MUHAMMAD FAZLE GHANI KHAN, J.---The facts, giving rise to this petition under clause II (4) of the Laws (Continuance in Force) Order, 1958, for the issuance of a writ of certiorari or any other appropriate writ against the respondents, are the following.
2. The petitioner was employed as Secretary of the res--pondent Municipal Committee, when in 1958, the respondent advertised a post for the Headmaster High School, and that of a part-time Principal for its Junior Model Schools at Mianwali. In response to the advertisement various applications were received but only two persons turned up for an interview on the 25th of August 1958. One of them was Mr. S. A. Zaidi, who gave his educational qualification as M. A. (Cantab), O. B.
E., B.A., LL. B., Barrister-at-Law, Ph, D., and about his experience he stated that he had held high offices in various educational institutions in Pakistan as well as abroad. Messrs Zaidi and Sultan Mahmood were interviewed by Educational Sub-Committee comprised of three Municipal Commissioners who approved the appointment of Mr. Zaidi at a monthly salary of Rs. 428 and that of Mr. Sultan at Rs. 546. The recommendations of the Educational Sub-Committee were accepted' by the Municipal Committee, vide its resolution No. 19 dated the 3rd of September 1958, and ultimately Mr. Zaidi joined the service of the respon--dent Committee as Head Master on the 1st of October 1958. This resolution of the Municipal Committee was suspended by the order of Deputy Commissioner, Mianwali, but in-spite of it the appointment of Mr. Zaidi was, regularised by the Administrator Municipal Committee, Mianwali. Mr. Zaidi worked in the above scale till December 1959, when he submitted his resignation which was accepted by the Inspector of Schools, D. I. Khan, in consultation with the Administrator.
3. During his tenure of office as Head Master of the two institutions of Municipal Committee, Mianwali, Mr. Zaidi failed to furnish necessary certificates etc., to prove his educational qualification and past experience and after he had left the service in December 1959, the petitioner was ordered to pay to the Committee an amount of Rs. 4,320.00 by order of Deputy Commissioner, Mianwali, on the ground that the Municipal Committee had suffered a loss due to the negligence of the peti-- tioner on the ground that he was negligent in the performance of his duties and in that he had failed to make necessary inquiry regarding the Educational qualifications etc., of Mr. Zaidi. This amount was levied as a surcharge by the Deputy Commissioner, under section 50 of the Punjab Municipal Act, 1911. The petitioner appealed against this order which was heard by the Additional Commissioner, D. I. Khan Division on the 9th of June 1960. The learned Additional Commissioner was of the view that the petitioner was partially responsible for being negligent and the blame had to be shared equally by the President Municipal Committee also who had appointed Mr. Zaidi to the post of the Headmaster etc., in spite of the suspension of the resolution by the Deputy Commissioner. The learned Additional Commissioner therefore, reduced the sur--charge and directed that the amount of Rs. 2160 may be realised from the petitioner as his negligence had resulted in the misuse of Municipal funds.
4. The order of the levy of surcharge has been questioned before us on various grounds. In the first place it was argued that the petitioner was only performing ministerial functions and was not responsible either for the selection of the candidates or for their appointment, and he in routine submitted all the applica--tions to the Educational Sub-Committee for its final approval. The Committee in its turn made its recommendation to the President of the Municipal Committee who made the appoint--ment a-id the petitioner was neither responsible for the selection of the candidates nor for their appointment. It was further urged that the petitioner had pointed out to the Administrator Municipal Committee that Mr. Zaidi had failed to supply his testimonials etc. To the Municipal Committee but this matter was also shelved by the order of the Administrator, and in these circum--stances t e was not at all negligent in the due performance of his official duties.
There is lot of force in these contentions. From the copy of the resolution No. 19 placed on our record it appears that the matter was properly considered by the Educational Sub---Committee in its meeting of 3-9-58 before whom Messrs Zaidi and Sultan Mahmood had appeared for interview and the Committee by its resolution authorised its President to make a final decision. It will be pertinent to point out that at the relevant time Mr. C. A. Saeed was the Administrator of Municipal Committee, Mianwali, and when the petitioner insisted for the production of original certificates etc., upon Mr. Zaidi he was told by Mr. Zaidi that he was staying in the service of the Munici--p.I Committee during the incumbency of the Administration Municipal Committee and as and when he was to hand-over the charge of the Municipal Committee he will also resign the appointment instantaneously. This reply of Mr. Zaidi shows the extra of his relation with the boss. The petitioner, there--fore, had no option but to apprise the Administrator of the real situation and in this respect on the 8th of August.1959, he reported the matter to Mr. C. A. Saeed on which Mr. C. A. Saeed passed the following order:- "The Headmaster has seen me. Since the Divisional Inspector of Schools has been given all the powers regarding the School staff I see no justification to insist on the produc--petition of these documents. Papers may be filed. It should be left to the Divisional Inspector of the Schools if he so wants it.
