' TANZIL-UR-RAHMAN, J.-By this Constitutional Petition filed under Article 199 of the Constitution of Pakistan, 1973 read, with Article 9 of the Provisional Constitutional Order, 1981 the petitioner has prayed this Court to declare the orders, dated 14-7-1980, 20-8-1980, 9-5-1981 and 27-9-1981 passed by the various respondents as without lawful authority and of no effect and consequently to direct the respondents to renew the petitioner's licence bearing No, 0617/Kar/80 and restore the security deposit of rupees one lac.
2. The facts according to the petition are that the petitioner is a licensed Recruiting Agency. Messrs Zappia Middle East Construction Company Ltd. Of Abu Dhabi (U. A. E.) placed an order with the petitioner /o send fifty Pakistani workers for the abovesaid company. Thus Muhammad Akhtar the Manager/representative of the petitioner and Liaquat Hayat Qureshi, the latter's representative visited the Pakistan Embassy at Abu Dhabi alongwith the Power-of-Attorney and Demand Letter of the said company for necessary endorsement attestation of the .Same. One Ch M. Ayub, Pakistan Labour Attache at Abu Dhabi before effecting the endorsement on the said Power-of-Attorney and Demand Letter imposed a condition on the petitioner's representative (Mr. Muhammad Akhtar) to include his two persons namely, Malik. Ghulam Abbas and Muhammad Dalas in the group of fifty workers to be sent to Abu Dhabi. On accepting the said condition the Power of Attorney and Demand Letter were endorsed by the said Labour Attache.
3. The said Malik Ghulam Abbas and Muhammad Dalas reached Karachi and contacted the petitioner on 10-5-1980. Both of them were presented for interview alongwith other workers before the above-said Representative of she company of Abu Dhabi, who had come to Karachi to select the workers for the said company. During the interview it was observed that Muhammad Dalas was over sixty years of age even though his passport, issued at Gujrat, showed his date of birth as 1933.
However, Malik Ghulam Abbas, with date of birth being stated in the passport as 1935, was selected, even though stipulation between the petitioner and the company was for sending workers below the age of 45 years only. Malik Ghulam Abbas was, thus, accommodated out of consideration for Ch. M. Ayub, the Labour Attache, Pakistan Embassy at Abu Dhabi, notwithstanding the fact that the said Malik Ghulam Abbas was a pure labourer and did not qualify as Carpenter-Helper which was the requirement of the said company. However, Malik Ghulam Abbas could only get his medical report on 22-5-1980 i. e. One day after the expiry of the visa date, while the group of 38 workers left for Abu Dhabi on 21-5-1980, the day on which the visa was expiring and so he was left behind and could not be sent to Abu Dhabi.
4. The said group of 38 workers reached Abu Dhabi on 21-5-1980. They were sent at site of the work on 24-5-1980 which is about forty furlongs away from the main city of Abu Dhabi situated in a prohibited Defence Area. Ch. M. Ayub, having come to know that his two nominees did not include the batch of workers, at once reached the site of work on 26-5-1980. Having confirmed that his two nominees were not there, he managed to obtain statements from ten workers against the petitioner, under coercion and intimidation, on threat of being deported to Pakistan. The said statements/complaints, inter alias, contained allegation of receiving Rs, 10,000 to 13,000 by the petitioners from each of the said ten workers as illegal gratification for sending them to Abu Dhabi.
The said statements/ complaints were, then, sent to respondent No, 2 for taking necessary action against the petitioner.
5. Accordingly, on 30-6-1980 a show-cause notice, dated 16-6-1980 signed by the Assistant Director (Pri) was received by the petitioner. It was alleged in the said notice that the petitioner had charged Rs, 10,000 to Rs, 13,000 from 38 emigrants. The photostat copies of the above said ten statements were also attached with the said notice. The petitioner was directed .To show cause as to why action should not be taken against it under section 12(3) for cancellation of Licence/forfeiture of security deposit for violation of the provisions of section 22 of the Emigration Ordinance, 1979 (hereinafter referred as Ordinance). Reply was directed to be filed within ten days of the issuance of the said show-cause notice (period whereof had already expired), and appearance before the Director was also fixed for 14-7-1980 in the said notice. Copies of the said notice were also stated to have been forwarcied to F.
