P L D 1964 (W (PLP)

SARDAR MUHAMMAD IQBAL, J.‑This petition has been filed under Article 98(2)(b) of the Constitution to declare that the resolu tion passed by the District Council, Gujrat, respondent No. 1, purporting to remove the petitioner Muhammad Sadiq Butt from the membership/Chairmanship of Union Committee No. 6, Gujrat, being contrary to law was without lawful authority and of no legal effect.

2. To appreciate the different contentions raised on behalf of the petitioner it is necessary to set out the provisions of Article 25 of the Basic Democracies Order No. 18 of 1959 so far as they are necessary for the purposes of this petition :‑ "

25. Resignation and removal of members.‑(1) . . . . . . (2) A member of a Local Council shall render himself liable to removal from membership‑ (a) . . . . . . (b) . . . . . . (c) if he is guilty of an abuse of power or of any misconduct in the discharge of his duties as a member, or has been respon sible for any loss or misapplication of any money or property of any Local Council, or any local body or other local authority. (3) . . . . . . (4) An elected member of a Local Council shall not be removed from such membership unless, at a special meeting to be convened for the purpose in accordance with the rules made by competent authority, a resolution to the effect that he is liable to be removed under this Article is passed‑ (a) . . . . . (b) . . . . . (c) in the case of member who is the Chairman of a Union Council or a Town Committee, or of a Union Committee, and is ex‑officio a member of a Thana or Tahsil Council, or of a municipal body or a Cantonment Board, by a majority of such members of the District Council concerned as are the Chairmen of the Union Councils, of the Town and Union Committees, and of the municipal bodies, in the District, and the Vice -Presidents of the Cantonment Boards therein; and on the passing of such resolution, the member shall stand removed . . . . . ."

3. The case against the petitioner is that while presiding over a meeting of Union Committee No. 6 (Gujrat) on the 10th of November 1962, he used abusive language and thereby mis -conducted himself in the discharge of his duty as a member within the meaning of Article 25(2)(c) of the Basic Democracies Order, 1959. On receiving a complaint from six members of the Union Committee, the Controlling Authority at first held an enquiry through the Additional District Magistrate and on receiving a report in the affirmative gave a show‑cause notice to the petitioner on the 21st of December 1962 as to why action under rule 4 of the West Pakistan Local Councils (Resignation and Removal) Rules, 1960, be not taken against him. In his reply, dated the 1st. of January 1963, the petitioner denied having used any abusive language attributed to him in the complaint by Ghulam Rabbani and others and complained that the enquiry, as a result of which a show‑cause notice was issued to him, was held by the Additional District Magistrate in a perfunctory manner. In conclusion, a prayer was made that the Controlling Authority ‑should give the petitioner an opportunity to be heard personally in support of his reply. The Controlling Authority did not approve of the explanation and made a reference, to the District Council composed of the Chairman of the Town and Vice‑Chairman of the municipal bodies to hold a special meeting for taking proceedings under clause (4) of Article 25 of the Basic Democracies Order, 1959, for removal of the petitioner. In pursuance to this direction, a special meeting of the District Council, Gujrat, was convened on the 28th of January 1963. Before a decision on the proposal was taken, the petitioner was heard in person and a written statement filed by him was also taken into consideration. The allegations made against the petitioner and his reply were taken into consideration and the matter put before the house. Eight members voted for removal of the petitioner, while only three voted against it. A resolution for removal of the petitioner was thereupon passed, and present writ petition is directed against that resolution on the ground that in consequence of it the petitioner will be ipso facto removed from membership of the Union Committee No. 6, membership of the Municipal Committee, Gujrat, and less the office of the Vice‑Chairman and membership of the District Council, Gujrat.

4. This petition was admitted to a full hearing on the 5th of February 1963 to consider whether in the context of rule 14 of the West Pakistan Local Councils (Conduct of Members) Rules, 1961, even if it be assumed for the sake of argument, without conceding it, that the petitioner used abusive language as alleged in the impugned resolution, did not amount to abuse of power within the ambit of Article 25(2)(c) of the West Pakistan Basic Democracies Order, 1959. It was further directed that in the meanwhile notification regarding the removal of the petitioner shall be withheld.

5. It was contended that as the word "misconduct" has not been defined in the West Pakistan Basic Democracies Order No. 18 of 1959, it had to be defined in the context of the West Pakistan Local Councils (Conduct of Members) Rules, 1961. These rules were made by the Governor in exercise of the powers conferred on him by Article 89 of the Basic Democracies Order, 1959. It was argued that these rules had been specifically framed to lay down the conduct to be conformed to by the members, and only where a member infringed any of the pres cribed rules his conduct will constitute "an abuse of power or misconduct", and since the use of abusive language was not specified therein, it did not fall within the scope of "abuse of power or misconduct". We are unable to accept this contention. Rule 14 of these rules, which is the last rule in point of order, reads as under :‑ "

14. Abuse of power.‑A breach of any of these rules shall be deemed to be an abuse of powers or misconduct within the meaning of clause (2) of Article 25 of the Order." The word "deem" as defined in the Webster's New International Dictionary is "believe; suppose". It clearly implies that the makers of the rules thought that but for the rules which were made on the subject, certain acts mentioned therein would not be an abuse of power or misconduct, or it may as well be that these rules were made for one of the purposes, either to remove doubts which might have arisen in future whether or not certain acts in facts amounted to misconduct, or to bring within the purview of abuse of power or misconduct certain acts which ordinarily would not have amounted to that. The petitioner would have been on stronger ground if the words "abuse of power or misconduct" had been defined in the Order as one "prescribed by the Rules". He in that case could have argued that since these are the only rules made on the subject of miscon duct and abuse of power, any act which does not fall within the purview of these rules would necessarily be anything but not a "misconduct". There is, however, no definition given of this word, and no limitation imposed as to what a misconduct is to be. The "misconduct", therefore, has to be understood in the ordinary dictionary meaning and according to the Webster's Dictionary it is a "wrong or improper conduct ; bad behaviour; unlawful behaviour or conduct", and when considering a particular act of a member whether or not the same is miscon duct, we must keep the dictionary meaning of the word in view and also the other matters which are mentioned in these rules, which the Government was competent to make in exercise of its powers under Article 89 of the Basic Democracies Order, 1959. Under the circumstances, we feel no hesitation in rejecting this contention and holding that the words "abuse of power or misconduct" mentioned in sub‑clause (c) of clause (2) of Article 25 are not restricted to the acts specified in the West Pakistan Local Councils (Conduct of Members) Rules, 1961.

6. It was next contended that the petitioner could not be held guilty of abuse of his power as a member or misconduct for having used an abusive language for the reason that to constitute abuse of his power as a member it was necessary that what was done was only something that a member could do, and if what was alleged against the petitioner was conduct that was not within the exclusive power of a member to do, such conduct would not fall within the purview of sub‑clause (c) of clause (2) of Article 25 of Order No. 18 of 1959. According to the learned counsel for the petitioner the duty as a member referred to in this Article is the one which a member had to perform by reason of the Basic Democracies Order and had no reference to general good conduct which everyone was duly bound to maintain. The test, in our opinion, is not that to attract the provisions of sub‑clause (c) of clause (2) of Article 25 the act is capable of being committed only by a member with reference to the duty which he had to perform under Order No. 18 of 1959, but whether it is committed under the circumstances which were provided to him as a member. The question whether the particular conduct comes under the present Article depends not on the nature of the act but on the circumstances under which it is committed. It is necessary that the action involving the act must be done or purported to be done in the discharge of his duty as a member. It is enough if the action relates to the discharge of duty in such a capacity, although it may be in derogation of that duty. In other words, the applicability of the Article depends not on the nature of the action which involves the misconduct but on the matter to which the action relates so that the words "in the discharge of his duties as a member" might be read as "in the matter of the discharge of his duty as a member". This Article applies only to acts that can be said to be done in his capacity as a member and not to acts done in a private capacity. The mere fact that a particular act or omis sion is done by a person when he is also a member under the Basic Democracies Order is not enough to attract the provisions of this Article. The question is substantially one of fact to be determined with reference to the act complained of and the attendant circumstances. In determining this question we, therefore, must have regard to the allegation made against the petitioner.

