P L D 1975 Lahore 454 (PLP)

On account of the report submitted by the Enquiry Officer the 'Town Committee was superseded on 20-6-1969 and appropriate proceeding were initiated against the Chairman and the petitioner for the alleged irregularities.

2. Thereafter, it is admitted. that the petitioner was posted as Secretary, Town Committee, liadiah on 26-4-1968. The Chairman of the Town Committee made a complaint against the petitioner on 28-9-1968 with regard to alleged misappropriation and embezzlement of certain amounts by the petitioner. The Director, Basic Democracies, Sargodha Division made a surprise visit to the Town Committee on 5-12-1968 and found certain irregularities in maintaining the accounts. The Superintendent of the Office of the Director, Basic Democracies was, therefore, deputed to conduct inquiry into the affair of the Town Committee. According to his report the Chairman of the Town Committee as well as the petitioner, both were responsible for alleged irregularities. According to the report a case under section 409, P. P. C. was registered against the Ex-Octori Superinten dent of the Town Committee.

3. The impugned order was passed by the Commissioner, Sargodha Division, on 6-6-1969, few days before the expiry of the probationary period of the petitioner. It is admitted in the report submitted by him that in view of the irregularities committed by the petitioner, as mentioned above, and on account of his unsatisfactory performance and bad reputation his services were terminated with immediate effect.

4. The main question to be examined in this case is; as to whether any show-cause notice was required to be issued to the petitioner being a probationer before terminating his services on account of inefficiency, mis conduct and bad reputation. It has been argued that since he was a probationer and had not entered the regular service, therefore, no show cause notice was required to be issued. The learned counsel appear ing for the respondent has also relied upon Nawab Din v. Secretary to the Government of Punjab, Social Welfare and Local Department 1971SCMR141 wherein it has been held that the petitioner in that case, who was in the service of the Local Council, was not holding a civil post in connection with the affairs of the Centre or a Province as contemplated under Art. 177 of the late Constitution so as to require that he should be given a reason able opportunity of showing cause against the action proposed to be taken against him.

5. It is not denied that the petitioner is in the Local Council's service a provided by Art. 44 of the Basic Democracies Order of 1959. Article 45 o the same order further provides that the controlling authority may on the prescribed terms and conditions appoint a Secretary and one or more Principal Officers to be the servants of a Local Council, who shall perform such functions as are assigned to them in relation to such Local Council by or under this Order. It is also provided under sub-Art. (5) of the said Article that the controlling authority may transfer any of the persons appointed under clause (i) of Art. 45 from one Local Council to another within its jurisdiction. Local Council's service was constituted as such under rule 3 of West Pakistan Local Councils and Municipal Committees Service Rules, 1960, in compliance with the relevant provisions of Basic Democracies Order, 1959. Rule 4 of the said Rules provides for different cadres. in the case of posts borne on provincial or regional cadres appointments are to be made by the Government on the recommendation of the Provincial Selection Board while in the case of posts borne on Divisional cadres appointments are to be made by the respective Commissioners on the recom mendation of the Divisional Selection Board.

6. The petitioner in the present case was appointed by the Commis sioner under the relevant statutory provision as contained in the Basic Democracies Order, 1959, and as such it cannot be denied that he was holding statutory office under the Basic Democracies Order, 1959 at tat a time when his services were terminated. The contention that the petition is not a civil servant as contemplated Art. 177 of the late Constitution, a he has not been holding a civil post, may be true as found in para. 14 of the judgment reported as Abdul Hafiz v. Chairman, Municipal Corporation, Lahore P L D 1967 Lah. 1251. The petitioner has been holding an ordinary post in the ad ministration of the Local Council established under the law. The Town Committee does not function as Department of the Government and as such its servants cannot be treated as civil servants. They are subject to the provisions of the Basic Democracies Order, 1959.

7. The question next arising for consideration is; as to whether the remedy as provided by Art. 98 of the late Constitution can be available of by the petitioner in the absence of any statutory protection granted to him by the Constitution. The learned counsel for the respondent has vehemently argued that since the petitioner has not been holding any civil post and does not enjoy any statutory protection granted by the Constitu tion, therefore, remedy against the impugned order is only by way of suit for damages and not under Art. 98 of the 1962 Constitution. Reliance to this respect, in addition to the authority already referred to above, has been placed upon Abdul Salam Mehta v. Water and Power Development Authority 1970 S C M R 40, Shahid Khalil v. Pakistan International Airlines Corporation 1971 S C M R 568, The Chairman, East Pakistan Industrial Development Corporation v. Rustam All and another P L D 1966 S C

848. Zainul Abiddin v. Multan Central Co-operative Bark Ltd. P L D 1966 S C 445 and The .Lahore Central Co-operative Bank Ltd. v. Pir Saifullah Shah P L D 1959 S C (Pak.) 210.

8. In all the authorities relied upon the persons concerned were not holding any statutory appointment nor they were performing duties of Public nature and importance, rather on the contrary nature of their office was commercial. The question is; whether a person who is holding a statutory office as provided by a Statute and the nature of his duties is also public and not commercial can avail of the remedy as provided by Art. 98 of the late Constitution irrespective of the fact whether any statutory protection has been granted to him by the Constitution or not. The latest authority on the point is reported as R T. H. Janjua v. National Shipping Corporation P L D 1974 S C

