SYED MANSOOR ALI SHAH, J.---- The petitioner has assailed show-cause notice dated 29-11-2010 served on him under section 7(b) read with section 5(1)(a) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ("PEEDA"). Counsel for the petitioner has argued that the allegations in the show-cause-notice were earlier settled by the Punjab Board of Technical Education (respondent No,2) when the adverse remarks in the ACRs were expunged vide its office order dated 13-5-2006. It is, therefore, contended that once the adverse remarks were expunged, the matter had become past and closed and could not have been reopened by the Technical Education and Vocational Training Authority (TEVTA) = respondent No,1 or by respondent No,2 and, therefore, the impugned show-cause notice is tainted with mala fide and hence bad in law. It is in this background that the petitioner has invoked the constitutional jurisdiction of this court to assail the show-cause notice rather than submitting a reply thereof and contesting it before the respondents. Additionally, the counsel for the petitioner submitted that the matter cannot be reopened under section 27 of the Punjab Board of Technical Education Ordinance, 1962 ("Ordinance') which provides protection to orders and acts of the Board if done in good faith. In support of his contentions counsel has placed reliance on Constable Muhammad Azeem and 5 others v. District Police Officer, Khanewal (2010 PLC (C.S.) 1427), Raza Muhammad v. District Police Officer, Mianwali (2007 PLC (C.S.) 725), Sultan Azam v. Government of the Punjab and others (2002 PLC (C.S.) 1521), Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others (2006 SCMR 285), Muhammad Dawood and others v. Federation of Pakistan and others (2007 PLC (C.S.) 1046), Federation of Pakistan through Secretary, Establishment Division, Islamabad and another v. Sheikh Abdul Aziz (1998 SCMR 91) and Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others (2004 SCMR 468).
2. On the other hand, counsel for the respondents submit that the expunction of the adverse remarks were a result of misrepresentation and fabrication by the petitioner and, therefore, the principle of locus poenitentiae cannot be pressed in this case. It is further contended that under section 12 of the Ordinance, the controlling authority i.e,, TEVTA has the power to cause inquiry to be made into any Matter concerning the Board. The instant matter has been reopened under the said power enjoyed by TEVTA. Lastly, it is vehemently argued that the instant petition is premature and not maintainable as mere show-cause-notice has been assailed in the instant petition besides the petitioner has remedies available under PEEDA if an adverse order is passed against the petitioner.
For the above contentions the respondents have placed reliance on The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin (PLD 1992 SC 207), Muhammad Sidiq through L.Rs, v. Punjab Service Tribunal, Lahore and others, (2007 SCMR 318), Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others, (2009 PLC (C.S.) 161) and Dr. Khalida Pervez v. Government of Pakistan through Ministry of Defence, Islamabad and 4 others, (2003 CLC 156).
3. Arguments heard and record perused.
4. The petitioner has challenged show-cause notice dated 29-11-2010 issued by respondent No,1 under PEEDA. It is not the case of, the petitioner that the show-cause notice has been issued by an incompetent authority or has been issued palpably without jurisdiction (even though the counsel for the petitioner has argued that as the present show-cause notice has reopened a past and closed matter it is, therefore, without jurisdiction I have addressed this later in the judgment).
5. The grounds of challenge argued by the petitioner before this court gravitate around mala fide of the respondents, in reopening a past and closed matter, the absence of locus poenitentiae to recall order dated 13-5-2006 of respondent No,2 and the statutory protection provided to orders under section 27 of the Ordinance.
6. Before delving deeper into the merits of the case, it is essential to assess the scope and limits of judicial reviewability of a show-cause notice. For this purpose, a show-cause-notice can be divided into two parts. The first part deals with the act of issuance of the show-cause notice by the competent authority. While the second part pertains to the actual body or subject-matter of the show-cause notice.
7. Issuance of a show-cause notice is itself a complete act or decision. This decision, order or act of the competent authority is subject to judicial review provided the issuing authority is amenable to writ jurisdiction. In such a case, the grounds for challenge are limited to whether the show-pause notice was lawfully issued by the competent authority and whether the issuance of the show- cause notice is ultra vires the relevant law and hence without jurisdiction.
8. The second part of the show-cause-notice is its subject-matter. This part is no more than a set of allegations that have yet to be replied to and have yet to undergo adjudicatory process. This part is therefore, still in its infancy till it matures and crystallizes into an order. As there is no order, there is nothing adverse affecting anyone's rights. No legal right has been infringed and therefore the need for a remedy does not arise. Where there is a right, there is a remedy; and as a corollary, there cannot be a remedy where there is no right. Second part of the show-cause notice, in the absence of a definite finding or order, is inchoate and not ripe for judicial review. Hence, a person challenging the same is not an aggrieved person under Article 199 of the Constitution.
9. All the grounds raised by the petitioner, in particular, the grounds of past and closed transaction, mala fide and others can be conveniently raised before the competent authority in reply to the show-cause notice. A case in point is Chanan Singh v. Registrar, Co-op Societies, Punjab and others (AIR 1976 SC 1821) where Managing Director of the Bank initiated departmental proceedings against the petitioner and issued a show-cause-notice. The petitioner challenged the legality of the proceedings. The court concluded: "After all, even the question of jurisdiction to reopen what is claimed to be a closed enquiry will, and must, be considered by the Managing Director."
