' S. ABDUL JABBAR KHAN (CHAIRMAN).-- Mrs. Nasim Qureshi, Headmistress, Government Islamia Girls High School, Ichhra, Lahore, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which she has impleaded the Secretary, Government of the Punjab, Education Department, Lahore and Director Public Instructions (Schools) Punjab, Lahore as respondents.
2. By virtue of this appeal she has prayed that the entire proceedings of the enquiry may be quashed by setting aside the order, dated 25-11-1981, consequential proceedings pursuant to notice, dated 30-11-1982 and final order, dated 17-8-1983.
3. Brief facts of the case are that Islamia Girls High School, Ichhra Lahore, was established by the private management registered as 'Islamia Committee' with Mst. Kalsoom Begum as its Manageress in 1948. This school was located in the rented building bearing property No, SXVIII38-S- 31, which belonged to an evacuee owner Prem Nath which was in possession of the said Mst.
Kalsoom Begum, duly entered in her name in the record of the Excise and Taxation Department.
4. On promulgation of M.L.R.-118, the said school was nationalised on the same terms and conditions which existed before the 15th March, 1972, and the services of the appellant stood transferred to the Provincial Government as she was working as Headmistress of the said school as employee of the privately-managed school. The Education Department asked the appellant vide letter at Annexure 'D', for submission of the rent case of her school building in triplicate on the prescribed pro forma alongwith copy of assessment certificate of the property for allocation of the funds. After receiving the said pro forma the Department fixed Rs,350 as rent to be paid to Mst.
Kalsoom Begum accordingly.
5. In the year 1977, the condition of the building was declared as dangerous by the Lahore Municipal Corporation which was also taken notice of by the Martial Law Authorities, who .Asked the respondent No,2 vide their letter, dated 26-4-1978, Annexure 'G' that the building should be inspected by a responsible officer and if the condition was in fact unfit for human occupation then steps should be taken forthwith to make alternative arrangements. In compliance to the said instructions, the Assistant Education Officer concerned visited the school on 26-8-1977 and recommended that the same was unfit for human occupation. The Government agreed to the shifting of the school to another building as proposed by the Director of Public Instruction, Punjab, Lahore respondent No,2, vide his letter, dated 18-11-1979, Annexure 'I'. A sum of Rs, 4,500 was settled according to the assessm ent certificate with the owner of the new building and the sanction for allocation of additional funds amounting to Rs, 33,200 was obtained prior to the execution of the rent deed, dated 30-8-1979, vide Annexure 'J'. The District Education Officer (Women), Lahore, was authorised for execution of the rent deed with the owner of the new building vide letter, dated 19-11- 1979. The school was shifted and the possession of the building in question was delivered to Mst.
Kalsoom Begum by the Education Department on 31-12-1979.
6. After the said school had been shifted, there arose disputes between Mst. Kalsoom Begum and the Evacuee Trust Properties Board as to the claim of the property so occupied by the said Mst.
Kalsoom. The Education Department also joined in the said dispute and came forward with its claim for restoration of the possession in case the property was declared as of Central Government. The Evacuee Trust Properties Board after looking into the entire situation and the facts of the case, declared the property as evacuee trust building and took over on 13-2-1980, but it was again rented out to the Islamia Education Committee, Ichhra through its Manageress Mat. Kalsoom Begum for educational purposes, at a monthly rent of Rs,350, under a regular rent deed executed on 4-11-1980, for which a valid licence was issued by the Director of Public Instruction, Punjab.
However, the Evacuee Trust Properties Board did not find justification about the claim of the Education Department, vide their letter, dated 4-3-1981, and did not hand over the possession of the building to the Education Department. In this manner the Education Department started paying rent of the building to Mst. Kalsoom Begum in pursuance of the contractual obligations imposed on the Government by operation of law after nationalization of the school from 1-10-1972.
7. The Education Department then started disciplinary action against the appellant and came forward with the charge-sheet against the appellant:-
(i) that she being Headmistress of Government Islamia Girls High School, Ichhra, Lahore have drawn fraudulently the rent of Evacuee Trust Property building No, SXVIII-38-831 known as Arya Samaj School Building occupied by Government Islamia Girls High School, Ichhra Lahore from L0-72 to 10-79 @ Rs,350 P.M. Which comes to Rs,29,750 on forged documents showing her mother (Mst.
Kalsoom Qureshi, Teacher of her school) as owner of the building, thus the entire amount has been embezzled by both of them;
(ii) that she (both) managed to get vacated the building by concealing the facts that the property is an Evacuee Trust Property as otherwise the building being Evacuee Trust Property becomes the property of the Education Department. This act on her part caused loss of lacs of rupees to Government;
(iii) that she with the connivance of her mother (Mst. Kalsoom Qureshi) forced the Education Department to hire a new building for housing the school at an exorbitant rate of Rs,4,500 p.m.
Which is a recurring loss to Government;
(iv) that they (both) have opened a private school in the name of Sultana Model School (English Medium) lchhra Lahore in the said building without obtaining permission from the Department being Government servant.
' An enquiry was conducted in this case by Mr. Iqbal Ahmad Lodhi, O.S.D. Enquiries, who vide his detailed Inquiry Report came to the conclusion that all the charges stood proved against the appellant. The appellant approached the Tribunal on the plea that the respondent No,1 had decided to exercise jurisdiction, which he did not enjoy under the law and calling upon the appellant to appear before the Deputy Secretary, Education Department, for personal hearing vide letter, dated 17-8-1983, was a case ab initio void and without jurisdiction. In this manner, the appellant has prayed for quashment of entire proceedings and setting aside the order, dated 25- 11-1981, consequential enquiry proceedings pursuant to notice, dated 30-11-1982 and final order, dated 17-8-1983.
8. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the entire record of this case carefully with their assistance.
9. Learned counsel for the appellant has submitted that the Education Department after going through all the formalities sanctioned the rent of the building in dispute which was paid to Mst.
Kalsoom Begum for the period from 1-10-1972 to 31-10-1979. It has been further stated that as school was shifted from said building and a new building was hired on the sanction granted by the Government, the appellant did not incur any liability in the whole affair and could not be proceeded against under the Efficiency and Discipline Rules. In this manner the appellant has relied on the decision of the Punjab Service Tribunal in Case No, 387/1948/1982--Nazir Ahmad Chaudhry v. Secretary Education etc. And in case of Mansoor An Khan v. Secretary Education etc. And has pleaded that ratio decidendi of both the judgments, is fully applicable to the case of the appellant. Learned counsel for the appellant has come out with another argument by submitting that the transfer of the property in dispute was contested by the Education Department before the Chairman, Evacuee Trust Board on the same allegations cuntained in the charge-sheet, which was not subtantiated and the case was decided in favour of Mst. Kalsoom Begum on 4-11-1980. In this manner the order of the competent authority became final as the respondents did not challenge the order by filing any appeal before the authority designated under section 16 of the Evacuee Trust Properties (Management and Disposal) Act, 1975. He has vehemently argued that section 14 operates as bar of jurisdiction by any authority in respect of any action taken or to be taken in exercise of any power conferred by or under the said Act. While referring to the Inquiry Report, it has been submitted that the case of the appellant would not be segregated from other delinquent officers/officials as pointed out by the Enquiry Officer in his report for initiation of disciplinary action.
It was pointed out that the provisions of Efficiency and Discipline Rules, 1975, envisage joint enquiry and the separate enquiry against the appellant is ab initio void and without jurisdiction. He has also challenged the action of the respondents against the appellant by submitting that after respondents had accepted the order passed by the Chairman, Evacuee Trust Properties Board, the said order had attained finality and they were precluded to take action against the appellant, which was based on the said order. Learned counsel for the appellant has also challenged the competency of the authority which has summoned the appellant for hearing and has termed it as violation of the mandatory provisions of the Efficiency and Discipline Rules. It was lastly argued that since the Education Department was party to the proceedings of the case before the Evacuee Trust Board, the order passed by the Chairman was binding and no action contrary to the findings of the Board can legally be taken against the appellant on the same grounds by the respondents during the subsistence of the final order passed in accordance with law.
10. On the other hand learned District Attorney assisted by the representative of the Department has submitted that the appeal was no competent before ?His Tribunal as it was directed against a show-cause notice which required the appellant to appear before. The competent authority, as such the appeal would be pre-mature and should be dismissed on this score alone.
11. Much stress has been laid by the learned District Attorney on the fact that Mst. Kalsoom Begum was mother of the appellant and it was a collusion between. The two, which resulted in huge loss to the Government as well as to the Education Department and by no measure, it can be, said that the property in dispute belonged to Mst. Kalsoom, as this was originally owned by Prem Nath, who had created a Trust in favour of his children. While elaborating his arguments learned District Attorney has submitted that actually this property was allotted in the name of the School through Mr. Altaf Nabi. All the persons of the locality were running the school while Mst. Kalsoom Begum was appointed Manageress of the said school and it was Mst. Kalsoom Begum Qureshi, who by misusing her name as Manageress, tried to enter in the column of the Excise and Taxation Department record and tried to prove her ownership. According to the learned District Attorney, it was the duty of Mrs. Nasim Qureshi to disclose the entire facts of the case to the Department about the status of the property which she failed to do and in this manner, became an instrument in securing rent from the Department in favour of her mother. He has also termed the proceedings for declaration of the property as unfit for human as hoax, and has urged that this was actually a fraud played with the Department by the appellant and her mother.
12. We have given our anxious thought to the arguments so advanced by the parties and find that the Evacuee Trust Properties Board, while determining the title of the building, had not found Mst.
Kalsoom Qureshi guilty of concealment of the property which is an offence punishable under section 22 of the said Act, and instead the property had been rented out to her for educational purposes. The appellant cannot be held liable for abetment of such concealment under the law.
Section 14 of the Act operates as bar of jurisdiction for taking any action by any authority or Court on the charge of concealment of the property which falls within the jurisdiction of the Evacuee Trust Properties Board which had already taken the decision in exercise of the powers conferred under the Act. The appellant being Headmistress of the school had not played any part in the disputed points relating to the supply of the particulars of the building at the time of nationalization, claim of the rent and shifting of the school, but had been an instrument carrying out the orders and decision made by the Education Department. The allegations in the charge-sheet are only the determining factor of jurisdiction. The Department party to the proceedings before the Evacuee Trust Board, lost the case and did not file any appeal and the order attained finality which bars the jurisdiction and the present enquiry against the appellant on the same issues once decided by the competent authority, is misconceived. The action suffers from an inherent vice and is for that reason void ab initio. It may be further observed that when the exercise of jurisdiction depends upon the existence of a condition precedent and if the condition precedent becomes impossible, no jurisdiction can exist. Reliance is place on PLD 1959 Kar.
164. Similarly findings on merits have no validity in the absence of jurisdiction as held in PLD 1952 Lah.
31. In PLD 1954 Lah. 687 the result of assuming jurisdiction in doubtful cases is that if eventually the objection prevails, the time spent and the expenses incurred in the proceedings become a dead loss--the proceedings taken--judgment rendered and sentences passed become a nullity.
13. In the light of the foregoing detailed discussion we proceed to accept the appeal and quash the proceedings being taken against the appellant, set aside the order, dated 25-11-1981 and consequently inquiry proceedings pursuant to notice, dated 30-11-1982 and final order, dated 17-8- 1983. However, there will be no order as to costs. 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.