2002 PLP 2209 (YLR)

17. Through D.P. No.927, the P.A.C. directed the recovery of Rs.0.876 mullion from (Rtd.) Major Sardar Alam, son of Muhammad Ayub Khan, (Late) Directors of Works N.‑W.F.P. Agriculture University Peshawar, to be deposited within 3 months and in case of failure departmental/criminal action coupled with the recovery process be taken against him and progress be reported to P. A. C. The petitioner immediately responding to the said notice submitted a reply explaining the legal and factual position but with no success. He has filed Writ Petition No.976 of 2000, challenging the decision of the P.A.C. as well as the letter/notice of the Department asking him to make payment as being illegal and without lawful authority.

18. After considering D.P. No.927 in its meeting held on 10‑9‑1998, directed the recovery to be effected within 3 months failing which Departmental/criminal action coupled with the recovery of Rs.0,876 million be taken against him. Progress be reported to the P.A.C. Rab Nawaz, Office Assistant Service‑I has filed Writ Petition No. 1262 of 2000 challenging the decision of the P.A.C. and action of the Department asking him to make payment as being illegal and without lawful authority.

19. Since common facts and law points are involved in Writ Petitions Nos. 162 of 2000, 731 of 2001, 732 of 2001, 917 of' 2000, 797 of 2000, 363 of 1999, 890 of 1998, 1064 of 2002, 1797 of 1999, 1085 of 2002, 1128 of 2002, 1127 of 1999, 1907 of 1998, 1905 of 1999, 907 of 2000, 723 of 1998, 273 of 1999, 87 of 1999, 976 of 2000, 1262 of 2000, 549 of 2002, 550 of 2002, 551 of 2002, 552 of 2002 and 553 of 2002, therefore, these are proposed to be disposed of by this single judgment..

20. It has been vehemently contended on behalf of the petitioners with reference to rule 160(2) of the Provincial Assembly, N.‑W.F.P. Procedure Conduct of Business Rules, 1988 (hereinafter referred as the Rules of Procedure) made under clause (1) of Article 67 read with Article 127 of the Constitution that the P.A.C. (of the defunct Provincial Assembly) possessed no authority to direct initiation of action, departmental or otherwise; that the report of the P.A.C. was not adopted by the House and that the P.A.C. in flagrant disregard of principle of natural justice, took drastic action without affording any opportunity to the persons adversely affected (the petitioners). Another grievance voiced by the petitioners is that even if the resolution of the Assembly approving the report of the P.A.C. had been passed that would not be binding on the Executive, which was, and is, duty bound, to scrutinize each and every case independently in accordance with law. The action complained of was also assailed on the ground that the petitioners could have been proceeded against under the Efficiency and Disciplinary Rules, which also contained adequate provisions for recovery of money in case of loss caused by negligence, besides providing imposition of major penalties.

21. Defending the impugned action, the learned Advocate‑General submitted that the P.A.C. did possess jurisdiction to order action against the officers found responsible for the loss; the report of the Committee having been adopted by the Assembly his binding force on the Government in term of rule 135(2) of the Rules of Procedure, being collective responsibility of the Constitution. He also objected to the maintainability and jurisdiction of this Court by arguing that the proceedings of the P.A.C. could not be called in question in view of the bar contained in Article 69(1) of the Constitution. Reliance was placed on the case of Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan Lahore (PLD 1970 Supreme Court 98) and Hakim Muhammad Anwar Babri v. Federation of Pakistan (PLD 1974 Lahore 33).