10. The question of mala fide, which is a mixed bag of law and facts can also be gone into by the competent authority. There is no justification for this court to get into the thicket of disputed facts which have yet to be resolved by a competent authority. The court must give time and space to the competent authority to sit in judgment over all the allegations raised in the show-cause-notice and pass a definitive order. For the purposes of Article 199 of the Constitution, such a case is not ripe enough to be considered for judicial review. Reliance is placed on Al-Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal (1993 SCMR 29), Shagufta Begum v. The Income Tax Officer, Circle-XI, Zone-B, Lahore (PLD 1989 SC 360) and Dr. Khalida Pervez v. Government of Pakistan through Ministry of Defence, Islamabad and 4 others, (2003 CLC 156).
11. There is another aspect of the matter. Issuance of show-cause notice does not mean that the case will invariably be decided against the petitioner and there is always a possibility that the same may be decided in favour of the petitioner. Laying challenge to a show-cause-notice is, therefore, no different that filing a petition on the basis of an apprehension or a speculation. Such a petition is premature and not ripe for adjudication. "Just as a case can be brought too late, ... It can be brought too early, and not yet be ripe for adjudication ... Until the controversy has become concrete and focused, it is difficult for the Court to evaluate the practical merits of the position of each party. The basic rational behind the ripeness doctrine is "to prevent the courts through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties."
12. Hamood-ur-Rehman, C.J. (as he then was) in Asma Jilani's case (PLD 1972 SC 139) observed "the courts do not decide abstract, hypothetical or contingent questions or give mere. Declarations in the air. The determination of an abstract question of constitutional law divorced from the concrete facts of a case, as observed by Muhammad Munir, C.J., in The Province of East Pakistan and others v. MD. Mehdi Ali Khan (PLD 1959 SC (Pak) 387) floats in an atmosphere of unreality; it is a determination in vacuo and unless it amounts to a decision settling rights and obligations of the parties before the court it is not an instance of the exercise of judicial power. Further support for the above contention is drawn from Mian Muhammad Shahbaz Sharif v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and others (PLD 2004 SC 583), Union of India and another v. Kunisetty Satyanarayana (AIR 2007 SC 906), Special Director and another v. Muhammad Ghulam Ghouse and another (AIR 2004 SC 1467), Executive Engineer, Bihar State. Housing Board v. Ramesh Kumar Singh and others (AIR 1996 SC 691), State of Uttar Pradesh v. Shri Brahm Datt Sharma and another (AIR 1987 SC 943), Chief of the Army Staff and others v. Major Dharam Pal Kukrety (AIR 1985 SC 703), Chanan Singh v. Registrar, Co-op. Societies, Punjab and others (AIR 1976 SC 1821), Zeal Pak Industries (Pvt.) Ltd., Karachi v. Regional Commissioner, Income Tax, Karachi and 2 others (2009 PTD 712), Mehboob Ali Malik v. The Province of West Pakistan and others (PLD 1963 Lah. 575), Shaheen Asad, Assistant Manager Finance/ Accounts, Azad Kashmir Logging and Sawmill Corporation, Muzaffarabad v. Azfar Yaseen, Assistant Manager, Finance and Accounts, Azad Kashmir Logging and Sawmill Corporation, Muzaffarabad (2001 PLC (C.S.) 93) and. Dilshad Kausar v. Azad Jammu and Kashmir Government (Prime Minister) through Chief Secretary and 2 others (2005 PLC (C.S.) 1048).
13. Interference at the stage of issuance of show-cause notice stultifies and retards the inquiry process provided under the relevant law (in this case PEEDA). This unduly stalls the investigative machinery of the quasi judicial authorities and hampers discharge of their statutory E duties which1 2 3 4 5 are to be done with a free hand independent from outside control. The petitioner has an opportunity to place his case before the competent authority and there are elaborate procedures by way of appeal or revision against order passed in such proceedings.
14. Another dimension of the case is that the relationship of the petitioner is of contractual nature and is not governed by any statutory rules of service. Therefore, the relationship of the petitioner with the respondent Authority is governed by the principle of master and servant for which remedy lies before the Civil Court of competent jurisdiction and not under the constitutional jurisdiction of this court. Reliance is placed on Pakistan International Airline Corporation and others v. Tanweer- ur-Rehman and others (PLD 2010 SC 676), and Chairman, State Life Insurance Corporation and others v. Hamayun Irfan and 2 others (2010 SCMR 1495) and Pakistan Telecommunication Co. Ltd.
Through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132).
15. No comment has been made or opinion rendered on the merits of the case (second part of the show-cause notice) lest it prejudices the adjudication of the show-cause notice before the competent authority. For the above reasons this petition is not maintainable and is, therefore, dismissed with no order as to costs. Law of Writs--- V.G. Ramchandran's --- Sixth Edition- Eastern Book Company (page 1692 vol II). Ronald D. Rotunda, John E.Nowak, Treatise on Constitutional Law, Second Edition West Publishing Company (Volume I, pages 188-189) Rogers, Healy, Krotoszynski, Administrative Law, Wolters Kluwer, 2008 (page 686) Justice (R) Fazal Karim, Judicial Review of Public Actions, Pakistan Law House2006 (page 981) Ibid