1. A. And the Protector of Emigrants, Karachi for investigation and report.
6. On the very day when the notice was received, the petitioner through telegram intimated the Bureau about the late service of notice and requested for extension of time for submitting reply and for appearance. The petitioner, however, submitted its reply, dated 7-7-1980 to respondent No, 2.
7. On 13-7-1980 the petitioner, however, sent a teleprompter message to respondent No, 2 showing its inability to attend the hearing on 14-7-1980 due to serious sickness of the wife of the proprietor of the petitioner and thus requested for a fresh date of hearing.
8. However, on 14-7-1980 the petitioner's licence was suspended till 18-8-1980 by order dated 14-7- 1980 purported to have been passed by respondent No,-2. The next date of hearing was also fixed for 18-8-1980. On 18-8-1980 the petitioner attended the hearing at Islamabad before respondent No, 2, who, however, directed the petitioner to file affidavits of Mr. Muhammad Ainuddin Proprietor and Mr. Muhammad Akhtar, the Manager of the petitioner, which were duly submitted before respondent No, 2 on 19-8-1980. On 20-8-1980 the petitioner's Proprietor was personally handed over an order of even date whereby petitioner's licence was cancelled and security deposit of Rs, 1,00,000 was forfeited, with effect from. 18-8-1980 purportedly under section 12(3) of the said Ordinance.
9. On 8-9-1980 the petitioner preferred before respondent No, 3, an appeal which was heard on 29- 10-1980, and was dismissed by his order dated9-5-1981. A copy of the said order was, however, received by the petitioner on 11-6-1981. The petitioner then filed a Review Petition dated 30-6-1981 before respondent No, 1 but the same was also dismissed by order dated 27-8-1981. The petitioner has now challenged these orders through this Constitutional Petition.
10. Mr. Wajihuddin, learned counsel for the petitioners has challenged the impugned orders on several grounds namely, (1) the alleged statements/ complaints against the petitioner by the ten workers are cooked up and the entire action of the respondents is mala fide, (2) there is a flagrant violation of rule 29 of the Emigration Rules, 1979 as the proceedings were started against the petitioner simultaneously not only before the Director-General but also the Protector of Emigrants and the Federal Investigation Agency at one and the same time, (3) the impugned orders of suspension/ cancellation of licence and forfeiture of deposit were not passed by competent authority even otherwise the orders are bad in law and (4) power under section 12(3) has been illegally exercised inasmuch as the order of suspension of licence and that of cancellation are two independent orders and the same could not be passed under section 12(3) of the Ordinance one after the other, on the same charge.
11. Before dealing with the contentions of the learned counsel for the petitioner, we would like to observe that a letter dated 13-11-1980 was written by one Iqbal Ahmed, Director of the Bureau of Emigrants to the Ambassador of Pakistan at Abu Dhabi to obtain the signatures and the finger- prints of all the ten workers/complainants which were sent for examination to the handwriting expert of F. I. A. Who submitted his report to respondent No,
3. This action seems to have been necessitated as the genuineness of the complainants' signatures was challenged by the petitioner before the respondents. This was pointed out to us by Mr. Hamid Hussain learned counsel appearing for the respondents during the course of his arguments. The learned counsel for the petitioner, however, submitted that the petitioner was not supplied with this piece of evidence, nor the petitioner was shown at any stage the signatures/finger-prints of the 10 complainants or the report of the handwriting expert of F. J. A. We will deal with this aspect of the matter at a later stage.
