' Nasir Aslam Zahid, J.--This petition has been filed by one Abdul Subhan, who has been carrying on business as the sole proprietor of Peoples Recruiting Agency at Karachi. Respondent No,1 is the Federation of Pakistan; respondent No,2 is the Director-General, Ministry of Labour and Manpower, Government of Pakistan; and respondent No,3 is the Protector of Emigrants. The petition had been granted a licence by the Government under section 13 of the Emigration Ordinance (XVIII of 1979).
That licence expired on 31-12-1979. It was renewed for another year and the renewal expired on 31st December, 1980, whereafter it was again renewed for another term of one year i,e, from 1st January, 1981 to 31st December, 1981. A letter dated 18th January, 1981 was received by the petitioner from the Protector of Emigrants to the following effect:-- "Messrs Wallins Hong Kong Limited, Saudi Arabia, has complained that you produced a forged Power-of-Attorney for recruitment of 120 labourers on their behalf. They allege that they did not issue any such owner-of-attorney nor any demand letter.
' You are, therefore, directed to appear before the undersigned on 20th January, 1981 at 10-00 hours failing which ex parte decision will be taken."
' Apparently an enquiry was held by the Protector of Emigrants, in which the statements of the Director of the complainant company and petitioner were recorded. Thereafter, the licence of the petitioner was suspended and an intimation to this effect was received by the petitioner from the following letter, dated 25th January, 1981 of the Deputy Director, Ministry of Labour, Manpower and Overseas Pakistanis (Manpower Division), Bureau of Emigration and Overseas Employment:-- "In exercise of the powers under section 12(3) of the Emigration Ordinance, 1979, Director-General, Bureau of Emigration and Overseas Employment has suspended your Overseas Employment Promotor Licence No, 0574/KAR/81 with effect from 25th January, 1981 till 9th February, 1981 on account of your indulgence in malpractices/breach of code of conduct."
' This is the only order received regarding suspension of the licence of the petitioner. Apparently, no separate order had been passed by the Director-General. The petitioner made a representation, dated 4th February, 1981 to the Director, General, Bureau of Emigration and Overseas Employment, in which it was asserted that no illegality or fraud had been committed by the petitioner and a grievance was made that if at all the suspension of the petitioner's licence was to take place the same should have been done after a personal hearing in the presence of the Director-General. A request was made for restoration of licence and for a proper hearing.
' Thereafter a show-cause notice dated 11th February, 1981 was received by the petitioner from the Protector of Emigrants to the effect that the petitioner had produced a forged power-of-attorney, dated 21st July, 1980 and obtained permission for recruitment of 120 workers and that out of 120 workers only 6 persons reported to Wallins Hongkong Ltd., Saudi Arabia, and the petitioner should appear before the Director-General to explain his case. A reply dated 19th February, 1981 was given by the petitioner and the date of hearing was fixed at Karachi as 21st February, 1981. The hearing took place on 21st February, 1981 and thereafter an order, dated 1st March, 1981 was received by the petitioner written by the Deputy Director of the Bureau of Emigration and Overseas Employment and the same is reproduced hereinbelow:-- "After careful examination of the charges and according personal hearing to the O.E.P, the D.G in exercise of powers vested in him under section 12(3) of the Emigration Ordinance and rules made thereunder has decided to cancel the O.E.P licence No, 0574/KAR/81 with immediate effect."
' Here also no separate order of the Director-General is available. Apparently, this is the only document as regards the cancellation of the licence of the petitioner. The petitioner has impugned in this constitutional petition the order, dated 25th January, 1981 suspending his licence from 25th January, 1981 till 9th February, 1981 and the order, dated 1st March, 1981 cancelling his licence. We have heard Mr. Nasim A. Farouqui, learned counsel for the petitioner and Mr. Muhammad Akram Zuberi, learned counsel, who has appeared on behalf of the respondents.
2. Following contentions have been raised by Mr. Nasim A. Farouqui, learned counsel for the petitioner, in support of his attack on the impugned orders of suspension and cancellation of the licence of the petitioner:--
(a) The order of suspension dated 25th January, 1981 is purported to have been made by the Director-General but no show cause was given to the petitioner before the licence was suspended.
(b) Enquiry had been conducted at the initial stage by the Protector of Emigrants and he does not have any powers to conduct the enquiry.
(c) Under section 12(3) of the Emigration Ordinance, 1979 either the licence can be suspended or it can be cancelled but both the punishments cannot be inflicted upon a licensee.
