1. ' The petitioner, Mufti Muhammad Sharif Sarki, who was notified as Chairman District Zakat and Ushr Committee, Jacobabad, vide Notification No, GAZ/Sindh/A.A-G./3(660)/2006 dated 11-1-2008 has preferred this Constitutional Petition to challenge the two subsequent Notifications dated 25- 7-2008 issued by the Secretary Zakat, Government of Sindh, with the approval of Chairman, thereby exercising powers under subsection (3)(e) of section 21 of Zakat and Ushr Ordinance, 1980 (hereinafter referred to as the Ordinance, 1980) by one Notification the Chairman recalled/withdrew the above referred earlier Notification dated 11-1-2008 to the extent of petitioner any by another Notification under section 16(4)(5) of the Ordinance, 1980, he nominated the respondent No.4, to hold the office of Chairman District Zakat and Ushr Committee, Jacobabad, for the unexpired term, as provided in subsection (10) to section 16 of the Ordinance, 1980.
2. ' In short, the grievance of the petitioner is that in this regard the whole exercise undertaken by the Chairman Provincial Zakat Council is patently illegal being in violation of the mandatory provisions of the Ordinance, 1980, inasmuch as under section 21(3)(e) of the Ordinance the Chairman or the Provincial Council had no authority to remove the petitioner from the office of Chairman District Zakat and Ushr Committee and similarly the Chairman had no authority under section 16(4)(5) of the Ordinance to nominate the respondent No,4 as Chairman District Zakat and Ushr Committee for the unexpired term of Chairman, as provided in subsection (10) to section 16 of the Ordinance.
3. Further case of the petitioner is that respondent No,4 being admittedly involved in political activities and affiliated with a political party is not qualified to hold this office, but this aspect of the case was also overlooked at the time of his nomination.
4. ' Respondent No,1 in their parawise comments have not denied the removal of petitioner from the office of Chairman District Zakat and Ushr Committee, Jacobabad, under the orders of the Chairman Provincial Zakat Council and appointment of respondent No,4 in his place by the Chairman Provincial Zakat Council. However, they have attempted to justify such action of the Chairman on the plea that petitioner was involved in committing misappropriation of funds.
5. ' Respondent No,4 in his separate reply has disputed the claim of the petitioner about his ineligibility to hold the office of Chairman District Zakat and Ushr Committee, Jacobabad and contended that earlier he had resigned from the membership of District Council Jacobabad, therefore, his subsequent nomination is valid.
6. ' Mr. M. M. Aqil learned counsel for the petitioner after reiterating the relevant facts as detailed in the petition, vehemently contended that the whole exercise of the Chairman Provincial Zakat Council resulting in removal of the petitioner from the office of Chairman District Zakat Council, Jacobabad, and appointment of respondent No,4 in his place is clear violation of mandatory provisions of the Ordinance, 1980, thus liable to be declared as such. He contended that the office of Chairman District Zakat Committee was for a fixed tenure of three years and specific procedure for his removal was provided under the statute whereby only the Central Council was competent to take such final step per amendment vide Finance Act XII of 1994, therefore, no arbitrary powers could be exercised by the Chairman or even the Provincial Council for the removal of the petitioner from the office. But in the instant matter neither a Show-cause notice nor an opportunity of hearing was given to the petitioner before taking such illegal and coram non judice action against him. As to the appointment/nomination of respondent No,4 in place of the petitioner as Chairman District Zakat Council, Jacobabad, the learned counsel again made reference to the provisions of section 21(1) of the Ordinance and subsequently inserted subsection (3)(a) in it to fortify his submission that from no stretch of imagination the arbitrary action of respondent No,3 can be protected. In support of his submissions, he placed reliance on the following cases:--
(1) Allauddin Akhtar v. Government of Punjab (1982 CLC 515).
(2) Hadia and others. v. EDO Education and others (2007 PLC (CS)703).
(3) Shabbir Ahmed v. Government. Of Sindh (2002 PLC (CS) 233).
(4) Sher Afzal Khan v. Federation of Pakistan (2003 PLC (C$)736).
(5) Dr. Muhammad Arslan v. Chancellor Quaid-e-Azam University, Islamabad. (2004 SCMR 1419).
