P L D 1964 Supreme Court 434 (PLP)

B. Z. KAICAUS, J.‑

Muhammad Riaz‑ul‑Haq the respondent in this appeal by special leave was at the relevant time the Head Clerk of the Municipal Committee Intermediate College, Okara. He was prosecuted on a charge of embezzlement of Municipal funds under section 409, P. P. C. and section 5 (2) of the Prevention of Corruption Act. He was convicted by the Special Judge, Multan, and on appeal a preliminary objection was raised that there was no proper sanction for his prosecution. The sanction for prosecution had been given by the Chairman of Municipal Committee, Okara. The contention on behalf of the respondents was that it was only the Municipal Committee which could grant such sanction. This objection was given effect to by a learned Single Judge of the High Court and the proceed ings against the respondent were quashed. This is an appeal by the State challenging the order of the High Court. Admittedly sanction for the prosecution had to be given by the authority that was competent to dismiss the respondent. The only question, therefore, for decision is whether the Chairman could dismiss the respondent. The law that governs Municipal Committees in West Pakistan is contained in the Municipal Administration Ordinance (No. X of 1960), and the relevant provision of this Ordinance is section 29 which is reproduced below :‑ "

29. The Government may from time to time specify the posts in the Municipal Committees which shall be filled by persons belonging to the Local Councils Service constituted under Article 44 in Chapter VI1I of Part 11 of the Order, and the other provisions of that Chapter shall mutatis mutandis apply in relation to the servants of Municipal Committees as they apply in relation to the servants of Local Councils as if the said provisions had been enacted in this Ordinance, and (a) any reference to a Local Council were a reference to a Municipal Committee; (b) any reference to the Controlling Authority were a reference to the Controlling Authority under this Ordinance; (c) any reference to the Order were a reference to this Ordinance; and (d) any reference to Secretary included a reference to Chief Officer." The first part of this section empowers the Government to specify posts in municipal committees which shall be filled in by persons belonging to the Local Councils Service. The second part of this section, that is, "and the other provisions of that Chapter shall mutads mutandis apply in relation to servants of Municipal Committees . . . . . . " could have had reference to the first part and its operation may have been limited. However, there is no provision apart from section 29 in the Municipal Administration Ordinance relating to the appointment and dismissal of municipal employees and it is admitted by both parties before us that the second part is of general application and applies to all servants of municipal committees. In accordance with section 29 it would be observed Chapter VIII of Part II of the Basic Democracies Order is to be read in the Municipal Administration Ordinance with the adaptations which are mentioned in the section. Chapter VIII consists of four sections only and for our purpose the relevant section is only 45 which is reproduced below :‑ "

45. Servants of Local Councils.‑(1) The Controlling Authority may, on the prescribed terms and conditions, appoint a Secretary and one or more Principal Officer to be the servants of a Local Council who shall perform such functions as are assigned to them in relation to such Local Council by or under this Order. (2) A Local Council, may, and if so required by the Controll ing Authority shall, on the prescribed terms and conditions, employ such other servants as are deemed necessary for the efficient performance of its functions under this Order. (3) If in the opinion of the Controlling Authority the number of servants employed by a Local Council under clause (2), or the remuneration fixed for any of them, is excessive, the Local Council shall, on being required by the Controlling Authority to do so, reduce the number of Its servants or the remuneration of any of them, as the case may be. (4) Subject to the provisions of this Order and the rules (a) the Controlling Authority may suspend, remove, dismiss or otherwise punish any person appointed under clause (1) ; and (b) the Local Council may suspend, remove dismiss or other wise punish any person appointed under clause (2). (5) The Controlling Authority may transfer any of the persons appointed under clause (1) from one Local Council to another Local Council within its jurisdiction." According to subsection (1) of this section the Secretary or Principal Officer of a Local Council is to be appointed by the Controlling Authority and the remaining servants are under subsection (2) to be appointed by the Local Council itself. As we have to read in accordance with section 29 "Municipal Committee" in place of "Local Council" it is clear that the power of appointment of municipal employees other than the Secretary and any Principal Officer vests in the Municipal Committee Itself. The contention on behalf of the State is that this power has been delegated to the Chairman of the Municipal Committee by rules framed under the Municipal Administration Ordinance. It would be observed that according to subsection (4) the power of the Municipal Committee to dismiss any person is subject to the provisions of "this Order and the rules". Rules had been framed under the Municipal Administration Ordinance and the Chairman had been granted powers of dismissing a clerk whose salary doe not exceed one hundred rupees. Following is the relevant portion of the rule "

