' ABDUR RAUF LUGHMANI, J.---The P.A.C. Of N.-W. F P. Assembly in its meeting held on 19th August, 1998, while dealing with D.P. No,779, the matter relating to alleged loss of Rs,0.087 million, directed the decision on D.P. No,778 would .Be applicable. The decision of D.P. No,778 is as follows:- "The Committee recommended the recovery may be made from the Divisional Officer within a period' of 3 months, failing which Departmental/criminal action may be initiated against the officials. However, if the recovery was made in time, then 'no action or adverse entry in the ACR be made. Para. Stands. Progress be reported to PAC."
2. Nawab Khan Khattak, Superintendent Engineer, Irrigation Department, was asked 'by the Account Officer to make payment to the tune of Rs,0.087 million. The Provincial Government through letter, dated 30-9-1998 was pleased to order the recoveries in all cases should be materialised urgently from the officer concerned including the cases sent by the PAC without going through the process of action under the Efficiency and Disciplinary Rules. He has filed Writ Petition No,162 of 2000 challenging the decision of PAC as well as the notice of recovery as being illegal and without jurisdiction.
3. At the time of consideration on D.P. Nos.752 and 753, the PAC held the decision on D.P. No,88 would be applicable, with the result that Muhammad Jan Khan, Executive Engineer of the Irrigation Department, was asked by the concerned authorities in compliance with the decision of the PAC to make payment of Rs,23,600 within a week by letter, dated 7-5-2001. He has filed Writ Petitions Nos.731 and 732 of 2001, challenging the decision of the PAC as well as the follow up action on various grounds.
4. Muhammad Jamshaid, S.D.O. And Amirullah, Sub-Engineer were directed " to deposit Rs,1.891 million on equal basis within 2 months by the PAC in its direction on D.P. No,631, otherwise to face Departmental/criminal proceedings coupled with recovery process. Accordingly, they were directed by letter, dated 24-6-2002 to make payment within 7 days failing which strict action under the Efficiency and Disciplinary Rules would be initiated for effecting recoveries as decided by the PAC. They have filed Writ Petitions Nos.917 and 797 of 2000 respectively complaining that direction of the PAC and the notice of recovery baesd on its decision are illegal and without lawful authority.
5. The PAC in its meeting held on 7-9-1998, after scruinizing the report of the Auditor General for 1995-96, decided on D.P. No,798 that the excess payment be recovered from the concerned Officer within 3 months, failing which departmental/ criminal action coupled with the recovery process be initiated and progress also be reported to the Committee. It was also held on D.P. Note No,807 that Rs,5,00,000 (Rupees Five Lacs) may be recovered from the concerned Officer within 3 months and in case of failure to do so, the same action should be taken as stated above. The Department directed Mukhtiarul Anam, Assn. Engineer, to pay Rs,5,51,500 within 15 days as directed by the PAC, vide letter, dated 20-2-1999. Similarly, Muhammad Rehman, legal heir of late Sardar Ali, Sub Engineer, was asked to pay Rs,5,51,500 by the same letter in view of the over payment made by his late father failing which Departmental/ criminal action will be taken against him. Mukhtiarul Anam has filed Writ Petition No,363 of 1999 calling in question the decision of the PAC and action of the Department.
6. Following the direction of the PAC on D.P. No,620 to the effect that the amount be recovered from the concerned Officer within 3 months failig which Departmental action be taken against him and progress be reported to the PAC. Daulat Khan, S.E. Was issued notice for payment of the said amount. He has also filed Writ Petition No,890 of 1998 complaining that the decision of the Committee was the out-come of malice both law and' fact and thus being illegal and without jurisdiction.
7. In Writ Petition No,1064 of 2002 Rehmani Gul, the then Executive Engineer, has questioned the decision of the PAC on D.P. No, 671 as well as letter, dated 15-8-2000 whereby he was asked to pay certain amount in compliance with the decision of the PAC on D.P. Nos. 671, 672 and 674 otherwise to face action under Efficiency and Disciplinary Rules as well as criminal proceedings.