22. The Parliamentary Committee in the Sub‑Continent was set up in 1921 under the Montagu‑Chelmsford Reforms of 1919, consisting of twelve Members out of which eight were elected by non‑official Members of the Central Legislative Assembly, three Membes were nominated by the 'Governor General and the Finance Minister was the Chairman of the Committee and in case of equality of votes on any issue, he had a casting vote. After the promulgation of the Indian Constitution in 1950, the strength of the Committee was raised to fifteen Members to be elected amongst the Members of Lok Sabah. The strength of the Committee was increased to twenty two Members in 1954‑55. (M. N. Kaul and S. L. Shakdher, Practice and Procedure of Parliamentary 4th Edition Page 733). The report of the Comptroller and Auditor General on being presented in the Lok Sabah is referred to the P.A.C. Similarly, in Pakistan, we have the office of Auditor General who submits report relating to the accounts of the Federation to the President and report relating to the accounts of the Province to the Governor of the concerned Province in term of Article 171 of the Constitution. Legislature, whether unicamral or bicamral, in a Parliamentary or a Presidential System, transacts a great deal of its business through Committee constituted to deal with specific items of business requiring extra or in depth consideration. The matter which‑on account of their special or technical nature are better considered by a small group of Members known as Committee, rather than by the House. The annual reports of the Auditor General relating to the accounts of the province, as required under Article 171 of the Constitution are laid before the Assembly under rule 198 of the Rules of Procedure. The. P.A.C. is creation of rule 159 of the Rule of Procedure which states that the Standing Committee on Public Accounts shall consist of the Speaker as its Chairman and nine others Members to be elected by the Assembly and the Minister for Finance shall be ex‑officio Member. Again, sub‑rule (2) of rule 159 describes the power of the Assembly as follows:‑‑‑ (2) In scrutinizing the appropriation accounts of the Government and the reports of the Auditor General of Pakistan thereon it shall be duty of the Committee to satisfy itself; (a) that the moneys shown in the accounts as having been distributed were legally available for and applicable to the service purpose to which they have been applied or charged; (b) that the expenditure conforms to the authority which govern it; and (c) that every re‑appropriation has been lade ill accordance with such rules as may have been prescribed by the Government that behalf.

23. It will, therefore, be seen that the functions of the P.A.C. are confined to the scrutiny of the audited accounts to satisfy it self, that money shown in the accounts as having been disbursed were legally available and applicable to the service purpose to which 8 applied; the expenditure conforms to the authority; and that every re‑appropriation has been made in accordance with the rule framed by the Government. Indeed, the report of the Committee, preliminary or final, is to be laid before the House, under rule 186 of the Rules of Procedure.

24. The plea of the learned Advocate General is that the report of the P.A.C. was adopted and so the Government is obliged to follow it in letter in spirit under Article 130(4) of the Constitution read with rule 135(2) of the Rules of Procedure, being the collective responsibility of the Cabinet towards the Provincial Assembly, rule 135 of the Rules of Procedure is reproduced below:‑‑ " 135(1). A copy of every resolution, which has been passed by the Assembly, shall be forwarded to the Department concerned of the Government. (2) Any such resolution shall have effect only as a recommendations to Government, except a resolution in connection with an Ordinance promulgated by the Governor under Article 128 of the Constitution, or a resolution with respect to the Speaker from office; provided that if a resolution is unanimously adopted, it shall be binding on the Provincial Cabinet to implement the same as their collective responsibility under clause (4) of Article 130 of the Constitution. "

25. The first question that falls for consideration is whether sub‑rule (2) of the above mentioned Rules is in accord with the Constitution. The following resolutions have binding force, as laid down ‑ by the Constitution:‑‑‑ (1) Resolution of removal or impeachment of the President under Article 47 passed (sic) Membership of the (Majlis‑e‑Shoora) (Parlia ment). (2) Resolution of votes of the confidence against the Speaker or Deputy Speaker, Chairman, Deputy Chairman of the Senate, Provincial Speaker or Deputy Speaker passed by majority of the total Member ship of the Assembly House (Article 53(7)(c) read with Articles 127 and 61 of the Constitution. (3) Resolution disapproving an Ordinance dealing with all any of the matter specified in clause (2) of Article 73 by the National Assembly or in respect of other Ordinance by resolution disapproving the said Ordinance by either House. (Article 89). (4) Resolution of votes of no confidence passed by a majority of total Memberships of the National Assembly against the Prime Minister (Article 95). (5) Resolution of disapproval of an Ordinance issued by the Provincial Government (Article 128). (6) Resolution of votes of no confidence passed against a Chief Minister by majority of total Membership of the Provincial Assembly (Article 136). (7) Resolution by (Majlis‑e‑Shoora (Parliament) in a joint sitting directing the council of common interest through the Federal Government. (Article 154(4) of the Constitution). (8) Resolution passed by the National Assembly extending the term of Chief Election Commissioner by a period not exceeding one year (Article 215). (9) Resolution for issuance of proclamation in cases of failure of Constitutional machinery in a Province passed at a joint sitting (Article 234).

