2006 PLP 656 (YLR)

ALI NAWAZ CHOWHAN, J.

This writ petition impugns an order dated the 8th of April, 2003, passed by the learned Secretary Food, Government of the Punjab while sitting in review. The order reads as follows:-- "Brief facts of the case are that Inayat Ullah & Co. Government Contractor was imposed a penalty of 8% of the security deposit by my learned predecessor for not complying with the contractual obligations, whereas the fact is that according to the Transport Policy, the non-performance of contractual obligations attracts a penalty of 8% of the transportation charges. (2) With a view to rectify this mistake, Inayat Ullah & Co. were issued 16 notices to appear before the Secretary Food but they did not comply with these orders; hence ex parte decision. (3) Through this order, I rectify the order of my learned predecessor and do hereby impose a penalty of 8% of the transportation charges which comes to Rs.15,33,

360. Since the party has already paid an amount of Rs.1,53,336 they are now liable to pay Rs.13,80,

024. Director Food, is therefore, directed to recover this amount from the party."

2. Precisely, the facts of the case are that the petitioner being a Contractor for transportation of wheat was awarded several contracts for this purpose on the basis of the Agreements which are dated 25-5-1994 and 31-5-1994. He started work on the four of the contracts but failed to do work in respect of the remaining five. He was issued a show-cause notice and later, the Director Food on 26-6-1994 was ordered to complete the transportation work at the risk and cost of the defaulted firm and it was also ordered separately that his earnest money and security etc. be forfeited.

3. The petitioner felt aggrieved and lodged an appeal with the Secretary Food, who heard the appeal on 19-8-1994 and passed an order, the operative part of which reads as follows: "Keeping in view all the facts of the case I am of the view that the impugned order is not sustainable and is harsh. Since the contractor was also slack he is to be penalized. As per the terms of the agreement punishable penalty of 8% of the transportation charges of less transported wheat stocks. 1, therefore, order the forfeiture of 8% of the security deposited in respect of each contract. The impugned order is modified accordingly and appeal is partially accepted."

4. Subsequently, the Directorate of Food, Punjab on the 18th of September, 1994 vide his letter of even date and in compliance of the order of the Secretary inter alia ordered: "You are directed to release the security of M/s Haji Inayat Ullah and Co. for the contracts from Khanewal to Jhelum, Vehari to Rawalpindi, Arifwala to Gujjar Khan, Arifwala to Sihala and Hasilpur to Lahore-I under intimation Directorate."

5. Later on, after several years upon an audit objection the next incumbent Secretary Food passed the impugned order ibid.

6. Initially, this case was referred back to the Food Secretary for hearing the petitioner, who had been proceeded against ex parte earlier. The Secretary Food gave him a hearing and has sent his report on whereafter the matter also further on different other

7. Vide his said order, the learned Food Secretary declined to interfere with the decision which was given by his predecessor reviewing/rectifying the order of the former Food Secretary passed in 1994. The operative portion of the order is as follows:-- "Imposing 8% penalty on wheat less transported as provided under the Transportation Policy which he himself admitted would have been a lenient punishment because in case of harsh punishment, the petitioner would have to pay the differential of amount between the rates quoted by him and those finally paid by the Department. However, the Secretary Food erroneously levied a penalty of 8% on the security which is in contravention with the transportation policy; hence the order was flawed ab initio and needs to be rectified. Coming to the issue, whether the decision of' Mr. Sibghat Mansoor, Former Secretary Food dated 8-4-2003 was in accordance with the law, I am of the view that in normal course of things the Authority should not interfere with the decisions passed nearly a decade ago particularly when those decisions" have taken finality. However, I have noted that this decision of Raja Muhammad Aslam has not taken finality in the sense that decision was flawed ab initio because he did not impose a penalty prescribed in the transportation policy. In that sense the decision is still unimplemented and Mr. Sibghat Mansoor was right in rectifying this mistake. I would like to rely on the following in support of my contention: "The principle of law was recognized that if on the basis of void order subsequent orders have been passed either by the same authority or by other authorities the whole series of such orders together with the superstructure of rights and obligations built upon them must, unless some statutes or principle of law recognizing as legal the changed position of the parties is in operation fall to the ground because such orders have as little legal foundation as the void order on which they are founded. 1991 SCMR 590.

8. The learned Secretary Food relied on a decision of the Honorable apex Court which was not attracted under the circumstances of the case because firstly, it was not a void order and secondly it was the only order on which an adjudication had taken place and not that this order was made a basis for different orders as a superstructure.