7. The allegation against the petitioner was that on the 10th of November 1962, when Sahibzada Ghulam Rabbani, an elected member, during meeting of the Union Committee wanted a clarification from the Chairman, the latter lost his temper and started showering filthy abuses. It is further said that the Chair man was so much infuriated that he like a mad man pointed towards his sexual organ and asked the member to remove it if he had sufficient strength. It is thus clear that it was only when 'the petitioner was presiding over the meeting as a Chairman that on a question put to him with a view to clarifying some point that he lost his temper and gave filthy abuses. He obviously at that time was acting in his capacity as the member and what he did was in pursuance of the discharge of his duties as such. The act constituting the misconduct is so connected with the discharge of his duty that it is inseparable from it and in fact formed part of the same transaction. If the petitioner had behaved himself like this with Sahibzada Ghulam Rabbani in a public place, for example, in a street, marketing centre, or a garden, it would have been impossible for any person to say that he mis-conducted him self in the discharge of his duties as a member. The misconduct in that case would have been only personal and not in his capacity as a member. Sub‑clause (c) of clause (2) of Article 25 in the circumstances would not have been attracted. What, however, happened in the present case was only during the course the petitioner was presiding as the Chairman and what led into this unfortunate incident was also in the course of an explanation sought from the petitioner as the Chairman. We are, under the circumstances, in no doubt whatever that the petitioner was guilty of abuse of power or of misconduct in the discharge of his duties as a member. The petitioner was acting throughout till the very moment when the alleged words were used by him in his capacity as the Chairman.

8. The question whether any act was done or purported to be done in the execution of the duty was considered to Dr. Hori Ram Singh v. Emperor (AIR 1939 F C 43) and we reproduce with advantage the observations of Sulaiman, J. with which we respectfully agree, and they are as follows :‑ "The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of the duty. The reference is obviously to an offence committed in the course of an action, which is taken or purports to be taken in compliance with an official duty, and is in fact connected with it. The test appears to be not that the offence is capable of being committed only by a public servant and not by any one else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the‑duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same trans action. If the act complained of is an offence, it must necessarily be not an execution of duty, but a dereliction of it. What is necessary is that the offence must be in respect of an act done or purported to be done in execution of duty that is in the discharge of an official duty. It must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say under the clock of an ostensibly official act, though of course, the offence would really amount to a breach of duty. An act cannot purport to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and means to convey to the mind of another, the impression that he is so acting. The section is not intended to apply to acts done purely in a private capacity by a public servant." In M. Subbiah v. Ramacharlu (A I R 1939 Mad. 604 ), the accused was president of a Panchayat Court. The complainant took objection to dictation of judgment to him by his clerk. The accused got up from his seat abusing the complainant and slapped him on the cheek twice and on his protest unlaced his shoe, took it up in his hand and raised it saying "I will beat you with my shoe". He was prosecuted and a question arose whether the accused was acting in the discharge of his official duties and could not be proceeded against without the sanction of the local Government. It was held :‑ "The petitioner was acting throughout till the very minute when the alleged offence had been committed in his official capacity and it could not be said that he had immediately ceased to be so acting the moment his lips began to utter abusive words, and the provocation for the acts complained of having an immediate bearing on the official duties of the accused, the acts must be deemed to have been done when he purported to act in discharge of his official duties and that sanction of Local Government was necessary." In re: Ghulam Muhammad Sharif‑ud‑Daulah ((1886) 9 Mad. 439), it was held that if a Judge in the course of the trial of the suit used defamatory language, he acted in the discharge of the func tion of his official duty. Similarly in Chaudhri Amir Singh v. Emperor ((1905) 2 Cr. L J 119), the Munsif on a reply given by the complainant that he could not bring his witnesses as they had to attend some other Court, gave him foul abuses of his female relatives. It was held that he was acting in the discharge of his official duties. In Sukhdeo v. Emperor (A I R 1934 All. 978), the Magistrate was held to be acting in the discharge of his official duties in an accusation against him that he used insultive language while he was holding the Court and the complainant was in the witness‑box. The conduct attributed to the petitioner, therefore, in our opinion clearly falls within the purview of sub‑clause (c) of clause (2) of Article 25 of the Basic Democracies Order, 1959.

9. It was next contended that the resolution of the aforesaid members passed under sub‑clause (c) of clause (4) of Article 25 is a nullity in the eye of Law for the reasons :‑ (a) that the Controlling Authority instead of holding the enquiry himself, delegated it to the Additional District Magistrate, Gujrat, and he thereby did not act on his own satisfaction, but on the report of the Inquiry Officer gave a show‑cause notice ; (b) that on a show‑cause notice served on the petitioner be explicitly objected that the Inquiry Officer had not given him full opportunity to cross‑examine the witnesses and notwith standing his request to summon the records, refused, to accede to the same ; and (c) that the petitioner took the same objections before the District Council, Gujrat, constituted as it was of the members mentioned in Article 25(4)(c) of Order No. 18 of 1959, but the District Council failed to adjudicate on these questions which it was required to do as a Court of Law.

