P L D 1957 (W (PLP)

SHABIR AHMAD, J.‑

On the 15th of March 1957, the West Pakistan Government issued their Local Self‑Govern ment Notification No. 2681‑B&C‑57 (E), whereby Raja Sher Afgan was removed from the membership of the Municipal Committee, Rawalpindi, from the date of the notification. A copy of this notification was sent by the Provincial Government to the Commissioner, Rawalpindi Division, and the Deputy Commissioner, Rawalpindi, the latter of whom‑informed Raja Sher Afgan of the order of the Provincial Government by his Endorsement No. R‑5943/G, dated the 19th of March 1957. On the 20th of March 1957, Raja Sher Afgan presented a petition under Art. 170 of the Constitution for issue of a writ of certiorari or mandamus or any other appropriate order to the Provincial Government restraining them from interfering with the right of the petitioner to act as a member of the Rawalpindi Municipal Committee. In the petition it was stated that the petitioner was a staunch Muslim Leaguer and a member of the opposi tion party in the Municipal Committee and that the party to which he belonged had gained clear majority in the recent past and as the Republican Party, which was in power, feared that the election to the office of Senior and Junior Vice Presidents, which was to be held, was likely to go against them, the order of removal was passed against the petitioner in order to weaken the Muslim League party. The order was stated to be mala fide, illegal, ultra vires and ineffective. It was further stated in the petition that even if the allegations against the petitioner, which were mentioned in the charge- sheet sent to him, to which he had given suitable reply, were accepted to be correct, the Provincial Government could not have passed the order of removal of the petitioner ‑from his membership. On the 15th of March 1957, the West Pakistan Govern ment, Local Government Department, issued their Notification No. 2682‑B&C‑57 (E), whereby Ch. Muhammad Ibrahim was removed from the membership of the Municipal Committee, Rawalpindi, from the date of the notification, A copy of this notification was also sent to the Commissioner. Rawalpindi Division, and the Deputy Commissioner, Rawalpindi, the latter of whom by his Endorsement No. 5942/G, dated the 19th of March 1957, informed Ch. Muhammad Ibrahim of the action taken by the Provincial Government and on the 20th of March 1957 Ch, Muhammad Ibrahim put in a petition (Writ Petition No. 295 of 1957) under Art. 170 of the Constitution for issue of a writ of certiorari or mandamus or other order or direction for restraining the Provincial Government from prohibiting the petitioner from exercising his duties as a member of the Municipal Committee. In this petition, as in that of Raja Sher Afgan (Writ Petition No. 297 of 1957), it was urged that the order of the Provincial Government was passed to strengthen the Republican Party which was in power in the Municipal Committee, Rawalpindi, as in the Provincial Legislature, and that the order removing the petitioner was mala fide, ultra vires, illegal and ineffective. It was further alleged that the allegations mentioned in the charge‑sheet served on the petitioner were incorrect, but even if they were correct, the Provincial Government could not remove the petitioner from membership of the Municipal Committee. As the two petitions can be conveniently disposed of together, they will be dealt with by this order. No written statement has been put in by the respondent, but Mr. S. A. Mahmud. Assistant Advocate‑General, West Pakistan, admitted that the two petitioners were elected members of the Municipal Committee, Rawalpindi. at the last general election of‑ the Committee. In the petitions it was mentioned that the elections to the Committee, at which the petitioners came out successful, were held in November 1955. This appears to be correct because I find that in Notification No. All/2/77, dated the 25th of January 1956, issued in the Gazette of West Pakistan, Part 1‑B, dated, Lahore, Friday, the 3rd of February 1956, at page 9, it is stated that Sher Afgan (petitioner in Writ Petition No. 297) was elected as a member of the Municipal Committee, Rawalpindi, from Ward No. XXVI (Muslim Men) and Muhammad Ibrahim from Ward No. XIV (Muslim Men). The two notifications mentioned above stated that the order of removal of the two petitioners was passed under section 16 of the Punjab Municipal Act which reads as follows :‑ "16. (1) The Provincial Government may, by notification, remove any member of committee‑ (a) if he refuses to act, or becomes, in the opinion of the Provincial Government, incapable of acting, or has been declared a bankrupt or an insolvent or has been convicted of any such offence or subjected by a Criminal Court to any such order as implies, in the opinion of the Provincial Government, a defect of character which unfits him to be (b) if he has been declared by notification to be