P L D 1974 Supreme Court 146 (PLP)

MUHAMMAD GUL, J.‑The petitioner was employed, as Regional Officer at Lahore, by the National Shipping Corporation, established by the National Shipping Corporation Ordinance, 1563 (Ordinance IV of 1963). On 16‑3‑1972, the petitioner was served with seventeen charges, mostly relating to the unauthorised expenditure and other financial irregularities, and asked to explain his conduct. He filed a written explanation on 31‑3‑1972, denying all charges and pleaded that the irregularity, if any, was not intentional. He also requested for a personal hearing. The Managing Director after considering the petitioner's explanation, appointed an Enquiry Committee of three headed by the General Manager to enquire into the charges. The Committee after recording the petitioner's statement on 20‑5‑1972, found that of the seventeen charges, only six were proved and that the petitioner had committed some financial irregularities with regard' to other three. The remaining charges were held not proved, or at any rate, were condonable. On the basis of the above finding, a notice was issued to the petitioner on 1‑7‑1972 to show cause why he should not be removed from service. In answer to this notice the petitioner filed further statement on 12‑7‑1972, pleading innocence. The petitioner was also given another hearing by the Finance Director on 25‑8‑1972 with reference to the show cause notice. The Managing Director, after considering the charges and the finding of the Enquiry report in conjunction with the further state ment of the petitioner by order dated 2‑9‑1972 removed him from service with immediate effect. The petitioner's appeal to the Chairman, Board of Directors having been dismissed, he filed Writ Petition No. 62/S of 1973, which was dismissed in limine on 2‑4‑1973, by a learned Single Judge of the Lahore High Court, on the ground that the case did not disclose any violation of statutory protection to the petitioner and that at any rate, the argument addressed on behalf of the petitioner involved controvertial question of fact "which required a detailed enquiry which could not be undertaken in writ jurisdiction. In seeking leave against the order of the learned Single Judge Mr. Muhammad Iqbal the petitioner's learned counsel made the following submissions, namely:‑ (i) that the petitioner was not afforded reasonable opportunity contemplated by Regulation 59 of the National Shipping Corporation (Service) Regulations, 1965, framed under section 32 of the 1963 Ordinance, either to meet the charges or to show cause against his removal from service and the proceedings against him were mala fide and farcical; and (iii) that in any case the order of the petitioner's removal from service was bad in law firstly because, at penultimate stage, notice to show cause against his removal from service was issued by the Secretary to the Corporation and, secondly, Regulation 59, under which the petitioner was proceeded against does not contemplate "removal from service." In order to show that the petitioner was afforded adequate opportunity to defend himself before the Enquiry Committee Mr. Muhammad Ilyas learned counsel for the Caveator produced the departmental file mating to the enquiry proceedings, which showed that the petitioner at a initial stage of the proceedings filed 21 pages typed written statement i4 answer to the charges framed against him. Besides, he appeared personally before the Enquiry Committee, , and at the conclusion of his oral examination, he stated: "Apart from what I have said above, I do not intend to produce any witness." Even at the penultimate stage of the proceedings, the petitioner filed a fresh written statement against the findings of the Enquiry Committee, and also appeared before the Finance Director to show cause against his proposed removal from service. Therefore, the argument that the petitioner was not allowed adequate opportunity to defend himself or that proceedings were farcical and therefore, mala fide is without substance. We do not find any force in the second submission either that under Regulation 59, the petitioner could have been dismissed and not removed from service. .Dismissal entails disqualification against any future employ ment of the delinquent, while mere removal does not entail any such future disability, although there is separation from office in either case. Punishment by way of dismissal from ',4 service is therefore a penalty more severe in content. and conse quence and necessarily includes the lesser punishment of removal from service. It is indeed fanciful to suggest that while Corporation as employer could dismiss the petitioner, it was powerless to remove him from service. The departmental file also showed that the show‑cause notice against the petitioner's removal from service was issued under the order of the Managing Director, who was the petitioner's appointing authority, although it was actually communicated under the Secretary's signature. On behalf of the caveator, the main argument by Mr. Muhammad Ilyas, however, was on the broad legal aspect of the question namely that the petitioner being an employee of a statutory Corporation could not seek redress in writ jurisdiction of the High Court, generally available to a civil servant against his removal from service. In support of his argument, the caveator's learned counsel relied on judgments of this Court in .Abdul Salam Mehta v. Chairman, Water.and Power Development Authority and another (1970 S C M R 40), Shahid Khalil v. Pakistan International. Airlines Corporation, Karachi (1971 S C M R 568), The Chairman, East Pakistan Industrial Development Corpora tion and another v. Rustom Ali and another (P L D 1966 S C 848), Zainul Abidin v. Multan Central Co‑operative Bank Ltd., Multan (P L D 1966 S C 445), and The Lahore Central Co‑operative Bank L'd, v. Pir Saif Ullah Shah (P L D 1959 S C 210). The broad proposition laid down in all these cases was, that the Constitutional safeguards available to the generality of Civil Servants against arbitrary dismissal or removal g from service are not available to the servants of a registered company, or a statutory Corporation. The precedent cases (with the exception of the case of Pir Saif Ullah Shah which was the case of a Commercial Manager of al Co‑operative Bank) related to the removal from service of statutory Cor porations like, PIAC, WAPDA and EPIDC, each of which was established by a statute, over which the Government exercised control in varying degree. In all these cases, the grievance related to alleged arbitrary dismissal from service of an employee by an incorporated company or statutory corpora tion in which the general law of master and servant was held applicable: . and it was laid down that the only remedy available to the aggrieved servant in such cases is to sue for damages for wrongful dismissal and not a writ of mandamus or certiorari. Mr. Muhammad Iqbal, learned counsel for the petitioner on the other hand argued that Regulation 59 under which the petitioner was proceeded being framed under section 32 of the 1963 Ordinance, has the force of law and therefore, any breach or non‑observance of its requirement will sustain an appropriate writ against the corporation which being a, statutory cor poration is a "person" for the purpose of Article 98 of the 1962 Constitution and Article 201 of the Interim Constitution. In support of his argument, learned counsel relied on the case of Dr. Abdul Hafeez v. Chairman, Municipal Corporation, Lahore and others (P L D 1967 Lah. 1251). He also sought to distinguish Rustom Ali's case on the ground that in chat case, the High Court's judgment was' reversed by this Court, because in that case there was no breach of any rule or regulation having the force of law as in the instant case. ' The above argument in our opinion proceeds on a superficial reading of the two precedent cases relied , upon by the petitioner's learned counsel. It is true, as was observed in Rustom All's case that EPIDC was a "person" for the purpose of Article 98 of the 19 62 Constitution and a fortiori, in an appropriate, case, the Corporation would be amenable to the writ jurisdiction of the High Court; but that was qualified by the following statement which is the ratio decidendi of that case " . . . the safeguards provided for public servants under the Constitution could not be availed of as of legal right by an employee of a statutory Corporation as the East Pakistan Industrial Develop ment Corporation . . . . . . A writ is not a proper remedy in the case of an employee of such a Corporation seeking redress against his dismissal." It is important to point out that Rustom Ali's case was decided with reference .to the provisions of Article 98 of the 1962 Constitution, which unlike the corresponding provision in the 1956 Constitution, omits reference to the prerogative writs of certiorari, mandamus, quo warranto etc. and instead contemplates the issuance of orders and directions in the nature of classical writs to the authority concerned. It is also important to observe that contrary to the emphasis laid by the petitioner's learned counsel, Mr. Muhammad lqbal, nothing really turns on the fact that the petitioner was an employee of a statutory Corporation established by a statute as distinguished from an incorporated company. The determining factor for the relevant purpose, is the origin or nature of office and the duties attached to it. In the case of Saifullah Shah it was observed by this Court " . . Corporations for private