146. The case of Dr. Abdul Hafeez as reported in P L D 1967 Lahore has been referred to in the judgment and has been approved. The relevant part of the judgment is reproduced below for benefit:- "It remains to consider the ratio decidendi in the case of Dr. Abdul Hafeez, on which the petitioner's learned counsel mainly relied ..That was the case of an Assistant Medical Officer of Health of Lahore Municipal Corporation, who was compulsorily retired. under the West Pakistan Local Councils and Municipal Committees Servants (Further Usefulness in Service) Rules, 1963. The order of compulsory retirement was successfully challenged by invoking the writ jurisdiction of the High Court. In that case, after reviewing almost the entire case-law bearing on the subject including this Court's Judgment in Rustam Ali's case, the learned Judges of the Division Bench set aside the impugned order because in their opinion Dr. Abdul Hafeez as Assistant Medical Officer of Health, held statutory appointment under section 39 (2) of the City of Lahore Corporation Act, 1941 (Punjab Act XV of 1941). After the repeal of the Act his appointment con tinued on the same terms and conditions under section 4 (2) of the Municipal Administration Ordinance, 1960 (Ordinance X of 1960). The learned Judges observed in Paragraph 22 of their Judgment that as Assistant Medical Officer, Dr. Abdul Hafeez "was performing duties of public nature and importance . . . over a consider able area within the limits of Lahore Municipal Corporation. This constitutes the main distinguishing feature of the case, which except it from the rule laid down in the precedent cases relied upon by the caveator's learned counsel. In that respect nothing turns on the fact, whether a corporation is statutory or an incorporated company whether public or private. This distinction was succinctly brought out by this Court in the case of the Managing Committee or Cooperative Model Town Society Ltd. v. Kh. Muhammad Iqbal P L D 1963 S C 179 with reference to the decision of this Court in the case of Saifullah Shah noticed already by the following observations: "As to 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, vie. The Lahore Central Co-operative Bank v. Saif Ullah Shah, 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, vie., that of Secretary, to a Co operative Society, and difference may also be found in the cir cumstances that the Society in this case exercises administrative functions in a considerable township, vie., Model Town' . . . . ." The distinction between the two kinds of offices was brought into bold relief in yet another judgment of this Court in Maqbool Ilahi v. Abdul Rehman Khan P L D 1960 S C 266, in which madamus was issued to restore a duly qualified director to his office, who was wrongfully excluded from the Board of Directors of a Joint Stock Company. But the same was refused to the Secretary of the company, on the short ground that he merely performed Secretarial duties although the Articles of Association of the Company ex pressly provided for his appointment. The petitioner before us whose main function was to secure business for the Corporation pass the Lahore region cannot possibly claim a better or a higher status than the Commercial Manager of a Bank or the Secretary of a Joint Stock Company. For the foregoing reasons, we dismiss the petition, because apart from its facts ; "a writ petition did not lie in such a case".

9. The facts of the case as referred to above are that the petitioner B.. 'F. H. Janjua was employed as Regional Officer at Lahore by respondent, .'rational Shipping Corporation established by the National Shipping Corpora tion Ordinance, 1963. He was served with seventeen charges mostly relating to the unauthorised expenditure and other business irregularities and was asked to explain his conduct. The Managing Director after considering the charges and findings of the enquiry report as well as further statement of the petitioner removed him from service with immediate effect by his order dated 2-9-1972. The petitioner, Mr. Janjua, challenged that order by filing writ petition, which was dismissed in limine on the ground that the cave did not disclose any violation of statutory protection to the petitioner and also for the reason that the controversial question of fact involved in the case required a detailed inquiry which could not be undertaken in the proceedings in regard to writ jurisdiction. His petition for Special Leave to Appeal was also dismissed by their Lordships of the Supreme Court by the judgment as referred to above. The relevant portion as reproduced above would show the main reason for dismissing the petition. Mr. Janjua was not found holding any statutory office not the nature of his office was public, rather on the contrary it was found that his main function was to secure business for the Corporation.

10. The facts of the present case would show that the same can be dis tinguished on the basis of the principle laid down by their Lordships of the Supreme Court. The petitioner has been holding a statutory office, as mentioned above, and being Secretary of the Town Committee he was performing duties of public nature and importance. He wag not holding any commercial office nor securing any business for any Corporation as:' discussed m the judgment of the Supreme Court. In this view of the matter; the petitioner can avail of the remedy as provided under Art. 98 of the late Constitution as his case can be clearly distinguished from the cases relied upon by the learned counsel for the respondent in accordance with the test laid down by the Supreme Court.

11. It is admitted by the respondent in his report that no show-1 cause notice was issued to the petitioner at the time when his services were terminated mainly on the ground that a probationer does not require any such notice, according to law a probationer is also to be deemed to be in service like a temporary employee. He is equally subject to all checks to which a permanent Government servant is subject. The only difference between a probationer and a Government employee is that be is not vet confirmed in his service. If his termination of service is simpliciter then he may not be entitled to any show-cause notice, but if it carries any stigma with it on account of inefficiency, unsatisfactory work or misconduct, then he is required to be issued a show-cause notice before his service can be terminated. Termination of service on account of some ineffi ciency or misconduct would tantamount to removal or dismissal and the same cannot be effected without show-cause notice. Reliance in this respect can be placed upon Capt. Muhammad Azhar v. Commissioner of Karachi and another P L D 1966 S C 253 and Riaz Ali Khan v. Pakistan P L D 1967 Lah.

491. In both the cases the persons concerned were probationers and had not yet been confirmed in their service. The plea that since the petitioner was probationer, therefore, no show-cause notice was required to be issued to him before termination of his service cannot be accepted to be valid as in the present case his services were terminated on account of being inefficient had enjoying bad reputation. The impugned order does not show termination of services simplicter, but it carries a stigma against the petitioner. According to law it was necessary to issue show-cause notice before passing the impugned order. The said order having been passed against law and in excess or' jurisdiction cannot, therefore, be maintained.

12. The result is that the writ petition succeeds and the impugned order being without lawful authority and of no legal consequence is hereby set aside. 'there will, however, be no order as to costs. K. B. A. Petition accepted