Petitioner Muhammad Aslam Asif, Chairman Sheikhan Wala Citizen Community, Union Council No. 13, Chak No. 3/9-R Khanewal has moved this writ petition against the respondents mentioning the facts that petitioner Sheikhan Wala Citizen Community Board is registered with Community Development Department, Khanewal having Registration No. DOR-CCB(KWL)242/04; that in March, 2007 petitioner submitted, a proposal for the project of construction of metalled road from Chak No. 3/9-R to Shakoor Chowk along with 20% Citizen Community Board's contribution (CCB) amounting Rs. 5,75,000/- and this proposal was processed by EDO(C&D)/ Respondent No. 1 and it was approved; that an agreement was signed between the parties and petitioner was provided first installment of 80% share to be contributed by Respondent No. 1; that petitioner was paid the first installment and petitioner completed its job to that extent, however, in spite of repeated applications subsequently the share i.e. the contribution by the respondents was not Provided in the shape of second installment, therefore, further progress in respect of the project could not be done; that now it is revealed that Respondent No. 1 has moved before Respondents No. 3 & 4 with a report showing and alleging embezzlement allegedly committed by petitioner CCB and Respondents No. 3 & 4 in this respect issued notice to the petitioner to appear and join the inquiry, which is illegal and without any lawful justification; that petitioner approached Respondent No. 3 to withdraw any such inquiry but it was refused, hence, this writ petition.
2. Parawise comments/report was called, which is submitted on behalf of Respondent No. 1 and same is hereby reproduced: The Citizen Community Board was registered with Registration Authority in accordance with the Local Government Ordinance 2001 and CCB rules 2003. in Local Government, 25% development budget of the Local Govt. was bounded to be utilized through the Citizen Community Board with the remarks that 20% out of total cost of any development project would be shared by the CCBs while remaining 80% would be provided by the Local Governments."
The petitioner is office bearer i.e. Chairman of the Sheikhan Wala Citizen Community Board Union Council No. 13 Chak No. 3/9-R Tehsil & District Khanewal. The CCB submitted project proposal titled "Construction of Metalled Road" to Executive District Officer Community Development Khanewal/CCB official, which was forwarded to Zila Council, Khanewal for approval as per procedure. The Zila Council Khanewal in its session held on 28.05.2007 approved the project at a total cost of Rs:2875000/-. The CCB was to be contributed Rs:575000/- for construction of metalled road while District Govt. Khanewal share was Rs:2300000/-. The office bearer of the CCB signed agreement on 07-07-2007 of the project and agreed to complete the same within a period of three months commencing from 0707-2007. Out of District Govt. share an amount of Rs:920000/- (Ist Installment), was released to the CCB through Bank draft in July 21st, 2007.
It is submitted that in Khanewal District 447 projects were approved and funded by District Govt. On receipt of complaints regarding embezzlement in Government funds,' the District Govt. Khanewal decided to verify physical status of the projects: The cases of those CCBs who embezzled the released funds/amount were forwarded to Anti-Corruption Establishment, for registration of case under relevant provisions of law.
The Petitioner's-CCB (Sheikhan Wala CCB) did not complete the project within stipulated period as per agreement. During enquiry conducted by Sectoral Office, it was proved that the office bearers of the CCB embezzled the total amount (District Govt. share & Community Share) and even the project was not completed despite lapse of more than 5-years. On account of embezzlement, the case matter forwarded to Anti-Corruption Establishment for registration of case, which is reportedly under investigation."
3. Learned counsel for the petitioner contends that petitioner CCB is not public servant rather it is a non-profitable organization to join hand with the respondent Local Government to complete certain projects for uplifting of the locality/local areas; that the respondent according to the agreement was obliged to provide 80% of share in the project which was not done due to which the project mentioned above could not be completed; that the action initiated by Respondent No. 1 whereby a report was sent to Respondents No. 3 & 4 for alleging certain allegations of embezzlement is without any lawful justification; that petitioner is not public servant as defined under the provisions of any of the law applicable on the subject, therefore, Respondents No. 3 & 4 are not authorized to initiate any action against the petitioner or any of the members of the CCB.
