' The brief facts out of which the present writ petition arises are that the petitioner participated in the auction proceedings held by the respondents for collection of toll-tax for the period starting from 1-4-2002 to 30-6-2005. The petitioner's bid was highest. S.M. Raza & Company filed Writ Petition No,5105 of 2002 which was, disposed of by this Court vide order, dated 29-3-2002. S.M. Raza & Company filed another Writ Petition No,6097 of 2002 which was dismissed by this Court vide order, dated 12-4-2002. Work order was also issued to the petitioner on 20-4-2002. The petitioner filed representation before the respondents which was accepted vide order, dated 29-4-2002 whereby amount of bank guarantee was reduced from Rs.1,19,67,435 to Rs.39,43,718. The petitioner submitted bank guarantee for Rs.39,43,718 but the respondents returned the same to the petitioner.
S.M. Raza & Company filed I.-C.A. No,331 of 2002. Operation of the contract was suspended vide order, dated 16-5-2002 and finally I.-C.A. Was dismissed by the Division Bench vide order, dated 8- 11-2002. The respondent rescinded the contract of the petitioner and forfeited the earnest money vide order, dated 22-10-2002. The petitioner being aggrieved filed this writ petition.
2. Learned counsel for the petitioner submits that respondents sent notice to the petitioner which was received by him on 22-10-2002. The respondents cancelled the offer of the petitioner on the said date. He further submits that service of notice was not affected upon the petitioner. Therefore, the impugned order is hit by principle of natural justice. He further submits that petitioner is penalized by the inaction of the respondents as the petitioner has complied the terms and conditions in terms of order, dated 29-3-2002 and submitted that bank guarantee amounting to Rs.39,43,718 which was returned to the petitioner by the respondents mala fide. He further submits that action of the respondents is not sustainable in the eyes of law.
3. Learned Additional Advocate-General submits that writ petition is not maintainable as the petitioner has alternative remedy to invoke the arbitration clause. He further urges that representation of the petitioner was accepted by the kEN on 29-4-2002 who was not authorized under the law to accept the same. Therefore, respondents bona fide returned the documents submitted by the petitioner in violation of offer dated 20-4-2002. He further submits that respondents intimated the petitioner on telephone and through notices to fulfil the requirements mentioned in letter dated 20-4-2002. He further submits that petitioner has to furnish bank guarantee equivalent to 10% of the total bid money. The petitioner submitted bank guarantee amounting to 3.33% of the total bid money.
4. Learned counsel of the petitioner in rebuttal submits that respondents have not taken a stand in the report and parawise comments that XEN had no authority to accept the representation of the petitioner. Therefore, contentions of the learned Law Officer beyond the report and parawise comments has no force. The learned Law Officer is bound to argue the case within the parameters of pleadings and stand taken in the pleadings. He further submits that XEN has passed the order after securing the approval from the concerned Secretary as is evident from letter, dated 17-10- 2002 which is attached with the writ petition as Annexure "M" page 40. In support of his contention he relied upon unreported judgment dated 29-11-1999 passed in I.-C.A. No,780 of 1998, judgment of the Honorable Supreme Court, dated 29-3-2002 passed in C.P. No,279/L of 2000 and Messrs Wak Orient v. Government of Pakistan 1998 CLC 1178.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
6. It is settled principle of law that nobody is allowed to approbate and reprobate as per principle laid down by the Honourable Supreme Court in Ghulam Rasool's case PLD 1971 SC 376. The preliminary objection raised by the learned Law Officer has no force in view of the law laid down in Messrs Wak Orient Power and Ltd. v. Government of B Pakistan and others 1998 CLC 1178 and law laid down by the Honourable Supreme Court in Shaukat Ali's case PLD 1997 SC 342. The relevant observation is as follows:-- "We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic Concepts of fair play and social justice. The State functionaries like Railways are expected to act fairly and justly, in a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise. While discharging official functions, efforts should be made to ensure that no one is denied to earn his livelihood because of the unfair or discriminatory act on the part of the State functionary. It is hoped that the petitioners who had been earning livelihood for considerable long period on the basis of licences granted by the Railways will be treated fairly."
It is also settled principle of law that public functionaries are duty bound to act justly, fairly, equitably, reasonably without any element of discrimination as per law laid down by the Honourable Supreme Court in Messrs Airport Sport Services' case 1998 SCM R 2268. After addition of section 24-A in the General Clauses Act it is the duty of public Dfunctionaries to take the action against the petitioner with reasons. The impugned order itself reveals that it does not contain any sound reasons. It is settled principle of law that nobody should be penalized by the act of the public functionaries as per principle laid down by this Court in Ahmad Latif Qureshi's case PLD 1994 Lah.
3. It is also admitted fact that the petitioner was not properly served, therefore, the order is hit by principle of natural justice. It is settled principle of law that principle of IG natural justice must be read in each and every statute unless and until the same is prohibited by the wording of the Statute as per principle laid down by the Honourable Supreme Court in Commissioner of Income- tax v. Fazal-ur-Rehman PLD 1964 SC 410. The impugned order is also not sustainable in the eyes of law as the same is hit by the principle of natural I justice. In arriving to this conclusion I am fortified by the law laid down by the Honourable Supreme Court in the following judgments: -- ' University of Dacca v. Zakir Ahmad PLD 1965 SC 90; Pakistan and others v. Public at Large PLD 1987 SC 304 and Pakistan Chrome Mines Limited v. Inquiry Officer 1983 SCM R 1208.
In view of what has been discussed above, the impugned order is set aside. The parties are directed to appear before the Secretary concerned who is directed to pass fresh order after providing proper hearing to all the concerned including the petitioner preferably within one month after receiving the order of this Court. He is further directed to constitute a committee to probe into the matter qua inefficiency of any officer/official of the department. In case the Committee finds that any officer/official is responsible for any mischief then he is directed to proceed against him under Efficiency and Discipline Rules and shall also initiate criminal proceedings against him. He is directed to complete this process within two months. He is further directed to submit report to the Deputy Registrar (Judi.) of this Court within the stipulated period. The learned Law Officer as well as the representative of the respondents are directed to notify the order to the Secretary concerned for necessary action and compliance.
' With these observations this writ petition is disposed of.