MIAN NAZIR AKHTAR, J.- The brief facts giving rise to this petition are the petitioner was appointed as a Judge Anti-Terrorism Court No 1, Lahore vide notification dated 12.2.1999 issued by the respondent. He joined his duties on 15.2.1999 and continued to perform his duties at Lahore till 31.5.2000 On 31.5.2000 he was transferred from Lahore to D.G. Khan to work as Judge Anti-Terrorism Court. The petitioner claims that he had been performing his duties justly, diligently and honestly but he was removed from service through a faxed notification dated 31.7.2000. The said notification has been assailed in the present petition.
2. At the very outset, the learned Deputy Attorney General raised a preliminary objection that the petitioner was appointed as a Judge Anti-Terrorism Court for a period of two years which has expired. Hence according to him the petition has become infructuous.
3. Meeting the objection, the petitioner's learned counsel urged that removal in the present case had been ordered on the basis of certain allegations which amounts to a stigma and the petitioner can press the petition to remove the said stigma. Moreover, if the petitioner succeeds in showing that the impugned order is without lawful authority and of no legal effect, he can claim salary for the remaining period of his contract.
4. There is weight in the submissions made by the petitioner's learned counsel. Apparently the removal was ordered on the basis of certain allegations against the petitioner as is evident from a bare reading of the parawise comments submitted on behalf of the respondent, in para 5 of the comments a reference has ben made to the letter addressed by the Governor of the Punjab to the law Minister in which it has been stated that the inquiries made by the Governor reveal that serious excesses attributed to the petitioner were true and that he was unsuitable for the high judicial office to which he was appointed. In the case of The Secretary, Government of the Punjab, through Secretary Health Department, Lahore and others v. Riaz-ul-Haq (1997 SCM R 1552), the Hon'ble Supreme Court was pleased to hold that .There was a marked distinction between simpliciter termination of services in accordance with the terms of appointment and the termination of services on the ground of misconduct, It was further held as under:- "There is no doubt that if a person is employed on contract basis and if the terms .Of employment provide the manner of termination of his services, the .Same can be terminated for misconduct, in that event, even if he is a temporary employee or a person employed on contract basis or a probationer, he is entitled to a fair opportunity to clear his position...."
In the present case, the petitioner's removal was ordered during the subsistence of his contract on the basis of certain allegations without giving him any opportunity to clear his position.
Notwithstanding the expiry of the contract period, he is within his right to press the petition to remove the stigma of "removal" from his name as well as to claim the arrears of his salary.
5. The petitioner's Learned counsel strenuously urged that the petitioner's appointment was made u/S. 14 of the Anti-Terrorism Act, 1997 for a period of two years with effect from 12.2.1999; that originally the term/period of appointment was not fixed in the Act but subsequently through amending Ordinance No. XIII of 1999 the period of appointment was limited to 2.1 /2 years which was extendible for- a further term by the- Government. Before his appointment the petitioner had practised as an Advocate for a period of about 27 years including his service as Assistant Advocate General, Punjab for a period of 3.112 years; that he was also practicing Advocate of the Supreme Court of Pakistan and carried a good name in the society, particularly the lawyers' community; that his premature removal on certain allegations of misconduct has disgraced him in tire eyes of the public and disentitled him to any other Government service; that the petitioner was originally appointed as Judge Anti-Terrorism Court in consultation with the then Chief Justice who had found him to be a fit person to hold the office of a Judge; that prior to the petitioner's appointment at one stage he was falsely involved in a criminal case but was acquitted by the Trial Court u/S. 249-A of the Cr.P.C.; that an appeal against the petitioner's acquittal was accepted by the Lahore High Court but the petition for leave to appeal against the judgment of the Lahore High Court was accepted by the Hon'ble Supreme Court of Pakistan; that at the time of the petitioner's appointment the record regarding his involvement in the criminal case was available, still he was found to be a fit person to be appointed as a Judge for the obvious reason that his involvement in the criminal case was false; that the petitioner was not given any opportunity of being heard and he was pre- maturely removed by the respondent in an arbitrary manner; that the petitioner was lawfully appointed by the Federal Government but was illegally removed from service without assigning any reason; that there was no meaningful consultation with the Chief Justice of Lahore High Court, Lahore before the petitioner's removal; that the Governor of the Province appears to have intimated the then Chief Justice that he intended to remove the petitioner on certain allegations and sought his no objection which was granted without keeping in view the facts of the case.
