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Writ Petition No. 12 of 1961, decided on 22nd November 1961.
cl. 5 (i) (a)‑Covers case of misconduct under clause 2(a) of Public Conduct (Public Statutory Corporations) Scrutiny Ordinance (XLI of 1959)‑Screened employee of State Bank‑Election to Union Council set aside.
r. 64 ---Election to Union Council set aside‑Removal from Chairmanship, ancillary to order setting aside election to Union Council.
Farid Ahmed for Petitioner.
Maksumul Hakim Advocate‑General with K. M. Sobhan for Respondent No. 1.
This is an application for the issue of a writ of certiorari for quashing an order passed by respondent No. 1, Mr. D. K. Power, Commissioner, Chittagong, Division, on the 31st of December 1960, setting aside the election of the petitioner, A. K. Jamaluddin Ahmad, to the Union Council of the Pukuriya Union in the District of Chittagong. His case is that he duly filed the nomination paper in respect of the aforesaid election, which was scrutinized and accepted by Elec tion Officer on the 7th of December 1959. As there was no contest in his ward, the petitioner was declared as having been elected unopposed and the same fact was published in the Dacca Gazette on the 30th of January 1960. He was subsequently elected Chairman of the said Union Council on the 25th of February 1960. Thereafter respondent No. 2 Jalaluddin, filed a petition before the Collector of Chittagong under rule 62(2) of Basic Democracies (Conduct of Election) Rules, 1959 (here inafter referred to as the Election Rules), challenging the validity of the election of the petitioner in respect of the afore said election on the ground that the petitioner having been screened out from his service in the State Bank of Pakistan on grounds of inefficiency and misconduct, was debarred and disqualified from being a member of the said Union under the provisions of sub‑clause (f) of clause 2 of Part II of the Second Schedule to the Basic Democracies Order 1959 (President's Orders No. 18 of 1959) (hereinafter referred to as the Order). The said respondent No. 2 also submitted, inter alia, that the acceptance of the nomination paper of the petitioner during the scrutiny was also illegal.
2. The Collector of Chittagong thereupon required a Ma gistrate under him to enquire and report into the matters alleged in the election petition. Thereafter it seems that the Collec tor adopted a somewhat unusual procedure of directing a letter to the Manager of the State Bank of Pakistan, Chittagong in respect of the screening of the petitioner by the Governor of the said Bank. The Collector seems to have received a reply from the said Manager in which the latter gives his opinion as to whether the word misconduct,' occurring in the order that was passed against the petitioner by the Governor of the State Bank, comes within the mischief of the word misconduct as defined in sub‑rule (c) of rule 2 of the Elec tive Bodies (Disqualification) Order, 1959 (President's Order No. 13 of 1959) (hereinafter referred to as the EBDO). Even‑ Actually the Collector dismissed the election petition filed by respondent No. 2.
3. Against the order passed by the Collector, respondent P0 No. 2, Jalaluddin, preferred an appeal which was heard and disposed of by respondent, Mi. D. K. Power, Commissioner, Chittagong Division, who passed an order setting aside the election of the petitioner as a member of the said Union Council as well as his election as Chairman thereof. The legality of that order is now being impeached before us.
4. Mr. Farid Ahmad in support of the Rule nisi obtained by petitioner, has pressed three‑fold points before us. His first contention is that respondent No. 1, Mr. D. K. Power, Com missioner of Chittagong Division, had no jurisdiction to entertain the appeal which was preferred by respondent No. 2 and also to pass the order as made by him. In support of this contention Mr. Farid Ahmad points out the provisions of rules 62 and 64 of Election Rules, which are as follows: --
Rule 62.‑"(1) A candidate whose nomination paper has been rejected under sub‑rule (1) of rule 20 may question the election in respect of which his nomination paper was rejected by a petition to the Collector within thirty days after the publication of the result of that election under rule 43, stating clearly the alleged grounds of improper rejection.
(2) If there is any dispute as to the validity of the election of a member of a Union Council, Union or Town Commit tee under these rules, any person entitled to vote at such election may, within the period referred to in sub‑rule (1) file a petition before the Collector calling in question the validity of such election stating clearly the grounds thereof.