26. The Constitution does not state that any other resolution shall be of binding nature. The provisions of sub‑rule (2) of rule 135 of the Rules of Procedure are in conflict with the Constitution. If a Provincial Legislature passes unanimous resolution regarding a matter which is out side its power or which infringes rights of other it has to be ignored. Similarly if the Provincial legislature passes unanimous resolution directing the Government to impose on a person imprisonment for life surely that is un Constitutional and illegal as well. As regards the collective responsibility as mentioned in Article 90(4) and Article 130(4), suffice to say that the term collective responsibility has been lifted from the British system and indeed it is assured by the enforcement of certain principles. Firstly, no person is nominated to the Cabinet, except on the advice of the Prime Minister. Secondly, no Minister is retained, if the Prime Minister demands his resignation. Thirdly, a Minister is free to express his dissent when a policy is at the stage of discussion, but once a decision is taken, every Minister is expected to stand by it within a outside the House and if a Minister is not prepared to defend the Cabinet decision he has to resign. Every Minister is to abide by Cabinet decision or resign, and attack on individual Minister is considered to be an attack on the entire Cabinet. A Minister ought to be chary about expressing personal views about future policy, except after the consultation and keeping in view the circumstance. Lastly and most essential is that collective responsibility means and implies so long as the Government enjoys the confidence of the majority of the House, it is to remain in power. The Government needs express Parliamentary approval for his legislative and fiscal proposals. The legislature has the mechanism to enforce its decision or resolution, other than the Constitutional resolution which on there passage become effective, by passing appropriate legislation or it can move steps to oust the Government by passing resolution of vote of no confidence. Let it be pointed that in the mother Parliament (House of Common U.K.) the P.A.' C. is one of the select Committee and it considers the report of the Comptroller and Auditor General, who under the law is empowered to examine efficiency, effectiveness and economy, popularly known as three Es while auditing the accounts, but this power has not been bestowed upon the Auditor General in Pakistan who still functions under the President Order No.21 of 1973 and the Central Legislature has failed to enact law in term of Article 169 of the Constitution. The powers of the Auditor‑General are given in para.3 of the Presidential Order. The duty/powers are enumerated in paragraph 11 of the Presidential Order which is produced below:‑‑ "

11. Audit. ‑‑‑(1) it shall be the duty of the Auditor‑General:‑‑ (i) to audit all expenditure from the revenues of the Federation and of the Provinces and to ascertain whether moneys shown in the accounts as having been disbursed were legally available for and applicable to the service or purpose to which they have been applied or charged and whether the expenditure conforms to the authority which governs it: (ii) to audit all transactions of the Federation and of the Provinces relating to debt, deposits, sinking funds, advances, suspense accounts and remittance business: (iii) to audit all trading, manufacturing and profit and loss accounts and balance‑sheets kept by order of the President or of the Governor of a Province in any department of the Federal Government or of and (iv) to audit the accounts of any authority or body established by the Federation or a Province; and in each case to report to the President or as the case may be, to the Governor on the expenditure, transactions or accounts so audited by him. (2) The Auditor‑General may, with the approval of and shall if so required by, the President or the Governor of any Province, audit and report on‑‑ (a) the receipts of any department of the Federal Government or, as the case may be, of the Province; and (b) the accounts of stores any stock kept in any office or department of the Federal Government or, as the case may be, of the Province.

27. Presently the Auditor General has limited powers and there is need to enhance his power so as to ensure proper utilization of Public Funds etc.

28. The P.A.C. could not take action against the petitioners and at the most it could recommend action to the Government and the latter could take action in accordance with law on the subject and not otherwise. What we notice is that the Provincial Government without applying its mind followed the direction of the P.A.C. by asking them to make payment otherwise to face criminal action and they would get adverse entries in f their A.C.Rs. The P.A.C. at no stage associated the the petitioners and this has been conceded by the learned Advocate General, Thus the petitioners were condemned unheard and principle of natural justice has been violated. In case of Commissioner of Income Tax, East Pakistan. v. Fazlur Rahman (PLD 1964 Supreme Court 410), the Supreme Court observed that right to be heard is not confined to only judicial proceedings but extends to all proceedings affecting person or property of party and absence of provision as to notice in statute cannot override principle of natural justice. Similarly, in case of Province of East Pakistan and another v. Nur Ahmad (PLD 1964 Supreme Court 451), the Supreme Court held that no person should be condemned un heard and this principle is presumed to be embodied in statute, unless there is provisions to the contrary.

29. It is also not clear whether the report of the P.A.C. was adopted unanimously or through the majority. In the preliminary report which the learned Advocate‑General claims to have been adopted by the House, reference to para. 7, is necessary and reproduced below:‑‑ "The Chairman once again clarified that if the recoveries were made voluntarily in time then no departmental/criminal action what soever, may be taken and no adverse entry in the A.C.Rs. be reflected. However, he emphasized on the departmental officers that if any officer involved in misdeed, hesitates to make the recovery good, then he may be proceeded under the rules without raising technical points."

