P L D 1960 Supreme Court (Pak (PLP)

AMIRUDDIN AHMAD, J.-This is an appeal by special leave of this Court from a judgment and order made in a proceeding initiated and treated by the High Court of West Pakistan at Lahore as a writ petition. The facts culminating in the proceeding are as follows :- On the 22nd of November, 1958, the Laws (Continuance in Force) Order, 1958, Article 6, which continued the services of certain officers including Judges of the High Court on the same terns and conditions and enjoyment of the same privileges as they did immediately before the Proclamation, was amended by the President's Order No. 4 of 1958 by addition of clause (2) to the said Article, which was as follows :- "The President, in consultation with the Chief Justice of Pakistan, may suspend a Judge whose conduct he has referred to the Supreme Court for report, and any Judge so suspended shall be entitled during suspension to half pay, and if reported not to have been guilty of misbehaviour, to treat the whole period of his suspension as actual service as a Judge and to receive the balance of his full pay for that period." Acting under this amended Article the President suspended Mr. Justice Akhlaque Husain, a Judge of the High Court of West Pakistan, with effect from the 24th November, 1958. His pay bill sent by the High Court for the period from 1st November 1958 to 23rd November 1958, was received in the office of the Accountant-General, West Pakistan, Lahore, on 3rd December 1958 and was returned on the same .date with a note under the signature of an Assistant Accounts Officer as follows :- "Reasons for submitting the bill of broken period may please be intimated. In case his Lordship made over charge as a Judge, necessary charge report may please be furnished." The bill was re-submitted by the High Court on 19th December 1958 to the Accountant. General's office with the following endorse ment :-:- "Returned. The pay of Mr. Justice Akhlaque Husain has been claimed for the period his Lordship remained on duty. i.e. 1-11-58 to 23-11-58. His Lordship did not relinquish charge of his office and no such report is necessary in a case of suspension." The Accountant-General's office again returned the bill on the 31st December 1958 with the following note :- "Returned unpassed with the remarks that orders or Notifica tion showing the date from which his Lordship has been placed under suspension may please be furnished along with the bill. The charge report of relinquishing the charge is also necessary under rule 6.2 of the Punjab Financial Rules, Vol. I, in order to complete the record of this office and to know that his Lordship worked up to such date." The High Court submitted the bill for the third time to the Accountant-General on 10th January 1959, with the following endorsement :- "A copy of letter No. 388/Secy-5zi, dated the 24th November, 1958, from the Secretary to the Government of Pakistan, Ministry of Law, Karachi, to the Registrar, Supreme Court of Pakistan, Lahore, conveying orders of the President suspending Mr. Justice Akhlaque Husain is enclosed. The Chief Justice and Judges consider that no relinquishing charge report is required under rule 6.2 of the Punjab Financial Rules, Vol. I, in the present case." Upon this the bill was provisionally passed by the Accountant General's office and the High Court was informed on 31st January, 1959, to the following effect :- "Please refer to the High Court of West Pakistan endorse ment dated :0-1-59 on the bill from 1-23-11-58 of Mr. Justice Akhlaque Husain. Mr. Justice Akhlaque Husain, Judge, High Court of West Pakistan, has been suspended from 24-11-58. As suspended officer does not remain in charge of his post or office and consequently report of relinquishing charge is necessary under rule 6.2 of the Punjab Financial Rules, Vol. 1, it is, therefore, requested that the same may please be sent to this office at an early date to complete the record of this office. The bill from 1-11-58 to 23-11-58 has been passed provisionally." In the meantime another pay bill of Mr. Justice Akhlaque Hussain for the period from 24th November 1958 to the 31st December, 1958 at the rate of Rs. 2,000 per mensem (on account of suspension allowance) was received in the office of the Accountant General and returned unpassed on 27th January 1959,with the remarks that a report of relinquishing charge was necessary under r: 6.2 of the Punjab Financial Rules, Vol, I. On this office of the High Court put up a note to the following effect :- "The Accountant-General raised the same objection of producing the copy of the charge report on analogy of rule 6.2 of the Punjab Financial Rules, Vol. I. The office took