(3) If there is any dispute as to the validity of election of Chairman of a Union Council, or Town Committee under these rules, any member may within thirty days from the date of election of the Chairman, file a petition before the Collector calling in question the validity of such election, stating clearly the grounds thereof."
Rule 64.‑"The voter or the member who had filed a peti tion under sub‑rule (2) or sub‑rule (3), as the case may be, of rule 62 or any of the candidates at the disputed election may, being aggrieved by the order of the Collector under rule 63, apply to the Commissioner within 30 days from the date of the order, for the revision of such order, and the decision of the Commissioner and also subject to such decision, the order of the Collector shall be final and shall not be questioned in any Court." Drawing our attention to sub‑mule (1) of rule 62 of the Election Rules, Mr. Farid Ahmad has argued that respondent No. 2, Jalaluddin, was not competent to question the election of the petitioner under the provision of that sub‑rule which only entitles a candidate whose nomination paper has been rejected, to question the election by a petition to the Collector in respect of which his nomination paper was so rejected. It has been further argued before us that inasmuch as respondent No. 2 is admittedly a person who was not a candidate whose nomination paper was rejected, he was incompetent to prefer any appeal under sub‑rule (1) of the said rule. Furthermore, referring to the provisions of rule 64 of the Election Rules as quoted above, learned Advocate for the petitioner further argues that the appeal before the Commissioner was incompetent as there could be no appeal in respect of an election petition made under sub‑rule (1) of rule 62 as aforesaid. The short answer to this contention is that if the election petition filed by respondent No. 2 against the petitioner was under sub‑rule (1), then the contention of the learned Advocate for the petitioner has substance. But, it is patent that the said election petition filed by respondent No. 2, Jalaluddin, was made under sub‑rule (2), and not under sub‑rule (1), of rule 62, as has been argued by Mr. Farid Ahmad. In fact, in paragraph 8 of the petition the petitioner has set out the substance of the con tents of the election petition filed by respondent No. 2, Jalaluddin. The petitioner has specifically stated in the said paragraph 8 that respondent No. 2, Jalaluddin, filed an election petition to the Collector under sub‑rule (2) of rule 62 of the Election Rules and that he sought to set aside the election of the petitioner, disputing its validity on the ground that the petitioner, A. K. Jamaluddin, was disqualified from becoming a member of the said Union Council having been screened out from the service of the State Bank of Pakistan on ground of misconduct. The case of respondent No. 2 in the said election petition is that the petitioner, A. K. Jamaluddin Ahmad, was disqualified from contesting the said election under the provisions sub‑clause (f) of clause 2 of Part 11 of the Second Schedule to the Order. However, inasmuch as respondent No. 2's further contention before the Collector was that the accep tance of the nomination paper of the petitioner by the Election Officer was also illegal, it has been argued by Mr. Farid Ahmad that the election petition filed by respondent No. 2 was, in fact, a petition under sub‑rule (1) of rule 62 of the Election Rules. This contention is neither borne out by the facts as stated by the petitioner himself nor on an examination of sub‑rule (2) of rule 62. There can be no manner of doubt that res pondent No. 2's election petition was, in actual fact, as also in effect and substance, a petition under sub‑rule (2) of rule 62, as stated above. In this view of the matter which we have taken, there is no substance in this point which was advanced on behalf of the petitioner.
5. The next point urged before us by the learned Advocate for the petitioner was directed towards impeaching the legality of the impugned order passed by respondent No. 1. This branch of the argument on behalf of petitioner was addres sed to us in a somewhat circuitous manner upon taking us through rules and Ordinances concerning the screening of public officers as well as those dealing with election to Union Councils. We would, therefore, set out the relevant rules. .As has been stated above, the impugned order passed by respon dent No. 1, has been made under clause 2 (f) of Part II of the Second Schedule to the Order. Clause (2) enumerates the categories for disqualification from being a member or a candi date for membership of Union Council. One of the grounds for disqualification is set out in the said clause 2 (f) which reads as follows:
"If he is for the time being disqualified for membership of an elective body under the Elective Bodies (Disqualification) Order 1959 (President's Order No. 13 of 1959), or under any other law for the time being in force."
