' SHAHID ANWAR BAJWA, J.--- These two Constitution Petitions and High Court Appeal were finally heard at Katcha Peshi stage and are being decided.
2. Facts relevant to C.P. No,D-2299 of 2008 are that the petitioners are officers of Federal Board of Revenue. Disciplinary proceedings under the provisions of the Removal from Service (Special Powers) Ordinance, 2000 were initiated against the petitioner and in this connection Statements of Allegations were issued. The allegations in sum and substance pertain to certain orders stated to have been passed by the petitioners in connection with certain Sales Tax refund cases which it is alleged were not admissible. The Constitution petition was filed with the prayer that pending final adjudication of cases relating to the same refund claims before the hierarchy provided under the Sales Tax Act, 1990,. Proceedings against the petitioners under the provisions of the Removal from Service (Special Powers) Ordinance, 2000, be declared as arbitrary, premature, mala fide, discriminatory and unlawful. Similar prayer is made on the ground that certain proceedings are pending before the Accountability Court and it is prayed that the order of inquiry/ Statements of Allegations be set aside and Inquiry Committee be restrained from conducting proceedings under the provisions of the Removal from Service (Special Powers) Ordinance, 2000.
3. In C.P. No, D-1938 of 2010 the proceedings in the similar context were initiated kit action was taken under the Efficiency and Discipline Rules, because on the date charge-sheets were issued, the Removal from Service (Special Powers) Ordinance, 2000 had been repealed by the Legislature.
4. In H.C.A. No, 179 of 2010 Statement of Allegations was issued under the provisions of the Removal from Service (Special Powers) Ordinance, 2000. A suit for declaration and permanent injunction was filed. The plaint was rejected on an application under Order VII, Rule 11, C.P.C. Vide order, dated 6-5-2010. This High Court Appeal under section 15 of the Code of Civil Procedure (Amendment)
Ordinance, 1980 has been filed to challenge and impugn that order.
5. Mr. Khalid Jawaid Khan, learned counsel for the petitioners/ appellant made the following submissions:--- (1)j That the orders passed by the petitioners were quasi-judicial orders and unless these orders have been set aside and finally determined by the judicial hierarchy no disciplinary proceedings could be initiated against the petitioners.
(2) Even if quasi-judicial orders are wrong the petitioners cannot be proceeded against in departmental proceedings unless allegations of mala fides or corruption or allegations of the like nature are leveled against the petitioners and there are no such allegations levlled in the present case.
(3) Learned counsel referred to section 50 of the Sales Tax Act, 1990 and submitted that the entire system is computerized and therefore dealing officer has no discretion in the matter and could not be guilty of any misconduct. In this regard learned counsel also referred to Rules 29 and 30 of Sales Tax Rules and submitted that the system is called CREST (Computerized Risk-based Evaluation of Sales-Tax).
(4) Learned counsel by referring to Section 50(1) submitted that in view of this section no disciplinary proceedings could be initiated against the petitioner.
(5) On the question of maintainability of the petition learned counsel referred to judgment of this Court in the case of Muhammad Mustafa Kamal v. Federation of Pakistan and others (C.P. No,D-1311 of 2009) decided on 22-9-2010. He further submitted that no final order has yet been passed.
Learned counsel relied upon Mushtaq Ahmed Sabto and others v. Federation of Pakistan and others 2001 PLC (C.S) 623 and Syed Aftab Ahmed Jafri v. Pakistan through Secretary, Ministry of Health (Health Division), Government of Pakistan, Islamabad and others 2004 PLC (C.S)
52. Learned counsel also relied upon Muhammad Yar Buttar and 4 others v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and another, 1999 PLC (C.S.) 409.
(6) Learned counsel further submitted that even against show-causenotice writ petition is maintainable. In this regard learned counsel relied upon Wali Ahmed Khan v. Government of Sind and 6 others 1982 PLC (C.S.) 1 and Muhammad Afzal Khan v. Karachi Development Authority and 6 others PLD1984 Kar.
114.
(7) On the point that order of refund passed by a Sales Tax functionary is a quasi-judicial order, learned counsel relied upon M.A. Rehman v. Federation of Pakistan and others 1988 SCMR 691 and English Sweets (Pvt.) Ltd., Karachi v. Pakistan through Secretary to the Government of Pakistan, Islamabad and 3 others 2005 PTD 247.
