Through this petition, the petitioner name ly, Mrs. Faryal Talpur (hereinafter referre d to as 'Petitioner') has invoked the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the `Constitut ion') assailing order , dated 08.02.2021, passed by the learned Election Commission of Pakistan (hereinafter referred to as the `Commission').
2. Briefly stated, the facts, are that Respo ndents No. 1 and 2, both members of the Provincial Assembly of Sindh, had filed an application seeking disqualif ication of the Petitioner under Article 63(2) of the Constitution. However , the worthy Speaker did not entertain the petition and it was accordingly dismissed. The respondents filed an application/petition, dated 24.07.2019, before the learned Commission. The petition was dismissed by the learned Commission for non-prosecution vide order , dated 14.01.2020. An application for restoration of the petition was filed on 21.01.2020 and it was allowed vide order , dated 03.02.2020. According to the written comments filed on behalf of the Commission, after filing of the application for restoration of the petition, notices were issued to all the concerned parties including the Petitioner through the Regional Election Commissioner Karachi Division. A copy of the notice has been attached with the written comments. An application, dated 4.3.2020, was filed by the Petitioner wherein the latter had prayed that order , dated 03-02-2020, whereby the petition was restored, be recalled. The application was heard by five learned Members of the Commission and it was dism issed vide the impugned order , dated 8.2.2021. The short order was followed by issuance of detailed reasoning.
3. The learned counsel for the Petitioner has contended that; sub-rule (2) of Rule 9 of Order IX of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') unambiguously declares that no order shall be made for restoration of a suit dismissed for non-prosecution unless notice has been served on the opposite party; the notice attached with the written comments of the learned Commission was not served on the Petitioner; the Petitioner has been denied the right guaranteed under the aforesaid provision; without affording a reasonable opportunity of hearing, the petition could not have been restored; reliance has been placed on "Hazar (Hill Tract) Improvement Trust through Chairman and others v . Mst. Qaisra Elahi and others" [ 2005 SCMR 678 ].
4. The learned counsel who has appeared on behalf of the Commission on the other hand has argued that; notice was duly issued and received at the residence of the Petitioner; no prejudice is caused to the Petitioner because her application was heard by a Bench of the Commission consisting of five learned Members; the impugned order is well reasoned and does not suf fer from any legal infirmity .
5. The learned counsels for the parties have been heard and the record perused with their able assistance.
6. It is an admitted position that the joint petition filed by the respondents was dismissed for non-prosecution vide order , dated 14.1.2020. On the said date a written reply was filed on behalf of the Petitioner . However , neither the respondents nor an authorized representative were present and, therefore, the joint application/ petition was dismissed for non-prosecution vide order , dated 14.1.2020. The petitioner filed an application for recalling of order , dated 4.3.2020. A careful perusal of the impugned order shows that the learned Commission after affording a reasonable opportunity of hearing had dismissed the application. Moreover , the application seeking restoration was filed within the limitation period. The learned Commission was also satisfied that the reasons mentioned in the application seeking restoration of the dismissed application/petition constituted sufficient cause for non- appearance. The petitioner herself had approached the Commission seeking recalling of the order , dated 14.01.2020. She had, therefore, created an opportunity for herself to raise all the grounds necessary to support her prayer regarding recalling of the order , dated 14.01.2021. It is obvious from the impugned order , dated 08.02.2021, that proper opportunity of hearing was afforded by a Bench of the Commission consisting five learned Members.
The only question to be answered by this Court is whether any prejudice has been caused to the Petitioner , particularly whether the principles of procedural fairness have been violated.
