2003, it is submitted that detailed inquiry was conducted by Regional Director Anti-Corruption Sargodha and ultimately dropped by the competent authority vide order dated 30.5.2005. In addition thereto, learned counsel also referred to decision made in favor of the petitioner by the Chairman Re-instatement Demotion and Departmental Committee Sargodha improvement Trust vide order dated 24.8.2004 qua the said accusations.
8. I have heard the arguments raised by learned counsel for the parties and gone through the chequred history and the facts prevalant emerging from the record of the case.
9 The main thrust of the learned counsel representing the petitioner was that the order dated 10.10.2007 whereby the petitioner was reinstated in service with all back benefits was wrongly and illegally withdrawn by means of order impugned dated 15.11.2007 in flagrant violation of the principles of natural justice without issuance of any notice, holding of inquiry or providing any type of opportunity of hearing and thus the same is not sustainable in law and liable to be set aside on this score alone. To substantiate his assertions, learned counsel relies on (1997 SCMR 1552) The Secretary to the Government of the Punjab through Secretary, Health Department, Lahore and others v. Riaz-ul-Haq; (2007 SCMR 1451) Asim Khan and others v. Zahir Shah and others (2007 PLC
(CS) 334) Pakistan international Airlines Corporation through MD Karachi v. Nadeem Murtaza Khan; (1994 SCMR 2232) Mrs. Anisa Rehman v. PIAC and another and (2004 PLC (CS) 802) Arshad Jamal v. NWFP Forest Development Corporation and othefs.
10. Conversely learned counsel for the respondent vehemently argued that reinstatement of the petitioner has been withdrawn to consequence of the serious nature of charges of corruptiqn and misappropriation categorically finds mention in the order impugned itself. Adds that since factual inquiry is involved in the facts and circumstances of the case, hence, writ petition was not maintainable.
11. Considering the case from every angle, an admitted fact remains on record that petitioner was reinstated in service by the competent authority on 10.10.2007 through an elaborate order and after a couple of days said order was withdrawn by the same authority, of course, without providing any opportunity of hearing and to rebut the charges by the petitioner. Strangely enough, on the one hand serious allegations of corruption and misappropriation are being levelled against the petitioner, but quite interestingly neither any show-cause notice, nor any inquiry was conducted, hence; the order impugned is in contravention of the principle of natural justice. It is a settled principle of law that none should be condemned unheard and specially those cases involving controversial and disputed questions of facts; could only be resolved by adducing evidence before arriving at a just and fair conclusion.
12. When questioned as to whether respondent No. 2 was vested with any power to review his own order and penalize the petitioner on the basis of charges which were inquired into more than twice and ultimately dropped, learned counsel could not furnish any satisfactory explanation and could not provide any statutory provision in this regard. In fact, respondent No. 2 by means of impugned order sought to review his own earlier order dated 10.10.2007 without any express provision of law to review his order. In this regard, this Court is enlightened and fortified by the law laid down, by the apex Court in the case reported as PLD 1970 SC 1 (Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others) and applying the same on the facts and circumstances emerging from the lis at hand, it becomes clear as crystal that after passing order dated 10.10.2007 respondent No. 2 had become functus officio to proceed in the matter subsequently, and thus the impugned order being coram non judice is declared to have been passed without any lawful authority and jurisdiction. In addition thereto, this Court is also fully cognizant of the fact that repeatedly unequivocal undertakings were made before this Court in the earlier round of litigation, but the course of action suggested never adhered to in letter and spirit by the functionaries concerned. In addition thereto, charges being reiterated and forming part of the impugned order .Against the petitioner, were thoroughly thrashed and extensively dealt with more than twice by various agencies including the NAB and the Anti- Corruption Establishment and the department itself, and ultimately the inquiry proceedings were dropped by the competent authority as the charges remained unproved. Hence, the one and the only conclusion that can be drawn is that petitioner was being victimized and proceeded against in a malicious and vexations manner by respondent No. 2, with no lawful authority and jurisdiction.
13. For the foregoing facts and reasons, this Court is fully convinced that petitioner is being vexed twice and his recurring victimization should now cease to exist, hence, to ensure safe dispensation of justice, it is a fit case for interference and invalidation of the impugned order with the consequence that by accepting this petition, I set aside the order impugned dated 15.11.2007; declaring it to have been passed in a mala fide manner, without lawful authority, jurisdiction and consequently of any legal effect. " in the terms indicated ibid" .