P L D 1964 (W (PLP)

(b) That the case of the petitioner does not fall within the mischief of section 25 of the Basic Democracies Order, 1959 because according to the admitted facts he is neither guilty of the abuse of power nor is he guilty of any misconduct in the discharge of his duties as a member. (c) That the allegations against the petitioner of having used violent and provocative language are altogether baseless and false and even if correct the case of the petitioner in view of the said allegations does not fall within section 25, sub section (2) (c) of the Basic Democracies Order, 1959. (d) That the order of respondent is clearly in contravention of rule (4) of the West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960 because the respon dent has not given to the petitioner any show‑cause notice before passing the impugned order. It is clearly violative of the aforesaid rule which is imperative and mandatory in nature and has also contravened a well‑known rule of natural justice that too one Can be condemned without being beard. (e) That the respondent has removed the petitioner from the said Membership under section 25 (4) (a) of the Basic Democracies Order, 1959, which is clear from the language in Annexure `A' but under the aforesaid provision the petitioner has trot incurred any disqualification or disability. (f) That the meeting in question was void and illegal because it has been convened without any reference made by the Controlling Authority as is envisaged by rule 4 of the West Pakistan Local Council (Resignation and Removal of Members) Rules, 1960 nor the Controlling Authority had supplied to the petitioner the copy of any such reference under the said rule. (g) That the meeting in question was further illegal because the Members had failed to elect special Chairman for the meeting as is laid down in mandatory terms under rule 6 (2) of the aforesaid rule. (h) That the members of the meeting bad not given to the petitioner any opportunity of making representation nor they have given to him any opportunity of being heard in the matter, before passing their resolution. This omission of the principle is clearly in contravention of rules 6 (4) (5) of the aforesaid rule. No copy of the resolution was supplied to the petitioner by the Members of the meeting and this is in contravention of rule 6 (7) of the aforesaid rules.

5. We regret to note that in spite of proper service on the respondent, he was not cared to send a written statement, nor has he cared to make any arrangement for representing him at the hearing of the case. We‑ are informed that Mr. Fateh Khan Bandial, who passed the impugned order, has since been trans ferred and presumably his successor realising that there bad been a complete departure from the procedure required to be observed for removal of a member did not consider it proper to contest the case. Be that as it may, the fact remains that when an order of a public functionary is challenged in writ petition it is the duty of that functionary, and in case that official is transferred, his successor to send a written statement touching the points raised in the writ petition and give a clear indication whether they contest the writ petition and in case they do so, to arrange for the representation of the case.

6. Mian Younas Shah, learned counsel for the petitioner vehemently argued that the impugned order was wholly vitiated, in that the statutory procedure prescribed by the West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960, (hereinafter to be referred to as the Rules for the removal of the Member of "Local Council") (which term includes Member of Town Committee) has been violated. The principal objections raised against the impugned order were:- (1) That a Member of a Local Council can be removed under section 25 of the Basic Democracies Order, 1959 (18 of 1959), in the three contingencies as enumerated in (a), (b) and (c) and that under clause (a) an elected Member can be removed if he was guilty of an abuse of power or of any misconduct !n the discharge of his duties as a member, . . . . ." It was argued that the "misconduct" complained of must have been committed in the discharge of a duty as a Member and that in the instant case even if the allegations in regard to the use of the provocative and contemptuous language used by the petitioner against a Member were to be taken as correct, the petitioner was not functioning as a Member but as a citizen. (2) That proceedings for removal of a Member could be initiated only in the manner prescribed by rule 4 of the Rules, and sub‑rule (1) of rule 4 makes it incumbent on the Control ling Authority to initiate the proceedings "by notice in writing, call upon such member to show cause, within fourteen days of the receipt of the notice, why he should not be so removed". It was complained that under sub‑rule (1) the Controlling Authority was obliged to send a notice in writing to the petitioner to show cause within fourteen days of the receipt of notice, and that no such notice was ever issued to the petitioner. (3) That under sub‑rule (2) a member on receipt of a notice under sub‑rule (1) is required to offer his explanation "or he may resign his office." Under sub‑rule (3) the Controlling Authority is empowered not to take any action against a member if he considers the explanation to be satisfactory or accepts his resignation and in case the Controlling Authority considers the explanation not to be satisfactory or the resignation of the member is not accepted, the Controlling Authority under clause (b) of sub‑rule (3) shall make a reference for taking proceedings as required by clause (4) of Article 25 of the Order. It was complained that the failure to issue notice had deprived the petitioner of his statutory rights to offer explanation and satisfy the Controlling Authority about the hollowness of the allegations against him or else that petitioner could have resigned and thereby avoided the stigma of removal or incurring the penalty of contesting election for a period of three years.

7. It was also argued that under rule 4 (3) (b), the Controlling Authority can make a reference for taking proceedings as required by clause (4) of Article 25 of the Order, only after complying with the essential preliminaries of a notice under rule 4 and the explanation if any has been received.

