P L D 1966 Supreme Court 445 (PLP)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, is directed against an order of a Division Bench of the High Court of West Pakistan, Lahore summarily dismissing a petition for a writ of mandamus. The writ petition was filed by the appellant herein on the 2nd of June 1962, under clause 2 (4) of the Laws (Continuance in Force) Order, 1958, read with Article 170 of the late Con stitution, for the grant of a writ of mandamus upon the respondent bank directing it to restore the appellant, as ordered by the Government of West Pakistan by its order dated the 21st of September 1961, to his office of Accountant in the pay scale of Rs. 500‑25‑700 plus usual allowances or, in the alternative, to post him as Branch Manager in the pay scale of Rs. 500‑25‑750 plus permissible allowances and for a direction to pay to the appellant the sums alleged to have been illegally and wrongfully deducted from his pay on account of pension earned from the Government. The appellant, who had originally joined the Co‑operative Department as a Clerk in April 1927, and ultimately became a Head Clerk in the office of the Deputy Registrar, Co‑operative Societies, joined the respondent bank as an Accountant in the scale of Rs. 300‑15‑450 plus usual allowances on the 9th of July 1955, after prematurely retiring from the clerical service of the Co‑operative Department. Unfortunately the appellant did not come up to the expectations of the respondent bank, for, he was found to be unable to pick up the work and by his negligence lost the keys of an iron safe which was thereby rendered unserviceable. He was warned by the Secretary of the respondent bank on the 2nd of June 1958, but this warning did not have any effect. Later when the bank adopted the Civil Service Rules on the 16th of October 1958, the respondent bank resolved that Zalnul retired Government servants employed by the bank should be given their pay minus the amount of their pension. This, it is Multan alleged, further infuriated the appellant who threatened to move Central the Martial Law Authorities and tried to form cliques in the Co‑operative staff to disrupt the discipline amongst them. The Manager of Bank Ltd. the bank, therefore, reported his conduct to the Registrar of the Co‑operative Societies and asked that his services should be Rahman, terminated under rule 31(1) of the Civil Service Rules, as adopted by the bank with some amendments. The rule, as adopted, is in the following terms:‑ "(31) (1) In case of the Punjab Provincial Co‑operative Bank, and Societies of the following classes, namely, Central Co‑operative Banks, Co‑operative. Banking Unions, Co‑operative Mortgage Banks, Co‑operative Commission Shops, Co‑operative Stores, Co‑operative Multipurpose Societies, Co‑operative Mills and Factory Societies and all other co‑operative societies of which a registered co‑operative society is a member, the appointment, removal and dismissal of officers (other than members of the Committee) receiving as total emoluments Rs. 300 p. m. or more,‑‑shall be subject to the approval of the Registrar and the appointment and promotion of all officers (other than members of the committee} shall be subject to such directions as the Registrar may from time to time issue in regards to their technical and educational qualifications and as to the deposit of security. The Registrar shall also‑have power to direct punishment, suspension, removal or dismissal of any of such officers drawing emoluments ‑of Rs. 300 p. m. or more if he finds that the officer is not desirable in the best interest of the Society. The Society or the officer concerned may, within 30 days of such an order or direction of the Registrar, bring an appeal to the Commissioner, Development whose orders passed on appeal is final." Such a directive was issued by the Registrar, Cooperative Societies, West Pakistan, on the 1st of June 1959, on the ground that under rule 31 the appointment of an Accountant was required to be made with the prior approval of the Registrar and since this had not been done and the appellant did not possess any accounts qualification, his appointment could not be approved and, therefore, his services should be terminated. By a subsequent order of the 6th of July 1959, the Registrar, Co‑operative Societies, issued a corrigendum to this directive whereby another ground for termination of the appellant's service was added, namely that "his actions, as reported by the Manager, have proved detrimental to the interest of the institution." In pursuance of this directive the services of the appellant were terminated by the bank on the 3rd September 1959. The appellant preferred an appeal from this order of termina tion in terms of rule 31(1) to the Commissioner, Development. The appeal was allowed by the Government and the order of the Registrar, Co‑operative