8. The decision on D.P. No,778 was made applicable to D.P. No,717 by the PAC in its meting held on 19th and 20th August, 1998, with the result that Engineer Raqib Khan, General Manager, was directed straightaway by his Department to pay a certain amount through letter, dated 25-9-1999 through D.P. No,778. Direction was issued to make payment within 3 months otherwise Departmental/criminal action be initiated and progress be reported to the Committee. Engineer Raqib Khan, took exception to the decision of the PAC as well as letter conveyed to him, and has filed Writ Petition No,1797 of 1999 for the redressal of his grievance.
9. Engineer Muhammad Akram, the then Executive Engineer was asked by the Provincial Government to make payment of a certain amount in the light of the decision of the PAC in its meeting held in September, 1998 on D.P. No, 672 and he has filed Writ Petition No, 1085 of 2002 challenging the jurisdiction of the PAC and the legality of letter issued to him. The PAC while disposing of D.P. Nos.671, 672 and 674 also decided that warning be issued to all the Officials and on failure to make payment within 3 months departmental/criminal action be taken against them.
10. Considering D.P. Nos.574 and 945, the PAC directed the recovery of Rs,1,50,000 from the concerned Executive Engineer, S.D.O. And store-keeper in equal instalment within a period of 3 months failing which departmental/criminal action be taken against them. Daulat Khan, S.E. Has filed Writ Petition No, 1128 of 2000 -challenging the recommendations of the PAC as being illegal and without jurisdiction.
11. Arbab Shah Afridi, Chief Planning Officer, was asked by S.O. III Local Government N.-W.F.P.
Through letter, dated 30-10-1997 in the light of the decision of the PAC taken on 21-8-1997 to make payment of Rs,91,983 within 3 months and in case of default criminal/departmental action coupled with the recovery process be issued against him. He has filed Writ Petition No,1127 of 1998 complaining of mala fide on the part of the Committee and also that it lacking jurisdiction to punish him. According to the petitioner, he had powers to enhance the rate which was also admitted by the Chairman of the D.A.C.
12. Engineer Aman Gul Khattak, in the light of the finding given by the P.A.C. Under D.P. No,684, was directed to make payment based on the observations made by the P.A.C., vide letter, dated 10-10- 1999 and '27-10-1999 and similarly D.P. No,648 was referred to the Director General N.-W.F.P.
Peshawar for verification in view of the PAC letter, dated 22-2-1999. The recovery was ordered to be effected within 3 months failing which the Departmental/criminal action coupled with the recovery process will be initiated against him. He has filed Writ Petitions Nos.1907 of 1998 and 1905 of 1999 for declaring the action of the P.A.C. As being illegal and without lawful authority.
13. In Writ Petition No,907 of 2000 Ali Gohar has questioned the legality and the latter of the Section Officer of the Department asking him to deposit Rs,2,10,000 as decided by the P.A.C. In D.P. No,634 failing action is to be initiated under the Efficiency and Disciplinary Rules as directed by the P.A.C.
14. The P.A.C. In its meeting held on 11-10-1997 on D.P. No,638 directed the recovery of certain- amount from the officer concern within 3 months and on failure to do so, departmental/criminal action be taken against him and adverse remarks be made in his A.C.R. Accordingly, Rasool Jan, S.D.O. Was asked through letter, dated 3-11-1997 to .Make payment failing which to face the alternate action as directed by the P.A.C. He. Submitted review petition to the Chairman of P.A.C.
Supported by recommendation of the Chief Engineer to the effect that he 'was Drawing and Disbursing Officer and thus not responsible for the action complained but with no success and he has filed Writ Petition No,723 of 1998 challeng the jurisdiction and decision of the Committee as well as the follow up letter as being illegal and without lawful authority.
