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Petitioner: MUNSHI ABDUL JABBER AND OTHERS VS Respondent: THE BARISAL MUNICIPAL COMMITTEE, BARISAL AND ANOTHER
P L D 1970 Dacca 508
P L D 1970 Dacca 508
Before B. A. Siddiqi, C. J. and Maksum‑ul‑Hakim, J
Munshi ABDUL JABBER AND OTHERS‑Petitioners
Versus
THE BARISAL MUNICIPAL COMMITTEE, BARISAL AND ANOTHER‑Respondents
Writ Petitions Nos. 6428, 629, 612, 643, 644, 645, 647, 648 and 649 of 1966, decided on 15th August 1968.
(a) Constitution of Pakistan (1962),
Art. 98 read with Bengal Municipal Act (XV of 1932), S. 66 and Municipal Administration Ordinance (X of 1960), Ss. 29 & 130‑Writ‑Mandamus‑--Master and servant‑--Tenure of service of employees of Municipal Committee‑Purely of contractual nature liable to be controlled by rule of master and servant‑Specific performance of such con tract of sere ice through Court‑Not permissible ‑Specific Relief Act (I of 1877), S. 21 (a) & (b).
Section 66 of the Bengal Municipal Act, 1932 conferred powers on the Chairman to appoint such subordinate staff for the Municipality as may be deemed necessary for the purpose. After the repeal of the Bengal Municipal Act, by virtue of section 4 of the Municipal Administration Ordinance, 1960 the services of the petitioners came to be governed under the provisions of section 130 of the Municipal Administration Ordinance, 1960. It is obvious from the provisions of section 29 read with section 130 of the Municipal Ordinance, 1960 that the tenure of services of the petitioners continued to be "under the pleasure of the Municipal Committee. The offices held by the petitioners were purely of a contractual nature which is liable to be control led by the rule of master and servant. As such the Municipal Committee were always within their rights to discontinue the services of their employees and it is not available to the peti tioners to claim a relief in the form of a declaration that they were still in service or that the orders of dismissal were made without lawful authority and as such were of no legal effect. Specific performance of such contracts of service is clearly not permissible.
M/s. Malik & Haq v. Muhammad Shamsul Islam P L D 1961 S C 531 and Karnaphully Paper Mills Ltd. v. Workers' Union P L D 19 61 S C 329 rel.
(b) Constitution of Pakistan (1962),
Art. 98 read with Municipal Administration Ordinance (X of 1960), Ss. 29 & 130‑--Writ ‑Mandamus‑Employees of Municipal Committee whose services continue under pleasure of Municipal Committee‑Services of such employees carry no legal guarantee far less any constitutional safeguard appli cable to public servants‑Writ of mandamus, held, not maintainable for restoration of office of such employees of Municipal Committee Principles laid down in relation to high prerogative writs‑Equally applicable to writ of mandamus and other petitions under Art. 98, Constitution of Pakistan (1962).
It is obvious from the provisions of section 29 read with section 130 of the Municipal Ordinance, 1960 that the tenure of services of the petitioners continued to be "under the pleasure of the Municipal Committee. It is obvious from a reading of these provisions that the posts held by the petitioners never carried any legal guarantee, far less any Constitutional safeguard regard ing their employment. Under the circumstances it cannot be said that the petitioners held any public office wherein they can claim the right to continue to be employed.
It is well‑settled that a writ of mandamus is not available with regard to the restoration of each and every public office. This contention is sound and in accordance with the practice followed in the Courts of England as well as in this country a writ of mandamus has never been issued for the restoration of an office of employees of Municipal Committee. In order to obtain a writ of mandamus for the restoration of an office it has to be clearly established that the office is either a constitutional post or a post specified in the Constitution or any other post which is statutory in nature and carries statutory rights and obligations.
A writ of mandamus for the restoration to an office is not available to a dismissed employee unless he can show that the office held by him was of a public nature which created legal rights and casts corresponding legal liability on the respondents for keeping the employee employed in the office itself.
