Shujaat Ali Khan, J. Through this single judgment, I intend to decide following writ petitions having commonality of law and facts inasmuch as in all these petitions the petitioners have put a challenge to jurisdiction of the Election Commission of Pakistan ("the Commission") to initiate disciplinary proceedings against them:- Sr.No.Writ Petition No. Title 1.32915/2022 (this petition)Asif Hussain v. Election Commission of Pakistan & others
2. 32918/2022 Zeeshan Javaid v. Election Commission of Pakistan & others
3. 33714/2022 Badar Munir & others v. Election Commission of Pakistan & others
4. 33841/2022Muhammad Iqbal Khan & another v. Election Commission of Pakistan & others
5. 33842/2022Muhammad Qamar-Uz-Zaman v. The Election Commission of Pakistan & others
6. 33844/2022 Hasan Asad Alvi v. Election Commission of Pakistan & others
7. 33846/2022Muhammad Iqbal Kaloya v. Chief Election Commission of Pakistan & others
8. 34109/2022 Zulfiqar Ali Virk v. Election Commission of Pakistan & others
9. 34110/2022 Muhammad Ali v. Election Commission of Pakistan & others 10.34114/2022 Asif Nadeem Gulzar v. Election Commission of Pakistan & others
11. 34255/2022Farkhanda Yasmeen v. The Election Commission of Pakistan & others
12. 34452/2022 Muhammad Yousaf v. Election Commission of Pakistan & others
13. 35280/2022 Zareena Shahid v. Election Commission of Pakistan & others 14.42019/2022Ghulam Haider & others v. Election Commission of Pakistan & others 15.43054/2022 Zareena Shahid v. Election Commission of Pakistan & others 16.43421/2022Muhammad Yousaf & others v. Election Commission of Pakistan & others
17. 46358/2022 Shah Jehan v. Election Commission of Pakistan & others 18.46361/2022 Shahid Imran & others v. Election Commission of Pakistan & others 19.46485/2022Maqbool Ahmed Shakir v. The Election Commission of Pakistan & others 20.47305/2022Muhammad Ramzan Kamboh & others v. Election Commission of Pakistan & others
21. 47488/2022Maqsood Khan & others v. Election Commission of Pakistan & others
2. Briefly put, the facts, forming factual canvass of these petitions are that upon death of Syed Iftikhar-ul-Hassan Shah Member, National Assembly NA-75, Sialkot-IV (hereinafter to be referred as the Constituency), bye-elections for the Constituency were scheduled for 19.02.2021. Upon completion of the polling process, out of 360 polling stations, result of 340 polling stations was received on Form-45, at around 02:53 AM, on 20.02.2021 and that of remaining 20 polling stations was not received within the prescribed time. Ms. Syeda Nosheen Iftikhar, one of the contesting candidates in the Constituency, approached the Commission with the request to withhold the election result whereupon the Commission halted the announcement of election result. Finally, through order, dated 25.02.2021, the Commission scrapped the election in the Constituency while declaring it as null and void and ordered for fresh elections in the Constituency on 18.03.2021. Being aggrieved of order of the Commission annulment of the election in the Constituency, Mr. Ali Asjad Malhi, one of the contesting candidates in the Constituency, filed Civil Appeal No.166 of 2021 before the Hon'ble Supreme Court of Pakistan. On the other hand, the Commission vide Notification, dated 05.04.2021, ordered for Fact-Finding Inquiry by a committee, constituted under the convenorship of Mr. Saeed Gul, Joint Provincial Election Commissioner (Admn), Punjab, which gave its findings through Report, dated 29.09.2021. Pursuant to the report of the Fact Finding Inquiry Committee the Commission, on 14.02.2022, filed complaint, under sections 184, 186, 187 read with sections 188 & 190 of the Elections Act, 2017 (the Act, 2017) as well as under sections 365, 120-B, 171-F, 164, 386 & 368 of PPC, before the District & Session Judge, Sialkot, against certain persons, including some of the petitioners. The Hon'ble Supreme Court of Pakistan dismissed the appeal filed by Ali Asjad Malhi through short order, dated 02.04.2021, followed by detailed reasoning, issued in the month of August, 2022 inter-alia with a direction to the Commission to hold inquiry into the matter and unearth the means used by perpetrators for disappearance of 20 Presiding Officers on the day of bye-election. The Commission ordered for initiation of inquiry against the petitioners vide order, dated 05.01.2022 and issued Show Cause Notices to them with a direction to submit to their written defence/reply. Aggrieved by initiation of disciplinary proceedings against them by the Commission, the petitioners have filed these petitions.
3. Hafiz Tariq Nasim, Advocate, representing the petitioner in this petition, states that upon annulment of election in the Constituency by the Commission, his client being no more election official, as defined under section 2(xviii) of the Act, 2017, no proceedings could be conducted by the Commission against him; that though a Show Cause Notice cannot be challenged in writ petition but when the same is found patently illegal, jurisdiction of this Court is aptly attracted even to strike down a Show Cause Notice; that upon declaring the election in the Constituency as null and void, the Commission became functus officio, thus, it had no jurisdiction to initiate the impugned disciplinary proceedings against the petitioners, who are no more under its control; that according to section 55 of the Act, 2017, the Commission has jurisdiction to proceed against an election official only, thus, the impugned proceedings are coram-non-judice; that according to section 56 of the Act, 2017, before declaring a person as election official, it is prime duty of the Commission to administer oath and if a person is deployed for election duty without adhering to the said statutory provision, he does not fall within the definition of election official, thus, the Commission cannot take disciplinary action against such person while assuming jurisdiction under section 55 of the Act 2017; that as per section 15 of Punjab Employees Efficiency, Discipline and Accountability Act 2006 (hereinafter to be referred as PEEDA Act, 2006) if a borrowing department decides to initiate proceedings against a deputationist it is bound to solicit prior permission from his/her parent department but having not done so the proceedings initiated by the Commission against his client are ultra vires to the clear cut provisions of the PEEDA Act, 2006; that since no recommendations were given by the Fact Finding Inquiry Committee, the action against his client is not justified; that while filing complaint before the District & Sessions Judge, Sialkot, the Commission has declared the petitioner and other persons as guilty, thus, impartial inquiry is not expected at the hands of the Commission; that as the Commission is complainant against the petitioner and other officers/officials, it cannot be permitted to determine the fate of disciplinary proceedings initiated against his client; that though persons, hired by the Commission from the other departments, have been made to suffer by initiating multiple proceedings in the shape of departmental inquiry as well as complaint but the employees of the Commission, who, in fact, had the duty to ensure holding of fair elections, have been let unscathed; that mala-fide on the part of the Commission is evident from the fact that it disclosed its mind by ordering the Chief Secretary, Government of the Punjab, to suspend his client through order, dated 25.02.2021, in addition to depriving him of appointment for election duty in future, thus, it cannot be expected that the Commission shall hold fair and impartial inquiry; that according to section 55(4) of the Act, 2017 the Commission has to appoint one Authorized Officer to initiate and finalize departmental proceedings against an election official but nomination of panel of four members for inquiry against his client and others speaks volumes about the fact that while initiating the impugned disciplinary proceedings the provisions of the Act, 2017 have been violated; that if the Commission is allowed to continue with the impugned disciplinary proceedings, the petitioners would be deprived of their right of review/appeal in terms of section 16 of PEEDA Act, 2006 as well as that of revision as postulated under section 18 of PEEDA Act, 2006, hence, impugned proceedings cannot be allowed to remain intact; that if the impugned proceedings are allowed to be continued against the petitioner and others, there would be an anomaly in respect of filing appeal against any penultimate order to be passed by the Commission inasmuch as according to section 55(7) of the Act, 2017 an aggrieved person can file an appeal against any penal order of the Commission but according to PEEDA Act 2006 no appeal can be filed before the Service Tribunal until and unless departmental appeal has been filed by an aggrieved person and that since Fact Finding Inquiry has already been got conducted by the Commission it cannot be allowed to initiate the same afresh. Relies on PESCO, WAPDA House through Chief Executive v. Ishfaq Khan and others (2021 SCMR 637), Justice Muhammad Farrukh Irfan Khan, Judge, Lahore High Court, Lahore v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs Division Government of Pakistan, Islamabad and 4 others (PLD 2019 SC 509), Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.)
Ltd. (2009 SCMR 1279), Azizullah Memon v. Province of Sindh and another (2007 SCMR 229), Al Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal (1993 SCMR 29), Chairman, Federal Land Commission v. Mst. Sanam Iqbal and others (PLD 2021 Lahore 42), Messrs Karachi Golf Club (Private) Limited through Manager Accounts and Finance and others v. Province of Sindh through Director Sindh Revenue Board and others (2021 PTD 558), Reliance Commodities (Private) Ltd. v. Federation of Pakistan and others (PLD 2020 Lahore 632), Muhammad Ashraf and another v. Additional Commissioner (Revenue), Rawalpindi Division and others (2019 YLR 2800), Haji Muhammad Arif Khattak and 2 others v. Chairman/Director General, National Accountability Bureau and another (PLD 2018 Peshawar 207), Shaikh Atif Zia v. Province of Sindh through Chief Secretary Government of Sindh and 3 others (2018 MLD 181) and Muhammad Ashraf v. Election Commission and others (2017 MLD 1209).