12. Learned counsel for the petitioner has addressed us at great length on the ground of mala fide.
He has referred to us various averments made in the petition and a number of documents filed therewith particularly the ten alleged statements/complaints, Since the copies of the statements filed alongwith the petition were not clearly legible, we directed the learned counsel for the respondents to place on record the original statements. We have carefully perused them. We find that these are the statements in the form of application/complaints addressed to the Labour Attache of the Pakistan Embassy at Abu Dhabi complaining about the illegal gratification received from them by a number of persons named therein. These ten statements appear to be in two handwritings to have been made to and attested on the same date by the Labour Attache, Embassy of Pakistan at Abu Dhabi, with his endorsement "stated and signed in my presence". It is, however, surprising that three of the statements are not signed by the persons concerned though their names and addresses appear on them. All these statements are somewhat identical in contents, and have been written on similar squire lined paper, indicating a common author. There are also a number of dissimilarities as to the signatures of some of them. At least signatures on the three statements, out of ten, do not tally with the foreign service agreements signed/thumb- impressed by them as also held by the Handwriting Expert of the F. I. A. For example, one worker, Shah Nazar Khan appears to have affixed his thumb-impression on the F. S. A. But in the alleged statement he has been shown as having signed. Furthermore, in the alleged statement of Nazir Muhammad, the payment is alleged to have been made to one `Muhammad Rafique. 'In the statement of Shah Nazar Khan the payment is alleged to have been made to one `Nazarat'. In the statement of Dost Muhammad the name of the person to whom the payment is alleged to have been made has been mentioned as "Muhammad Rafique' alongwith Ch. Akhtar Hussain. Another worker, Ghulamur Rahman also names Muhammad Rafique whereas Mian Khan names, Nazakat' to whom the payment has been made by him. The identity of Muhammad Rafique and. Nazakat or Nazarat has not been disclosed at all. Several complaints mention Akhtar Hussain or Choudhry Akhtar Hussain (probably, for the petitioner's Manager, Muhammad Akhtar) and some Engineer`Liaquat Qureshi' for Mr. Liaquat Hayat Qureshi who is the representative of the company at Abu Dhabi and placed order with the petitioner to arrange for fifty Pakistani workers for them. None of the alleged ten workers were examined by the respondents or on commission by any official of the Pakistan Embassy as to the veracity of the statement made by them against the petitioner or persons named therein, which in the circumstances had become very necessary, moreso when the appellate authority had itself observed that "I have perused these complaints and find that some of the complaints have not been signed/ thumb-impressed at all though it bear the certificates of the Labour Attache as 'stated and signed in my presence'. In fact, respondent No, 3 appears to be conscious of this while he observes in his order that he did not normally "accept the evidence recorded in the absence of the respondent". There is, however, no finding against the persons named therein.
13. In view of all these facts and circumstances, the alleged statements or complaints have failed to create confidence in our minds as to the bona fide of the complainants and the Labour Attache who seems to have manoeuvred in getting these statements/complaints from the workers.
Moreover, the charge of accepting illegal gratification, as alleged, has not at all been established, against the petitioner or its Manager.
14. As to the next contention, learned counsel invited our attention to rules 28 and 29 of the Emigration Rules, 1979. It is provided in rule 28 that the Protector of Emigrants, on receiving complaints directly made to him, shall take appropriate action or make a report, with full particulars of the complaint and his recommendations, to the Director-General, after such inquiry as he may deem necessary. Rule 29 provides that on receipt of a complaint from an emigrant, the Director-General shall, if the complaint relates to matter which is not of a serious nature, refer it to the Protector of Emigrants for investigation and report. On receipt of the report from the Protector of Emigrants under sub-rule (1) of rule 29, the Director shall decide the case on merits or issue show-cause notice to the Overseas Employment Promoter. On receipt of reply of 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.
However, in the case of a complaint of a serious nature, rule 29 requires the Director-General to refer to the Federal Government with the recommendations for investigation by the Federal Investigation Agency.
15. The Director-General could have taken action either under rule 28 29 of the Rules, 1979. On the contrary he, at one and the same time, relared the matter to the Protector of Emigrants for investigation and report, and also to the Federal Investigation Agency for investigation, and without waiting for the receipt of report from the Protector of Emigrants, he straightaway issued a show-cause notice to the petitioner. Not only that, he also referred the matter to the Federal Investigation Agency directly, although under rule 29(4) in the case of a complaint of a serious nature, he could refer it to the Federal Government recommending for investigation by the Federal Investigation Agency. All these actions combined together purported to have been taken by the Director-General are not only violative of the Rules but cast a shadow of doubt as to the bona fide of the authority concerned. It may also be observed that he being a delegatee of the Federal Government to exercise power under section 12 only could not directly refer the case to F. I. A. For investigation. He could, however, only recommend the Federal Government, at proper stage, as provided in rule 29 of the Emigration Rules.