15. The P.A.C. In its meeting .Held in August, 1997 under D.P. No,603, fixed the responsibility of the losses on Chief Engineer, S.E. And XEN and it was directed that 1/2 of the losses to be recovered from all the three Officers concened on equal ratio within 3 months, if they failed to deposit the amount on equal basis in time, the departmental/criminal action coupled with the recovery may be taken against the officers._ Progress be reported to P.A.C. And as such! Hidayatullah was served with a notice to deposit. Rs,1,60,334 and on failure to do so, he was directed to be subjected to the proposed action. Writ Petition No,273 of 1999 has been filed by him to declare the action taken by the P.A.C. As being illegal and without lawful authority. Similarly Hidayatullah Khan has also filed Writ Petition No,87 of 1999 challenging the' finding of the P.A.C. Recorded in D.P. No,610 whereby direction was issued for the recovery of Rs,2,36,000 from the Secretary, XEN and S.D.O. On equal basis within 3 months and if they failed to do so, the departmental/criminal action be initiated coupled with the recovery process. Accordingly Hidayatullah S.E. Was directed by the Provincial Government to deposit Rs,78,667 as decided by the P.A.C. Hidayatullah Khan S.E. Has filed Writ Petition No,87 of 1999 challenging the decisin of P.A.C. As well as letter of the Provincial Government asking him to make payment as being illegal and lawful authority.
16.. At the time of scrutinizing the unauthorised advance payment to a Firm, the P.A.C. In its meeting, dated 11-8-1997 directed the recovery be made on equal shares from each XEN of the concerned Division within 3 months positively under D.P. No,659: Hizbullah Gandapur, S.E. Was accordingly asked by the Provincial Government to make payment of the amount falling to his share, vide letter, dated 26-'2-1998. He was also asked by letter, dated 19-2-1.999 to make payment of Rs,8,86,671.95 as directed by the P.A.C. (D.P. No,629) in its meeting held in August, 1997. The P.A.C. Not only directed the recovery of the amount but also directed that .In case of failure to do so, departmental/criminal action coupled with the recovery process.
' Through D.P. -No,682, the PAC directed the recovery of Rs,22,060 from the XEN within 3 months and the amount is not paid, directed initiation of departmental as well as adverse entries to be recorded Mr. Hidaytullah Khan, then Executive Engineer was asked to make payment of the said amount by the Provincial Government: Pursuant to the decision of the P.A.C. (D.P. Note 656)
Habibullah Gandapur was directed to make - payment of Rs,4,18,900 failing which he' h ' to face departmental/criminal action coupled with the recovery process as directed by the Committee.
' He was, also directed to make payment of, Rs,12,200 as decided by the P.A.C. (D.P. No:672).
Habibullah Gandapur has filed Writ Petitions Nos.549, 550, 551, 552 and 553 of 2002 respectively challenging the decision of the P.A.C. And the recovery notice as being illegal, without jurisdiction and of no legal effect.
17. Through. D.P. No,927, the P.A.C. Directed the recovery of Rs,0.876 million from (Rtd.) Major Sardar Alam, son of Muhammad Ayub Khan, (Late) Directors of Works N.-W.F.P. Agriculture University Peshawar, to be deposited within 3 months and in case of failure departmental/criminal action coupled' with the recovery process be taken against him and progess be reported to P.A.C. The petitioner immediately responding to the said notice submitted a reply explaining the legal and factual position but with no success. He has filed Writ Petition No,976 of 2000, challenging the decision of the P.A.C. As well as the letter/notice of the Department asking him to make payment as being illegal and without lawful authority.
18. After considering D.P. No,927 in its meeting held on 10-9-1998, directed the recovery to be effected within 3 months failing which Departmental/criminal action coupled with the recovery of Rs,0,876 _million be taken against him. Progress be reported to the P.A.C. Rab Nawaz, Office Assistant Service-I has filed Writ Petition No,1262 of 2000 challenging the decision of the P.A.C. And action of the Department asking him to make payment as being illegal and without lawful authority.
19. Since common facts and law points are involved in Writ Petitions Nos.162 of 2000, 731 of 2001, 732 of 2001, 917 of 2000, 797 of 2000, 363 of 1999, 890 of 1998, 1064 of 2002, 1797 of 1999, 1085 of 2002, 1128 of 2002, 1127 of 1999, 1907 of 1998, 1905' of 1999, 907 of 2000, 723 of 1998, 273 of 1999, 87 of 1999, 976 of 2000, 1262 of 2000, 549 of 2002, 550 of 2002, 551 of 2002, 552 of 2002 and 553 of 2002, therefore, these are proposed to be disposed of by this single judgment.