(8) In respect of C.P.No,1938 of 2010 learned counsel submitted that charge-sheet was issued and thereafter ex parte inquiry was held and the Inquiry Officer after conducting exparte inquiry submitted his report. A third inquiry was ordered on 26.3.2010. Learned counsel submitted that he would be satisfied if it is ordered that the Inquiry Officer shall not be influenced by the findings recorded in the first two inquiries.
(9) As far as, High Court Appeal is concerned, learned counsel submitted that a number of authorities were cited before the learned Judge but learned Judge did not refer to any of the case law.
6. Mr. Muhammad Iqbal Shah, learned counsel for the respondents in C.P.No,D-2299 of 2008 submitted that the orders passed by the petitioners were not quasi-judicial orders because they processed the cases. He submitted that unless an order is passed after hearing the contending parties points of view the order cannot be said to be a judicial or quasi-judicial order because for both it is essential that adjudication must take place. He submitted that quasi-judicial process starts from the Appellate Authority and not with the authority which passed the order.
7. Mr. Shafquat Ali Shah Masoomi, learned counsel for the respondents in C.P.No,D-1938 of 2010 submitted that earlier proceedings of inquiry must be considered by the fresh Inquiry Officer.
Learned counsel further submitted that it is a question of factual controversy which cannot be decided in exercise of Constitutional jurisdiction. Lastly he submitted that disciplinary matters fall within the jurisdiction of Federal Service Tribunal and therefore, jurisdiction of this Court is barred by Article 212 of the Constitution. Learned counsel in this regard relied upon a number of authorities to which we shall refer at their due palace in the course of this judgment.
8. Mr. Ashiq Raza, learned D.A.-G. Supported the arguments of Mr. Iqbal Shah and Mr. Shafquat Ali Shah Masoomi and submitted that the petitions are not maintainable and the order passed by the Single Judge against which High Court Appeal has been filed is an order in accordance with the law and the appeal should be dismissed.
9. We have considered the submissions made by the earned counsel and have also gone through the record as well as considerable case law cited at the bar.
10. We shall first take up question of maintainability, of these petitions. In C.P.No,D-2299 of 2008 action was initiated under the Removal from Service (Special Powers) Ordinance, 2000. Learned counsel for the petitioners relied upon Mushtaq Ahmed Sabto's case (supra). In this case a number of officers were placed under suspension and they remained under suspension for more than 8 months and were not served with any show-cause-notice nor apprised of the allegations against them. Consequently they filed Constitution petitions in the High Court. Maintainability of the petitions was challenged on the touchstone of. Article 212 of the Constitution. The Division Bench after observing that it is settled that if an appeal is maintainable before a Service Tribunal jurisdiction, of High Court is barred, observed as under:-- "9. A bare perusal of section 9 would show that unlike Rules 3 and 4 of the Civil Servants (Appeal)
Rules, 1977 the right to prefer a departmental appeal or representation to the Chief Executive or a designated authority is only confined against orders of dismissal, removal, compulsory retirement, reduction to a lower post or imposition of any other penalty. Section 10 relates to appeal before the Federal Service Tribunal but provides that only an appeal against a final order under section '9 may be preferred before the Tribunal. Moreover, section 11 postulates that the provision of this Ordinance are to prevail over anything to the contrary contained in the Civil Servants Act, the rules made there under or any other law. It is, therefore, clear that unless a final order causing removal, compulsory retirement or imposing penalty under section .3 has been passed and a representation against the same has been decided under section 9, no appeal would like, to the Service Tribunal."
' Consequently it was held that since no final order had been passed Constitution petition before the High Court would be maintainable.
11. In Syed Aftab Ahmed Jafri's case (supra), again proceedings were initiated under the Removal from Service (Special Powers) Ordinance, 2000. The employee in this case had been removed from service. He preferred departmental appeal and upon failing to receive response within the stipulated time filed appeal before Service Tribunal. Appeal was admitted and notices were served on the respondents. During pendency of the appeal the petitioner was directed to be reinstated and on the same day an order of suspension was passed against him under the Removal from Service (Special Powers) Ordinance, 2000 and a week later a Statement of Allegations identical to the one which formed the basis of earlier action against the petitioner was issued. In consequence of order of reinstatement the Tribunal disposed of appeal as having become infructuous but it declined to interfere with the Statement of Allegations subsequently issued. The High Court relying upon its earlier judgment in Mushtaq Ahmed Sabto's case held that since final order has not been passed, writ petition would be maintainable. The third case relied upon by the learned counsel was that of Muhammad Mustafa Kamal v. Federation of Pakistan and others in (C.P. No,D-1311 of 2009).
