ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
C.P. No.D-1566 of 2019
&
C.P. No.D-569 of 2020
Present
Mr. Justice Adnan-ul-Karim Memon
Mr. Justice Yousuf Ali Sayeed
Petitioner : Syed
Asghar Ali Shah
Through M.s/ Qurban Ali Malano, Jamshed Ahmed
Faiz and Sudham Chan alias Sudhamo Kewalramani, advocate for Petitioners in
C.P. No. D-1566/2019 and C.P.
No.D-569/2020
Intervener : Through Wazir Ahmed Ghoto, advocate
For Intervener in
C.P. No.D-569/2020
P.O.
Sindh & ors : M/s. Shafi Muhammad Chandio,
Additional
Advocate General and Mr.
Ahmed Ali
Shahani, Assistant Advocate
General alongwith
Zahid Hussain
Kehmtio, Additional
Secretary on behalf of Secretary, Local Government, Karachi and Inspector Ayaz
Ahmed, Circle Officer, ACE, Ghotki
Date of hearing : 16.07.2020
Date of decision : 23.07.2020
*************
O R D E R
ADNAN-UL-KARIM MEMON, J: These two
writ petitions raised common questions of law and, therefore, they were heard
together and are being disposed of by a common judgment.
2. The gist of the case of the Petitioner
is that he was suspended from the post of Chairman, Municipal Committee,
Ghotki, for a period of 60 days, pending, allegations of misconduct against him
vide Notification dated 02nd June 2020 issued by the
respondent-local Government department. Being aggrieved by and dissatisfied
with the Notification dated 02nd June 2020, the petitioner has filed
a Constitutional Petition (bearing C.P No.D-569 of 2020) before this Court challenging
the same.
3. The allegations against the petitioner
in both the petitions are that he is the holder of public office dishonestly
misappropriated the Government funds and a preliminary inquiry was conducted by
the competent authority and he was found involved in the affairs of Municipal
Committee, Ghotki.
4. Petitioner has averred that on account of
political rivalry/reasons, members of the ruling party, which is presently
ruling in the province of Sindh, always tried to remove him from the
Chairmanship. He has submitted that recently on the purported allegations about
the affairs of the Municipal Committee, Ghotki, an inquiry was conducted by the
Deputy Director, ACE and in that inquiry; he has submitted all his defences and
refuted the allegations made against him. He has submitted that he is nowhere
involved in any of the works executed and every work was executed after the
approval of the council. It has been submitted that the integrity of the
petitioner is beyond any doubt. According to the petitioner, as a member of the
ruling
party as discussed supra was determined to
remove the petitioner from the post of Chairman Municipal Committee Ghotki, for
an ulterior motive, he persuaded the so-called Provincial Local Government
Commission, which was not properly constituted as per Section 119 and 120 of the
Sindh Local Government Act, 2013, to recommend for suspension of the petitioner
from the post of Chairman Municipal Committee, Ghotki because his efforts failed to remove him. It has been
submitted that the suspension of an elected member cannot be equated with the
suspension of a Government servant in as much as the suspension of an elected
member amounts to his temporary removal and, therefore, all sorts of
precautions should be taken before suspending an elected member; that the
temporary removal of an elected member without affording him an opportunity of
being heard is violative of the principles of natural justice. The contention
of the petitioner is that the allegations levelled against him do not in any
manner amount to flagrant abuse of his position and he is neither guilty of
misconduct in discharging his duties nor he is guilty of disgraceful
misconduct; that all these allegations are baseless. The suspension order has
been passed for an oblique motive and ulterior considerations. According to the
petitioner, the suspension order has penal consequences in as much as if the
aforesaid order stands, the petitioner will not be allowed to take part in the
proceedings of the council and it will shatter his image in the public at large.
5. Learned counsel
for the petitioner argued that the notification dated 02.6.2020 of the
suspension of the petitioner by the Government of Sindh had not been published
in the official Gazette as required by the mandatory provisions of General Clauses
Act,
1897; that eminent reason for the impugned
action is that the delimitation process of the upcoming election has been
commenced and the respondents at the behest of the political opponents of the
petitioner have backlashed the petitioner by suspending him without any lawful
manner; that the alleged inquiry has been conducted by Respondent No.4 & 6
against the petitioner twice; besides, another inquiry regarding similar
allegation has also been conducted by Respondent No.1 & 3; that it is
settled principle of law that nobody could be vexed twice for the same offence and
it is prohibited under the law that one inquiry could not be initiated by the
different forums pertaining to same subject matter against the same person,
which comes under the doctrine of double jeopardy; that all other proceedings
against the petitioner were void ab-initio and nullity in the eye of law. He, therefore, prayed for allowing the instant
petitions.
