1. ' SYED MAHMOOD ALAM RIZVI, J.---Through this petition the petitioner has sought the following prayers:--
(a) To declare that the acceptance of voluntary return vide letter dated 19th June, 2006 by the respondent No,2 lacks expression of agreement for disposal of enquiry against the petitioner under section 25 of the Ordinance and the essential element of voluntary return of offer and acceptance being missing, the transaction would not be given the status of voluntary return in terms of section 25 of the Ordinance.
(b) To declare that the Show-Cause Notice dated 15-12-2007 issued by the respondent No,3 on the basis of acceptance of voluntary return order dated 19th June, 2006, is liable to be struck off, which is against respondent No,3's own order dated 21-6-2007, no action shall be taken against the petitioner by the respondent No,3.
(c) To restrain the respondent No,3 from harassing or humiliating the petitioner in any manner whatsoever.
2. ' Precisely the facts of the case are that the petitioner is employed in Pakistan Customs as an Appraiser and posted at Custom House, Karachi. On 19-4-2005 the petitioner received a notice from the respondent No,2 which appears to be under section 19 of the National Accountability Ordinance, 1999, (hereinafter referred as the Ordinance), the contents of the said notice are as under:-- "Whereas the presence of the afore-said person is necessary for the purpose of enquiry into the offence reported to have been committed under section 9(a) of National Accountability.
3. Ordinance, 1999; therefore the said person is hereby directed to appear before the undersigned at place mentioned above on 25-4-2005 at 1400 hours thereto give such information relating to the said offence as he may possess"
4. ' That thereafter, the petitioner appeared before the NAB Authorities and furnished all the documents required but the respondent No,2 and the other officials threatened the petitioner by stating that as the matter is at the enquiry stage and no authorization has been issued by the NAB, therefore the petitioner shall pay Rs,1.5 million, otherwise, he will have to go to jail, and also assured the petitioner that in lieu of the above payment there shall be no effect on the petitioner's service.
5. Therefore, as per their assurance the petitioner paid the above amount to the NAB in terms of section 25-A of the Ordinance, 1999.
6. ' As a consequence thereof he was discharged by the respondent No,2 as per letter dated 19-6- 2006. Consequent thereupon the petitioner has resumed his duty/charge with the respondent No,3 in terms of the order dated 21-6-2007. On 15-12-2007 the petitioner has received show-cause notice from the respondent No,3 for disciplinary action in terms of section 3(c)(iv) read with section 5(5) of the Removal From Service (Special Powers) Ordinance, 2000. Subsequent thereof the petitioner filed his reply before the respondent No,3. It is urged, in view of the decision of the apex Court in Syed Ali Nawaz Shah and two others v. The State and others, reported in PLD 2003 SC 837, that the acts of the respondent No,3 are not in consonance with law as the petitioner did not face the consequences as provided in section 15 of the Ordinance, 1999 by operation of law.
7. ' That the above petition came up for preliminary hearing on 16-1-2008 and this Bench directed the respondent No,3 not to take any coercive action or initiate any proceedings against the petitioner till the next date of hearing, but on the next date of hearing the Advocate for respondent No,3 informed this Court that the petitioner has already been terminated vide order dated 15-1-2008, prior to the restraining order of this Court.
8. ' That the petitioner has filed an application under Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan read with section 151, C.P.C. And Article 85(4) of the Qanun-e-Shahadat and prayed that the respondents Nos.1, 2 and 3 be directed to place all the record regarding the terms and conditions on the basis of which the application for voluntary return was accepted. However, it is prayed that the respondent No,3 be directed to place the relevant record in pursuance of order dated 21-6-2007 passed by the respondent No,3, the said order is as under:-- "That on 21-6-2007 summary was put before the respondent No,3, who passed the order that no further action is required after voluntary return has been accepted by the Chairman NAB."
9. ' Learned counsel has relied upon the judgment reported in Government of Sindh v. Fahad Naseem and 3 others 2002 PCr.LJ 1765, as a result respondent No,3 was directed to place the relevant record before this Court.
10. ' Per the comments filed on behalf of respondents Nos.1 and 2, it reveals that the same were prepared without going through the instant petition as in the last para it is written as under:-- "In view of the facts and circumstances, it is submitted that since the petitioner has not come to this honourable Court with clean hands and there is prima facie case against him, therefore, he is not entitled to relief of bail under Article 199 of the Constitution. Hence, the petitioner is liable to be dismissed in the interest of justice."
11. ' Per documents filed by the NAB the nomenclature of the case of the petitioner is as under:--
(a) On 18-1-2005 D.-G. NAB, Sindh authorized the respondent No,2 to initiate proceeding against the petitioner in order to determine his involvement in alleged commission of offence. Investigating Officer conducted enquiry and four flats were said to have been purchased by the petitioner but none was in the name of the petitioner, as the same were not transferred as yet, and the total value worked out of the above flats by the Investigating Officer was Rs,20,43,150.