The principle underlying the grant of a relief in the nature of mandamus does not appear to have been altered under the present Constitution of 1962. Article 98 of the present Constitution has made it more clear that a relief of this nature can be prayed in aid only when his legal right in this regard has been affected by anything done or proceeding taken which is not permitted by law. This legal right must be something which is distinct from a right derived under a contract.
The principle laid down in relation to high prerogative writs is equally applicable with regard to the grant of a mandamus for the restoration of an office and is equally applicable in respect of petitions filed under Article 98 of the present Constitution.
The employees of a Municipality who hold their offices at pleasure do not come within the category of "other Municipal position".
Ferris on Extraordinary Legal Remedies, p. 166; Lahore Central Co‑operative Bank Ltd. v. Pir Saif Ullah Shah P L D 1959 S C (Pak.) 210; Halsbury's Laws of England, Vols. XI, XXV, 3rd Edn., para. 162; Pakistan v. Naseem Ahmad P L D 1961 S C 445; Faiz Ahmed v. Registrar Co‑operative Societies P L D 1962 S C 315; Venkata Rao v. The Secretary of State for India‑in‑Council 64 I A 55; Chairman, East Pakistan Development Corporation v. Rustam Ali P L D 1966 S C 848; Zainul Abedin v. Multan Central Ca‑operative Bank Ltd., Multan P L D 1966 S C 445; Zeaul Haq v. The East Pakistan Co operative Society Ltd. P L D 1969 Dacca 105 and Elias Ahmed Siddiqi v. The Municipal Committee, Multan P L D 1967 Lah. 408 rel.
(c) Constitution of Pakistan (1962),
Art. 98‑Writ---Employees of Municipal Committee holding office at "pleasure of committee"--- Removal of such employees from service even in violation of depart mental rules‑Does not give legal right to restoration of office.
It is also well‑settled that in relation to employees holding office at pleasure even the violation of the departmental rules does not give a legal right to an employee justifying restoration to his office.
(d) Constitution of Pakistan (1962),
Art. 98‑Writ‑Employees of Municipal Committee‑Petitioner challenging removal from service Post held by petitioner abolished‑Relief prayed for becoming infructuous‑Writ, held, cannot be issued in circumstances.
Pakistan v. Ali Afzal P L D 1960 S C 1 rel.
K. Hussain and Md. Maqsud ur Rahman for Petitioners (in all the Petitions).
M. Zahir for Respondents (in all the Petitions).
Dates of hearing: 22nd and 24th July 1968.
JUDGMENT
SIDDIQI, C. J.‑---I have had the advantage of going through the judgment proposed to be delivered by my learned brother Maksum‑ul‑Hakim, J. I agree with the reasons given and the conclusion arrived at by him and have nothing more to add.
MAKSUM‑UL‑HAKIM, J.‑--These nine petitions under Article 98(2) of the Constitution were heard together. They involve same questions of law and fact and are disposed of by this judgment.
The petitioners have challenged the validity of the order of the Chairman dated 17‑2‑1966 whereby their services were terminated and also of the entire proceeding taken in this regard and have prayed for a declaration to the effect that they are still in service of the Barisal Municipality.
Facts giving rise to these petitions are as follows: The petitioners claimed that they were appointed collecting sarkars under the Barisal Municipality in the scale of pay of Rs. 40‑2‑70 with dearness allowance and were confirmed in those posts on different dates. The Municipality had 14 collecting sarkars and their duty was to approach the rate‑payers individually and collect taxes from them. Each one of them had a specified area of collection. The petitioners claimed that they had good records of services as a result of which they were confirmed in their posts in due course. In the 2nd week of January the petitioners were served a notice by Memo. No. 754(14)/XIV/70‑G dated 10‑1‑66 by the Chairman of the Municipal Committee to the effect that their works during the period from July to December 1965 had been unsatisfactory and unless their works improve immediately they would stand dismissed with effect from 1st February 1966. This memo. has been marked Annexure `A' of the petitions. Thereafter the petitioners received another notice being Memo. No. 778(14)/XIV/70‑G dated 17‑2‑66 from the Chairman of the Municipality wherein the petitioners were intimated that. their services were terminated with effect from 16‑2‑66 on the ground of gross inefficiency. This notice is marked Annexure B' of the petition.
All the 14 collecting sarkars of the Barisal Municipality including the present petitioners thereafter preferred appeals to the Commissioner, Khulna Division, who was the controlling authority of the said Municipality. Mr. S. Shamsuzzoha, Additional Commissioner, Khulna Division by his judgment dated 22‑10‑66 dismissed those appeals. These judgments of the Additional Commissioner are made Annexure `C' of the petitions.
The petitioners in these petitions have challenged the validity of the order of dismissal (Annexure 'B') as well as the order of the Additional Commissioner on appeal (Annexure `C') and have prayed for a declaration that these orders were not passed legally, as such they were made without lawful authority and were of no legal effect. They have prayed further for a declara tion that the petitioners are still in service as collecting sarkars of the Barisal Municipality.
Respondent No. 1, the Barisal Municipal Committee, has filed a counter‑affidavit and challenged all these petitions where in it has been contended that the petitioners were served with notices to improve their collections within reasonable time as is evident in Annexure `A' of the petitions. They were duly in formed about the nature of the allegations against them and were also given an opportunity to rectify and/or to make representation regarding the allegations against them. It is stated that the petitioners, however, did not make any representation with regard to the initial notice and only filed appeals after the order of termination was served on them. The appeals were also disposed of on merit and in accordance with law. It is contended by the respondents that the orders passed in terminating the services of the petitioners as well as on their appeals are quite valid and legal and as such should be sustained in law. It has been further 'pointed out that the Commissioner, Khulna Division in his note of inspection dated 3‑11‑1965 directed to inform the collecting agents about the unsatisfactory nature of their works and also for a notice to them requiring improvement in their work or in default termination of their services. In pursuance of that, notices were given to the collecting sarkars for improving their work. The Chairman was later convinced from the record that the petitioners did not improve their work. It is only then that the Chairman issued an order terminating the services of the collecting sarkars. It has been further stated that subsequently a bye‑law was made by the Chairman wherein indoor collection system was introduced in supersession of the system of collecting Municipal dues through collecting sarkars and since then no new appointment of any collecting sarkar has been made, nor is there any contemplation to appoint collecting sarkars at the moment. In course of the hearing of these Rules, we have been further informed that the posts of collecting sarkars have been abolished by the Barisal Municipality. Under these premises it has been contended by the respondents that the relief as prayed for by the petitioners should be denied to them.
Mr. Kamaluddin Hussain, the learned Advocate for the petitioners, has raised three points for our consideration. He has firstly argued that the petitioners were entitled to a notice to show cause before the impugned order of dismissal was passed and as no such notice was given before the issue of the impugned notice, as such there has been a violation of the principle of natural justice in this case. The second point raised by the learned Advocate for the petitioners is that rule 6 of the Model Rules notified by circular No. 64.S2‑6486M dated 8th November 1933 requires that before any officer is removed or dismissed the charges against him shall be reduced to writing and communi cated to him and his reply, if any, shall be recorded. It has been contended that this rule was not complied with in terminating the services of the petitioners and as such the order of the termination ‑is clearly illegal. The third point raised by the learned Advocate for the petitioners is that the Additional Com missioner illegally dismissed the appeals preferred by the peti tioners without giving any hearing to the petitioners personally or through their lawyers and this has also violated the principles of natural justice.
