Noor A.I petitioner has filed this writ petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, and has challenged the vires/legality of the order dated 15-8-1995 of Labour Department (Respondent No. l) regarding the recovery of Rs.90,100, as House subsidy illegally drawn by the petitioner.
2.Stated briefly, the facts of the case in hand are:--
(i) That the petitioner, Noor A.I, Assistant, Labour Department N.-W.F.P., Peshawar is serving the Labour Department for the last 30 years;
(ii) that the petitioner is the owner of two houses situated at Qafla Road, Tehkal Payan, Peshawar.
One house has been rented out to the Education Department whereas the second is occupied by the petitioner for which he is being paid subsidy, as admissible under the relevant rules;
(iii) that on 4-10-1992, the petitioner was served with a show-cause notice by respondent No.4 wherein it was alleged that he (the petitioner) has rented out the same house to the Education Department, for which he is and has been drawing subsidy from the Government of N.-W.F.P. In the S & GA Department. That in doing so the petitioner has committed fraud and is accordingly liable to refund the amount received by him.
(iv) that the petitioner, in reply, denied all the allegations contained in the said notice;
(v) that a Departmental enquiry, in this regard, was then conducted by Deputy Director, Labour (respondent No.4). The petitioner was exonerated, from the charges levelled against him, vide Letter No.DL/Admnll/34/3619, dated 14-10-1992;
(vi) that in spite of this respondent No.5, vide Letter No.EO(S&GAD) E-1258, dated 12-1-1994 directed that an amount of Rs.90,100 be recovered from the petitioner. The petitioner filed a representation before the competent authority but the petitioner's representation was turned down without assigning any valid reasons;
(vii) that after the rejection of petitioner's representation another order was passed, this time by respondent No. l regarding the recovery of Rs.90,000 (house subsidy already drawn by the petitioner) it instalments, vide impugned order No.SO-1(IND) 2-13/91/9538, dates 15-8-1995.
3. After hearing the learned counsel for the petitioner at length, on 6-11-1995, a direction was issued to respondents Nos.3 and 5 to file comments.
4. Comments were accordingly filed wherein it was stated:--
(i) That the petitioner has been drawing house subsidy from the Government @ Rs.2,250 per month since 15-4-1988;
(ii) that on 28-9-1992 a letter was addressed to the petitioner by respondent No.5, stating therein that the petitioner has rented out the said house to the Education Department Q Rs.4,165 per month and has thus committed fraud. He was accordingly served with a show-cause notice as to why the house subsidy allowance drawn by him should not be recovered from him. That in persuance of the said show-cause notice, an investigation/enquiry was also conducted by Labour Officer of the Directorate which, however, exonerated him from the charges levelled against him
(iii) that after a lapse of about 15 months, the matter was again taken up and a fresh enquiry was ordered which was conducted by the Tehsildar of the area. The said Tehsildar reported that the allegation against the petitioner that he had in fact rented out the said house (for which he was drawing subsidy) to the Education Department were correct. Hence the impugned order for recovery of subsidy was issued.
5. The learned counsel for the petitioner submitted that the so-called enquiry, by the Tehsildar, was conducted at the back of the petitioner inasmuch as he was neither associated with the enquiry nor was afforded any opportunity of being heard. According to him the petitioner was condemned unheard. He therefore, prayed that the impugned order be set at naught.
6. From the facts, highlighted above, we are of the considered view that the case in hand requires recording of evidence in respect of the following issues:-
(1) Whether the petitioner is the owner of two houses situated in Village Tehkal Payan, Tehsil and District, Peshawar which are adjacent to each other?
(2) Whether the petitioner is residing in one house, for which he is receiving subsidy, and the other house has been rented out by him to the Education Department?
(3) Whether the petitioner has rented out the same house to the Education Department for which he is receiving subsidy from the Government of N.-W.F.P., S&GA Department thus committed fraud, if so, its effect?
(4) Whether the Tehsildar was validly appointed by a competent authority as enquiry officer to conduct the enquiry?
(5) Whether the Tehsildar had conducted the alleged enquiry without associating the petitioner with the same and thus the petitioner was condemned unheard, if so, its effect?
(6) Which of the two enquiry reports are correct, i.e., one conducted by the Deputy Director (Labour) and the other conducted by the Tehsildar?
7. The abovementioned issues/questions, being questions of factual controversy can only be resolved/adjudicated upon in our considered opinion, after recording evidence of the parties which they may wish to produce in support of their respective claims. This exercise can only be taken up or resorted to by a Civil Court of competent jurisdiction. We are further of the view that since the High Court, in the exercise of its writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, does not act as a Court of fact and, therefore, disputed questions of facts cannot be allowed to be agitated in writ jurisdiction.
8. The writ petition in hand is misconceived and accordingly dismissed in limine. The petitioner, if advised, may approach a Civil Court for the redress of his grievance.