Societies, issued on the 6th of July 1959, was set aside. It was held that the respondent bank having adopted the Government service rules was bound by all of them and since under rule 14‑13 of the Punjab Civil Service Rules, as contained in C. S. R. (Pb.), Volume II, no order of dismissal, removal or reduction could be passed unless the person concerned bad been given a reasonable opportunity of showing cause against the action proposed to be taken, the action of the respondent bank was illegal. The Government's order, however, indicated that it was still open to the respondent bank to commence a regular enquiry against the appellant, if they so desired. This order was duly communicated to the bank by the Commissioner, Co‑operative Societies, West Pakistan, on the 29th of September 1961. The bank not only did not implement it but sought a revision of the order. This application of the bank was, however, returned to it, as no review or revision lay from the order of the appellate authority. Whilst returning the application the Commissioner, Co‑operative Societies, also pointed out that the appellant could not be treated as a re‑employed hand and, as such, his pension could not be deducted from his salary, as his service under the respondent bank was service under "a private autonomous institution". The Commissioner also requested the respondent bank to implement the Government's order, as the appellant had not till then attained the age of superannuation, According to the Commissioner the service book of the appellant showed that he would be completing 55 years on the‑22nd of November 1962. The respondent bank, in spite of the request of the Commissioner, Co‑operative Societies, did not re‑instate the appellant who then invoked the writ jurisdiction of the High Court on the 2nd of June 1962. The position taken up by the respondent bank is that the Punjab Civil Service Rules do not apply of their own force to employees of a co‑operative bank. ‑The rules apply only in so far as, and to the extent, they have been adopted in exercise of the powers given to Co‑operative Societies under section‑43 (1) of the Co‑operative Societies Act, 1912, and, therefore, under rule 31 (1), quoted above, no formal enquiry, as in rule 14‑13 of the Punjab Civil Service Rules, was contemplated. In the absence of any specific provision on the subject an enquiry into the conduct of the appellant was not necessary under the said rules. The writ petition was dismissed in limine by the High Court on the short ground that the remedy of the appellant lay in filing a civil suit for the recovery of his salary from the date of the A Government's order and not by a writ. Leave was granted in this case to consider whether this was not a fit case in which a writ ought to have been issued. It appears that under section 18 of the Co‑operative Societies Act a registered Co‑operative Society is a body corporate having a perpetual succession and a common seal with ‑ power to hold property, to enter into contracts, to institute suits and other legal proceedings and to do all things necessary for the purposes of its constitution. Under the Act certain other restrictions have also been placed on the power of such Co‑operative Societies‑and the Registrar, Co‑operative Societies, has been given power to hold enquiries into the constitution, working and financial condition of a registered Society and to inspect its books and after such enquiry or inspection he can, on the application of 3/4ths of its members cancel the registration of the society, subject to an appeal to the Provincial Government. Where the registration of a Society is cancelled, the Registrar may also appoint a competent person as the liquidator of the Society to wind up its affairs. Apart from this, there is nothing in the Co‑operative Societies Act which makes it incumbent upon the Society to carry out other directives or orders of Government. Section 43 of the Act gives power to the Provincial Govern ment to frame rules for carrying out the purposes of the. Act, but our attention has not been drawn to any rule by which compliance of appellate orders passed by authorities designated by the rules becomes incumbent upon the Society. In the absence of any such statutory duty cast upon a registered Co‑operative Society we are clearly of the view that a writ of mandamus did not lie to enforce compliance of the appellate order of the Provincial Government directing re‑instatement of the appellant. At the time the writ petition was heard the Laws (Continu ance in Force)‑Order held the field. Under clause (4) of Article 2 of this Order the Supreme Court and the High Courts were given power to issue only certain specified writs namely, the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. The power given by Article 170 of the late Constitution to issue directions and orders was not retained by