(b) That on 1-11-2005 the petitioner submitted an application for voluntary return. He averred the total value of the flats amounting to Rs,19,15,000 and has further mentioned in the said application that he was residing on a rented premises of 120 square yards in a society of F.B. Area and has requested that one flat may be handed over to him for his personal residence and for the rest three flats he is ready to pay the amount against the said flats.
(c) That on the basis of the above application the officials of the NAB sent his case to D.-G., NAB, with the following recommendation. The amount worked out by the Investigating Officer was Rs,20,43,150 while an amount of Rs,15,00,000 was offered by petitioner. It is, also mentioned in the comments that the accused requested in his VR application that he may kindly be allowed to retain one flat for his residential purpose. That all alleged properties are still not finally on the name of the accused. During the enquiry stage oral evidence was collected, which proves that the actual owner is the petitioner himself who paid the amount to the dealers but the lease agreements are still in the. Name of first owners, VR will help in completing the case at enquiry stage and also in recovery of ill-gotten money.
(d) That in view of the facts mentioned above, application of the case may be recommended for approval, the same was approved by the D.-G. NAB. That as a result vide order dated 19-6-2006 the respondent No,1 informed the petitioner regarding acceptance of his VR and it was mentioned that the petitioner stands discharged of his liability under section 25(a) of the Ordinance, 1999, and the copy of the said letter was also dispatched to respondent No,3.
12. That learned counsel for petitioner has contended that the respondent No,3 initiated the proceedings in terms of rule 3(c)(iv) RWS(5) of the Removal from Service (Special Powers)
13. Ordinance, 2000, and issued show-cause notice to the petitioner dated 15-12-2007 and alleged that the voluntary return of Rs,1.5 Million to respondent No,1, which were acquired beyond known sources of income and thus the petitioner stood discharged of his liability under section 25(a) of the Ordinance, 1999, which is tantamount to corruption, and further held that enquiry in terms of subsection (1) of section 5 of the said Ordinance is not required to be conducted and the same therefore, be dispensed with under section 5(4) ibid. The petitioner replied to the said show-cause notice on 7-1-2008 and has clarified the position that NAB has not taken any action under section 25(b) of the Ordinance, 1999, but under section 25(a), and in terms of section 15 of the Ordinance, 1999. Thus those persons, who had availed the benefit of section 25(b) cannot hold public office and has further contended that the petitioner cannot be punished for the same offence more than once per Article 13(a) of the Constitution of Pakistan, 1973, but even then no heed was paid and the petitioner came to know that the respondent No,3 is bent upon removing him from service. As a result he filed the above petition in the morning of 16-1-2008 after preparation of couple of days, and on the same day a restraining order was passed but with mala fides the respondent No,3 removed the petitioner by showing the date of 15-1-2008.
14. ' He has further contended that the impugned order is illegal, void ab initio, capricious, without any lawful authority, and liable to be set aside. He has further argued that the petitioner has very clean record of service and no notice was ever served upon him regarding any such act, which is also evident from the show-cause notice and the order dated 151-2008, as no query has been conducted. And on the basis of the VR under section 25(a) show-cause notice was issued and ultimately petitioner has been removed from service and the respondent No,3 with mala fide and ulterior motives has misinterpreted section 25(a) of the NAB Ordinance. Learned counsel for the NAB has supported the contention of learned counsel for the petitioner and further contended that it was a very meagre amount and that during enquiry the matter had been settled through VR, hence action of the respondent No,3 is illegal and void.
15. ' Conversely, the Advocate for the respondent No,3 has raised preliminary objections and contended that the petitioner has already been removed from service on 15-1-2008 while restraining order was passed on 16-1-2008. Therefore, this petition has become infructuous per Article 212 of the Constitution of Islamic Republic of Pakistan and that remedy is available to the petitioner before the Service Tribunal and he has relied upon the judgment reported in PLD 2006 SC 602.
16. ' Learned counsel for the respondent No,3 has further contended that as the petitioner himself admitted his offence and paid the amount to NAB, which is sufficient proof that he was a corrupt official, therefore, there was no need of any enquiry, hence show-cause notice was served upon him and thereafter, per Ordinance, 2000 he has been rightly removed from service and there was no ill will or mala fides on the part of the respondent No,3, hence this petition was liable to be dismissed.
17. ' Learned counsel for the NAB, in view of the documents filed by his department, has supported the arguments of learned counsel for the petitioner.
18. ' We have considered the arguments advanced before us, appreciated the relevant laws relied upon by the learned counsel for the petitioner, and have examined the order of the NAB as well as the dismissal order and the record.