(6) Ch. Muhammad Bux v. Government of Punjab (PLD 1989 Lah. 175).
(7) Prof. M.A. Saeed v. Secretary Education Punjab (1992 PLC (CS) 259).
(8) G.M. Malik v. Province of Punjab (1990 CLC 773).
(9) Dr. Aftab Ahmed v. University of Engineering & Technology (2005 PLC (CS) 80).
(10) Nasir Trading Company v. Provincial Transport Authority Balochistan (PLD 1979 Quetta 45).
7. ' In the cases at Serial Nos. 1 to 9, in substance, it was held that if the appointment of a person is made against a tenure post provided by the Statute, he cannot be removed before the expiry of such period on the principle of locus ponetentia, except when the procedure prescribed by the Statute is strictly adhered to and a fair opportunity of hearing is afforded to him.
8. ' In the case at Sr. No,10 it was held that there is much distinction between the exercise of authority by some individual officer of the Authority and the Authority itself therefore, when law requires that some decision is to be taken by the Authority, then an individual officer cannot take such decision by exercising such authority.
9. ' Mr. Masood Noorani, learned counsel for the respondents 1 to 3 has made reference to the counter-affidavit submitted on behalf of respondent No,4 and contended that there were several complaints against the petitioner upon which drastic step for his removal from the office of the Chairman District Zakat and Ushr Committee, Jacobabad, was taken by the Chairman Provincial Zakat Council, and in this regard no exception can be taken to protect the misconduct of the petitioner. He further contended that in case this Court comes to the conclusion that the procedure prescribed by law was not followed for this purpose, respondents Nos.2 and 3 could be directed to conduct an inquiry instead of removal of the respondent No,4 and reinstatement of the petitioner in his office.
10. ' Mr. Akhtar Mahmud, learned counsel for respondent No,4 has placed on record copy of minutes of the 39th meeting of Provincial Zakat Council held on 9-8-2008 to show that under Item No,10 of the Agenda earlier action of the Chairman Provincial Zakat Council was accorded post facto approval by the Provincial Zakat Council thus no exception can be taken in this regard. He further challenged the maintainability of the petition due to the availability of alternate remedy under subsection (7) of section 21 of the Ordinance, 1980 which provides for review of order by the Central Zakat Council.
11. The learned counsel also disputed the claim of the petitioner about political affiliation of respondent No,4 and referred his counter affidavit to show that the respondent No,4 has disassociated himself from the Membership of District Council Jacobabad on the date of his nomination as Chairman District Zakat Ushr Committee and thus was not holding any other public office at the time of appointment, which may be considered as his disqualification to hold the office of Chairman District Zakat and Ushr Committee, Jacobabad.
12. ' We have carefully considered the submissions of the learned counsel and perused the material placed on record. Facts of the case insofar as the appointment of the petitioner as Chairman of Provincial Zakat Council Jacobabad vide Notification dated 11-1-2008, for a term of three years; his subsequent removal from the office through notification dated 25th July, 2008 with the approval of the Chairman Provincial Zakat Council; nomination of respondent No,4 in his place for the un- expired term by another notification of the same date by the Chairman Provincial Zakat Council are not disputed. Since the learned counsel, during the course of their arguments, have referred and relied upon section 16(4)(5) (6) and sections 21 (1)(3) 3A(4) and (7) of the Ordinance, 1980, it will be advantageous to reproduce the same as under:-- "16. District Zakat and Ushr Committee.---(1) In each district, a District Zakat and Ushr Committee, in the Islamabad Capital territory, the Islamabad Zakat and Ushr Committee and in Karachi, Karachi City District Government Zakat and Ushr Committee shall be constituted by the Provincial Council concerned.
13. (2).........................................
14. (a).........................................
15. (b)........................................
16. (c).........................................
17. (d).........................................
18. (e)........................................
19. (4)The Chairman shall be nominated by the Provincial Council and the members shall be nominated by the Provincial Council in consultation with the Chairman: ' Provided that the Chairman shall be an adult Muslim who ordinarily resides in the district and the member from a Tehsil, taluqa or sub-division shall be an adult Muslim who ordinarily resides in that tehsil, taluqa or sub-division: ' Provided further that the Chairman and members of the District Committee shall be the persons who are of good moral character and are not commonly known as persons who violate Islamic Injunctions and are of financial integrity and do not engage in political activities.
