h1

P L D 1990 QUETTA 8

NASEEM AHMED
V/S
BALOCHISTAN DEVELOPMENT AUTHORITY AND OTHERS

Per Amiru-ul-Mulk Mengal, J.—
(a) Constitution of Pakistan (1973), Art. 199 , 139(3)—
r/w Rules of Business (Balochistan), 1976—R. 21(1)—Balochistan Development Authority Employees (Efficiency and Discipline) Rule, 1987, R.11—
The next contention that the Rules of 1987 are ultra vires of the Business Rules of 1976 also carries hardly any legal weight for the reason that thought the Business rules are framed by the Governor under Article 139(3) of the Constitution of Islamic Republic of Pakistan, 1973 for the allocation and transaction of the business of the Provincial Government, but such rules are primarily intended to requlate the transaction of the Business of the Government. Virtually Rules of Business were framed in this province in the year 1976 and as per rule 21(1) of Rule of Business (as amended) cases of disciplinary action pertaining to the officers holding posts in Grade-17 and above and officers of equivalent status including Chairman and Members of statutory Corporation under the control of the government shall be submitted by the concerned Department to the S & GAD except where exemptions are allowed by the Government in this behalf. It was contended that petitioners being officials of the aforesaid category, their cases should have been channelised through S&GAD. The only question therefore in this regard would be whether Rules of 1987 on this score would be ultravires. We cannot subscribe to such a view firstly because Rules of 1987 were framed for a particular set of officials i.e. BDA employees and while these Rules were framed the Government had in mind the Business Rules. Business Rules were framed in 1976 and Rule of 1987 are subsequent thereto. Another factor is that from the materials on record it transpired that the cases of the petitioners and question of misappropriation was also taken in the provincial Assembly of Balochistan where it was declared by then Chief Minister that persons responsible shall be dealt with severely. Thus the cases of the petitioners were already in the notice of the Government and it hardly matters whether the same channelised through S&GAD or otherwise. [p. 22, 23] F.

The question of had faith is always a question of fact and there appears no reason why Chairman acted in bad faith against the present petitioners against whom he had no grudge prior to taking of charge as Chairman except that he noticed misappropriation and misconduct.

It is not for the Courts sitting in Constitutional jurisdiction to dig out facts from different files to prove mala fides. Mala fides should be apparent from the record as also from the conduct of the officials against whom the same is alleged. In the instant case admittedly the Chairman started inquiries soon after taking of his charge. The officials had never been under his control and there was no question of personal grudge against them. Asking the Government to frame Rules by itself does not constitute any act to be termed as mala fide. [p. 25] I.

It may further be observed that while sitting in Constitutional jurisdiction we are not supposed to appreciate the evidence and to draw conclusions as to whether the petitioners have factually been involved or not in misappropriation and misconduct, moreso when the two forums below have drawn such conclusions.

Lastly while exercising constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, we have to see whether issuing of a writ will foster the ends of justice has been done, the discretion under Article 199 of the Constitution is not generally exercised.

For the above stated facts reasons we find no force in these petitions which are hereby dismissed. However, we leave the parties to bear their own costs. [p. 27] N.

Petition dismissed.

Date of hearing: 21st, 22nd, 29th June, 10th and 11th July of 1989.

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