19. ' It will be pertinent to reproduce, at the outset, section 25 of the Ordinance, 1999, as under:--
25. "Voluntary return and plea bargaining.--
(a) Notwithstanding anything contained in section 15 or in any other law .For the time being in force, where a holder of public office or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains acquired or made by him in the course, or as the consequence, of any offence under this Ordinance, the Chairman NAB may accept such offer and after determination of the amount due from such person and its deposit with the NAB discharge such person from all his liability in respect of the matter or transaction in issue: ' Provided that the matter is not sub judice in any Court of law.
(b) Where at any time after the authorization of investigation, before or after the commencement of the trial or during the pendency of an appeal, the accused offers to return to the NAB the assets or gains acquired or made by him in the course, or as a consequence, of any offence under this Ordinance, the Chairman, NAB may, in his discretion, after taking into consideration the facts and circumstances of the case, accept the offer on such terms and conditions as he may consider necessary, and if the accused agrees to return to the NAB the conditions as he may consider necessary, and if the accused agrees to return to the NAB the amount determined by the Chairman, NAB, the Chairman, NAB, shall refer the case for the approval of the Court, or as the case may be, the Appellate Court and for the release of the accused.
(c) The amount deposited by the accused with the NAB shall be transferred to the Federal Government or, as the case may be, a Provincial Government or the concerned bank or financial institution, company, body corporate, co-operative society, statutory body, or authority concerned within one month from the date of such deposit.
20. ' While section 15 is reproduced as under:-- "Disqualification to contest elections [or to hold public office].--(a) [Where an accused person is convicted [of an offence under section 9 of this Ordinance] he shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any province: ' Provided that any accused person who has availed the benefit of [subsection (b) of section] 25 shall also be deemed to have been convicted for an offence under this Ordinance, and shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he has discharged his liabilities relating to the matter or transaction in issue, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province]
(b) Any person convicted of an offence [under section 9 of the Ordinance] 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 [owned or controlled by Government], for a period of 10 years from the date of conviction.
21. It is evident from the record that no authorization was made for investigation against the petitioner and prior to the authorization of investigation the petitioner, in pursuance of the notice issued by the official of respondent No,1, placed all his assets before the respondents No,1, as a result, Rs,15,00,000 were offered by the petitioner which were duly accepted by the NAB per section 25(a), hence the case does not fall under the clause of section 15 of the NAB Ordinance. The letter of said acceptance and closure of the enquiry was duly conveyed to the respondent No,3 vide letter dated 19-6-2006. That even in presence of the above letter respondent No,3 issued show-cause notice to the petitioner on 15-12-2007, in which, in the first para it was clearly mentioned that the petitioner was discharged of his liability under section 25(a) of the Ordinance, 1999, and per show-cause notice, he declared that it amounts to corruption. Vide letter dated 7-7-2008 the petitioner replied to the said show-cause notice and has contended therein that the VR to NAB was made under section 25(a) and hence he has been discharged from all the liabilities and his case did not fall under section 25(b) of the Ordinance, 1999, therefore, show-cause notice issued under section 3(c)
(iv) read with section 5(5) of the Removal From Service (Special Powers) Ordinance, 2000, was liable to be set aside but even then the petitioner has been removed from service on 15-1-2008.
22. ' The rule that no one shall be vexed twice for the same offence has its note in the ancient maxim "nemo bis puniture aut vaxture pro B eodem delicto" which means that no one should be penalized twice for the same offence. It is an admitted fact that the petitioner had a clean record and no separate enquiry was conducted against his corruption and no precedent has been placed before the Court.
23. ' That regarding objection of the respondent No,3 that this Court has no jurisdiction to adjudicate the matter as the petitioner could, approach the Federal Services Tribunal the counsel relied upon a famous judgment reported in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan and others PLD 2006 SC 602 in which the relevant head-note is reproduced as under:-- "(ee) Service Tribunals Act (LXX of 1973), S.2-A--Constitution of Pakistan (1973), Arts.240 & 260--- Civil Servant---Service of Pakistan---Employees of statutory corporations whose terms and conditions of Service are regulated by statutory rules, would fall within domain of S.2-A, Service Tribunals Act, 1973, whereas the Government controlled corporations which have got no statutory backing nor any statutory rules governing the terms and conditions of service of their employees, they would not fall within the mischief of S.2-A of Service Tribunals Act, 1973."