6. On the other hand, the learned Deputy Attorney General urged that before passing an order for the petitioner's removal the then Chief Justice of the Lahore High Court, Lahore was consulted and his opinion is not justiciable and any writ issued will amount to issuing a writ to the High Court; that the mere fact that the Chief Justice was consulted is good enough to show that the decision was proper and in the interest of Justice; that even if there is some irregularity in passing the impugned order the writ should not be issued at this stage when the contract period has already expired.
7. There is considerable force in the arguments raised by the petitioner's Learned counsel. The petitioner was holding a statutory office of Judge Anti-Terrorism Court on contract basis for a period of two years under the provisions of Section 14 of the Anti-Terrorism Act, 1997. The appointment was made after consultation with the Chief Justice of the Lahore High Court on finding him to be a fit person to hold the judicial office. He had performed his duties for a period of one year, five months and sixteen days when he was removed through the impugned notification dated 31.7.2000.
8. Power to remove the Judge is provided under subsection (4) of Section 14 of the Act which is reproduced below for ready reference:- . "A Judge may be removed from his office prior to the completion of the period for which he has been appointed after consultation with the Chief Justice of the High Court."
The office of Judge, Anti-Terrorism Court is a high judicial office which can be held under the provisions of Section 14 by a Judge of the High Court or a person who is or has been a Sessions Judge or an Addl. Sessions Judge or has exercised the powers of a District Magistrate or an Addl.
District Magistrate who has completed an advance course in Shariah/Islamic Law Or has practised as an Advocate of High Court for a period of not less than 10 years. Holder of such an important judicial office must be given security of his service/office so that he may perform his judicial functions freely and independently.
The statutes which are penal in nature must be definite, clear and certain so as to guard against any arbitrary and capricious action against any person. It was held in the case of "Jamat-i- Islami Pakistan through Syed Munwar Hassan, Secretary- General v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs" (PLD 2000 S.C. 111) + (2000 PSC (Crl.) 329) as under:- " Statutory tenure of 2-1/2 years has also been guaranteed and a judge once appointed cannot be removed prior to the completion of the period for which he has been appointed, except/after consultation with the Chief justice of a High Court concerned. It is inconceivable that the Chief justice of a High Court would recommend arbitrary removal of any judge of the Anti-Terrorism Court in contravention of his statutory tenure except on ground of miscondcut.
It is true that the statute contains a provision (i.e. Section 14) for removal of a judge from service but this is a very serious step and ought not to be lightly taken unless it is essential to uphold the dignity of the Court and secure the interests of administration of justice. Since, originally appointment t>f a judge under the Act is made after consultation with the Chief justice of the High Court, it has been made incumbent upon the competent authority to consult the Chief justice again at the time of removal of the judge. The consultation has to be meaningful and the statutory consultee must express his opinion independently and clearly after considering the reasons justifying the removal of a judge. The reasons may or may riot be assigned or stated in the order passed under subsection (4) of Section 14 of the Act but sound reasons must exist before a serious step of removal of a judge from his office can be taken. The -Chief justice must be taken into confidence by the Federal Government or the Provincial Government as the case may be and he should be apprised of the reasons justifying removal of a judge. It may be observed that the initiative for removal of a judge has to be taken by the Federal Government or the Provincial Government and the ultimate order has to be passed in consultation with the Chief Justice.
