MUHAMMAD SHERAZ KAYANI, J.--The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, following relief has been claimed:-- "It is, most humbly prayed that in view of the above by accepting the writ petition, appropriate writ may very kindly be issued declaring the entire proceedings the Notification dated 15.08.2016 and order dated 02.10.2016 regarding blacklisting of the petitioner and barring him from participation in future consultancy bidding process as without jurisdiction, without lawful authority 'and of no legal effect which may very kindly be quashed and set aside. Any other relief which the Hon'ble Court deems fit may also very kindly be granted to the petitioner along with the costs of the writ petition."
2. Precise facts, culminating into filing of the instant writ petition are that petitioner is a consultant Engineer, registered with the Pakistan Engineering Council, (hereinafter to be referred as PEC), and is running his business of the Engineering consultant in the name of JERS Engineering Consultants as sole proprietor, for the last about 14 years. It has been stated that the petitioner enjoys a good and high reputation in the relevant field, even at international level and has completed different projects in Azad Jammu and Kashmir as well as in Pakistan. It has been claimed that a job of Engineering Consultancy was advertised pertaining to a project of Islamic Bank, known as 'Support to Basic Education Development . in Azad Jammu and Kashmir' and in response to the said advertisement, the petitioner also applied and after due competition, the petitioner, being the lowest bidder was declared entitled to award of the said job. It has been claimed that the petitioner, recently has got knowledge that respondent No,1 has ordered blacklisting of the petitioner vide Notification dated 15.08.2016 and the order dated 02.10.2016. It has been alleged that petitioner was never informed/apprised or associated about any proceedings against him and the orders have been passed, in his absence, without affording him an opportunity of being heard. It has been further alleged that the petitioner submitted application before the relevant authorities for provision of certified copies of the minutes of the meeting, wherein, the blacklisting of the petitioner was ordered and the orders/Notifications, issued in furtherance of the decisions of the meeting but the same have not been provided by the respondents. It has been claimed that all the proceedings, prior to issuance of Notification dated 15.08.2016 and order dated 02.10.2016 have been conducted on the allegation of mismanagement and violation of the prevailing rules and procedure during execution of the project, namely; Greater Water Supply Scheme, Kotli, without affording the opportunity of hearing to the petitioner, hence, the same are against the law rules, against the principles of natural justice as well as violative of the fundamental right of livelihood of the petitioner, which is a constitutionally guaranteed right, thus, the proceedings and the order/Notification are liable to be declared ab-initio void.
3. The respondents were directed to file written statement and the needful has been done, accordingly and separately, however, the relevant Department, namely; Physical Planning and Housing Department has not bothered to take care and comply with the order of the Court.
4. In the written statement, filed on behalf of respondents Nos,6, 9 and 14, it has been stated that the impugned proceedings have been conducted by the Physical Planning and Housing Department and the impugned Notification/order have also been issued by the said Department, and the respondents have nothing to do with the case.
5. In the written statement, filed on behalf of respondent No,15, it has been stated that under Section 20 of PEC Act, 1976, the PEC has the powers to proceed against any of its member, in case of any misconduct/violation etc.
6. In the written statement, filed on behalf of respondents Nos, 2, 3, 4 and 10, simply it has been stated that it is noj necessary that the said project be allotted to the petitioner and the representative of the petitioner was present in the meeting held on 12.07.2016.
7. Mr. Abdul Rasheed Abbasi. Advocate, the learned counsel for the petitioner, while reiterating the facts and grounds enumerate in the petition vehemently contended that under the PE( rules, it is the PEC, who is empowered to take disciplinary action against a member engineer/consultant and the Government of Azad Jammu and Kashmir has no powers to order blacklisting of the petitioner.
The learned counsel stressed on the point that the petitioner has not been provided, even a single opportunity of being heard, hence, the impugned order/ Notification have been issued in violation of the principle of audi alteram partem.
8. On the contrary, the learned AAG, while controverting the arguments raised on behalf of the learned counsel for the petitioner, simply owned and repeated the facts incorporated in the written statement and contended that no violation of any law or rules has been pointed out by the petitioner. He has not been condemned unheard, as his representative was present in -the meeting, wherein, the decision was taken. The learned counsel submitted that it is not necessary that the project be sanctioned in favour of the petitioner and the Government is competent to take disciplinary actions against the petitioner, therefore, the petition be dismissed with costs.
