P L D 1957 (W (PLP)

MUHAMMAD BACHAL, J.

The petitioner was appointed as Assistant Tax Inspector Larkana Municipality on the 1st September 1950 and was confirmed in the said post on the 4th April 1951. On the 14th March 1952-, the Administrator Larkana Municipality called for his explanation on two charges of misappropriation of Rs. 200 and insufficient discharge of duties. As he failed to give any explanation, the case was referred to Anti-Corruption Police. The petitioner was tried under section 409, P. P. C. and wa, suspended on the 23rd June 1952. On the 4th September 1952, before the conclusion of the trial, he was dismissed on the above two charges. On the 27th November 1952 the petitioner w4s acquitted in the case under section 409, P. P. C. On the 12th December 1952,- the Administrator Larkana Municipality reviewed the order of his predecessor under section 35 (2), Municipal Boroughs Act, 1925, hereinafter referred to as the Act. He ordered his reinstatement having regard to the fact that his predecessor dismissed him without regular inquiry. The petitioner worked as Sub-Sanitary Inspector, on the 30th May 1953 he resigned the post under protest. On the 23rd November 1954, the petitioner was appointed by Chief Officer as Assistant Tax Inspector in one month's vacancy. On the 24th December, he was continued in that appointment. On the 5th February 1955 the Chief Officer ordered the period intervening between the date of his resignation and the date of his re-employment as leave without pay. On the 19th May 1955, the Chief Officer ordered that he should be treated as senior to Mr. Abdul Khaliq. The petitioner filed his affidavit that Abdul Khaliq was a permanent Assistant Tax Inspector who had been confirmed before the order dated 19th May 1955. The respondents did not file any rejoinder to this affidavit though opportunity was given to file the same before the judgment. On the 29th i December 1955, the petitioner was promoted as Tax Inspector. On the 26th July 1955, the Chairman of the Municipal, Administrative Committee after reciting the facts stated above held that the order of the Administrator reinstating the petitioner was illegal as the dismissal orders were not set aside by the Revenue Commissioner or the Civil Court. Disagreeing with the note of the legal Adviser, he ordered the Chief Officer to take immediate steps for the termination of the services of the petitioner. Under section 34 (1) C of the Act, the Chief Officer is competent to appoint a servant to a post the salary of which does not exceed Rs.

50. Under rule 94 (2) (a), framed by the Municipality under section 58 (a) and (b) of the Act, the Chief Officer is competent to dismiss any Municipal employee whose substantive pay does not exceed Rs. 30 p. m. and with the approval of the President any Municipal employee whose substantive pay exceeds Rs. 30 p. m. but does not exceed Rs. 50 p. m. On the 27th July 1956, the Chief Officer terminated the services of the petitioner on the ground that he was not a fit person to continue in Municipal service. The petitioner has prayed for the issue of a writ in the nature of certiorari to quash the order and a writ in the nature of mandamus for his reinstatement. Rule 11 of the Larkana Municipality framed under section 58 (f) of the Act regarding determination of the mode and conditions of appointing, punishing or dismissing the servants provides as under :- "No officer or servant shall be dismissed without a reasonable opportunity being given to him of being heard in his defence." Rule 9 provides as under :- "Every appointment made by or on behalf of the Municipality is made subject to the understanding that the person appointed accepts and agrees to abide by all Municipal rules and is liable to summary discharge, if he fails after warning to comply with any of them." Section 58 (h) of the Act runs as under :- "A Municipality shall make rules not inconsistent with this Act . . . . . . Regulating the period of service of its officers and servants and determining the conditions under which such officers and servants or any of them shall receive pensions, gratuities or compassionate allowances on retirement or on their becoming disabled through the execution of their duty, and the amount of such pensions, gratuities or compassionate allowances, and prescribing the conditions under which any gratuities or compassionate allowances may be paid to the surviving relatives of any such officers or servants whose death has been caused through the execution of their duty." Rule 5 framed under this runs as under :- "Rule 4 (sic). Withdrawal from Municipal service.-No persons paid from the Municipal fund shall be at liberty to resign his office or to withdraw himself from the duties thereof, unless expressly allowed to do so in writing by the authority which has the power to appoint him, or unless he shall have given such authority, one month's or, if his pay exceeds Rs. 15 per month, three months' notice of his intention to do so, and every person who shall resin or withdraw himself without such leave or notice shall be liable to forfeit to the Municipality a sum equal to one month's or three months' pay, as the case may be." Rule 6 runs as under :- "No permanent Municipal Officer or servant shall be discharged from Municipal service without being given one month's notice. This shall not apply to cases of dis?missals." It is the contention of the respondents that the petitioner's services were terminated under rule

6. The learned Advocate for the petitioner has argued that the petitioner was dismissed under rule 11 mentioned above. We consider that this con?tention ought to prevail. The petitioner was not discharged for failure to comply with any rules after warning. But his services were termi?nated for misconduct. The learned Advocate for the respon?dents relied upon the rulings in S. D. Mathur v. Municipal Board Agra (A I R 1956 All. 181) and Sh. Ram Piari v. Municipal Committee Pathankote (A I R 1956 Pb. 220). But these cases lay down the principle that the protection of the Municipal employees is to be found in the rules and regulations governing the conditions of the service of the Municipal employees. In Murray's Oxford Dictionary, the word "discharge" is defined to include "dismissal from service", and the word "dismissal" is defined to include "discharge from service." In I. M. Lall's case (P L D 1948 P C 150), the purported removal of the civil servant was held to be synonymous with "dismissal". The word "discharge" has the same connotation as "removal" and should be construed so as to be included within the term "dismissal". In Muhammad Afzal Khan v. The Federation of Pakistan (PLD1957Lah.17), where the service of a temporary civil employee was terminated ostensibly on a notice in terms of the condition of his employ?ment but really on the ground of his undesirable character and conduct, the notice was held to be mala fide. In Noorul Hassan v. The Federation of Pakistan (P L D 1956 S C (Pak.) 331 at 370). Cornelius J. remarked :- "The question whether the order terminating the services of the seven plaintiffs was an order of dismissal or removal within the meaning of the Government of India Act, 1935, does not offer any particular difficulty. The formula employed was that of saying that the services of these persons were" dispensed with", and there is, of course, no specific provision in that Act dealing with the process of "dispensing with" the services of persons holding "civil posts under the Crown in Pakistan." Yet, it seems to me that, by its effect the formula is clearly one by which an effective removal of the incumbent of a civil post in Pakistan was brought about, Clearly the service of each of the seven plaintiffs was determined by means pf the order which they sought to challenge. Both effectively as well as categori?cally, the order is indistinguishable from an order of dis?missal or removal. It is supported by a statement of the reason for the determination of service in each case, vi z., that the work of the public servants in question had been found unsatisfactory." The expression "termination of service" does not appear in the Municipal rules and by using this expression, instead of "dismissal" the petitioner cannot be deprived of the protection afforded by rule

11. The mere fact that remedy by way of appeal open to the petitioner was not availed of would not disentitle him to the writ prayed for when the Municipal servant was discharged for alleged misconduct. Dr. Makandlai v. Municipal Committee Simla (A I R 1953 Pb. 88). We see no force in the argument that the orders of the Chief Officer after the resignation of the petitioner were unauthorised. These orders were acted upon by the respondents for about 3? years. The objections cannot be urged in defence when the suit cannot lie. We, therefore, hold that this is a fit case in which the writ of certiorari should be issued against the respondents as prayed in clause 22 (a) of the petition. The respondents will bear the costs of the petitioner. A. H.??????????????????????????????????????????????????????????????????????????????????????? ??????????? Petition accepted.