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Writ Petition No. 118 of 1957, decided on 17th March 1958.
‑Contradictions I of allegation of fact in petition to be from officers who have personal, and not those who have only a limited, knowledge about facts contradicted‑Constitution of Pakistan, Art. 170.
Executive orders‑Distinction.
Held that, if the statutory authority is allowed to pass an order subjectively, based on his personal or private opinion, and does not impose a liability or affect the right of others in a substantial manner, then the order will be executive, but if the statutory order is to be passed objectively, and based on some relevant and existing circumstances and facts, and at the same time substantially affects the rights of others, it would be a quasi Judicial order.
Province of Bombay v. Khushaldas S. Advani A I R 1950 Supreme Court 222 ref.
S. 14‑A‑Order quasi judicial and not executive.
Held, that the orders passed under section 14‑A of the Punjab District Boards Act is a quasi judicial order, and not executive. If it is passed on question of facts without giving sufficient opportunity to a person whose rights have been affected by the order to meet those allegations, then it would be in violation of principles of natural justice.
Such an order does not confer any power on the Provincial Government to pass an order in accordance with its whims and fancies. On the other, hand, it lays down the principle upon which such an order is to be passed, that is, the Provincial Government, before passing the final order, must determine the reason, and that reason must be the one which affects public interest.
M. Abdul Majid v. The West Pakistan Province and two others P L D 1956 (W. P.) Lah. 615 ref.
Debendra Bandhu Lahiri v. The State of West Bengal and others A I R 1952 Cal. 808 and Bidhu Bhusan Bagchi and another v. The State of West Bengal A I R 1952 Cal. 901 distinguished.
‑
Principles.
Principles of natural justice are :‑
(1) That every person whose civil rights are affected must have a reasonable notice of the case he has to meet.
(2) That he must have reasonable opportunity of being heard in his defence.
(3) That the hearing must be by an impartial Tribunal, that is, a person who is neither directly nor indirectly a party to the case, or who has an interest in the litigation, or is already biased against the party concerned.
(4) That the authority must act in good faith, and not arbitrarily, capriciously, or maliciously.
If the discretionary power conferred on an executive authority is exercised arbitrarily, capriciously, or unreasonably, or by taking; into account extraneous and irrelevant considerations, the authority concerned must be deemed not to have exercised the discretion at all, that is, he has not discharged his duty.
Abdul Qayyum Khan for Petitioner.
Ch. Muhammad Ali, A. A. G. for Respondent.
Date of hearing : 4th February 1958, (Arguments heard Orders reserved).
‑The District Board, Attock, consists of forty‑one Members, who were elected to it in December, 1954. Pir Safiuddin, son of Pir Mohayudin Lal Badshah, Popularly known as Pir Sahib of Makhad, was chosen as its Chairman and Muhammad Muzaffar Klan, of village Jalalia, as vice‑Chairman. One Malik Allahvar was its ordinary Member. From the file which I have marked as Ex. P. C. it appears that a news item concerning the affairs of this District Board was publishcd in Lahore and Karachi daily, newspapers called Civil & Military Gazette, in its issue of 22nd July, 1955. This news item is not on the record, so it is not possible to say what it contained and against whom it was directed. The cutting was sent by the defunct Punjab Government to the Commissioner, Rawalpindi Division, of which Attock District then formed an integral part for either report or inquiry. What happened next whether any report was submitted or not, or if it was submitted, what it contained, cannot be discovered from the record, because it is said that all papers touching this subject were lost in transit. On the 15th October, 1955, the merger took place of Provinces and States etc. of Western wing of Pakistan into one Administrative unit called the Province of the West Pakistan. In the reshuffling of the districts, Attock District was detatched from Rawalpindi Division and attached to Peshawar Division. Subsequently, it was represented to the West Pakistan Government that twenty‑five members of the Attock District Board wanted to move a Resolution curtailing the powers of the Chairman, but the Resolution was not admitted to the Agenda. The Deputy Commissioner, Attock, by Memorandum No. 4209‑1/F/C./G. dated 11th of June, 1956 (page 11 of File )fix. P. A.) asked the Chairman to convene a meeting at an early date so that an Observer appointed by him might watch the proceedings. This meeting was held on the 6th of July, 1956, and was attended by Sayed Munir Hussain, C. S. P., who was then functioning as Assistant Commissioner, Peshawar, as an Observer. He was, however, appointed by the Commissioner, and not by the Deputy Commissioner. He submitted his report on the 9th of July, 1956 (Pages 21 and 22 of file Ex. P. A.). On the 16th of July, 1956, Malik Muhammad Akram Khan and Muhammad Hayat Khan, also Members of the same District Board, addressed an application to the Secretary to Government West Pakistan, Social Welfare and Local Government Depart ments, Lahore (page 12 of Ex. P. A.) complaining of mal-administra tion, nepotism and waste of public funds by the Chairman of the District Board, and also accusing him of not holding the meetings at the proper time and curtailing the ordinary rights of the Members of the Boards. The .principal complaint in this application was directed against the action of the Chairman fixing the dates of the meetings of the . District Board at short notices and then postponing them and then fixing them again at inop portune times. He was also accused of not getting different sub‑committees and their Chairmen elected. The Secretary to whom the letter was addressed in his office‑note (at pages‑3 and 4 of file Ex. P. C.) made a reference to certain previous inquiry and recorded that his D. O. and Commissioner Zuberi's report could not be traced in the office as having been misplaced, but he opined that it was definite that the Chairman of the District Board had committed certain irregularities and his conduct called for an early inquiry. He, therefore, suggested that Mr. Munir Hussain, who had sat as an Observer at one of the meetings, might be deputed to do the job. The Minister‑in‑charge of the Local Bodies, Sayed Hassan Mahmud, however, ordered on the 20th of July, 1956, that Mr. Saeed Hassan, Election Officer, Local Bodies, should conduct the inquiry. A letter to that effect No. 6141‑B & C/56 was issued on the 28th of July 1956 (page 23 of file Ex. P. A.) to the Commissioner, Peshawar Division, and a copy of it was sent to Mr. Saeed Hassan. This officer arrived at Campbellpur on the 2nd of August, 1956, and started the inquiry immediately. He submitted his report which runs into 49 typed pages, on the 14th of August, 1956 (file Ex. P. B‑). The office of the Secretary, Social Welfare and Local Government Department scrutinised this report and arrived at the conclusion that there was no case made out to supersede the Board as a whole, but the individual members of the Board, who were found guilty of malpractices and the irregularities, should be removed from the membership and their seats in the Board declared vacant in exercise of the powers conferred upon the Government by section 14‑A of the Punjab District Boards Act XX of 1883. This section reads as under
"Notwithstanding anything in the foregoing sections of this chapter or in the rules made thereunder the Provincial Govern ment may, at any time, for any reason which it may deem to affect the public interests or at the request of the majority of the electors, by notification direct that the seat of any specified member, whether elected or appointed, shall be vacated on a given date, and in such case, such seat shall be vacated accordingly."
Eventually, it was decided that before final action was taken against the persons who were adversely criticised in the report, they should first be charge‑sheeted and afforded an opportunity to show cause against the action suggested by the Secretary.
The following charges accordingly were framed against Pir Safi‑ud‑din Chairman :‑
"(1) That in the proceedings of 6/7/1956, you recorded" the decision of the Commissioner is keenly awaited" which indicates that a reference had already been made to the Commissioner on the subject. Actually there was no occasion for these words at the time of proceedings. It shows that the proceedings had either been 'ante‑dated or were not recorded immediately after the meeting was over. These were recorded after a reference to the Commissioner had been made. You thus tampered with the records of the District Board.