This judgment was authored by one of us (Shahid Anwar Bajwa, J.). It was also held in this case that since final order had not been passed and it is final order which is challengeable in terms of.
Section 10 of the Ordinance of 2000, the Constitution Petition would be maintainable.
12. On the other hand, Mr. Shafquat Ali Shah Masoomi, relied upon a number of case law and we shall refer only to view of them. First case relied upon by the learned counsel was Pervaiz Aslam v.
Llyas Hussain Shah and another, 1999 SCMR 784. In this case an employee was transferred and instead of complying with the order he filed Constitution Petition in the High Court. The High Court through an interim order suspended the operation of transfer order. The Supreme Court did not agree with the Advocate for the civil servant that since the transfer was based on extraneous considerations therefore it could be challenged in writ petition. The Supreme Court held that jurisdiction of the High Court under Article 199 of the Constitution was barred by Article 212 of the Constitution. Second case referred to by the learned counsel was Syed Aftab Ahmed and others v.
K.E.S.C. And others 1999 SCMR 197. This was a case in which it was held that where section 2-A of, the Service Tribunals Act, 1973 is applicable, Constitutional jurisdiction of the High Court would be barred. Learned counsel also relied upon Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129. This case was also of a transfer of an employee and the Supreme Court held that the jurisdiction of the High. Court was barred. In Rauf Akhtar Farooqui and others v. Director General, Karachi Development Authority (KDA), Karachi and others 2001 SCMR 927, inquiry report against an employee of the authority was challenged in a civil suit before High Court and the plaint was rejected by this Court by holding that matter pertained to terms and conditions of service. The Supreme Court upheld order of the High Court.
13. We may also refer to Muhammad Yar Buttar's case (supra). It may be pointed out that in section 4(1) of the Service Tribunal Act, originally it was provided as under:--- "(4) Appeals to Tribunals.--- (1) Any civil servant aggrieved by any final order, whether original or appellate, made by a department authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal."
The word "final" occurring therein was deleted by the Amending Act of 1997. The impact of deletion of word 'final' was considered by the Supreme Court and it was laid down as under:-- "In this behalf, it may be stated here that the "order" within the meaning of the Service Tribunals Act has to be interpreted and has to be confined within the four-corners of the civil Servants Act and the Service Tribunals Act and an appeal against an order is relatable to the terms and conditions of a civil servant. In this context, it is to be seen that if a civil servant like the appellants is being proceeded for disciplinary action, then what type of orders can be issued or passed by a competent Authority The answer to these questions has been elaborately dealt with by the Tribunal. In such proceedings, as rightly observed by the Tribunal, the following orders to be passed within the contemplation of the rules governing disciplinary action:--
(1) Appointment of Inquiry Officer or committee.
(2) Show-cause notice.
(3) Framing of charge-sheet
(4) Preparation of statement of allegations.
(5) Second show-cause notice.
(6) Appointment of authorized officer.
(7) Decision of the authorized officer whether inquiry should be conducted by the Inquiry Officer or a Committee.
(8) Decision of the authorized officer not to hold an inquiry by an Inquiry Officer or a Committee.
(9) Information to the officer about the action proposed to be taken.
(10) Adjournment during any proceedings..
(11) View of the Inquiry Officer or Committee that the officer was hampering the progress of inquiry.
(12) Various other steps to complete an inquiry.
' In our view, the Tribunal rightly observed that if in the light of the amendment in section 4 of the Service Tribunals Act, appeals were maintainable against all the above noted orders, then it would be an endless inquiry and no inquiry could reach its logical conclusion. In this behalf, it may be stated here that while interpreting a provision of statute or rules, such interpretation is not to be placed, which could render the object of the statute or rules as futile or which in other words would frustrate the very object of the statute or the rules.