Our attention was drawn to clause 5 (1) (a) of the EBDO. The said clause 5 enumerates the grounds upon which a person would be disqualified from being a member or a candidate for the membership of any elective body. Sub‑clause (a) of the said clause 5 (1) reads as follows :‑
"If he is dismissed, removed or made to retire from the service of Government or of a public statutory, corpo ration, on a charge other than that of inefficiency ; or . . . "
The fact that the petitioner was screened out by the Governor of State Bank of Pakistan has not been challenged. The order passed by the Governor, as communicated to the petitioner is as follows:
The Governor has ordered the termination of services of Mr. A. K. Jamaluddin Ahmad, Clerk Grade I, for his inefficiency and misconduct. Mr. Jamaluddin will be given retirement benefits
(2) The action has been taken under the Public Conduct (Public. Statutory Corporations) (Scrutiny) Ordinance, 1959, read with Public Conduct (Scrutiny) Ordinance 1959 as amended.
(3) The above order will take effect from the close of busi ness on the 30th September 1959, from which date he will be relieved from the Bank's service.
State Bank of Pakistan,
Banking Department
Chittagong
The 29th September 1959.
(Sd.) K. K. Kurani
Manager."
6. Mr. Farid Ahmad built up a rather elaborate argument on the point that the word misconduct as used in the said order finds no mention in, the categories of the grounds under which an employee of a statutory body could have been screened by the Governor. In this connection he has referred us to the provisions of the Public Conduct (Scrutiny) Rules, 1959, framed under the Public Conduct (Scrutiny) Ordinance, 1959. Rule 2 of the said Rules reads as under:
"Where a Committee is of the opinion that there is reason to believe that a person to whom the Ordinance applies: ---
"(a) is corrupt, or may reasonably be considered corrupt because‑
(i) he has the general and persistent reputation of being corrupt; or‑
(ii) he is, or any of his dependents or any other person through him or on his behalf is in possession (for which he cannot reasonably account) of pecuniary resources or of property disproportionate to his known sources of income ; or
(iii) he has assumed a style of living beyond his ostensible means or above his station; or
"(b) is guilty, in the case of a Government servant, of conduct contrary to the rules regulating the conduct of Government servants, and in any other case of conduct unbecoming his office; or
"(c) is inefficient, or has ceased to be efficient, and is not likely to recover his efficiency‑"it may so inform that person and call upon him to explain any fact or circumstance appear ing against him." .
Learned Advocate for the petitioner has urged that misconduct' is not one of the reasons upon which a Committee could screen a public servant and in the categories enumerated above there is no such term as misconduct'. Thereafter he drew our attention to the definition of the word misconduct' as given in clause 2 (c) of the EBDO, which reads as follows
11 'Misconduct' refers to conduct after the fourteenth day of August 1947, and includes any subversive activity, the preach ing of any doctrine or the doing of any act which contri butes to political instability, bribery, corruption or having a general and presistent reputation for being corrupt, jobbery, favouritism, nepotism, willful misadministration, willful misapplication for diversion of public money or moneys collected, whether by public subscription or other wise, and any other abuse of whatsoever kind of power or position, and any attempt at, or abetment of, such misconduct."
7. According to the learned Advocate for the petitioner the word misconduct' as defined in the said clause 2 (c) does not come under the provisions set out in rule 2 of the Public Con duct (Scrutiny) Rules, 1959. It was submitted to us that the Governor of the State Bank of Pakistan could not have, therefore, screened the petitioner on the ground of misconduct. Our attention was further drawn to the charge which was framed against the petitioner by the Screening Committee, which has been set out in the petition as Annexure G and the same reads as follows: ---
29th August 1959.
Ref. No. MGR Gen. 803/20‑59
Mr. A. K. Jamaluddin Ahmad, Clerk Grade I,
State Bank of Pakistan, Chittagong.
"Dear Sir,
"On scrutiny of your personal and confidential files, the Screening Committee has arrived at the conclusion that you have been guilty of conduct contrary to the Rules regu lating the conduct of the State Bank employees and have not discharged efficiently your duties as Clerk, Grade I.