dis qualified for employment in, or has been dismissed from, the public service and the reason for the disqualification or dismissal is such as implies, in the opinion of the Provincial Government, a defect of character which unfits him to be (c) if he has without reasonable cause in the opinion of the Provincial Government absented himself for more than three consecutive months from the meetings of the (d) if his continuance in office is, in the opinion of the Provincial Government, dangerous to the public peace or order ; (e) if, in the opinion of the Provincial Government, he has flagrantly abused his position as a member of the committee or has through negligence or misconduct been responsible for the loss, or misapplication of any money or property of the committee ; (f) in the case of an elected member, if he has, since his election, become subject to any disqualification which, if it had existed at the time of his election, would have rendered him ineligible under any rule for the time being in force regulating the qualifications of candidates for election, or if it appears that he was at the time of his election subject to any such disqualifications ; (g) if, being a legal practitioner, he acts or appears in any legal proceeding, on behalf of any person against the committee, or on behalf of or against the State where in the opinion of the Provincial Government such action or appearance is contrary to the interests of the committee Provided that before the Provincial Government notifies the removal of a member under this section, the reasons for his proposed removal shall be communicated to the member concerned, and he shall be given an opportunity of tendering an explanation in writing. (2) A person removed under this section or whose election or appointment has been deemed to be invalid under the provisions of subsection (2) of section 24, or whose election has been declared void for corrupt practices or intimidation under the provisions of section 255, or whose election the Provincial Government has under section 24 refused to notify, shall be disqualified for election for a period not exceeding five years: Provided that a person whose election or appointment has been deemed to be invalid under the provisions of subsection (2) of section 24, shall not be disqualified for election or appointment for a period exceeding two years from the date of disqualification. (3) A person whose seat has been vacated under the provisions of section 14 (e) may be disqualified for election for a period not exceeding five years". Neither of the notifications indicated which clause of the section was deemed by the Provincial Government to be applicable to the case of the member who was being removed, but it was stated by Mr. S. A. Mahmud, the learned Assistant Advocate‑General, that action had been taken in both cases under clause (e) of section 16 of the Punjab Municipal Act, In view of the position taken up by the learned counsel for the Provincial Government, it would appear that all that need be determined in the present cases is whether or not the order of the Provincial Government fell within clause (e) of section 16 of the Punjab Municipal Act (Punjab Act III of 1911) ; but I would consider the matter keeping in view all the clauses of section 16 of the Punjab Municipal Act and if any of them is applicable, the order of the Provincial Government will be upheld, provided that there is nothing in law to prevent the application of any other clause of the section. Taking up Writ Petition No. 297 of 1957, one finds that by his Memorandum No. 955‑B & C(E)‑57, which does not bear a date, but which was typed out on the 8th of February 1957, the Secretary to Government of West Pakistan, Social Welfare and Local Government Department, called upon Raja Sher Afgan to answer the charge sheet sent to him. This memorandum reads as follows:‑- "It has been brought to the notice of Government that you allegedly misbehaved with Dr. N. M. Mian, Municipal Medical Officer of Health, Rawalpindi, on the 26th Sep tember 1956, while he was working in his office, and hurled baseless accusations at him in filthy and defamatory language with a view to gaining undue advantage of your position as a member of the Committee. You are, there fore, called upon to explain, in writing, through the Deputy Commissioner, Rawalpindi, within fifteen days from the receipt of this communication as to why you should not be removed from the membership of the Municipal Committee. Rawalpindi, under section 16 (e) of the Punjab Municipal Act, 1911, In case no explanation is received from you within the specified period, it will be presumed that you have none to offer and action will be taken accordingly". It will be noticed that the charge‑sheet does not say what undue advantage of his position as a member of the committee was taken or attempted to be taken by Raja Sher Afgan, and when questioned about this