P L D 1962 Supreme Court 315 (PLP)

HAMOODUR RAHMAN, J.‑

This appeal, by special leave, is directed against an order of a Division Bench of the High Court of West Pakistan summarily dismissing a writ petition. The appellant was employed as a Clerk in the Pakpattan Central Co‑operative Bank Limited on the 4th of November 1947, and was confirmed in the said capacity in March 1952. He later became a Cashier In the Arifwala Branch of that bank, but whilst serving fn the latter capacity he was, on or about the 27th of August 1956, served with a charge sheet alleging impertinent behaviour, continued absence from duty, insolence and insubordination towards officers, misbehaviour towards public and negligence in the performance of his duties and was called upon to submit his explanation to the above charges. He was, thereafter, suspended from service with effect from the 1st of November 1956, and his explanation together with the charge‑sheet was forwarded to the Assistant Registrar, Co‑operative Societies, Montgomery, for taking steps to institute regular proceedings against him. The latter appointed the Inspector, Co‑operative Societies, Pakpattan, as the Enquiry Officer, who framed a charge‑sheet against the appellant and served the same on him on the 15th of March 1957. The said Enquiry Officer, however, after considering the explana tion submitted by the appellant, but without recording any evidence, made a report finding the charges against the appellant proved. On the basis of his report the appellant was dismissed by the Managing Committee of the Pakpattan Central Co‑operative Bank Limited on the 13th of September 1957. On appeal, however, to the Registrar of Co‑operative Societies the said order of dismissal was set aside on the ground that since the Pakpattan Central Co‑operative Bank had adopted the Government Civil Service Rules, it was necessary that the Enquiry Officer should have conducted the enquiry in accordance with the said rules The case was, therefore, remanded back to the Bank on the 26th of June 1958. The Managing Committee of the Bank then appointed the Inspector, Co‑operative Societies, Dipalpur, as the Enquiry Officer by its resolution of the 31st of July 1958. The latter started the enquiry afresh from the 13th of October 1958. The enquiry was held in the presence of the appellant, and the examina tion of the witnesses on behalf of the Bank commenced from the 7th of November 1958. A formal charge‑sheet was, thereafter, framed on the 10th of November 1958, and the appellant submitted a written reply to the said charge‑sheet on the 11th of November 1958 Thereafter, the appellant produced as many as 11 witnesses in support of his case, and they were examined on the 5th, 6th, 9th and 10th of December 1958. On the last‑mentioned date the appellant submitted attested copies of the affidavits of two persons namely. Syed Muhammad Sarwar Shah, Ex‑Secretary, and Khan Fakhar‑ud‑Din Khan, a Director, and asked that the same ‑should be attached to the enquiry file. This was objected to on behalf of the Bank and they were ultimately not taken into consideration. The appellant then stated that he did not wish to produce any more defence witness and closed his case. The Enquiry Officer then submitted his report on the 14th of March 1959, finding the allegations of misconduct, rudeness, negligence of duty, fraud, absence etc., proved against the appellant. After considering this report the Managing Committee on the 18th of March 1959, resolved by a majority of votes to dismiss the appellant from service. The appellant again preferred an appeal from this order of dismissal to the Principal, Co‑operative Training Institute, in his capacity as Registrar of Co‑operative Societies, West Pakistan, but this appeal was also dismissed on the 23rd of December 1959, and the order of his dismissal maintained. It was in these circumstances that the appellant moved the High Court of West Pakistan for a writ of certiorari for quashing the aforesaid order of dismissal and for a mandamus directing the Bank to take back the appellant in service, on inter alia the grounds that no show cause notice, as required by the Civil Service Rules, had been given to the appellant ; that he was refused the right to cross examine the witnesses appearing against him ; that he was denied copies of relevant documents which he wished to have produced in support of his defence and that the Enquiry Officer took evidence of the witnesses produced against him in his absence after being closeted with them in a separate room and, therefore, had not only acted in a mala fide and biased manner but also denied natural justice to the appellant. The High Court, as already stated, summarily dismissed the aforesaid petition holding that the appellant had been given ample opportunities to defend himself and had by two independent Enquiry Officers been judged to be an undesirable employee. Since there was nothing in this brief order of the High Court toy show whether the specific grounds raised in the writ petition had been considered, special leave was granted in this case to consider whether "the second enquiry was vitiated on account of failure to follow the principles of natural justice in so far as opportunity to cross‑examine the witnesses, on whose testimony the Enquiry Officer relied, had been denied to him." These is no dispute in this case that the Co‑operative Bank concerned had adopted the Government Civil Service Rules so far as it related to the dismissal from service of its employees. It was on this account that the dismissal of the appellant after the first enquiry was set aside on appeal, as no evidence had been taken in the enquiry, In, the second enquiry witnesses appeared to have been examines: both on behalf of the Management of the Bank as well as on behalf of the appellant, but the appellant complains that the witnesses produced on behalf of the Manage ment were examined behind his back and he was given no oppor tunity to cross‑examine them. In support of this contentior3 learned counsel appearing on behalf of the appellant has drawn our attention to the record of the statements of the witnesses and has contended that the procedure adopted by the Enquiry Officer was an unusual one, for, he appears to have in lieu of the oral examination‑in‑chief taken written statements from the witnesses and attested the same. The appellant protested against this procedure in writing and complained that although he had on the 7th of November 1958, which was fixed as the date for examination of witnesses, arrived at 10 a.m., he was directed to stay outside the Bank whilst the Enquiry Officer went to the upper storey of the Bank, called the witnesses on behalf of the Management there and gave direction about their statements. He also complained that he was pressed down by the Enquiry Officer to ask only essential questions and if he put a question the answer to which was likely to go in his favour, the Enquiry Officer