"(2) On behalf of the Screening Committee, I am to ask you to show cause why any of the following punishments may not be imposed on you :‑
(a) Reduction in rank,
(b) Removal from service.
(e) Retirement from service.
(d) Dismissal from service.
(3) Your reply to this notice should reach me by Thursday, the 3rd of September 1959.
(4) If you wish to be heard by the Screening Committee you should appear before it in the office of the Manager, State Bank of Pakistan, Dacca, at 9‑30 a.m. on Monday, the 7th September 1959. For this purpose you will be treated on duty and paid actual expenses of the journey.
(6) Please acknowledge receipt.
Yours faithfully,
S. A. A. Nadvi,
Chairman.
8. We have been asked to co‑relate the order passed by the Governor, namely, the Order of compulsory retirement passed on ground of inefficiency and misconduct with the charge as framed. The aforesaid charge refers to the petitioner having been guilty of conduct contrary to the rules regulating the conduct of State Bank employees and also to his being guilty of not having discharged efficiently the petitioner's duties as a Clerk Grade I. Learned Advocate for the petitioner has argued that conduct contrary to the rules regulating the conduct of service only relates to Government service and not to service under any statutory body. It was, therefore, con tended that in so far as the order passed by the Governor of the State Bank of Pakistan purported to remove the petitioner on the ground of misconduct it was bad and ultra vires the powers of the Governor. In passing, it may be noted here that, the above Ordinance has been applied to servants of a sta tutory body by another Ordinance which we will notice hereafter. The answer to this, in the first place, is, that the peti tioner cannot now impeach before us, as he could not have done before respondent No. 1, the validity of the order passed by the Governor of the State Bank of Pakistan. Respon dent No. 1 has rightly proceeded on the footing that the order passed by the said Governor was valid and we also must proceed on that footing. But apart from this, it will be seen that this contention of the learned Advocate for the petitioner has no substance.
9. The learned Advocate‑General, who has appeared on behalf of respondent No.1 has placed before us the provisions of the Public Conduct (Public Statutory Corporations) (Scrutiny) Ordinance, 1959 (Ordinance XLI of 1959) and has specifically pointed out to Clause 2 thereof which reads thus: --‑
"Nothing in any law, rule or instrument having the force of law shall prevent a person holding a whole‑time paid office or employment in a public statutory corporation whose conduct has been scrutinized by a committee constituted and empowered under the Public Conduct (Scrutiny) Ordinance, 1959, from being‑‑
"(a) suspended, reduced in rank, removed or dismissed for being corrupt or for misconduct or for inefficiency, or
(b) retired for any cause mentioned in the preceding sub -clause, or for having the reputation of being corrupt,
on such pension (if any), as may be admissible to him, proportionate or otherwise, by an order of the authority which appointed him, made not later than the thirtieth day of September 1959."
The above Ordinance came into force on the 23rd of July 1959.1 as would appear from the Gazette, Extraordinary, dated the 24th of July 1959. The Governor of the State Bank of Pakistan had passed the order of compulsory retirement against the petitioner on the 29th of September 1959, which is well after the promulgation of the said Ordinance. It is clear from the provisions of clause (2) as quoted above that an appro priate Screening Committee could pass an order of suspension, reduction in rank, removal or dismissal for being corrupt or for misconduct or inefficiency.
10. Now, the simple question which remains is, does the order passed by the Governor of the State Bank of Pakistani amount to compulsory retirement of the petitioner on ground of inefficiency and also on a ground other than inefficiency We are of opinion that there can be no manner of doubt that misconduct' as a separate and distinct ground for action taken. against the petitioner by the Governor of the State Bank of Pakistan, is a ground "other than that of inefficiency" within the meaning of clause 5(1)(a) of the Elective Bodies (Dis qualification) Order, 1959. We, therefore, also negative the second contention addressed to us on behalf of the petitioner.