the view that no charge report under the above referred rule is necessary when a Judge is suspended. The case was submitted to the Senior Puisne Judge who had agreed with the office on the point. The bill was accordingly returned to the Account ant-General and is still pending in his office. It is, therefore, submitted for orders whether a charge report be obtained from Mr. Justice Akhlaque Husain or we may again take the stand that the report is not necessary." This note is dated 29/30-1-59, below which there is another note dated 30-1-59 which is as follows :- "The stand taken by the A. G. is that since a suspended officer does not remain in charge of his post or office the. report relating to relinquishment of charge is necessary. It has been twice held by the Senior Puisne Judge that no report is necessary in a case of suspension of his Lordship. The A. G., would have passed the bill leaving the question of charge report to be settled in due course. As he is adamant and the delay is causing inconvenience to his Lordship, either we might get the charge report completed or ask the A. G. to pass the bill and refer the matter to Government. There might be several cases in the Secretariat and action may follow the position prevailing there." The note was countersigned by the Deputy Registrar, who submitted it for orders to the Registrar, who placed it before Abdul Aziz Khan, J. in the absence of Senior Puisne Judge, who ordered as follows :- "Put it up before the Chief Justice. I understand he is holding Court in Lahore on 2nd February, 1959." On perusal of this note the Chief Justice on the 2nd February 1959 passed the following order :- "Registrar should issue notice to the Accountant-General to appear personally before the 1st Bench on Friday and show cause why a writ of mandamus should not be issued against him, directing him to pass the bill etc." Upon this the case was numbered as Writ Petition No. 129 of 1959 and in the cause title it was named `In the matter of show-cause notice to the Accountant-General re : pay bill of Mr. Justice Akhlaque Husain,' and a notice was issued on the Accountant General on the 3rd February 1959 requiring him to appear personally before the 1st Bench of the High Court on the 6th February 1959 and show cause why a writ of mandamus should not be issued against him directing him to pass the bill. On the 6th February 1959 the Deputy Accountant-General appeared in response to the notice and stated that the Accountant-General after receipt of the notice had gone out on tour. The High Court in the circumstances considered the non-appearance of the Accountant-General himself to constitute a contempt of Court and started a criminal case being Criminal Original Case No. 9 of 1959 against Mr. Fazle-Haq, the Accountant-General, and notice was issued against him to show cause on the 13th February 1959 why he should not be committed for contempt. Ch. Fazle Haq, the Accountant-General, personally appeared in Court on the 13th February, 1959, in compliance with the notice. In a written explanation the Accountant-General gave the reasons why the bills were not passed. He maintained that as a Govern ment servant proceeding on regular leave has to report the relinquishment of his charge, a suspended officer also similarly ceases to perform his duties and should relinquish charge formally. He also stated that the term `duty' does not include suspension relying on rule 9 (6) of the Fundamental Rules read with rule 26 of the High Court Judges. Order, 1937. He further stated that the suspension of Mr. Justice Akhiaque Husain had not been notified in the Gazette of Pakistan till then nor were orders of suspension communicated to the Accountant-General by the Ministry of Law, as required by rule 51 of the General Financial Rules, Vol. 1, and thus unless the exact date and time of the relinquishment of charge by Mr. Justice Akhlaque Husain were reported to the Accountant-General formally it would not be possible for him to admit the claim for the salary of the suspended period. Upon this an order signed by the Chief Justice was passed as follows :- "Ch. Fazle Haq, Accountant-General with Ch. Nazir Ahmad Khan, Advocate. He has put in, and tendered verbally, an unqualified appology, which is accepted. As regards the merits of the case he has put in a reply and prays that since the matter is important, notice may be given to the Advocate-General. This should be done. Ch. Fazela Haq, need not appear again. He undertakes meanwhile to pay the suspension allowance as soon as the High Court sends the date of suspension." It appears that after this the second bill was also provisionally passed. The Writ Petition No. 129 of 