6. A reply to
the writ the petition has been filed on behalf of the respondents, in which, it
has been claimed that the petitioner was elected as Chairman of the Municipal Committee
Ghotki in the year 2015 for
four years. It has been alleged that the petitioner has been involved in the
business of illegal and corrupt practices, who while bypassing the rules and
regulations issued work orders to his favorite contractors; besides many
illegal appointments were made at the behest of the present petitioner, which were
subsequently declared fake by the government; that there are so many
illegalities and irregularities on the part of the petitioner but when he was
called for submission of record, he failed to do so without expressing any
genuine reasons or otherwise by not submitting the entire record. Thus,
according to the respondents, there was a prima
facie case against the petitioner to proceed against him under section
120(3) of the Sindh Local Government, Act, 2013. According to the respondents, in
such matters, no pre-decision at the hearing is essential. The petitioner
himself has participated in the enquiry and has brought all the facts to the
notice of the competent authority and, therefore, it cannot be said that he has
been taken by surprise. After considering the report submitted by the Enquiry
Officer, he has been suspended from the post of Chairman, Municipal Committee Ghotki
by the recommendation of Provincial Local Government Commission under Section
120(3) of the Sindh Local Government, Act, 2013. According to the respondents,
the proceedings have commenced against the petitioner from the date, when show
cause notice was issued to him as regards charges leveled against him, the said
exercise shall be completed in the month of August, as per law. The
petitioner has submitted his explanation before the competent authority, who is
already seized of the matter. Along with the reply to the writ petition, the
preliminary enquiry report has also been filed. It has been contended by the
respondents that as per Section 120(3) of the Act, the suspension can be
ordered at the commencement of the proceedings and when the competent authority
had applied its mind on the preliminary enquiry report and came to the
conclusion that action under Section 120 of the Act has to be initiated against
the petitioner then it would mean that the proceedings have commenced on the
date when he ordered for the issuance of show cause notices accompanied by the
statement of allegations against the petitioner. Thus,
it has been claimed that no pre-decisional hearing is necessary for such
matters and all actions are valid; that the
raid was conducted as per Anti-Corruption Establishment rules after proper
permission from the competent authority under the supervision of Civil Judge
and Judicial Magistrate Ghotki. The record was secured as per proper Mushirnama such letters were issued to
Town Municipal Administration/concerned Authority for providing the relevant
record of contingency and for a statement of petitioner; that the inquiry was
conducted as per ACE Rules, 1993 and the petitioner deliberately avoided his
appearance as well as for providing the relevant record of the payment of
contingency; that the petitioner has been creating hindrance in
production of record, therefore, the Commission recommended that Local
Government Department may float a summary to the Honorable Chief Minister Sindh
for placing him under suspension under Section 120(3) of Sindh Local Government
Act, 2013, for a period of 60 days, as there is every likelihood of fudging and
tampering of the record on the part of the Chairman Municipal Committee,
Ghotki, given its past track record of procrastination and dithering, which
definitely smacks of suspicion, which cannot be ignored; that subsequently a
summary proposing the same was presented to the Worthy Chief Minister Sindh,
who duly approved the same on 05.05.2020, therefore, he was suspended vide
notification dated 02.06.2020.
7. Having
heard the parties in the matters, questions, which agitate the controversy at
the hand, could be reduced to the following:-
i) Whether the petitioner can be
suspended from the post of Chairman, Municipal Committee, Ghotki, pending
allegations of misconduct?
ii) Whether Provincial Local Government Commission
was constituted under the law and duly gazetted?
8. To
commence with the rule position of the case, it is expedient to have a glance
over Section 119 and 120 of Sindh Local Government Act, 2013, an excerpt of the
aforesaid Sections are reproduced herein below:-
“Section 119.(1)
Government shall appoint a Provincial Local Government Commission which shall
comprise of the following members:-
(a) the Minister for
Local Government, who shall be the Chairman; (b) two members of the Provincial
Assembly of Sindh each to be nominated by the leader of the House and Leader of
the Opposition;
(c) two eminent, qualified and experienced
technocrat members nominated by the Government; provided that one member shall
be nominated by the Government from amongst a panel of three names to be given
by leader of the Opposition in the Provincial Assembly;
(d) Secretary, Law
Department; (e) Secretary, Local Government Department, shall be ex-officio
member and Secretary of the Commission.
(2) The Provincial Local Government Commission
may, for the performance of its functions, co-opt any official of the Government
for any specific assignment.