2. Executive Powers.‑The following executive powers of a Municipal Committee shall vest it the Chairman (f) the grant of casual leave to any officer or servant of the Municipal Committee; and the appointments' promotion, leave other than casual leave, transfer, punishment and removal, of the officials and servants of the Municipal Committee, whose pay does not exceed. (iii) Rs.100 in the case of any other Municipal Committee." The salary of respondent is less than Rs.

100. If this rule governs the dismissal of municipal employees then the Chairman did have authority to dismiss the respondent. The contention on behalf of the respondent before the High Court was that there are rules framed under the Basic Democracies Order itself and this matter is governed by those rules. The rule which has been framed under the Basic Democracies Order and which is relied upon by the respondent is the following "2(1) The executive powers of a Local Council, with regard to the following matters shall vest in and be exercised by Chairman that is to say (a) the appointment, promotion, leave, transfer, punishment and removal of the staff of the Local Council whose pay does not exceed such limit as may be specified by the Local Council with the approval of the Controlling Authority." This rule authorises a Chairman to remove members of the staff whose salary does not exceed a limit which is to be specified by the Local Council. Admittedly there has been no specification of limit by the Municipal Committee. The contention therefore is that the Chairman was not at all empowered to dismiss the respondent. The decision of the question of sanction depended according to the respondent on the determination of the question as to which of the two rules is applicable to this case. The argument which found favour with the High Court was that according to section 92(6) of the Basic Democracies Order rules framed under the Order were to be read as part of the Order and the rules framed by the Government under the Municipal Administration Ordinance could not override rules which had become part of the Basic Democracies Order for the Basic Demo cracies Order was the parent legislation and in the case of an inconsistency between the parent legislation and delegated legisla tion it is the parent legislation that is to prevail. It appears to us that no question of parent legislation and delegated legislation arose in this case. It is a simple case of legislation by reference. According to section 29 Chapter VIII Part It of the Basic Democracies Order is to be read with certain C adaptations in the Municipal Administration Ordinance. The effect of this provision is the same as if Chapter VIII were in fact put fin the Municipal Administration Ordinance with the relevant adaptations. Thus considered it is only rules under the Municipal Administration Ordinance that will govern the dismissal etc. of employees. The view taken by the High Court appears too, be due to a failure to consider that the word "Order" in section 45 (4) has to be read as "Ordinance". According to section (4) of section 45 the power of the Municipal Committee to dismiss is "subject to the provisions of this Order and the rules". In place of the word "Order" the word "Ordinance" has to be substituted as provided by section

29. The power of the Municipal Committee is subject, therefore, only to be rules made under the Municipal Administration Ordinance itself. In fact learned counsel for the respondent concedes that if we read in place of the word "Order" the word "Ordinance" he cannot sustain the view that the Chairman had no authority to dismiss. Section 29 clearly provides that for the word "Order" the word "Ordinance" has to be read and nothing has been said which may prevent this part of section 29 from having its operation. As already observed the simple effect of this legislation by reference was to incorporate Chapter VIII of the Basic Democracies Order with modifications in the Municipal Administration Ordinance. It was not the Basic Democracies Order that was to govern the appointments, dismissals, etc. under the Municipal Administration Ordinance. Only instead of putting some provisions in the Municipal Administration Ordinance the Legislature thought fit to refer to similar provisions in another law for the purposes of incorporating those provisions in this Ordinance. The sanction granted was a proper one. This appeal is accepted and the case is remanded to the High Court for decision on the merits. K. B. A. Appeal accepted. Case remanded.