1959 was heard and finally disposed of on the 10th March 1959 by the Chief Justice and Khamisani, J. holding that neither rule 6.2 of the Punjab Financial Rules, Volume I, nor paragraph 67 of the Audit Manual made it necessary for a charge report to be "signed". After making the following observations in the concluding portion of the judgment they disposed of the matter :- It is represented, however, that the Registrar has not sent any sort of intimation to tile Accountant-General's office. If this is correct, then a formal letter should be issued intimating the `transfer of charge' by Mi, Justice Akhlaque Husain. Since pavement has already been made, it is unnecessary to take any further step. There will be no order as to costs." On behalf of the appellant it has been urged before us that though the matter has thus concluded, there had not been a finality yet, because the bills were only provisionally passed, and there may be audit objections, and that the proceedings are void, as no petition of writ was made by any aggrieved party, who alone had a locus stands to invoke the extraordinary jurisdiction of the High Court to give him relief, but in this case the rule for a writ was issued sub motu when the matter was before the Chief Justice in his administrative capacity and is, therefore without jurisdiction. As there was no provision for the suspension of a Judge of the High Court before 22nd November 1958, and this being the first case of its kind there was naturally some confusion with regard to the applicability of a particular rule to this case and the High Court should not have treated it so lightly. The position taken up by the High Court in its endorsement dated the 19th December 1958 was "his Lordship did not relinquish charge of his office and no such report is necessary in a case of suspen sion." But this stand was considerably modified in its judgment dated the 10th March 1959 by the High Court when it held that neither rule 6.2, nor paragraph 67, referred to above, made it necessary for a charge report to be `signed'. It was not held that no charge report at all need be sent. It is evident that there are no rules specifically applying to a High Court Judge, but paragraph 26 of the High Court Judges Order, 1937, provides that in matters where this order itself is silent the conditions of service of a Judge shall be determined by the rules for the, time being applicable to a civil servant of the State holding the rank of Secretary to the Government of a Province. So with regard to this matter the rules applicable to a Secretary will have to be applied. We do not consider it necessary to determine which rule should apply to this case, as we hold that the entire proceeding in this case is misconceived and void and there has been violation of two important juridical principles, (1) that the extraordinary jurisdiction relating to a writ can only be exercised by the High Court when moved by a party whose legal rights have been denied ; and if in this case the High Court as a whole considered itself aggrieved by the objection of the Accountant General in taking the action, it has violated (2) the principle that nobody should sit as a Judge of his own cause. The recital of the facts of the case in the earlier part of this judgment will show that the case for initiation of a writ was started sub motu without any petition made before it. In the opening paragraph of the` judgment, which is as follows, it was not even stated that the Court had issued the notice :- "In this case the Registrar of this Court issued a notice to the Accountant-General to show cause why a writ of mandamus should not be issued to him directing him to pass Mr. Justice Akhlaque Husain's salary bill," In the case of Tariq Transport Company Lahore v. Sargodha Bhera Bus Service and others (P L D 1958 S C (Pak.) 437), it was held that a High Court was not competent merely on information or of its own knowledge to commence certiorari proceedings or other proceedings of a similar nature under Article 170 of the Constitution of Pakistan and in the case of The State of Pakistan and another v. Mehrajuddin (P L D 1959 S C (Pak.) 147) it was held that the duty of paying salary to a public servant could not be regarded as falling within the expression "public duty" and mandamus cannot be issued where no statutory or public duty is involved or legal right claimed. In the present case there has been an entirely improper exercise of judicial power. We, D therefore, allow the appeal and quash the proceedings in Writ Petition No. 129 of 1959 as being void and without jurisdiction. In the circumstances of the case we make no order as to costs. A. H. Appeal allowed.