IJAZ ANWAR. J:- This revision petition has been filed under section 115 C.P.C against the Judgement and decree dated 08.07.2019 passed by the learned District Judge, Charsadda whereby while accepting the appeal of respondents, the judgement and decree of the trial court dated 28.2.2019 decreeing the suit of the petitioner has been set aside and the suit of petitioner has been dismissed.
2. According to the contents of instant petition, petitioner filed a suit for declaration, perpetual prohibitory and mandatory injunction etc to the effect that in the year 1987 he joined as MCO in the Agricultural Development Bank Tehsil Shabqadar District Charsadda; that he processed a loan case No. 002106 with care and diligence; that office memorandum bearing No. AZP/11(02)2012/1394 dated 11.09.2012 and notice bearing No. ZO/ PSR/ 2 (6A). R8. SAM/2013/3967 dated 23.5.2013 by the defendant/respondents are illegal and ineffective upon the rights of petitioner as in the said loan case on the default of the loanee the Judge Banking Court-II/Peshawar granted a decree in favour of respondents, therefore, the respondents are not competent to recover the amount of loan from the plaintiff/petitioner. The suit was contested by the respondents by filing written statement and from the pleadings of the parties, issues were framed, evidence was recorded and after hearing the parties, vide judgement/decree dated 28.02.2019 the suit of the petitioner was decreed. Being aggrieved, the respondents filed an appeal before the learned District Judge, Peshawar which was allowed vide judgement and decree dated 08.7.2019 by setting aside the judgement and decree of the learned trial Court. Hence this revision petition.
3. Arguments heard and record perused.
4. Perusal of the record reveals that in the audit report dated 30.06.2012 of Zari Tarqiati Bank, Shabqadar Branch, some irregularities were found in Loan Case No. 002106 (outstanding amount Rs. 489343/-) as pointed out in Audit Para No.01 Part-B (SAM Special Audit). The above audit observation was duly conveyed vide letter dated 11.9.2012 to the petitioner who was serving as Assistant Vice President/Manager, ZTBL, Charsadda at the relevant time. Pursuant thereto, petitioner was served with an explanation letter dated 23.5.2013 issued by the then Zonal Chief, ZTBL. In this letter too, mere explanation of the petitioner has been sought with direction to submit reply within seven days. Both these letters were questioned in Civil Suit before the learned Civil Judge, Charsadda through declaratory suit claiming that the petitioner has performed his duties with care and that no illegality or irregularity has been committed in processing the loan case.
5. Initially, the learned Civil Judge has, vide his judgement and decree dated 28.2.2019 decreed the suit of the petitioner however, the Appellate court through the impugned judgement has set aside the same and dismissed the suit of the petitioner.
6. While going through the record of the case, I find that the justification for processing the loan case and his exoneration is in fact projected before the Civil Court while the petitioner employee was required to have demonstrated his innocence before the Departmental authorities and in case any adverse order was issued, he would have had multiple remedies that could have conveniently been resorted to. Mere issuance of explanation letter pursuant to the audit para cannot be questioned before any forum. I have gone through the wordings of the Office Memo dated 11.9.2012 as well as the explanation letter dated 23.5.2013 and find that petitioner was merely directed to submit his explanation to the audit para and in case the explanation is found unsatisfactory, only then disciplinary action would be initiated. During the course of hearing, counsel representing the petitioner laid much stress upon the fact that having been retired from service on 8.7.2019, no Departmental proceedings could be initiated against the petitioner and that the suit was maintainable. The situation in the instant case is, however, different as the suit in hand was filed on 3.6.2014 while petitioner was in service and it was during the pendency of the appeal before the District Judge that petitioner retired from service on 08.7.2019 and as such the objection pertaining to the Departmental proceedings is not legally tenable. Unfortunately petitioner dragged the matter before the Civil Court, otherwise questioning the explanation letter or Show Cause Notice can under no circumstance be termed as violation of any legal right because it is not final order and mere explanation is sought pursuant to certain allegation.
7. Under section 42 of the Specific Relief Act only violation of legal right or legal character can be agitated before the Civil Court, however, it is not the right of any employee serving in any department that his explanation cannot be called or that he cannot be issued Show Cause Notice.
Specifically in this case, when there was certain audit observation, usually any employee is supposed to explain his position and clear such audit paras while in this case, it was made a subject of civil suit and the petitioner wasted his time, time of respondents and of the court while trying to demonstrate his innocence before the Court. As stated above, such exercise should have been made before the Departmental authorities. I find that the learned Appellate Court has rightly intervened and has passed a very well reasoned order.
8. The purpose of issuing show cause notice is to afford an opportunity of hearing to the employee/Government servant and once cause is shown it is open to the Department/Government to consider the matter in the light of the facts and submissions placed by such employee and only thereafter a final decision in the matter could be taken. Thus, interference by the court at such premature stage has never been appreciated by the superior Courts. In the case titled "Commissioner Inland Revenue and others Vs Jahan2ir Khan Tareen and others" (2022 SCMR 92), it was held that: "The challenge to show cause notices in writ jurisdiction at premature stages and tendency to bypass the remedy provided under the relevant statute is by and large deprecated and disapproved in many dictums laid down in local and foreign judgments in which courts have considered the interference as an act of denouncing and fettering the rights conferred on the statutory functionaries specially constituted for the purpose to initially decide the matter. The excerpts from few relevant judgments are reproduced as under: Messrs Chaudhri Wire Rope Industries Ltd. v. Sales Tax Officer, Special Circle-I, Lahore (1988 SCMR 1934). As already mentioned, apart from issuing notices to the appellant no further proceedings had been taken by the Sales-tax Officer before the appellant moved the constitutional jurisdiction of the High Court. In the circumstances of this case the petition before the High Court was clearly premature and the learned Single Judge was right in dismissing it on this ground. We would, therefore, dismiss this appeal without costs. We may hardly need to add that it will be open to the appellant to take up all the defences which it wishes to urge in support of this appeal before the Sales Tax Office who will no doubt consider them on merits before making any order.
