C M . No .01/2020 MOHSIN AKHT AR KAYANI, J.----Perusal of record reveals that applicant/Petitioner Sheikh Ansar Aziz, Mayor , ICT, Islamabad was suspended vide notification dated 17.5.2020 issued by the Gove rnment of Pakistan, Ministry of Interior , Islamabad in terms of Power conferred under section 96(3), ICT, Local Government Act, 2015 for 90 days for fair conduct of inquiry . The said notification was assailed by the Petitioner and at pre-admission stage on 18.5.2020, the Additional Attorney General Mr. Tariq Mehmood Khokhar put his appearance before the Court and accepted the notice on behalf of respondents Nos.1 to 3, requirement of issuance of notice was waived of and respondents were directed to file parawise comments. The Secretary , Local Govern ment Commission was directed to appear in person along with record, however , no injunction was granted at that stage as it is necessary to hear the respondent side before passing any order .
2. Learned counsel for the applicant/Petitioner contends that Secretary , Local Government Commission, Islamabad was not authorized to issue the agenda items for the 7th meeting under the law and even the question of suspension of Mayor , MCI was not on agenda items list of 7th May, 2020, even 7th meeting of the Local Government Commission, Islamabad was confined to the extent of those items referred in the agenda and after conclusion of meeting, Sheikh Ansar Aziz, Mayor , MCI, has left the meeting where after its additional agenda item No.4 was taken up in his absence withou t any authorization in a colourful exercise and illegal manner . It is further contended that entire 7th meeting of the Local Government Commission, Islamabad was not conducted by Ali Nawaz Awan, Chairman who was not present and his attendance was not marked and even all the three MNAs and Senator were absent as result Quorum was not complete. It is further contended that Petitioner has not been confronted with any allegation nor he has been given any opportunity of hearing in the Local Government Commission's meeting to controvert the allegations which is minimum require ment of Section 96 (i) of the Islamabad Capital Territory Local Government Act, 2015, which were not adhered to, as there is a marked difference between "Inquiry" referred in Section 96(i)(b)(i) and the term "Enquiry" referred in 96(1)(d) and as such Local Government Commission could not manage their affairs without framing Rules to conduct business which have not yet been framed.
3. On the other hand Secretary , Local Government Commission, Islamabad as well as learned counsel for the Commission has taken a categorical stance on the basis of their record that the meeting was convened in the presence of Petitioner and he has been confronted with all the allegations referred in the agenda whereafter suspension was recommended by the Commission to the Federal Government.
4. The Additional Attorney General contended that as per his instruction the impugned notification was issued by the relevant Ministry after adopting due procedure prescribed in Rules of Business, 1973.
5. The Advocate General, ICT , Islamabad has also supported the case of respondents.
6. Arguments heard. Record perused.
7. The Petitioner has assailed the entire process and working of the Local Government Commission including the decision made in the meeting held on 14.5.2020, its recommendations, agenda items and notification dated 17.5.2020. However , it has been noted that another W.P.No.493/2020 was also filed by the present Petitioner against previous notification dated 07.1.2020 issued by Ministry of Interior , Islamabad in the earlier round whereby action was proposed against the petitioner and restraining order to that ef fect was issued which is as under:- C. M. No . 01/2020.
Notice. In the meanwhile, respondents are restrained from taking any adverse action against the Petitioner/Mayor MCI, till the next date of hearing .
8. Keeping in view the above background, I have gone through the original record placed by Secretary , Local Government Commission before this Court whereby agenda items of meeting dated 07.5.2020 is as under:- GOVERNMENT OF P AKIST AN LOCAL GOVERNMENT COMMISSION ISLAMABAD File No.10(24)-1-GC/2020-V ol-111/019 Islamabad 7th May , 2020 Subject:- MEETING NOTICE/AGENDA OF 7TH MEETING OF THE LOCAL GOVERNM ENT COMMISSION, ISLAMABAD.
It is to inform that the Chairman Local Government Commission Islamabad has been pleased to include the following as agenda items for 7th meeting of Local Government Commission Islamabad to be held on Thursday 14th May , 2020 12.00 P .M. at Jinnah convention Centre Islamabad.
