1. ' KHAWAJA MUHAMMAD SAEED, C.J.--- This writ petition is addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 seeking cancellation of the report of the Commission of Inquiry and F.I.R. Lodged in the light of the same, at Police Station Muzaffarabad on July 6, 1994.
2. ' Admitted facts are that the petitioner was inducted in the Azad Kashmir Government Cooperative Bank Limited as Deputy-General Manager in B.P.S. 18 on April 4, 1989. He was transferred on April 6, 1989 and posted at Mirpur. He got promotion as General Manger, Cooperative Bank on May 25, 1991 and was asked to run both the offices located at Mirpur and Muzaffarabad. During his posting he.
3. Had some complaints against the Minister of Finance and Cooperative against whom he leveled serious allegations for his interference in the Administration of the Bank with ulterior motives. He, therefore, tendered his resignation seeking retirement from the service on February 1, 1993. On February 3, 1993, his resignation was accepted by the competent Authority with certain reservations. It was stated by the authority that the question about the payment of his pay for the notice period and other collateral matters would be decided later on after examining the relevant rules.
4. ' The Government by invoking its powers under section 3 of the Commission of Inquiries Act, 1956, constituted a Commission of Inquiry to probe into the alleged misconduct and irregularity in the payment of Rs,27,40,961 as Crop Insurance. This payment was made by the Bank to an Insurance Company during the period when the petitioner was holding its charge of Acting General Manager.
5. ' On September, 1, 1993, the petitioner received a show-cause notice in which certain allegations were leveled against him and he was asked to submit his reply even to this effect that why he should not be dismissed from the service as General Manager of the Cooperative Bank, by cancelling the acceptance order of his resignation.
6. ' The petitioner invoked the Constitutional jurisdiction of this Court by filing a writ petition before it, on September 12, 1994. He impeached the setting up of the Commission of Inquiry and also challenged the correctness of the allegations contained in the show-cause notice whereby he was held responsible for filing wrong bills of travelling and daily allowances and misuse of the Bank vehicle. He also challenged the competence of the Government to recall his resignation and convert it into his dismissal.
7. ' This petition was partly accepted by this Court vide judgment, dated September 21, 1993 by holding that the notice issued to the petitioner on September 1, 1993 containing allegation of misconduct and threatening him to recall the acceptance order of his resignation and removal from service by dismissal on the ground that this order was on account of mala fide. In respect of the Commission of Inquiry, it was held that the Government under the provisions contained in the Commission of Inquiries Act, 1956, was empowered to appoint a Commission of Inquiry to inquire into a definite matter of public importance. The petitioner was directed to seek redress of his grievance before the Government through a representation in respect of those Members of the Commission from whom he was apprehending mischief and injustice on account of enmity and rivalry by replacing them with fair, impartial and honest members. The Commission of Inquiry was also directed to provide him an adequate opportunity of having access to public record and an opportunity of being heard. The Commission was further directed to provide him copies of the requisite record to enable him to prepare his defense to the allegations ascribed in the terms of reference to the Commission of Inquiry. In case the directions were not followed, he was allowed to invoke the authority of this. Court. This judgment was assailed before the Supreme Court in appeal by the parties without success.
8. ' The Commission of Inquiry submitted its report to the Government. On the basis of that report, the General Manager, Cooperative Bank on July 6, 1994 lodged F.I.R. At Police Station Muzaffarabad. The petitioner did his best for obtaining the copy of the report of the Commission of Inquiry but the same was not issued to him.
9. ' Feeling aggrieved by these one-sided actions of the Government, he filed the instant writ petition before this Court.
10. ' On request of the petitioner, my learned brother Mr. Justice Syed Manzoor Hussain Gilani vide his order, dated September 21, 1994 directed Raja Muhammad Hanif Khan, learned counsel for the respondents the copy of the report of the Commission of Inquiry be furnished to the petitioner on September 22, 1994 positively, who also gave an undertaking that he shall furnish the copy of the same positively to the petitioner on the date but the same was not supplied to him. Even the copies of the other relevant documents were not issued to him despite the fact that Raja Muhammad Hanif Khan, learned counsel for the respondents had admitted before the Court that the department had no objection in providing him the certified copies of the public documents mentioned in the application by the petitioner. Repeated orders were passed by this Court for the issuance of such copies but the directions of this Court were not complied with. The Court was, thus, constrained to issue a notice to Raja Muhammad Hanif Khan, Advocate to explain as to why the contempt proceedings may not be initiated against him.