4. Barrister Haris Azmat, Advocate representing the petitioner in WP No.32918/2022, in addition to adopting the arguments advanced by Hafiz Tariq Nasim Advocate, states that since his client (Zeeshan Javaid) was not assigned any election duty, no proceedings could be conducted against him by the Commission; that disciplinary proceedings against his client are to be governed under Civil Servants (Efficiency & Discipline), Rules, 2020 according to which competent authority in respect of his client is the Prime Minister, thus, no proceedings could be initiated against his client without seeking permission of the competent authority and that even in the Fact Finding Inquiry, nothing adverse was proved against his client, so the impugned disciplinary proceedings against him are not tenable.
5. Mr. Mobeen ud Din Qazi, Advocate, representing the petitioner in WP No.34255/2022, while embracing the legal points agitated by Hafiz Tariq Nasim Advocate, states that since his client was never appointed as election official, he was not amenable to the jurisdiction of the Commission; that after 18th amendment in the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution) terms and conditions of service of employees of a province cannot be regulated by the Federal Government or any of its institution, thus, the proceedings initiated by the Commission, against his client, are coram-non-judice; that mala-fide conduct of the Commission is manifest from the fact that though his client repeatedly requested for provision of adversarial material, being used as edifice for disciplinary proceedings against him, but the same was not provided to him and that after holding of Fact Finding Inquiry, the Commission could not initiate impugned proceedings as the same amounts to double jeopardy which is prohibited under Article 13 of the Constitution.
6. Mr. Muhammad Iqbal Mohal, Advocate, representing the petitioners in WP Nos.43421/2022, 43054/2022 and 33846/2022, in addition to following the submissions made by Hafiz Tariq Nasim, Advocate states that since no duty was assigned to his clients, they were not amenable to disciplinary proceedings under section 55 of the Act, 2017.
7. Mr. Mohammed Ali Johri, Advocate, representing the petitioner in WP No.46485/2022, while adopting the arguments canvassed by Hafiz Tariq Nasim Advocate, submits that since no duty was assigned to his client, he could not be proceeded against by the Commission. Adds that since no oath, as mandated under section 56 of the Act, 2017, was administered to his client, he could not be considered as election official justifying the impugned disciplinary proceedings initiated by the Commission against them. Further adds that since no overt role was attributed to his client even in the Fact Finding Enquiry, the impugned disciplinary proceedings against him are baseless. Argues that since disciplinary proceedings were initiated against his client 15-days prior to his retirement, same stood abated on his retirement.
8. Mr. Ghulam Farid Sanotra, Advocate representing the petitioner in W.P.No.47305/2022, while adopting the arguments put forwarded by Hafiz Tariq Nasim Advocate, states that since his client has not been arrayed as accused in the complaint submitted by the Commission before the District & Sessions Judge, Sialkot, the disciplinary proceedings initiated against him are not maintainable; that since no independent charge has been framed against each accused officer/official (petitioners herein) without assigning their individual role, initiation of proceedings against them through omnibus order are not justifiable; that since no complaint from the area, wherein his client was posted for election duty, was received, his client cannot be made scapegoat for the misdeeds of the others and that when law requires a thing to be done in a particular way same cannot be allowed to be by-passed by any authority.
9. Mr. Muhammad Ahsan Bhoon, Advocate representing the petitioner in W.P No.33844/2022, in addition to espousing the legal prepositions formulated by M/s Hafiz Tariq Nasim and Barrister Haris Azmat, Advocates, submits that no objectionable material has been brought on record against his client during the proceedings conducted by the Fact Finding Inquiry Committee, hence, the impugned proceedings are not justified; that when a person does not fall within the definition of election official as to how the Commission can conduct disciplinary proceedings against him; that if any person, who was not assigned any election duty, was found involved in any omission or commission, the Commission can refer his case to the relevant quarter and that since the impugned proceedings are void ab-initio the constitutional jurisdiction of this Court to determine their validity is fully attracted.
10. Mr. Khanzada Mukarram Khan, Advocate appearing on behalf of the petitioner in W.P.
No.33842/2022, while toeing the line of Hafiz Tariq Nasim, Advocate, submits that though his client retired from service, on 31.12.2021, but he has also been enrobed in the impugned disciplinary proceedings which speak volumes about mala-fide on the part of the Commission.
11. M/s Naveed Ahmad Khawaja, Abdul Rehman Bajwa, Ahmad Yar Khan, Shah Nawaz Khan Niazi and Rana Abdul Sattar, Advocates, have adopted the arguments put forwarded by Hafiz Tariq Nasim, Advocate.
12. Learned counsel appearing on behalf of the Commission, while opposing the submissions made by the learned counsel for the petitioners, submits that since these petitions have been filed against issuance of Show Cause Notices regarding initiation of disciplinary proceedings against the petitioners, the same are not maintainable; that the illegalities/irregularities, pointed out by the Hon'ble Supreme Court of Pakistan in its decision, containing detailed reasons, rendered in Civil Appeal No.166 of 2021, can only be probed into by the Commission through detailed inquiry, hence, no interference is called for in these petitions; that allegation of mala-fide against the Commission by the petitioners is not justified for the reason that bona-fide on the part of the Commission has already been endorsed by the Hon'ble Supreme Court of Pakistan while delivering detailed reasons of its short order, dated 02.04.2021; that in view of the fact that negligence on the part of the persons, who were deployed for election duty in the Bye-Election in the Constituency, was of grave nature, the Hon'ble Supreme Court of Pakistan directed the Commission to conduct inquiry to unearth the means used for the same and the persons involved therein, thus, no exception can be taken against the proceedings initiated by the Commission against the petitioners; that as the decision of the Commission for re-election in the entire Constituency has been appreciated by the Apex Court of the country, no ill-will or mala-fide can be attributed to it; that since the petitioners were deputed for election duty, they were at the strength of the Commission, thus, the proceedings against them can only be conducted by it and not by anybody else; that the Commission provides protection to the persons deployed for election duty against any kind of outer pressure or influence, thus, proceedings being conducted by the Commission cannot be thwarted at this stage; that according to Article 218 of the Constitution, it is duty of the Commission to hold fair elections and the provision of the Act, 2017, which otherwise offends against constitutional mandate, cannot be used to deprive the Commission of its role assigned under the Constitution; that as the Commission has been saddled with the responsibility to ensure holding of fair and transparent election, it cannot be nipped off its right to bring any delinquent to the book by initiating appropriate proceedings as envisaged under section 55 of the Act, 2017; that according to Article 219 of the Constitution, the Provincial and Federal governments are bound to assist the Commission to hold fair elections and if any of its employees are found involved in any dissident activities to sabotage the process of fair elections, the Commission can proceed against the delinquents without intervention of their parent departments as according to section 55 of the Act, 2017 the Commission has been declared as the competent authority in such matters; that as per Article 222 (d) of the Constitution it is the mandate of Election Commission to conduct elections and to deal with doubts and disputes arising in connection with elections thus it cannot be divested of its power to proceed against a deputationist; that even according to entry at Sr. No.41 of the Federal Legislative List (Fourth Schedule) appended with the Constitution it is the duty of the Election Commission to ensure holding of fair elections for the post of President, National Assembly, Senate and Provincial Assemblies and if the Commission is denuded of its power to proceed against any delinquent person, who was assigned election duty, then it would not be able to discharge its duties efficiently and that the Apex Court of the country in the case reported as Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v.