taunted him to silence. Allegations were also made against the Enquiry Officer of having, during the lunch interval, gone with the witnesses to take his meals at the house of one of the Directors of the Bank. He threatened to report this matter to the Registrar, Co‑operative Societies, West Pakistan, and the Martial Law Administrator, and requested the Enquiry Officer to suspend proceedings till the decision of the higher authorities, On this application the Enquiry Office: recorded that the enquiry commenced in the presence of the appellant at 10‑30 a.m., and lasted till 1‑30 p.m. Then there was an interval from 1‑30 p.m. to 3 p.m., whereafter the enquiry again commenced. It was at this stage that the appellant had put in the written protest in the form of an application. The Enquiry Officer characterized the contents of the said application as incorrect and baseless and stated that this was an attempt merely to delay the proceedings. The Enquiry Officer, however, gave him half an hour's time to come back and join the enquiry. In the meantime, it appears, the appellant bad also lodged a complaint Mill the Sub‑Divisional Magistrate, who had directed the Manager of the Bank over the telephone to tell the Enquiry Officer that the application filed by the appellant should to placed on the record and a copy of it presented to the Sub‑Divisional Magistrate, but the enquiry should be continued. He had directed the appellant to join the enquiry but if the appellant did not attend, the enquiry should continue in his absence. The record further shows that on the direction of the Sub‑Divisional Magistrate the appellant rejoined the enquiry and the examination of the witnesses proceeded In his presence. A copy of a telegram purporting to have been sent to the Martial Law Administrator, West Pakistan, and the Registrar, Co‑operative Societies, West Pakistan, has been filed as an annexure to the petition for special leave, but unfortunately the date, on which the telegram was sent, is not given in this annexure. Be that as it may, on an examination of the record of the deposi tions we find that while some of the witnesses produced on behalf of the Management were cross‑examined by the appellant, others were not, and the attestation, to which the learned counsel has referred, appears to be a formality adopted by the Enquiry Officer out of abundant caution, for, such attestations appear even after the cross‑examinations of the witnesses produced on behalf of the appellant. Even the application put in by the appellant before the Enquiry Officer on the 7th of November 1958, belies the allegation of the appellant that the examination‑in‑chief was conducted in the absence of the appellant in a separate room in which the witnesses and the Enquiry Officer were alone closeted, for, in this application it is categorically stated that "on the termination of the examination of witnesses you pressed me down not to ask the essential questions'", This does not indicate that the examination of the witnesses took place in the absence of the appellant or that he was denied adequate opportunity to cross‑ examine the said witnesses. There is no substance, therefore, in this allegation. The contention, therefore, that the principles of natural justice had been violated by reason of the appellant being denied any adequate opportunity of cross‑examining the witnesses is entirely baseless. Although this was the only ground upon which leave was granted in this case, learned counsel also sought to contend that in so far as no second opportunity of showing cause against the punishment proposed to be inflicted upon hi a to d been furnished, the dismissal was contrary to the provisions of the Government Service Rules, and, therefore, should be set aside. This argument, in effect, assumes that because the Co‑operative Bank concerned in the present case had by its own bye‑laws adopted the procedure of the Government Service Rules for the taking of disciplinary action against its employees, such employees were also entitled to the protection given to Government servants under section 240 (3) of the Government of India Act, 1935. This assumption, however, Is totally unwarranted, for, the Civil Service Rules were made applic able to the case of the appellant not by virtue of any statutory pro vision but purely by the adoption thereof under the bye‑laws of the2 Co‑operative Bank, which were no more than the rules laid down for the guidance of the Bank itself. These rules, therefore, did not create any right in the appellant to hold his office in accord ance with then, nor did the said rules automatically extend the protection given to a Government servant under the constitutional provisions of tie Government of India Act, 1935, and the late Constitution, to persons employed in non‑Governmental institutions or concerns. Even If the adoption of the Government Service Rules could be interpreted as amounting to the adoption of also the guarantees of the kind given to public servants by the aforesaid constitutional provisions, they would have no statutory force behind them and would, therefore, according to the decision of the Judicial Committee in the case of Venkata Rao v. The Secretary of State for India‑in‑Council (64 I A 55) be no more than mere violations of rules or regulations which would not entitle the appellant to have the performance of the rules enforced by action. The High Court of West Pakistan was, therefore, in our view, right in refusing to interfere in its writ jurisdiction with the decision of the appellate order of the Principal, Co‑operative Training Institute, acting as Registrar, Co‑operative Societies, West Pakistan, upholding the dismissal of the appellant. The complaint that a copy of the Enquiry Officer's reports was not supplied to the appellant cannot also be entertained for the same reasons. He had no right as such to receive the copy In any event, he is not entitled to make this a ground for attacking the impugned order, as no such ground was taken in the petition filed In the High Court. We are in agreement with the High Court that the appellant was given ample opportunity to defend himself. No manner of injustice was done to him and he had no legitimate ground for any complaint. So far as his prayer for a writ of mandamus was concerned, that, we must point out, was wholly misconceived, for, the office that the appellant held was, by no means, a public office restora tion to which could have been ordered by means of a writ of mandamus. As pointed out by this Court in the case of Pakistan and another v. Naseem Ahmad (P L D 1961 S C 445) a mandamus does not lie for the restoration of any and every kind of office, but only for offices which are either corporate or elective offices or municipal positions. The appellant before us held no office of any of the above kinds. For the reasons given above we hold that this appeal is without any substance and dismiss it with costs. A.H. Appeal dismissed.