The above order of Administrator makes it abundantly clear that the petitioner in the due discharge of his duties was making his best efforts to get necessary educational certificates from Mr. Zaidi but it was on account of certain personal relations of Mr. Zaidi with Mr. C. A. Saeed the Administrator, that all his efforts to obtain those documents had failed. Conse--quently, when the Administrator directed that the papers may be filed there was no alternative left for the poor Secretary who was his subordinate, to take any action to die contrary.
5. In the parawise comments submitted by the respondent the allegations made on behalf of the petitioner have not been controverted but it has been pointed out that it was the duty of the petitioner to have taken up the matter with the Divisional Inspector of Schools so that the issue was finalised. We were not shown any provisions of the Municipal Act or bye-laws under which a Secretary of the Municipal Committee was enjoined to continue following up a case when the Administrator says n at to pursue it any further. The circumstances of the case lead us to believe that the appointment of Mr. Zaidi and non-production of Certificates etc. By him was mainly on the strength of the support which he was getting from the then Administrator Mr: C. A. Saeed who was out to show all undue favour to Mr. Zaidi. Mr. Saeed firstly disregarded the order of Deputy Commissioner by which resolution No. 19 was suspended and, secondly, when the petitioner pointed out to him that it was not possible to prepare the service book etc., of Mr. Zaidi without his original record, the Administrator ordered that the papers should be consigned to record without further action. The loss if any caused to the respondent-Committee is the direct result of rash act of an obdurate adminis--trator.
6. We were unable to understand how the petitioner can be said to have caused any loss to the Municipal Committee on his alleged negligence. Mr. Zaidi was appointed by the Municipal Committee in an existing vacancy on a prescribed scale and during the tenure of his office he performed his duties and received his salary accordingly. There was no complaint of inefficiency or unsuitability of Mr. Zaidi for the office which he was holding. Since he received pay and allowances for the period he was employed by the Municipal Committee in a post against authorized establishment and the Municipality has availed of his full services for the period he was so employed, the question of any loss having accrued to the Municipal Committee is beyond comprehension. When an employer has paid to an employee pay and allowances for the services ren--dered, there can be no loss either in law or in fact to an employer if he pays the wages which are due to an employee. For these reasons also the petitioner cannot be burdened with the levy of surcharge on the basis of his alleged negligence.
7. The petitioner was urged that Mr. Zaidi was not paid salary by the Municipal Committee from 1st October to 3.Lst December 1959, and, therefore, to the extent of the salary of 3 months even no alleged loss could be caused to the Munici--p.I Committee. The point has been conceded by respondent No. 1, in his parawise comments, what has been pointed is that it was the duty of the petitioner to explain this position. The reply seems to be ridiculous. The respondent No. 1 was in possession of full facts about the payments made to Mr. Zaidi and, therefore, if it was proceeding to charge the petitioner on account of the alleged loss as a direct consequence of his neglect, he should not have been charged for the above mentioned period of three months as this salary was never paid by the Municipal Committee to Mr. Zaidi.
8. We now proceed to determine the liability of the, petitioner under section 50 of the Punjab Municipal Act, 1911. It was according to this provision of the law that the petitioner has been levied a surcharge on account of his so-called negli--gence. It reads as under:- "Section 50. Liability of Members of the Committee.-(1) Every person shall be liable for loss, waste or misapplication of any money or other property belonging to a committee, if such loss, waste or misapplication is reported by the Examiner of Local Fund Accounts, or other audit authority empowered by the local Government in this behalf to be a direct conse--quence of his neglect or misconduct in the performance of his duties while a member of the committee; and he may after being given an opportunity, by notice served in the manner pro--vided for the service of summonses in the Civil Procedure Code, to show cause by written or oral representation why he should not be required to make good the loss, be surcharged with the value of such property or the amount of such money by the Deputy Commissioner, or, if the Deputy Commissioner is a member of the Municipal Committee, by the Commissioner, and if the amount is not paid within fourteen days from the expiry of the period of appeal prescribed by subsection (2) the Collector at the request of the Deputy Commissioner or Com--missioner, as the case may be, shall proceed forthwith to recover the amount as if it were an arrear of land revenue, and have it credited to the Municipal fund.