Federation of Pakistan and 2 others (PLD 2012 SC 681) has defined the pre and post election duties of the Commission and the assertion of the petitioners that after annulment of the subject election, they were not subject to jurisdiction of the Commission is ill-founded as every issue pertaining to conduct of particular election is to be adjudicated upon by the Commission; that the Commission has limited staff and for that reason it has to rely upon the staff hired from other departments for holding elections at different levels, thus, it can take action against the deputationists if they are found involved in subversive activities; that according to Section 55 of the Act, 2017, the Commission can initiate proceedings even against the person(s) who has/have not been formally appointed as election official, thus, plea of the petitioners that upon annulment of subject election they no more remained election officials and proceedings against them by the Commission are not sustainable, has no substance; that opening words of Section 2 of the Act, 2017 clarifies that the said provision, being conceptual in nature, cannot be given precedence over the constitutional mandate; that there is hell of difference between the appointment of person(s) for election duty or their deployment for the said purpose, hence, the persons, who were deputed by their respective departments, without intervention of the Commission, cannot be equated with those who were formally appointed by the Commission; that the persons, who otherwise are found involved in any dereliction, can be proceeded against by the Commission irrespective of the fact that they were formally appointed/deputed or not; that plea of the petitioners, that if proceedings are conducted by the Commission, they would be deprived off their right of appeal, is not entertainable for the reason that in the event of any penal action against them, the petitioners would be at liberty to challenge the penultimate order before the Service Tribunal concerned; that even otherwise, the remedy of departmental appeal being illusionary in nature cannot be used to hold the proceedings, being conducted by the Commission against the petitioners and others, untenable as the appellate authority can withhold the appeal and the aggrieved employee, upon expiry of requisite period, can approach the Service Tribunal concerned irrespective of the fact as to whether the appeal filed by him/her has been decided or not; that once a person is appointed as election official, he remains so forever and if any question relating to election arises, the Commission has the exclusive jurisdiction to proceed against such person without intervention of his parent department just to provide shield against any kind of outer pressure including by his parent department; that according to rule 49 of the Election Rules, 2017 an election official has to take oath upon his appointment in terms of section 56 of the Act, 2017 and the Provincial Election Commissioner has to administer oath to the District Returning Officers of the province whereas rest of the persons deployed for election duty are to take oath before the authorities mentioned under rule 49(2)(b) to (e) and if any person, other than the District Returning Officer, has not been administered oath, the fault does not lie with the Commission rather the authority concerned is answerable in that regard; that the documents relating to administration of oath to the District Returning Officers by the Provincial Election Commissioner have already been brought on record which stand proof of the fact that the Commission diligently discharged its duty assigned under section 56 of the Act 2017; that as the departmental proceedings have already been initiated against the employees of the Commission, who were found involved in negligence towards holding of fair elections in the Constituency, the point of discrimination, agitated by the petitioners, is of little importance; that criminal proceedings in the shape of complaint have only been filed against the persons on whose part criminal negligence was established during Fact Finding Inquiry and since no such negligence has been established against the employees of the Commission as they had been performing their supervisory duties while sitting at their respective places of posting, they could not be held responsible for any criminal act which otherwise took place in the field, hence, omission of their names in the complaint submitted by the Commission before the District & Sessions Judge, Sialkot, is duly justified; that the contention of the petitioners that the Commission cannot be judge of its own cause, is not sustainable for the reason that nowhere the Commission held them guilty of any omission or commission, proof whereof is that the Commission has filed complaint before the forum concerned to determine the guilt or otherwise of the persons, whose names have been mentioned in the said complaint as respondents-accused; that when the local administration miserably failed to render the required assistance to the Commission, as mandated under Article 228 of the Constitution, the Commission was fully justified to hold proceedings against the hoodlums; that glaring slackness/negligence on the part of civil administration is discernable from the fact that after coming to know about the incident relating to missing of 20 Presiding Officers in the Constituency on the election day, the Chief Election Commissioner himself tried to have contact with Chief Secretary of the Province but he did not succeed for two/three hours and that the Commission is under bounden duty to hold inquiry in terms of provisions of the Act, 2017 coupled with judgment of the Hon'ble Supreme Court of Pakistan, thus these petitions deserve to be dismissed.
13. When confronted with the query as to the status of the proceedings initiated against the employees of the Commission, who were posted in the Constituency, learned counsel for the Commission states that since the proceedings against the petitioners were stayed by this Court, the proceedings against the said employees were also halted but has not been able to give any explanation as to how the case of present petitioners could be yoked with the employees of the Commission.
14. Mr. Kundi adds that departmental and criminal proceedings can run side by side, thus, the proceedings initiated against the petitioners cannot be held non-maintainable merely due to filing of complaint against some of them. To fortify his contentions, learned counsel has relied upon the case reported as Senior Superintendent of Police (Operation) and others v. Shahid Nazir (2022 SCMR 327) and Sabira Khatoon v. Government of the Punjab and others (2021 PLC (C.S.) 1600).
15. Learned Deputy Attorney General for Pakistan, while supporting the view point of learned counsel for the Commission, states that since no final order has been passed against the petitioners, these petitions are pre-mature. Adds that discretionary jurisdiction of this Court cannot be used to interfere in inquiry proceedings. Relies on Syed Liaqat Shah v. Vice-Chancellor, University of Engineering and Technology, Peshawar and others (2018 SCMR 1661) and Ghulam Rasool and others v. Ali Akbar and others (1974 SCMR 64).
16. Hafiz Tariq Nasim, Advocate representing the petitioner in this petition, while exercising his right of rebuttal, submits that when the law requires to do an act in a particular way, the said procedure cannot be bye-passed; that according to section 55 of the Act, 2017, the Commission can only initiate disciplinary proceedings against the election officials, thus, it cannot be allowed to hold such proceedings against the persons who do not fall within the definition of election official in utter disregard to the provisions of the Act 2017; that as per section 20 of PEEDA Act, 2006 the provisions of said Act have overriding effect thus procedure provided therein to hold disciplinary proceedings against a government employee, especially a deputationist, cannot be bye-passed merely on the premise that the Commission has been declared as competent authority to proceed against an election official; that the petitioners are ready to face the inquiry if such proceedings are conducted by the competent authority; that since the Commission got conducted inquiry after short order, dated 02.04.2021, passed by the Hon'ble Supreme Court of Pakistan in the afore- referred appeal, it cannot be given license to again proceed against them under the garb of detailed judgment and that according to Section 4 of the Punjab Service Tribunal Act, 1974 appeal can only be filed before the Service Tribunal against a final order but when no final order has been passed against the petitioners, these petitions cannot be held non-maintainable mere on account of availability of alternate remedy against the final order to be passed on the conclusion of the impugned disciplinary proceedings.
17. Mr. Afnan Karim Kundi, Advocate, in furtherance of his above arguments, states that to maintain impartiality and independence of the Commission, it cannot be bound down to get prior approval from the parent department if an employee, who was deputed for election duty and has been found involved in an activity hampering the efforts of the Commission to hold fair, impartial and transparent election; that if Article 212 of the Constitution is inapplicable then the doctrine of ripeness would come in the way of the petitioners as they would be at liberty to challenge the final order to be passed by the Commission pursuant to the proceedings conducted against them; that there are numerous statements of female officials against the petitioners, which prima-facie connect them with the irregularities or illegalities noted by the Hon'ble Supreme Court of Pakistan in its detailed decision.
18. In continuation of the arguments in rebuttal by Hafiz Tariq Nasim, Advocate, Mr. Haris Azmat, Advocate submits that dubious conduct of the Commission is evinced from the fact while filing application (C.M.No.3/2022) seeking permission to bring on record additional documents, an affidavit has also been appended therewith without caring for the fact that the referred documents are not borne out from the record. Adds that powers given to the Commission under section 55(2) of the Act 2017 are not unbridled rather the same are subject to certain limitations. Further adds that when the Commission has already got conducted Fact Finding Inquiry, it cannot be permitted to continue with the impugned proceedings against the petitioners in violation of Article 13 of the Constitution.
19. Mr. Mubeen-ud-Din Qazi, Advocate, representing the petitioner in WP No.34255/2022, while exercising his right of rebuttal, submits that since the Commission can only conduct disciplinary proceedings against an election official, the petitioners, being no more election officials, are not amendable to the jurisdiction of the Commission.
20. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with these petitions as well as those forming part of the Written Statement/Report & Parawise Comments/Reports submitted by the Commission in compliance with the orders of this Court, in addition to the case-law cited at the bar.
21. Firstly, taking up the objection raised by learned counsel representing the Commission that these writ petitions are not maintainable against issuance of Show Cause Notices regarding initiation of departmental proceedings against the petitioners, I am of the view that in ordinary course writ petition is not maintainable against inconclusive action, however, when the order or action of the executive is arbitrary, unreasonable or violative of any law or the Constitution, the same can only be assailed in constitutional jurisdiction before this Court as held by the Apex Court of the country in the case of PESCO, WAPDA House through Chief Executive (Supra) by inter-alia observing as under: - "5. We have heard learned counsel for the parties and have gone through the record. During the course of arguments, learned counsel for the respondents was specifically asked to show any provision of law which empowers the Labour Court to strike down a policy or notification or it can direct a statutory body to adopt the rules/policies of another statutory body. Learned counsel failed to substantiate any legal justification and candidly conceded that the Labour Court has no jurisdiction to do so. It is now established without any reservation that for striking down a policy, notification or an executive order if it infringes the rights of an individual or group of individuals or if it is found to be arbitrary, unreasonable or violative of law or Constitution, the power exclusively rests with the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, and a challenge could be thrown to such a policy, notification or the executive order by way of filing a Constitutional Petition. The Labour Court is not seized with such jurisdiction, therefore, the jurisdiction exercised by it while directing the appellant to constitute a committee to grant promotion to the respondents against 5% quota while drawing analogy with other similar electric companies is beyond its scope." (emphasis provided)
If the objection raised by the learned counsel for the Commission against maintainability of these writ petitions is considered in the light of the afore-referred judgment of the Apex Court of the country there leaves no ambiguity that question as to whether the Commission has the jurisdiction to proceed against the petitioners or not, is to be decided by this Court in exercise of its constitutional jurisdiction.
22. One of the points pressed into service by the learned counsel for the Commission, impugning maintainability of these petitions, is that even under the doctrine of ripeness these petitions are not proceedable. In this regard, I am of the opinion that undeniably an inconclusive action on the part of the executive cannot be challenged in constitutional petition before this Court but at the same time when the proceedings or actions of the administrative authorities have been challenged on the point of maintainability, the jurisdiction of superior courts to adjudicate upon said issue cannot be abridged. Reference in this regard can be made to the case reported as Chairman Federal Land Commission (Supra), wherein a learned Division Bench of this Court, while dealing with the question as to maintainability of writ petition before this court against departmental action in the shape of issuance of Show Cause Notice, has inter alia concluded as under:- "7. First objection on maintainability of writ petition has no force for two reasons. First that this ICA was earlier dismissed on same ground and was remanded with consent of the parties. Secondly, the notices dated 28.07.1994 by DLC, were challenged on the ground of jurisdiction, against which no appeal, review or revision was available. It is by now settled that a show cause notice can be challenged in constitutional jurisdiction, for lacking jurisdiction. An action through a show cause notice, found to be without jurisdiction, patently illegal or with mala fide intent, had to be nipped in the bud. Reference in this regard can be made to Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. (2009 SCMR 1279), Al Ahram Builders (Pvt.) Ltd. v. Income Tax Tribunal (1993 SCMR 29), The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1971 SC 279), Reliance Commodities (Private) Ltd. v.
