P L D 1963 Supreme Court 179 (PLP)

CORNELIUS, C. J.‑This appeal is by special leave, and is brought by the Managing Committee of the Co‑operative Model Town Society Ltd., Lahore (hereinafter referred to as the Society). The order appealed against was made by a Division Bench of the High Court of West Pakistan on a writ petition filed against the Society by their ex‑Secretary, Khawaja Muhammad Iqbal whose services were terminated in consequence of a resolution of the Managing Committee dated the 12th April 1955. He filed an appeal against that order before the Appellate Board of the Society, which consists of the Registrar of Co operative Societies and one elected member of the Society. When the appeal came up for hearing the elected member was absent, having gone abroad and the Registrar, as provided by the bye‑laws, heard and decided the appeal sitting singly. His decision was that since Mr. Iqbal had never been confirmed as Secretary, and his original appointment was on probation, therefore, he had no right of appeal. Again, under the bye‑laws, while no further appeal is provided against an order of the Appellate Board, fully constituted, when an order is made by the Registrar sitting singly, as Appellate Board, an appeal lay to the Financial Commissioner in the Development Department of the Punjab Government (later the designation was changed by notification to "Commissioner, Development"). By the time that Mr. Iqbal's appeal was filed, the office of Commissioner, Develop ment, had been abolished, and the appeal was taken up for disposal by the Secretary in the Social Welfare and Local Government Department. It was accepted on the ground that on the date of his dismissal, the appellant was not on probation, and the case was sent back to the Appellate Board to be heard on the merits. On this occasion too it became necessary for the Registrar to hear the case, as Appellate Board sitting singly, and he remanded the case to the Society for a fresh enquiry and decision in accordance with the Rules and the bye‑laws. The Committee was unwilling to restore Mr. lqbal to his post, and being of the view that the first order passed by the Registrar was correct it decided to do nothing in the matter. Thereupon, Mr. Muhammad Iqbal moved his petition for a writ, which was for three relief s, viz. (1) to be re‑instated as Secretary ; (2) to be paid his full emoluments as from the 12th April 1955; and (3) to have his case decided finally according to the Rules. It seems obvious that the first two relief s could only follow properly upon grant of the third‑mentioned relief, and then only if the decision went wholly in Mr. Iqbal's favour. Moreover, the third relief is different in kind from the first two, since it seeks not mandamus but certiorari in respect of a number of orders made in quasi-judicial appellate jurisdiction. The Division Bench upheld the view of the Secretary in the Department of Social Welfare and Local Government, namely, that at the date of his dismissal, Mr. Iqbal was no longer on probation, but had been confirmed. The question was also raised as to the competency of the said Secretary to deal with the matter, in the absence of any direction in the bye‑laws, substituting the Secretary for the Financial Commissioner, Development. On this point, the learned Judges held that the two authorities not being identical, it was for the Society to determine, by amendment of its bye‑laws, who was for the future to be the appellate authority against orders of the Registrar sitting singly as Appellate Board. A writ was accordingly issued directing that the Appellate Board should hear and decide the appeal of Mr. Iqbal against his dismissal. The view of the Division Bench that "notwithstanding the fact that Co‑operative Societies as a subject fall within the duties of the Social Welfare and Local Government Department of the West Pakistan Government, the Secretary in that Department could not be deemed to be identical with the Financial Commis sioner, Development", in the late Punjab Government, is clearly correct. The Financial Commissioner was the Executive Head of a Department, besides being also a Secretary to Government in respect of the Departments under his control, and as such, in his executive capacity, he was an appropriate Appellate Authority from the order of an executive subordinate, namely, the Appellate Board, in this case. The Commissioner, Development, was presumably a parallel office. The case is otherwise with a Secretary, whose duties fall in a different category from that of an Executive Head in Governments constituted as are the Provincial and Center Governments in Pakistan. Except by clear expression, the Secretary cannot be regarded as the Executive Head of any Department falling within the scope of his work as Secretary, for each department is placed under its own Executive Head separately, and the duties of the Secretary are ordinarily limited to application of checks over the planning and working of the Executive Departments, and co‑ordination of their functions for the purpose of better and more convenient control being exercised over those Departments by the Government at the highest level. Therefore, it seems correct that, in the absence of designation of and authority to replace the "Commissioner, Development," there was not, at the time when the Registrar made his first order in this case, and there is not at present, any authority to whom appeals from orders of a Registrar, sitting singly, may be preferred, and consequently, the High Court acted rightly in ignoring the order made by the Secretary, as well as the conse quential proceedings before the Registrar. On the other question, namely, whether Mr. Iqbal had been confirmed, the Division Bench referred to the terms, under which the Registrar had originally approved his appointments as Secretary. The letter said that the appointment was approved with effect from the 23rd October 1947, on probation till the 31st December 1948 and added‑‑ "the question of his