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