(3) The tenure of the members of the
Provincial Local Government Commission, other than Secretaries of Local
Government and Law Department, shall be four years.
(4) The Local Government Department, shall
provide secretariat support to the Local Government Commission and the
Department shall render assistance in the functioning of the Commission by
establishing a separate Secretariat of the Commission with sections for each
level of council.
(5) No act or proceedings of the Provincial
Local Government Commission shall be invalid by reason of existence of any
vacancy in, or defect in, the constitution of the Commission.
(6) The Government shall provide a separate
budget for Local Government Commission in the Annual Budget.
(7) The Government shall notify the organogram
and schedule of establishment of the Provincial Local Government Commission.
(8) The Secretary of Local Government
Department, shall be the Principal Accounting Officer and the Commission shall
have its own Provincial Local Government Commission. 53 Drawing and Disbursing
Officer.
120. (1) The
functions of the Provincial Local Government Commission shall be as, otherwise,
provided in this Act and, in particular, it shall –
(a) conduct special inspections of the
Councils and submit reports to the Chief Minister Sindh;
(b) conduct, on its own initiative or,
whenever, so directed by the Chief Minister Sindh, an inquiry by itself or
through Council into any matter concerning a Council;
(c) cause, on its own initiative or,
whenever, so directed by the Chief Minister Sindh, a special audit by itself or
direct a Council to arrange a special audit, of any Council;
(d) resolve disputes between any Department of
Government of Sindh and Council or between two Councils; Provided that if the
Local Government Commission fails to settle the disputes, the aggrieved party
may move the Chief Minister Sindh for resolution thereof;
(e) enquire into the matters referred to it by
the Chief Officer under the provisions of this Act and give its decision
thereon or, as the case may be, make report to the competent authority;
(f) submit to the Chief Minister Sindh an
Annual Report on the overall performance of the Council;
(g) take cognizance of violations of laws and
rules by a Council in performance of its functions;
(h) organize consultative planning meetings of
National and Provincial legislators, Mayors, Deputy Mayors, Chairmen and Vice
Chairmen of Councils on a periodic basis to provide their participation in
development activities of the district with regard to-
(i) the consultative process of the Annual
Development Plan of the Council;
(ii) formulating procedure for utilization of
the Legislators development grant; Functions of the Provincial Local Government
Commission.
(iii) assessing implementation of decision of
these meetings; and (iv) carrying out review of development schemes;
(2) The directions and orders of the
Provincial Local Government Commission arising out of its inspections and
inquiries under this Act shall be binding upon the concerned Council failing
which the Commission shall report the matter with specific recommendations to
the Chief Minister Sindh for decision and appropriate action.
(3) Where the Provincial Local Government
Commission is of opinion that suspension of a Mayor, Deputy Mayor, Chairman or
Vice Chairman of Council is necessary for the fair conduct of the enquiry under
this Act or preventing the Mayor, Deputy Mayor, Chairman or Vice Chairman of
Council from continuing with any unlawful activity during the pendency of
enquiry, it may recommend to the Chief Minister Sindh for making appropriate
order for suspension of such Mayor, Deputy Mayor, Chairman or Vice Chairman of
Council for a maximum period of ninety days.
(4) Where, on any enquiry under this Act, a
Mayor, Deputy Mayor, Chairman, Vice Chairman or a member of a Council is found
guilty or misconduct by the Provincial Local Government Commission, it shall
recommend appropriate action, to the Chief Minister Sindh.
(5) The Provincial Local Government
Commission shall have the same powers as are vested in a civil court under the
Code of Civil Procedures, 1908 (Act V of 1908), in respect of the following
matters, namely:-
(a) Summoning and
enforcing the attendance of any person and examining him on oath;
(b)
compelling the production of documents;
(c) receiving
evidence on affidavits; and (d) issuing commission for the examination of
witnesses”.
9. We have also gone through the
recommendation of the Provincial Local Government Commission dated 13th
March 2020, and an excerpt of the same is reproduced here for the sake of
convenience:
“Item No.2: Submission of
Development and Non Development record
and Council Session record for last 3 years of Municipal Committee, Ghotki
The forum was informed that despite
reminders, the latest being letter No.DD(Estt/GA)/PLGC/2020/64 dated
26.02.2020, the Regional Director, Local Government Sukkur has failed to submit
detailed report on the subject to PLGC. The Regional Director, vide his letter
No. RD/LG/561/2020 dated 28.02.2020, has stated that the functionaries of
Municipal Committee Ghotki have failed to provide him the record as yet, hence
he is unable to prepare and submit the report into the matter.
