Locus Poenitentiae, Safety Valve AgainstAdministrative Injustice Or Injustice Itself

LOCUS POENITENTIAE, SAFETY VALVE AGAINST LOCUS POENITENTIAE, SAFETY VALVE AGAINST ADMINISTRATIVE INJUSTICE OR INJUSTICE ITSELF By Mehboob Pervez Awan, Joint Secretary, Pakistan Law Commission, Islamabad The term "locus poenitentiae" literally means .an opportunity to undo what one has done; legally it means a chance to withdraw from a contemplated bargain or contract before it results in a definite contractual liability[Black s Law Dictionary] or a power of drawing back from a bargain before any act has been done to confirm it in law.[ Belli s Scots Law Dictionary] Generally the principle is applied to recall or rescind an administrative action or decision to retrace wrong steps taken by the authorities concerned under section 21 of General Clauses Act, 1897 which reads as under: "Where by any, Central Act or Regulation, a power to issue notification, order, rules, or bye‑laws is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions if any, to add to, amend, vary or rescind any notification, order, rules or bye‑laws so issued. " Provisions of section 21 of General Clauses Act, 1897 postulate that an authority which passes an order is competent to vary, rescind or cancel the order passed by that authority but such power is not absolute as the same is subject to certain limitation. Where the order sought to be varied, rescinded or cancelled is communicated to other party and subsequent to that communication that party acts upon such order a very valuable right accrues to that party in such‑like situation the authority passing such order becomes functus officio to vary, rescind or cancel its earlier order as the law does not allow "volta face" to the authority in circumstances.[ 2000 PLC (C.S.) 349] This principle of law has been, time and again, recognized, accepted and enforced by the superior Courts. 'The Full Bench judgment of the Supreme Court ruled that the power of rescinding till a decisive step is taken, is available to the Government or the relevant authorities subject to the exception that where the order has taken legal effect and in persuance thereof certain rights have been created In favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights.[ PLD 1969 SC 407, PLD 1973 Quetta 14] Though, under the law, an authority may recall, rescind an order but this authority is neither unfettered, nor it can be used as a weapon of offence against a person in whose favour a valuable right has already been accrued and enjoyed. Unfortunately, the principle is not applied in its true perspective and is often used as a weapon of offence. Its abuse is commonly apparent in service matters where improper, irregular and sometimes illegal orders are passed in haste and subsequently, to cure irregularities, are withdrawn. The need is that this principle should be applied carefully and in its true perspective and its proper application is that it should neither be so liberal to. victimize a person in whose favour a vested right is accrued, nor so rigid to perpetuate a legal wrong, rather it should be used as safety valve against injustices and not injustice itself. To avoid such‑like situation, authorities must follow the rules and principles of justice and equity so that even a person against whom order has been passed, should not stamp it as mala fide and result of bias or malice,[ 1996 SCMR 263] nor it be spelled that process of legal battle is being circumcised by the doctrine of locus poenitentiae[1996 PLC 90] because an improper application of principle may create chaos, insecurity and would affect performance of a public, servant as is held that no law of land or rules on service matters authorize Government to effect modification in orders passed by previous competent Authority on regular and permanent basis, such rules would create chaos, insecurity and will affect performance of a public servant.[ 1986 PLC (C.S.) 582] Similarly, an authority can certainly frame policy decisions with retrospective effect but not to the detriment of a legal vested right already accrued in favour of a civil servant who has already allowed specific privileges, nor his right could be abridged or affected by alteration of policy with retrospective effect and if the action is devoid of natural justice the action can certainly be challenged.[ 1997 PLC (C.S.) 232] The proper application of locus poenitentiae by a statutory or executive authorities is available if any effective step has yet to be taken in implementation thereof[1981 SCMR 604.] and not in case where a vested right is accrued and enjoyed, then law comes in operation to protect his legal rights as is held that his right cannot be withdrawn[1995 PLC (C.S.) 1015] however, it may not be a correct interpretation that once an order is passed which is otherwise illegal becomes irrevocable on being past and closed transaction, because an illegal perpetual right cannot be gained on the basis of illegal order. In earlier situation an order cannot be withdrawn where a person who was promoted and given seniority according to date of regular promotion which he enjoyed sufficiently for a long time but was subsequently disturbed all of a sudden, the decision was held devoid of the principle,[ 1995 PLC (C.S.) 1015] and. the order even not sanctioned by rules, cannot be withdrawn if in the meantime a valuable right is accrued to a civil servant.[ 1981 SCMR 523, 1985 PLC 472] Similarly, if any monetary benefit is derived as a result of this order, which is subsequently rescinded, it was held that authorities are not entitled to recover the amount drawn being received on bona fide belief.