' However, we may further add that it will depend upon the nature of each order as to whether appeal against such order is maintainable or not because the abovementioned situations deal with procedural matters. The questions of mala fides and coram non judice, would stand on a different footing.
6. We may further add here that right of appeal is a statutory right and is conferred upon the person aggrieved and the statutes conferring such right also define its scope. No extraneous consideration or matter can be imported in the relevant statute so as to abridge or enlarge scope of appeal. The omission of the word "final" from section 4 of the Service Tribunals Act does not enlarge the scope of the appeal as envisaged by section 4 of the Act. The provision of section 4 lays down the conditions and circumstances in which an appeal is maintainable or not. To illustrate, under section 4(b) and (c), no appeal lies to a Tribunal against an order or decision of a Departmental Authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher post or grade and similarly, no appeal lay against an order or decision of a departmental authority at any time before the 1st of July, 1969. Under section 4(a), an embargo has been placed by the legislature on filing an appeal to the effect that if an appeal, review or representation to a departmental authority is provided under the Civil Servants Act or the Rules, against such orders, then no appeal is maintainable before the Tribunal unless the aggrieved person has preferred an appeal or application for review or representation to such departmental authority and a period of 90 days has elapsed from the date on which such appeal, application or representation was preferred. In our view the scope of the appeal under section 4 is confined only where a person has been dismissed or removed from service or has been compulsory retired or has been reduced to a lower post or time-scale or to a lower stage in a time-scale. Section 2(2)(b) also envisages appeal to the Tribunal in respect of grievances not covered by section 4(a) to sum up, in our view an appeal under section 4 of the Service Tribunals Act is maintainable only, when the question relates to enforcement of terms and conditions of service of an employee as envisaged by the Service Tribunals Act, and the omission of the word 'final' would not advance the case of the appellants."
14. Perusal of the above case law indicates the position to be as under: ---
(1) Article 212 of the Constitution bars jurisdiction of this Court in respect of matter relating to terms and conditions of service including disciplinary matters of all persons who are or have been in the service of Pakistan.
(2) However for the purpose of barring this jurisdiction there must be an order, whether original or appellate, and if any such order has not been passed the aggrieved civil servant can resort to invoke jurisdiction of this Court for the purpose of alleviating his grievance.
(3) Word 'final' has been deleted from section 4 of the Civil Servants Act but such deletion does not mean that every order passed by the Department Authority would be challengeable before the Service Tribunal. It is only an order which determines a substantive point in issue relating to terms and conditions of service or disciplinary action 'which can be challenged before Service Tribunal.
Any procedural determination by the Departmental Authority would not be so challengeable therefore deletion of word 'final' does not enlarge the scope of appeal envisaged in section 4 of the Act.
(4) As far as, Removal from Service (Special Powers) Ordinance, 2000 is concerned, since appeal was provided only when final order of penalty has been passed therefore till such final order has not been passed, writ jurisdiction of this Court is not ousted and while scrutinizing whether the departmental action is in violation of law or not this Court can exercise jurisdiction as long as the final order of punishment has not been passed.
15. In both these Constitution petitions what has been challenged is initiation of departmental proceedings. Therefore, there is no order per se in both the petitions which is challengeable before the Federal Service Tribunal and therefore on the touchstone of Article 212 of the Constitution, these Constitution petitions are not barred.