S.No. Agenda Items
1. For clarification and follow up action in pursuance of the portion of Inquiry Report related with illegal advertisement / outstanding amount and failure to arrange sacrificial cattle market 2019 by DMAMCI Appearance of Mayor Islamabad, Director Municipal Administration MCI, D.O / Recovery Magistrate MCI (in recovery matters) before the Commission (along with relevant record)
2. Office space for establishment of Secretariat of Local Government Commission Islamabad. (D.G ICT A/Director Admin ICT A to make presence)
3. Any other item with the permission of Chairman Local Government Commission, Islamabad.
Sd/- Secretary , LOCAL GOVERNMENT COMMISSION ISLAMABAD The above referred agenda is silent qua the inquiry or suspension of the. Mayor , MCI, however , for the sake of arguments respondents have heavily relied upon agenda Item No.3 "Any other item with the permission of Chairman Local Government Commission Islamabad", however , such type of proceedings could not be considered in concealed manner or by deception. I have gone through the attendance sheet for the 7th meeting of the Local Government Commission held on 14.5.2020 available at page 11 of the record presented by the Secretary Local Government Commission which spells out that out of 07 members of the Commission 04 were present who signed the attendance sheet whereas Raja Khurram Shahzad Nawaz, MNA, Mr. Musha hid Hussain Syed, Senator and Raja Pervez Ashraf, MNA were absent. Even the attendance of the Chairman of Local Government Commission was not marked in the attendance sheet and no valid justification has been submitted at this stage, however , the decision on other agenda items prima facie reflects that the Chairman was available on the said date and presided the meeting. The minutes of the meeting reflect that in agenda Item No.1 Mayor was confronted on 4 to 5 occasions on the issue in detail and a decision was taken whereas agenda Item No.2 was only referred to Joint Secretary CDA for resolution of the issues and agenda No.3 was for grant of honoraria and decision was made.
However , additional agenda Item No.4 i.e. subject matter of this writ petition refers that a reference was presented by Chief Officer, MCI before the Commission regarding operation, management and maintenance of local mini transport stands (intra city wagon and taxi stands) and collection of entry ticket/fee through open auction, whereby Chief Officer has submitted his point of view in this agenda only and surprisingly Mayor i.e. Petitioner has not been confronted with any such remarks or allegation even no reply or answer or explanation on behalf of the Petitioner/Mayor was recorded therein which is a missing link. When confronted learned counsel for the Local Government Commission as well as Secretary Local Government Commission could not answer this, query . The record is silent regarding Petitioner's point of view. There is no discussion referred in the minutes of meeting regarding agenda item No.4, this aspect prima facie reflects that either the Mayor MCI was not present in the said meeting when this additional agenda item No.4 was taken up or no such proceedings were carried out.
9. I have also gone through the relevant provision of Section 96(i) of ICT, Local Government Act, 2015 whereby local Government functions have been defined. The relevant extract of the provision is as under: -
96. Function of the Commission.-(1) The Local Government Commission shall--
(a) ...................................
(b) If so directed by the Government conduct,:
(i) an inquiry by itself or through any other agency about any matter concerning a local government; or
(ii) ....................................
(c) Resolve the disputes between the Union Council and Metropolitan Corporation, and the disputes between the local Government and other governmental bodies and departments, and if the Commission fails to settle the dispute, the aggrieved party may move the Government for resolution of the dispute;
(d) enquire into the matters referred to it by the Government or a Chief Officer and give its decision on such matter;
(2) The decision of the Commission shall be binding on the local governments failing which the Commission may report the matter with specific recommendations to the Government for an appropriate action.
(3) The Government may, on the recommendation of the Commission, suspend a Mayor or a Chairman for a maximum period of ninety days for fair conduct of inquiry under subsection (1) or for preventing the Mayor or Chairman from continuing with any unlawful activity during the pendency of the inquiry .
While considering the above provision of law which regulates the functions of the Local Government Commission as well as the power enshrined for inquiry , it discloses that an inquiry by itself or through any other agency concerning the matter of Local Governm ent could be initiated, if so directed by the Government whereas in this regard no such recommendation was given by the Federal Government as of today . The Advocate General, the Additional Attorney General as well as Advocates of the respondents are of the unanimous view that Federal Government has not directly initiated the inquiry , therefore, direct power available to the Local Government Commission in terms of section 96(i)(C) of ICT Local Government Act, 2015 has not been exercised.