(gg) Service Tribunals Act (LXX of 1973), S.2-A---Civil Servants Act (LXXI of 1973), S.2(1)(b)--- Constitution of Pakistan (1973), Arts.240, 260, 184(3), 185, 187(1) & 212(3)--- Vires of S.2-A, Service Tribunals Act, 1973---Section 2-A of the Service Tribunals Act, 1973 is partially, ultra vires of Arts.240 and 260 of the Constitution, to the extent of the category of employees, whose terms and conditions of service have not been determined by the Federal Legislature and by a deeming clause they cannot be treated civil servants as defined under S.2 (1)(b) of the Civil Servants Act, 1973 and they are not engaged in the affairs of the Federation---Section 2-A of the Service Tribunals Act, 1973 cannot be enforced in the absence of amendment in the definition of the 'civil servant' as under S.2(1)(b) of the Civil Servants Act, 1973---Cases of the employees under S.2-A, Service Tribunals Act, 1973, who did not fall within the definition of 'civil servant' as defined in S.2(1)
(b) of the Civil Servants Act, 1973, shall have no remedy before the Service Tribunals, functioning under Art.212 of the Constitution and they would be free to avail appropriate remedy---Cases which have been decided finally by the Supreme Court in exercise of jurisdiction under Art.212(3) of the Constitution shall not be opened and if any Review Petition, Miscellaneous Application or Contempt Application filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of present judgment---Proceedings instituted either by an employee of by an employer, pending before the Supreme Court, against the judgment of the Service Tribunal which have not been decided finally by the Supreme Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of S.2-A of the Service Tribunals Act, 1973--- Cases or proceedings which are not protected or covered by the present judgment shall be deemed to have abated and the aggrieved persons may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period---Cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, whichever is earlier---Service Tribunal shall decide pending cases S.2-A of the Service Tribunals Act, 1973 in view of the observations of the "Supreme Court" however, if any of the cases which is not protected or covered by the present judgment, shall stand abated---Period of 90 days shall be allowed to aggrieved party to approach to competent forum for the redressal of his grievance."
24. ' That after the Mubeen-us-Salam's case (supra) numerous petitions were filed in this Court by the employees of different departments, as a result, a Full Bench was constituted and all the petitions were placed before the Full Bench and the matter was resolved, the same being reported in Muhammad Dawood and others v. Federation of Pakistan and others SBLR 2007 Sindh 495, the relevant paras are reproduced as under:-- (29). From the above somewhat detailed discussion, we have arrived at the following conclusions:- -
(i) Irrespective of an employee of a State controlled corporation not being a civil servant the corporation themselves continue to remain amenable to the jurisdiction of this Court under Article 199 of the Constitution.
(ii) The rule of master and servant is inapplicable to cases where there is violation of statutory provisions or of any other law.
(iii) The expression 'violation of law' would not be confined merely to violation of any specific provision of a statute but the expression 'law' as observed by Hamoodur Rahman, J, (as his lordship then was) in Government of West Pakistan v. Begum Aga Abdul Karim Sorish PLD 1969 SC 14 & 31 and ought to be considered in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted norms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may, instance, include the principles of natural justice, the public duty to act fairly and honestly and absence of mala fides in fact and law. In all such cases the Court would be competent to grant relief of reinstatement."
25. ' Thereafter, the matter again came up before the honourable Supreme Court of Pakistan in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan and others reported in PLD 2007 SC 681 by which the Mobeen-us-Salam case (supra) was revived to some extent and some relief was provided to the employees. The relevant para. Of the Supreme Court judgment is reproduced as under:-- "(d) Service Tribunals Act (LXX of 1973)-- ----S.2-A---Constitution of Pakistan (1973), Arts.240, 260 & 212---Abatement of proceedings--- Held, cases of employees whose services were not governed by statutory rules stood abated with the result that proceedings and judgments rendered by Service Tribunal also stood nullified--- Affected/aggrieved parties were allowed a further period of 90 days to have recourse to the available remedies---Judgments of the Service Tribunal rendered on the basis of S.2-A of the Service Tribunals Act, 1973, which were never challenged before .The Supreme Court, had attained finality and shall be implemented by the concerned organizations without dragging the employees into further litigation---Cases in which the services of the employees were governed by statutory rules were not hit by the Supreme Court judgment in Muhammad Mubeen-us-Salam and others v.
26. Federation of Pakistan PLD 2006 SC 602---Supreme Court directed that cases of employees whose services were not governed by statutory rules stood abated but other cases would require further hearing on the question whether services of employees in those cases were or were not governed by the statutory rules and same shall be fixed for disposal before appropriate Bench."
27. ' After scrutiny of all the cases, it has been observed that if proceedings have been initiated against the employees with mala fides or in violation of statutory provisions or of any other law this Court can exercise jurisdiction. Therefore, the objection raised by the respondent No,3 is overruled.
28. ' As per facts and law discussed by the learned Advocate for the petitioner as well as relevant sections of the NAB and the reported judgments, we are led to the conclusion that the order of dismissal of the petitioner on the basis of V.R. Under section 25(a) of the Ordinance, 1999, is vague, illegal, and based on mala fides. The same is hereby set aside and this petition is allowed.