As per decision taken in the last meeting of
the PLGC, the Deputy Director, Anti-Corruption Establishment Sukkur vide letter
No.DD(Estt/GA)/PLGC/2020/36 dated 13.02.2020 was asked to intimate the details
of the record collected/ seized from Municipal Committee Ghotki and whether it
has been returned back or otherwise. On 26.02.2020, he was further asked to
intimate latest status of the enquiry and its conclusion or findings. The
Anti-Corruption Establishment Ghotki vide letter No.DD/ACE/1407-8 dated
19.02.2020 and No.CO/ACE/346-47 dated 28.02.2020 has stated that on the request
of Chief Municipal Officer the original record was returned and the photocopies
of the relevant record of Development and Non-Development produced by the
Municipal Committee, Ghotki is lying at PS ACE Ghotki. Further, they have
requested Director Anti-Corruption Establishment, Karachi and sought the
services of Technical Officer, ACE Sindh, Karachi for site inspection so as to
conclude the inquiry.
The forum was also requested to recall
discussion of the last meeting wherein it was informed that the CMO, MC Ghotki
vide his letter No. MC/GHK/896/2019 dated 29.11.2019 has reported that the
concerned officials of the council viz. Assistant Executive Engineer, Officer
Superintendent and ATO Accounts were requested for producing the record but
they deliberately avoided to produce the relevant record on the directions of
Syed Asghar Ali Shah, Chairman Municipal Committee, Ghotki. A focal person was
also appointed by the Chief Municipal Officer for collection of the record. The
focal person, on 14.11.2019 has reported that Mr. Mehboob Ali Kolachi in
collusion with Syed Asghar Ali Shah, Chairman Municipal Committee Ghotki has
stolen the record from accounts branch, office of Municipal Committee Ghotki.
The CMO, MC Ghotki further stated that he has sent a report to the higher
authorities and a case has also been registered at Police Station A-Section,
Ghotki. The Chief Municipal Officer, has further pointed out that some other
irregularities are also being committed in the Municipal Committee Ghotki.
As per decision taken in the PLGC meeting
dated 11th February, 2020, the Chairman Municipal Committee Ghotki
was asked to appear before the Commissioner along with record on 19th
February 2020. The meeting scheduled on 19th February 2020 could not
be held, hence he was requested to appear on 06th March, 2020.
Accordingly, Syed Asghar Ali Shah Chairman
Municipal Committee Ghotki appeared before the Commission on 6th
March 2020 and produced the photocopies of the record to this Commission. On
the directives of the forum, the record was taken over by the office of PLGC.
During the 6th meeting, it was
stated by the Additional Secretary, Law Department that he is attending the
meeting on behalf of the Secretary, Law Department, who is currently in
Islamabad for an official assignment. It was also pointed out that the law and
the rules are silent on participation of any substitute/proxy/representative on
behalf of any member of the PLGC. In view of the ambiguity, it was decided that
the meeting be adjourned and another meeting of the Commission to discuss the
agenda may be scheduled in which Secretary Law Department, Government of Sindh/
Member of the PLGC may be requested to attend in person.
Whole scenario presented before the forum in
7th Meeting of the PLGC on 13th March 2020. After
detailed discussion, the Commission decided as under:-
i)
The
Chairman Municipal Committee Ghotki has been creating hindrance in production
of record, therefore, the Chairman recommended that Local Government Department
may float a summary to the Honorable Chief Minister Sindh for placing Syed
Asghar Ali Shah, Chairman Municipal Committee, Ghotki, under suspension under
Section 120(3) of Sindh Local Government Act, 2013, for a period of 60 days, as
there is every likelihood of fudging and tempering of the record on the part of
the Chairman Municipal Committee, Ghotki, given his past track record of procrastination
and dithering, which definitely smacks of suspicion, not really to be
ignored.
ii)
The
Members (Technocrat) of the Provincial Local Government Commission may be
authorized to examine the record of Municipal Committee Ghotki for the last 3
years, and furnish findings/ report to the Commission within 15 days
positively.
The meeting ended with vote of thanks to and from chair.
(Dr. Mansoor Abbas Rizvi) (Muhammad Ibrahim Qureshi)
Secretary Law Department Member
(Technocrat)
& Member, PLGC
Provincial Local Govt: Commission
(Muhammad Rashid) (Roshan Ali Shaikh)
Member (Technocrat) Secretary LG/Member/ Secretary
Provincial Local Govt. Commission”
10. A bare perusal
of impugned notification shows that the Petitioner was suspended on the charges
of corruption by Respondent No.1 in the exercise of power conferred under
Section 120(3) of Sindh Local Government Act, 2013, for a period of 60 days.