10. The Petitioner's Counsel contend that The word "Enquiry" referred in 96 (i)(d) of ICT, Local Government Act, 2015 which is of a different connotation viz-a-viz the term "Inquiry" referred in this section, however , Government may suspend the Mayor or a Chairman for maximum period of 90 days if certain pre-requisite are fulfilled which are as follows:- a) "For fair conduct of inquiry" in terms of subsection (I) of section 96 OR b) "Preventing the Mayor or Chairman from continuing with any unlawful activity during pendency of the inquiry".
The above referred two pre-requisite only establish, that if Mayor is influencing the pending inquiry or creating any obstruction, hindrance or destroying the evidence, then suspension is mandatory otherwise it is not mandatory in nature as word "may" has been used.
11. I have gone through the record whereby no reference of influence, obstruction was referred on the part of Mayor in the pending inquiry . Even otherwise petitioner counsel has been confr onted regarding initiation of an inquiry against the Mayor who conceded that Mayor has no objection on initiation of inquiry subject to the condition that the same is conducted in accordance with law. Although learned counsel has highlighted certain political aspect in this case by referring that Petitioner Sheikh Ansar Aziz was elected during the tenure of PML(N)
Government and he was the member of the said party whereas at present PTI is running the show , however , this aspect could not be evaluated at this stage.
12. Before initiation of any inquiry it is necessary to, confront the allegation to a person against whom the allegation has been levelled which should disclose a positive proof that certain illegalities were made and after receiving the reply , any order under the law could be passed at A the touchstone of due process of law, equity and fair play but all these ingredients prima facie are, not reflected from the minutes of meeting. Three members of the Commission, who represent PML(N), PPP and PTI were not available in the meeting even then such adverse order could not be passed without giving reasonable opportunity of hearing to defend which is a key factor in such type of proceedings, as such the requirement of due process of law enshrined in Article 10-A of the Constitution of Pakistan has not been adhered to.
13. In these circumstances, Article 199 of the Constitution of Pakistan, 1973 comes into play to rescue the Petitioner , if he remained under suspension, the Local Government representation of citizen of ICT would not be available. The Commission was ought to ask the applicant petitioner to rebut the allegations at the first instance before giving any recommendation which is the key requirement. Reliance is placed upon 1997 SCMR 117 (Mehar Zulfiqar Ali Babu v. Government of Punjab ), 2017 YLR 1182 (Hemayatullah Mayor District Nazim Mardan v.
Chief Minister Khyber Pakhtunkhwa ) whereby it has been held that Local Government Commission was bound under the law to give opportunity of hearin g before such recommendations. It is yet to be decided that a fair inquiry could not be carried out during holding of the post by the Petitioner even if the inquiry is regarding his own unlawful activities, the principle of natural justice i.e. Audi Alteram Partem shall strictly apply , therefore, such missing elements prima facie reflect the stance of the Petitioner as correct at this stage. The irreparable loss and balance of convenience lie in favour of applicant/Petitioner who has not been afforded opportunity of hearing. Even at this stage, Secretary Local Government was confronted with original record where by he candidly conceded that petitioner was not present at the time of discussion of additional agenda item No.4 . Similarly , official of Ministry of Interior , Islamabad has also not referred the original record to justify at this stage whether Federal Government in terms of Mustafa Impex case reported as PLD 2016 SC 808 has issued the impugned notification.
14. In view of above position impugned notification dated 17.05.2020 is hereby suspended till the next date of hearing.
15. The above referred observations are tentative in nature and will not prejudice the case of either party while taking the final decision in the main writ Petition.
Main Case.
Mr. Tariq Mehmood Khokhar , Additional Attorney General at the very outset contends that he accepted the notice on behalf of respondents Nos. 1 to 3 i.e. Federation of Pakistan, Chairman Local Government Commission and Local Government Commission, Islamabad on 18.5.2020 and also filed parawise comments but he could not represent respondents Nos.2 and 3 at this stage and he will only represent respondent No.1 i.e. Federation of Pakistan.
2. Learned counsel for respondents Nos.2 and 3 in attendance contends that although parawise comments have been filed but they will file additional documents on record if so required on the next date of hearing.
3. At this stage, Secretary Local Government Commission, Islamabad, Mr. Ali Sufian is in attendance who produced the original record of the agenda item as well as meeting convened on 14.5.2020, the same is hereby returned. The parties are directed to submit their detailed parawise comments before the next date of hearing.
4. Adjourned to 23.6.2020.