ISLAMABAD: The requirement of publication of notification in official gazette is to be treated as "directory" unless it directly, immediately and adversely affects vested rights of the parties aggrieved by it, said a Federation's report.
Attorney General for Pakistan (AGP) Khalid Jawed Khan on Monday filed a 'synopsis' on behalf of the federal government against the Sindh High Court's (SHC's) verdict to grant stay to sugar mills against the inquiry commission report.
A three-member bench, headed by Chief Justice Gulzar Ahmed, will resume hearing of the case on Tuesday (today).
The AGP submitted that the requirement of publication of notification in the official gazette is to be treated as "directory", unless it directly, immediately and adversely affects vested rights of the parties aggrieved by it.
When the notification relates to the performance of duties or function by public functionaries or authorities then publication in the official gazette is to be treated as merely "directory and not mandatory".
It said the actions, thus, cannot be challenged on the ground of non publication of the notification in the official gazette, if it was in public knowledge.
The notifications were subsequently published in the official gazette.
"It is settled law that delay in publication of notification is not fatal. It was submitted that even otherwise, the notification having been published in gazette subsequently with retrospective effect, this is perfectly lawful and being procedural in nature, no objection can be raised on that ground."
The federation contended that the interim order passed by the SHC is contrary to well-settled principles of the law.
The SHC has no jurisdiction to stop inquiry or investigation conducted in a lawful manner.
The Commission of Inquiry was lawfully constituted and its report is only "fact finding" along with certain recommendations in the public interest for the consideration of the federal government.
No direct adverse action was taken or penalty imposed against any party on the basis of the inquiry report without proceeding further under the law.
The inquiry report was being sent to various statutory authorities including the FBR, the SECP, the NAB, the CCP, the FIA etc to examine the facts, and if in their opinion, it disclosed any violation of the law, under which the respective authority was functioning, then action be taken strictly in accordance with that law.
The SHC could not grant injunction unless the three ingredients stipulated under Order 39 Rule 1 and 2, CPC, 1908, were fulfilled.
The petition filed in the SHC being premature as filed only under apprehension of adverse action in future is not maintainable.
The petition filed by the sugar mills (respondent) in the SHC being motivated by ulterior consideration of stifling lawful proceedings by different statutory bodies/authorities under different statutes is liable to be dismissed by the apex court.
Regarding sugar mills' claim that the members of the committee constituted earlier and then joining the commission were biased as they had formed opinion earlier. The Attorney General for Pakistan submitted that this is misconceived submission as the members of the Committee had neither formed any final opinion of found facts nor even completed the probe.
The sugar mills further claimed that the federal government lacked competence vis-à-vis the subject matter of inquiry as only province could have formed the commission on the subject matter.
The AGP stated that "this is completely misconceived as the TORs/matter was not only trans-provincial in character it, inter alia, fell under entries 27, 48,49, 57 and 58, Part 2, 4th Schedule of Constitution.
It also affected the fundamental rights of the people all over the country.
Thus, the constitution of the commission by the federal government was lawful and indeed fully warranted."
Copyright Business Recorder, 2020