11. ' In the background of these admitted facts, it was argued by Ch. Muhammad Riaz Tabasam, learned counsel for the petitioner that the Commission of Inquiry has acted in furtherance of the mala fide attitude of the respondents, therefore, its report is bad in law and liable to be ignored.
12. While explaining his view point, he argued that the Commission of Inquiry was bound to provide the petitioner the copies of the relevant record besides providing him fair opportunity of explaining any factor against him. But the directions of this Court were totally ignored by it. According to the learned counsel, his client has filed an affidavit in support of this ground but no counter-affidavit has been filed by the respondents. Due to mala fide design of the answering respondent, the report of the Commission of Inquiry is a fraud which is against the true facts as such it cannot be relied upon. According to him, the record of the case was not provided to him due to the reason that the rivals of the petitioner in the department have tampered it. Even some forged documents were made the part of the Bank record. This was done after the petitioner had tendered his resignation.
13. He further, argued that despite the facts that Commission of Inquiry had completed its report during the pendency of the writ petition but this fact was deliberately concealed from the Court.
14. Due to this reason, the direction was given by the Court that Inquiry Commission shall provide the petitioner an adequate opportunity of having access to the public record and provide him an opportunity of hearing to enable him to defend himself, to his satisfaction.
15. ' The learned counsel for the petitioner further argued that respondent No,4 after obtaining one sided report from the Commission of Inquiry, lodged an F.I.R. Against his client at Police Station Muzaffarabad without the approval of the Government. The report lodged without the approval of the Government with ulterior motive, was nullity in the eyes of law as such is liable to be quashed.
16. ' As against this, it was argued by Ch. Muhammad Azam Khan, learned counsel for the respondents that the petitioner contravened the rules while acting a General-Manager of the respondent Bank.
17. The Government, therefore, was justified to appoint a Commission of Inquiry under the provisions contained in the Commission of Inquiry Act, 1956 to probe into the misconduct and irregularities committed by the petitioner. The Commission conducted inquiry in an impartial manner and provided, the petitioner opportunities of defence as required by law, in a legal fashion. The Commission after probe, submitted its report to the Government for its perusal. Written complaint against the petitioner was lodged at Police Station Muzaffarabad in the light of the report of the Commission of Inquiry. The petitioner, in these circumstances is not justified to invoke the jurisdiction of this Court. He has created hindrance in the process of law by filing this Constitutional petition. He further, argued that this petition even otherwise is not maintainable as the same has been filed after expiry of a period of 90 days. The mischief of laches is fully attracted against him in this case.
18. ' The learned counsel further argued that before taking any step against the petitioner, he was served with a show-cause notice. He after submitting to the jurisdiction of the Secretary Cooperative who issued him the show-cause notice, duly presented his reply to it. In the light of his reply, the Government with open mind decided to conduct thorough inquiry into the affairs of the Cooperative Bank during the period, the petitioner had acted as its General Manager. The Commission of Inquiry was constituted which was headed by a District and Sessions Judge. The Commission had no bias against the petitioner. After thorough probe into the affairs of the Cooperative Bank, it submitted its report to the Government. An F.I.R. Is the outcome of this report of inquiry. The petitioner had ample opportunity to defend himself before the Court of law. The writ petition in these circumstances, is not maintainable under law. It may be dismissed.
19. ' It was further vehemently contended by the learned counsel for the respondents that the petitioner was guilty of the loss of Rs,27,40,.961 which was paid to an Insurance Company by him.
20. He also criticized the petitioner on the ground that subsequently he without disclosing the true facts, got this illegal action rectified from the Chairman of the Board.
21. ' I have considered the respective arguments of the learned counsel for the parties and gone through the record made available by the parties with this writ petition.
22. ' The petitioner previously filed a Constitutional petition in this Court on September 12, 1994 in which on various grounds, he challenged the setting-up of the Commission of Inquiry as well as the notice containing charges against him. The High Court in that petition in clear words, held that after the acceptance of the resignation of the petitioner, the relationship of the master and servant came to an end. Therefore, the departmental rules seized to have any effect on him. The High Court, therefore, quashed the notice issued to the petitioner by holding the same to be illegal and mala fide. How-ver, about the Commission of Inquiry, it was held by it that the Government had lawful authority to appoint a Commission of Inquiry under section 3 of the Commission of Inquiries Act, 1956, to enquire into a definite matter of public importance. This order of this Court was assailed by the Government in appeal before the Apex Court of Azad Kashmir without success.