10. As to the contentions raised in (a) and (b) above, they can be disposed of together. An elected member, who is a Chairman of the Union Council, can be removed from such membership only at a special meeting which is convened for the purpose in accordance with the rules made by the competent authority. The Governor of West Pakistan, in exercise of the powers conferred on him by Article 89, read with Articles 25 and 26 of the Basic Democracies Order, made the West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960. Under rules 4 if the `Controlling Authority' is of opinion that any member has rendered himself liable to removal from membership, under clause (2) of Article 25 of the Order, he can call upon such member to show cause why he should not be removed. If the explanation, in the opinion of the Controlling Authority, is not satisfactory, the Controlling Authority, in the case of an elected member, has to make a reference to the afore said members of the District Council under rule

6. It will thus be noticed that there is no provision whatsoever for the Con trolling Authority to hold any enquiry. He has to give a show -cause notice only if, in his opinion, a member has rendered himself liable to removal. The wording of clause (1) of rule 4 leaves no room for any doubt that in the formation of his opinion he has to act subjectively. If, therefore, he does not hold any enquiry before he gives a show‑cause notice to any member, no exception can be taken to it. The Controlling Authority asked the Additional District Magistrate to hold an enquiry. It was not done for any reason that he was under any statutory obligation to do so. He adopted this course obviously to acquaint himself of the real state of affairs which could help him informing his opinion, and was not bound by the report of the Inquiry Officer. He could as well have ignored it and refused to give a show‑cause notice which is contemplated in rule

4. Supposing the Additional District Magistrate had exonerated the petitioner and submitted the report to the Con trolling Authority accordingly, that again would not have barred the Controlling Authority to have given a notice to the petitioner to show cause if "in his opinion" he had rendered himself liable to removal. The enquiry of course is neither judicial nor quasi judicial in character. The petitioner, therefore, cannot validly object to the mode of the enquiry or the conduct of enquiry. The object of the enquiry was only to inform the mind of the Controlling Authority and not to consider any issue between the petitioner and those who had objected to his conduct ; that was for the Controlling Authority to consider and form an opinion if it rendered him liable to removal. In the present case, there is no duty whatever on the Controlling Authority to hear the member before issuing him a show‑cause notice. In Franklin v. Minister of Town and Country Planning (1948 A C 87), the House of Lords held that the provision for holding an enquiry in the New Towns Act, 1946, and inviting objections that a specified area of land should or should not be developed as a new town was merely for the information of the Minister to enable him to finally consider the soundness of the scheme. This decision was a departure from an earlier decision in the case of Errington v. Minister of Health ((1935) 1 K B 249), where Maugham L. J., said :‑ "In determining whether the position of the Minister is that which I have described as being quasi judicial, I think it is necessary to appreciate that under a clearance area scheme to which objections are made by the owners of the property in the area, there is a true contest as between the owners of the property and the local authority ; in other words, there are two sides as between whom the Minister has to come to a determination after consideration. It also has to be borne in mind that the rights of the householders are being very seriously affected by an Order that their houses shall be demolished without compensation. That, of course, must not be pressed too far, but it is a consideration which cannot be neglected." Both these decisions came up for consideration before their Lordships of the Supreme Court in The Tariq Transport Company, Lahore v. The Sargodha‑Bhera Bus Service, Sargodha and others (P L D 1958 S C (Pak.) 437) and the decision given in Franklin v. Minister of Town and Country Planning was approved. In that context Mr. Justice Cornelius, as he then was and now the Chief Justice of Pakistan, observed as follows :‑ "The mere duty to hear an objector does not per se constitute a sufficient ground for the conclusion that the function exercised is a judicial one. On that point, I find myself in agreement with the view expressed by Lord Thankerton in the House of Lords in the case of Franklin v. The Minister of Town and Country Planning (1948 A C 87). There, a Minister was empowered to direct that a specified area of land should be developed as a new town, if he was satisfied after consulting the local authorities concerned that this was expedient in the public interest. As part of the process by which such satisfac tion was to be achieved, he was required to make a preliminary order announcing his intention, and if any objections were made to direct a local enquiry and to consider the report of such enquiry. It was held by the House of Lords that no judicial or quasi judicial duty was imposed by the law upon the Minister. His function remained purely administrative. The purpose of inviting objections and of the provision for enquiry was merely that the mind of the Minister should be further informed in order to the final consideration of the soundness of the scheme. "It has been brought to our notice that in certain earlier cases, e. g., the case of Erringtun (1935) 1 K B 249, where a Minister was similarly empowered, it was held by the Court of Appeal in England, that his action in ordering the clearance of buildings from a slum area was rendered subject to the writ of certiorari because he had not followed the rules of natural justice in having taken into consideration a good deal of evidence and information which came to him otherwise than from the objections raised to the proposed order, and the report of the public statutory enquiry which he followed. It is doubtiui whether this judgment can stand as an authority after the decision in the, Franklin case cited above, but that circum stance need not affect the validity of an argument employed by the Court of Appeal, as guidance for this Court. In the present case, however, there is no question of the R. T. A. having taken into account any evidence which it was not entitled to use for the purpose of reaching its decision. On the point whether a Minister acting as in the Errington case was performing a quasi‑judicial duty, the view which I am inclined to take is that notwithstanding that the order which he was making was one which affected the rights of the subject, as house property of value was ordered to be demolished, the Minister was performing a purely administrative act."