Federation of Pakistan and others (PLD 2020 Lahore 632), Dr. Fatima Arshad v. Government of the Punjab and others (2020 PLC (C.S.) 688), Messrs Pakistan Oilfields Limited through General Manager v. Federation of Pakistan through Ministry of Finance and 4 others (2020 PTD 110) and Messers J.K. Brothers Pakistan (Pvt.) Ltd. through Director v. The Additional Commissioner Inland Revenue and another (2016 PTD 461)."
Insofar as the cases in hand are concerned, since the petitioners have challenged the jurisdiction of the Commission to initiate departmental proceedings against them, especially in the light of the fact that after annulment of election in the Constituency they no more remained election officials, these petitions cannot be dismissed for the reason that petitioners would have a chance to challenge final order to be passed by the Commission on the conclusion of the departmental proceedings.
23. Considering from another angle, even if any proceedings right from their inception are untenable, the jurisdiction of this Court to take care of such proceedings/orders cannot be abridged on technical grounds. Reliance in this regard is placed on the case reported as Federation of Pakistan through Secretary Finance & another v. E-Movers (Pvt.) Limited & another (2022 SCMR 1021) wherein the Hon'ble Supreme Court of Pakistan, while dilating upon a question relating to exercise of constitutional jurisdiction by a High Court against an untenable action of the executive, inter-alia held as under:- "25. The High Court had exercised jurisdiction under Article 199 of the Constitution in setting aside the Contract. Though the FBR did not challenge the power of judicial review vesting in the High Court, it would be appropriate to attend to this aspect of the case. The Supreme Court has considered the scope and power of judicial review of executive action. As far back as 1961 it had explained the scope of applicable writs which could be issued to redress such grievances. In the case of Faridsons Ltd. the Court considered whether there could be a challenge to the act of the Chief Controller of Imports and Exports who had revoked certain licences. It would be useful to reproduce the following extract from the said judgment: 'It is unnecessary to multiply authorities on this question, for, they have been exhaustively reviewed in the decision referred to earlier but what can be gathered from them is that the duty to ' act judicially may arise in widely different circumstances which cannot be defined either exhaustively or with any degree of precision. The consensus of judicial opinion, however, is in favour of the view that if upon an administrative body has been cast the duty to decide rights after ascertaining facts concerning specified matters and not merely on consideration of policy or expediency, then it is under an obligation to act judicially even though there is not, in the strict sense, any lis before it and even though it is not called upon to administer oath or examine witnesses or grant an oral hearing as if it were holding, a trial. In other words, the view generally accepted is that whenever an executive authority is given the power by some law to decide upon and affect the rights of subjects for specified reasons and in a specified manner then there is a duty cast upon it to decide objectively as to whether those reasons exist or not in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice, unless that law leaves the decision to the absolute discretion of the authority concerned or permits it to be based on considerations of policy or expediency or other extraneous circumstances. The question whether or not there is such a duty in a given case must depend upon the circumstances of that case and the construction of the statute under which the authority purports to act.'
This Court had also held in the case of Karachi Electric Supply Corporation that 'any action of any authority which is taken otherwise than in accordance with law as duly construed, would necessarily fall within the authority reserved to the superior courts to declare the law.' The award of the Contract to NCSPL was an act 'done or taken without lawful authority and of no legal effect' in terms of Article 199(a)(ii) of the Constitution, and as such by exercising its power of judicial review of executive action the High Court could, and was justified, to undo the Contract." (emphasis provided)
If the objection raised by learned counsel for the Commission is considered in the light of afore- referred decision of the Hon'ble Supreme Court of Pakistan, there leaves no haziness that the petitioners have rightly filed these petitions alleging that the proceedings initiated by the Commission against them are void ab-initio. Despite repeated queries, learned counsel for the Commission has not been able to convince this Court that as to what is cavil with the Commission to refer the matters of the petitioners for disciplinary action against them by their parent departments, especially, when they do not fall within the definition of election officials as defined under Section 2 (xviii) read with section 55 of the Act, 2017.
24. Now, reverting to the merits of the case, I have observed that admittedly disciplinary proceedings against a person, who has been deputed for election duty, are governed under section 55 of the Act, 2017 which for convenience of reference is reproduced herein below: - "55. Disciplinary proceedings.-
(1) An election official appointed or deputed to perform duties in connection with an election shall be deemed to be under the control, superintendence and discipline of the Commission for the period commencing on and from the date of appointment or deputation till publication of the name of the returned candidate in the official Gazette.
(2) Notwithstanding anything to the contrary contained in any other law, the Commission may initiate and finalize disciplinary action and impose any penalty against any election official for any act of misconduct provided in the Efficiency and Discipline Rules as applicable to such election official or under any provision of misconduct under this Act, and for this purpose, the Commission shall be deemed to be the Competent Authority under the said Efficiency and Discipline Rules or this Act.
(3) The Commission may, at any time, for reasons to be recorded in writing, suspend or withdraw any election official, a public servant or any other person in the service of Pakistan who--
(a) obstructs, or prevents, or attempts to obstruct or prevent, the conduct of a fair and impartial poll; or
(b) interferes or attempts to interfere with a voter when he casts his vote; or
(c) influences or attempts to influence in any manner the polling staff or a voter; or
(d) does any other act calculated to influence the result of the election; or
(e) disobeys any order, or avoids to carry out any instruction issued by the Commission or any officer authorized to issue any order or instruction or violates any provision of this Act.
(4) The Commission may appoint an officer to act as an Enquiry Officer or Authorized Officer to initiate and finalize proceedings under the Efficiency and Discipline Rules applicable to the election official concerned against whom action has been taken by the Commission under sub- section (3) or other provision of this Act or by the Returning Officer under sub-section (6) of section 54.
(5) The Enquiry Officer or Authorized Officer shall complete enquiry proceedings under the Efficiency and Discipline Rules as applicable to the election official concerned or under this Act within thirty days of the reference to him and shall submit the enquiry report to the Commission within seven days of the completion of the enquiry.
(6) The Commission may impose any penalty provided in the Efficiency and Discipline Rules as applicable to the election official concerned or any penalty provided under this Act.
(7) An election official aggrieved by a final order passed by the Commission may, within thirty days of receipt of the final order, file an appeal in the relevant Service Tribunal or other judicial forum.
(8) Where the Commission suspends or withdraws any election official, it may appoint any other election official to perform the duty of the election official suspended or withdrawn."
According to the afore-quoted provision, the Commission can only proceed against a person till the time he falls within the definition of an election official as contemplated under section 2(xviii) of the Act, 2017, which for convenience of reference is recapitulated below:- "(xviii) election official includes an officer or official of the Commission, a District Returning Officer, a Returning Officer, an Assistant Returning Officer, a Presiding Officer, an Assistant Presiding Officer, a Polling Officer or any officer or official of law enforcing agency or other agencies or any other official appointed or deputed to perform duties in connection with an election."
Conjunctive reading of afore-quoted provisions renders it abundantly clear that the Commission can initiate disciplinary proceedings against a person who has been appointed or deputed to perform duties in connection with an election, thus, the persons, who were not formally assigned or deputed any election duty, are not amenable to the jurisdiction of the Commission. Moreover, even a person, who has been assigned any election duty, does not remain under the control and superintendence of the Commission upon declaration of fate of an election in a Constituency simply for the reason that once fate of an election is declared the hiring staff loose their status as election official and the Commission does not enjoy jurisdiction to proceed against them.
25. It is relevant to mention over here that according to section 55(1) of the Act, 2017, a person can be deemed to be under the control, superintendence and discipline of the Commission for the period commencing from his date of appointment or deputation till publication of name of the returned candidate in the official gazette. It has not been denied by learned counsel appearing on behalf of the Commission that the subject election was scrapped vide order, dated 25.02.2021, followed by detailed reasoning issued by the Commission, on 08.03.2021, which was upheld by Hon'ble Supreme Court of Pakistan. To cross the hurdle contained under section 55(1) ibid, learned counsel representing the Commission has referred to sub-section 3 of section 55 of the Act, 2017 to argue that the Commission can proceed against any public servant, who is found involved in the misdemeanors enumerated under the said provision, at any time, but the question before this Court is that as to whether the Commission can initiate disciplinary proceedings against a deputationist even after the fate of the election in a particular constituency has been declared. A bare reading of section 55 of the Act, 2017 brings it to limelight that the said provision to the extent of initiation of disciplinary proceedings revolves around election official. Further, in my humble understanding the term 'at any time' used in sub-section 3 of Section 55 of the Act, 2017 does not mean that it empowers the Commission to take action against anybody at the time of its choice rather it means that the Commission can proceed against a person at any time for which he/she remains as an election official.