9. I have perused the written arguments filed on behalf of the parties and gone through record of the case carefully.
10.A careful perusal of the file reveals that the petitioner, being an Engineer, consultant registered with the PEC was awarded contract of Greater Water Supply Scheme, Kotli, however, later on, in a meeting, chaired by the Chief Secretary, the project was renewed and the petitioner/consultant has been blacklisted and barred from participation in the bidding process in future, vide order dated 02.10.2016.
11.The main contention of the learned counsel for the petitioner, as emphasized by him is that the petitioner has not been heard by the respondents, before issuance of the impugned order, hence, has been condemned unheard.
12. Secondly, the learned counsel has stressed the point that in case of any irregularity or misconduct, it is the PEC, who is competent to take disciplinary action against a consultant, registered with it.
13. For the removal of the consultant Engineer, from the list or register of consulting Engineers, under the rule 8(3) of the Pakistan Engineering Council Conduct and Practice of Consulting Engineers, Bye-laws, 1986 a procedure has been provided. For proper perception, the relevant rule is reproduced, below:--- "8. Registration and Penalties: (1).Xxxxxxxxxxxxxxxxxxxxx (2).Xxxxxxxxxxxxxxxxxxxxx (3).Any infringement of these bye-laws by a consulting Engineer shall render him liable to punitive action by the Council as it may deem fit. Such action may amount to suspension for a period of time or removal of the name of the consulting Engineer from the Register of consulting Engineers."
14. So, without referring the matter to the PEC and penalty of removal from the list, the petitioner- Firm was not liable to be A blacklisted, as the basic right for earning livelihood cannot be snatched without adopting the legal course.
15. In the instant case, it is the main claim of the petitioner that he has not been provided an opportunity of hearing, hence, stood condemned unheard.
16. It is universally celebrated principle of law that nobody can be condemned unheard. There is plethora of case law on the point. In case titled Chairman Pearl Development Authority v. Tariq Inqalabi and 7 others (2) reported as 2005 PLC (C.S.) 1074 the Hon'ble apex Court of the Azad Jammu and Kashmir, has pleased to observe as under:-- "9. There is another important aspect of the case which was attended to by the High Court that the respondents were removed from their services without providing any opportunity of hearing to them. By now, it is a settled proposition of law that before passing an adverse order against a person or imposing a penalty, it is essential to give a notice for personal hearing and the same cannot be dispensed with unless there is a specific provision in the relevant law that services of a civil servant could be terminated without serving any notice upon him."
In a recently decided case, titled Taskeen Naz v. Fehmida Begum and 11 others, (4) appeals, reported as [2016 SCR 1436], the like controversy has been resolved by the Hon'ble apex Court, in the following manner:--
8. So far as the most heated argument regarding non-providing the opportunity of hearing is concerned, no doubt under the provisions of Section 12 of Act, 1976, for retiring a civil servant in public interest, the requirement is that no such order will be made unless the competent authority has intormed in writing of the grounds on which it is proposed to make the order and has given him an opportunity of showing cause against it."
17.In the written statement. the respondents have stated that the representative of the consultant/ petitioner was present in the meeting, and the list of the participants, appended with the petition contains the name of Mr. Fazal Karim, Project Director, Greater Water Supply Scheme Kotli, placed at serial No,4 of the list. However, presence of the project director of the project, does not mean that the petitioner has been given opportunity of defense and proving his innocence.
18.It may be stated that the petitioner/ consultant may be wrong or guilty of the alleged misconduct, but if so, even then, he must have been heard prior to passing the any adverse order, hence, the order under challenge, being hit by the principle of audi alteram partem and therefore, not sustainable. However, the respondents are at liberty to proceed against the petitioner, after affording reasonable opportunity of hearing to him.
19. The epitome of the above detailed discussion is that the instant writ petition is accepted. The impugned Notification dated 15.08.2016, to the extent of petitioner, (i,e, item No,2, barring of petitioner and order dated 02.10.2016 are hereby declared as null and void and non-existing. The respondents while taking proceedings against the petitioner afresh, shall provide him an opportunity of hearing and then, for final penalty, if any, the matter may be referred to the Pakistan Engineering council.