7. There is no cavil that the principles of natural justice are embedded in the fundamental right guaranteed under Article 10-A of the Constitution of the Islamic Republic of Pakistan 1973 as an integral part of due process. In this regard, it would be pertinent to refer to two judgments of the august Supreme Court. In the case of "The University of Dacca through its Vice Chancellor and. another vs. Zakir Ahmed" , reported as [PLD 1965 SC 90], the august Supreme Court, after examining the case law , observed and held as follows: "What these principles of natural justice are it is not possible to lay down with any exactness, for, they have been variously defined in various cases, as was pointed out by the Judicial Committee in the case of the University of Ceylon v. Fernando Tuker, L. J., said in Russel v. Duke of Norfolk (1) "the requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry , the rules under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth." Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the "elementary and essential principles of fairness" as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement puttin g forward his own case and "to correct or controvert any relevant statement brought forward to his prejudice." Of course, the person, body or authority concerned must act in good faith, but it would appear that it is not bound to treat the matter as if it was a trial or to administer oath or examine witnesses in the presence of the person accu sed or give him facility for cross- examining the witnesses against him or even to serve a formal charge sheet upon him. Such a person or authority can obtain information in any way it thinks fit, provided it gives a fair opportunity to the person sought to be effected to correct or contradict any relevant statement prejudicial to him. In other words, "in order to act justly and to reach just ends by just means" the Courts insist that the person or authority should have adopted the above "elementary and essential principles" unless the same had been expressly excluded by the enactment empowering him to so act."
8. A Bench consisting of thirteen Hon'ble Judges of the august Supreme Court, in the case of "Justice Khurshid Anwar Bhinder vs. Federation of Pakist an" reported as [PLD 2010 SC 483], examined various precedent law relating to the doctrine of audi alteram partem. In Paragraph 41 of the judgment the august Supreme Court has referred to circumstances wherein, prima-facie, the right of the opportunity to be heard may be excluded by implication. In Paragraph 42, it has been held as follows: "It must not be lost sight of that in the above mentioned "exclusionary cases, the "audi alteram partem" rule is held inapplicable not by way of an exception to fair play in action but because nothin g unfair can be inferred by not affording an opportunity to present or meet a case." (Maneka Gandhi v Union of India AIR 1978 SC 597, (1978) 1 SCC 248. Vide also Mohinder Singh Gill v The Chief Election Commissioner AIR 1978 SC 851, (1978) 1 SCC 405.
The doctrine of "audi alteram partem" is further subject to maxim nemo inauditus condemnari debet contumax."
Therefore, where a person does not appear at appropriate stage before the forum concerned or is found to be otherwise defiant the doctrine would have no application. It is also to be kept in view that "application of said principle has its limitations. Where the person against whom an adverse order is made has acted illegally and in violation of law for obtaining illegal gains and benefits through an order obtained with mala fide intention, influence, pressure and ulterior motive then the authority would be competent to rescindlwithdrawnlcancel such order without affording an opportunity of personal hearing to the affected party . Said principle though was always deemed to be embedded in the statute and even if there was no such specific or express provision, it would be deemed to be one of the parts of the statute because no adverse action can be taken against a person without providing right of hearing to him. Principle of audi alteram partem, at the same time, could not be treated to be of universal nature because before invoking !applying the said principle one had to specify that the person against whom action was contemplated to be taken prima facie had a vested right to defend the action and in those cases where the claimant had no basis or entitlement in his favour he would not be entitled to protection of the principles of natural justice."
(Nazir Ahmed Panhwar v. Government of Sindh through Chief Secretary Sindh 2009 PLC (C.S) 161, Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 and Abdul Waheed and another v. Secretary , Ministry of Culture, Sports, Tourism and Youth Affairs, Islamabad and another 2002 SCMR 769). It has been elucidated in the detailed reasoning of the judgment of 31.7.2009 how the order passed by a seven Member Bench of this Court has been flagrantly violated.
Besides that the applicants had no vested right to be heard and furthermore they have acted illegally and in violation of the order of seven Member Bench for obtaining illegal gains and benefits which cannot be ignored while examining the principle of "audi alteram partem."