26. It is of common knowledge that the prime function of the Commission is to hold fair and transparent elections. Further, once the result of an election is announced the Commission becomes functus officio to take up any matter relating to the election against clear cut provisions of the Act, 2017 and the rules made thereunder. Reliance in this regard is placed on the case of Muhammad Ashraf (Supra) wherein a learned Division Bench of this Court has responded the query relating to the role of the Commission, during post-election era, in the following words:- "6. We are of the opinion that the Election Commission could not have issued the corrigendum and should have directed the parties to take their dispute before the Election Tribunal where a petition between the same parties was already pending. Furthermore, we note that Respondent No.3 filed writ petition after the corrigendum was issued by impugning the order of the returning officer and not the corrigendum. The learned single Judge set aside the corrigendum which declared the Appellant as the winning candidate by setting aside the declared and notified election result. In this way the Election Commission acted without jurisdiction as it has no power or authority under the law to set aside a notified election result and declare a fresh result. After the issuance of a notification in the Official Gazette under Section 37 of the Act an election dispute can only be resolved by way of an election petition before the Election Tribunal. In this case, Respondent No.3 was declared the winner and notified as the winning candidate on 21.12.2015.
Subsequently, by way of the corrigendum the Appellant was declared as the winning candidate.
Thereafter, the impugned order set aside the corrigendum and once again put Respondent No.3 in office as the winning candidate. Under the circumstances, since the situation is the same as it was when the result was declared on 21.12.2015, we are not inclined to interfere in the matter as it will not be in the interest of justice. The dispute arose when Respondent No.3 was declared the winning candidate. Therefore, if the Appellant is aggrieved by the declared result of Respondent No.3, his remedy lies before the Election Tribunal."
27. A cursory glance over section 55 of the Act, 2017 shows that the Commission has been empowered to proceed against an election official under the applicable disciplinary law.
Admittedly, the petitioners, belonging to provincial services, excluding the police officials/officers, are governed under the PEEDA Act, 2006 whereas Zeeshan Javaid, petitioner in W.P. No.32918/2022, is governed under the Civil Servants (Efficiency & Discipline) Rules, 2020 while in respect of their discipline, police personnel are subject to the Punjab Civil Servants (Efficiency & Discipline) Rules, 1999. Both the Provincial laws as well as Federal Rules provide complete mechanism to proceed against an official/officer and any order passed in derogation of the said procedure, cannot be allowed to hold the field merely on technical grounds that this Court cannot adjudicate upon a dispute relating to the terms and conditions of the government servants. Mere declaring the Commission as competent authority to conduct disciplinary proceedings against an election official does not empower it to by-pass the procedure provided under the relevant law. When law requires that a particular act is to be performed in a specific manner, the same cannot be allowed to be deviated and any violation on the part of the executive in that regard is amenable to judicial review by the superior courts. Reliance in this regard is placed on the cases reported as Federation of Pakistan through Secretary Finance, Islamabad and another (supra), Attaullah Khan v. Ali Azam Afridi and others (2021 SCMR 1979), Ajmir Shah, Ex-Sepoy v. The Inspector-General, Frontier Corps Khyber Pakhtunkhwa and another (2020 SCMR 2129), Muhammad Hanif Abbasi v.
Imran Khan Niazi and others (PLD 2018 S.C. 189), Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255) and Muhammad Akram v. Mst. Zainab Bibi (2007 SCMR 1086).
28. During arguments, learned counsel representing the Commission referred to Articles 218, 219, 220, 222 & 228 of the Constitution and entry at Serial No.41 of the Federal Legislative List (4th Schedule), appended with the Constitution, to augment that since it is prime duty of the Commission to ensure holding of fair, impartial and transparent election, thus, it enjoys unfettered powers to proceed against any person, who is found involved in any mischief to hinder the way of fair and transparent elections. In this regard, I am of the view that there is no second thought that the Commission has the duty to ensure conduct of fair and transparent elections under the constitutional provisions, referred by learned counsel representing the Commission and Federal as well as Provincial Government are bound to support the Commission but the said fact cannot be used to permit the Commission to perform an act for which it has not been specifically empowered under the Act, 2017 or the rules made thereunder. Insofar as the petitions in hand are concerned, admittedly, pre-election and post-election matters are to be governed under the Act, 2017 and the rules made thereunder. Though, learned counsel representing the Commission strenuously argued that no enactment or provision of law, which goes contrary to the Constitutional mandate, can be relied upon while deciding a matter but has not been able to give even half a reason that as to how any enactment or provision of law can be considered redundant until and unless it has been declared so by a forum of competent jurisdiction. It is not the case of the Commission authorities that till date the Act, 2017 or the rules made thereunder have been declared ultra vires by any forum of competent jurisdiction. In this backdrop, the point raised by learned counsel representing the Commission that since the provisions of the Act, 2017 run contrary to clear cut mandate of the above referred provisions of the Constitution, same cannot be used to give clean chit to the petitioners, has no worth at all.
29. Admittedly, word "election official" has not been defined in the Constitution rather the same has been defined under Section 2 (xviii) of the Act, 2017, according to which a person who has been deployed in election duty in any of the capacities enumerated thereunder. Further, as per section 55(1) of the Act, 2017, a person remains as election official from the date of his nomination for election duty till declaration of the result. In the given scenario, the reference of learned counsel appearing on behalf of the Commission to certain provisions of the Constitution to justify the departmental proceedings against the petitioners, in my humble opinion, is irrelevant for the reason that when a "phrase", "term" or "word" has been defined in a Statute no cross reference can be made to any other statute/enactment to borrow some contrary meanings to the disinterest of a party. Reliance in this regard is placed on the case reported as Syed Mukhtar Hussain Shah v. Mst.
Saba Imtiaz (PLD 2011 SC 260) wherein the query, under discussion, has been answered in the following words:- "7. The only statute in which the definition of "actionable claim" has been provided is the TPA and it reads as: "Actionable claim" means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession either actual or constructive, of the claimant, which the Civil Court recognize as affording grounds for relief, whether such debt or beneficial interest be existence, accruing conditional or contingent: It is settled law that definition clause or a section in a statute is meant generally to declare what certain words or expressions used in that statute shall mean, the obvious object of such a clause is to avoid the necessity of frequent repetition in describing all the subject matter to which the word or expression so defined is intended to apply. It is a rule of interpretation of laws that when a word/expression is given a definite meaning in one Act of Parliament (statute) it does not mean that it shall ipso facto have the same meaning .in another Act of the Parliament, except in the cases in which Parliament has declared that two or more Acts be read together as one Act, or where on the rule/principle of legislation by reference, a definition of any earlier law may be borrowed or adopted as the definition for constructing the operative provisions of the later law. A definition thus appearing in one Act cannot be used to interpret the same word appearing in another Act, until it is specifically so referred and borrowed with a clear command of law.
Because, the context, the purpose, the object and the requirements of every statute may vary from other; the definition of a word from one statute cannot be safely imported to another, which if so resorted to without ascertaining the clear intention of the legislation by following the rules of interpretation, just as a matter of routine and course, it shall not only be hazardous, rather may distort and frustrate the object of the law and violate the legislative intent which is absolutely impermissible in law."
The said view has been reiterated by the Apex Court of the country in the case of Justice Qazi Faez Isa and others v. The President of Pakistan and others (PLD 2021 SC 1) by inter alia holding as under:- "94. Mr. Farough Naseem, the learned counsel for the official respondents, being an expert on Income Tax law law, and perhaps knowing fully well that Section 114, read with Section 116 of the ITO does not at all require a filer to declare the assets of his non-dependent wife, and children, nor is there any other provision in the ITO, 2001 creating any such obligation on a filer, i.e. requiring him to disclose the assets of his non-dependent wife and children along with his/her income returns, has in his attempt to justify the claim of the Federation, that the petitioner was instead so required, which claim forms the very basis of the purported Reference, and in his endeavor to save the Reference from being quashed, has referred to three different Asset Declaration Acts, being, Asset Declaration Act 2019, Voluntary Declaration of Domestic Assets Act, 2018, and Foreign Assets (Declaration and Repatriation) Act, 2018, under which Acts, amnesty was offered in respect of undisclosed assets to all, except "holders of public office", which phrase, in the context of the said three Acts, according to the learned counsel, included the Judges of the superior Courts, their spouses and dependents, without any distinction between a dependent and a non-dependent spouse. He submitted that the above description of the term "Holder of Public Office", may be used as a guideline to treat a Judge of a superior Court along with his/her spouse (whether dependent or not), and the dependent children, as holder of public office, as one single distinct class, in the context of those other dispensation, dealing with similar situation, and where the relevant terms have not been defined, and may well be employed to treat the spouse of a Judge of a superior Court, whether dependent or not, as of the same class and category, as a Judge himself. Mr. Farough Nasim in his endevour to draw a similar analogy went on to refer to Regulation 31 of the Money Laundering and combating of financial terrorism regulation for banks and DFIs, issued by the State Bank of Pakistan, where according to the learned counsel, the term politically exposed person (PEPs) have been defined to include senior judicial officials, and their close associates and family members also, irrespective of the spouse being dependent or non-dependent. Mr. Farough Nasim also referred to Security and Exchange Commission of Pakistan (Anti Money Laundering and countering financing of terrorism) Regulation 2018, where also PEPs as defined through its regulation 2(t)(ii), includes senior judicial officials, and the formalities and requirements thereunder in terms of its regulation 10(4), extends to the family members and close associates of PEPs, and in the same vein referred to Martial Law Regulation 59, dated 02.12.1969. The learned counsel submitted that the foregoing shows that in ordinary and popular sense the Judges of the superior Courts and their spouses, whether dependent or not, are clubbed, to fall into one class or category. So the learned counsel was suggesting to us to read the word "Judge", as employed in Article 209 of the Constitution, as meaning not only the judge himself, but also his/her spouse and children and on the analogy of the provisions of the regulations referred by him, expand/stretch the meaning of the word, so as to include even the "close associates" and "family members" of the Judge, which defies even the common sense, and to say the least is absolutely preposterous.