20. (5)The District Committee so constituted shall be duly notified by the Provincial Council concerned.
21. (6)The Chairman and members of the District Committee, not being an ex-office member, shall hold office for a term of three years and shall be eligible for re-appointment.
22. ' Provided that in the event of delay in the constitution of the new Committee under subsection (3), the Provincial Council may ask a District Committee to continue to function for a period not exceeding six months after the expiry of the term of its office.
23. (7).........................................
24. (8).........................................
(9) Any vacancy in the office of Chairman or member, other than an ex-officio member, shall be filed by the nomination, in accordance with subsection (4), of a person qualified to hold the office.
(10) The Chairman or member nominated under subsection (9) shall hold office for the unexpired term of his predecessor. (11)
25. ' Section 21(1) (3)(3A)(4) and (7) Power of Suppression and
(1) If the Provincial Council, in the case of a District Committee, and the District Committee in the case of a Local Committee, is of the opinion that a Committee constituted under this Ordinance.
(a) is unable to discharge or persistently fails in discharging its duties; or
(b) is unable to administer its affairs; or
(c) acts in a manner contrary to public interest; or
(d) otherwise exceeds or abuses its powers;
(e) has a majority of members who are not pious Muslim or who are engaged in political activity.
26. ' The Provincial Council or, as the case may be, the District Committee may, by a notification, declare the concerned committee to be superseded for such period not exceeding one year as may be specified in the notification: ' Provided that the period of supersession may, if the provincial council or the District Committee considers it necessary to do so, he extended, beyond a period of the year.
27. (2)...................................................................................
(3) If Provincial Council, in the case of District Committee, and the District Committee, in the case of Local Committee is of the opinion that the Chairman or a member of a Committee constituted under this Ordinance--
(a) was at the time of this selection, election or nomination-
(i) not a pious Muslim;
(ii) not an adult;
(iii) not a resident of the area within the jurisdiction of the Committee;
(iv) an undercharged insolvent.
(v) Not of sound mind; or
(vi) Engaged in political activity,
(b) has been, during the period of three years preceding the date of his selection, election or nomination;
(i) ordered to execute a bond under section 108, 109 or 110 of the Code of Criminal Procedure 1898 (Act of 1898); or
(ii) convicted for an offence involving moral turpitude; or
(iii) declared goonda under the law relating to the control of goondas;
(c) has, after his selection, election or nomination, incurred any of the disqualifications referred to in sub-clause (i), (iii), (iv), (v) or (v) of clause (a) (i), (ii) or (iii) of clause (b);
(d) has, without reasonable excuse, absented himself from three consecutive meetings of the Committee;
(e) has been guilty of abuse of power or of misconduct in the discharge of his duties as Chairman or member, or been responsible for any loss (misapplication, misappropriation or misuse) of any money or property of the Committee; or
(f) has become physically disabled or unable on any Court from performing functions as Chairman of member, the Central Council, in the case of a District Committee, in the case of Local Committee, may by a resolution, remove such Chairman or member from office.
28. (3A) If, after such inquiry as may be considered necessary the Central Council, in the case of a District Committee, or the District Committee in the case of a Local Committee, is of the opinion that the Chairman or a member of Committee or an employee assigned to work with a Committee on as institution receiving Zakat Funds under this Ordinance, was guilty of misconduct in the discharge of his duties, or is responsible for the loss, misapplication of misuse of Zakat Funds, the Central Council or as the case may be the District Committee shall initiate criminal proceedings against such Chairman, member, person or institution."
(4) When the Chairman or member of a Committee is removed from, or otherwise cases to hold office, the vacancy in the office of such Chairman or member shall be filled within such time as the Central Council, in the case of a District Committee, and the District Committee, in the case of Local Committee may determine, by the election, selection or nomination, as the case may be, in accordance with the provisions of this Ordinance, of a person qualified to hold the office.
29. (5)..................................................................................
30. (6)..................................................................................