matter, Mr. S. A. Mahmud, the learned Assistant Advocate‑General, stated that the reason for removing Raja Sher Afgan from the membership of the Municipal Committee, Rawalpindi, was that he had hurled abuses at Dr. Mian, Municipal Medical Officer of Health, Rawalpindi. The proviso to subsection (1) of section 16 of the Punjab Municipal Act, 1911, makes it incumbent that the reasons for the proposed removal of a member should be mentioned in the charge‑sheet sent to him in order that he may have an opportunity to tender an explanation in writing and as I am of the view that an order of removal from membership can be based only on the matters mentioned in the charge‑sheet, I will act on the assumption that the order of removal was passed because Raja Sher Afgan had hurled baseless accusations at Dr. Mian, the Municipal Officer of Health, in filthy and defamatory language. The contention of the learned counsel for the petitioner was that the complaint of Dr. Mian that Raja Sher Afgan had abused him was false and had been made as a counterblast to an allegation of Raja Sher Afgan against the doctor. It was stated that Raja Sher Afgan had put in a resolution in the Municipal Committee for the removal of the doctor because he could not cope with his work, and a copy of a resolution to that general effect was produced in Court. According to this copy, the resolution was sent by Raja Sher Afgan and three others to the Secretary of the Municipal Committee, Rawalpindi, on the 28th of September 1956. . It was further stated by the learned counsel for Raja Sher Afgan that Dr. Mian had withdrawn his complaint against Raja Sher Afgan and in proof of this assertion a certified copy of letter No. 72/C, sent by the Municipal Medical Officer of Health, Rawalpindi, to the Executive Officer, Municipal Committee. Rawalpindi, was placed on the record. According to this letter, the doctor had requested that the proceedings started on his complaint against Raja Sher Afgan be dropped. The learned counsel for the petitioner urged that as Doctor Mian had agreed to the withdrawal of his complaint, the Pro vincial Government could not persue the matter on that complaint and even if the order of removal could be passed on the ground that the petitioner had abused the doctor the jurisdiction of the Provincial Government to pass the order of removal on that ground was taken away as soon as the doctor withdrew his complaint. I find no force in this con tention because I am of the view that the mere fact that the doctor did not want to persue his complaint could not take away the right of the Provincial Government to act under section 16 of the Punjab Municipal Act if they were of the view that ate order under that section was called for, provided the action was not mala fide and the facts alleged fell within the ambit of the provisions of law on which the Provincial Government founded their right to take action. Nor do I think can the petitioner succeed by merely showing‑which his learned counsel wanted to do‑that the evidence on which the Provincial Government came to the conclusion that the petitioner had been proved guilty of the acts alleged against him was so weak that no Court could consider it sufficient for arriving at that conclusion. In this connection it must be remembered that under section 16 (e) of the Punjab Municipal Act, 1911, the power to arrive at their conclusions on questions of fact vests in the Provincial Govern ment and this Court cannot sit in appeal on those findings of fact of the Provincial Government. I am of the view, therefore, that the petitioner cannot succeed merely because he may be able to prove that the allegations of Dr. Mian against him were not established or by showing that the doctor had on the 12th of November 1956 withdrawn his complaint. This brings me to the contention of the learned counsel for the petitioner that even if it was established that the petitioner had abused Dr. Mian, the Municipal Health Officer, the Provincial Government could not have removed him from the membership of the Municipal Committee, because the act ascribed to the petitioner would not attract clause (e) of section 16 of the Punjab Municipal Act, 1911, under which the Provincial Government took action. It appears to me that here the learned counsel for the petitioner is on firm grounds. Clause (e) of section 16 of the Punjab Municipal Act authorises the Provincial Government to pass the order of removal of any member of the Municipal Committee oh two grounds. One of these grounds, which was obviously not applicable, is that the member had through negligence or misconduct been respon sible for the loss or misappropriation of any money or property of the Committee and the other is that the member had flagrantly abused his position as a member of the Committee. The question for determination is whether or not the act of a member in abusing the Municipal Health Officer is a flagrant abuse of his