It shows the hollowness of the case made up against the petitioner. Through his above submission, the learned counsel is, in fact, seeking certain purported descriptions in some statutes enacted for a very limited purpose, scope and application and for a very short life span, to be enforced as guidelines for stretching the meaning of a straight forward simple word, with an unnatural result, and also to control the meaning, scope, application, and interpretation of one of the most significant provision of the Constitution, based on a sacred principles of our jurisprudence and polity, being the independence of judiciary. The learned counsel has perhaps lost sight of a well settled proposition of law that interpretation of a word or a phrase cannot be transported from one statute to another and that it is unsafe to compare the language of one statute with that employed in another, even though the subjects covered by the two may involve similarities-Ghulam Mustafa Jatoi v. Additional and Sessions Judge (1994 SCMR 1299) and Federation of Pakistan through Secretary, Ministry of Finance v. Haji Mohammad Sadiq and others (2007 PTD 67)."
30. It is very ironical to note that on the one hand learned counsel for the Commission has taken specific plea that matters pertaining to pre-election and post-election issues, including initiation of departmental proceedings against any delinquent official/ officer, are to be seen in the light of the referred provisions of the Constitution but has not been able to give any justification as to why impugned Show Cause Notices/Orders of Inquiries have been issued while relying on section 55 of the Act, 2017. Once the Commission has itself opted to initiate proceedings against the petitioners under the Act, 2017 it cannot be allowed to take topsy turvi by declaring the provisions of the Act, 2017 as ultra vires to certain provisions of the Constitution especially when it has failed to defend its action towards initiation of departmental proceedings against the petitioners, who after annulment of the election process in the Constituency are no more the election officials.
31. Mr. Kundi has argued with vehemence that since the Commission is under bounden duty to take action against the delinquents, who are found involved in activities impeding the way of fair and transparent election in the light of the constitutional mandate coupled with the provisions of the Act, 2017 as well as rules made thereunder and the judgment of Hon'ble Supreme Court of Pakistan, thus, no interference is called for in these proceedings. To appreciate said contention of the learned counsel, I have gone through the voluminous material available in the shape of these petitions as well as the response filed by the respondents in the shape of report and parawise comments/written statement/compliance reports. Undeniably, Fact Finding Inquiry was got conducted by the Commission after decision of the appeal filed by Ali Asjad Malhi, by Hon'ble Supreme Court of Pakistan, against decision of the Commission annulling the election in the Constituency meaning thereby that the Commission has already complied with the direction issued by the Apex Court of the country while issuing detailed reasoning of short order, dated 02.04.2021. In this backdrop, the apprehension of the petitioners that they do not expect fair inquiry at the hands of the Commission, as it has already disclosed its mind against the petitioners, has due weightage. This Court has least sympathy with the persons involved in any misdeed hampering efforts of the Commission for holding fair and transparent elections but at the same time rights of individuals cannot be allowed to be usurped by any government institution while exercising the powers not vested in it. Though, learned counsel representing the Commission addressed the Court at great length but has not been able to respond to the Court's query as to why the Commission is reluctant to refer the matter of the petitioners to their parent departments for initiation of disciplinary proceedings against them.
32. It is astonishing to note that on the one hand learned counsel appearing on behalf of the Commission put much emphasis on the fact that with a view to protect from any outer pressure/influence, the Commission use to initiate proceedings against persons assigned/deputed for election duty even without intervention of their parent department but on the other failed to convince this Court that as to why the Commission addressed letters, dated 25.02.2021, requiring suspension of Asif Hussain, petitioner in this petition, and Zeeshan Javed, petitioner in WP No.32918/2022, which were implemented through Notifications, dated 26.02.2021, issued by the Additional Chief Secretary, Government of the Punjab and the Secretary to Government of Pakistan, Cabinet Secretariat, Establishment Division, Islamabad, respectively. Thus, it is more than clear that any action against the petitioners by the Commission was to be routed through their parent departments. The said fact also lends support to the point canvassed by Hafiz Tariq Nasim Advocate that the Commission was bound to solicit prior approval from the parent departments of the petitioners in terms of section 15 of PEEDA Act, 2006. Learned counsel representing the Commission has frankly conceded that the impugned departmental proceedings have been initiated against the petitioners without seeking permission from their parent department rather his stance is that as the Commission is competent authority in respect of the petitioners, in the light of provisions of Section 55 of the Act, 2017, but this Court does not find itself in agreement with the explanation provided by the learned counsel for the Commission for the reason that section 15 of PEEDA Act, 2006 requires that before initiation of any proceedings against a deputationist, the prior approval of his/her parent department is sine-qua-non.
33. While scanning the files of these cases, I have gone through contents of the complaint filed by the Commission against numerous persons, including some of the petitioners, para No.10 whereof reads as under: - "10. That, the inquiry committee proved the above said allegations against the accused through the inquiry report dated 29th September 2021 which is attached and accused is Guilty of above said offences. List of witnesses is attached." (emphasis provided)
The afore-quoted paragraph from the complaint renders it crystal clear that the Commission has declared the respondents of the complaint as guilty without waiting for trial of the complaint.
Though, learned counsel for the Commission tried to establish that if the petitioners were held guilty then what was necessity for the Commission to file complaint but has not been able to defend the contents of the afore-quoted paragraph of the complaint whereby some of the petitioners, respondents in the complaint, have been held guilty even prior to trial. This Court would be the least entity to have any soft corner for the petitioners but at the same time it being creature of the Constitution has to exercise its jurisdiction in aid of justice especially for protection of fundamental rights of individuals vis--vis duties of the State.
Considering from another angle, the petitioners have not objected to initiation of disciplinary proceedings rather their stance is that after annulment of the election in the Constituency they being no more amenable to the jurisdiction of the Commission, the disciplinary proceedings, if any, are to be conducted by their parent departments.
34. While issuing detailed reasoning in favour of its short order, dated 02.04.2021, the Apex Court of the country has directed the Commission to hold inquiry to unveil the means used for disappearance of the Presiding Officers alongwith the perpetrators of the said offence in the following manner: - "21.*However, for its guidance and record the ECP should undertake an inquiry into the object of, the means used for and the perpetrators behind the disappearance of the 20 POs on the night of the election. The findings may identify the real culprits, who must be brought to justice under the law, whilst also informing the ECP about new forms of corrupt practices to be guarded against."
From above it is more than clear that the Hon'ble Supreme Court has ordered inquiry for guidance and record of the Commission. Indubitably, the Commission has already got conducted Fact Finding Inquiry on the basis whereof the complaint has also been filed, so, prima-facie the purpose behind the issuance of direction for probe has already been fulfilled and initiation of fresh proceedings under the garb of the detailed reasons of the Hon'ble Supreme Court would amount to reopen proceedings which have already reached their logical conclusion. Moreover, word 'may' has been used in the above-quoted para, thus, the claim of Mr. Kundi that the Commission has to finalize the impugned proceedings at all costs stands negated from the detailed decision issued by the Hon'ble Supreme Court.
35. While addressing the court, Mr. Kundi put much emphasis on the fact that since the Hon'ble Supreme Court has directed the Commission to take action against the culprits under the law it is incumbent upon the Commission to take the departmental proceedings, initiated against the petitioners, to their ultimate conclusion. The term 'under the law' means according to the applicable law. At the cost of repetition, it is noted that disciplinary proceedings against the provincial employees, except police personnel, are to be governed under PEEDA Act, 2006 whereas the law governing the disciplinary matters against the employees of the federal department(s) is the Civil Servants (Efficiency & Discipline) Rules 2020. Likewise, disciplinary proceedings against an election official are to be governed under section 55 of the Act, 2017, thus, the Commission is bound to adhere to the referred provisions/rules. Further, it is noted at the cost of repetition that upon declaration of the fate of election in the Constituency, the petitioners being no more election officials are not subject to discipline of the Commission rather at this stage any question relating to their conduct during pre or post election era is to be seen by their respective departments.
36. During the course of arguments, learned counsel appearing on behalf of the Commission, with a view to justify initiation of impugned disciplinary proceedings against the petitioners by the Commission, repeatedly referred to the detailed reasons issued by the Hon'ble Supreme Court in support of its short order, dated 02.04.2021, with the contention that the same are in consonance with the direction of the Apex Court of the country. Perhaps, the learned counsel asserted so in oblivion of the fact that detailed reasoning was issued by the Apex Court of the country in the month of August, 2022 whereas the inquiry proceedings were initiated by the Commission on 05.01.2022 meaning thereby that impugned departmental proceedings have nothing to do with the detail reasons issued by the august Supreme Court in support of its short order dated, 02.04.2021.
