P L D 1962 (W (PLP)

SHABIR AHMED, J.‑Muhammad Anwar, who used to be the Secretary of Town Committee, Sillanwali in the district of Sargodha, has presented this petition against Mr. M. A. Bajwa, Deputy Commissioner, Sargodha, and the Chairman, Town Committee, Sillanwali, for issue of a writ which would make ineffective the order passed by Mr. Bajwa on the 14th of July 1961 whereby the petitioner was dismissed from service and which order was confirmed on appeal by the Commissioner of Sargodha Division.

2. The facts relevant for the purposes of this petition may be briefly stated. The petitioner was working as Head Clerk‑cum -Accountant in the Municipal Committee, Sillanwali, and on the 8th of December 1959, the Administrator of that Municipal Committee recommended to the Deputy Commissioner, Sargodha, that the Commissioner of the Division be asked to appoint the petitioner as Secretary of that Municipal Committee, but this recommendation was turned down by the Deputy Commissioner. The town of Sillanwali which used to have a municipality of the Second Class under the Punjab Municipal Act, 1911, ceased to have a Municipal Committee but was given a Town Committee under the Basic Democraies Order, 1959, and on the 25th of May 1960, Mr. Bajwa. Deputy Commissioner and Collector, Shahpur, respondent No. 1 in this petition, acting as the con trolling authority of the Town Committee of Sillanwali, appointed the petitioner as Secretary of that Town Committee. A few days later, Mr. Bajwa paid a surprise visit to the office of the Town Committee of Sillanwali and it appears that he asked the petitioner some questions regarding the financial position etc. of the Town Committee which the petitioner was unable to answer. On reaching his headquarters at Sargodha, Mr. Bajwa passed an order that the petitioner be removed from the Secretary-ship of the Town Committee, Sillanwali, and another person appointed in his place. Upon this, the petitioner appealed to the Commis sioner, Rawalpindi Division, as at that time Sargodha used to be a part of that Division. The appeal of the petitioner was accepted on the 8th of September 1960 mainly on the ground that no inquiry had been held and the petitioner had not been afforded an opportunity to show cause against the action proposed to be taken against him. A few days after the passing of the above order, Mr. Bajwa framed a charge‑sheet against the petitioner. This charge‑sheet accused the petitioner of seventeen lapses. The preliminary inquiry was entrusted to Mr. Muhammad Zar, a Magistrate of the First Class at Sargodha who after a preliminary inquiry reported to Mr. Bajwa that the petitioner was guilty of charges Nos. 1, 2, 3, 4, 5, 6, 9, 10 and

14. On receiving the report of Mr. Muhammad Zar, Mr. Bajwa served a notice on the petitioner to show cause why he should dot be removed from service and the notice mentioned the findings of Mr. Muhammad Zar, It was added in this communication, a copy of which is on the record as Annexure `F' to the writ petition, that the petitioner had been sentenced to rigorous imprisonment for one month by Chaudhri Muhammad Zar, Magistrate of the 1st Class, under section 182 of the Pakistan Penal Code. The petitioner sent his reply to the show‑cause notice in writing, after which Mr. Bajwa passed an order on the 14th of February 1961 that the petitioner was dismissed from service, with immediate effect. He further directed that a case under sections 409/420 of the Pakistan Penal Code for cheating the Committee and for criminal breach of trust with regard to funds entrusted to him should be started against the petitioner. Against this order of Mr. Bajwa dated the 14th of February, 1961, a copy of which is on the record as Annexure `G', the petitioner presented an appeal to the Commissioner, Sargodha Division, Sargodha having by that time become an independent division. This appeal was heard by Mr. S. Afzal Ag a, Commissioner, Sargodha Division, and dismissed on the 15th of May 1961. In his order dated the 14th of February 1961, Mr. Bajwa had found the petitioner guilty of thirteen charges, i.e., his finding was that in addition to the charges which the inquiry officer had held proved against him, the petitioner was guilty of four more charges. Mr. S. Afzal Agha said in his order that though it was true that four charges more than those which the inquiry, officer had held to be proved against the petitioner had been taken into consideration by Mr. Bajwa, the Controlling Authority of the Town Committee yet no interference was called for because the fact that the nine charges mentioned by Mr. Muhammad Zar, were proved was enough to justify the order of dismissal of the petitioner.