16. Mr. Khalid Jawaid Khan, learned counsel for petitioners referred to Wali Ahmed Khan's case (supra). Facts of the case were that the petitioner entered into service of Karachi Joint Water Board, statutory body constituted under Ordinance XIII of 1949, which was subsequently merged with K.D.A. Just prior to such merger petitioner was deputed to submit a report as to certain irregularities and fraud and petitioner submitted his report finding a Director as having been involved in those irregularities. The case was sent up to Anti-Corruption Court. During pendency of the case one of the co-accused died and proceedings against other were quashed by the Supreme Court. Certain persons became inimical to the petitioner and according to petitioner a fabricated case was initiated against him and he was' suspended. However after 10 years he was acquitted. During this period of 10 years, K.D.A. Promoted certain officers and the petitioner was not so promoted because his case was not considered due to his suspension. Rules were amended and, it was claimed by the petitioner, in violation of law. Petitioner kept on submitting his representations and instead of deciding his representation he was called upon to explain as to why he submitted his protest directly to the higher authorities. A second show-cause notice was issued to the petitioner and in the petition he sought relief of stay of operation of the second show-cause notice besides other reliefs. The Division Bench firstly observed that it was well established principle of law that if an action or order is taken malafidely the same would be without jurisdiction and thereafter it held as under:-- "In our view if a show-cause notice is without jurisdiction either for want of the requisite authority or because of mala fide, which should be manifest from the facts of the case, a writ petition in such a case would be competent. But generally a writ petition is not competent against a show-cause notice issued by a competent authority in good faith. In the instant case the above petition was filed by the petitioner against the first charge-sheet on the ground that the Director-General of K.D.A. Had no authority to issue the said show-cause notice in view bf the rule 16 of the Karachi Joint Water Board Rules, 1956. If we would have accepted the petitioner's above contention, the above ground was sufficient to warrant the maintenance of the above writ petition. We have already held hereinabove that the Director General, K.D.A. Was competent to issue the aforesaid first charge. Furthermore, we are not inclined to hold that the aforesaid first charge sheet was issued malafidely as from the state of the record such an interference is not warranted."
17. The second case relied upon by the learned counsel for the petitioners for such a proposition was Muhammad Afzal Khan's case (supra). It was a case in which certain complaints were made by the petitioner to Martial Law Authorities and Martial Law Investigation Team made investigation and discovered serious irregularities. The officers who felt offended reverted the petitioner. Such order of reversion was challenged in Constitution petition and while petition was pending a show- cause notice was issued to the petitioner, which show-cause notice was challenged by the petitioner in Constitutional jurisdiction. It was observed by the Division Bench as under:--- "It may be observed that generally the Court does not entertain a writ petition against a show- cause notice, but the Court may entertain a writ petition even against a show-cause notice if it is manifestly without jurisdiction or mala fide and non-exercise of writ jurisdiction will result in miscarriage of justice. We do not see any cogent reason to deviate from the above Karachi D.B.
Case."
18. In the light of above state, it appears that when a show-cause notice is:---
(a) mala fide;
(b) issued by a person who did not have authority to issue it;
(c) issued in clear and apparent violation of law; and
(d) where non-exercise of jurisdiction will result in miscarriage of justice, then ' Constitutional jurisdiction can always be invoked and Constitution Petition would be maintainable.
19. The legality of the show-cause notices is challenged by the learned counsel principally on three grounds. Firstly the learned counsel contended that in view of the provisions contained in section 51(2) of the Sales Tax Act, 1990 no disciplinary action can be initiated against the petitioner. The said subsection is in the following words:--- "51(2). No such, prosecution or other legal proceeding shall lie against the Federal Government or against any public servant in respect of any order passed in good faith under this Act."
' A simple reading of the above subsection indicates that what it bars is "suit, prosecution or other legal proceeding" against "Federal Government or any public servant" in respect of any order 'passed in "good faith" under the Act. Admittedly the initiation of the disciplinary action is not a suit and it is not prosecution stricto sensu. It is not a proceeding against Federal Government. But this subsection must be read with subsection (3) which is in the following words:- "(3) Notwithstanding anything contained in any other law for the time being in force, no investigation or inquiry shall he undertaken or initiated by any governmental agency against any officer or official for anything done in his 'official capacity under this Act, rules, instructions or direction made or issued there under without the prior approval of the Board."
' Reading of the above two subsections it becomes clear that inquiry can be undertaken or initiated against an officer or officials of any of the agencies under the Act. Therefore, initiation of disciplinary action under the Act is not barred by any provision contained in section 51. Therefore, this ground urged by the learned counsel does not appear to be of any force.
20. Second ground, and in fact the main ground urged by the learned counsel was that the .Orders passed by the petitioners were quasi-judicial orders, and therefore unless correctness and validity of those orders is determined by the judicial hierarchy no disciplinary action could be initiated against them. Learned counsel in this regard relied upon Kohinoor Industries v. Government of Pakistan, PTCL 1984 CL 280. We have not been able to locate any such case. He next relied upon English Sweets (Pvt.) Ltd., Karachi v. Pakistan through Secretary to the Government of Pakistan, Islamabad and 3 others 2005 PTD 247. The petitioners in the petition were manufacturers of Sweets and they imported wrapping paper. There was some question regarding rate at which duty was to be charged on the paper. CBR after having obtained advice took view that goods were classified under a particular heading chargeable to duty at the rate of 125%. Show-cause notice was issued to the petitioner for charge of duty on such basis. It was contended that the petitioners were never heard by the Board and therefore the order of CBR was in violation of principle of natural justice.