gain differ in no essential that affects the public character of the grant, from corporations created for purely public purposes. Their corporate powers spring alike from the same source, their organization is directed by the same hand, their regulations and restraints are controlled by the same authority, and they are answerable alike to the same sovereign." The essence of the matter however is whether the aggrieved incumbent could be regarded as holder of a "public office" which is described by Ferris in his book "Extraordinary Legal Remedies", at page 166, as: "A public office is the right, authority and duty created and conferred by law by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for t the benefit of the public, for the term and by the tenure prescribed law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure, duration, emolument and duties." In Saifullah Shah's case, the office of the Commercial Manager of a Bank was not considered to be a public or statutory office, that is to say "an office which is by law prescribed in regard to its existence, its tenure or duties." It remains to consider the ratio decidendi in the case of Dr. Abdul Hafeez, on which the petitioner's learned counsel mainly relied. That was the case of an Assistant Medical Officer of Health of Lahore Municipal Corporation, who was compulsorily retired under the West Pakistan Local Councils and Municipal Committees Servants (Further Usefulness in Service) Rules, 1963. The order of compulsory retirement was successfully challenged by invoking the writ jurisdiction of the High Court. In that case, after reviewing almost the entire case‑law bearing on the subject including this Court's judgment in Rustam Ali's case, the learned Judges of the Division Bench set aside the impugned order because in their opinion Dr. Abdul Hafeez as Assistant Medical Officer of Health, held statutory appointment under section 39(2) of the City of Lahore Corpora tion Act, 1941 (Punjab Act XV of 1941). After the repeal of the Act his appointment continued on the same terms arid conditions under section 4(2) of the Municipal Administration Ordinance,, 1960 (Ordinance X of 1960). The learned Judges observed in paragraph 22 of their judgment that as Assistant Medical Officer, Dr. Abdul Hafeez "was performing duties of public nature and importance . . . . . over a considerable area within the limits of Lahore Municipal Corporation." This constitutes the main distinguishing feature of the case, which excepts it from the rule laid down in the precedent cases relied upon by the caveator's learned counsel. In that respect nothing turns on the fact, whether a corporation is statutory or an incorporated company whether public or private. This distinction was succinctly brought out by this Court in the case of the Managing Committee of Co‑operative Model Town Society Ltd. v. Kh. Muhammad Iqbal (P L D 1963 S C 179) with reference to the decision of this Court in the case of Saifullah Shah noticed already by the following observations As to the competency of mandamus, the order of the High Court is, clearly one in certiorari, which was undoubtedly available to correct errors in the exercise of ,quasi judicial appellate powers. It may also be noted that the case cited in the appellants Society's Concise Statement, viz. The Lahore Central Co‑operative Bank v. Saif ullah Shah, as `fully covering' the present case, relates to a Commercial Manager, who did not hold a statutory office, within the Co‑operative Societies Act. That makes a point of distinction from the present case, which relates to a statutory office, viz., that of Secretary, to a Co‑operative Society, and difference may also be found in the circumstances that the Society in this case exercises administrative functions in a considerable township, viz., Model Town . . . . . " The distinction between the two kinds of offices was brought into bold relief in yet another judgment . ,of this Court in Maqbool Rahi v. Abdul Rehman Khan (P L D 1960 S C 266) in which mandamus was issued to restore a duly quali fied director to his office, who was wrongfully excluded from the Board of Directors of a Joint Stock Company. But the same was refused to the Secretary of the company, on the short ground that he merely performed Secretarial duties although the Articles of Association of the company expressly provided for his appointment. The petitioner before us whose main function was to secure business for the Corporation from the Lahore region' cannot possibly claim a better or a higher status than the Commercial Manager of a Bank or the Secretary of a Joint Stock Company. For the foregoing reasons, we dismiss the petition, because apart from its facts; a writ petition did not lie in such a case. K. B. A. Leave refused.