P L D 1967 Lahore 408 (PLP)

"The question which requires decision in this case is whether the petitioner had a right .of personal hearing in the appeal before the Commissioner. Admit. Notice." Accordingly, the controversy in this petition is now confined to the validity of the Commissioner's appellate order dated the 9th of February 1961, on the short ground that the petitioner was not afforded personal hearing at the appellate stage. The Chairman's order dismissing the petitioner from service is, therefore, beyond any controversy.

6. It is not controverted that the petitioner was afforded full opportunity by the inquiry officer (Secretary, Municipal Committee) to meet the charges against him. He was also allowed to engage counsel. Petitioner's learned counsel, however; straneously contended before us, that the petitioner ought to have been allowed the same opportunity even at the appellate stage, failing which the resultant "order dismissing his appeal is vitiated. In support of this contention, reliance was placed on rule 7 of the West Pakistan Local Council (Appeal) Rules, 1961, which inter alia allowed "opportunity to the appellant of being heard in person or through his recognized agent, if so desired by him. Alternatively, it was argued that if the above rule is not applicable to the petitioner, even then it is implicit in t‑he right of appeal, that the appellant shall be afforded opportunity for personal hearing, for otherwise the right of appeal becomes illusory. Support for the second contention was sought in the two judgment of the Supreme Court in Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45) and Messrs Faridsons Ltd. v. Pakistan (P L D 1961 SC 537).

7. A short answer to the first contention of the petitioner's learned counsel is, that rule 7 of the 1961 Rules is not applicable in the case, firstly because the Rules came in operation on the 5th of March 1961, when the petitioner's appeal before Commissioner was already disposed of "Secondly, the contention entirely overlooks the provisions of rule 1 (3) which reads:‑ "The Rules shall apply to all appeals .except the appeals preferred by the servants of the Local Councils in matters relating to the conditions their service." This expressly excludes the application of the Rules to appeals arising out of the service matters. The petitioner's case, on the other hand, was governed by the Municipal Servants (Punishment Appeal) Rules, 1948, framed by the Provincial Government under section 240 of the Punjab Municipal Act, 1911. These Rules set out with great particularity the procedure to be followed it, departmental proceedings against municipal employees in the former Province of the Punjab, on charges of misconduct. Rule of these Rules provides that no order of dismissal, etc. shall made against a municipal employee, "unless he has been given reasonable opportunity of showing cause against the action proposed to be taken in regard to him". Rules 4 and 5 provide for the framing of specific charges and an opportunity to the dilinquent employee to say whether or not he admits those charges and the holding of enquiry in respect of charges which‑ are not admitted. Rule 6 provides for the production of evidence in defence and the report of the Enquiry Officer on each charge As pointed out already these Rules‑were amply satisfied in the petitioner s caw. Rules 11, 12 and 13 relate to the filing and disposal of appeals in such cases. As they have a material bearing on the petitioner's case, it would be advantageous to reproduce them in so far as they are relevant. They read: "11 (1) An officer or servant removed or dismissed from a substantive appointment may, within thirty days from the order of removal or dismissal appeal to the Commissioner if he has been dismissed by a committee of the 1st class or to the Deputy Commissioner if he has been dismissed by a committee of the 2nd class unless the: Deputy Commissioner is himself member of such committee or the removal or dismissal is that of Secretary, Engineer or Medical Officer of Health in which cases the appeal shall lie to the Commissioner. (2) .. "12 (1) "(2) Every appeal shall contain all material statements and arguments relied on by the applicant, shall contain no dis respectful or improper language and shall be complete in itself. "

13. The decision of the Commissioner or the Deputy Commissioner as the case may be under rules I 1 and 12 shall be final, but Government may, if satisfied that a failure of justice has occurred in any case, revise any order of the Commissioner or the Deputy Commissioner within 6 months of the date of such order."

8. It is manifest that the Rules allow a dilinquent municipal employee, personal hearing and also in certain circumstances to engage counsel, during the inquiry stage but do not allow any such opportunity at the appellate stage. Rule 12 (2), however, B requires the grounds of appeal to comprise not only statement of the case, but also the written arguments upon which the appellant relies in support of his appeal. The question that then falls for determination is, whether notwithstanding written arguments in the grounds of appeal, a personal hearing is necessary to satisfy the rules of natural justice and further whether the petitioner can claim right of personal hearing quite apart from these Rules which are regulatory of the procedure at the inquiry and the appellate stage?