20. It has been vehmently contended on behalf of the petitioners with reference to rule 160(2) of the Provincial Assedily, N.-W.F.P. Procedure Conduct of Business Rules, 1988 (hereinafter referred as the Rules of Procedure) made under clause (1) of Article 67 read with Article 127 of the Constitution 'that the P.A.C. (of the defunct Provincial Assembly) possessed no authority to direct intiation of action, departmental or otherwise; that the report of the P.A.C. Was not adopted by the House and that the P.A.C. In flagrant disregard of principle 'of natural justice, took drastic action without affording any opportunity to the persons adversely affected (the petitioners). Another grievance voiced Eby the petitioners is that even if the resolution- of the Assembly approving the report of the P.A.C. Had been passed that would not be binding on the Executive, which was, and is, duty bound, to scrutinise each and every case independent in accordance with law. The action complained of was also assailed on the ground that the petitioners could have been proceeded against under the Efficiency and Disciplinary Rules, which also contained adequate provisions for recovery' of money in case of loss caused by negligence, besides providing imposition of major penalites.
21. Defending the impugned action, the learned Advocate-General submitted that the P.A.C. Did possess jurisdiction to order action against the officers found responsible for the loss; the report of the Committee having been adopted by the Assembly has binding force on the Government in term of rule 135(2) of the Rules of Procedure, being collecutive responsibility of the Constitution. He also objected to the maintainability and jurisdiction of this Court by arguing that the proceedings of the P.A.C. Could not be called in question in view of the bar contained in Article 69(1) of the Constitution. Reliance was placed on the case of Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan Lahore (PLD 1970 Supreme Court 98) and Hakim Muhammad Anwar Babri v. Federation of Pakistan (PLD 1974 Lahore 33).
22. The Parliamentary Committee in the Sub-Continent was set up in 1921 under the Mbntagu- Chelmsford Reforms of 1919, consisting of twelve Members out of which eight were elected by non-:official Members of the Central Legislative Assembly, three Membes were nominated by the 'Governor-General and the Finance Minister was the Chairman of the Committee and in case of equality of votes on any issue, he had a casting vote. After the promulgation of the Indian Constitution in 1950, the strength of the Committee was raised to fifteen Members to be elected amonst the Members of Lok Sabah. The strength of the Committee was increased to twenty two Members in 1954-55. (M.N. Kaul and S.L. Shakdher, Practice ana Procedure of Parliamentary 4th Edition Page-733). The report of the Comptroller and Auditor General on being presented in the Lok Sabah is referred to the P.A.C. Simiarly, in Pakistan. We have the office of Auditor General who submits report relating to the accounts of the Federation to the President and report relating to the accounts of the Province to the Governor of the concerned Province in term of Article 171 of the Constitution. Legislature, whether unicarnral or bicamral, in a Parliamentary or a Presidential System, transacts,a great deal of its business through Committee constituted to deal with spcific items of business requiring extra or in depth consideration. The matter which on account of their special or technical nature are better considered by a small group of Members known as Committee, rather than by the House. The annual reports of the Auditor General relating to the accounts of the province, as requried under Article 171 of the Constitution are laid before the Assembly under rule 198 of the Rules of Procedure. The P.A.C. Is creation of rule 159 of the Rule of Procedure which states that the Standing Committee on Public Accounts shall consist of the Speaker as its Chairman and nine others Members to be elected by the Assembly and the Minister for Finance shall be ex-officio Member. Again, sub-rule (2) of rule 159 describes the power of the Assembly as follows:---
(2) In scrutinizing the appropriation accounts of the Government and the reports of the Auditor General of Pakistan thereon it shall be duty of the Committee to satisfy itself;
(a) that the moneys shown in the accounts as having been distributed were legally available for and applicable to the service purpose to which they have been applied or. Charged;
(b) that the expenditure conforms to the authority which govern it; and
(c) that every re-appropriation has been made in accordance with such rules as may have been prescribed by the Government that behalf.
