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Writ Petition No. 658 of 1962, decided on 19th March 1963.
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-------Certiorari‑Only writ available to quash proceedings of quasi judicial nature‑Constitution of Pakistan (1962), Art. 98
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---‑Certiorari‑When issued‑Petition should show by face of record that proceedings were illegal either because inferior tribunal acted without jurisdiction or exercised its jurisdiction erroneously‑Misconceiving point of law ; misconstruing statute admitting illegal evidence ; rejecting legal evidence ; inferior tribunal misdirecting itself as to weight of evidence ; convicting without evidence ; does not amount to excess or abuse of jurisdic tion‑Coming, however, to decision which no reasonable body could ever have come to, amounts to excess of jurisdiction‑Decision within jurisdiction cannot be quashed by certiorari on ground that it is wrong in matters of fact‑Objection to defect of procedure in inquiry or trial, to be raised before inferior tribunal or before appellate authority‑Propriety of proceedings cannot be challenged by certiorari when objection taken does not affect jurisdiction --Laches‑Bar to grant of certiorari‑Certiorari refused when objection as to omission of show‑cause notice required by r. 4, Municipal (Punishment and Appeal) Rules, 1948, was not taken before inquiry officer, nor before Controlling Authority, and, further, petition was barred by lathes‑Constitution of Pakistan (1962), Art. 98. [English case‑law ref.]
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---‑Laches‑[termination of service of Municipal School teacher by Committee's resolution dated 15‑9‑1960]‑Appeal to Collector dismissed on 3‑5‑1961‑Review application to Collector dismissed on 26‑6‑1961‑Unnecessary representation to Provincial Government rejected on 27‑4‑1962‑Writ Petition on 6‑7‑1962] Certiorari refused on ground, inter alia, of lathes‑Constitution of Pakistan (1962), Art. 98.
Malik Saeed Hassan for Petitioner.
Zahir Abbas for Respondent No. 1.
Abdul Wahid Saleem for Respondent No. 2.
Dates of hearing : 30th October and 4th December 1962.
Mst. Fahmida Nayyar (petitioner) was a teacher in the Notified Area Committee Girls Middle School, Pir Mabal, District Lyallpur. On account of certain allegations to which it is not necessary to advert for the purpose of this order, her services were terminated by resolution No. 22 adopted by the said Committee on the 14th of March 1959. Aggrieved by it she preferred an appeal to the Collector, Lyallpur, as the Controlling Authority who set aside the resolution as no formal inquiry was held into the charges levelled against the petitioner and directed that the case be decided afresh in accordance with the procedure provided in the Municipal (Punishment and Appeal) Rules, 1948. The relevant Rules read as follows :‑
No order of reduction, removal or dismissal, shall be passed against an officer or a servant of a committee unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
The grounds on which it is proposed to take action shall be reduced to the form of definite charge or charges, which shall be communicated in writing to the person charged, and he shall be required, within a reasonable time, to state in writing: (i) whether he admits the truth of all or any of the charges.
(ii) what explanation or defence, if any, he has to offer, and
(iii) whether he desires to be heard in person in respect of such charges which are not admitted.
If the person charged so desires, or if the authority empower ed to dismiss, remove, or reduce him so directs, an oral enquiry shall be held in respect of such charges that are not admitted."