Prayed that this writ petition be allowed and respondents be restrained from initiating any action/inquiry rather Respondent No. 1 be directed to provide the petitioner its share of the installment so that the project be completed.
4. Learned AAG on the other hand has vehemently opposed the arguments advanced by learned counsel for the petitioner on the grounds that under Section 193 of the Punjab Local Government Ordinance, 2001 petitioner-CCB falls within the definition of a public servant as provided under Section 21 of Pakistan Penal Code, 1860. It was agitated on the basis of record as well as comments that the first installment of Rs:920000/- was provided to the petitioner-CCB but no construction work as assigned to the petitioner through the project approved was done; that an inquiry was conducted in this respect and report was submitted before Respondent No. 3 for initiation of action on criminal side; that no such inquiry or investigation can be hampered in any way; that had the petitioner any grievance he may join the inquiry by submitting his point of view. While relying on 2010 YLR 643 (Nida-eMillat, Citizen Community Board, Multan through Chairman Vs. Director, Anti- Corruption Establishment, Multan Region, Multan and 8 others) submitted that as petitioner is a public servant as defined under Section 21 of the P.P.C., 1861, therefore, this writ petition be dismissed.
5. I have considered the contentions raised by learned counsel for the parties and have gone through the record.
6. Under Section 193 of the Punjab Local Government Ordinance, 2001 it has specifically been provided that:-- "Members and servants to be public servants.--All Nazims, Naib Nazims, members of the Councils, functionaries of the Local Government and every other person duly authorized to act on behalf of the Local Government shall be public servants within the meanings of Section 21 of the Pakistan Penal Code (Act, XLV of 1860)."
Admittedly if the agreement executed between the petitioner-CCB and Respondent No. 1 is seen, petitioner submitted a project for approval, which was approved and an amount of Rs. 23,00,000/- was sanctioned for that purpose. The first installment of Rs. 9,20,000/- was paid to the petitioner.
According to Clause (iv) of the agreement under the heading of "GENERAL" the petitioner had to complete the work within two months commencing from 7.7.2007. Nothing material was done by the petitioner at the site of the project as revealed from the report, reproduced above, submitted by Respondent No. 1. Admittedly, petitioner had been assigned a job and for that purpose out of Government exchequer Rs. 9,20,000/- were paid to him, therefore, petitioner clearly for the purposes of this job falls under the category of a public servant as proved under 9th definition/description annexed to Section 21 of P.P.C. wherein it is specifically provided that: "Public Servant. The words "public servant" denote a person falling under any of the descriptions hereinafter following namely:-- ----------------------------- ----------------------------- ---------------------------- ---------------------------- (Ninth) Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report,. on any matter effecting the pecuniary interests of the Government, or to make, authenticate or keep any document .relating to the pecuniary interests of the Government or to prevent the fraction of any law for the protection of the pecuniary interests of the Government, and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty; -------------------------- -------------------------- Explanation-I.--Persons falling under any of the above descriptions are public servant, whether appointed by the Government or not."
This question has already been decided by this Court in the judgment cited by learned law officer.
7. As far as the prayer submitted by learned counsel for the petitioner is concerned whereby it was agitated that Respondents No. 2 & 3 be restrained from conducting any inquiry, is concerned, it is now settled that in exercise of extra-ordinary writ jurisdiction investigation/ inquiries, until & unless, it is being done by a public functionary, without any jurisdiction or any lawful authority, it cannot be hampered. Respondent No. 1 has submitted an inquiry report to Respondent Nos. 2 & 3 for conducting an inquiry and initiation of necessary action in this respect, therefore, such inquiry cannot be hampered while exercising the extra ordinary writ jurisdiction. Petitioner, if so advised, may join the inquiry, submit his point of view before the Inquiry Officers/Respondents No. 2 & 3, who are directed to look into his point of view and proceed further in accordance with law. Resultantly, finding no merit in this petition, same is hereby dismissed.