23. ' In the previous writ petition filed by the petitioner the High Court directed the Commission of Inquiry to provide him an adequate opportunity of hearing and examining the record to enable him to prepare his defence to his satisfaction. From the perusal of record, it appears that the Commission of Inquiry issued notices to the petitioner to appear and submit his explanation to the charges levelled against him but it is very unfortunate that this was done after the report was completed by the Commission. His writ petition was ultimately decided by this Court on September 21, 1993. The Commission of Inquiry at that time had already completed its proceedings and submitted its report to the Prime Minister on 30-1-1994. This fact was never brought in the notice of the Court by the respondents including the Chairman and Members of the Inquiry Commission who were also arrayed in the line of answering respondents.
24. ' There is another aspect of this matter which has to be taken into consideration that in the previous writ petition, on the written request of the petitioner, an interim injunction was issued by the learned Chief Justice of the time who was seized with the case, directing the Commission of Inquiry not to take any further proceedings in the matter. This order was subsequently amended on 21-10-1995. In the amended order, the Commission was allowed to complete its proceedings.
25. However, it was ordered that no action in pursuance of the report of the Commission, shall be taken without prior permission of the Court but after the report of the Commission of Inquiry, dated 30-1-1994, an F.I.R. Had been lodged against the petitioner at Police Station Muzaffarabad on July 6, 1994 on the direction of the General Manager of the Cooperative Bank.
26. ' The particulars of the above referred acts are sufficient to hold that mala tide actions were taken against the petitioner in bad faith. Even the respondents failed to observe the limitation laid down by this Court in its order, dated September 21, 1993. Therefore, the petitioner was justified in law to challenge the mala fide and unjust proceedings taken against him in the present petition. The objection raised about the maintainability of this petition, is rejected.
27. ' The mischief of lathes is not attracted in this case because in furtherance of the report of the Commission of Inquiry, an F.I.R. Stood lodged against the petitioner on July 6, 1994 at Police Station Muzaffarabad. This report is in continuation of the report of Inquiry which was given by the Commission while contravening the directions of this Court by depriving the petitioner from an adequate opportunity of defense and hearing. After the report was prepared and submitted to the Government, any opportunity provided to the petitioner by the Inquiry Commission, had no sense.
28. ' The petitioner is facing allegation that he without approval of the authority, introduced the Crops Insurance Scheme in Azad Kashmir. He was not entitled to claim T.A. And D.A., but he drew those amounts. Very lengthy arguments were addressed by the learned counsel for the parties for and against this allegation. The learned counsel for the petitioner has relied on the audit report of Messrs Riaz & Company, to justify that the vouchers of expenditure are neither bearing the signatures of his client nor there is anything on the record to prove that he authorized any other person to debit this expenditure account.
29. ' As against this, Ch. Muhammad Azam Khan, learned counsel for the respondents argued that the Crops Insurance Scheme was introduced in Azad Kashmir by the petitioner. He also made payments of Rs,11,03,476 and Rs,16,46,485 to the Silver Star Insurance Co. Ltd. From the Azad Kashmir Government Cooperative Bank without the permission of the Competent Authority.
30. ' After going through the record, it was noticed that the Board of Directors had approved the Crops Insurance Scheme. In this connection an extract from Annexure "P/3" is reproduced for further discussion:- {{URDU TEXT}} From the abovereferred extract, it becomes clear that the members of the Board of Directors, Azad Kashmir Government Cooperative Bank Ltd.; who were running the Administration of the said Bank, had approved the Crops Insurance Scheme in Azad Kashmir. In this connection even the recommendation of the Secretary, Agriculture for enforcement of this Scheme in A-Lad Kashmir, cannot be ignored. Despite these admitted facts, only the petitioner was held responsible for the enforcement of this Scheme in Azad Kashmir. He was blamed that he without the approval of the competent Authority, introduced this Scheme in Azad Kashmir.
31. ' In our view, this fact alone is sufficient to hold that the proceedings against the petitioner are the outcome of mala fide design. If this Scheme was enforced in Azad Kashmir for some personal gains and any loss was caused to the Bank, then in that case all the members of the Board should have been made answerable for this action. In the present case, no one except the petitioner has been made answerable. The conduct of the respondent-Bank is discriminatory in nature as such opposed to the equality clause contained in the Constitution that all the State Subject are equal before the law and entitled to claim equal protection of law.
32. ' In view of above, while allowing this writ petition, it is declared that the report of the Commission of Inquiry, dated January 1, 1994 and F.I.R. Lodged in furtherance of the same on July 6, 1994 are illegal, null and void as such are quashed.