In compliance with the directions of the Collector, a fresh charge‑sheet comprising of seven heads was served on the petitioner on the 1st of February 1960, with instructions to show cause as to why she should not be dismissed from service for the alleged misconduct. Ch. Fateh Muhammad, Resident Magistrate, Toba Tek Singh, was appointed as Enquiry Officer to whom the petitioner submitted her reply on the 13th of February 1960, denying correctness of all the charges. Along with it she filed a list of defence witnesses, though all of them were given up eventually by a written application made on the 18th of April 1960. In his report dated the 15th of July 1960, the Enquiry Officer found the petitioner guilty of charges Nos. 1 to 4, and 6 and 7. In its meeting held on the 15th of September t960, the Notified Area Committee, by resolution No. 20, accepted the report and terminated the petitioner's services. Aggrieved by it, the petitioner, on the 15th of October 1960, preferred a fresh appeal to the Collector challenging the correctness of the findings of the Enquiry Officer, but no grievance was made that under rule 4, reproduced above, a reasonable opportunity of showing cause against the action proposed to be taken to regard to her was not given. After calling a para‑wise report from the Notified Area Committee; the Collector dismissed the appeal, by his order dated the 3rd of May 1961, with the observations that it was only in rare cases where glaring injustice had been done that the Controlling Authority may enter into the facts of the case, otherwise it would confine itself to finding out whether procedural requirements were followed or not. A few days later, Mst. Razia Sultana, another teacher of the same School, who had been removed under similar circumstances, preferred an appeal to the Collector in which, among other grounds, it was specifically urged that the resolution terminating her services was vitiated inasmuch as the findings of the Enquiry Officer were not supplied to her and she was not given a show cause notice as provided for in rule 4. The appeal was allowed by the Collector on the 3rd of June 1961, on the basis of the dictum of the Judicial Committee in I. M. Lall's case and it was directed that a copy of the findings of the Enquiry Officer, along with a notice to show cause, be served on Mst. Razia Sultana and her reply should be examined by the Committee before passing any final order in the case. Encouraged by it, the petitioner applied to the Collector for review of his order dated the 3rd of May 1961, dismissing her appeal, on the ground that her case was at par and on all fours with that of Mst. Razia Sultana. The petition was disallowed on the 26th of June 1961, by the Collector on the grounds (i) that the process of review would entail an enquiry into facts as to whether rules of procedure were complied with in the petitioner's case or not and (ii) that under the Basic Democracies Order or under the rules framed thereunder, a Controlling Authority was not possessed of the power to review its order. On the rejection of the review application, the petitioner made a representation to the Provincial Government on similar grounds, which was also rejected on the 27th of April 1962. In the result, the present writ petition was filed on the 6th of July 1962, which is opposed by the Government of West' Pakistan and the Notified Area Committee, Pir Mahal (respondents Nos. 1 and 2), inter alia, on the ground that after the enquiry a show‑cause notice was given to the petitioner and her reply was considered by the Committee before passing the resolution terminating her services. It was further pleaded that the Municipal (Punishment and Appeal) Rules do not provide that copy of the Enquiry Officer's report be given to the official concerned, and that the petitioner had not raised such a plea in her appeal to the Collector.
3. A perusal of the record produced by the respondents shows that a show‑cause notice was not given to the petitioner as enjoined by rule 4 of the Municipal (Punishment and Appeal) Rules, 1948 and we might have called upon respondent No. 2 to bring to our notice the show‑cause notice which, it claimed, was given to the petitioner before passing of the impugned resolution, but in view of the order which we propose to make in this case, we considered it unnecessary to resort to such a course.
4. Besides controverting the petitioner's claim on merits, the learned counsel for the respondents maintained before us that even if no show‑cause notice, was given to her before the impugned resolution terminating her services was passed, she was precluded from raising this. plea on account of laches inasmuch as she did not raise it in her grounds of appeal to the Collector.
5. The proceedings resulting in the termination of the petitioner's services being quasi judicial in nature, a writ of certiorari) alone could issue to quash the impugned orders. According to the decision in State v. Live Oak, P. & G. R. Co. (70 Philadelphia 564) referred to at page 196 of Extraordinary Legal Remedies by Ferris, such a petition should make a prima facie case showing that an illegal proceeding appears by the face of the record complained of either because the inferior Court has acted without jurisdiction or exercised its jurisdiction erroneously. The leading English cases are reported under paragraph 118 of Halsbury's Laws of England, Third Edition, Volume II, e.g., R. v. Nat Bell Liquors, Ltd. ((1922) 2 A C 128 (P C)) ; R. v. Northumberland Compensation Appeal Tribunal, Ex Parte Shaw ((1052) I K B 338 (C A)) ; R. v. Birmingham Compensation Appeal Tribunal of Ministry of Labour and National Service, Ex Parte Road Haulage Execu tive ((1952) 2 All E R 100) ; R. v. Westminster Compensation Appeal Tribunal, Ex Parte Road Haulage