Messrs Ocean Pakistan Ltd. v. Federal Board of Revenue, Islamabad and others (2012 PTD 1374).
Show cause notice dated 12.10.2011 issued under section 122(9) read with section 122(5A) of the Income Tax Ordinance, 2001 by the Additional Commissioner Inland Revenue, Islamabad is under challenge in this petition. In above view of the matter, irrespective of what has been argued before us by the learned counsel for the petitioner, we are of the considered opinion that since all the legal arguments referred to in the preceding paras, raised on behalf of the petitioner-company, are similarly raised before the competent forum, which has issued show-cause notice to the petitioner-company, any finding on any of the legal objections by this Court is likely to cause prejudice to the case of the petitioner-company before the Income Tax hierarchy. Even the learned Single Judge in Chambers of the High Court has left it open for the Additional Commissioner Inland Revenue to decide the issues whether the sale of 'working interest' falls outside the purview of agreement and consequent to the sale, the petitioner is to be governed by the Ordinance, 2001.
Deputy Commissioner of Income Tax/Wealth Tax, Faisalabad and others v. Messrs Punjab Beverage Company (PVT.) Ltd. (2007 PTD 1347=2008 SCMR 308). The tendency of by-passing the remedy provided under law, and resort to Constitutional jurisdiction of High Court was deprecated.
The petitioner instead of rushing to the High Court and consuming sufficient time should have submitted reply before invoking the jurisdiction of the High Court. Such practice is to be deprecated because if merely on the basis of show-cause notice proceedings are started then in such position department would never be in a position to proceed with the cases particularly the recovery of revenue etc. Thus keeping in view the circumstances of the case we are of the opinion that respondent, had wrongly availed remedy under Article 199 of the Constitution instead of availing appropriate remedy under Income Tax Ordinance, 1979.
Messrs Amin Textile Mills (Pvt.) Ltd. v. Commissioner of Income-Tax and 2 others (2000 SCMR 201). There is no material on record to show that the competent Authority failed to apply its independent mind to the facts of the case before issuing notices. High Court was right to observe that the petitioner should in the first instance, approach the hierarchy of the forums provided for under the Ordinance instead of filing a Constitution petition. In the case of Al Ahram Builders (Pvt.)
Ltd. v. Income Tax Appellate Tribunal (1993 SCMR 29), this Court discouraged the tendency to bypass the remedy provided under the relevant statute to press into service Constitutional jurisdiction of the High Court.
Shagufta Begum v. The Income-Tax Officer, Circle-XI, Zone-B, Lahore (PLD 1989 SC 360). We consider it a fit case in which the petitioner would be well advised if he raises the pleas sought to be advanced before this court in the departmental forum in the first instance and also to pursue the normal channels of appeal/revision/reference. It is well known that a plea regarding the assumption of jurisdiction by a Tribunal or a court is available to a litigant even when appearing before the highest court in the country. It is therefore hoped and expected that when an objection in this behalf is raised before the learned officer concerned, he would dispassionately examine it on its own merits and render a decision which he believes bona fide to be correct.
Khalid Mahmood Ch. and others v. Government of the Punjab through Secretary, Livestock and Dairy Development (2002 SCMR 805). The disputed show-.cause notice is still at preliminary stage and after considering the replies of the petitioners if the competent Authority comes to the conclusion that it was a case of taking further proceedings under the Ordinance, it will be required to constitute an Enquiry Committee or appoint an Enquiry Officer. The Constitutional petitions in the circumstances were rightly held to be premature and dismissed as such.
Vicco Laboratories (Equivalent Citation: 2008 (3) ALLMR (SC) 453, 2008 (2) CTC 511, 2007 (123)
ECC 278, 2007 (149) ECR 278 (SC), 2007 (218) ELT 647 (SC), (2008 4 Mil 1272 (SC), (2007) 13 SCC 270, [2007] 1 SCR 534). Normally, the writ court should not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the concerned authorities and to satisfy the concerned authorities about the absence of case for proceeding against the person against whom the show cause notices have been issued.
State of Uttar Pradesh v. Brahma Datt Sharma (Equivalent Citation: AIR 1987 SC 943, 1987 AWC 760 SC, [1987 (54) FLR 524], JT 1987 (1) SC 571, 1987 Lab IC 689, 1987 (1) SC ALE 457, (1987) 2 SCC 179, [1987] 2 SCR 444, 1987 (2) UJ 55). The purpose of issuing show cause notice is to afford opportunity of hearing to the Govt. servant and once cause is shown it is open to the Govt. to consider the matter in the light of the facts and submissions placed by the Govt. servant and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature.
Same is the view of the superior courts of India. For reference, reliance is placed on cases reported as "The Special Director and Anr Vs Mohd. Ghulam Ghouse and Anr" (AIR 2004 Supreme Court 1467), "State of Uttar Pradesh Vs Brahma Datt Sharma and Anr" (AIR 1987 Supreme Court 943) and "L.T.C. Ltd Vs Union of India (Uoi)" (AIR 1989 Ca1.294).
9. No illegality, irregularity or jurisdictional error is pointed out in the impugned order. This petition having no merit stands dismissed.