P L D 1970 Dacca 485 (PLP)

Mr. Shamsuzzaman then argues that Article 97 provides that every member and every servant of a local Council shall be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code. It may be so but that does not make him a Government servant. Such a provision was there even in the East Pakistan Industrial Development Corporation Ordinance and that did not stand in the way of the Supreme Court in holding that an Officer of E. P. I. D. C. was not Government servant. Section 22 of the Provincial Industrial Development Corporation (East Pakistan) Ordinance, 1962, provides that the officers of the said Corporation shall be public servants under section 21 of the Pakistan Penal Code. Mr. Shamsuzzaman's next contention that E. P. I. D. C. was not so much under Government control as the local Councils are, is also of no substance whatsoever. The E. P. I. D. C. work under the Ordinance promulgated by the President of Pakistan and the rules framed thereunder by the Governor of East Pakistan as published in the Dacca Gazette of June 24, 1965, called East Pakistan Industrial Development Corporation Rules, 1965. It is true that the Chairman of the District Council is the Deputy Commissioner. But in the District Council, he exercises his powers as a Chairman of the District Council. On a perusal of the Ordinance and the Rules framed thereunder, we find that the E. P. I. D. C. is under similar control of the Government as the local Councils are: But, the officers of E. P. I. D. C. have not on that ground been held as Government servants. The employees of the District Councils also cannot be considered as Government servants. That being so, the petitioner is not a Government servant. In the case of Zainul Abidin referred to above Hamoodur Rahman, J. as his Lordship then was, delivering the judgment of the Supreme Court observed: "A writ of mandamus, as has been pointed out in more than one case by this Court, `will lie to compel the restoration of a person to an office or franchise, whether spiritual or temporal, of which he has been wrongfully dispossessed, provided such officer or franchise is of a public nature" and not for restoration to any and every kind of office. The English authorities on the subject appear to indicate that this writ has been utilised only for ordering restoration to offices which are either corporate or elective offices or municipal positions. Vide Pakistan v. Naseem Ahmed and Halsbury's Laws of England, Vol. II, Paragraph 162, 3rd Edn. The office held by the appellant as Accountant of a co‑operative bank does not fall within any of these categories". We would say that on the principle laid down by his Lordship, the petitioner also does not hold an office which would fall within any of the categories mentioned in the passage quoted above. The decision next relied on by the learned Advocate for the respondent is the case of Rustom Ali referred to above. In that case Rustom Ali was an employee of a statutory Corporation. In the instant case the petitioner was also an employee of a District Council constituted under a statute. In that case Fazal-e‑Akbar, J. delivering the judgment of the Supreme Court observed:‑ The true character of an officer and employee of such a statutory Corporation has been pointed out by this Court in the case of The Lahore Central Co‑operative Bank Limited v. Pir Saifullah Shah. One of the questions in the above case was whether the concerned Manager of the Bank was entitled to a writ for alleged wrongful dismissal from service. The learned Chief Justice after quoting a passage from Halsbury, Paragraph 162 in the monograph on `Crown Proceedings' observed "The Superior Courts in England have not found it possible to extend the scope of mandamus to restoration to office in private corporations." This was a case under Article 98 of the Constitution of 1962. The present petition was also filed under the said Article of the said Constitution. Therefore, that decision is clearly applicable to the present case. Confronted with this difficulty, Mr. Shamsuzzaman relies on a decision of the Supreme 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). In that case, Cornelius, C. J. who delivered the judgment of the Court, held that no rnandamus could be issued for restoration to an office but since it was erroneously held by the appellate authority that no appeal, would lie there was a direction for hearing of the appeal by way of writ of certiorari. That case is clearly distinguishable from the instant case as indicated above. In the case before us there was an appeal which was dismissed on merits. The contention of Mr. Shamsuzzaman that the Chairman acted in excess of the authority is also not borne by the facts of the case inasmuch as it was a Select Committee of the District-Council which recommended compulsory retirement and the Chairman merely passed an order accepting the recommendation of the Select Committee which was exercising a power conferred on it by the District Council itself. It would, therefore, appear that even on merits the petitioner has no case. Mr. Shamsuzzaman's reliance on rule 5 of the East Pakistan Local Councils (Business) Rules is also of no avail to him inasmuch as, in this case we have already noticed that it is the Select Committee which recommended the retirement; and the Chairman, acting under the authority of the District Council merely accepted the recommendation. Mr. Shamsuzzaman argues, that he has been prejudiced by the fact that the Chairman of the Select Committee, who held the inquiry, has also passed the impugned order. We do not think so. The Select Committee held the inquiry, and not the Chairman. It appears from the following passage occurring in the impugned order that the Select Committee took a lenient view of the matter: "It appears that there are as many as 8 charges like inefficiency, malpractice, corruption, negligence of duties, disobedience and concealment of official records etc. against the delinquent which are of very serious nature on the part of the head of the ministerial staff of an office and due to which the entire administration of the District Council was driven to a chaotic condition. The charges were established on enquiry and also after personal hearing. The statements in his explanation made by the delinquent against charge No. 5 are not only irrelevant and false but also tantamount to insubordination. In view of the grave charges against him he deserves dismissal from service. But the Select Committee in consideration of his old age took a lenient view and recommended compulsory retirement and I also agree to it." It is, therefore, clear that it is the Select Committee which made the recommendation and not the Chairman. Although we have held that this petition is not maintainable, we have briefly referred to the points raised by the learned Advocate for the petitioner and we are of opinion that they are devoid of sub stance. In the result, the rule is discharged with costs which we assess at five gold mohors. NUR UL ISLAM, J.‑

I agree. A. E. Rule discharged.