Executive ((1953) 1 All E R 687(C A)). In the succeeding paragraph under the heading "Erroneous decision" cases are cited in which it was held that where the proceedings are regular upon their face and the inferior tribunal had jurisdiction, the superior Court will not grant the order of certiorari on the ground that the inferior tribunal had misconceived a point of law. Similarly, where the inferior for tribunal has jurisdiction to decide a matter, it cannot, merely because it incidentally misconstrues a statute or admits illegal evidence or rejects legal evidence, or misdirects itself as to the weight of the evidence or convicts without evidence, be deemed to exceed or abuse its jurisdiction. It is, however, subject to the later decision in Associated Provincial Picture Houses. Ltd. v. Wednesbury Corpn. ((1948) 1 K B 223 (C A)) that if an administrative body comes to a decision which no reasonable body could ever have come to, it would be deemed to have exceeded its jurisdiction and the Court can interfere. In R. v. Bolton ((1941) 1 Q B 65) ; R. v. Cambridge shire Justices ((1835) 4 Ad. & El. 111) ; Tarry v. Newmen ((1846) 15 M & W 645 at p. 653, per Pollock C B) ; Colonial Bank of Australasia v. Wilian ((1874) L R 5 P C 417) ; Ex Parte : Nevittie ((1914) 78 J P Jo. 340) ; R. (Redmond) v. Jellett ((1919) 2 I R 78) ; R. (Romney) v. Lupton ((1921) 2 I R 190) ; R. (Rooney) v. Local Government Board ((1921) 2 I R 190) ; R. v. Murphy (L 5) ; R. v. Nat Bell Liquors Ltd. ((1922) 2 A C 129 (P C)) ; R. (Limerick Corpn.) v. Local Government Board ((1922) 2 I R 76 (C A)) ; R. (Armagh County Council v. Local Government Board ((1922) 56 I L T 98) and V. v. Markham, Ex Parte Marsh ((1923) W N 112) the rule is firmly laid down that the certiorari will not be granted to quash the decision of an inferior tribunal within its jurisdic tion on the ground that the decision is wrong in matters of fact, and the Court will not hear evidence impeaching the decision on the facts. Although, our attention has not been drawn to any authority which directly deals with this point, if this be the proper scope of a writ of certiorari an objection to any defect in the procedure adopted in an enquiry or a trial should be raised before the tribunal whose record is sought to be summoned before the superior Court or at least in an appeal if the law makes provision for it. In the absence of it, the petitioner should no be allowed to challenge the propriety of the proceedings before an inferior tribunal which does not affect its jurisdiction. In the pre sent case if the petitioner had brought it to the notice of the Notified Area Committee, Pir Mahal, that under rule 4 of the Municipal (Punishment and Appeal) Rules 1948, it was incumbent on it to give to her a show‑cause notice and take into consideration her representation it is likely that the Committee would have complied with this requirement of law. In any case, as in the case of Mst. Razia Sultana we are certain that if the petitioner had raised this objection before the Collector, he would have given effect to it. If such a course was adopted, the Municipal Committee, Pir Mahal, could have taken a fresh decision in the matter after giving a show‑cause notice to her within a month or so of the order of the Collector. As against that the present petition was filed in the month of July 1962, while the impugned resolution was passed on the 15th September 1960, and the second appeal to the Collec tor was rejected by him on the 3rd of May 1961. In Cable v. Supreme Court (145, California 42, 46, 78, referred to at page 201 of the Extraordinary Legal Remedies by Ferris), laches in the context of a writ of certiorari is defined as such negligence or omission to assert a right as taken in conjunction with the lapse of time more or less great and the other circumstances causing prejudice to an adverse party operates as a bar in a Court of Equity. A writ was refused on this ground in People M. Rel. Macaulay v. Burdettee (120 N E (iii) 519) as the petitioner had delayed over ten months after his discharge and nine months after notification thereof. In Blook v. Brinkly (54 Arkansas 375) and Jackson v. Blair (132 N E (iii) 221) it was observed that the writ will generally be refused in all cases where petitioner fails to show that he has proceeded expeditiously after discovering that it was necessary to refer to it and specially where great public incon venience will result from its use. Again, in City of Chicago v. Condell (224 Illinois 595, 598) it was specifically laid down that in all such cases of public detriment or inconvenience, petitioner must act speedily and any unreasonable delay will warrant refusal.
In the present case, the petitioner allowed much time to pass by making a representation to the Provincial Government for which there was no provision in the Basic Democracies Order, before instituting the present writ petition. If we were to allow this petition in January 1963, it would mean, firstly, unnecessarily burdening the tax‑payers of the Notified Area Committee, Pir Mahal, with the salary of the petitioner from the date of the dismissal of her appeal, viz., 3rd of May 1961, to January 1963, and, secondly, displacing the teacher who has since taken her place and might well have been confirmed in the post.
7. In the circumstances of the case, the omission on the part of the petitioner to raise the plea of non‑compliance with rule 4 of the Municipal (Punishment and Appeal) Rules in the appeal to the Collector and the delay in the institution of the writ petition disentitle her from urging that ground before us. The writ petition is accordingly dismissed, but in the circumstances of the case there will be no order as to costs.
A. H. Petition dismissed.
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