1988 PLP 1414 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to the Municipal Committee, Gujrat, through its Administrator to examine whether the Lahore High Court had by its judgment dated 16‑12‑1979 correctly upheld the objection of the plaintiff that the order of his dismissal was vitiated un account of the participation of the Chairman in the meeting of the Municipal Committee where the information about his dismissal from service by the Chairman was noticed. The respondent, Muhammad Shafi Butt, was a confirmed Sanitary Inspector. While another enquiry under the West Pakistan Municipal Servants (Efficiency and Discipline) Rules, was pending against him, he absented himself. He was charge‑sheeted by the Chairman who held the enquiry and passed an order of his removal on 11‑1‑1965 in the following words:‑ "I, therefore, order his (Plaintiff's) immediate removal from service of the Municipal Committee, Gujrat. This decision may also be brought to the notice of the house." An Emergency meeting of the Municipal Committee was held on the same day and it was presided over by the same Chairman who ad passed the order of removal of the respondent add that order gas confirmed. A civil suit was instituted by the plaintiff‑ respondent challenging the inquiry held against him and the order of removal gassed. The plaintiff appeared as his own witness but before his statement could be concluded he absented himself from the proceedings. The suit was decreed by the trial Court in his favour but on appeal t was remanded with a view to get the recording of evidence completed. 40 further evidence was led and on the same record and statement as had been' brought earlier, a decision was given. The main controversy was on issue No.2 which as framed was "whether the impugned order removing the plaintiff from service is void, illegal, ultra vices, arbitrary; mala fide, nullity and is unfair for the reasons contained in the plaint". The trial Court came to the conclusion that the order of his removal was bad in law on the finding as hereunder:‑ "In the present case the Chairman who has already given his findings against the plaintiff presided over the meeting proposing punishment against the plaintiff. This would have certainly created apprehension in the mind of the plaintiff that he would not receive a fair and impartial trial. Thus the principle of natural justice has not been observed in the case. Hence I am constrained to hold that the removal of the plaintiff from service is arbitrary illegal and mala fide as such I decide the issue accordingly In favour of the plaintiff." On appeal the Additional District Judge upheld the judgment and decree do the finding as hereunder:‑ The document EXh.P.l shows that the same chairman who earlier conducted the enquiry against the respondent also signed the order of his termination of his service. Thus, in the light of the aforesaid authority this action of the Chairman cannot be sustained in the eyes of law as having been derogatory to the Well‑established principles of natural justice . . .. .. If the same authority, acts as an inquiry officer and gives a positive report, he while awarding punishment, cannot be deemed to have acted independently. I therefore, for all the reasons. stated above find myself in complete accord with the learned trial Court and seeing no merits in this appeal proceed to dismiss the same with costs." On Second Appeal, the learned Judge declined to interfere with the judgment of the two Courts below, holding on facts as follows:‑ "There is nothing on the record to suggest that the respondent's minimum scale of pay was Rs.150 to attract applicability of Rule 2(f) of the Rules. This ground was also not urged before the Courts. The contention is overruled." Mr. Khalil Ramday, Advocate‑General, Punjab, has contended before us that in the first place under rule 2(f)(i)(c), West Pakistan Municipal Committees Business Rules, 1960, the Chairman was the competent authority to take action against the respondent as the starting pay scale of the respondent was Rs.125. He had independently taken such an action. His mere placing for the information of the Committee the decision given by him did not get that decision vitiated by his participation because the action taken was already complete in all respects and had the legal validity. It is also contended that there were two Resolutions of the Committee authorising the Chairman to deal with the case finally. There was no ratification to take place. The Courts were in error in not attending to the rules and the language of the order impugned in the Civil Suit. The respondent has not appeared before us to contest the proceedings. He did not appear before the First Appellate Court also. It is a peculiar case in which the plaintiff made no statement as a witness but offered himself .to be cross‑examined. His cross examination was not yet complete when he absented himself from the proceedings and never appeared. The copies of the Resolutions were put in evidence and that was all. The remand which had been ordered for getting the entire evidence recorded proved futile as none was produced by the plaintiff after the remand. Even his statement remained inconclusive. The order of the Chairman already reproduced clearly shows that it is prior in point of time than the Resolution of the Committee. The order is unqualified. It takes effect forthwith. It is only for the information of Municipal Committee that it was placed before it. In the circumstances where only information was to be laid before the Municipal Committee, the Chairman could participate and the decision referred to and relied upon by all the Courts, namely Muhammad Abdullah v. Road Transport Corporation (P L D 1964 Lah. 743), was wholly inapplicable. This appeal is allowed and the judgment and decree of the Courts below is set aside and the suit of the respondent shall stand dismissed. No order is made as to costs as the respondent has not turned up to contest the appeal. M.I. /M‑453/S Appeal allowed.