position as a member. I have carefully con sidered this question and have arrived at the conclusion that the answer must be in the negative. What the statute aims at is the punishing of abuse of position as a member of the Committee and not any improper act that the member may do. I am prepared to concede that if the petitioner abused the Municipal Officer of Health, he was guilty of improper conduct, but that does not lead to the conclusion that he had been guilty of flagrant abuse of his position as a member of the Municipal Committee. I am of the view that abuse of position is doing an act which could be done in certain circumstances when those circumstances do not exist. If, for example, a member of a Municipal Committee is, by virtue of his position as such member, authorised to spend municipal funds to relieve sufferings of needy persons, and gives that money to his friends or relations who are not needy at all, he would be guilty of an abuse of his position. If, however, the thing that is done is entirely unconnected with the position of a member as such, i.e., the thing done is such as a person could not do as such member under any circum stances, the person doing it cannot be considered to have abused his position as a member of the Municipal Committee. My opinion, therefore, is that by hurling abuse on an employee, of a Municipal Committee, a member is not guilty of an abuse of his position. Lest it should be thought that I am expressing the view that members of a Municipal Committee governed by the Punjab Municipal Act, 1911, have the licence to use abusive language against employees of the Committees, I would add that a member who does that act exposes himself to a criminal prosecution and also runs a risk of losing his membership because if he is convicted by a criminal Court the Provincial Government can because of his conviction pass an order of his removal from membership under clause (a) of section 16 of the Punjab Municipal Act. I confess that I have not been able to understand the meaning of those words in the charge sheet which alleged that filthy and defamatory language was used against the doctor with a view to gain undue advan tage of position as a member of the Municipal Committee, because I do not see what advantage could result from the use of abusive language and the learned counsel for the respondent could throw no light on the question. It will be apparent that even the charge sheet did not allege that the mere use of filthy and defamatory words was flagrant abuse of the position and in fact it would appear that the opinion of the Provincial Government, at least at the time when the charge sheet was sent to the petitioner was that the attempt to gain undue advantage was the flagrant abuse of power. I might make it clear that if the case had been that Sher Afgan petitioner had gained some undue advantage because of his position, the case would have clearly fallen within clause (c), but as the only ground on which action was taken against the petitioner by the Provincial Government was that he had abused the Municipal Officer of Health. I have arrived at the conclusion that the order of removal was on the admitted facts entirely without jurisdiction. I would, therefore, grant Raja Sher Afgan petitioner a writ restraining the Provincial Government from preventing the petitioner from exercising his rights as a member of the Municipal Committee, and would make the Provincial Government liable to pay his costs of his petition. I will now address myself to Writ Petition No. 295 of 1957. The charge served on Ch, Muhammad Ibrahim peti tioner in this case was in the following terms:‑-- " That you, Ch. Muhammad Ibrahim, son of Khuda Bakhsh, are served with the following charge sheet :‑ (1) That you, Ch. Muhammad Ibrahim, impersonated the real Ch. Muhammad Ibrahim, son of Haji Khuda Bakhsh who was 60 years of age at the time of nomination and who had settled and later died in Sargodha and who was also a member of the Municipal Committee, Ambala, between the year 1936 and 1940. (2) That you got yourself nominated as member of the Municipal Committee. Rawalpindi, by misstating that you were the member of the Municipal Committee, Ambala, despite the fact that you were only the member of Canton ment Board, Ambala, and not of the Municipal Committee. (3) That you have partnership with your relative Bashir Khan, who is a contractor in the Municipal Committee, Rawalpindi, and you have been getting cheques cashed endorsed by Bashir Khan contractor in your favour. (4) That you also had partnership with Khuda Bakhsh contractor who lives in Sargodha and who used to come to Rawalpindi only for getting cheques cashed. (5) That you have got employed your son‑in‑law, Muhammad Ishaq, as Chaprasi, and another relative as a Kura Moharrir in contravention of rule 3‑B of General Rules promulgated with notification No. 850 dated the 13th of January 1953. (6) That you were responsible