30. Even after hearing the affected persons the P.A.C. could at the most recommend/suggest the action to the concerned Agency/Department of the Government. We are clear in our view that the P.A.C. could not straightaway direct action against the petitioners, for it could only recommend and the Government was to judge each and every case independently in accordance with law. It is mentioned that if the recoveries were made voluntarily in time then too Departmental/criminal action whatsoever may be taken and no adverse entries in the A.C.Rs. be reflected but an Officer involved in the misdeeds hesitates to make the loss good, he is to be proceeded under the Rules without raising technical points. We are clear in our mind that the P.A.C. could not straightaway direct action against the petitioners; it could only recommend and the Government was to judge each and every case of the petitioners independently in accordance with law.

31. Article 69 states that validity of any proceedings in Majlis‑e‑Shoora shall not be called in question on the ground of any irregularity of procedure. The Assembly is to conduct its business within the limits prescribed by the Constitution. Certain H privileges and immunities have been given to the Legislature, Members and Officers but again there are certain restrictions as well. For example, no discussion shall take place with respect to the conduct of any Judge of the Supreme Court or High Court in the discharge of his duty as laid down by Article 68 of the Constitution. Further the Provincial Assembly is to legislate with respect to the matter mentioned in the concurrent list. Again the immunities given in Article 67 is in respect of irregularity of procedure. Irregularity of procedure is a term which needs no further comments. If the validity of I any proceedings is challenged on the ground other than irregularity of proceedings, the Court does have the jurisdiction and the case of Anand Bihari Mishra v. Ram Sahay (AIR (39) 1952 Madhya Bharat 31 (Gwalior Bench) can be quoted with advantage wherein it was held as under:‑‑ "It will be observed from the wording of Article 212 that the validity of the proceedings of the Legislature can be called in question on a ground other than the ground of an irregularity of procedure. Thus, the proceedings would not be protected if they are held in defiance of the provisions of the Constitution or by exercising some powers does not possess. It is also necessary to note that under Article 194, the powers, previleges and immunities of State Legislatures and their members are not absolute. They are subject to the provisions of the Constitution and are modified by the fundamental principle that it is the Constitution which is Supreme and not the Legislature." In case of Lt. Col. Farzand Ali and others (Supra) it was held as under:‑‑‑ "While it is true that all that fairly concerns the internal proceedings of the House relating to its proper business is immune from challenge in Courts, it cannot be conceded that a question relating to the title of a person to be a Member of the House or to continue to sit therein is a question pertaining to the internal proceedings of the House. It is a question affecting the Constitution of the House and therefore, it is not a question which can possibly be barred from inquiry by the Courts under Article 111 of the Constitution. This is not a matter which pertains either to the regulation of the procedure of the House or the conduct of its business or the maintenance of order in the Assembly or affecting any of its privileges. This is not a question, therefore, which relates to the 'internal proceedings' of an Assembly. Clause (1) of Article 111 bars the Courts only from inquiring into the validity of 'proceedings in an Assembly' in the formal sense and nothing more. It is difficult to define as to what constitute 'internal proceedings' but this much is clear that they do not extend to anything and every thing done within the House. Thus as a general rule a criminal act done in the House would perhaps not be outside the course of criminal justice (vide observations of Stephen, J. in Bradlaugh v. Gossett at P.283). The test indicated by Sir Erskine May in his book on Parliamentary Practice is as to whether what is said or done "forms part of a proceedings of the house in its technical sense, i.e. the formal transaction of business with the Speaker in the chair or in a properly constituted Committee. It would be neither possible nor desir able to attempt any exhaustive classi fication of the matters that .may be comprised within the term 'internal proceedings' but it will be sufficient for my purpose to indicate that whatever is not related to any formal transaction of business' in the House cannot be said to be a part of its 'internal proceedings'."

32. However, it was held that constitutionality of the laws passed by Legislature could be inquired into by Courts. In case of Hakim Muhammad Anwar Babri (Supra), the resolution of the Assembly recommending to the Government to recognize Bangla Desh was challenged and surely the Assembly did possess jurisdiction to pass resolution on the subject, while in the instant case the report of the Committee or the resolution adopted meant action against the petitioners who were not heard and it was to within the scope of the P.A.C. to make such direction.

33. For the reasons stated above, the petitions are accepted and the directions of the P.A.C. and action taken thereon are declared to be illegal. However, it is made clear that the Provincial Government would be at liberty to examine and scrutinise each and every case and can proceed in accordance with law. Petition accepted. Q.M.H./M.A.K./568/L