9. The august Supreme Court quoted with approval from various commentaries, including the Constitutional Development in Britain, authored by Lord Denning, and the relevant portion is reproduced as follows:- "The concept of natural justice is a combination of certain rules i.e. "audi alteram partem" (nobody should be condemned unheard) and discussed in depth in preceding paragraphs and "nemo judex in re sua" (nobody should be a Judge in his own case or cause) application whereof is to be decided by the Court itself in accordance with the fact, circumstances, nature of the case vis--vis the law applicable on the subject. It squarely falls within the jurisdictional domain of the Court concerned whether it would be necessary to embark upon the concept of natural justice and whether it would be inevitable for the just decision of the case. The Court is not bound to follow such rules where there is no apprehension of injustice. It can be said with certainty that the concept of natural justice is flexible and it cannot be rigid because it is the circumstances of each case which determine the question of the applicability of the rules of natural justice." There are a number of cases in India in which the flexibility of the rules of natural justice has been upheld. In New Parkash Transport Co. Ltd v. New Sawarna Transport Co. Ltd., the.
Supreme Court observed that rules of natural justice vary with varying constitutions of statutory bodies and the rules prescribed by the legislature under which they have to act, and the question whether in a particular case they have been contravened must be judged not by any preconceived notion of what they may be but in the light of the provision of the relevant Act. While natural justice is universally respected, the standard vary with situations 'contacting into a - brief, even post-decisional opportunity , or expanding into trial-type trappings. As it may always be tailored to the situation, minimal natural justice, the bares notice, "littlest" opportunity , in the shortest time, may serve. In exceptional cases, the application of the rules may even be excluded."
10. It is, therefore, obvious that the principles of natural justice are flexible and not rigid. The determination of the application of these principles depends on the circumstances of each case, and various factors may be taken into consideration for this purpose, such as the nature of the enquiry , the subject matter being dealt with, whether anything unfair can be inferred if the oppo rtunity is not afforded, whether there is no apprehension of injustice etc. However , depending on the facts and circumstances of each case, it would be sufficient if the 'elementary and essential principles of fairness' have been fulfilled. Therefore, in a given situation it may be sufficient if the person affected has been made aware of the nature of the allegations, has been afforded a fair and reasonable opportunity to defend the allegations and to controvert any statement made against him or her. It would not it be mandatory in very case to examine witnesses in the presence of the person against whom allegations have been made, or to afford him or her an opportunity for cross-examination. If a person who has been afforded a fair opportunity , which satisfies the requirements of the elementa ry and essential principles of fairness, then he or she may not be able to raise a grievance relating to violation of the principles of natural justice, as they would have no application in the given circumstances. In exceptional cases the application of the doctrine of 'audi alteram partem' may even be excluded.
11. As already noted above, order dated 14.01.2021, had merely allowed application, dated 21.01.2021, filed by the respondents seeking restoration of their joint application/petition. It has been explicitly stated in the written comments that the notice was issued to the Petitioner and it was also received at her residence. Even if it is assumed that the notice was not received by the Petitioner , yet no prejudice was caused to her because she herself opted to file an application before the learned Commission challenging order , dated 03.02.2021, whereby the petition had, been restored. A Bench of the Commission consisting of five learned Members had afforded proper and reasonable opportunity of hearing and thereafter the application was dismissed vide order , dated 08.02.2021. The detailed order besides recording reasons for dismissal of the application filed by the Petitioner has also re-affirmed the earlier order , dated 03.02.2021. In the facts and circumsta nces of the case in hand, the 'elementary and essentials principles of fairness' were indeed fulfilled. The Petitioner had herself created the opportunity and could have taken all the grounds in support of her prayer whereby she had sought recalling of order , dated 03.02.2021. It is obvious from a plain reading of the impugned order that the Commission had reviewed the grounds taken by the respondents in their application which had been allowed and consequently the application/petition had been restored. There is no apprehension of injustice being caused to the Petitioner because in the facts and circumstances of the petition in hand, the 'elementary and essential principles of fairness' stood complied with. Moreover , it is settled law that complaints/petitions should preferably be decided on merits rather than non-suiting a party on the basis of mere technicalities. Reliance is placed on "Manager , Jammu & Kashmir , State Property in Pakistan versus Khuda Yar and another" [PLD 1975 SC 678] and "Muhammad Anwar Khan and 05 others versus Ch. Riaz Ahmad and 05 others" [PLD 2002 SC 491 ].
12. For the above reasons, this Court is satisfied that no interference is required with the well-reasoned order , dated 8.2.2021, passed by the Commission and, therefore, the petition is accordingly dismissed.