P L D 1970 Dacca 508 (PLP)

Again in the case of Karnaphully Paper Mills Ltd. v. Workers' Union (P L D 1961 S C 329), their Lordships of the Supreme Court observed:‑ "We are aware that in certain cases affecting public servants, who enjoy exceptional protection under Constitutional provisions, Courts have in a number of cases acted on the principle enunciated by the Tribunal. But in the case of private employment, the ordinary rule of master and servant must be sustained, namely, that without cause assigned the master may dispense with the services of the servant with notice or on payment of salary in lieu of notice. The servant may equally exercise the power of relinquishing his appointment on similar terms. These are mutual and reciprocal promises, and there is no principle available in the relevant law which could operate to minimise the effect of the counterpart promises." The necessary ingredient of a public office appears to have been correctly stressed in a definition occurring in the Extraordinary Legal Remedies by "Ferris" at page 166 which runs as follows:‑ "The public office is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure, duration, emoluments and duties." The offices held by the respondents obviously cannot be called public office in the light of the definition in view of the fact that the tenure was neither prescribed by law nor their duration, emoluments and duties guaranteed by any statutory provision. In view of the above it is abundantly clear that the peti tioners could not claim a relief for setting aside the order of dismissal. The maintainability of these writ petitions has been attacked by the respondents on another ground. It has been argued that the petitioners have, in fact, claimed a writ of mandamus to compel their restoration to the offices held by them. It has been argued that even if the offices in the instant cases are taken to be public offices still it cannot be said that such offices were of the nature in respect of restoration of which a writ of mondamus was available. It is well‑settled that a writ of mandamus is not available with regard to the restoration off each and every public office. In our opinion, this contention is sound and in accordance with the practice followed in the Courts of England as well as in this country a writ of mandamus has never been issued for the restoration of an office which is of the present nature. In order to obtain a writ of mandamus for the restoration of an office it has to be clearly established that the office is either a constitutional post or a post specified in the Constitution or any other post which is statutory in nature and carries statutory rights and obligations. In the case of Lahore Central Co‑operative Bank Ltd. v. Pir Saif Ullah Shah (P L D 1959 S C (Pak.) 210) their Lordships of the Supreme Court observed as follows:‑ "Moreover, the law on the subject in this country has hitherto followed in all essential respects the practice of the English Courts and as such to that, an authoritative statement will be found in Halsbury, paragraph 162 in the monograph on "Crown Proceedings". It reads as follows:‑ `An order of mandamus 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 the office or franchise is of a public nature; as for example to the office of a mayor, alderman, recorder, town clerk, burgess or other municipal position, to academical degrees, to a fellowship of a college where there is no visitor, or to the offices of parish clerk and sexton.' 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 con tained 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. Naseem Ahmed (P L D 1961 S C 445), their Lordships of the Supreme Court observed as follows:‑ "With profound respect to the learned Judges of the High Court we must, however, point out that there is no authority or principle upon which such a wide proposition can be supported. None has been cited in the judgment of the High Court, nor has the learned counsel appearing to support the judgment been able to place before us any authority support ing the view that a mandamus will lie to compel restoration to ‑any or every kind of public office. Indeed, the authorities cited in Halsbury's Laws of England in support of the proposi tion of law therein enunciated show that the cases in which the English Courts have invoked this extraordinary power for compelling restoration by writ of mandamus are all cases of offices which are either corporate or elective offices or municipal positions. In England, no Court could possibly compel the restoration to offices of any public servant in the service of the Crown, for, all such servants of the Crown hold office during the pleasure of the Crown, and no Court in England would presume to command the Crown. The authorities cited in Halsbury would also seem to indicate that even for other offices, the tenure of which is precarious or dependant on the will of another, a mandamus would not lie to compel restoration to such offices." And again at page 451 of the same volume it was observed as follows:‑ "For the reasons given above, we are of the view that a writ of mandamus does not lie to restore a Government servant to office, for, even though he may be holding a public office, his office does not fall within the nature of the offices to which restoration can be compelled by this extraordinary remedy." The same view was reiterated again by their Lordships of the Supreme Court in the case of Faiz Ahmad v. Registrar, Co operative Societies (P L D 1962 S C 315), who observed as follows:-- "This argument, in effect, assumes that because the Co operative Bank concerned in the present case had by its own bye‑laws adopted the procedure of the Government Service Rules for the taking of disciplinary action against its employees, such employees were also entitled to the protection given to Government servants under section 240(3) of the Government of India Act, 1935. This assumption, however, is totally unwarranted, f r, the Civil Service Rules were made applicable to the case of the appellant 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 Park 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 Govern ment servant under the constitutional provisions of the Government of India Act, 1935, and the late Constitution, to persons employed in non‑Governmental