1989 PLP 1247 (CLC)

Thereafter his statement was recorded in detail on 3‑7‑1982 and 4‑7‑1982. After recording the statement of the petitioner in fairly good details confronting him with all the allegations contained in the complaints against him, the respondent No.2 concluded that the petitioner was found guilty of all the charges as he failed to produce any proof of his innocence. It was then intimated to this Court that the Director‑General Emigration, the respondent No.2, on the basis of inquiry conducted by him after the order dated 10‑3‑1982 passed by this Court had maintained that he was guilty of the allegations levelled against him for violation of Emigration Ordinance, 1979 and the rules. This reference did not require any orders as that petition was finally disposed of by the order dated 10‑3-1982.

5. The petitioners feeling aggrieved by the finding of respondent No. 2 as stated hereinabove have filed the present petition questioning the same.

6. Mr. Usman Ghani Rashid, learned counsel appearing for the petitioner has mainly contended that the respondent No.2 had in fact failed to comply with the order dated 10‑3‑1982 passed by consent in Constitutional Petition No.D‑352 of 1981 whereby he was directed to hold fresh inquiry and after examining the evidence in presence of the petitioner and allowing him to lead evidence in defence passed an appropriate order giving reasons, therefore. Instead the respondent No.2 had preferred not to examine any evidence which could, possibly substantiate any of the charges against him and, therefore, the respondent No.2 had failed to exercise his jurisdiction.

7. It is evident from the extract of the case diary maintained by the respondent No. 2 and containing' the impugned order that after reading over three charges to the petitioner he proceeded to examine him in relation thereto by putting him a number of questions confronting him with the allegations levelled against him in the complaints. This statement has also been filed alongwith the memo of petition. The case diary clearly establishes that in fact none of the complainants or any other authority was examined by respondent No.2 in support of the complaints that he was enquiring into. It has been the case of the petitioners throughout that complaints were made from Dubai all maneuvered by the Officers of the Consulate General of Pakistan at Dubai and Abu Dhabi due to mala fide reasons. According to him it was the Community Welfare Attaches who for personal mala fide reasons were instrumental in procuring such complaints. Under these circumstances it was all the more necessary for respondent No.2 to have recorded evidence of the complainants and other concerned Officers of the Consulate General of Pakistan at Dubai and Abu Dhabi in presence of the petitioner to enable him to cross‑examine them and thereafter afforded opportunity to him to examine any evidence in his defence. In fact the order passed by the Division Bench of this Court in the previous petition clearly directed to follow such procedure. On this point learned counsel has relied upon the case of Mayfair Consumers Services Overseas Employment Promoters v . Pakistan and others PLD 1985 Kar. 145.

7. It has also been contended by Mr. Usman Ghani Rashid that in fact throughout the proceedings refusing to renew his licence the petitioner was not given sufficient opportunity of being heard and both the orders do not give any reasons or indicate any material whereupon refusal to renew the licence was so based. On 'this proposition he has relied upon the case of Muhammad Hanif v . Pakistan and others 1982 CLC 1396.

8. None had appeared in this case on behalf of the respondents nor any counter‑affidavit was filed by anyone of the respondents though the petition was filed in the year 1983.

9. According to the order on 10‑3‑1982 in Constitutional Petition No. D‑253 of 1981 the impugned order whereby the licence granted to the petitioner was not renewed for the year 1981 was set aside and respondent No.2 was directed to conduct fresh enquiry by resorting to recording of evidence and decide the issue afresh. The provision for renewal of licence is made in rule 9 of the Emigration Rules, 1979 which is re produced ask under:‑

9. Renewal of licence‑(1) A licence granted under rule 8 shall be valid for a calendar year or part thereof and may be renewed by the Federal Government for another calendar year on an application made in that behalf to the Director‑General in Form 3 through the Protector of Emigrants at least one month before its expiry and on payment of renewal fee of five thousand rupees, after a demand notice has been issued by the Director‑General:‑ Provided further that if the application for renewal is made after the expiry of the licence and the applicant fails to show sufficient cause for delay in submitting the application, the licence shall not be renewed. (2) If at the time of renewal of licence the Federal Government is satisfied that the Overseas Employment Promoter has been guilty of misconduct or his performance has been unsatisfactory or he has committed breach of the provisions of the Ordinance or these rules, it may, be written order, refuse to renew the licence: ‑ Provided that before making an order for refusal to renew to the licence Overseas Employment Promoter shall be given an opportunity of being heard."

10. It will thus be seen that the Federal Government and not the Director‑General of Bureau of Emigration is alone competent to refuse to renew the licence on the grounds mentioned in sub‑rule (2) of rule 9 of the Emigration Rules, 1979. In this case though by order of this Court passed in earlier petition the respondent No.2 was directed to conduct the enquiry it was his duty to have passed an order on the basis of evidence for the purpose of either recommending renewal of the licence or refusal thereof to the Federal Government. Instead of sending his report to the Federal Government (respondent No.l) he seems to have forwarded it to this Court under the title of previous petition as is stated above. It is further evident that the respondent No.2 in fact did not comply with order passed in the previous petition as he failed to record evidence of complainant or the authority. He simply examined the petitioner without any proof to establish misconduct on his part. The conclusions arrived at by the respondent No.2 are patently based on no evidence on the basis of which the action impugned could have possibly be taken.

11. In view of the above we feel that the present petition must succeed due to following reasons:‑ (i) That there was no material available on the record of the Director‑General Bureau of Emigration which could possibly enable him to come to the conclusion that the petitioners were either guilty of misconduct or their performance had been A unsatisfactory or they had committed breach of provisions of the Ordinance or the rules whereby the authorities could be able to refuse the renewal of the licence in question. (ii) The Director‑General Bureau of Emigration by himself was not competent to finally pass the orders refusing to renew the licence under rule 9 of the Emigration Rules, 1979. . (iii) Even otherwise the impugned order neither contains any reasons nor is a speaking order.

12. We, therefore, allow the petition and declare that the impugned order has been passed without lawful authority and is without any legal effect and direct that application for renewal of the licence filed by the petitioners will be considered to be pending before the respondent No.2 to be decided in accordance with law and without taking into consideration the charges which were levelled against the petitioners. These are the reasons for the short order passed on 13‑10‑1988. M . Y . H . /P‑83/ K Petition allowed.