confirmation can be considered after the completion of the probationary period." On this basis alone, it was thought to be "abundantly clear that the appointment of the petitioner had been approved by the Registrar who was member of the Appellate Board." The judgment states that the period of probation "expired on the 31st of October 1948," and this was clearly incorrect, for the letter itself fixed the terminal date of probation as the 31st December 1948. The Division Bench went on to declare that Mr. Iqbal "was definitely not on probation in the year 1955, when his services were terminated" and that his appointment "had been approved by the Board as required by bye‑law 30". The question whether or not he had been confirmed was regarded "as a different matter" but "the right to file an appeal before the Appellate Board as provided by bye‑law 30 definitely accrued to him." Accordingly, a direction was made that the Appellate Board should hear his first appeal. Against this order, leave to appeal was granted to the Society to consider the questions whether in the, absence of the Appellate Board as a party to the proceedings, such an order could have been made, and whether a writ of mandamus would lie on the basis that the Society was a "private Society performing no public duties, Having heard arguments on behalf of the Society, we are satisfied that each of these questions must he answered in favour of the respondent. The Appellate Board of the Society is a body forming part of the working system of the Society, and having no existence independently of the Society, and therefore to implead the Appellate Board separately was not necessary. As to the competency of mandamus, the order of the High Court is clearly one in certiorari, which was undoubtedly available to correct errors in the exercise of quasi‑judicial appellate powers. It may also be noted that the case cited in the appellants Society's Concise Statement, viz. The Lahore Central Co‑operative Bank v. Saif Ullah Shah ((1959) P S C R 164=P L D 1959 S C (Pak.) 210), as "fully covering" the present case, relates to a Commercial Manager, who did not hold a statutory office, within the Co‑operative Societies Act. That makes a point of distinction from the present case, which relates to a statutory office, viz., that of Secretary, to a Co‑operative Society, and difference may also be found in the circumstances that the Society in this case exercises administrative functions ‑in a considerable township, viz., Model Town. However, it is not necessary to examine the point further, since the question of direct restoration to office is not involved in‑ the case. On the question whether Mr. Iqbal had a right of appeal, we consider that the conclusion reached by the Division Bench was correct, and that the order, which followed is also appropriate, but we would prefer to place our conclusion on a different basis. Under bye‑law 30 4f the Society, it is provided that any new appointment of the Secretary shall be "subject to the approval of the Appellate Board:" The documents show that when the appointment was first made in October 1947, the approval of the Appellate Board was sought and was accorded, by a letter from the Registrar, dated the 11th September 1948, but on probation until the 31st December 1948. This introduced a condition precedent to the making of a permanent appointment, viz., the successful completion of a period of probation, and it can reasonably be supposed that the approval of the Appellate Board would again be required when it was sought to confirm the appointment. In November 1949, the President of the Society sought orders of confirmation from the Appellate Board by a formal letter. No answer was received, it appears, but again in late 1950 or early in 1951, the question became acute, owing to an objection being raised in civil suit instituted by Mr. Iqbal on behalf of the Society that he was not duly appointed, and a reference was made again by the President to the Appellate Board. As on the former occasion, it was reported that his work was completely satisfactory, and that he had been allowed an increment. The elected member endorsed his approval on this letter, which was forwarded to the Registrar by an Assistant Registrar on the 22nd January 1951. The latter's reply was not made directly. The counsel for the Society in the aforesaid suit was a gentleman of the name of Sh. Abdul Aziz. The Registrar wrote a letter to this person dated the 27th January 1951, in which after saying that confirmation was not in point in the case, he wrote as follows: ‑ "as desired by your formal approval for the period from 1st January 1949 to the continuance of Kh. Muhammad Iqbal as Secretary of the Co‑operative Model Town Society, is hereby accorded as required under bye‑law 30." It is regrettable that through some confusion of appreciation, this letter is not as clear as it might have been. It is plain, however, that this approval, combined with that given by the elected member, makes an approval for the purposes of bye‑law 30, and this approval cannot be deemed to be an approval of appointment on extended probation, since the period of the probation had already expired some three years earlier. It cannot be regarded otherwise than as approval to the appointment after completion of probation, that is to say, approval as sought by the President, to the Secretary being confirmed in his appointment. For these reasons, which are different from those which prevailed with the Division Bench, we agree with the conclusion reached by the Division Bench, namely, that at the time of his dismissal, Khwaja Muhammad Iqbal was no longer on probation and that the dismissal of his appeal on the ground that being on probation, he had no right of appeal, was erroneous. The order of the High Court requiring the Appellate Board to consider the appeal on the merit is therefore correct, and we hereby dismiss this appeal. As the respondent has appeared in person, we make no order as to costs. A. H. Appeal dismissed.