[ PLD 1972 SC 207]. This paper would remain incomplete without referring some notable references wherein the principle of locus poenitentiae is interpreted and applied in its true perspective with an objective to be followed accordingly while invoking the jurisdiction. A person was appointed after interview by the selection committee fully knowing that he was third division matriculate, without reserving the right to reconsider such appointment, after three years his order of appointment was withdrawn on the ground that he was a third division matriculate. It was held that the order of appointment being unequivocal and unconditional having attained finality could not be upset at belated stage merely because the departmental authorities failed to perform their duties cast upon them under the rules,[ 1985 PLC 133] in another case of like nature where petitioner was appointed by the competent Authority after relaxing relevant rules and subject to certain conditions which were complied with, but subsequently reverted to lower post was declared devoid of principle and not justified.[ 1981 SCMR 523] It is the duty of authorities concerned to take every possible care before taking any action and must follow rules, regulation for implementing any order giving vested right to a person and not in a routine way. An authority can certainly retrace wrongs subject to the exception, whether order has taken legal effect and in pursuance of which any right is accrued in favour of a person, if so, the order cannot be withdrawn , or rescinded to the detriment of such person. In such cases, withdrawal of orders, even after show‑cause notice, is not sustainable. [1983 PLC (C.S.) 1042] In a recovery case, recovery of amount paid on the basis of incorrect order which was received by the recipient on bona fide belief that he was entitled to recover, was held that payer was not entitled to recover the amount from the payee during the period when incorrect order remained in field.[ PLD 1992 SC 207] The Supreme Court in a case of irregular promotion of a civil servant, held that promotion order even not sanctioned by rule cannot be withdrawn if in the meantime a valuable right accrued to the civil servant,[ 1981 SCMR 523] similarly advance increments were granted to a civil servant in recognition of his good record and qualification but subsequently withdrawn taking shelter of this principle was held that the civil servant having drawn monetary benefit no locus poenitentiae left for withdrawing those increments.[ 1981 SCMR 523, PLD 1969 SC 407] In another case, pay of civil servant was fixed in BPS‑11 in the year 1976, which was being paid about seven years. In November, 1983 the pay was revised and refixed in BPS‑7 on the ground that pay was wrongly fixed in BPS‑11. It was held that in such‑like cases authorities have no power of rescinding the earlier orders and refixation by invoking this principle.[ 1985 PLC (C.S.) 1053] It cannot be denied that the spirit of this principle is to rectify illegalities and irregularities and to prevent its perpetuality, i.e a building plan, which was approved in contravention of law, cannot be treated as an irrevocable act, or past and closed transaction.[ PLD 1992 SC 207; PLD 1969 SC 407] Similarly, in a case, an admission from metallurgy technology to electrical technology was obtained through interference of Chief Minister who had no authority to change technology, as the change of technology was obtained through manipulation, principle would be applicable.[ 1997 CLC 2030] Similarly, in a case the petitioner was highest bidder of leasehold rights but before the formal letter of acceptance is issued the approval was recalled by the competent Authority. It is an admitted fact that neither written order was passed by the competent Authority nor possession was taken over. In this situation, it was held that executive authorities have locus poenitientiae to recall orders.[ 1981 SCMR 604] The question whether certain authorities having once cleared the goods without customs duties, are estopped to recover the same on the principle of locus poenitentiae. It was held in Vulcan v. Collector Custom 2' that the principle cannot be stretched to protect orders and action in derogation to law which has caused injustice on the face of record. In the instant case the petitioner is liable to pay customs duty.[ PLD 2000 Lah. 253] As earlier stated, Government has ample powers to revise their policies but not to the detriment of a civil servant. It was held that any policy which affects the rights of a civil servant with retrospective effect cannot be given effect‑by way of alteration of policy if in the meantime any valuable right or a specific privilege has already been accrued in his favour i.e. in a case, a post was upgraded and a civil servant was appointed/promoted against that post, the incumbent of the post continuously served as such but subsequently withdrawal of those orders without notice was held not sustainable[1981 SCMR 523, PLD 1969 SC 407], similarly, change in seniority list was deferred on the ground that promotion was not, regular, and order of promotion was not challenged during last twenty years, it was held that the seniority of a civil servant having been changed without lawful authority, he is entitled to be restored to his original seniority.[ 1994 PLC (C.S.) 1064] If an employee has been given any financial benefit i.e. bonus etc, the same cannot be recovered under doctrines of locus poenitentiae.[ PLJ 1999 (Tr.C) 100] Similarly, an order becoming operative carrying legal effect, held, cannot be cancelled by subsequent notification.[ PLD 1963 Lah. 53 .] It is the obligation of Authorities that while invoking this principle they must invoke this jurisdiction as a safety valve against administrative injustices and not injustice itself as is ordained in the Holy Qur'an: Be just: this is nearer to piety. (5:8). MR. JUSTICE AMANULLAH KHAN, JUDGE, BALOCHISTAN HIGH COURT Born at Quetta on 7th August, 1954. Matriculated from Cantt. Public School, Quetta in the year 1970. Did Intermediate in the year 1972; B.A. in the year 1974 and M.A. .in the year 1976 from F.C. College, Lahore. Passed LL.B. from Punjab University in the year 1980. Joined the Bar in January, 1981. Remained Vice‑President of Balochistan Bar Association in 1988‑89. Taught as honorary teacher in University Law College, Quetta from 1989 to 1996. Remained President of Balochistan Bar Association in the year 1994‑95. Elevated as Judge of the High Court in February, 1997.