16. As to the third contention, learned counsel for the petitioner submitted that the impugned orders, though purported to have been passed by the Director-General but in fact have been passed by the Assistant Director who has no authority to pass such orders. It is an admitted position that the Director-General is a delegatee of the Federal Government in respect of certain powers to be exercised by him under section 12 of the Ordinance but he cannot delegate his powers and, in fact, has not delegated his powers to his subordinate, namely, the Assistant Director (Pri). We asked the learned counsel for the respondents to produce the orders passed by the Director-General of suspending and cancelling the licence but he failed to produce any such orders having been passed by the Director-General himself although he was armed with bulk of files of the department. In fact, he searched for the orders in the files in Court before us but failed to produce any such orders even on the other day of hearing. Apparently, no separate orders were passed by the Director-General otherwise, there appears no impediment in producing them before this Court, in the face of specific objection taken by the petitioner. However, under the law, it is the Director-General alone who was empowered to pass an order of suspension or cancellation of the licence. For non-production of any such order in Court the presumption goes against the respondents that no separate orders were passed by the Director-General. The impugned orders, therefore, would be illegal as the Assistant C Director has no power to pass the impugned orders under section 12(3) o the Emigration Ordinance, 1979.
17. As to the last contention relating to the first exercising the powers under section 12(3) of the Emigration Ordinance, 1979, in suspending the licence and thereafter cancelling the same being without jurisdiction, the learned counsel for the petitioner referred to an unreported judgment passed by a Division Bench of this Court in Abdul Subhan v. Pakistan and others C. P. No, D-273 of 1981. In this judgment it was observed that - `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 13 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."
18. We are in respectful agreement with the above observation. It is noticeable that in this case the show-cause notice was issued to the petitioner who submitted its reply on 7-7-1980 and the order of suspension of licence was passed under section 12(3) of the Ordinance on 14-7-1980 and then on the same charge or complaints of the workers and the reply of the petitioner, an order of cancellation of the licence and forfeiture of security deposit of Rs, 1,00,000 was passed on 20-8- 1980.
19. In this respect, we do not agree with the contention of the learned counsel for the respondents that in section 12(3) the word "or" has been used conjunctively and thus it should be read as "and".
We are of the D firm view that the Legislature has been careful in using the expression "or" and not "and" in section 12(3) of the Act as it lies with the Federal Government or its delegatee, the Director- General, to pass an order either to suspend the licence till a specified date, as a minor punishment, or cancel the licence coupled with the forfeiture of security deposit if the circumstances of the case appear to be of serious nature and warrant such an extreme penal action. But he has to choose any one of the two actions to be taken against the person complained, and not to take the two actions one after the other, at different times and occasions on the same charge. The concept of passing of interim order and final order, as argued by the learned counsel for the respondents, cannot be attributed to the language of the section in which it is couched. We are, therefore, of the view that the subsequent order of respondent No, 2 cancelling the licence and forfeiting the security deposit of Rs, 1,00,000 cannot be sustained in law.
20. Lastly, we would like to mention that the petitioner was neither informed about nor given any access to the fresh signatures and fingerprints of the ten workers/complainants obtained by the Pakistan Embassy as requested by respondent No, 3 through letter dated 13-11-1980, referred to earlier, or the report of the finger-print expert of the F. I. A. This E further evidence as obtained and considered by respondents Nos. 1 and 3 without giving any opportunity to the petitioner to controvert the same has violated the principle of natural justice which has vitiated the proceedings before respondents Nos. 1 and 3.
21. For the reasons stated above, we declare the impugned orders dated 14-7-1980, 2-8-1980, 9-5- 1981 and 27-9-1981 to be without lawful authority and of no legal effect. Consequently, the petitioner's licence bearing No, 0617-KAR/80 with the Security Deposit of Rs, 1,00,000 stands restored with effect from 18-8-1980.
22. In the result, the petition is allowed to the extent stated above, with costs. NAIMUDDIN, J.-I agree.