(d) Neither in the case of suspension nor in the case of cancellation, any order by the Director- General has been produced. According to the learned counsel, if at all any order had been passed by the Director-General, the same should have been communicated to the petitioner.
(e) Neither the suspension order, dated 25th January, 1981 nor the cancellation order, dated 1st March, 1981 are speaking orders and as such the petitioner was seriously handicapped and could not effectively maintain and pursue the remedies of appeal available under the Emigration Ordinance, 1979.
' On the other hand, Mr. Muhammad Akram Zuberi, learned counsel for the respondents, has resisted this petition and has advanced the following contentions:--
(i) Both punishments i,e, suspension as well as cancellation can be inflicted upon a licensee under section 12(3) of the Emigration Ordinance, 1979. According to the learned counsel the word "or" employed in the relevant part of subsection (3) of section 12 is to be read as "and" as the intention of the Legislature is clear that the licence of a licensee can be suspended as well as cancelled in respect of one complaint.
(ii) In any case, suspension of the licence in the instant case was only an interim step towards the final action taken for the cancellation of the licence of the petitioner.
(iii) Suspension in the instant case is not a punishment.
(iv) Full opportunity had been granted to the petitioner to place his case before the Director- General.
(v) There is inherent power of the Government to suspend a licence and even if an illegal order had been passed under section 12(3), such order relates to cancellation or suspension of a licence, a constitutional petition will not lie.
(vi) The petitioner has not come with clean hands.
3. Section 12(3) of the Emigration Ordinance, 1979 reads as follows:--"If at any time during the period for which a licence is valid the Federal Government is satisfied, after making such enquiry as it may deem necessary, that the licensee has been guilty of misconduct, or that his conduct and performance as a licensee has been otherwise unsatisfactory, or that he has committed a breach of any of the provisions of this Ordinance or the rules or the prescribed code of conduct, the Federal Government may, by order in writing, cancel the licence or suspend it for a specified period and may also pass orders in regard to the forfeiture of the security furnished under subsection (2) in whole or in part, and the decision of the Federal Government shall be final."
' Section 14 of the Ordinance, 1979, is also reproduced here:-- "Delegation of power to Director-General to receive and dispose of applications.--(l) The Federal Government may, by notification in the official Gazette, delgate its powers under section 12 to the Director-General or any other officer: ' Provided that an appeal shall lie to the Federal Government from an order passed by the Director- General or any other officer in exercise of the power delegated to him, and the decision of the Federal Government shall, subject to subsection (2), be final.
(2) The Federal Government may review its decision under subsection (1) and the decision of the Federal Government in review shall be final.
(3) The Director-General shall maintain, in such form as may be prescribed, a register of the names of all persons to whom licences have been granted under subsection (2) of section 12."
Section 16 of the Emigration Ordinance, 1979, confers upon the Federal Government the powers to make rules by notification in the official Gazette for carrying out purposes of the Ordinance.
Emigration Rules, 1979, were framed by the Federal Government under powers conferred by this section of 1979 Ordinance and they were notified in the Gazette of Pakistan Extraordinary, Part II of 29th May, 1979. Relevant rules in the context of present petition are rules 28 and 29, which are also reproduced here:- "28. Disposal of complaints by the Protector of Emigrants.-- ' The Protector of Emigrants shall have a locked complaint box affixed at the gate of his office in which any person may deposit his complaints and the Protector of Emigrants shall, after such inquiry as he may deem necessary, take appropriate action or make a report to the Director- General with full particulars of the complaint and his recommendations.
29. Disposal of complaints by the Director-General.--(1) On ' It, the Director-General shill, if the complaint relates to matter which is not of a serious nature, refer it to the Protector of Emigrants for investigation and report.
(2) On receipt of report from the Protector of Emigrants under rule 28 or sub-rule (1), the Director- General shall decide the case on merits or issue show-cause notice to the Overseas Employment Promoter.
(3) On receipt of reply to show-cause notice from the Overseas Employment Promoter, the Director-General shall, after examining: the reply, call the Overseas Employment Promoter for personal hearing and decide the case on merits.'
(4) In the case of a complaint of a serious nature, the Director-General shall refer it to the Federal Government with his recommendations for investigation by the Federal Investigation Agency.
(5) In case the complaint of the emigrant is against a person other than an Overseas Employment Promoter, the Director-General shall refer it to the Federal Government for prosecution under the Ordinance or any other law for the time being in force.