Consultation is not done in the vacuum and the relevant material and reasons must be brought to the notice of the Chief Justice for the purposes of meaningful consultation'. In the present case, it appears that there was no meaningful consultation with the then Chief Justice Lahore High Court, Lahore, It is apparent from the comments submitted by the respondent that action was taken by the Federal Government on the basis of a letter addressed by the then Governor of the Punjab to the Law Minister which contained the following observation about the conduct of the Judge:- "My on enquiries reveal that the serious excesses attributed to Mr. Sabir are all essentially true. He obviously unsuitable for the high judicial office to which he is currently appointed "
What "serious excesses" were committed by the petitioner remains shrouded in mystery. Anyhow, it appears that on certain allegations amounting to misconduct, the petitioner was considered to be unsuitable for the high judicial office. It clearly amounted to a Stigma on the petitioner's character and in all fairness he ought to have been given an opportunity of explaining his position before passing of the final order for his removal. This is precisely what has been laid down by the Hon'ble Supreme Court of Pakistan in the case of Riaz-ul-Haq supra. The principle of nature justice "audi alteram partem" (no one should be condemned un-heard) is deemed to be a part of every statute unless its application is specifically excluded as held in the case of University of Dacca Vs. Zakir Ahmed (PLD 1965 S.C 90). In the case of Abdullah Hafiz Abbasi and others Vs. Managing Director, .
Pakistan International Airlines Corporation. Karachi and others (2002 S.C.M.R. 1034) + (2002 PSCC 846) it was held that the employees were made victim of the Prime Minister's directive alone and they were removed from service without issuance of a show-cause notice. It was held that issuance of a show cause notice was incumbent upon the respondent Corporation, in the case of Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others (2001 SCM R 934) + (2001 PSCC 1) it was held where adverse action is being contemplated to be taken against the person, he would have at least right to defend such action, It was further held that where before termination order no opportunity was given to the employees to defend themselves against unilateral adverse action intended to be taken against them, the action was violative of the principles of natural justice and was declared to be without lawful authority and of no legal effect. So far as consultation with the Chief Justice is concerned it is not clear whether the relevant reasons justifying the petitioner's removal were brought to the notice of the Chief Justice of Lahore High Court, Lahore. Jt is merely stated in the comments that he was consulted and he gave his no objection for removal of the petitioner. The question of any objection or no objection by the statutory consultee arises only if jt is clear from the record that the reasons for removal of the Judge were brought to his notice, It is not enough to say that the Chief Justice was consulted and that he gave his no objection to the proposed removal of the Judge. Looked at from the above angles the impugned order is clearly without lawful authority and of no legal effect.
As regards the argument; raised by the learned Deputy Attorney-General that the opinion of the statutory consultee is not justiciable and any writ issued by this Court will amount to issuing a writ to the High Court, it may be observed that in the light of the material on the record it has been found as a fact that there was no meaningful consultation with the Chief Justice for the petitioner's removal. Therefore, the point raised by the Learned Deputy Attorney General does not arise in the present case. At any rate the opinion of the Chief Justice merges into ultimate order or final order of the competent authority and the final order is certainly open to judicial review under the provision of Article 199 of the Constitution of Islamic Republic of Pakistan.
9. The petitioner's Learned counsel has referred to some earlier record pertaining to the petitioner's involvement in a criminal case long before his appointment as a Judge, he explained that the.
Petitioner was falsely involved in the case and was acquitted by the Trial Court and his acquittal was upheld by the Hon'ble Supreme Court of Pakistan. Obviously, the record regarding the petitioner's involvement in the criminal case was available when he was appointed as a Judge in consultation with the then Chief Justice of the Lahore High Court, Lahore. He was considered to be a fit person to hold the high judicial office. It does not appear from the material on the record that the petitioner's removal was due to the consideration of his involvement in the criminal case (in which he was acquitted). Rather some enquiries were made by the then Governor of the Punjab, (without associating the petitioner) regarding some alleged serious excesses attributed to him which were found to be true. The nature of the alleged serious excesses has not been explained in the comments or by the Learned D.A.G, in his arguments. Therefore, it can be reasonably inferred that the action taken against the petitioner is arbitrary and not justifiable in the eye of law.
10. For the foregoing discussion, the petition is accepted, the impugned order dated 31.7.2000 is declared to be illegal, arbitrary, without lawful authority and of no legal effect. Resultantly, the petitioner is entitled to payment of his salary for the remaining period of 6 months and 12 days. The respondent is directed to pay the petitioner's salary within a period of two months after receipt of this order.