3. The main question that arises in this case is whether this Court can issue a writ in this matter. That this Court has no jurisdiction either to dismiss the petitioner or reinstate him in his service is hardly open to question. Powers of dismissal of persons holding posts of Secretaries of Town Committees are under Article 45 (4) of the Basic Democracies Order, 1959 vested in the controlling authorities and for the purposes of the present case the controlling authority was the Collector of the District. It is obvious, therefore, that the order of dismissal cannot be set aside on the ground that it was passed by an authority incompetent to pass it. But though this Court cannot set aside the order on the ground that it was passed by an authority other than the one competent to pass it, as the order does not suffer from that defect, it is hardly open to question that if the order suffers from any other material defect the Court would be competent to issue an appropriate writ, the object of which writ would be to ensure that the officer who purported to dismiss the petitioner on the ground that he had not acted according to law does not himself contravene provisions of the relevant law.

4. The order of Mr. Bajwa passed on the 14th of February 1961 shows that the charges framed against the petitioner related not only to the period that he was the Secretary of the Town Committee of Sillanwali, but also to a prior period. For example, one finds that the petitioner was charged with having done something at Bahawalpur and having been guilty of misdeeds while working as the Secretary of the Municipal Committee, Sillanwali, and those charges were taken into consideration by the Controlling Authority for passing the order of dismissal of the petitioner from service. It appears to me that the petitioner could be removed from the post of Secretary, Town Committee, Sillanwali only for misdeeds committed when he was ‑holding that post unless under any provision of law or rules things done at some prior time could be taken into consideration. No law or rule was shown at the hearing which would allow matters which had occurred before the appointment of the petitioner as Secretary of the Town Committee of Sillanwali, being included in the charge‑sheet, the object of which was to remove the petitioner from the post of Secretary of Town Committee, Sillanwali. I would, therefore, hold that the misdeeds alleged to have been committed by the petitioner before his appointment as Secretary of Town Committee, Sillanwali, could not be taken into consideration when the question to be considered was whether he was fit to retain the post of the Secretary, Town Committee, Sillanwali.

5. From what I have said above, it will h become clear that some lapses alleged to have been committed the petitioner, which could not have been taken into consideration, were taken into consideration by respondent No. 1 for passing his impugned order whereby the petitioner was dismissed from service. Learned counsel for the respondents urged that even if the matter be confined only to lapses of the petitioner while acting as Secretary, Town Committee, Sillanwali, the order of dismissal entirely justified, and, therefore, the petition should be dismissed.) This argument of learned counsel for the respondents cannot be accepted for the simple reason that while hearing a writ petition this Court does not act as an appellate or a revisional authority with regard to an impugned order. It may be open to an appellate or a revisional authority to hold that even if the material which could not have been taken into consideration but was taken into consideration be excluded from consideration, the order against which the appeal or revision was presented would be justified, but it is not within the province of an authority which can only issue a writ to refuse to issue one on the ground that even if some material which had been taken into considera tion be excluded from consideration the impugned order would be justified. This opinion about the powers of this Court in exercise of writ jurisdiction was expressed by me recently in Sardar Sher Muhammad v. Rao Bashir Ali Khan and another (P L D 1962 Lah. 172) and nothing said during arguments in this case had made me change that opinion..

6. In view of what I have said above, I accept this petition and declare that the order of dismissal of the petitioner cannot be sustained because it was based on consideration of matters some of which could hot be taken into consideration. It will, of course, be open to the controlling authority to reconsider the case in the light of the above observations and pass such order as it deems fit because all that this order means is that the impugned order of the Controlling Authority was not justified because evidence which should not have been taken into consideration had been taken into consideration. I would further direct that the petitioner shall have his costs of this petition from respondent No ' A. R. KHAN, J.‑I agree K. B. A.