4. As regards the contention raised on behalf of the respondents that even if an illegal order had been passed suspending or cancelling the licence of the overseas employment promoter, no constitutional petition would lie, as such order relates to a licence and a licence can always be suspended or cancelled at the discretion of the Federal Government, which discretion is not subject to judicial review, we may at the outset observe that this contention has no force. The Emigration Ordinance, 1979, and the Rules framed thereunder. .Provide for a procedure to be adopted and if the procedure has not been adopted as prescribed or an order which is otherwise illegal under the provisions of the 1979 Ordinance or the Rules framed 'thereunder, the validity or invalidity of such action/order will always be subject to judicial review. An authority which is required to take action or pass orders under a statute is required by law to act strictly in accordance with that statute, and such action/order can always be declared to be without lawful authority and to be of no legal effect in a constitutional petition if the other conditions for maintaining the constitutional petition are otherwise satisfied by the aggrieved party:
5. We are also not impressed by the contention raised on behalf of the respondents that under subsection (3) of section 12 of the Emigration Ordinance, 1979, the licence of an Overseas Employment Promoter can be suspended as well as cancelled in a given case. Subsection (3) of section 12 provides that after making the enquiry required, the Federal Government may "cancel the licence or suspend it for a specified period." After holding the enquiry and giving a proper hearing to the Overseas Employment Promoter, as required by the Rules, the Federal Government or its delegatee can either cancel the licence or suspend it for a specified period. We do not agree with the contention of the learned counsel for the respondent that the word "or" used in subsection
(3) of section 12 should be read as "and". After holding the enquiry and granting a proper hearing to the concerned party, the Federal Government or its delegatee passes a final order and that order can be either for cancellation of the licence or its suspension for a specified period. If after making the enquiry and hearing the aggrieved party, the Federal Government or its delegatee, on account of the seriousness of the charge established or for other valid reasons, is of the view that the licence of the party is to be cancelled, an order of cancellation will be passed. On the other hand, if after holding the enquiry and granting a proper hearing to the party, the Federal Government or its delegatee is of the opinion that it is not a case for inflicting the extreme punishment of cancellation of the licence but the charge has been established, an order of suspension for a specified period can be passed. But for the same charge or charges, in our view, the Federal Government or its delegatee under subsection (3) of section 12 is not authorised first to pass an order of suspension for a specified period and then later for the same charge or charges pass an order of cancellation of licence.
6. In the instant case what had happened was that a notice, dated 18th January, 1981 was received by the petitioner from the Protector of Emigrants informing the petitioner that a complaint against the petitioner had been made and the petitioner was directed to appear before the Protector of Emigrants on 20th January, 1981. Statements were recorded apparently on 21st January, 1981 by the Protector of Emigrants in proceedings which appeared to have been taken by the Protector of Emigrants under rule 28 of the Emigration Rules, 1979. Thereafter the Protector of Emigrants apparently made a report to the Director-General Bureau of Emigration and Overseas Employment. Now under rule 29 (2) of the Emigration Rules, 1979, it is provided that on receipt of such report from the Protector of Emigrants "the Director-General shall decide the case on merits or issue show cause to the Overseas Employment Promoter." In this case the Director-General did not issue any show-cause notice on receipt of the report from the Protector of Emigrants but passed the order, dated 25th January, 1981 suspending the licence of the petitioner from 25th January, 1981 till 9th February, 1981. According to Mr. Nasim Faruqui, learned counsel for the petitioner, before inflicting the punishment of suspension, it was required of the Director-General to issue a show-cause notice and as the order, dated 25th January, 1981 was passed without a prior show-cause notice by the Director-General, the order of suspension is illegal. On the other hand, the contention of Mr. Muhammad Akram Zuberi, learned counsel for the respondents, is that sub- rule (2) of rule 29 gives a discretion to the Director-General to decide the case on merits on receipt of a report from the Protector of Emigrants or issue a show-cause notice to the Overseas Employment Promoter and in this case the first alternative available was adopted by the Director- General. In our view, a just and reasonable interpretation is to be accorded to sub-rule (2) of rule 29 read with other provisions of rule 29. Sub-rule (3) of rule 29 provides that on receipt of reply to show-cause notice from the Overseas Employment Promoter, the Director-General shall, after examining the reply, call the Overseas Employment Promoter for personal hearing and decide the case on merits. A just and reasonable interpretation of sub-rule (2) of rule 29 would be that in case an adverse order is to be passed against the Overseas Employment Promoter, a show-cause notice is to be issued by the Director-General and then after examining the reply of the Overseas Employment Promoter and calling him for personal hearing, an order could be passed. In case, on the basis of the report submitted by the Protector of Emigrants, the Director-General is of the view that no adverse order is required to be passed against the Overseas Employment Promoter, the Director-General can decide the case on merits and in that situation no show-cause notice and.