11. It would thus be clear that the fact that the Controlling Authority before giving a show‑cause notice to tine petitioner had an enquiry conducted by the Additional District Magistrate is not opera to any objection, and further, no exception can be taken to the mode and conduct of the enquiry by the Additional District Magistrate. The Controlling Authority duly gave a notice to the petitioner to show cause why he should not be so removed. This is all that he was required to do. The petitioner submitted an explanation to him. Again, at this stage, there was no duty cast on him to hold any enquiry himself. This aspect will become all the more clear by the contrast of the procedure to be adopted in the case of elected and appointed members after the explana tion is received. In the case of appointed members, the Controll ing Authority under rule 5 of the West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960, has been given the discretion to hold an enquiry and pass an order for his removal. The enquiry is clearly provided, though it is in the discretion of the Controlling Authority. On the other hand, in the case of an elected member, if his explanation is not, in the opinion of the Controlling Authority, satisfactory, the Controlling Authority is bound to make a reference under sub‑clause (b) of clause (3) of rule 4 to the `aforesaid members' of the District Council as contemplated in rule

6. The provision of enquiry being not there in such a case, the petitioner cannot make any grievance of the fact that no enquiry in his case was held by the Controlling Authority. ,

12. It was lastly contended that the aforesaid members of the District Council have acted without lawful authority in not holding an enquiry as a Court of law and more so when the petitioner had levelled serious allegation in respect of the enquiry conducted by the Additional District Magistrate and the failure of the Controlling Authority to have satisfied himself for issuing a notice within the meaning of rule 4(1). This conten tion has been dealt with in a recent judgment of the Supreme Court in Manzur‑ul‑Haq v. Controlling Authority, Local Councils, Montgomery (P L D 1963 S C 652) where it was held :‑ "There is no specific provision granting a right to the member concerned to be heard though in accordance with rule 6(4) the members of the District Council may take into consideration any explanation submitted by the member concerned. There is no provision casting a duty on the District Council to make an enquiry, but it has power of summoning witnesses etc., if it wants to do so." If was further observed by their Lordships of the Supreme Court as follows :‑ "The Legislature has not chosen to use mandatory words even with respect to the consideration of the explanation and it cannot therefore be urged that the District Council was bound to hear the appellant. On the facts we are unable to hold that the appellant was not heard. A person has, in accordance with the principles of natural justice, a right that he will not be condemned unheard. Right to be heard may even imply a right to show cause which would involve a right to defend himself with the result that if the person concerned denies the charges an enquiry will have to be made. But the difficulty is that the provisions with which we are concerned do not support even a simple right to be heard. The use of the word `may' in rule 6(4) is not consistent with the existence of a full right in accordance with the principles of natural justice to show cause. In the absence of a provision to the contrary we would presume that principles of natural justice were to be observed but here there is a provision to the contrary. The office involved is of importance and it is unfortunate that a person may be condemned and removed from the membership of a Local Council without an opportunity to show cause but the law has to be administered as it is. While the District Council has power to make an enquiry, it is not bound to do so and the decision really depends on votes." The District Council in a special meeting in the case of the petitioner summoned all the record of the case, examined the Secretary of Union Committee No. 6, heard the petitioner, discussed the case and then recorded a majority decision for the removal of the petitioner. Even if the District Council had not made any such enquiry, the petitioner could not take an exception to that.

13. In the view of the matter we take, we find no merit in this petition and dismiss it with costs. K. B. A. Petition dismissed.