37. This Court is abreast of the fact that Criminal and departmental proceedings can run side by side without having any overlapping effect on the fate of each other but said fact cannot be used to justify the proceedings initiated against the petitioners especially when after declaration of fate of result in the Constituency they were no more under the control of the Commission.
38. It is very strange to note that the learned counsel for the Commission ferociously argued that it is not necessary for the Commission to issue appointment/deputation order in favour of all the persons deployed for election duty rather it can direct any government servant to render assistance in the election process, thus, the petitioners cannot claim immunity from the impugned disciplinary proceedings on the ground that they were not assigned election duty. To exemplify his plea, learned counsel has referred to the fact that with a view to maintain law and order situation, the Commission only asks the District Police Officer concerned for required assistance but cannot issue deployment orders in favour of all the police personnel deputed for election duty rather the same is to be done by the police high-ups. Admittedly, Section 53 of the Act, 2017 deals with appointment of Presiding Officers and Polling Officers which for convenience of reference is reproduced herein below:- "53. Presiding Officers and Polling Officers.--
(1) A Returning Officer shall, in the prescribed manner, appoint for each polling station a Presiding Officer and such number of Assistant Presiding Officers and Polling Officers from amongst the officers of any Government or corporations, autonomous or semi-autonomous bodies controlled by any Government to assist the Presiding Officer as the Returning Officer may consider necessary.
(2) The Returning Officer shall not appoint a person as a Presiding Officer, Assistant Presiding Officer or Polling Officer who is or has, at any time, been in the employment of a candidate.
(3) The Returning Officer shall, at least thirty days before the polling day, submit to the District Returning Officer for approval a list of such Presiding Officers, Assistant Presiding Officers and Polling Officers including reserved staff as may be determined by the Commission, and no change in the list shall be made thereafter save in exceptional circumstances, for reasons to be recorded, and with the approval of the Commission.
(4) In case of non-availability of any member of polling staff, the Returning Officer shall appoint a substitute from amongst the reserved staff as approved by the District Returning Officer."
Further, the process of appointment of Presiding Officers, Assistant Presiding Officers and Polling Officers are regulated under rule 48 of the Election Rules, 2017 which for facility of reference is copied below: - "48. Appointment of Presiding Officers, Assistant Presiding Officers and Polling Officer.--
(1) For a simultaneous election to the National and Provincial Assembly, there shall be a Presiding Officer for each polling station and as far as possible, two Assistant Presiding Officers and a Polling Officer for each booth at a polling station: Provided that in case of a bye-election to a single seat of national, or, as the case may be Provincial Assembly, there shall be one Assistant Presiding Officer for each booth at a polling station.
(2) The person to be appointed by the Returning Officer as Presiding Officer under section 53 may be in basic pay scale 16 and above: Provided that a person whose remaining service is less than six months from the date of appointment may not be appointed as Presiding Officer.
(3) The person to be appointed as Assistant Presiding Officers under section 53 may be drawn from amongst officials working in BPS-11 and above whereas the Polling Officers shall be the officials working in BPS-5 and above: Provided that a person whose remaining service is less than six months from the date of appointment may not be appointed as an Assistant Presiding Officer, or, as the case may be, a Polling Officer.
(4) The Returning Officer, for a Constituency, shall earmark five percent reserved staff for each category namely Presiding Officer, Assistant Presiding Officer and Polling Officer.
(5) The Returning Officer shall prepare the list of polling staff namely Presiding Officers, Assistant Presiding Officers and Polling Officers to be appointed at the polling stations in the Constituency on Form-25 and shall include therein the names of reserved staff earmarked under sub-rule (4) and submit the same to the District Returning Officer for approval thereof under sub-section (3) of section 53.
(6) After approval of the District Returning Officer under sub-rule (5), the Returning Officer shall issue Appointment Orders to the Presiding Officer, Assistant Presiding Officers and Polling Officers in respect of each polling station on Form-26." (emphasis provided).
A conjunctive reading of the afore-quoted provision as well as the rule renders it crystal clear that list of persons deployed for election duty is prepared by the relevant authorities and is approved by the District Returning Officer for future use. Thus, the stance adopted by the learned counsel for the Commission being contrary to the clear cut provisions of section 53 of the Act, 2017 and Rule 48 ibid cannot be given any credence. Further, proceedings can only be conducted by the Commission against the persons who have been deployed/appointed for election duty and said deployment cannot be done in vacuum rather the same should be supported by the relevant record. It is of common knowledge that the lists of the staff, who have to perform election duty, are provided to the Commission by the respective departments to affirm that what duties have been assigned to whom and if anyone has not been assigned any election duty either by the Commission or by his/her parent department, the proceedings against such persons cannot be initiated by the Commission. If such an exercise is permitted to be followed, perhaps, it would amount to give a license to the Commission to proceed against a person, who has even not the remotest connectivity with the election process.
39. During the course of arguments learned counsel appearing on behalf of petitioner in W.P.
No.33842/2022 has pointed out that though his client retired from service on 31.12.2021 but he has also been made to suffer while initiating departmental proceedings against him. To fortify his contention, learned counsel has referred to Notification, dated 12.01.2022, issued by the Secretary to Government of the Punjab, School Education Department, Lahore, operative part whereof, is imaged below:- According to the law laid down in the cases reported as Shah Nawaz Kutrio v. Province of Sindh through Chief Secretary Government of Sindh and 2 others (2019 PLC (C.S.) 1209) departmental proceedings against a government servant stand abated in the event of his retirement from service but initiation of disciplinary proceedings against the petitioner by the Commission, despite his retirement, speaks volumes about the fact that it proceeded to initiate proceedings against the petitioner without affirming as to whether he is in service or not. Had the said proceedings been routed through his parent department, the Commission would definitely had come to know about his retirement resulting into scoring off his name from the disciplinary proceedings against other similarly placed persons.
40. While addressing the Court, learned counsel appearing on behalf of the Commission took specific plea that the Commission had the jurisdiction to take action against any person irrespective of the fact that he remained election official or not. If such an interpretation is permitted to be followed, firstly the provision of section 55 of the Act, 2017 would become redundant and secondly it would amount to empower the Commission to proceed against anyone without any stipulation of time-frame.
41. It is cardinal principle of interpretation of a Statute that ordinary meanings supplied by the legislature in any enactment or Rules are to be given weightage. The Hon'ble Supreme Court of Pakistan, while dealing with the powers of the Court to interpret any provision of law in the case reported as Khurshid Anwar Bhinder & others v. Federation of Pakistan another (PLD 2010 S.C.
483) has held that no contrary opinion can be formed by the Court if intention of the legislature to apply a specific word in a Statute is manifestly clear. The relevant portion of the said judgment reads as under:- "The words of a statute must, prima facie, be given their ordinary meaning. We must not shrink from an interpretation which will reverse the previous law; for the purpose of a large part of our statute law is to make lawful that which would not be lawful without the statute, or, conversely, to prohibit results which would otherwise follow. Judges are not called upon to apply their opinions of sound policy so as to modify the 'plain meaning of statutory words but where, in construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have been intending so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only the purpose of bringing about an effective result*." (emphasis provided)
Insofar as matters in hand are concerned, indisputably, it has been made clear under section 55 of the Act, 2017 that the Commission can initiate disciplinary proceedings against an election official.
Further, as per sub section (1) of the section 55 of the Act, 2017 a person remains election official for the period starting from the date of his appointment/deputation for election till the date the fate of the election in the constituency is declared. In this backdrop, the interpretation by the Commission that even after declaration of fate of the election held in the Constituency, the petitioners remained subject to its superintendence and control is not acceptable at all as the same goes against golden principle of interpretation of statute enumerated in the cases, referred Supra.
42. This Court is cognizant of the fact that when definition of a word, term or phrase renders a substantial provision redundant, the preference should be given to the interpretation which favours the purpose of the enactment but at the same time it is equally true that when a substantial provision renders the matter crystal clear no contrary view can be adopted. Insofar as the cases in hand are concerned, admittedly the word 'election official' has been repeatedly used under section 55 of the Act, 2017 and the definition of said term provided under section 2(xviii) read with section 55(1) of the Act, 2017 cannot be ignored, thus, the assertion of the learned counsel representing the Commission that since section 2 of the Act, 2017 is conceptual in nature it cannot be given precedence over the substantial provision, is worthless.
43. To appreciate the contention urged by learned counsel for the petitioners that dubious nature of the disciplinary proceedings against the petitioners is evident from the fact that instead of serving with Charge Sheet containing their individual role they have been proceeded against through omnibus order. I have gone through PEEDA Act, 2006, in particular section 9(b) thereof which requires that charge(s) should be specific providing an opportunity to the officer/official to defend himself properly but the impugned disciplinary proceedings, having been issued on the basis of Show Cause Notices, which offend against clear cut provisions of section 9(b) ibid cannot be allowed to remain in field rather the departmental proceedings, if any, are to be conducted by the parent departments of the petitioners with specific reference to their role in the election in the light of findings/recommendations of the Fact Finding Inquiry Committee.
44. During arguments, it also surfaced on the scene that some of the petitioners have also been engaged in departmental proceedings despite the fact that no incident hampering the election process took place in the polling stations/areas where they were deputed. Said fact also speaks loud about undue haste on the part of the Commission to initiate proceedings against the petitioners.