(2) The person against whom an order under clause (1) is made may, within thirty days of the notification of such order, appeal to the Commissioner from the order of the Deputy Commissioner, to the local Government, who shall appoint an officer to hear the appeal; and the appellate authority shall have the power of confirming, modifying or disallowing the surcharge: Provided that no person under this section be called upon to show cause after the expiry of a period of four years from the occurrence of such loss, waste or misapplication or after the expiry of one year from the time of his ceasing to be a member.
Provided further that nothing in this section shall be deemed to debar the aggrieved party from seeking a remedy in a Civil Court against an order made under clause (1)."
9. The intention of the Legislature appears in the heading of the section itself which speaks of the liability of the members of a Committee. Reading Sub-clause (1) a little further it becomes clear that the loss to the committee must have been caused on account of waste or misapplication of money or property of the Committee as a result of the direct consequence of the neglect or misconduct of the Municipal Commissioner in the performance of his duty as a Commissioner.
Proviso (1) of the section further fortifies us in our view that the application of section 50 is restricted only to the Municipal Commissioner as this proviso prohibits the issuance of any notice to a member under sub-clause (1) if such a person has ceased to be a member for more than one year. The words "Every person " therefore used in the first part of sub-clause (1) of section 50 cannot be construed 'to include all members of public at large or for that matter the employees of the Municipal Committee and have strictly to be interpretted with reference to the title of the section B "Liability of Members of the Committee" and the general import of the language of the section.
Reading the section as a whole we are of the opinion that the levy of surcharge under this provision of law can only be imposed upon the Municipal Commissioners alone and the employees of the Committee on the members of the public at large cannot be imposed any levy, of surcharge for their alleged act of negligence towards the' committee. The petitioner being an employee of the Committee only and not being its member, the levy of surcharge against him was wholly unwarranted by law. The learned Additional Advocate-General conceded before us that the section 50 was not applicable to the petitioner's case and he was not liable to pay surcharge within the meaning of section 50 of the Municipal Act of 1911.
10. Mr. Aslam Riaz Hussain, however, attempted to argue that under Article 58 of the Basic Democracies Order of 1959, the servants and officials of the Municipal Committee were made liable for the loss, waste or misapplication of any money or proferty belonging to a Municipal Committee which is a direct consequence of his negligence or misconduct and' therefore, the action taken by the Municipal Committee under the Act of 1911 was well-protected under the Municipal Ordinance of 1960. The argument has no force. The surcharge was imposed upon the petitioner for an alleged act of negligence committed by him, sometimes in 1958 when the petitioner is stated to have failed in the performance of his duty to collect the original certificates of Mr. Zaidi. At the time when the alleged act of negligence was committed neither the Basic Democracies Order of 1959, nor the Municipal Ordinance of 1960 were in force. Therefore, the liability of the petitioner had to be determined with reference to the provisions of Municipal Act, 1911 alone. As already discussed earlier, the action of the respondent imposing the levy of surcharge upon the petitioner is not protected by any provision of the Municipal Act, 1911, therefore, the subsequent changes brought in law by Article 58 of the Basic Democracies Order will be of no help to the respondent.
11. There is yet another aspect of the matter also. Clause (1) of section 50 requires that the loss, waste, or mis--application of the Municipal funds should have been re--ported by the Examiner of Local Fund Accounts or other audit authorities empowered by the Local Government in this behalf to declare the loss to be a direct consequence of the act of a member. No such report of any competent officer was forth--coming in this case. Therefore, the order of the Deputy Commissioner levying the surcharge without the audit report as required by subsection (1) of section 50 is without lawful authority. There is nothing in the parawise comments submitted by the Department or in the impugned order of the two officers that any such report was made by the audit authorities as is envisaged by sub-clause (1) of section 50.
For the various reasons given by us above we are of the view that the, order passed by the Deputy Commissioner, Mianwali, imposing the levy of surcharge upon the petitioner as well as the order passed by the Additional Commissioner in the appeal of the petitioner reducing amount to 50% are illegal and in excess of the powers vesting in these officers. Both the orders are, therefore, quashed and the respondents are hereby directed not to realize the amount in question from the petitioner.
The writ petition is therefore accepted with costs.