institutions or concerns. Even if the adoption of the Government Service Rules could be interpreted as amounting to the adoption of also the guarantees of the kind given to public servants by the aforesaid Constitutional provisions, they would have no statutory force behind them and would, therefore, according to the decision of the Judicial Committee in the case of, Venkata Rao v. The Secretary of State for India‑in‑Council 61 I A 55 be no more than mere violations of rules or regulations which would not entitle the appellant to have the performance of the rules enforced by action. The High Court of West Pakistan was, therefore, in our view, right in refusing to interfere in its writ jurisdiction with the decision of the appellate order of the Principal, Co‑operative Training Institute, acting as Registrar, Co‑operative Societies, West Pakistan, upholding the dismissal of the appellant. So far as his prayer for a writ of `mandamus was concerned, that, we must point out, was wholly misconceived, for, the office that the appellant held was, by no means, a public office restoration to which could have been ordered by means of a writ of mandamus. As pointed out by this Court in the case of Pakistan and another v. Naseem Ahmad (referred to earlier) a mandamus does not lie for the restoration of any and every kind of office, but only for offices which are either corporate or elective offices or municipal positions. The appellant before us held no office of any of the above kinds." This view has been reiterated by their Lordships of the Supreme Court in the recent years where the petitions were filed under Article 98(2) of the present Constitution and prayers were made for restoration to such offices. In the case of Chairman, East Pakistan Development Corporation v. Rustam Ali (P L D 1966 S C 848), their Lordships of the Supreme Court observed as follows:‑ "Mr. Asrarul Hussain, the learned counsel for the appellants has contended that the service of the respondent was of a contractual nature and hence the Corporation was entitled to dismiss him for misconduct with out giving any notice. It has not been and could not be contended that the safeguards provided for public servants under the Constitution could not be availed of as of legal right by the respondent Rustam Ali. He was an employee of a statutory Corporation. The true character of an officer and employee of such a statutory Corporation has been pointed out by this Court in the case of The Lahore Central Co‑operative Bank Limited v. Pir Saifullah Shah (P L D 1959 S C (Pak. 210). One of the questions in the above case was whether the Commercial Manager of the Bank was entitled to a writ for alleged wrongful dismissal from service. The learned Chief Justice after quoting a passage from Halsbury, paragraph 162, in the monograph on `Crown Proceedings' 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.' It is, therefore, clear that a writ is not a proper remedy in a case of this type in our jurisdiction." It has to be remembered that the petitioners' application in the above case was one under Article 98(2) of the present Constitu tion. The same view has also been taken in the case of Zainul Abedin v. Multan Central Co‑operative Bank Limited, Multan (P L D 1966 S C 445). From a perusal of these authorities it is obvious that a writ of mandamus for the restoration to an office is not available to a dismissed employee unless he can show that the office held by him was of a public nature which created legal rights and casts corresponding legal liability on the respondents fir keeping the employee employed in the office itself. The petitioners could not claim by any stretch of imagination that the offices held by them were of this nature and as such were entitled to the relief as prayed by them. The petitioners have sought to argue that the principles laid down in all the cases cited above except the case of Rustam Ali were all instituted when high prerogative writs were prayed for under the provisions of the late Constitution of 1956 or the Laws (Continuance in Force) Order, 1958 and as such may not be fully applicable in respect of a petition filed under Article 98(2) of the present Constitution. We are unable to accept this contention. The principle underlying the grant of a relief in the nature of mandamus does not appear to have been altered under the present Constitution. In our opinion, Article 98 of the present Constitution has made it more clear that a relief of this nature can be prayed in aid only when his legal right in this regard has been affected by anything done or proceeding taken which is not permitted by-law his legal right must be some thing which is distinct from a right derived under a contract. It is because of this reason that their Lordships of the Supreme Court refused to grant this relief in the case of Chairman, E. P. I. D. C. v. Rustam All on the basis of the principles enunciated earlier even though the petition filed by Rustam Ali was under Article 98(2) under the present Constitution. A Division Bench of this Court to which I am a party, in the case of Ziaul Haq v. The East Pakistan Co‑operative Society Ltd. (P L D 1969 Dacca 105) observed as follows:‑ "But the principle underlying the grant of a mandamus does not appear to have undergone any change because of the enactment of Article 98 of the present Constitution; rather this Article has made it more clear that a person cannot invoke it in his aid unless his legal right has been affected or denied by anything done or proceeding taken not permitted by law. This legal right is created by or under law, but does not include a contractual right which is created by the mutual consent of the contracting parties." From the above it is obvious, therefore, that the principles laid down in relation to high prerogative writs is equally applicable with regard to the grant of a mandamus for the restoration of an office and is equally applicable in respect of petitions of this nature filed under Article 98 of the present Constitution. A question now arises whether the term `other Municipal position' includes an office of a collecting sarkar under a Municipal Committee as held by the petitioners in the instant cases. In monograph 162 of Halsbury's Laws of England, Vol. XI, Third Edition, which has been quoted with approval in the decisions