23. It will, therefore, be seen that the functions of the P.A.C. Are confined to the scrutiny of the audited accounts to satisfy itself, that money shown in the accounts as having been disbursed were legally available and applicable to the service purpose to which applied; the expenditure conforms to the authority; and that every re-appropriation has been made in accordance with the rule framed by the Government. Indeed, the report of the Committee, preliminary or final, is to be laid before the House, under rule 186 of the Rules of Procedure.
24. The plea of the learned Advocate-General is that the report of the P.A.C. Was adopted and so the Government is obliged to follow it in letter in spirit under Article 130(4) of the Constitution read with rule 135(2) of the Rules of Procedure, being the collective responsibility of the Cabinet towards the Provincial Assembly, rule 135 of the Rules of Procedure is reproduced below:-- "135(1). A copy of every resolution, which has been passed by the Assembly, shall be forwarded to the Department concerned of the Government.
(2) Any such resolution shall have effect only as a recommendations to Government, except a resolution in connection with an Ordinance promulgated by the Governor under Article 128 of the Constitution, or a resolution with respect to the Speaker from office; provided that if a resolution is unanimously adopted, it shall be binding on the Provincial Cabinet to implement the same as their collective responsibility under clause (4) of Article 130 of the Constitution."
25. The first question that falls for consideration is whether sub-rule (2) of the above mentioned Rules is in accord with the Constitution . The following resolutions have binding force, as laid down by the Constitution:--
(1) Resolution of removal or impeachment of the President under Article 47 passed (sic)
Membership of the (Majlis-e-Shoora) (Parliament).
(2) Resolution of votes of the confidence against the Speaker or Deputy Speaker, Chairman, Deputy Chairman of the Senate, Provincial Speaker or Deputy Speaker passed by majority of the total Membership of the Assembly House (Article 53(7)(c) read with Articles 127 and 61 of the Constitution.
(3) Resolution disapproving an Ordinance dealing with all any of the matter specified in clause (2) of Article 73 by the National Assembly or in respect of other Ordinance by resolution disapproving the said Ordinance by either House. (Article 89).
(4) Resolution of votes of no confidence passed by a majority of total Memberships of - the National Assembly against the Prime Minister (Article 95).
(5) Resolution of disapproval of an Ordinance issued by the Provincial Government (Article 12$).
(6) Resolution of votes of no confidence passed against a Chief Minister by majority of total Membership of the Provincial Assembly (Article 136).
(7) Resolution by (Majlis-e-Shoora (Parliament) in a joint sitting directing the council of common interest through the Federal Government. (Article 154(4) of the Constitution).
(8) Resolution passed by the National Assembly extending the term of Chief Election Commissioner by a period not exceeding one year (Article 215).
(9) Resolution for issuance of proclamation in cases of failure of Constitutional machinery in a Province, passed at a joint sitting (Article 234).
26, The. Constitution does not state that any other resolution shall be of binding. Nature. The provisions of sub-rule (2) of rule 135 of the Rules of Procedure are in conflict with the Constitution. If a Provincial Leglisture passes unanimous resolution regarding a matter which is out side its power or which infringes rights of other it has to be ignored. Similarly if the Provincial ieglislature passes unanimous resolution directing the Government to impose on a person imprisonment for life surely that is un Constitutional and illegal as well. As regards the collective responsibility as mentioned in Article 90(4) and Article 130(4), suffice to say that the term collective responsibility has been lifted from the British system and indeed it is assured by the enforcement of certain principles. Firstly, no person is nominated to the Cabinet, except on the advice of the Prime Minister. Secondly, no Minister is retained, if the Prime Minister demands his resignation. Thirdly, a Minister is free to express his disent when a. Policy is at the stage of discussion, but once a decision is taken, every Minister is expected to stand by it within a outside the House and if a Minister is not prepared to defend the Cabinet decision he has to resign. Every Minister is to abide by Cabinet decision or resign, and attack on akin idual Minister is considered to be an attack on the entire Cabinet. A Minister ought to be chary about expressing personal views about future policy, except after the consultation and keeping in view the circumstance. Laslty and most essentiall: is that collective responsibility means and implies so long as the Government enjoys the confidence of the majority of the House, it is to remain in power. The Government needs express Parliamentary approval for his legislative and fiscal proposals. The legislature has the mechanism to enforce its decision or resolution, other than the Constitutional resolution which on there passage become effective, by passing appropriate legislation or it can move steps to oust the Government by passing resolution of vote of no confidence. Let it be pointed that in the mother Parliament (House of Common U.K.) the P.A.C. Is one of the select Committee and it considers the report of the Comptroller and Auditor General, who under the law is empowered to examine efficiency, effectiveness and economy, papularly known as three Es while auditing the accounts, but this power has not been bestowed upon the Auditor General in Pakistan who still functions under the President Order No,21 of 1973 and the Central Legislature has failed to enact law in term of Article 169 of the Constitution. The powers of the Auditor-General are given in para.3 of the Presidential Order. The duty/powers are enumerted in paragraph 11 of the Presidential Order which is produced below:-- '
"11. Audit.---(1) it shall be the duty of the Auditor-General:--
(i) to audit all expenditure from the revenues of the Federation and of the Provinces and to ascertaion whether moneys shown in the accounts as having been disbursed were legally available for and applicable to the service or purpose to which they have been applied or charged and whether the expenditure conforms to the authority which governs it:
(ii) to audit all transactions of the Federation and of the Provinces relating to debt, deposits, sinking funds, advances, suspense accounts and remittance business:
(iii) to audit all trading, manufacturing and profit and loss accounts and balade-sheets kept by order of the President or of the Governor of a Province in any department of the Federal Government or of and
(iv) to audit the accounts of any authority or body established by the Federation or a Province; and in each case to report to the President or, as the case may be, to the Governor on the expenditure, transactions or accounts so audited by him.
(2) The Auditor-General may, with the approval of, and shall if so required by. The President or the Governor of any Province, audit and report on--
(a) the receipts of any department of the Federal Government or, as the case may be, of the Province; and
(b) the accounts of stores and stock kept in any office or department of the Federal Government or, as the case may be, of the Pronince.
27. Presently the Auditor General has limited powers and there is need to enhance his power so as to ensure proper utilization of Public Funds etc.
28. The P.A.C. Could not take action against the petitioners and at the most it could recommend action to the Government and the latter could take action in accordance with law on the subject and not otherwise. What we notice is that the Provincial Government without applying its mind followed the direction of the P.A.C. By asking them to make payment otherwise to face criminal action and they would get entries in their A.C.Rs, The P.A.C. At no stage associated the the petitioners and this has been conceded by the learned Advocate-General, Thus the petitioners were condemned unheard and principle of natural justice has been violated. In case of Commissioner of Income Tax, East Pakistan. v. Fazlur Rahman (PLD 1964 Supreme Court 410), the Supreme Court observed that right to be heard is not confined to only judicial proceedings but extends to all proceedings affecting person or property of party and absence of provision as to notice in statute cannot override principle of natural justice. Similarly, in case of Province of East Pakistan and another v. Nur Ahmad (PLD 1964 Supreme Court 451), the Supreme Court held that no person should be condemned unheard and this principle is presumed to be embodied in statute, unless there is provisions to the contrary.
29. It is also not clear whether the report of the P.A.C. Was adopted unanimously or through the majority. In the preliminary report which the learned Advocate-General claims to have been adopted by the House, reference to para. 7 is necessary and reproduced below:-- "The Chairman once again clarified that if the recoveries were made voluntarily in time then no odeparmental/criminal action whatsoever, may be taken and no adverse entry in the A.C.Rs, be reflected. However, he emphasized on the departmental officers that if any officer involved in misdeed, hesitates to make the recovery good, then he may be proceeded under the rules without raising technical points."
30. Even after hearing the affected persons the P.A.C. Could at the most recommend/suggest the action to the concerned Agency/Department of the Government. We are clear in our view that the P.A.C. Could not straightaway direct action against the petitioners, for it could only recommend and the Government was to judge each and every case independently in accordance with law. It is mentioned that if the recoveries were made voluntarily in time then no Departmental/criminal action' whatsoever may be taken and no adverse entries in the A.C.Rs, be reflected but an Officer involved in the misdeeds hesitates to make the loss good, he is to be proceeded under the Rules without raising technical points. We are clear in our mind that the P.A.C. Could not straightaway direct action against the petitioners; it could only recommend and the Government was to judge each and every case of the petitioners independently in accordance with law.