for the unauthorised construction of houses built by certain persons, namely. Nasiru, Bundu, Habib Ullah etc. in Muhalla Arjan Nagar, and when it was decided to demolish these buildings and the municipal staff went to demolish with the assistance of police, you personally obstructed in the execution of their duty and did not allow the staff to demolish the same. (7) In view of the above charges, you are hereby required to show cause why action under section 16 of the Municipal Act, 1911, be not taken for your removal from the member ship of the Municipal Committee". The first contention of the learned counsel for the peti tioner was that as the order of removal did not specify the clause of subsection (1) of section 16 of the Punjab Municipal Act, under which action had been taken, it was bad in law and the petitioner was entitled to the writ prayed for on that short ground. In my opinion, this contention has no force. It is no doubt desirable that the Provincial Government should, when passing an order of removal of a person from member ship of a Municipal Committee, specify the clause of sub. section (1) of section 16 of the Punjab Municipal Act, which is held to be applicable to the case, but the omission to dot so does not vitiate the order and entitle the person affected r by it to obtian redress from a Court of law provided that the order can fall under any of the clauses of the relevant: section. The next contention of the learned counsel for the peti tioner was that the charge sheet was vague and, therefore, the order of removal could not have been passed. This contention is not without force because the charge sheet does not mention the dates with regard to certain acts of misconduct in spite of the fact that dates were very material for the purposes of determining whether or not action could betaken by the Provincial Government under any of the clauses of sub section (1) of section 16 of the Punjab Municipal Act. Mr. S. A. Mahmud, learned counsel for the respondent, urged that even if the misconduct mentioned in the charge sheet had been committed before the election of the petitioner as a member of the Municipal Committee, the Provincial Govern ment was within its rights to pass the order of removal, but this contention is, as I will presently show, not warranted by the relevant provision of law. The 12th section of the Punjab Municipal Act, 1911, says that a Municipal Committee under that Act can have two classes of members, one of which consists of appointed members and the other of members elected from the inhabi tants of the area to which the Act applies. Action under section 16 can be taken against both classes of members pro vided the ingredients of the clause under which action is taken are satisfied. Clause (a) of subsection (1) of section 16 of the Punjab Municipal Act, 1911, will apply on four grounds. The first of these grounds is shat the member refused to act, the second that he becomes incapable of acting as a member, the third that he has been declared a bankrupt or an insolvent, and the fourth that he has been convicted by a Criminal Court of an offence or been subjected to an order by a Criminal Court which conviction or order, in the opinion of the Provincial Government, shows a defect of character which unfits him to be a member. The first two of the above‑mentioned grounds have to come into existence during the term of membership of which a person is sought to be deprived, but as regards the other two grounds the acts, on which the orders of the Court which give the Provincial Government the power to direct the removal of the member, may have been done before the membership started. Clause (b) can be invoked by the Provincial Government in spite of the fact that the acts which led to the issue of the notification mentioned therein were done before the term of membership started. Clause (c) cannot be applied for anything done prior to the beginning or the term of member ship removal from which is contemplated. Clause (d) cannot be invoked unless the Provincial Government be of the opinion that the continuance of the membership of the member is dangerous to the public peace or order and what the position was in the past is irrelevant. Clause (e) can be invoked on two grounds, one being that the member has flagrantly abused his position as a member and the second that he has been responsible for loss of some .money or property of the Committee. The first of these grounds must relate to the term of membership from which it is intended to remove him and the same would appear to be the case with regard to the second ground, though it is possible that for taking action on that ground past acts may be taken into considera tion. Clause (f) which applies to elected members only and has no application to the appointed members concerns itself with the period starting with the election at which the person secured his membership of the committee: Clause (g) also cannot be invoked for what was done before the term of membership, removal from which is ordered, started. It is, therefore, clear that it is only in certain cases that past misconducts can be the basis of an order under subsection (1) of section 16 of the Punjab Municipal Act. 1911. I now proceed to examine the charges against Ch. Muhammad Ibrahim to see whether or not they attract any of the clauses of subsection (1) of section 16 of the Punjab Municipal, Act. Now. para. 1 of the charge sheet related to a period when the petitioner was an appointed member and, therefore, even if the allegations in that paragraph were proved, the Provincial Government could not have passed an order removing the petitioner from his elected membership of the Municipal Committee. Similarly para. No. 2 of the charge sheet relates to the appointment of the petitioner as a member which was prior to his election as a member and if the petitioner had obtained that appointment as a member by misrepresentation, he could possibly have been removed from the membership to which he was appointed, but that allegation cannot be used against him as a ground for removing him from his elected membership. If, however, the petitioner had been convicted of an offence by reason of the misconduct, relied upon in paragraphs Nos. 1 or 2 of the charge sheet, the conviction could have been used as a ground for removal of the petitioner from his elected membership under the latter part of clause (a). The allegations in paragraph 3 of the charge sheet could have been used against the petitioner if what was alleged therein were done by him after he was elected. The charge sheet does not say when the acts mentioned in paragraph 3 were done by the petitioner, and when asked to give information on that point Mr. S. A. Mahmud, the learned counsel for the respondent, replied that the alleged misconduct related to a time prior to April 1955. As the allegation in paragraph 3 of the charge sheet related to a time before the petitioner was elected a member in 1956, the allegations in that paragraph, even if correct, could not have been used by the Provincial Govern ment to remove the petitioner from his elected membership. What I have said about paragraph 5 applies also to para graph 9 because the acts alleged therein were admitted to have been done before the petitioner became an elected member in 1956. The allegation in paragraph 5 also could not have been used by the respondent to deprive Muhammad Ibrahim petitioner of his elected membership because it is ad mitted by the learned counsel for the respondent that the acts mentioned in that paragraph also were done by the petitioner before his election as a member in 1956. The allegations in paragraph 6 of the charge sheet suffer from the same defect as the preceding paragraphs because when asked to mention the dates of the acts detailed in that paragraph, Mr. S. A. Mahmud, the learned counsel for the respondent, had to admit that they were not done at any time after the petitioner took up his seat as an elected member of the Municipal Committee, Rawalpindi. The allegations in paragraphs 5 and 6 of the charge sheet, if correct, would possibly amount to abuse of position as a member and may possibly 'I amount to an abuse of a flagrant character, but these acts could have been invoked by the Provincial Government under section 16 of the Punjab Municipal Act only if they were done after the election of the petitioner in 1956. I have no doubt in my mind that a flagrant abuse of his position as a member can be invoked by the Provincial Government for taking action under clause (e) of subsection (1) of section 16 of the Punjab Municipal Act, 1911, only if it relates to that term of membership of which it is intended to deprive the member. If, however, the abuse of position amounts to an offence and the member is convicted for it by a Criminal Court of competent jurisdiction the conviction may be used by the Provincial Government under clause (a) of subsection (1) of section 16 of the Punjab Municipal Act, 1911, as a ground for passing an order of removal notwithstanding the fact that the abuse of position was during a prior term as a member. In view of what I have said above I hold that the order of the Provincial Government against Muhammad Ibrahim petitioner was with out jurisdiction as it did not satisfy any of the provisions of section 16 of the Punjab Municipal Act. and that he is entitled to exercise his powers as an elected member of the Municipal Committee, Rawalpindi, notwithstanding the order of removal passed by the Provincial Government. I would, therefore, issue a direction to the respondent not to interfere in the exercise of the rights and powers of Muhammad Ibrahim petitioner as a member of the Municipal Committee, Rawal pindi, and would further direct that he shall have his costs from the respondent. B. Z. KAIKAUS, J.‑

I agree. A.H. Petitions accepted.