9. It can scarcely be controverted that the petitioner's appointment to the post of Sanitary Inspector and his dismissal from that post were purely administrative matters. So far as we are aware, in appeals relating to service matters, there are no rules or instructions providing for the personal hearing of the appellant. Secondly a comprehensive statement of fact and written arguments in support of appeal as required by rule 12 (2) of the 1948 Rules in our opinion, amply satisfy the requirements of natural justice. The two Supreme Court judgments relied upon by the petitioner's learned counsel in support of right of personal hearing at the appellate stage as will seen presently proceeded entirely different facts.

10. In the case of Mrs. Dina Sohrab Katrak, the appeal in the Supreme Court arose out of an order of the Controller under the Sind (Requisition of Land) Act, 1947, requisitioning certain premises situate in Karachi. The Act did not provide for any notice by the Controller before requisition of the premises. Section 10 of the Act, however, provided for certain proceedings in the nature of appeal to the Provincial Government against the order of requisition. Subsection (2) ibid read as follows:‑ "The provincial Government shall then call for a report of the case from the Controller and after perusing such record and making such further inquiry as it thinks fit, may reverse, modify or confirm the order made by the Controller." It was conceded on behalf of the Chief Commissioner, who, at the relevant time exercised the powers of the Provincial Government in relation to the city of Karachi, that no opportunity of hearing in support of the appeal was given to the owner of the requisi tioned premises. It was, however, argued that section 10 (2) of the Act did not expressly provide for such hearing and that the representation in appeal presented under section 10 (1) and the report called for, from the Controller under section 10(2) furnished adequate material for a decision to be taken by the Chief Commis sioner. In the High Court the same argument was repelled and a writ was issued against the Chief Commissioner for a rehearing, of the appeal after notice to the parties on the maxim, audi alteram partem being a rule of natural justice which applied not only to proceedings before the Court but also to all cases before all tribunals where the elements of judicial consideration and decision is involved. Their Lordships of the Supreme Court upheld the above view and .observed that the mere consideration ‑of memorandum of appeal along with the report of the Controller was not sufficient for a proper decision of the appeal by the Chief Commissioner and further that right of hearing is implicit in every right of appeal.

11. The case of Messrs Faridsons Ltd. arose out of the suspension of the registration of the appellant firm by the Chief Controller of Imports and Exports, under clauses 4 (i) and (ii) of the Registration (Imports and Exports) Order, 1952, issued under the Imports and Exports (Control) Act, 1950, for the alleged malpractices by the appellant firm as a result of some ex parte enquiry without affording any opportunity to the firm of answer ing the allegations against it. Their Lordships of the Supreme Court again applied to maxim audi alteram partem to the proceed ings before the Chief Controller of Imports and Exports which not having been complied with, set aside the impugned order. The order of suspension of registration was set aside on the further ground that it did not fall within the four corners of clause 4 .of~ the 1952 Order.

12. The principle laid down in the above two cases are unassailable. But the real question is whether this principle is attracted to the instant case? For a proper answer to this question, regard must be had to the nature of the right involved in the two precedent cases and, the petitioner's right, if any, in the instant case, The case of Mrs. Dina Sohrab Katrak concerned a citizen's right in property which was guaranteed by the Constitution and which could not be acquired or otherwise interfered with except for a public purpose and for adequate compensation; Consequently, there was a lis between the owner of the property and the requisitioning authority, namely, the Controller. It was also a common ground between the parties in that case that the owner was not afforded any opportunity of being heard either before the actual requisition of the premises or at the appellate stage. Simi larly, in the case of Messrs Faridsons Ltd. v. Pakistan the right in question was the appellant's right to carry on trade which again was guaranteed by the Constitution though it could be regulated by law. By the suspension of registration, the appellant firm was not only deprived of the import licence for the merchandize which was its main business, but had been virtually thrown out of business.