31. Article 69 states that validity of any proceedings in Majlis-e-Shoora shall not be called in question on the ground of any irregularity of procedure. The Assembly is to conduct its business within the limits prescribed by the Constitution. Certain privileges and immunities have been given to the Leglislature, Members and Officers but again there are certain restrictions as well. For example, no discussion shall take place with respect to the conduct of any Judge of the Surpeme Court or High Court in the discharge of his duty as laid down by Article 68 of the Constitution.
Further the Provincial Assembly is to legislate with respect to the matter mentioned in the concurrent list. Again the immunities given in Article 67 is in respect of irregularity of procedure.
Irregularity of procedure is a term which needs no further comments. If the validity of any proceedings is challenged on the ground other than irregularity of proceedings, the Court does have the jurisdiction and the case of Anand Bihari Mishra v. Ram Sahay (AIR (39) 1952 Madhya Bharat 31 (Gwalior Bench) can be quoted with advantage wherein it was held as under:-- "It will be observed from the wording of Article 212 that the validity of the proceedings of the Legislature can be called in question on a ground other than the ground of an irregularity of procedure. Thus, the proceedings would not be protected if they are held in defiance of the provisions of the Constitution or by exercising some powers does not possess. It is also necessary to note that under Article 194, the powers, previleges and immunities of State Legislatures and their members are not absolute. They are subject to the provisions of the Constitution and are modified by the fundamental principle that it is the Constitution which is Supreme and not the Legislature."
' In case of Lt. Col. Farzand Ali and others (Supra) it was held as under:--- "While it is true that all that fairly concerns the internal proceedings of the House relating to its proper business is immune from challenge in Courts, it cannot be conceded that a question relating to the title of a person to be a Member of the House or to continue to sit therein is a qustion pertaining to the internal proceedings of the House. It is a question affecting the Constitution of the House and therefore, it is not a question which can possibly be tarred from inquiry by the Courts under Article 111 of the Constitution. This is not a matter which pertains either to the regulation of the procedure of the House or the conduct of its business or the maintenance of order in the Assembly or affecting any of its privileges. This is not a question, therefore which relates to the 'internal proceedings' of an. Assembly. Clause (1) of Article 111 bars the Courts only from inquiring into the validity of 'proceedings in an Assembly' in the formal sense and nothing more.
' It is difficult to define as to what constitute ' internal proceedings' but this much is clear that they do not extend to anything and everything done within the House. Thus as a general rule a criminal act done in the House would perhaps not be outside the course of criminal justice (vide observations of Stephen, J. In Bradlaugh v. Gossett at P.283). The test indicated by Sir Erskine May in his book on Parliamentary Practice is as to whether what is said or done "forms part of a proceedings of the house in its technical sense, i,e, the formal transaction of business with the Speaker in the chair or in a properly constituted Committee.' It would be neither possible nor desirable to attempt any exhaustive classification of the matters that may be comprised within the term ' internal proceedings' but it will be sufficient for my purpose to indicate that whatever is not related to any ' formal transaction of business' in the House cannot be said to be a part of its 'internal proceedings'."
32. However, it was held that constitutionality of the laws passed by Legislature could be inquired into by Courts. In case of Hakim Muhammad Anwar Babri (Supra), the resolution of the Assembly recommending to the Government to recognize Bangla Desh was challenged and surely the Assembly did possess jurisdiction to pass resolution on the subject, while in the instant case the report of the Committee or the resolution adopted meant action against the petitioners who were not heard and it was to within the scope of the, P.A.C. To make such direction.
33. For the reasons stated above, the petitions are accepted and the directions of the P.A.C. And action taken thereon are declared to be illegal. However, it is 'made clear that the Provincial Government would be at liberty to examine and scrutimise each and every case and can proceed in accordance with law.