11. Lastly, Mr. Farid Ahmad has argued that the election A. R petition filed by respondent No. 2, Jalaluddin, was barred because it was filed beyond the period of limitation prescribed by the relevant order and Rules in respect thereof. Our attention D. l was drawn to rule 62 of the Election Rules as they were initially framed. The said rule has undergone a subsequent change, but prior to such change it reads thus:
(1) A candidate whose nomination paper has been rejected under sub‑rule (1) of the rule 20 may question the election in respect of which his nomination paper was rejected by a petition to the Collector within thirty days after the declaration of the result thereof, stating clearly the alleged grounds of impro per rejection.
"(2) If there is any dispute as to the validity of the election of a member or Chairman of a Union Council, Union or Town Committee under these rules, any person entitled to vote at such election may within the period referred to in sub‑rule (1) file a petition before the Collector calling in question the validity of such election stating clearly the grounds thereof."
The rule quoted above was amended by a notification, being Notification No. 49 L. G., dated the 7th of January 1960. The rule, as amended on that date, has already been quoted above. It is clear that, if the rule as amended on the 7th of January 1960, was applicable to the petition filed by respondent No. 2, Jalaluddin, then he was well within time in filing the said election petition because according to the amended rule time runs from the date of the publication of the result of the election. The date on which the election of the petitioner to the said Union Council was published is the 30th of January 1960; and the respondent ‑No. 2, Jalaiuddin, filed the said election petition on the 29th of February 1960, within the period of limitation prescribed as aforesaid. Rule 62 of the Election Rules, as it stood before it was changed as above, pro vided that the said period of thirty days would run from the decla ration of the result of the election. Mr. Farid Ahmad has argued that the said election petition was barred because the respondent Jalaluddin filed the same more than thirty days after the declaration of the result of the election of the petitioner to the said Union Council. It is interesting to note that the petitioner has not set out any date on which his election was declared. He has surreptitiously introduced in his affidavit‑in‑reply a para graph in which he says that the date on which his election was declared was the 7th of December.1939. This is a statement which the respondent had no chance of controverting as it was intro duced for the first time in the petitioner's affidavit‑in‑reply. We are not prepared to accept his statement of fact incorporated in his affidavit‑in‑reply that the date on which the election of the petitioner was declared is the 7th of December 1959. However, even if it is conceded that the 7th of December 1959, is the date on which the election of the petitioner was declared, we do not think that can help the petitioner. Respondent No. 2, Jalaluddin, filed the election petition before the Collector on the 29th of February 1960. At the time when the election petition was filed the amended rule was already in force. (We have already stated that it came into force on the 7th of January 1960). All that the Collector had to see was whether the election petition was filed in accordance with the law prevailing on the date on which such petition was filed. It is, therefore, evident that respondent No. 2, Jalaluddin, was certainly well within the time prescribed by the amended rule as set out above. Thus the third and last point canvassed before us on behalf of the petitioner cannot also be upheld.
12. Having held that, on the facts of this case, the appeal before respondent No. 1 was not barred by limitation, we would also like to observe that on the point, as urged before us, does not constitute an error apparent on the face of the record justifying the time issue of a writ of certiorari to quash the impugned order. The point was not taken before the Collector nor mooted before the Appellate Authority, namely, the Com missioner. There is nothing in the record of the case before the Collector or before the Commissioner, which would show the date on which the result of the petitioner's election was declared. We are not at the present moment, sitting in appeal or in revision over the order made by the Commissioner. We cannot take new evidence on a matter which was exclusively for the Collector or the Commissioner to decide.
13. We, therefore, hold that respondent No. 1, the Com missioner, Chittagong Division, was competent to hear the appeal preferred by respondent No. 2 and we also hold that it was within the jurisdiction of the said respondent No. 1 to set aside the election of the petitioner. We further hold that the said order setting aside the election of the petitioner was not illegal and/or ultra vires the powers of respondent No. 1 under rule 64. Although the said rule does not specifically empower the Commissioner to set aside the election of he petitioner as Chairman of the Union Council as the necessary result of setting aside his election to the Council is that he e cannot function as such Chairman. The latter is ancillary to the former order. We are not prepared to use our discretion to direct a cancellation of even this part of the order which is the inevitable consequence of the first part of the order which we have already held to be valid in law.
14. For reasons stated above, the Rule is discharged and the interim order staying th operation of the Commissioner's order is also hereby vacated.
S. B./A. H.
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