13. In the instant case, on the other hand, the petitioner entered service at a time when the Punjab Municipal Act, 1911, held the field. His tenure of office from inception was "ail pleasure". Cf. Muhammad Shafi v. Municipal Committee, Murree (P L D 1953 Lah. 163). In that case, in a suit, a dismissed employee of a Municipality was refused relief after an examination of the relevant provisions of the Act, and the case‑law and it was held that his remedy lay in an appeal to the Commissioner and a revision to the Government and in a suit. The repeal of the Act makes no change in the precarious tenure of a municipal employee. Under Article 45 of the Basic Democracies Order, 1959 read with section 29 of the Municipal Administration Ordinance, 1960, h remained liable to be dismissed or removed from service at any time by the Municipal Committee, subject to the provisions of the Order and the Rules framed thereunder. There is no provision in the Order, or the Act comparable to section 240 (3) of the Government of India Act, 1935 or Article 181 of the late Constitution providing safeguards against arbitrary dismissal from service. This Constitutional provision is really the foundation for grant of redress to Government Servants against arbitrary or wrongful dismissal. It is firmly established proposition that in relation to persons holding office "at pleasure" no such right can be founded on a departmental rule. See Munir, C. J.'s judgment in Noorul Hassan's case (P L D 1956 S C (Pak.) 331) which followed Privy Council's decision in Venkata Rao's case (A I R 1937 P C 31).

14. Another material factor which distinguishes the petitioner's case from the two precedent cases is, that as pointed out already, the petitioner had full opportunity to answer the charges and was even represented by counsel during proceedings before the inquiry officer, before he was dismissed by the Chairman. No such opportunity was afforded to the aggrieved parties before the impugned orders were passed in the two precedent cases and therein lies the whole distinction between the precedent cases and the instant case.

15. Moreover, the concept of natural justice is not capable of any precise definition. Whether or‑ not the Rules of natural justice have been violated in a particular case must be determined in the light of the rights violated and the constitution of the authority which has to function in accordance with the Rules laid down either by the Legislature or any other Rules. The essential feature of the principle of natural justice is merely that no person shall be deprived of any right by a judicial or quash judicial order without a hearing before an independent authority, not interested is the proceedings or in any party to the proceed ings. As pointed out already the exercise of power to appoint or dismiss a servant holding office "at pleasure" is the exercise of an administrative and not of judicial power. The petitioner does not base himself upon any constitutional or statutory safeguard nor his grievance is that he has been condemned unheard. His grievance merely is that he ought to have been given a second hearing at the appellate stage and also allowed to engage counsel. But the Rules which applied to him do not envisage any such opportunity. A reference with advantage be made to a recent case from the Indian Jurisdiction, reported in Jogendra Chandra Talukdar v. The Deputy Commissioner (A I R 1962 Assam 28) where it was held that the Government was under no obligation to grant a hearing at the appellate stage to a Government servant who has been dismissed after a due enquiry. There were some Rules bearing on the subject, but they were held to be in the nature of instructions not having the force of statutory Rules as the Civil Service (Control, Classification and Appeal) Rules,

55. The petitioner's case stands on a much weaker footing, for as pointed out already, rule 13 of the 1948 Rules (quite apart from the fact, that it is not a statutory rule) does not provide for my, opportunity of being heard. And having regard to the circumstances of the case, rule 12 (2) which provides for written arguments in the grounds of appeal amply satisfies the requirement of natural justice.