9. There is a distinction between void and voidable order. A void order is defined by Black's Law Dictionary as: Null; ineffectual; nugatory; having no legal force or binding effect. Which, of course, also meant that whatever was achieved under this void order was also illegal. It may also be pointed out as held in the case of Hardison v. Gledhil, (72 Ga.App.432, 33, S.E.3d 921, 924) that where a transaction is void, it is incapable of rectification and, therefore, how could a void order be rectified as by the next incumbent of the order under reference.

10. Anyway, the question would be whether an order passed in 1994 in an adjudicatory manner could be rectified through exercise of suo motu jurisdiction on the basis of an audit objection by the Food Secretary? It has been argued that such a rectification was in the nature of a review. But review is a substantive right and cannot be exercised without there being a statutory right. Because obviously, the decision of Secretary Food came about in 1994 on the basis of an appeal which is also a substantive right. In this connection, a reference has been made to the case of Muzaffar Ali v. Muhammad Shafi (PLD 1981 Supreme Court 94).

11. This, of course, was not a rectification of the type envisaged by section 152 of C.P.C. The proposition which cropped up after the audit objection was to the effect whether the order under reference passed by the Secretary to the Government did infringe the Government policy and if it did how could this be rectified? The Food Secretary who had passed the original order under reference mentioned about the need for taking a lenient view of the matter. It is expected that in the year 1994 he was certainly in the best position to appreciate the appellant's case before him and the difficulties and propriety involved more than what could his incumbent in office do in the year 2003. Needless to mention that the Food Department was itself a party in the departmental litigation when the appeal was decided by his Secretary.

12. The order in appeal was in the nature of quasi-judicial order. The matter was not re-opened on allegation of fraud by any one at the relevant time and the adjudicatory process involved on the one side the Department and the other side the appellant. After the order was passed by the Food Secretary at the relevant time, it has been given effect and the Director Food upon issuance of his letter evidenced that it was acted upon. Whether this matter under such a condition could be reopened?

13. There is a principle of law which creates an impediment in the way of the Secretary Food reviewing such an order or reopening it. Section 21, of the General Clauses Act empowers an authority passing an order to amend or vary or rescind the same while it is still an incomplete transaction. The principles of section 21 apply not only to Acts of the legislatures but also to statutory orders passed in exercise of powers conferred by subordinate legislation. The power to make, no doubt, includes the power to amend, but the section says that the power to amend must be exercised in the same manner and subject to the same conditions as would apply to the power to make. In this behalf reliance is made on the following case ?laws:- Bapurao Dhondiba Jagtap v. State (AIR 1956 Born. 300, 304). 1956 Cr.L.J. 598, 58 Bom. LR 418 (DB). But this is not an absolute power and is limited by the principle of locus poenitentiae.

14. The most important limitation is that when an order sought to be varied, rescinded or cancelled is already communicated to the other party and that party acts upon it, a valuable right accrues to that party rendering the author of the order incompetent to vary, rescind or cancel his previous order. Because, as it is said, the law does not allow volte face to the authority as held in the following case?laws:- Syed Muneeb Nazir Shah v. Azad Kashmir Government through its Chief Secretary and another (PLD 1985 Azad Jammu and Kashmir 12). Shameer v. Board of Revenue and others (1981 SCMR 604). Abdul Rauf and others v. Capital Development Authority, Islamabad (1988 MLD 1523). Pakistan through the Secretary, Ministry of Finance v. M.H. Farukhi (1969 SCMR (D)

76. Muhammad Bilal v. Principal National College of Textile Engineering, Faisalabad (1991 MLD 1605). Sardar Hidayatullah Khan Mokal v. Government of Punjab, through Secretary, Labour Department (1991 PLC (C.S.) 532) 14-A. The ground taken by the Food Secretary justifying the order is that the earlier order of his predecessor needed rectification because it was not passed in accordance with the policy of the Government. The question is, who is the Government? "a Secretary to the Government is the Government" and a policy is given by him and in case, he does not follow it, it means that the Government is not following. Who then is to suffer'? Obviously the Government.

15. After hearing both sides, this Court is of the view that the impugned orders dated 8-4-2003 and 12-4-2005, passed by the Secretary Food are of no legal effect under the circumstances, therefore, the same are set aside. S.A.K./I-122/L??????????????????????????????????????????????????????????????????????????????????? Petition accepted.