11. Before dilating
upon the fact as to whether Respondent No.1 is competent to suspend the
Petitioner or not, in the first instance we would like to consider whether the
Petitioner can challenge his suspension and subsequent initiation of inquiry
proceedings against him in the constitutional petition.
12. In law,
suspension is not defined as a punishment. The
suspension does not finally determine the matter. Its sole purpose is that the
persons, against whom severe allegations of misconduct, flagrant abuse of
powers and disgraceful conduct is leveled, may be restrained from causing
further damage to the finances of the institution. Here, the suspension order
is absolutely interim in character and does not attain any finality.
Against the adverse result of the inquiry, if any, the Petitioner will have the
remedy of appeal and in presence of such adequate remedy; this Court at this
juncture will not step in to declare the suspension of the Petitioner illegal
and void on the ground that impugned order of suspension has not been passed by
the competent authority. More so, the Petitioner’s objection on his suspension
is technical and procedural. The Petitioner is admittedly facing the
allegations of corruption and in such circumstances, we would not like to
exercise our discretion in his favor and thwart the whole process of inquiry
against him and set-aside his suspension on any of the technical ground, which
will amount to interfering in the right of the authority to enquire into
allegations against the Petitioner. The Petitioner has not been able to show;
in view of above facts and circumstances, as to how he is prejudiced by his
suspension.
13. Reverting to the second limb of arguments of the learned
counsel for the petitioner about constitution of Sindh Local Government Commission
and its non-publication in official gazette. The Secretary, Local Government
Department, has filed a statement regarding the aforesaid query raised by this
Court vide order dated 09.07.2020. He has submitted that Provincial Local
Government Commission was appointed vide notification dated 20.08.2013 and
placed reliance upon Notification dated 24th April, 2015, whereby
Mr. Sono Khan Baloch was appointed as Member, Local Government Commission, for
four years. He also relied upon another Notification dated 09.08.2016, whereby
Mr. Muhammad Ibrahim Qureshi was appointed as member (Technocrat), Provincial
Local Government Commission for four years. He also placed reliance on
notification dated 07.01.2020, whereby Mr. Muhammad Rashid was appointed as
Member between Technocrat, Provincial Local Government Commission, for four
years. At this stage, we asked the learned AAG to inform this Court as
to whether, there was any appointment of two members from Sindh Provincial
Assembly as provided under Section 119 (i). He
placed reliance upon the letter dated 07.09.2018, issued by Secretary, Local
Government Department addressed to the Secretary Provincial Assembly of Sindh ,
Karachi, for nomination of two members of the Provincial Assembly of Sindh i.e.
one from the leader of the house and other from the leader of opposition under
Section 119 (i) (b) of the Sindh Local Government Act, 2020. He argued that the
Provincial Local Government Commission initiated action against the petitioner
as per law as he was asked to appear before the provincial Local Government
Commission in its meeting held on 19.02.2020 along with record i.e. development
and non-development record, council sessions’ record, income and expenditure,
sub-head wise showing the budget position, development and non-development
components each sub-head and bank statement for last three years, who failed to
abide by the query raised by Provincial Local Government Commission vide letter
dated 13.02.2020 and finally he appeared before the Commission on 06.03.2020
and provided photocopies of the record. The Commission, after detailed
discussion, decided to recommend to Worthy Chief Minister for suspension of the
petitioner, as provided under Section 120(3) of the Sindh Local Government Act,
2013, for sixty (60) days.
14. The suspension
of the petitioner does not amount
changing of law, which does not require publication in the Official Gazette. Even otherwise, the provisions of a
statute for the publication of a notification in official Gazette are generally
regarded by the Courts as directory and where their strict non-compliance does
not provide any consequences. In the case of Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423), the Honorable Supreme
Court endorsed the view of this Court that even if Karachi Building and Town
Planning Regulations, 1979 were not published in the official Gazette under
section 21-A (3) of the Sindh Buildings Control Ordinance, 1979, they could be
construed and acted upon as regulations for the purpose of the said Ordinance. The
aforesaid proposition is also reiterate by the Hon’ble Supreme Court in the
case of Bahadur Khan and others vs.
Federation of Pakistan and others (2014
SCMR 2066). In this view of the
matter, the objection to that effect is misconceived and not sustainable.
14. The writ petitions cannot be sustained and
the same are dismissed along with pending application(s).
JUDGE
JUDGE