16. This should affectively dispose of the limited point on which the writ petition was admitted. However, learned counsel for the petitioner canvassed the larger question with considerable earnestness, namely, that mandamus would lie to restore to his office ‑a municipal employ who has been wrongfully removed from service. For this proposition learned counsel mainly relied upon monograph 162 of Halsbury's Laws of England, Volume 11, 3rd Edition, which reads:- "Restoration to office.‑An order of mandamus will lie to compel the restoration person to an office or franchise, whether spiritual or temporal, of which he has been wrongfully dispossessed, provided the office or franchise is of a public nature; as for example to the office. of mayor, alderman, recorder, town clerk, burgess or other municipal position, Learned counsel placed particular emphasis on the expression "or other municipal position" and urged that this would cover all employees of a Municipality. This argument, we have no doubt, is based on a superficial reading of the above statement of law. The reference in the above monograph is to elective offices, held by mayor, alderman, recoder, etc., and the expression "or other municipal position" has been used ejusdem generis with the preceding elective municipal offices. The matter is made clear beyond any doubt by the immediately following monograph 163 which for the material purpose reads:‑ " . Mandamus has accordingly been issued to admit to the office of alderman of the city of London a candidate duly elected at a court of wardmate; to admit to the office of registrar of a corporation the candidate who had obtained they majority of legal votes; to admit to the directorship of a registered company the candidate elected by a show of hands; and to admit to the office of churchwarden a duly elected churchwarden. When, however, the office in question is neither a corporate office nor a permanent one, but one which merely depends upon the will of a fluctuating body, no mandamus will lie to restore or admit thereto." In the footnote, there is a reference to Evans v. Hearts of Oak Benefit Society ((1886) 12 Jur. N S 163) where it was held that the secretaryship of the society was not an office in respect of which mandamus would lie, the office being a precarious office depending on the will of a' fluctuating body. That the employee of Municipal Committee as a class, are distinct from the holders of elective positions is further made clear by monographs 85 to 89 under the heading "County Offices" in Halsbury's Laws of England, Volume 25, 3rd Edition. These monographs catalogue all the ministerial and technical officers employed by County Councils and who hold office "at‑ pleasure". They include Medical Officers and sanitary staff. It is noteworthy that mayors, alderman, etc., who hold elective positions in County Councils for fixed terms, are not listed among such persons. From the above comparative examination of the relevant monographs, it is obvious that the petitioner did not hold "any municipal position" within the meaning of monograph 162 set out above so as to admit of a writ of mandamus to restore him to the post of Sanitary Inspector from which he was dismissed. The distinction between the incidents of elective offices and a ministerial or sectarial offices in a corporate body were underlined in a recent Supreme Court's judgment in Maqbool Elahi v. Khan Abdur Rehman Khan (P L D 1960 S C 266). In that case their Lordships held inter alia that while the admission of a duly qualified Director to the Board of Directors of a public company (which is an elective office) is within the scope of a writ of mandamus, so far as the office of the Secretary is concerned, it would not be within that principles. Indeed the Supreme Court refused mandamus to various employees of the Co‑operative Banks in Zainul Abidin v. Multan Central Co‑operative Bank (P L D 1966 S C 445); Lahore Central Co‑operative Bank v. Par Saifullah Shah (P L D 1959 S C (Pak.) 210) and Faiz Ahmad v. Registrar, Co‑operative Societies (PLD1962SC315) And affirmed the principle earlier laid down in Pakistan v. Nasim Ahmad (P L D 1961 S C 445) that mandamus would lie only to compel the restora tion of a person to an office or franchise of a public nature and that post in a Government department or for that matter in a Bank is not such office. In each of these cases, the aggrieved employee based himself on the violation of certain departmental rules which was an adapted version of the Civil Service Rules applicable to Government servants. Every Municipal Committee created under the Punjab Municipal Act was a body corporate vide section

18. The position remains the same under section 8 of the Municipal Administration Ordinance. Therefore, the principle laid down in the above three cases is fully applicable to the petitioner and he cannot claim redress in writ jurisdiction. The fact that the petitioner was a municipal employee and not that of a bank would not make any difference in principle, for the essence of the matter is the precise nature of the employment or the tenure of the petitioner. Therefore, no writ can properly issue to grant the petitioner any redress.

17. Before we part with this case, we would like to enter a caveat. We should not be understood as saying that a Municipality or another corporate body is absolutely immune from the writ jurisdiction in the matter of grant of redress to an aggrieved employee even if the impugned order suffers from an inherent vice and is for that reason void ab initio. Such a case would be an exception to the general rule laid down in the cases of Zainul Abidin, Pir Saifullah Shah and Faiz Ahmad. Indeed the case of Maqbool Elahi v. Abdur Rahman Khan, notice already furnishes a remarkable example of both the general rule and the exception. In that case the Supreme Court issued a direction in the nature of mandamus restoring three directors (who were appellants before their Lordship) for their rightful place in the Board of a company, in place of the three co‑opted new Director whose co‑option was held to be illegal. The three newly‑co‑opted Directors, however, in the purported exercise of their authority as the Directors suspended the Secretary of the Company (who was a ministerial officer of the Company) from service. Their Lordships while reiterating the general principle earlier laid down in the case of Pir Saifullah Shah, held that the suspension from service of the Secretary, by the three newly‑co‑opted Directors was illegal and, therefore, set it aside. In that case, the Order suspending the Secretary from service plainly suffered from inherent vice having been made by Directors who assumed their office illegally and, were therefore, incompetent to make the order. In the instant case, there is no allegation that the Chairman of the Municipality or the Commissioner were not competent to order the petitioner's dismissal or to decide his appeal as the case may be There may be other exceptions to the general rule, but indeed the instant case is not one of them.

18. For the foregoing reasons, therefore, we do not find any merit in this writ petition which is dismissed. However, we make no order as to costs. K. M. A. Petition dismissed.