45. Now coming to the case-law, referred by learned counsel representing the Commission I am of the view that the same is inapplicable to the peculiar facts and circumstances of these petitions inasmuch as in the case of Senior Superintendent of Police (Operations) and others (Supra), Hon'ble Supreme Court of Pakistan held that criminal and departmental proceedings can run side by side whereas in these petitions the petitioners have not challenged the act of the Commission to initiate criminal proceedings and departmental proceedings simultaneously rather their case is that the Commission became functus officio upon declaration of the election result as null and void. As far as case of Sabira Khatoon (Supra) is concerned, suffice it to note that the referred decision having been passed by a learned Single Bench of this Court cannot be given precedence over judgment of learned Division Bench in the case of Chairman Federal Land Commission (Supra) wherein it has been held that in appropriate cases even Show Cause Notice can be challenged in writ jurisdiction and doctrine of ripeness cannot be used to oust the constitutional jurisdiction of this Court. Now taking up the case of Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others (Supra), I have noted that the Hon'ble Supreme Court of Pakistan disposed of the said matter inter-alia with the following observations, declarations and directions: - "80. In the light of the above discussion, the titled petition is disposed of with the following observations, declarations and directions:--
(1) The freedom of association, as enunciated by Article 17 of the Constitution, confers a Fundamental right on every individual to partake in the political governance of the State, whilst concurrently reinforcing the constitutional mandate to protect and advance this right through a democratic system. The 'freedom of assembly' (Article 16) and 'freedom of speech' (Article 19) also serve to realize this constitutional imperative;
(2) By guaranteeing the observance of 'principles of democracy' in Pakistan and mandating that the "State shall exercise its powers and authority through the chosen representatives of the people", the Constitution of Pakistan instructs that the authority to govern be exercised by and through a representative and democratic government. The conferment of this authority has been framed with an ardent dedication 'to the preservation of democracy' and, therefore, encapsulates it as one of its core values. By establishing and enumerating the powers and manner in which the legislature is to function, Part II and III of the Constitution cement 'democracy' as the chosen system of the people and a fundamental constitutional dictate;
(3) The Constitution of Pakistan mandates the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against, but unfortunately the said mandate has not been properly fulfilled in the past;
(4) The Representation of the People Act, 1976 vests the Election Commission with the responsibilities and powers to, inter alia, regulate election expenses, provide for offences, penalties and procedures in case of breach of conditions relating thereto, resolve all election disputes, declare the election void, etc. The constitutional requirement to hold elections fairly, freely, honestly, justly and in accordance with law obligates the Election Commission to exercise all powers vested in it to the best of standards and norms;
(5) All public power is a sacred trust, which is to be exercised fairly, justly, honestly and in accordance with law; and wherever any discretionary power is vested in a public authority or functionary, that too, is to be exercised to achieve the goal of fair, free, honest and just discharge of this sacred trust; and
(6) The impugned election practices and processes are cognizable by the Election Commission and are required to be dealt with in accordance with the Constitution and the law; therefore, the constitutionality or otherwise of the election laws is not a relevant question in the present proceedings, rather strict implementation is called for.
81. In pursuance of the above, we hold and direct as under: -
(a) All the election laws be strictly implemented by the Election Commission in the discharge of its constitutional mandate under Article 218(3) of the Constitution, Representation of the People Act and other laws/rules;
(b) The Election Commission is empowered to check not just illegal actions relating to the election (violating the limits set for campaign finance, etc.) or corrupt practices (bribery, etc.), but is also empowered to review all election activities, including Jalsas, Jaloos, use of loudspeakers, etc. for their effects on the standards of 'fairness, justness and honesty' that elections are expected to meet. The Election Commission is also empowered to take pre-emptive measures to ensure that the spirit of democracy and 'fairness, justness and honesty' of elections is fully observed. The Election Commission is, therefore, directed to take all necessary steps to ensure the same;
(c) The Election Commission must undertake monitoring of the election expenses from the day the holding of election is notified. A candidate must account for all the expenses immediately after the election is over. The Declaration Form should include the following further declarations: -
(i) To meet election expenses, I have opened account No._______ with [name & branch of a scheduled bank] and deposited therein the amount permissible for election expenses.
(ii) All election expenditure shall be made out of the money already deposited in the aforesaid account.
(iii) No transaction towards the election expenses shall be made through an account other than the above account. [Copy of bank statement will be annexed with the Return.];
(d) The Election Commission must hold meetings with the candidates and apprise them of the relevant laws/rules, receive from them statements of expenses on weekly basis by engaging election staff and carry out inspection at random at different places. All transactions relating to election expenses should be entered into with GST registered firms/persons;
(e) To facilitate the voters, the number of polling stations may be increased appropriately throughout the country so that the polling stations are not at a distance of more than two kilometers from the place of residence of voters. In this behalf, the Election Commission may take into consideration the suggestions made at the bar, including the provision of official transport to the voters, but in no case, shall it allow the candidates to hire/use private transport on Election Day. Where arrangement for transport is made by the Election Commission, the routes of such transport should be widely advertised in the print and electronic media for information of the general public;
(f) As regards the handing over of Perchis to the voters at election camps, the Election Commission must take steps to provide the requisite information to the voters by other means as discussed hereinabove. Therefore, to ensure strict compliance with section 84 of Representation of the People Act, 1976 in letter and in spirit, establishing of camps near the polling stations should be banned forthwith. The Election Commission may manage to dispatch extracts from the voters' list in the name of one or more persons living in a house at least 7 days before the polling day by post, or to save the postage by annexing such extracts with any of the utility bill;
(g) Only such election campaign activities ought to be permitted, which on the one hand fulfil the purpose of the election campaign, and on the other are within the reach of the common man. The petitioners have recommended certain activities, namely, door-to-door campaign, manifesto, canvassing on State television and radio, and candidate - voter interaction/debates, etc. ROPA and other relevant laws have held these activities to be permissible in the eyes of the law. These, therefore, ought to be encouraged by Election Commission on the basis of their merit;
(h) To ensure fair and transparent election, if need be, instead of involving the employees of the Provincial Governments, the employees of Federal Government/autonomous organizations/ agencies, including the armed and para-armed forces may be instructed to carry out stipulated functions at the polling stations;
(i) As regards the introduction of computerized balloting, it is informed that the Election Commission has already undertaken work on it. We, therefore, expect that effective steps will be taken in this regard at an appropriate time;
(j) To achieve the goal of fair, free, honest and just elections, accurate preparation/revision of electoral roll is immediately required to be undertaken by the Election Commission through credible and independent agencies.
Accordingly, we direct the Election Commission to undertake door-to-door checking of voters' lists and complete the process of updating/revision of the electoral rolls by engaging Army and the Frontier Corps to ensure transparency, if need be;
(k) Corrective measures are required to be taken by the Election Commission to ensure that the election disputes are resolved at the earliest. The Election Commission may also consider establishing a panel of lawyers well conversant with election laws at the State expense to provide free legal services to marginalized segments of society;
(l) The Election Commission is obliged to ensure that all elections witness a substantial participation of the electorate, therefore, all necessary steps must be taken to make voting compulsory in Pakistan as early as possible;
(m) In the 'First Past the Post' system of election, the winning candidate does not necessarily receive an absolute majority of all votes cast, therefore, such a candidate does not command the majority of the votes polled. As such, the system of 'First Past the Post' violates the principle of majority. The Election Commission may explore ways and means to introduce appropriate system of election including 'run off election' and 'none of the above options', in the light of the discussion made hereinabove, to ensure true representation of the people and rule of the majority; and
(n) The Election Commission is empowered to frame rules to ensure that the elections are conducted justly, fairly, honestly and in accordance with law and that corrupt practices are guarded against. There is unanimity of views on various suggested courses of action. Therefore, we direct the Election Commission to frame rules and issue instructions to provide legal sanction to these measures and implement the same to achieve the ultimate objective of fair, free, just and honest election.
Order accordingly."
A cursory glance over the afore-quoted portion from the referred judgment of Hon'ble Supreme Court of Pakistan shows that nowhere it has been held that the Commission has jurisdiction to proceed against a person despite the fact that he remains no more election official.
46. Likewise, the case-law, cited by learned Deputy Attorney General also stands distinguished for the reasons that in the case of Syed Liaqat Shah (Supra), an employee challenged the order of the competent authority for initiation of criminal proceedings after termination of his contract which is not the position in the case in hand as in these petitions the petitioners have put a challenge to the impugned disciplinary proceedings on the ground that the Commission has no jurisdiction to initiate such proceedings after declaration of the election result in the Constituency as null and void. In the case of Ghulam Rasool and others (Supra), the question in pith and substance revolved around the cancellation of allotment of land to the petitioners which has not the remotest connectivity with the preposition involved in these cases.
47. As a necessary corollary to the discussion made above, I have no hesitation to hold that upon declaration of fate of the election in the Constituency, the petitioners no more remained election officials, hence, the Commission has no jurisdiction to initiate proceedings against them.
Resultantly, all these writ petitions are accepted and impugned disciplinary proceedings initiated by the Commission against the petitioners are declared coram-non-judice, thus, set aside. No order as to costs.
48. Before parting with this judgment, it is observed that if the Commission thinks that the petitioners were involved in any subversive activities during their deployment in election duty, it would be at liberty to refer their matter to their parent departments for initiation of proceedings under the relevant law.