Hearing are required to be given to the Overseas Employment Promoter, as no adverse order is passed against him. If, however, the Director-General, on the basis of the report of the Protector of Emigrants is prima facie of the view that a case is made out against the Overseas Employment Promoter, he is required to give a show-cause notice and a personal hearing to the Overseas Employment Promoter and without such show-cause notice and personal hearing, no order under subsection (3) of section 12 of the 1979 Emigration Ordinance can be validly passed.
7. In the instant case it is an admitted position that after the holding of the enquiry by the Protector of emigrants and his report to the Director-General, neither any show-cause notice nor any personal hearing was granted to the petitioner before the order, dated 25th January, D 1981 suspending the licence of the petitioner was passed. In our view, therefore, the order dated 25th January 1981 is an illegal order and cannot be sustained.
8. The contention raised on behalf of the respondents that the suspension of licence was not a punishment but was only an interim step taken till the hearing was granted by the Director-General has not impressed us. A bare reading of the order dated 25th January 1981 shows that according to the Director-General the petitioner was guilty of indulging in malpractices and breach of code of conduct. The order of suspension indicates that on basis of the report of the Protector of Emigrants a decision had been taken by the Director-General that the charge against the petitioner had been established and, therefore, the penalty of suspension of licence for the period from 25th January till 9th February, 1981 was imposed. The order, dated 25th January, 1981 cannot be termed as an interim step E imposing no punishment on the petitioner. It appears to be a final order passed by the Director-General holding the petitioner to be guilty of the charge levelled against him and inflicting a punishment specifically provided for in subsection (3) of section 12 of the 1979 Emigration Ordinance. As we have already held, before inflicting the punishment under subsection
(3) of section 12, a show-cause notice as well as personal hearing had to be given/accorded by the Director-General to the petitioner and as this was not done, the impugned order, dated 25th January, 1981 is an order which is liable to be set aside.
8-A. The second impugned order, dated 1st March, 1981 can be struck down on the short point that it is based on the earlier order, dated 25th January, 1981, which we have already found to be an illegal order. Further, we find that there are additional grounds for holding that the order dated 1st March, 1981 cannot be sustained in law. Section 14 of .The Emigration Ordinance has already been reproduced hereinabove and this section gives the right of an appeal to the Federal Government from an order passed by the Director-General under section 12. As the order of the Director- General under section 12 (3) is appealable to the Federal Government, it is necessary that the original order of the Director-General must be a speaking order that is it must give reasons for the order under F section 12(3) so as to enable the party aggrieved to file an appeal before the Federal Government. Unless the aggrieved party is made aware of the grounds or reasons why an order under section 12(3) has been passed against him, he will not be in a position to exercise his right of appeal to the Federal Government effectively. Neither the order, dated 25th January , 1981 of suspension nor the order dated 1st March, 1981 of cancellation of licence gives any reasons or grounds. These orders merely state that the order of suspension or cancellation is being passed. It is apparent that both these orders are non-speaking orders.
9. There is yet another reason for holding that the impugned orders are illegal. Both the orders, dated 25th January, 1981 as well as 1st March, 1981 are signed by the Deputy Director and not by the Director-General. On both the occasions, the Deputy Director states that the Director-General has passed the order. The original order, if any, passed by the Director-General has not been produced.
Apparently no separate orders were passed by the Director-General. Perhaps, the orders were passed orally by the Director-General and then such oral orders were communicated by the Deputy Director through the impugned orders, dated 25th January, 1981 and 1st March, 1981. It is the Director-General who was required to pass the orders and if he had passed the orders of 6 suspension or cancellation, such orders should have been produced. As observed earlier, copies of any separate orders passed by the Director-General have not been produced. If no order had been passed by the Director-General, the impugned orders, dated 25th January, 1981 as well as 1st March, 1981 would be illegal, as the Deputy Director admittedly has no powers to pass the order under section 12(3) of the 1979 Emigration Ordinance. If on the other hand, any oral orders had been passed or instructions were given by the Director-General to the Deputy Director, in our view, such procedure is not proper and legal procedure should have been followed by the Director- General. As observed earlier, the orders of the Director-General are subject to appeal to the Federal Government and therefore, specific, orders with reasons/grounds should have been passed by the Director-General which has not been done in the instant case.
10. As a result, the impugned orders, dated 25th January, 1981 and dated 1st March, 1981 are declared to have been passed without lawful authority and to be of no legal effect. There will be no order as to costs, as costs are not claimed by Mr. Nasim A. Farouqui, learned counsel for the petitioners. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.