2000 PLP (C (PLC(CS))

The impugned order is Annexure 'D' which reads as follows:‑‑ "In exercise of powers conferred by subsection (2) of section 4 of the Income Tax Ordinance, 1979 (XXXI of 1979), read with Central Board of Revenue Islamabad's Order No.2(5)/90‑AIT/1, dated 31‑R‑1994 and on recommendations of the concerned Inspecting Additional Commissioner as well as Commissioner of Income Tax/Wealth Tax, Multan Zone, Multan, the Regional Commissioner of Income Tax/Wealth Tax, Central Region, Multan is pleased to withdraw the appointment of Mr. Muhammad Saleem as Special Officer, Circle 30 Layyah, with immediate effect and until further orders. The official will continue to draw his salary from the place where he is drawing salary at present and will report for further posting as Inspector of Income‑Tax/Wealth Tax to the Commissioner of Income Tax/Wealth Tax, Multan Zone, Multan." The said letter has been signed by the Additional Commissioner Headquarters.

4. Although no reasons have been given for this retraction in the order itself but one does find a mention of certain grounds in paragraph 3 of the reply submitted by the Regional Commissioner of Income Tax/Wealth Tax, Central Region Multan, and it reads as follows:‑‑ "Denied.‑‑The petitioner has distorted the facts. It is true that he was appointed as Special Officer by the Regional Commissioner of Income Tax/Wealth Tax, Central Region, Lahore, on 4‑9‑1994, however, due to his inefficiency/unsatisfactory performance, he was reposted in the same Zone as an Inspector by' the Regional Commissioner of Income Tax/Wealth Tax, Central Region, Multan vide his order, dated 2‑7‑1996 (copy is enclosed as Annexure 'A'). By saying that his eligibility as well as entitlement to be promoted as Income Tax Officer was never questioned or objected to, the petitioner has issued a false statement. The reference to the order of the Hon'ble Court, dated 13‑10‑1999 passed by his lordship Mr. Justice Ali Nawaz Chowhan, allowing Writ Petition No.352 of 1996 which has further been reported to be followed by the learned Division Bench of Sindh High Court, Karachi, while decided C.P. No.B‑1622 of 1999, is irrelevant in the subject case. The eligibility of the official for promotion as Income Tax Officer vide the subject order is based an seniority alone. The appointment as ‑a. Special Officer, on the other hand, is purely on the basis of his professional competence and performance. "

5. This means that the total performance of the petitioner was not found melting the criteria requirements set by the letter, of 31st of August, of 1994 (Annexure 'A'). 1t would have been alright if an appointment to the post of the Special Officer had not been made in the first instance and record had been consulted before making of the order. But having made the order and having appointed the petitioner as a Special Officer, he deserved an opportunity of being heard before the passing of the recall orders by the Appointing Authority so that if anything was found adverse to the petitioner including any misstatement that he may have made, he should have had a fair opportunity of explaining his conduct and his position and in rebutting what may not have been correct.

6. It is being vehemently argued by the learned Standing Counsel for the Federation that the advancement to the post of the Special Officer did not mean any promotion and that the reca!.1 order shall never be read adverse to the interest of the petitioner when his time come for purposes of promotion as an Income Tax Officer. The learned Standing Counsel has further stated that there was a system of hearing the grievance of the employees by the Regional Income Tax Commissioner.

7. Even if the post of Special Officer did not carry any higher grade but the post has created some prestige about it. Therefore, a criteria had been fixed where selected persons were to be posted against this position. So, it will be taken as advancement in some sense of the term. The petitioner having been granted this advancement could only have been removed after being heard. In the present case, the admitted position is that he has been condemned unheard.

8. Way back in 1608 in the famous Calvins case, it was said the lexaeterna" was the law written with the finger of God in the heart of man and by this law were the people of God a long time governed, before the law was written by Moses, who was the first reporter or writer of law in the world. We here are both Courts of law and equity. Natural justice and equity means the same thing i.e. the natural law. In the case Forbes v. Cochrane (1824) 2‑B and C448, 471 Best, J. observed‑‑ "The proceedings in our Courts are founded upon the law of England and that law is again founded upon the law of the nature and the revealed law of God. If the right sought to be enforced is inconsistent with either of these the English Municipal Court cannot recognise it."

9. Our present system of administration of justice is based on plural) legal philosophy. On the English common law the Anglo Saxon Corpus Juris and the Islamic Jurisprudence. Both going side by side. In fact Pakistan has become a laboratory where the principles of both these legal philosophies are being tested. So far we have achieved harmony. Both the philosophies teach us to obey the laws of God.

10. Two important principles seem to have been ignored in this case. The first is a principle we hold so dear in our question for justice under rule of law and this is embodied in the maxim "audi alteram partem". No one should be condemned unheard. The second is of fairness. In the famous case of Dr. Bentley Fortescue, J, in R v. Chancellor University of Cambridge 1 St. 537 had observed. Besides, the objection for what of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam (says God) where are thou? Hast thou not eaten of the tree whereof I commanded thee, that thou should not eat: And the same question was put to Eva also."

11. Prophet of Islam (p.b.u.h.) wanted to appoint Hazrat Ali as the Qazi of Yaman. Hazrat Ali, the learned and the brave reluctantly accepted the command. When he was about to leave, he was called back and told that before giving any opinion on a matter, he should ensured that he hears the other side.

12. Since rules of natural justice has been violated in this case, this Court is of the view that the recall order, dated 1‑2‑2000 is not sustainable and that the petitioner ought to be heard immediately by the Regional Commissioner Income and Wealth Tax. Who may then pass a fresh order based on his conscience and while keeping in view the facts apparent on record.

13. The learned counsel for the petitioner prayers that the petitioner be allowed to work at a seat until the Regional Commissioner Income Tax passed the fresh order after hearing the petitioner. Instead I think that it will be proper to ask the Regional Commissioner Income Tax to hear the petitioner immediately and pass fresh order within 10 days from the receipt of this order and after making a fresh decision, proceed in accordance with law. The writ petition, is, therefore, accepted in these terms. H.B.T./M‑178/L Petition accepted.