31. (7)The Chairman or a member of a Committee superseded under subsection (1) or a Chairman or member removed from office under subsection (3), may, within such time, and in such from and manner, as may be prescribed, apply to the Central Council for a review of its decision; and the decision of the Central Council in such review, given after giving to the applicant an opportunity of being heard, shall be final and shall not be called in question before any Court or other authority.
32. ' A bare reading of the above provisions of the Ordinance, 1980, go to show that the Chairman District Zakat Council is to be nominated by the Provincial Zakat Council while members of District Zakat Committee are to be nominated by the Provincial Zakat Council with the consultation of the Chairman; 2nd proviso to subsection (4) provides that the Chairman and Member of the District Committee shall be the persons who are of good moral character and are not commonly known as persons, who violate Islamic Injunctions and are of financial integrity and do not engage in political activities. Subsection (5) deals with the issuance of Notification of District Committee by the Provincial Council; subsection (6) provided fixed term of three years for members and Chairman District Zakat Committee, with further eligibility of reappointment; subsection (9) deals with the filling of the vacancy of Chairman or member by nomination in accordance with subsection (4) and; subsection (10) provides for the term of the office of Chairman or member nominated under subsection (9) for the un-expired term of his predecessor. Further section 21 subsection (1) of the Ordinance deals with the powers of suspension. It provides that if the Provincial Council, in the case of Local Committee, and District Committee in the case of Local Committee, is of the opinion that a Committee constituted under this Ordinance is disqualified under subsection (1)(a) to (e) of section 21 of the Ordinance, 1980, then the Provincial Council in the case of District Committee may by way of Notification suspend the said Committee for a period not exceeding one year which may be specified in the Notification and such period will be extendable at the option of the Provincial Council beyond one year; subsection (3) provided another situation where the Central Council in the case of District Committee may by a resolution remove the Chairman or member from the office in the situation; subsection (3A) contemplates and authorizes the Central Council in the case of District Committee and District Committee in the case of Local Committee that if in its opinion the Chairman or a member of the Committee or an employee assigned to work with the Chairman or Institution receiving Zakat Funds under the Ordinance is guilty of misconduct in the discharge of his duties or is responsible for the loss, misapplication or misuse of Zakat funds the Central Council or, as the case may be, the District Committee shall initiate criminal proceedings against such Chairman, Member, person or the Institution; subsection (4) provides that in case of removal of the Chairman or member from the office or if otherwise he ceases to hold the office, the vacancy of the office of such Chairman or Member is to be filled within such time as the Central Council in the case of District Committee and District Committee in the case of Local Committee may determine by way of election, selection or nomination in accordance with the provisions of the Ordinance of person qualified to hold the office; subsection (7) to section 21 provides for the remedy of review before the Central Council in case the Chairman or Member of a Committee is superseded under subsection (i) or removed from the office under subsection (3).
33. It will pertinent to mention here that in the original text of the Ordinance, 1980, till it was amended by the Finance Act, XII of 1994, subsection (3), conferred power of removal to the Provincial Council which was taken away by subsequent amendment and conferred to the Central Council. Further insertion of subsection (3A) to section 21 by the Finance Act XII of 1994 has conferred powers to initiate criminal A proceedings to the Central Council in case of District Committee, thus, it is obvious that a conscious decision was taken by the Legislature to divest the Provincial Council from its power to remove the Chairman or Member of the District Committee. Reference to section 2 of subsections (v) and (xix) further elaborates the position about the formation of the Central Council under section 12 and the Provincial Council under section 14 of the Ordinance, 1980. This being the position, it is palpably clear that the Chairman Provincial Zakat Council had no authority to issue the two impugned Notifications challenged in this petition and even the Provincial Council, after the requisite amendment in the statute by the Finance Act XII of 1994, ceased to hold such power. The decision of the Provincial Zakat Council taken in its 39th meeting held on 9th August, 2008, has also not changed the position about the illegal nature of the two impugned Notifications.
34. Thus, it is clear that the two impugned notifications are not only in violation of principle of natural justice, mala fide, illegal but also coram non judice and liable to be struck down as such.
35. Foregoing are the reasons of our short order dated 15-10-2008 whereby this petition was allowed and two Notifications dated 25th July 2008 were declared to be without lawful authority and of no legal effect, and further the petitioner was reinstated/resorted as Chairman, District Zakat and Ushr Committee, Jacobabad.