8. It was further complained that the statutory procedure prescribed by rule 6 of the rules had also been violated, in that according to sub‑rule (1) of that rule, where a reference has been made by Controlling Authority under clause (b) of sub‑rule (3) of rule 4, the members of the Town Committee, "shall meet within such period at may be specified by the Controlling Authority for the consideration of the reference." In other words, the meeting to consider the reference is to be convened within the period specified by the Controlling Authority. Sub‑rule (2) of rule 6, renders it obligatory that before transaction of the business at the special meeting, the members "shall elect one of them as the Chairman of the special meeting." In other words; the special meeting before transacting any business must firs elect one of the members as a Chairman for the special meeting and that a Chairman of the Town Committee as such is not to 49 ipso facto as the Chairman of the Special Meeting. Sub‑rule (4) empowers the members to "take into consideration any representation submitted by the member concerned in this behalf." Under sub‑rule (5) the Members who are present at the special meeting are empowered "to take such legal advice as they may deem necessary and may allow any legal practitioner to appear before them on behalf of the Members concerned or the Controlling Authority." Sub‑rule (6) says that after the formalities stated earlier had been complied the members "shall finally pass a resolution to the effect that the member concerned is or is not liable to be removed under Article 25 of the order. Under sub‑rule (7) the copy of the resolution passed under sub rule (6) "shall within three days of the passing of the resolution be forwarded to the Controlling Authority and the member concerned." It was complained that even this sub‑rule has been infringed, in that no copy of the resolution was forwarded to the member at all, muchless within three days.

9. The learned counsel finally argued that even the public functionaries who are acting in administrative capacity are bound under the principle of natural justice to afford a fair hearing to a person before adverse decision affecting his rights is given.

10. It is clearly manifest from reading of rules 4 and that an elaborate procedure had been prescribed for initiating proceedings for removal of member and sub‑rule (1) of rule 4 in most unequivocal terms requires the Controlling Authority that "it shall, by notice in writing, call upon such member to show cause, within fourteen days of the receipt of the notice, why he should not be so removed," when the Controlling Authority is of the opinion that any member has rendered himself liable for removal from membership. In other words the show‑cause notice is a must of initiating the proceedings and since this mandatory provision of law does not appear to have been observed, the impugned order is vitiated on that score alone. Again under sub‑rule (3) of rule 4 a most valuable right of offering explanation, as contemplated by sub‑rule (2) of rule 4, has been denied, and on that score also the whole proceedings, resulting in the removal of the petitioner from membership, and his future disqualification from contesting election to the B. D. for a further period of three years are wholly vitiated. There has also been violation of rule 6 under which (1) a special meeting "shall meet within such period as may be specified by the Controlling Authority for the consideration of the reference", (2) the members of the special meeting before transacting business shall elect one of them as the Chairman of the special meeting, and (3) there has been violation of sub‑rule (4) of rule 6 under which the members arc required to "take into consideration any representation submitted by the member concerned in this behalf".

11. There is another aspect of the case, and it is that the function of removing a B. D. Member is essentially of judicial nature and not purely executive act and the function is to be discharged as prescribed by the Rules itself and in no other manner and, therefore, any substantial departure from the Rules would invoke 4 writ of certiorari.

12. The rule of natural justice has been considered as an Indispensable preliminary even when the authority concerned is acting in a purely administrative capacity when adverse decisions affecting rights of the party concerned are given in the absence of the party. If any authority is needed in support of this view, I would not go beyond the decision of the Supreme Court in Messrs Faridsons Ltd. Karachi and another v. Government of Pakistan and another (P L D 1961 S C 537). In that case the appellants had sought a writ of certiorari or some other appropriate writ from the High Court of West Pakistan, to call in question the orders of the Chief Controller, by which the Import Registration Certificates of the two companies and the Provisional Export Registration Certificate of Messrs Faridsons Ltd., were suspended while Messrs Friedrike Ltd. were held debarred from getting any Export Registration Certificate, without affording an opportunity to the appellants of being heard. The learned Judges of the High Court expressed the view that the rule of natural justice which was a peculiar feature of the common law of England was not applicable to this country. It was further held that the Chief Controller was not required by law to act judicially. The conclusion was, therefore, reached that the order passed by the Chief Controller was not subject to judicial review. On appeal to the Supreme Court a writ of certiorari was issued to quash the proceedings of the Chief Controller whereby the franchise was withdrawn from the two appellant‑companies. The Supreme Court further directed that a writ of mandamus should be issued requiring that the Chief Controller should make a fresh order "after giving the affected Companies a hearing strictly in accordance with the relevant law." S. A. Rahman, J., delivering the main judgment, at page 554, observed that the maxim: audi alteram partem. "No man shall be condemned unheard", as laid down in Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45), "applies to judicial as well as administrative bodies, specially where the proceedings taken may affect the person or property or other rights of the parties concerned in the dispute. Even if therefore the proceedings before the Chief Controller were neither strictly judicial nor even quasi‑judicial in character, the principle of natural justice embodied in the above maxim could be called in aid by the appellants, The High Court was in error in holding that this principle was a peculiarity of English Law and could not be invoked in this country where statute law covers the relevant field of litigation. This principle is of universal application where the statute itself prescribes no specific procedure for ascertaining the necessary facts and no express exclusion of the principle can be spelt out of the words of the statute." His Lordship then quoted the following observation of Bylet, J., in Cooner v. Wandsworth Board of Works (143 N R 414):- "Although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the Common Law, will supply the omission of the Legislature." 13. 1t follows from the above authorities that the removal of the petitioner and his further disqualification are vitiated for non‑observance of the mandatory procedure prescribed by rules 4 and 6 of the rules. We consequently issue a writ of certiorari, quashing the order of removal of the petitioner as a member and his disqualification for a period of three years, with costs. Pleader's‑fee Rs.

50. K.B.A.