of the Supreme Court cited above, it has been said that a writ of mandamus will lie to compel restoration of the person to an office or franchise which includes, inter alia, "other Municipal position". Reading of monogram 163 of the same volume of the Halsbury's Laws of England as well as the monographs 85 to 89 under the heading "Country Offices" in Halsbury's Laws of England, Vol. 25, Third Edition, makes it clear that the employees of a Municipality who hold that the offices at pleasure do not come within the category of "other Municipal position". Mayor, alderman, etc. who hold elective position for county office for fixed term may come within the category of this definition of `other Municipal position' but not the employees of a Municipal Committee who do not carry any legal guarantee of the tenure of their offices. It is obvious, therefore, that this expression `other Municipal position' is not applicable to the offices held by the petitioners in the instant case. Similar also is the view expressed by Sajjad Ahmad and Muhammad Gul, JJ. in the case of Elias Ahmed Siddiqi v. The Municipal Committee, Multan (P L D 1967 Lah. 408). In this connection, it is necessary to notice another conten tion of the learned Advocate for the petitioners. He has quoted rule 6 of the Model Rules regarding leave, fining, suspension and removal of Municipal officers and servants and the nature and amount of security deposits to be furnished by them, which was issued by Circular Nos. 6482‑6486‑M dated the 28th November 1933. The rule runs as follows:‑ "

6. Before any officer is removed or dismissed the charges against him shall be reduced to writing and communicated to him and his reply, if any, shall be recorded." It has been argued that as this rule was not complied with as such the order of dismissal was illegal. Apart from the question of maintainability of these petitions on merit, this contention also is not entertainable. This rule is a rule which forms parts of a Model Rule which was prepared and circulated for the adoption of all the respective Municipalities. Section 75 of the Bengal Municipal Act, 1932 provides that the Commissioners at a meeting may, subject to the sanction of the Local Government, make rules as to suspension, removal etc. of Municipal officers and servants. The Model Rules were provided only for the guidance of the Municipalities and its adoption by them. If the Municipalities so liked they could adopt some or whole of these rules. It has not been brought to our notice that this particular rule was either adopted in its present form or the same was continued under section 130 of the Municipal Administration Ordinance. Moreover, the terms of the notice dated 10‑1‑66 which is Annexure `A' of the petition clearly show that the substance of the allegation was communicated to the petitioners and they were required to rectify their defects. This notice also clearly stipulated that in case their work was not improved the petitioners would stand dismissed from their services. It is obvious there.# fore that the nature of the allegation and the proposed penalty sought to be imposed was clearly brought to their notice before the orders of dismissal were passed against them. It is also well‑settled that in relation to employees holding office at pleasure even the violation of the Departmental rules does not give a legal right to an employee justifying restoration to his office. The respondents have further contended that after the termination of the services of the petitioners the system of having taxes collected through collecting sarkars bas since been dis continued, and on this ground also the relief prayed for by the petitioners should be refused as the same has become infructuous. It has been contended that the Government of East Pakistan by virtue of their power under Articles 44 and 47 and entries 12 and 13 of the 6th Schedule of the Basic Democracies Order, 1959 read with sections 29 and 121 of the Municipal Administration Ordinance, 1960, promulgated the East Pakistan Local Services Rules, 1966. These Rules specify the different categories of employees to be employed by local bodies including a Municipal Committee. There is no provision of a post of a collecting sarkar in these rules. The Bansal Municipal Committee adopted bye‑laws and obtained the sanction of the Controlling Authority as per notification dated 17‑7‑

65. This approved bye‑laws also did not leave any scope for the retention of the offices held by the petitioners. In these circumstances, it is contended that the offices held by the petitioners are no longer in existence and as such the relief prayed for has become infructuous. In the case of Pakistan v K Ali Afzal (P L D 1960 S C 1), their Lordships of the Supreme Court observed a follows:‑ "Secondly, the relief prayed for in the petition had ceased to be available to the respondent because the post of the Joint Secretary to the National Assembly had been abolished before the announcement of the judgment. On the day the judgment was rendered the High Court could not have issued a writ of mandamus requiring the Government to re‑instate the respondent to a post which had been validly abolished." It is obvious therefore that on this ground as well the relief claimed by the petitioners are not available to them. As we have found that the petitions filed by the petitioners are themselves not maintainable due to the above reasons as such it is not necessary for us to enter into the other point raised by the petitioners in these petitions, namely, the violation of the principle of natural justice in dismissing the appeal of the peti tioners, as wall as in passing the orders of dismissal against them. The petitioners may seek such other relief as they consider necessary in such other forum as they are advised and any expression or any opinion on these two points may ultimately prejudice the parties in one way or the other in such future proceeding. As such we refrain from expressing any opinion on these two points. The result therefore is that we find that these petitions are not maintainable in their present form as such they are liable to be dismissed. The Rules are accordingly discharged, but in view of the facts and circumstances of these cases the parties are directed to bear their own costs. A. E. Rules discharged: