Khurshid Ali Vs Govt. of KP

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

W.P No. 847-M/2025

(Khurshid Ali Khan and others Versus . Govt. of KPK and others) Present:

Mr. Asghar Ali, Advocate for petitioners.

Mr. Haq Nawaz Khan, Addl: A.G. for respondents.

Date of hearing: 28.01.2026

J UDG MENT

QAZI JAWAD EHSANULLAH, J.- Petitioners Khurshid Ali Khan and others have filed the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking the following reliefs:

“It is, therefore, very humbly prayed that by the acceptance of the instant writ petition; a) Notification No. 785 / 86 dated: 11-07-2025 as well as act and omission of respondents whereby petitioner No. 1 has been de-notified and rest of the petitioners have been restrained from entrance into their Office and performing their duties may please be declared illegal, unlawful, void, against law, without lawful authority and unconstitutional. b) Respondents be restrained from taking any unlawful action against the petitioners.

c) Respondents be directed to permit / allow the petitioners to perform their duties in the Office situated in Police Station Kalakot.

d) Grant such other relief as this Hon'ble Court may deem just and proper in the circumstances of the case.”

2.Per averments of the writ petition, the present petitioners were duly notified as members of the Dispute Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Resolution Council (DRC), Kalakot, constituted under Section 73 of the Khyber Pakhtunkhwa Police Act, 2017.

The precise grievance articulated by the petitioners is that petitioner No.1 Khurshid Ali has been de-notified from the said DRC by the District Police Officer (respondent No.4) through order dated 11.07.2025, on allegations of interfering in the official functioning of the police, using inappropriate and immoral language towards on-duty staff of Police Station Kalakot, and misusing his position as Vice Chairman of the DRC.

3.Respondents No.2 to 4 have filed their comments controverting the averments of the petitioners, asserting that petitioner No.1 had violated the prescribed code of conduct and ethical standards formulated for members of the DRC.

It is further averred that petitioner No.1, while serving as Vice Chairman of the DRC, was found to be exerting influence upon the police in favour of the accused party, and that multiple complaints and adverse reports were received against him in this regard.

4.Learned counsel for the petitioners contends that levelling of the aforesaid allegations, particularly without affording petitioner No.1 any opportunity of hearing, has resulted in stigmatizing him for all times to come, and that his de-notification from the DRC was effected in blatant Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

denial of the right to a fair hearing and due process guaranteed under law.

5.Conversely, learned Additional Advocate General, while reiterating and adopting the stance taken in the official comments, supported the impugned action and argued that assignment of a position in the DRC is not a vested right but a privilege, therefore, the instant petition is not maintainable. He further contended that petitioner No.1 was de-notified from the DRC strictly in accordance with the prescribed procedure, and that the impugned order has been passed within the four corners of law. On this premise, he prayed for dismissal of the instant petition.

6.Arguments heard and record perused.

7.The record unequivocally shows, and it is an admitted factual position, that petitioner No.1 was proceeded against on the basis of specific allegations, namely his alleged interference in the official business of the local police, misuse of his position as Vice Chairman of the DRC to influence the police in favour of the accused party, and use of immoral language while dealing with on- duty police officials at Police Station Kalakot. However, prior to his de-notification from the DRC, neither was any show-cause notice issued to him nor was he afforded any Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

opportunity of hearing. Rather, through the impugned order dated 11.07.20251, he was straightaway de-notified on the strength of the aforesaid allegations. The law on the subject is well settled and consistently developed to the effect that before taking any adverse action against a person, particularly where such action is founded upon specific allegations and carries stigmatic consequences, the authority concerned is obliged to conduct a proper inquiry and to afford the affected person a reasonable opportunity of being heard. The allegations levelled against petitioner No.1 are clearly stigmatic in nature, having a direct bearing on his reputation, integrity and standing in society. In such circumstances, the settled rule of law mandates strict adherence to the principles of natural justice by issuance of a show-cause notice and by affording a fair and meaningful opportunity of hearing prior to taking any adverse action. It is equally well established that the obligation to observe the principles of natural justice is not confined to judicial proceedings alone; quasi-judicial and administrative authorities are equally bound to adhere to these principles where their actions affect the civil rights, status or reputation of an individual. This legal position has been authoritatively settled by the apex Court in Abdul Latif v.

Page 39 of the writ file Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

The Government of West Pakistan and others2, wherein the scope and applicability of the maxim audi alteram partem to administrative and quasi-judicial actions was elaborated in the following terms:

“This Court had also occasion to consider as to what extent the quasi-judicial and administrative bodies should be guided by rules of natural justice in the cases of Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.)

45)and Messrs Faridsons Ltd., Karachi and another v. Government of Pakistan (P L D 1961 S

C 537).

In the last mentioned case S. A. Rahman, J. made the following observations :- "This Court laid it down as a rule in Chief Commissioner Karachi v. Mrs. Dina Sohrab Katrak that the maxim: audi alteram parten-`No man shall be condemned unheard' applies to judicial as well as administrative bodies, specially where the proceedings taken may affect the person or property or other rights of the parties concerned in the dispute. Even if, there- fore, the proceedings before the Chief Controller were neither strictly judicial nor even quasi-judicial in character, the principle of natural justice embodied in the above maxim could be called in aid by the appellants." The learned Judge while dealing with the facts of the case observed :- "The action savoured of inquisition and a determination of guilt and clearly the requirements of a notice coupled with an opportunity of hearing in advance were attracted to the case."