The Division Bench observed that valuation of imported goods in a particular consignment for the purpose of levy of Customs duty is ex facie a quasi-judicial function and the order passed are subject to the incidence of appeal and revision and the officer passing such order is not bound to follow direction given by CBR under section 223 of the Customs Act.
21. In M. A. Rehman v. Federation of Pakistan and others 1988 SCMR 691, facts were that information was received that an industrial importer .Has been importing art silk yarn in violation of the import policy. Inquiry was conducted and his involvement was detected. Proceedings under Customs Act were initiated and Deputy Collector (Appraisement) (Judicial), held such person guilty of fraud and penalty was imposed. Importer challenged the order of Deputy Collector before Collector of Customs (Appeals). The appeals were accepted and impugned orders were set aside. However, it was left to the competent authority to take fresh proceedings against the importer. When the matter came to the knowledge of CBR it found that Collector (Appeals) had acted in gross violation of law and had abused powers of Collector Customs. Consequently, such Collector was . Issued charge-sheet and inquiry was initiated and finally major penalty of dismissal from service was imposed. He filed an appeal before the Service Tribunal and the Service Tribunal converted the finding of dismissal into compulsory retirement. Matter was taken to the Supreme Court. The Supreme Court observed as under:--- "The Scheme underlying this provision of law clearly contemplates a division of functions ordinarily to be discharged by officers of the Customs in execution of duties cast upon them by the various provisions of the Act. The division comprises of quasi-judicial functions; and other functions and duties. The enacting part of the provisions of section 223 makes it obligatory upon the officers of Customs to observe and follow the orders, instructions and directions issued by the Board of Revenue. However, the proviso restricts the powers of Board of Revenue so that no such orders, instructions or directions can be given which in any way interfere with the discretion of the appropriate officers of Customs in the exercise of their (quasi-judicial) functions. Undoubtedly adjudication proceedings under the Customs Act empowering the appropriate Customs Officers to impose penalties or orders of confiscation of goods, the exercise of appellate power and revisional jurisdiction against orders of adjudicating officers are quasi-judicial functions involving the exercise of discretion. Clearly, therefore, while exercising these functions the appropriate officers of Customs are not subject to the administrative control of the Board of Revenue by means of orders, instructions or directions. Such officers while so acting are controlled by the statute under which the relevant power or function is exercised and this function is further subject to control of the same quasi judicial nature under Chapter XIX by means of appeal and revision. In this Chapter sections 193, 195 and 196 establish a hierarchy of authorities for correction of errors, illegalities, irregularities or improprieties occurring in the orders passed by the subordinate officers or authorities."
22. In Province of Bombay v. Khushaldas S. Advani and others AIR 1950 SC 222, although the question under consideration was whether certiorari can be issued in respect of a particular act and the conclusion was that it can be issued when there are judicial or quasi- judicial acts but then question turned into as to what are the quasi- judicial acts. It was observed as under:--- "The respondent's argument that whenever there is a determination of a fact which affects the rights of parties, the decision is quasi-judicial, does not appear to be sound. The observations of May C.J., when properly read, included the judicial aspect of the determination in the words used by him. I am led to that conclusion because after the test of judicial duty of the body making the decision was expressly stated and emphasized by Atkin and Slessor L. H. In no subsequent decision it is even suggested that the dictum of May C.J. Was different from the statement of law of the two Lord Justices or that the later, in any way, required to be modified. The word "quasi-judicial" itself necessarily implies the existence of the judicial element in the process leading to the decision."
(Underlining supplied).
' Thereafter it was observed:--- "It seems to me that the true position is that when the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well recognized principles of approach are required to be followed."
23. In Jaswa nt Sugar Mills Ltd. Meerut v. Lakshami Chand and others AIR 1963, it was observed as under:--- "(13) To make a decision or an act judicial, the following criteria must be satisfied:
(1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rules;
(2) it declares rights or imposes upon parties obligations affecting their civil rights; and
(3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact." (Underlining supplied).