Before we take up the specific points raised by the learned Advocate for the petitioners, it is necessary to consider the question of maintainability of these petitions, as it has been strenuously argued by the learned Advocate for the respondents r that these petitions are not maintainable in their present form. It has been argued on behalf of the respondents that the posts held by the petitioners are in the nature of private employment and there was no legal provision guaranteeing their tenure of services. Consequently the law of master and servant was applicable with regard to the employees and as such the writ of mandamus which actually has been prayed for in these petitions were not appropriate remedies under the circumstances. Section 66 of the Bengal Municipal Act, 1932 conferred powers on the Chairman to appoint such subordinate staff for the as may be deemed necessary for the purpose. The same section also empowered the Chairman to remove such persons and appoint others in their place whenever the same was thought necessary. Clause (iii) of the proviso in subsection (2) of the same section imposed the only limitation on the powers of the Chairman in this regard and that was with regard to the employees earning a monthly salary of Rs. 100 or more. In such cases the orders of dismissal with regard to such employees could be effective only after a resolution to this effect was passed at a special meeting with a majority of two‑thirds of the whole number of the Commissioners of Municipality and with the consent of the local Government. The scale of pay of these petitioners as mentioned earlier clearly shows that even this protection was not available to theta. After the repeal of the Bengal Municipal Act, by virtue of section 4 of the Municipal Administration Ordinance, 1960 the services of the petitioners came to be governed under the provisions of section 130 of the Municipal Administration Ordinance, 1.960. It is obvious from the provisions of section 290 read with section 130 of the Municipal Ordinance, 1960 that the tenure of services of the petitioners continued to be "under the pleasure of" the Municipal Committee. It is obvious from a reading of these provisions that the posts held by the petitioners never carried any legal guarantee, for less any Constitutional safeguard regarding their employment. Under the circumstances it cannot be said that the petitioners held any public office wherein they can claim the right to continue to be employed in pursuance of a legal provision as the offices held by the petitioners were purely of a contractual nature which is liable to be controlled by the rule of master and servant. As such the Municipal Committees were always within their rights to discontinue the services of their employees and it is not available to the peti tioners to claim a relief in the form of a declaration that the were still in service as collecting sarkars of the Barisal Municipality or that the orders of dismissal were made without lawful authority and as such were of no legal effect. Specific performance o such contracts of service is clearly not permissible and the question whether the petitioners are entitled to any damages or not, is a point which has neither been raised in the petitions nor we are called upon to decide the same.
Their Lordships of the Supreme Court in the case of M/s. Malik and Haq v. Muhammad Shamsul Islam (P L D 1961 S C 531) observed as follows:‑
"This appeal should succeed for the simple reason that in the absence of any statutory provision protecting the servant it is not possible in law to grant to him a decree against an unwilling master that he is still his servant. A servant cannot be forced upon his master. The master is always entitled to say that he is prepared to pay damages for breach of contract of service but will not accept the services of the servant. A contract for personal services as will appear from section 21 (b) of the Specific Relief Act cannot be specifically enforced: But it is not even necessary to invoke section 21(b) for such a contract is unenforceable on account of section 21(a) wherein it is provided that a contract for the non‑performance of which compensation in money is adequate relief cannot be specifically enforced. In a case where there is a contract between a master and a servant the master agreeing to pay the salary and the servant agreeing to render personal service it is obvious that money compensation is full relief, for all that the servant was entitled to under the contract was his salary. A breach of contract can give rise to only two reliefs; damages or specific performance. If specific per formance be barred the only relief available is damages. When a master, in branch of his contract, refused to employ the servant the only right that survives to the servant is the right to damages and a decree for damages is the only decree that can be granted to him."
Again in the case of Karnaphully Paper Mills Ltd. v. Workers' Union (P L D 1961 S C 329), their Lordships of the Supreme Court observed:‑
"We are aware that in certain cases affecting public servants, who enjoy exceptional protection under Constitutional provisions, Courts have in a number of cases acted on the principle enunciated by the Tribunal. But in the case of private employment, the ordinary rule of master and servant must be sustained, namely, that without cause assigned the master may dispense with the services of the servant with notice or on payment of salary in lieu of notice. The servant may equally exercise the power of relinquishing his appointment on similar terms. These are mutual and reciprocal promises, and there is no principle available in the relevant law which could operate to minimise the effect of the counterpart promises."
The necessary ingredient of a public office appears to have been correctly stressed in a definition occurring in the Extraordinary Legal Remedies by "Ferris" at page 166 which runs as follows:‑
"The public office is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure, duration, emoluments and duties."
The offices held by the respondents obviously cannot be called public office in the light of the definition in view of the fact that the tenure was neither prescribed by law nor their duration, emoluments and duties guaranteed by any statutory provision.
In view of the above it is abundantly clear that the peti tioners could not claim a relief for setting aside the order of dismissal.
The maintainability of these writ petitions has been attacked by the respondents on another ground. It has been argued that the petitioners have, in fact, claimed a writ of mandamus to compel their restoration to the offices held by them. It has been argued that even if the offices in the instant cases are taken to be public offices still it cannot be said that such offices were of the nature in respect of restoration of which a writ of mondamus was available. It is well‑settled that a writ of mandamus is not available with regard to the restoration off each and every public office. In our opinion, this contention is sound and in accordance with the practice followed in the Courts of England as well as in this country a writ of mandamus has never been issued for the restoration of an office which is of the present nature. In order to obtain a writ of mandamus for the restoration of an office it has to be clearly established that the office is either a constitutional post or a post specified in the Constitution or any other post which is statutory in nature and carries statutory rights and obligations.
In the case of Lahore Central Co‑operative Bank Ltd. v. Pir Saif Ullah Shah (P L D 1959 S C (Pak.) 210) their Lordships of the Supreme Court observed as follows:‑
"Moreover, the law on the subject in this country has hitherto followed in all essential respects the practice of the English Courts and as such to that, an authoritative statement will be found in Halsbury, paragraph 162 in the monograph on "Crown Proceedings". It reads as follows:‑
`An order of mandamus will lie to compel the restoration of a person to an office or franchise, whether spiritual or temporal, of which he has been wrongfully dispossessed, provided the office or franchise is of a public nature; as for example to the office of a mayor, alderman, recorder, town clerk, burgess or other municipal position, to academical degrees, to a fellowship of a college where there is no visitor, or to the offices of parish clerk and sexton.'
The superior Courts in England have not found it possible to extend the scope of mandamus to restoration to office in private corporations. All the offices mentioned in the list con tained in the quotation above appear to be of a public nature, and to have a quality which is entirely foreign to that belonging to the post of Commercial Manager in a Co‑operative Bank. That post was clearly of a contractual nature, falling within the category of employment, and having nothing of the true character of a statutory or corporate office."
In the case of Pakistan v. Naseem Ahmed (P L D 1961 S C 445), their Lordships of the Supreme Court observed as follows:‑
"With profound respect to the learned Judges of the High Court we must, however, point out that there is no authority or principle upon which such a wide proposition can be supported. None has been cited in the judgment of the High Court, nor has the learned counsel appearing to support the judgment been able to place before us any authority support ing the view that a mandamus will lie to compel restoration to ‑any or every kind of public office. Indeed, the authorities cited in Halsbury's Laws of England in support of the proposi tion of law therein enunciated show that the cases in which the English Courts have invoked this extraordinary power for compelling restoration by writ of mandamus are all cases of offices which are either corporate or elective offices or municipal positions. In England, no Court could possibly compel the restoration to offices of any public servant in the service of the Crown, for, all such servants of the Crown hold office during the pleasure of the Crown, and no Court in England would presume to command the Crown. The authorities cited in Halsbury would also seem to indicate that even for other offices, the tenure of which is precarious or dependant on the will of another, a mandamus would not lie to compel restoration to such offices."
And again at page 451 of the same volume it was observed as follows:‑
"For the reasons given above, we are of the view that a writ of mandamus does not lie to restore a Government servant to office, for, even though he may be holding a public office, his office does not fall within the nature of the offices to which restoration can be compelled by this extraordinary remedy."
The same view was reiterated again by their Lordships of the Supreme Court in the case of Faiz Ahmad v. Registrar, Co operative Societies (P L D 1962 S C 315), who observed as follows:--
"This argument, in effect, assumes that because the Co operative Bank concerned in the present case had by its own bye‑laws adopted the procedure of the Government Service Rules for the taking of disciplinary action against its employees, such employees were also entitled to the protection given to Government servants under section 240(3) of the Government of India Act, 1935. This assumption, however, is totally…
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