clause (4). The power was thereafter restricted to the issuance of the writs specified in the above‑mentioned clause and, as explained in the case of the B State v. Dosso (1) P L D 1958 S C (Pak.), even these restricted writs could be issued only in respect of rights given under the laws continued in force by Article 4 of the Laws (Continuance in Force) Order. "The position", as explained by Munir, C. J., "in regard to future applications for writs, therefore, is that they lie only on the ground that any one or more of the laws mentioned in Article 4 or any other right reserved by the Laws (Continuance in Force) Order has been contravened." In the present case the Co‑operative Societies Act was one of the laws so continued in force, but under it there was neither any statutory duty cast on a registered Co‑operative Society nor was any statutory right conferred upon any one to secure compliance with appellate orders of Government under the Act or the rules framed thereunder. Apart from this, 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 C authorities on the subject appear to indicate that this writ ha been utilised only for ordering restoration to offices which are either corporate or elective offices or municipal positions. (vide Pakistan v. Naseem Ahmed (P L D 1961 S C 445 ) 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. Again in the case of the Lahore Central Co‑operative Bank Limited v. Pir Saif Ullah Shah (P L D 1959 S C (Pak.) 210). it was clearly laid down that a writ was not a proper remedy in case of a wrongful dismissal of a co‑operative bank employee. In this case the passage in paragraph 162 of Halsbury's Laws of England was also quoted with approval and it was observed: "The Superior Courts in England have not found it possible to extend the scope of mandamus to restoration to office in private corporations. All the offices mentioned in the list contained in the quotation above appear, to be of a public nature and to have a quality which is entirely foreign to that belonging to the post of Commercial Manager in a Co‑operative Bank. That post was clearly of a contractual nature, falling within the category of employment, and having nothing of the true character of a statutory or corporate office." In the case of Pakistan v. Mehrajuddin (1) P L D 1958 S C (Pak.) 147 it was pointed out that "in the absence of proof that any statutory duty was involved or that any legal right was being enforced or that the, D performance of a public duty was being claimed it is clear that a mandamus could not have issued consistently with the relevant practice and precedent." Lastly in the case of Faiz Ahmad v. Registrar, Co‑operative Societies, West Pakistan, Lahore(2) P L D 1962 S C 315 it was again indicated that a prayer for a writ of mandamus would be wholly misconceived for the restoration to an office of a clerk under a Co‑operative Bank. In the last‑mentioned case an argument had also been advanced to the effect that since the bank concerned bad adopted the Government Service Rules, the constitutional guarantees that were given to Government servants became also available to em ployees of the Co‑operative Bank, but this argument was repelled and it was held that this was a wholly erroneous assumption, for the Civil Service Rules were made applicable to the employees of such a bank "not by virtue of any statutory provision but purely by the adoption thereof under the bye‑laws of the Co‑operative bank, which were no more than the rules laid down for the guidance of the bank itself. These rules, therefore, did not create any right in the appellant to hold his office in accordance with them nor did the said rules automatically extend the protection given to a Government servant under the constitutional provisions". The writ was also not the appropriate remedy for the recovery of the sums alleged to have been wrongfully deducted from the appellant's salary, for, a mandamus does not lie to enforce an obligation for payment of money arising merely under a personal contract between private parties. (Vide Benson v. Paul (3) 25 L J Q B 274 ). In this view of the matter we are clearly of the opinion that in the facts of the present case the application for a writ of mandamus before the High Court was wholly misconceived and was rightly dismissed. The appellant's remedy, as observed by the High Court, was by a suit in which he could also have claimed arrears of salary, for, service under the co‑operative bank being of a contractual character under a private autonomous institution the salary attached to such a post would not be in the nature of a bounty. This appeal is, accordingly, dismissed, but having regard to the fact that the appellant is a dismissed employee an no learned counsel has actually appeared at the hearing for the respondent bank we make no order as to costs. K. B. A. Appeal dismissed.