24. In Black's Law Dictionary, the word 'quasi-judicial' is defined in the following words:- "A term applied to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature."
25. In Pir Syed Safi-ud-din v. Secretary PLD 1958 Pesh. 157, the following was quoted from Advani's case:--- "After giving my anxious consideration to the distinction between the quasi-judicial and administrative order, I have arrived at the conclusion that if the statutory authority is allowed to pass an order subjectively, based on his personal or private opinion, and does not impose a liability or affect the right of others in a substantial manner, then the order will be executive, but if the statutory order is to be passed objectively and based on some relevant and existing circumstances and facts, and at the same time substantially affects the rights of others, it would be a quasi-judicial order."
26. Thus, it appears that both in judicial and quasi-judicial proceedings if a question of fact is being considered it must be decided by evidence and if a question of law is being, considered it must be decided upon presentation of legal arguments. It is indeed true that judicial power may be exercised not only by the Courts but by quasi-judicial authorities. But if an authority is exercising quasi-judicial power it can do so only after resort to adversarial system of adjudication. When without this inalienable indicia of judicial trappings if an executive authority makes a determination it is at best an executive determination and cannot be said to be a quasi-judicial proceedings or quasi-judicial order or quasi-judicial determination. In M.A. Rehman's case (supra), it was an order by Collector (Appeals) which was held to be a quasi-judicial proceedings. It is no one case that Collector Appeals decides without hearing the parties. Therefore it is difficult to subscribe that the orders of refund passed by the petitioners are quasi-judicial orders. This is notwithstanding the fact that in certain cases it is alleged that petitioners also processed the claims and in other cases it is alleged that petitioners sanctioned the claims. Therefore, since the proceedings were not quasi- judicial, second ground of attack by the learned counsel for the petitioners on Statement of Allegations is also not tenable. The third ground urged by the learned counsel was that certain criminal proceedings are pending including proceedings before the NAB authorities. It is now will- settled law beyond any pale of doubt that domestic and criminal actions are independent of each other and one does not have any link with the other and result of one cannot have any effect or bearing upon the other.
27. Learned counsel for the petitioners submitted that the entire system is computerized and the dealing officer has no discretion. In fact this contention of the learned counsel runs contrary to his earlier contention when he argued that these are quasi-judicial orders, If they were quasi-judicial orders there could not have been any question of computer deciding rather than the person deciding. Be that as it may, this is a question of fact and must be left to the departmental authorities to determine in administrative proceedings. Consequently C.P. No, D-2299 of 2008 is dismissed in limine.
28. In respect of C.P.No,D-1938 of 2008 learned counsel for the petitioners submitted that certain inquiries had earlier been conducted and yet the third inquiry was ordered. However, learned counsel stated that third Inquiry Officer be directed to decide on the basis of evidence produced before him and not to be influenced or swayed by any previous determination by previous Inquiry Officer. This is strenuously opposed by Mr. Masoomi. If the matter is to be decided on the basis of previous inquiry then, we are unable to understand, what was the need of fresh inquiry. Moreover, an Inquiry Officer is independent, neutral and unbiased person having no link or connection whatsoever with the incident for which he has been appointed as Inquiry Officer. He has to decide on the basis of evidence and material produced before him and not on the basis of opinions of his predecessors. Therefore Mr. Khalid Jawaid Khan, is perfectly right in arguing that the Inquiry Officer shall confine himself to the evidence produced before him and shall in no way be influenced by the findings of any of the previous inquiries, C.P. No,D-1938 of 2008 is therefore disposed of by directing the Inquiry Officer not to take into consideration findings and reports of any of his predecessor Inquiry Officers.
29. As far as, High Court Appeal No, 179 of 2010 is concerned, the learned Single Judge 'has held that it is for the domestic forum to adjudge justly, fairly and equitably and in accordance with the law and once recommendations are given by the Inquiry Committee the same are subject to challenge and seniority right up to the honourable Supreme Court. We are unable to see any material wrong in the conclusions arrived at by the learned Single Judge. High Court Appeal No,179 of 2010 is therefore dismissed.
30. Result of he above discussion is that while C.P.No,D-2299 of 2008 and H.C.A. No,179 of 2010 are dismissed and C.P.No,D-1938 of 2008 is disposed of in terms of what is stated above.