(2) (a) That in contravention of the prescribed qualifications you connived at retention in service of the District Board a Muharir, Muhammad Sher, of Fateh Jhang, who is a non‑matric. Qualifications prescribed for this post are matric certificate ;
(b) That according to Rule 2‑A published on 10th October, 1952, vide Notification No. 8827‑52 B & C/5473, the minimum academic qualification, which an untrained teacher should possess, is a middle pass. In contravention of this you appointed one Mukhtar Begum on the 16th August, 1955, a District Board teacher. She had explicitly in her application stated that she had not passed the Middle Examination ;
(c) That the services of S. Shah Nawaz were utilised until he attained the age of 60 in the Revenue Section. Thereafter, his name was removed from the roll. His services are still being utilized in connection with the work of Cattle Fairs at the rate of Rs. 25 p. m. per fair. He is shown to be working on contract basis to assess and collect profession tax without remuneration. You have on the one hand retained in service of the Board a superannuated person without proper approval and on the other manoeuvred his appointment by payment of remuneration through contingency.
(d) That you as Chairman by an order dated 18‑6‑1955 appointed by one Abdul Hamid as teacher on production of a certificate that he had passed the Middle Examination. Abdul Hamid is a minor. His date of birth as registered in the school record is 17‑6‑1939. No service record was prepared after the appointment of this teacher. The general principle that minors are not to be taken in service was thus disregarded. No sanction exists for this appointment even now.
(e) That you as Chairman appointed S. Iqbal Hussain Shah as Professional Tax Inspector in the senior grade in disregard to the claims of employees already in service of the District Board. A certificate of medical fitness was not demanded by you on his appointment. According to the recognised policy his duties as Tax Inspector required that he should be out in the district for 20 days in a month. He remained on tour in February, 1956, for three days. In March, 1956, he was out for eight days. In April, 1956, he was out for two days and during May, 1956, he did not leave the headquarters. During June, 1956, he remained out of headquarters for three days only. He was shown on tour on 20‑7‑1955 whereas the telephone book shows that he was at the headquarters on that day. He booked a trunk call to No. 5 Kohat. All this shows that the promotion of S. Iqbal Hussain Shah was not only improper but was prompted by motive of nepotism based on abuse of power.
(f) That you as Chairman and Head of the office failed to call upon S. Iqbal Hussain Shah to account for very poor collec tion results. The following table shows the amounts collected by him and the amount of remuneration he received ;‑
| Month Collection Remuneraion
June, 1955. Rs. 16‑1‑0 Rs. 78‑7‑0. October, 1955. Rs. 85‑1‑0 Rs. 135‑0‑0.
February, 1956. Rs. 74‑0‑0 Rs. 135‑0‑0. April, 1956. Rs. 55‑0‑0 Rs. 134‑0‑0. May, 1956. Rs. 49‑1‑0 Rs. 166‑14‑0.
|
Most of the above collections were made by some one else. Numerous receipts therefor are in the handwriting of Ghulam Muhammad, Tax Muharrir attached to this Inspector. In some cases this Ghulam Muhammad has appended the signature of S. Iqbal Hussain Shah. Some of these amounts were directly tendered at the counter in the office and have wrongly been shown as collection made by S. Iqba) Hussain Shah.
(g) That you as Chairman in' the lease money of Cattle Fair Fee allowed reduction as a result of which the Board sustained loss amounting to Rs. 3725. This step savoured of favouritism. In writing off this amount approval of the Commissioner was required. This was not applied for by you.
(h) You as Chairman were instrumental in accepting the lease of land owned by Malik Sher Bahadur Khan and others in Pindi Gheb for holding weekly fairs at surprisingly high rental. The District Board owns land in that place. Besides other private land where such fairs had been held at comparatively low rent were available in the area. This shows those terms of lease are not based on public interest. Undertaking has been given to the owner for the payment of Rs. 10,000 as damages in case the plot is vacated or acquired during the long term lease. The landlord has further been allowed advances of big amounts for laying a well. In consequence of this the District Board has without proper reason sustained a heavy loss at your hands.
(i) That as Chairman of the District Board you disregarded the rules in force by inflicting the following fines on the staff, which tantamounts to irregular exercise of powers :‑
| Name 5 Fine Orders
Muhammad Hussain 1 month pay Chairman orders confirmed Dilawal by serial No. 69 of Resolution No. 2‑DG., dated 3‑12‑1955.
Jehandad. 3 days' pay Chairman orders confirmed teacher Haroon by serial No‑: 63 of Resolu - tion No. 2‑ G D dated, 3‑12‑1955.
Haq Nawaz Haroon 3 days' pay Chairman orders confirmed (Teacher) by Serial No. 63, of Resolu - tion No. 2‑G D, dated 3‑12‑1955.
Murid Hussain . Taragarh (teacher) 1 day's pay Chairman, orders confirmed by serial No. 67 of Resolution No. 2‑GD, dated 3‑12‑1955.
Mian Ahmad Taragarh (teacher) 5 days' pay Chairman orders confirmed by serial No. 47 of Resolu tion No. 2‑GD, dated 3‑12 1955. |
3. (a) That as Chairman you embarked on the Talagang Tank Improvement Scheme for which estimates were prepared at a cost of Rs. 16899. This, according to rules, required previous technical sanction, which, however, was not obtained. The Bull dozer of the Forest Department was also hired. Against the estimates sanctioned by you on 27‑7‑1956, excavation was shown at Rs., 1‑8‑0 per 1,000 Cft. a rate much below the scheduled rate and no premium was provided. For the works done no measure ments have so far been taken. The Bull‑dozer teas also employed on works other than those intended.
(b) That you as Chairman made allotment of works for providing repairs at premium ranging between 20 % to 100 %. Also you made allotment of works to contractors who had offered comparatively higher percentage of premium. According to page 94 of the Tender Register contract was sanctioned in favour of Sultan Ahmad at 74% premium although one Mumtaz Khan had offered 50 % premium. M/S Ghulam Ahmad and Noor Muhammad had offered 60 % premium each and Sh:, Nawab offered Rs. 62‑8‑0% According to page . 99 of the Tender Register contract was again given to Sultan Ahmad at 80 Y. premium although Ahmad Khan had offered to undertake on 50 % premium. This tantamounts to violation of rules and waste of resources.
Dated Lahore the 26th (Sd.) A. M. K. Mazari,
September, 1956. Deputy Secretary to Govern
ment of West Pakistan, Social
Welfare & Local Government
Department."
Muhammad Muzaffar Khan was asked to answer the following charges :‑
(1) That. you as Senior Vice‑Chairman charged Travelling Allowance at the rate of 0‑8‑0 per mile for day to day journey from your village (a distance about 21 miles) from Campbellpur to Jalalian and back in connection with office work. You went daily to your village and charged mileage for undertaking these journeys. This was not prompted by consideration of service of the District Board. In the Travelling .Allowance Bill you also made declaration that you, travelled in your own car. On reference to the District Registration Authority, it has transpired that you do not own a car. You have thus charged Travelling Allowance for journey unwarranted by public interest. You have for purposes of charging Travelling Allowance made wrong declaration that you travelled in car owned by you.
(2) That you as Senior Vice‑Chairman recommended to the Chairman and were instrumental in getting the lease of land owned by Malik Sher Bahadur Khan and others in Pindi Gheb accepted for holding weekly fairs at surprisingly high rent. Not only the District Board owns land in that place but also other private lands where such fairs had been held at com paratively low rent were available in the area. This shows that their terms of lease are not based on public interest, and in consequence of this the District Board has without proper reason sustained a heavy loss because of your defective advice
and recommendation.
Dated Lahore (Sd.) A. M. K. Mazari,
September, 1956. Deputy Secretary to Govern
ment, West Pakistan, Social
Welfare & Local Government
Department" .
Malik Allahyar Khan was indicted as under :‑
"That you received a temporary advance of Rs. 600 vide voucher No. 11, dated the 2nd August, 1955 and according to the T. A. Bill, you left Campbellpur for Karachi on the l lth August, 1955. You reached Karachi on the 13th August, 1955, and stayed there for District Board work from the 14th August, 1955. You, however, left Karachi on the 1st September and returned to Campbellpur on the 2nd September, 1955. According to your statement the jeep wanted some repairs which you arranged to provide at the District Board cost, two gallons of petrol were consumed while you were at Karachi for taking delivery of the jeep. The record reveals that you failed to despatch the jeep after taking its delivery while you were in Karachi and that it was not despatched by rail till the 10th of October, 1955. The jeep actually arrived at Campbellpur on 15th October, 1955. On arrival at Campbellpur the milometer of the jeep had registered 1130 miles. In this manner the jeep was misused after taking delivery from the Director‑General, Supply and Development, before it was delivered to the District Board, Campbellpur. The unspent balance of the advance amounting to Rs. 55‑12‑0 was also not credited by you in the District Fund until the 3rd of January, 1956. It is a case of dereliction of duty and temporary misappropriation of District Board Funds.
Dated Lahore (Sd.) A. M. K. Mazari,
the September, 1956. Deputy Secretary to Govern
ment, West Pakistan, Social
Welfare & Local Government
Department".
These charges were delivered to Malik Allahyar on the 3rd and to other two gentlemen on the 4th of October, 1956. They expected to furnish their explanations within fourteen days of the receipt of these charges. This period was, however, sub sequently extended to the date terminating on the 10th day of the receipt by them of Memorandum No. 8337‑B and C (A)/56, dated the 28th November, 1956, (page 141 of file Ex. P. D.), All the three indicted persons submitted their explanations which were forwarded by the Commissioner, Peshawar Division, to the Deputy Secretary to the Government of West Pakistan Social Welfare and Local Government Department, with a covering Memorandum No. 603/L. G. XXI‑M‑90,.dated Peshawar the 7th of January, 1957 (page 147 of file Ex. P. D.), Pir Safiuddin's reply ran into 24 typed pages. There were fifteen annexures appended to the explanation which were marked as A to N (see pages 149 to 189 of file Ex. P. D.), M'alik Allahyar's explanation covered three typed pages (pages 191 to 193 of file Ex. P. D.). He annexed a copy of a letter from one Muhammad Hassan to himself dated the 18th of December, 1955. Muzaffar Khan's explanation consisted of five typed pages with two annexures (pages 200 to 206 of file P.D.). These explanations were examined by an officer by the name of Mr. Muzaffar Ali (pages 33 to 39 of file Ex. P. C.), who recom mended that action under section 14‑A of the District Board Act should be taken against all three. This recommendation was endorsed by another officer of the Social Welfare and Local Government Department and then submitted to the Secretary of the same Department, who considered that Malik Allahyar should be let off with a formal warning. With regard to the other two, i.e., the Chairman and the Vice‑Chairman, his opinion was couched in the following words :‑
"Considering that general standards of efficiency and integrity in the local bodies are not very high a lenient view could perhaps be taken and a stern warning issued to the Chairman, Sayed Safiuddin and Malik Muzaffar Khan to be careful in future."
This opinion is dated the 10th of January, 1957. On the same day, Syed Hassan Mahmud, Minister‑in‑charge of the aforemen tioned Department, passed the following order : ‑
"Action under section 14 of the Punjab District Boards Act should be taken against Sayed Safiuddin, Chairman, D. B. Attock and Malik Muzaffar Khan, member, District Board. In order to tone up the local bodies' administration, such a measure is called for.
Malik Allahyar Khan may be let. off this time with a formal warning."
Thereupon, a Pressnote was published in Pakistan Times of the 12th of January, 1957, which was to the following effect :‑
"Campbellpur D. B. Chairman Seat Declared Vacant.
The West Pakistan Government has declared vacant the seats of the Chairman, District Board, Campbellpur, Sayed Safiuddin, and of a member of the Board, Malik Muzaffar Khan, says a Press Note.
This action has been taken under section 14‑A of the Punjab District Board Act, 1883, which pertains to the gross misuse of powers.
Some time back, several complaints of abuse of powers, disregard of rules and misuse of the property of the District Board, Campbellpur, were reported to the Government. The Govern ment deputed an officer to inquire into these charges and on receipt of his report the persons responsible for these irregularities were served with charge‑sheets.
After their explanation the Government is convinced that the Chairman of the District Board, Campbellpur Sayed Safiuddin, and a member of the Board, Malik Muzaffar Khan, have grossly misused their powers in a number of cases, and has, therefore, declared their seats vacant. Another member of this Board, viz. Malik Allahyar Khan has, however, been let off with a warning."
Sayed Hassan Mahmud, in his statement, did not think that such a press note was ever issued by the Government, but on this point, he is contradicted by the written‑statement which has been sworn in by Mr. Sayed Hassan, presumably on behalf of the Government in which the issue of the press note is distinctly affirmed. Finally, Muhammad Muzaffar Khan was also dropped out and eventually Notification No. 242‑B & C(A)‑57, dated the 19th of January, 1957, declaring the seat of Sayed Safiuddin alone as vacant was published in the West Pakistan Gazette of the 25th of January, 1957. Aggrieved by this Notification, Pir Safiuddin has made this Writ Petition (No. 118 of 1957) against the Secretary, Social Welfare and Local Bodies Department, for its cancellation and for ordering the respondent to allow the petitioner to resume his duties as a member and Chairman of the District Board, Campbellpur, without let or hindrance.
He complains that he has been unseated not because he was proved guilty of charges levelled against him, but solely because he and his father, who are Muslim Leaguers and the latter is a Member of both Provincial and Central Legislatures, have refused to succumb to the pressure of the Republican Party, which is at present in power, to leave Muslim League, and Join them. He fortifies his argument by stating that Malik Allahyar and Muzaffar Khan, who succumbed to such pressure, were in fact let off, and not unseated. He assailed the inquiry conducted by Mr. Saeed Hassan on the following grounds:‑
(1) that it was merely a farce, presumably meaning that the decision to unseat the petitioner was already taken for his and his father having refused to desert the Muslim League and join the Republicans, and
(2) that it was conducted in a partisan‑like manner, wherein no evidence was recorded, and if some was recorded, no opportunity was given to him to produce evidence in rebuttal.
It is further argued in the petition that section 14‑A was to be read ejusdem generis with section 14, and that it did not confer an unfettered and unconditional power on the Government in utter disregard of other provisions of the District Board Act to unseat an elected member of the District Board.
Curiously enough, the Secretary, Social Welfare and Local Government Department of the West Pakistan Government, who was the sole respondent in the case, did not consider it necessary to put in a written statement or contradict the assertions of malafides made in the petition by swearing in a counter‑affidavit. This most important function was performed by Mr. Saeed Hassan, who naturally could not be aware of the fact that the petitioner was unseated for the sole reason or at least for one of the reasons that he did not join the Republican Party‑a fact which would be exclusively within the knowledge of the members of the political party which for the time being constituted the Provincial Government of West Pakistan. Mr. Saeed Hassan naturally could do no more than to contradict the allegations made in the petition "to his knowledge". This omission, which is extremely vital to the decision of this petition, was attempted to be cured by this Court by examining Mr. Hassan Mahmud, the Minister, who was at the material time holding the portfolio of this Department, but still it is difficult to say that i: is completely cured, because Mr. Hassan Mahmud was not the only Minister who could have exerted pressure on the petitioner or his father. Several other Ministers might have something to do with it. Dr. Khan Sahib, who was then the Chief Minister, admittedly did have a very important role to play in the removal of the petitioner from the District Board, and in not allowing the Notification to be issued with regard to the seat of Muhammad Muzaffar Khan. It surely was not expected of this Court to examine all these Ministers. This lacuna could have been effectively removed by putting in a counter‑affidavit on behalf of the Government. It is essential that all allegations made in petitions for the issue of writs of certiorari should be contradicted by counter‑affidavits of the person or persons who have personal knowledge in the matter, and not by an officer whose knowledge is limited only to certain facts. So, we proceed to decide this case with mental consciousness that the Government as it was formed at the material time, has not contradicted the petition in regard to material facts.
The learned Additional Advocate General has objected to the jurisdiction of this Court to question the vires of the impugned notification. His argument is that the order passed under section 14‑A of the Punjab District Board Act (No. 20 of 1883) by the Provincial Government is purely administrative or ministerial in nature and cannot be challenged in the High Court in exercise of the powers conferred upon it under Article 170 of the Constitution of the Islamic Republic of Pakistan. In a democratic society the members thereof possess , innumerable rights, each being as vital as the other, and which change with the changing circumstances in accordance with the nature of public order, security and social and economic welfare. Some of these rights are specifically mentioned in the constitution of the country which means that they cannot be abridged, repealed or diminished, except by the process laid down in the constitution itself fox the amendment of the constitutional provisions. There are other rights which are created by different enactments passed by the Central Parliament or the Provincial' Legislature in their respective fields which also cannot be impaired by the Government or the people in authority except by the process laid down in those enactments themselves. Such rights are sometimes invaded by the Government or the persons in authority either by the judicial, quasi judicial or executive orders. What orders belong to which of these three categories is to be determined by looking at the nature of the order. and not the general character of the statutory authority passing such order. There are Courts or Tribunals, who possess judicial powers and have to act judicially in accordance with the prescribed procedure. The orders passed by such Courts and Tribunals are called judicial orders. There are then officers, Boards and Tribunals. who do not possess the judicial powers in the sense as they are possessed by Courts of law, yet they have to act upon consideration of given facts and circumstances. In such cases the jurisdiction of officers, Boards, or' Tribunals depends upon the fulfilment of some condition precedent or upon the existence of some particular fact. The determination of whether such conditions are fulfilled or such particular facts exist, must logically and in consequence be prior to the actual order passed. Lastly there ate administrative orders, which are also sometimes called executive or ministerial orders. The distinction between iudicial and executive orders often turns out to be a very fine one. Quite often the Courts have felt difficulties in distingu ishing between the two. According to one view, if a statutory authority performs a statutory function which does not impose liability or affect the rights of others it is an executive function, otherwise it is either judicial or quasi judicial. According to another view, the performance of such a function will be executive if the statute under which the order is passed does not lay down the procedure indicating a judicial approach to the question. I am, however, unable to accept such a broad principle. as sound. There may be an order prima facie executive and yet the duty to act judicially, though not prescribed in the relevant law, may arise by implications. The question as to what orders can be considered as quasi‑judicial and what orders administrative or executive, was discussed exhaustively by the Supreme Court of India in Province of Bombay v. Khushaldars S. Advani reported in (A I R 1950 S C 222). The question which was to be decided in this case was whether an order passed by the Provincial Government under section 3 of the Bombay Land Requisition Ordinance (V of 1947) was of a quasi‑judicial nature or purely executive The relevant part of this section was as under :‑
"If, in the opinion of the Provincial Government it is necessary or expedient to do so, the Provincial Government may by order in writing requisition any land for any public purpose."
Three Judges, namely, Kania C. J., Fazl Ali and Pathanjah Sastri JJ. were of the opinion that the order passed under this section was of an executive nature against which a writ of certiorari would not lie. Mahajan J., and Mukherjea J., however, were of the opposite opinion.
Kania C. J. observed that the Irish Law was as propounded by May C. J. in Regina (John M Evoy) v. Dublin Corporation (1878) 2 L. R. I r. 371, in the following words:‑
"It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection the term "Judicial" does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others."
This pronouncement, however, did not find favour with Kania C. J., who approved the law as laid down in English cases, and held that the word Quasi‑judicial' itself necessarily implies the existence of the judicial element in the process leading to the decision. His Lordship further observed that every decision of the executive generally is a decision of fact and in most cases affects the rights of someone or the other and because an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred upon it, the determination of the objective fact and the exercise of the power' based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari. Observing as to what the quasi judicial orders would be, His Lordship said :‑
"It seems to me that the true position is that when the law under which the authority is making a decision itself requires a judicial approach, the decision will be quasi judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision, the well -recognised principles of approach are required to be followed."
The opinion of Mukherjea J. will be found at page 239. It is to the following effect :‑
"There cannot indeed be a judicial act which does not create rights or impose obligations; but an act, as has been already pointed out is not necessarily judicial, because it affects the rights of subjects. Every judicial act presupposes the applica tion of judicial process. There is a well marked distinction between forming a personal or private opinion about a matter, and determining it judicially. In the performance of an executive act, the authority has certainly to apply his mind to the materials before him ; but the opinion he forms is a purely subjective matter which depends entirely upon his state of mind. It is of course necessary that he must act in good faith, and it is established that he was not influenced by any extraneous consideration, there is nothing further to be said about it. In a judicial proceeding, on the other hand, the process or method of application is different." The judicial process involves the application of a body of rules or principles by the technique of a particular psychological method Robson's Justice and Administrative Law p. 33". It involves a proposal and an opposition, and arriving at a decision upon the same on consideration of facts and circumstances according to the rules of reason and justice. It is not necessary that the strict rules of evidence should be followed the procedure for investi gation of facts or for reception of evidence may vary according to the requirements of a particular case. There need not be any hard and fast rule on such matters, but the decision which the authority arrives at must not be his subjective', personal', or private' opinion. It must be something which conforms to an objective standard or criterion laid down or recognised by law .and the soundness or otherwise of the determination must be capable of being tested by the same external standard."
Making a distinction between the judicial and executive orders, His Lordship put it in one small exhaustive sentence :‑
"On the other hand, if the statute imposes an objective condition precedent of fact to the exercise of the powers by an authority, and not merely his subjective opinion about it, the function would be prima facie judicial." After giving my anxious consideration to the distinction between the quasi judicial anti administrative order, I have arrived at the conclusion that if the statutory authority is allowed to pass an order subjec tively, based on his personal or private opinion, and does not impose a liability or affect the right of others in a substantial manner, then the order will be executive, but if the statutory; order is to be passed objectively, and based on some relevant and existing circumstances and facts, and at the same time sub stantially affects the rights of others it would be a quasi judicial order.
It is in the light of these observations that I proceed to look at section 14‑A of the Punjab District Boards Act. The condition precedent for the exercise of the powers sunder this section is that there should be a reason which the Provincial Government may deem to affect the public interest. The word "deem" is not the same thing as the expression of opinion by the . statutory authority: Its meaning given in Chamber's 20th Century Dictionary is " to Judge", "to think", "to believe" which clearly implies the determination of the given fact upon which depends the statutory authority's jurisdiction to pass the final order. The use of the word "reason," further clarifies the position and excludes the Provincial Government's powers which is arbitrary or of an excessive nature beyond what is required in the interest of the public. It implies that the Provincial Government must act in the manner which reason dictates and strikes a proper balance between the security of tenure which an elected Member of the District Board enjoys and the judicial control permitted by this section. The use of the words, " reason" and "deem", in my opinion, involves the idea of judicial approach. The discretionary statutory powers conferred upon the Provincial Government for the public good is clearly coupled with the duty to perform it on the existing reason. The decision of the Provincial Government to declare the seat of a Member of the District Board vacant is not a matter of its opinion, but is liable to be tested by an objective standard and that introduces judicial investigation. Such an order not only imposes a liability of a substantial character on a subject, but it also affects his rights materially. In my opinion, therefore, the orders passed under section 14‑A of the Punjab District Boards Act is a quasi‑judicial order, and not executive. If it is passed on question of facts without giving sufficient opportunity to a person, whose rights have been affected by the order to meet those allegations, then it would be in violation of principles of natural justice which are well settled and are four in number:-
(1) That every person whose civil rights are affected must have a reasonable notice of the case he has to meet.
(2) That he must have reasonable opportunity of being heard in his defence.
(3) That the hearing must be by an impartial Tribunal, that is, a person who is neither directly nor indirectly a party to the case, or who has an interest in the litigation, or is already biased against the party concerned.
(4) That the authority must act in good faith, and not arbitrarily, capriciously, or maliciously.
Even, if this order be an executive order, stilt it would be totally wrong to assume that as such it can under no circumstance be quashed by a . High Court in the exercise of its writ' jurisdiction. If the discretionary power conferred on an executive authority is exercised arbitrarily, capriciously, or unreasonably, or by taking into account extraneous and irrelevant considerations, the authority concerned must be deemed not to have exercised the discretion at all, that is, he has not discharged his duty. If the' High Court on the facts placed before it, comes to a definite conclusion that a particular authority has not exercised its duty fort one or the other aforesaid reasons, it will compel the authority to discharge his duty or to put it differently to exercise his discretion honestly and objectively. If the authority fails to discharge his duty by refusing to exercise his discretion when facts calling for its exercise exist, or if he exercises discretion under the circumstances mentioned above, which is not an exercise of discretion in law, the Court will compel him to do so. I, consequently, hold that section 14 ‑A of the Punjab District Boards Act does not confer any power on the Provincial Government to pass an order in accordance with its whims and fancies. On the other hand, lays down the principle upon which such an order, is to be passed, that is, the Provincial Government, before passing the final order must determine the reason, and that reason must be the one which affects public interest.
Taking the impugned order as a quasi‑judicial order, then before it was passed, the petitioner should have had a reason able notice of the case he had to meet, and must have been given a reasonable opportunity of being heard in his defence by an impartial Tribunal. I am prepared to concede that the petitioner in this case had a notice of the case which he had to meet, because the charge‑sheet was served upon him. I am, however, quite clear in my mind that he did not have a reasonable opportunity of being heard by an impartial Tribunal in his defence. The learned Additional Advocate General advanced a noval argument at the Bar that the petitioner, should be considered to have been given an opportunity to be heard by reason of the fact that Mr. Saeed Hassan conducted an open inquiry in which the petitioner had every opportunity to participate if he so desired. The inquiry which was entrusted to Mr. Saeed Hassan, as is clear from Memorandum of the Assistant Secretary to Government of West Pakistan No. 6141‑R & C‑56, dated the 28th of July, 1956, was with regard to the affairs of the District Board, Attock. It was not directed against any particular person that he should have been expected to take part in it and take steps to defend himself. The only direction with regard to the Chairman contained in this memorandum was that he should be ordered to remain at the Headquarters during the course of the inquiry. Mr. Saeed Hassan, before proceeding to Campbellpur, asked the Deputy Commissioner " to inform those concerned to contact him at the Civil Rest House on the morning of 3rd of August, 1956 ". Who those concerned were was not made clear by him in this letter to the Deputy Commissioner. It is admitted by the learned Additional Advocate‑General, and is also clear from tile record of the Inquiry Officer, that no order was issued to the Chairman to participate in the inquiry or be present at the time of recording he evidence and examining the record of the District Board. With due deference to the learned Additional Advocate‑General, it will be absurd to expect every member or employee of the District Board or even the Commissioner or the Deputy Commissioner, who have lot to do with the affairs of the District Board, to continually remain present during the period that the inquiry was going on and take it as if it was being conducted personally against him. The nature of the inquiry was best described by Mr. A. H. Khan, Secretary, Welfare and Local Government at page 10 of File Eh. P. C., that i: was a mere inspection into the working of the District Board machinery, rather than an in4uiry into the conduct of the President or some of the members. This is also clear from the fact that major portion of the report deals with the working and the shortcomings of the District Board and contains numerous suggestions made for improving the same. The report submitted by the Inquiry Officer was in the nature of a preliminary inquiry undertaken to charge the persons who were found to have committed illegalities or irregularities in the performance of their respective functions or had indulged in mal-administration. It was, perhaps for this reason that it was not considered necessary to send for the Chairman and ask him to take part in the inquiry. On the conclusion, of the inquiry. Mr. Saeed Hassan sent a message through his peon, requesting the petitioner to appear before him and make a statement. He sent no written order, nor did he give any indication as to on what particular matters the petitioner was to be examined. The petitioner replied back that he would not like to make the statement in the presence of persons on whose complaint the inquiry had been started. The petitioner, however, appeared before the Inquiry Officer the same day, and according to the latter, he refused to make the statement, but according to the petitioner, he did make a statement on the following day, though tha4 statement is not forthcoming on the record. This incident that the petitioner refused to make a statement will not, however, mean that he is bound by the proceedings of the Inquiry Officer taken behind his back, particularly when he was quite unaware then on what particular points his statement was to be recorded. According to the well‑established principles of natural justice, the petitioner should have been given a reasonable opportunity to answer the charges framed against him, whereafter he should have been given a second opportunity of being heard. Merely asking the petitioner to submit an explanation to the charges can, by no stretch of imagination, be, said to mean that the petitioner was given a reasonable opportunity of being heard in his defence. The law places a corresponding duty on the authority concerned to apply its mind to the explanation, and try to ascertain whether the facts mentioned in the explanation are correct or not. If the authority does not even care to examine the explanation, it tantamounts to not giving an opportunity. The petitioner demanded a copy of the report from the Government, but the Government refused to give it, and so the explanation had to be submitted by the petitioner without knowing exactly what the inquiry officer had written against him. The petitioner, in his reply, had alleged certain facts which necessitated a further inquiry into the matter before the final order was passed. In answer to the first charge, the petitioner had stated that the proceedings of 6th of July 1956, were recorded on the same day, and not subsequently, which fact could be ascertained by examining the record of the Deputy Commissioner's Office, because the copy of the proceedings were transmitted to that office on the following day. Since there was no indication in the report of the Inquiry Officer that the record of the Deputy Commissioner's Office had been inspected, the Provincial Govern ment should have sent for such record in order to find out whether the explanation was correct or not. If the copy of the Resolution was sent to the Deputy Commissioner's Office on the 7th and it was identical to the one which was kept in the District Board's Office, then the first charge stood refuted. The words in the Resolution " the decision of the Commissioner is keenly awaited " might have been, in the light of the inspection of the Deputy Commissioner's record, shown to be only due to defective English.
The explanation given to charge No. 2 (a) was that Muhammad‑Sher was appointed a Temporary Muharrir in 1948, and that the petitioner only retained his services, which was not a violation of the law, which only prohibited the appoint ment of a non‑Matriculate permanently to a substantive post. The rule which is quoted in the explanation certainly bears the Chairman out. It has not been referred to by the Inquiry Officer in his report. It was clearly the duty of the final statutory authority to send for this rules and see it.
As regards Charge No. 2 (b), the Chairman explained that Mst. Mukhtar Begum's appointment was made on the recom mendation of the Deputy District Inspectress of Schools. He further explained that similar appointments have been made by his predecessor too.
In answer to Charge No. 2 (f), the Chairman submitted that the appointment of Shah Nawaz was made, because he was an experienced hand, and, the appointment was confirmed by the District Board. In answer to Charge No. 2 (d), he said that there was no prohibition in any law that a minor cannot be appointed as a teacher in any school. In any case, it was asserted that the appointment was made on the recommendation of the Educational Authorities. In case of 2 (b) and 4 (d) it was absolutely necessary before a final conclusion was reached to examine the recommendations made by the Educational Authorities who are primarily charged for the appointment of competent persons as Teachers. The Resolution passed by the District Board should also have been examined. The Inquiry Officer did not even refer to these recom mendations in his Report, which makes it perfectly clear that he had not examined them at all. In case of 2 (c) too, the Resolution of the District Board needed to be at least seen in this respect, it will be amusing to note that the Inquiry Officer aid not say in his Report that the petitioner was responsible, for the detention of the ,services of Shah Nawaz in the District Board. On the other hand, it was quite clear from, the said Report that the services of this gentleman were utilised by a Resolution of the District Board. In spite of this, the charge in this respect was framed against the petitioner that " You have on the one hand retained in service of the Board etc. etc.". The petitioner also did not take the res ponsibility of the appointment of Shah Nawaz upon his own shoulders. So, before the petitioner was held responsible for it, further inquiry into the charge was inevitable.
As regards Charge 2 (e); the answer given by the peti tioner was that S. Iqbal Hussain Shah was appointed a Professional Tax Inspector after the fact was brought to the notice of the Deputy Commissioner and sanction obtained from the Commissioner of the Division. By, itself, the appoint ment of S. Iqbal Hussain Shah was not objectionable, but it was alleged against the petitioner that he did not obtain from him the medical certificate. It was not clear from the report under what rules such a certificate was necessary. The petitioner had alleged in the petition that he only followed the traditions Of 6e District Board, were no such certificate had been demanded since the last sixty years. In all fairness, an investigation should have been made if this assertion of the petitioner was correct or not. As regards the default committed by Syed Iqbal Hussain in the discharge of his duties, surely the responsibility of it would not lie on the petitioner. In any case, Iqbal Hussain Shah was no relation of the petitioner and there was no reason shown by the Inquiry Officer in his report as to why the Chairman should have been partial towards him.
In answer to Charge 2 (f), the petitioner submitted that the Inquiry Officer had deliberately avoided to mention those months in which the Tax Inspector had made the collections more than the remuneration he received. As regards the suitable action on the poor collection, it was asserted by the petitioner that he always issued instructions to the Provincial Tax Inspector, who was mainly responsible to supervise the work of the Tax Inspector, to take action against the people who did not show diligence in their work. The petitioner also submitted that with regard to the fact that Iqbal Hussain Shah did not himself make the collections, he had ordered an inquiry, and it was reported to him in writing that the allegation was baseless. The petitioner objected to his being charge‑sheeted for the negligence shown by the employees of the District Board.
In reply to Charge 2 (g), the petitioner alleged that the lease money was reduced not by him, but by the District Board, and for very good reasons. He further stated, and in fact it was admitted even by the Inquiry Officer, that this procedure was adopted by the District Board on the advice of the legal Adviser. In the circumstances, it is difficult to understand how could the Chairman be held personally responsible for this reduction.
Replying to Charge 2 (h), the Chairman gave facts and figures to show that the District Board had suffered no loss. In any case, he submitted, and I think very rightly, that it was the Board consisting of 41 members, who had passed the Resolution and taken the land on lease. There appears to be no reason as to why he should personally be held responsible for the act of the entire District Board.
Charge 2 (i) was refuted by the petitioner by saying that it was ordered by Mr. Ronson, the Deputy Commissioner of Attock, that in the case of a teacher found absent from the school without reasonable excuse, he should in the first instance be fined one months' pay, and in the second instance should invariably be dismissed. This proposal of Mr. Ronson was accepted by the District Board by Resolution No. 12‑ED, dated the 12th of January 1935. He also made a reference to a Punjab Government's letter and a Punjab Government's Notification in justification of the Board's act. Before taking any final decision on this Charge, it was absolutely necessary to see Mr. Ronson's recommendations, the District Board's Resolution and the different letter and notifications referred to in the explanation.
As regards Charge 3 (a), the petitioner definitely said that he did not embark on Talagang Tank Improvement Scheme, but it was the Deputy Commissioner who directed the District Board to do so in 1953. He made a reference to several docu ments and the letters in order to justify his action. These letters and documents should necessarily have been seen in order to find whether the charge was substantiated or not.
The petitioner completely denied Charge 3 (b) and made reference to several documents which the Inquiry Officer had not seen. The perusal of the explanation submitted by the petitioner definitely enjoined a duty on the Provincial Govern ment to hold further inquiry in the matter. The Provincial Government, not only did not hold any inquiry, but the Minister‑in‑charge, before passing the final order does not seem to have applied his mind to the explanation submitted by the petitioner at all. This is clear from the fact that the Minister did not say in so many words as to which charges were proved against the petitioner and which were not, or even that all the charges had been proved against him. Mr. Hassan Mahmud, the Minister for Social Welfare and Local Government, said in his statement that he read the explanations very thoroughly and formed an opinion that the petitioner was guilty of irregu larities, the loss of District Board Funds, and maladministration. That was wild and arrogant opinion formed according to his own statement on the report of the Inquiry Officer, the notes put up by the Secretary and Deputy . Secretary, and nothing else. It has already been mentioned that the Inquiry Officer conducted the inquiry behind the back of the petitioner. The notes of the Secretary and the Deputy Secretary were equally made in the absence of the petitioner and were not in any way communicated to him. Mr. Hassan Mahmud further admitted that he did not write any detailed order that such and such charges were proved against the petitioner and such and such were not. He further admitted that he did not send for the record of the District Board to find out whether the explanation submitted by Pir Safiuddin was correct or not. This explanation was also not sent to any officer to inquire whether it was based on facts or not. At the end of the examina tion by the Court, he admitted in so many words that the explanation of Pir Safiuddin was rejected purely on the basis of the inquiry report. This clearly shows that the Minister, though he may have read the explanation, and to put it in his own words "very thoroughly, he did not in fact apply his mind to it. I have already said earlier in this judgment that the petitioner had made reference to several documents in his explanation which was not even alluded to in the report of the Inquiry Officer, and therefore, before the explanation was rejected, it was incumbent on the Minister to send for those documents which were all public documents and try to arrive at a fair conclusion. The report of the Inquiry Officer could not have been of any help in this respect for any authority anxious to pass an honest order. The submission of the ex planation would have no meaning whatsoever if it was to be treated as a waste paper not worthy of any consideration. The order of the Provincial Government, therefore, passed in such circumstances, can by no stretch of imagination, be called "bona fide". The entire action of the Minister‑in‑charge amounted to a fraud on the power conferred upon him by section 14‑A of the District Boards Act.
If the order of the Provincial Government is treated as an executive order, still it cannot stand the test of fair examina tion. The principles of natural justice apply to the passing of executive orders just as much as they apply to the passing of the quasi‑judicial orders. In this case, however, certain facts have been brought upon the record which point out that the Provincial Government did not treat all the three indicted persons equally. Initially, the charge‑sheets were framed against Malik Allah Yar, Malik Muzaffar Khan and the petitioner. This was as a result of the report of the Inquiry Officer who had suggested that all these three persons as well as the persons mentioned in Para. No. 33 (M. Khurshid), Para. 64 (M. A. Siddiqi) and Para. 73 should be asked to explain as to why action under section 14‑A of the District Boards Act of 1883 should not be taken against them. The Under‑Secretary suggested that it was a fit case to take action under section 14‑A of the Punjab District Boards Act. The Secretary, however, submitted that considering that the general standard of efficiency in the Local Bodies was not very high, a lenient view could perhaps be taken and a stern warning issued to the Chairman and Malik Muzaffar Khan. With regard to Malik Allah Yar, he said that he should be let off with a formal warning. The Government agreed with the Secretary with regard to Malik Allahyar. A press note was issued in respect of the other two and their seats were declared vacant under section 14‑A of the Punjab District Boards Act. Finally, the notification declaring the seat of the petitioner alone as vacant was published in the official gazette. The case of Muzaffar Khan is still under consideration. Mr. Hassan Mahmud has said in his evidence that after reading Muzaffar Khan's explanation, he arrived at the conclusion without of course consulting the Law Department, that Muzaffar Khan did not borrow the car, and even if he did so, he could not legally claim the travelling allowance, but he added that even if this charge was not proved, still there was the second charge, meaning presumably that it stood fully proved. In spite of forming this firm opinion about Muzaffar Khan, he was persuaded by Dr. Khan Sahib " to allow an opportunity to Muzaffar Khan to appear before me personally and explain his case ", which if done. lie might pro bably present an explanation most convincing. So, the Minister was made to believe that the report of the Inquiry Officer and the explanation submitted by Muzaffar .Khan could not be con sidered sufficient to constitute the basis of an action under section 14‑A. This belief should have at once put the Minister on guard with regard to the report of the Inquiry Officer, even as against the petitioner. The Minister, if he wanted to be fair, should have argued in his mind that if Muzaffar Khan was entitled to be given an opportunity to appear before him and explain his case, why should the same opportunity be not afforded to the petitioner, who might also be able to give a most convincing explanation This course of action would have been more conducive to good conscience and fair play ; particu larly when no reference was made by the inquiry Officer to numerous documents upon which the petitioner's defence was based. In comparison to Malik Allahyar and Muzaffar Khan, the charges framed against the petitioner, though more in number, were less serious. The question which at once occurs to one's mind is as to why this discriminatory treatment : Why has Malik Allahyar been let off with a mere warning, and the sword of damocles is left still hanging on the head of Muzaffar Khan, and why the petitioner's seat alone has been declared vacant.
It is admitted by Sayed Hassan Mahmud, the Minister- in‑Charge, that both Allah Yar and Muzaffar Khan were Muslim Leaguers at the time they were charge‑sheeted. It is also admitted by him that both of them are no longer Muslim Leaguers because they have joined the Republican Party. Muzaffar Khan has stated in his evidence that he became a Republican ten or fifteen days after he had read the press note in "Pakistan Times" of January the 12th 1957. He, therefore, changed his loyalties either on the 22nd or at the latest on the 27th of January, 1957. It was on the 16th of January, 1957, that Dr. Khan Sahib, the then Chief Minister, asked Sayed Hassan Mahmud to further consider Muzaffar Khan's case before any action was taken against him. Notifica tion omitting the name of Muzaffar Khan was published in the official gazette of the 25th of January, 1957. The learned Additional Advocate General has laid a very great stress on Muzaffar Khan's statement made in this Court that he became a Republican without any coercion, pressure or threat or promise that he would not be unseated from the District Board. But, in the circumstances of the case, when his fate was still hanging in the balance, he could not be expected to say anything else. He, however, admitted that he became a Republican, because Dr. Khan Sahib approached him and persuaded him to become one. As regards Allahyar, Muzaffar Khan was definite in his statement that he joined it before he was let off. It is also a fact that the petitioner and his father are still Muslim Leaguers and have repelled all attempts to win them over to the Republican side. An adverse inference may legitimately be drawn from these facts that no action was taken against Malik Allahyar and Muzaffar Khan because they become the Republicans and the petitioner was unseated because he did not succumb to the demand. Since Allahyar has not been put into the witness‑box : nor has Dr. Khan Sahib been produced, it is impossible to hold positively that the order of the Provincial Government is mala fide, but it has to be conceded that the attending circumstances which led to the passing of the order give an impression that the order was not passed in the interest of the public. The Provincial Government, while exercising' the powers vested in it by different statutes, must conduct itself in such a way that a confidence in its administration is inspired in the minds of the people. They should not act in the manner that the people should have an idea that the orders are passed by it in furthering a certain political movement; or against its political opponents.
If one looks at the charges framed against the three persons, then Malik AllahyAr was charged for using the Board's jeep without lawful authority and charging the Board for the travelling allowance to which he was not entitled under the rules. Similarly, Muzaffar Khan was also charged for charging travelling allowance unnecessarily and against the rules. As against this, the charges against the petitioner were that he committed certain irregularities. It is every day experience that a person who is entrusted with certain functions inadvertently or in the interest of the Department, is led to commit, certain irregularities or even illegalities. If officials are caught for these irregularities, then no official will be found working in any office. Before holding that a charge of committing irregu larities has been proved against certain person, I think it is necessary to go further into this question whether those irregu larities were committed inadvertently or intentionally in order to gain some benefit for himself or to cause some loss to another.
The learned Additional Advocate General argued that this Court should not go into the facts which led to the issuing of the notification, but arrive at the final conclusion with regard to the bona fides of the statutory authority by looking at the notifi cation alone. When a statutory authority passes an executive order and it is challenged in a Court of Law it is sometimes useful, but quite often absolutely necessary, to probe the order a little. It is very difficult to expect a statutory authority to make an order which should be manifestly, palpably and obviously dishonest. In order to discover its real motive, the Court must inevitably go into the attending circumstances. In the case under discussion, it will be madness to expect the Government to say in so many words in a notification, that Pir Safiuddin was being removed from the membership of the District Board, because he had refused to join the Republican Party. In order to find this out, the notification has to be scratched, but not on a very elaborate scale. At any rate, the Court must peep through the curtain of the order to discern the motive behind, omitting the names of Muzaffar Khan and Allahyar from the notification.
I must now hurriedly go through the authorities quoted at the Bar. In addition to the Indian Supreme Court authority discussed earlier in this judgment, the learned Additional Advocate General has quoted two Calcutta authorities. The first case is Debendra Bandhu Lahiri v. the State of West Bengal and others (A I R 1952 Cal. 808). The facts of the case were that the petitioner was the holder of a license in respect of a country liquor shop in the District of Jalpaiguri. The Superintendent of Excise paid a surprise visit to his shop and discovered that not only the petitioner was selling liquor bottles at high prices, but the sale is being conducted by a salesman who was not registered according to the excise rules and the account books were not up‑to‑date. A notice was issued to the petitioner to show cause why he should not be penalised for the irregularities. The petitioner admitted the irregularities, but tried to explain them away in his own way. When action was taken, he made a writ petition and the question arose whether the order of the Superintendent of Excise was a judicial order, or an executive order. Sinha J., after referring to certain case law, opined as under :‑
"In every case, particularly when one of the parties, is also the statutory authority deciding the case, the question that would arise for determinate on is whether that authority had a duty to arrive at the decision judicially. The test to be applied to such a case is to see whether that authority is required by the statute, which has conferred the power upon it, to do any act which is capable of affecting the subject prejudicially to act judicially. Where that is so, the determina tion of the question by that authority is quasi‑judicial."
In this case, under the law, the Deputy Commissioner was entitled to cancel a license, if in his opinion, it was a fit case for doing so and the learned Judge, held that it was an executive order, and if the Deputy Commissioner thought in his discretion, that the license should be cancelled on the grounds given by him, the High Court could not interfere with the matter.
The second case is Bidhu Bhushan and another v. The State of West Bengal (A I R 1952 Cal. 901). The writ petition in which this judgment was given was against the order of the West Bengal Government superseding the District Board of Murshidabad.
Discussing whether this order was quasi‑judicial or administrative the learned Judge remarked as under :‑
"The reports show a sharp conflict in the application of the tests which have been applied by the Courts in determining this question."
Summing up the authorities which he quoted in his judgment, the learned Judge further observed as under :‑
"It is clear from the above passage that in order that a decision by a statutory authority may be regarded as a quasi‑judicial act, the approach to the decision must be a judicial one. In other words, the conclusion which has to be reached by the statutory authority must require the application of a judicial process in arriving at a decision ; that is a process which involves the application of a body of rules or principles by the technique of a particular psychological standard'. In the present case, if this test is applied, it seems to me that the determination of the question whether the District Board should be superseded or not cannot be regarded as a quasi judicial act on the simple ground that the decision need not be reached by a judicial approach to the decision of the question. Section 121, Bengal Local Self Government Act, 1885, does not require the Provincial Government, to start an enquiry at which the District Board would have a right of audience. After the amendment of section 131 in 1932, the only requisite is that the Provincial Government will ask for an explanation from the District Board."
Laying down the dictum as to when can an administrative order be questioned, the learned Judge remarked as under : ‑
"The position, therefore, is that before a prerogative writ can be availed of, four conditions must concur. There must be (1) a body of persons, (2) the body of persons must have legal authority to determine the questions, (3) the question must affect the rights of subject, and (4) there must be a duty to act judicially and not in excess of the authority conferred on that body".
After going through the facts of the case, His Lordship held that the petitioner had failed to establish that the action of the Provincial Government was unauthorised.
Both these cases will have no application to the facts of the present case, because in both of them, it was the opinion of the statutory authority which mattered and there was no question of passing any order for the reasons in the best interests of the public.
Very similar to the case now under discussion was the case decided by the Lahore Bench of this Court in M. Abdul Majid v. The West Pakistan Province and two others (P L D 1956 (W.P.) Lah. 615). This was a case in which M. Abdul Majid was elected a member of the Municipal Committee, Karor Pakka, District Multan. Subsequently, he was elected to the office of the President. A complaint was made against him by certain people, belonging to Karor Pakka on which the Minister‑in‑Charge appointed Mr. Masud‑ul‑Hassan for inquiry and report. This officer made a confidential inquiry at Karor Pakka during his three hours' stay and made a report against Mr. Abdul Majid, who as a result thereof, was removed from the membership of the Municipal Committee, under section 14 (e) of the Punjab Municipal Act, which is very much similar to section 14‑A of the District Boards Act. The learned Judges held that an order made by the Government under section 14 (e) of the Punjab Municipal Act (111 of 1911), directing that the seat of a certain member of a Municipal Committee shall be vacated on a certain date is, liable to be removed by a writ of certiorari under Article 170 of . the Constitution. They further held that the act of the Government in making such a direction was quasi judicial, and not of an administrative nature. They further found that a writ of certiorari will lie to remove a judicial or quasi‑judicial act, if in making an order, or arriving at a decision, the principles of natural justice or other well‑recognised principles governing judicial functions were disregarded. They further expressed the view that in determining whether an act was purely administrative or judicial, the proper test was whether the relevant provision of law authorised the authority concerned to form a subjective opinion as to the existence of certain facts and conditions as pre‑requisite to the making of an order by the authority concerned. In the former case, the act would be administrative or ministerial and in the latter case judicial or quasi judicial. They further added that in giving judicial powers to affect prejudicially the rights of person or property, a statute was understood as silently implying, when it did not expressly provide, that the power was to be exercised in accordance with the fundamental rules of judicial procedure, e.g. that the person sought to be prejudicially affected shall have an opportunity of defending himself. According to this authority, then the impugned order will be quasi‑judicial order and the principles already enunciated will apply to it.
The result of the above discussion is, that I accept this petition with costs quash the Government's Notification published in the official gazette of the West Pakistan, dated the 25th of January 1957, and order the West Pakistan Government to allow the petitioner to resume his duties as member and President of the Attock District Board without any let or hindrance. Counsel fee Rs. 500.
I agree with my learned brother, that the impugned order of the Provincial Government be quashed and the petitioner allowed to resume his duties as Member and President of the District Board.
In my view, section 14‑A of the District Boards Act does not confer absolute and arbitrary powers upon the Provincial Government to vacate the seat of a member. Such an act is .of a quasi‑judicial nature, and not executive or ministerial. Before exercising the powers, the Government is bound to afford a Reasonable opportunity to a member to clear his conduct. In the 'D present case Malik Muzaffar Khan, though he was unseated along with the petitioner has been given a further opportunity to explain his conduct, but the case of the petitioner has been treated as finally closed, and lie has not been afforded a similar opportunity. It is pertinent to ask, as to why the two cases which are similar in nature, are being treated differently. The petitioner is entitled to the same opportunity which is being afforded to the other Member of the District Board, and one finds no good ground for discrimination. Broadly speaking, reasonable opportunity in the case of the petitioner will mean the same opportunity which is now being given to the other Member Malik Muzaffar Khan and if the petitioner's case is allowed to be treated on a different footing, it will have to be conceded, that he has not been given, or is not being given a reasonable opportunity.
From whatever angle the case of the petitioner is viewed, it cannot be denied that the principles of natural justice have been violated and the case has not been judged on a judicial or quasi‑judicial level, and as such the impugned order cannot be defended.
As regards the malafide or, otherwise of the order, there is no sufficient evidence on the record to warrant a definite finding.
Announced in open Court.
A. H. Petition accepted.
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