1989 PLP 61 (CLC)

2. The facts giving rise to this appeal in brief are that stamps of different categories of the value of Rs.1,49,647 were embezzled from Sub‑treasury, Chiniot, on 29‑5‑1971. Deputy Commissioner, Jhang issued an order to the Treasury Officer. Jhang to probe into the matter, who made a report on 1‑6‑1971 in which he confirmed the factum of the embezzlement. The Additional Deputy Commissioner Jhang, was appointed as an inquiry officer who after holding inquiry made a report and held that the officials working in the Sub‑treasury Chiniot were responsible for this embezzlement. One of these officials was Hafiz Muhammad Ali, a Sub‑treasury Officer who is alleged to be the agent of the appellant. The appellant was a contracting Treasurer therefore he was issued two notices dated 25‑6‑1971 and 11‑8‑1972 to make the payment of the said amount alleging that he was responsible for the act of Hafiz Muhammad Ali his agent as under the contract he was bound to indemnify the Government for such a loss. The appellant filed a suit for declaration challenging the legality of these notices and the demand of the disputed amount from him. The suit was contested and on the pleadings of the parties the following issues were framed: ‑ (1) Whether the order of the Collector whereby the plaintiff has been asked to pay Rs.1,49,647 is illegal, void and ineffective for the reasons mentioned in Para‑II of the plaint? OPP. (2) Whether the amount in question is recoverable as an arrear of land revenue, if so, with what effect? OPD. (3) Whether this Court has got no jurisdiction to try the present sit? OPD. (4) Whether the suit is correctly valued for the purposes of court‑fee and jurisdiction? OPP. (5) Relief.

3. During the pendency of the suit, the impugned notices were withdrawn by Deputy Commissioner Jhang on 6‑12‑1984 as is evident from an application made on behalf of the Government that the suit had become infructuous, the impugned notices having been withdrawn and there existed no cause of action. On this application, the learned trial Court dismissed the suit having become infructuous by judgment dated 21‑1‑1985. The appellant filed an appeal complaining that instead of dismissing the suit the same should have been decreed. During the pendency of the said appeal another notice was issued by Commissioner on 12‑5‑1976 to the appellant calling upon him to show cause as to why he should not be held responsible for the payment of the said amount having been embezzled by his agent Hafiz Muhammad Ali. The learned Additional District Judge who was seized of the appeal by judgment dated 12‑7‑1976 accepted the appeal and remanded the case to the trial Court for decision on merits. It is not denied that the order of Deputy Commissioner dated 6‑12‑1974 with drawing the impugned notices dated 25‑6‑1971 and 11‑8‑1971 is still holding the field as it was‑ not cancelled or withdrawn and the notice dated 12‑5‑1976 issued by the Commissioner has also not been cancelled or withdrawn.

4. After recording evidence of both the parties, the learned trial Court decided issue No.l against the appellant. It was held that the appellant according to his agreement was liable to indemnify the Government for act of embezzlement committed by Hafiz Muhammad Ali who was his agent. The remaining issues were decided in favour of the appellant. The appellant filed appeal against this judgment and decree before the learned lower appellate Court which has also been dismissed by judgment and decree dated 20‑1‑1986.

5. Learned counsel for the appellant stressed that in all the proceedings and the inquiries held by Additional Deputy Commissioner, Jhang the appellant was not joined and he was not given opportunity to show that Hafiz Muhammad Ali was not involved in the embezzlement and that he was not liable to pay the said amount. He maintained on the strength of judgments reported as Abdul Latif v. The Government of West Pakistan and others (P L D 1962 SC 384), Abdul Hamid Khan v. Government of West Pakistan and others P L D Peshawar 324) and Muhammad Akbar Cheema v. The Province of West Pakistan and another (1984 S C M R 1047) that before a machinery for recovery of such an amount is put to motion it was necessary to determine the liablity of person from whom the recovery is to be made and exact amount to be recovered is also to be determined after associating him in the process, therefore, the impugned recovery could not have been made from the appellant. On the other hand, learned counsel for the respondents argued that since the appellant was being made liable to pay the amount as principal of Hafiz Muhammad Ali against whom the embezzlement case was proved in departmental inquiry, therefore it was not necessary to join the appellants in the process of fixing iablity and issue him any show‑cause notice before actual recovery was made.

6. I have considered the arguments. The arguments advanced by learned counsel for the appellant have considerable force. It is an admitted fact that neither appellant was given any show‑cause notice nor he was joined in the proceedings and the inquiries in which question as to whether Hafiz Muhammad Ali was involved in the embezzlement of the stamps was decided. The appellant was not being proceeded against and made liable to pay the amount merely because his alleged agent had committed embezzlement and if the recovery was to be made from appellant, it was the least requirement of principle of natural justice, fair play that he was afforded an opportunity and joined in the investigation before any determination was made as to whether Hafiz Muhammad Ali was responsible for the embezzlement, if so as to what extent he was liable and as to what amount was recoverable from the appellant on that account. Admittedly, the appellant was not joined in all these proceedings. On this short A ground the notices dated 25‑6‑1971 and 11‑8‑1971 were not sustainable under the law and as such it could not be held that the recoveries being made from the appellant were legally justifiable. The impugned orders of Collector asking the appellant to pay the amount in question were illegal void and ineffective for the foregoing reasons. In view of my this finding, the finding of the Court below on issue No.l is therefore not sustainable and is hereby set aside and reversed. In the result this revision petition succeeds which is hereby accepted. The judgments and decrees of both the Courts below are set aside and suit of the appellant stands decreed without any order as to costs.

7. Before parting with this judgment it may be made clear that it shall be open to the authorities to proceed with the matter afresh after issuing notice to the appellant and joining him in the process of determination of the question of embezzlement by Hafiz Muhammad Ali and thereafter fixing his liability if any to proceed against the appellant in accordance with law. M.Y.H./A‑388/L. Order according.