PLD 1962 SC 384

Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

The above observations apply with equal force to the present case.

Here the appellants service had been terminated in May 1950. In January 1958, without any notice to the appellant the Treasury Officer prepared a statement "showing deficiencies in remittances and shortage in stamps etc." The Deputy Commissioner in issuing the order faithfully followed the information conveyed to him by the Treasury Officer without giving the appellant an opportunity to meet the allegations made against him. The procedure adopted to say the least was against all principles and canons of justice and fair play.”

The ratio laid down in the said dictum applies with full force to the present case. Viewed in this perspective, the action taken against petitioner No.1, without prior show-cause notice and opportunity of hearing, is manifestly violative of the principles of natural justice and procedural fairness, rendering the impugned order legally unsustainable.

8.In another authoritative pronouncement rendered in Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan3, the Supreme Court highlighted the constitutional protection available under Article 177 of the erstwhile Constitution of Pakistan, 1962, and drew a clear distinction between termination simpliciter and termination

PLD 1974 SC 393

Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

founded on misconduct. While expounding this principle, the apex Court held as follows:

“............. In my opinion, if the service of a probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service, such termination will be in terms of the contract or the rules made by the Government but if the service of a probationer is terminated on the ground of misconduct that will amount to removal or dismissal. It will be a stigma in his favour. In the last-mentioned case, the probationer will be protected by the provisions of Article 177 of the Constitution of 1962 and will be entitled to a show cause notice and a proper enquiry against him must be made.”

[Underlining is for emphasis]

The principle enunciated above has consistently been reaffirmed by the superior Courts. In this regard, reference may also be made to The Secretary, Government of the Punjab through Secretary Health Department, Lahore and others v. Riaz-ul-Haq4, wherein the apex Court further clarified the legal distinction between termination in accordance with the terms of appointment and termination on allegations of misconduct. The Court held:

“7. Without going into the controversy, as to whether the respondent’s claim that he was a permanent employee, we may observe that there is a marked distinction between simpliciter termination of services in accordance with the terms of appointment and the termination of

1997 SCMR 1552

Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

services on the ground of misconduct. There is no doubt that if a person is employed on contract basis and if the terms of employment provide the manner of termination of his services, the same can be terminated in terms thereof. However, if a person is to be condemned for misconduct, in that event, even if he is a temporary employee or a person employed on contract basis or a probationer, he is entitled to a fair opportunity to clear his position, which means that there should be a regular enquiry in terms of the Efficiency and Discipline Rules before condemning him for the alleged misconduct.”

[Underlining is for emphasis]

9.No doubt, holding a position in the DRC is a privilege rather than a vested right; however, observance of due process and the right to a fair hearing are indefeasible rights of the petitioner in the event that when his services are to be dispensed with on some charges. It has become abundantly clear from the record that de-notifying petitioner No.1 from the DRC by respondent No.4, without affording him any opportunity of hearing, amounts to a patent violation of the well-established principle of audi alteram partem. This principle embodies the fundamental requirement that no person shall be condemned unheard and that every individual must be given prior notice of the allegations against him along with a fair opportunity to explain, rebut or defend himself before any adverse action is taken. The superior Courts have consistently held that the principle of audi alteram partem is deemed to be an integral and inbuilt Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

component of every statute, irrespective of whether it has been expressly provided therein. In Mrs. Anisa Rahman v.

P.I.A.C. and others5, it was reaffirmed that actions entailing civil consequences must conform to the requirements of natural justice, even in the absence of an explicit statutory mandate. Reliance is also placed on a recent pronouncement of the Supreme Court in Federal Government Employees Housing Authority through Director General, Islamabad v. Ednan Syed and others6, wherein the scope and content of the right to fair trial and due process under Article 10-A of the Constitution were elaborately expounded. The apex Court observed:

“14. Furthermore, Article 10A of the Constitution requires that everyone is entitled to a fair trial and due process, which includes the basic right to be heard. The principle of 'audi alteram partem' is one of the foundational principles of natural justice. It necessitates the requirement of being heard so that the judicial order reflects the contention of every party before the court. To fulfill the requirements of being heard, it is settled that the relevant party must be issued first a notice and then be allowed a hearing. These two (notice and hearing) are basic pre-requisites, which satisfy the test of being heard as well as fair trial and due process within the ambit of Article 10A of the Constitution. In this matter, it appears that the Impugned Judgment and Impugned Order have not given an opportunity of hearing to the concerned parties which includes the federal government and the affectees of the Revised Policy. This amounts to a violation of their basic right to be heard and suggests that the decision was made without following due process.”

1994 SCMR 2232

PLD 2025 SC 11

Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

10.In light of the foregoing discussion, the petition in hand is allowed and the impugned order is hereby set aside. The competent authorities may initiate appropriate legal action against petitioner No.1, if so advised, provided that the same is undertaken strictly in accordance with law after issuance of a proper show-cause notice, affording him a fair opportunity of hearing, and passing a reasoned order in consonance with the principles of natural justice and due process.

Announced -Sd- Dt:28.01.2026 JUDGE

-Sd-

JUDGE

Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah