People’s Republic of Bangladesh, represented by the Deputy Commissioner, Dhaka & another (Appellants)
vs.
Md. Alauddin alias Alauddin Sarker others (Respondents)
Supreme Court
Appellate Division
(Civil)
Present:
F. K. M. A. Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Judgment
May 30, 1985.
The Constitution of Bangladesh, 1972, Article 102/135
The Co-operative Societies Rules; Rule 37
Words & Phrases
The land mortgage bank is a “co-operative society”, a voluntary association of people, having a separate entity of its own, independent of any Government department.
Government Servant
While serving under the co-operating societies land mortgage bank, not a government servant for the purpose of his service with the bank.The respondent is neither a government servant nor an employee of any statutory corporation nor holding any statutory post nor performing any duty of public character and as such he lies out side the ambit of Article 102 of the Constitution and as such he is not entitled to the protection as provided to a government servant or to an employee of any statutory corporation under article 135 of the Constitution……(15)
The Register’s power of supervision of a co-operative society does not alter the character and status of the organisation namely the bank to whose service the appointment was made…..(16)
Principle of natural justice was duly applied with the respondent even though civil service rules were not applicable to him. The Appeal is allowed…..(17 & 18)
Case Referred To-
Dr. Nurul Islam Vs. Government of Bangladesh, DLR (AD) 371; B S I Corporation Vs. Mahbub Hossain, 19 DLR (AD) 41; Gould Vs. Minister of National Insurance, All E. R. 1951 Vol. (1) p. 368. AIR 1963, S.C. 1811 Dr. S. L. Agarwal Vs. The General Manager, Hindustan Steel Ltd, AIR I970 SC 1150, and Ranju Kumar Chatterjee Vs. Union of India, AIR 1969 Cal. 95, Pakistan Vs. Naseem Ahmed, (1962) 14 DLR (SC) 169=PLD 1961 SC 445; State Vs. Dosso, (1959) 11 DLR (SC)1=PLD 1958 SC 533, Faiz Ahmed Vs. Registrar, Cooperative Societies West Pakistan, (1962) 14 DLR (SC) 183=PLD 1962 SC 315; Pakistan Vs. Mehrajuddin (1959)11 DLR (SC) 260= PLD 1958 SC 147; Lahore Central Co-operative Bank Limited Vs. Pir Saif Ullah Shah, 105=PLD (1960) 12 DLR(SC) 205= PLD 1959 SC 210; Joynal Abedin Vs. Multan Central Co-operative Bank, 1966 PLD (SC), 445.
Lawyers Involved:
A.W. Bhuiyan, Additional Attorney General, instructed by B. Hossain, Advocate-on-Record —For the Appellants.
Muksum-ul-Hakim, Senior Advocate instructed by N.H. Khondkar, Advocate- on-Record—For the Despondent No. 1.
Ex-parte—For the Respondents Nos. 2 & 3.
Civil Appeals No. 146 of 1983.
(From the judgment and order dated 10.8.83 passed by the High Court Division, Dhaka, in Civil Revision No. 525 of 1980.)
Judgment:
Shahabuddin Ahmed J.—In this appeal by special leave, at the instance of the Government of Bangladesh, the question is whether the High Court Division correctly held that the respondent an employee of the Land Mortgage Bank is a Government Servant, and as such, is entitled to protection of Article 135 of the Constitution of Bangladesh, now under suspension. This arises from Civil Revision No. 525 of 1980.
2. Respondent-plaintiff was appointed as Searching Clerk of the Dhaka Co-operative Land Mortgage Bank by the Registrar, Cooperative Societies, on 2 August 1956 and thereafter he was allowed two promotions, and on the relevant day in 1973, he was working as Officer of the said Bank. He was placed under suspension on 13 January 1973 by the Managing Committee of the Bank and a proceeding was drawn against him on charges of misappropriation of Bank’s money by forgery and falsification of accounts. He submitted his explanation, on consideration of which the Managing Committee dismissed, him from the bank’s service by an order dated 25 May 1973. He made a representation to the Registrar, Co-operative Societies, but the latter declined to interfere in the matter observing that he might prefer an appeal to the Chairman of the Managing Committee of the bank feeling aggrieved, he filed a suit, T.S. No 232 of 1976, in the Second Court of Munsif, Dhaka for declaration of nullity of the order of dismissal taking, among other things, the ground that he was a government servant and was not liable to be dismissed by anybody other than the appointing authority, namely, the Registrar, Co-operative Societies. The learned Munsif, by his judgment dated 24 December 1976, dismissed the suit holding that he was not a government servant and as such he got no legal right to be enforced by any court. He preferred an-appeal (Title Appeal No. 11 of 1977), but the appeal was dismissed by the learned Subordinate Judge, by his judgment dated 21 January 1980 concurring with the findings of the trial Court that he was not a government servant. He then moved the High Court Division with a revisional application under section 115 (1) of the Civil Procedure Code agitating the same point, and a learned Single Judge of the High Court Division by impugned order dated 10 August 1983 reversed the decision of the Courts below and held that the respondent was a government servant and that the order of dismissal having been passed by an authority other than the appointing authority, namely the Registrar of Cooperative Societies, was a nullity.
3. Mr. Abdul Wadud Bhuiyan, learned Additional Attorney General, seriously assailed the decision of the learned Single Judge of the High Court Division that the respondent, an employee of the Land Mortgage Bank, which is a Co-operative Society, is a government servant. The leaded Additional Attorney General has referred to the order of appointment of the respondent, Ext. 1 vis-à-vis various provisions of the Co-operative Societies Act, 1940 and the Rules made there under, along with different Government Orders and Notifications on the subject and has contended that the respondent is purely and wholly an employee of the Land Mortgage Bank and was never a government servant and as such he is not entitled to the benefit of Article 135 of the Constitution of the Service Rules.
4. The order of appointment, Ext. 1, shows that the respondent was appointed by the Registrar as “a temporary Searching Clerk of the Dhaka Land mortgage Bank”. He was promoted as Clerk of the Bank which post he was holding at the time of the impugned dismissal ”Co-operative Land Mortgage Bank” is as defined in section 2(e) of the Co-operative Societies Act, primarily and basically a cooperative society, the objects of which include the creation not funds to be lent to members on long terms upon mortgage of their immovable property; and a “co operative society” means a society registered under this Act. Status and management of co-operative societies have been described in detail in Chapter III of the Act. Under section 19 in this Chapter of the Act a co-operative society is a body corporate with perpetual succession and a common seal, and with power to hold property; to enter into contracts, to institute and defend suits and other legal proceedings and to do all things necessary for the purposes for which it was constituted. The final authority of every co-operative society vests in the general body of its members. The management of every co-operative society is vetted in a Managing Committee constituted in accordance with this Act, rules and bye laws. The Act, or the Rules, do not expressly provide for appointment’ of officers and employees of a co-operative society; but Rule 37 of the Co-operative Societies Rules, 1942, provides that the Managing Committee may remove any officer/employee of the society appointed but it. Section 24 of the Act empowers the Registrar to depute, “on an application of a co-operative society”, a government servant to the service of the society for a specified period. Upon reading of these provisions of the Act and the Rules made there under, it is clearly found that a co-operative society has got its own separate juristic entity, independent of government, and that it is not a government department or directorate. The very concept of co-operative movement is against the integration of a co-operative society based on voluntary associate on of people, with the government and as such on the face of this legal provision a Land Mortgage Batik is not a part of the Government or any of its departments, such as the Directorate of Co-operative Societies.
5. Mr. Maksum-ul Hakim, learned Advocate for the respondent, has made strenuous efforts to defend the High Court Division’s view that the respondent is a government servant. He has stressed the fact that the respondent was appointed by the Registrar, who is a high ranking government servant He has pointed out that under the Act or the Rules the Registrar got no authority to appoint an officer or employee of a co-operative society, but the appointment of the respondent by the Registrar clearly indicates, the learned Advocate argues, that the Registrar made this appointment in his capacity as a government servant. Again, after the appointment the learned Advocate goes on to argue, the respondent was given two promotions by the Registrar, that Service Book of the respondent was all along maintained in the office of the Registrar, to be precise, by the Assistant Registrar; that the respondent drew his salary from the Accountant General and was given all service benefits to which other government servants are entitled. Pay-scales of the respondent and other employees of the bank, it was pointed out were prescribed by the government and these pay-scales have been brought in line with the National Pay-scales. From all these facts, the learned Advocate contends that the respondent was a government servant.
6. The learned Additional Attorney-General, on the other hand ,exclaimed that the Registrar of Co-operative Societies, though got no express power under the Act to appoint any officer or employee of a co-operative society, but he, in the exercise of his wide power of supervision and control of all co-operative societies, made she appointment in question to the service of the land mortgage bank that the latter accepted this appointment and all along dealt with the respondent as its employee. He has contended that the respondent was never posted to any government department or transferred outside this bank. He has explained them it during-he formative stage of the Land Mortgage Banks whose functions and responsibilities have been detailed in a separate chapter of the Act (Chapter V), the Registrar used to make appointment of employees of such banks and also maintained their service records for the purpose of enforcing uniformity in the nature and standard of service of these banks. The salary of the employees of these banks including the respondent is in fact drawn from the Bank’s fund in that the expenditure incurred by the Accountant General on account of salary of the employees is reimbursed by the bank. The salary is drawn through the Accountant General for the sake of convenience. He has referred to the order of the respondent’s appointment which specifically stated that he was appointed in the service of the land mortgage bank.
7. It appears that the Government of Bengal, by Memorandum No. 1973 dated 11 April 1934 communicated to the Registrar, Co-operative Societies of Bengal, the Government scheme of establishing five Land Mortgage Banks on co-operative line as an experimental measure in selected areas. The Government undertook the financial liabilities of such establishments for the initial period not exceeding three years and made it clear that from the fourth year the government would assume no liability. Further more, for the initial years, the Government agreed to depute a Sub-Deputy Collector to act as Manager of each such bank and paid his salary for a period up to three years. The Government also sanctioned certain posts, such as Manager, Clerk, Searching Clerk, Outdoor Officer and Peon for each bank, and to assist Registrar in the control and supervision of these banks, the Government created the post of Deputy Registrar of Co-operative Societies. Again, in pursuance of this scheme of encouraging the spread of co-operative movement, particularly, in this line, the Government, from time to time issued Notifications in Gazette and Executive Instructions and Orders. The subject of ”Co-operatives” was first dealt with in “Agriculture, Credit and Relief Department” of the Government. Subsequently, by a Notification dated 30 April 1953 his subject was transferred to the Office of the Registrar, Co-operative Societies which, is in fact, a directorate attached to she said government department. By the said Notification pay-scales of employees of the land mortgage banks were prescribed, such as Outdoor Officer—Rs. 50 to 120, Clerk Rs 50 to 120; Searching Clerk Rs. 50 to 90. Mr. Maksum-ul-Hakim contends that by this Notification prescribing the pay scales of the bank staff and placing them under the office of the Registrar of Co-operative Societies, Government clearly expressed its intention that these members, of the staff were treated as government servants. The learned Single Judge of the High Court Division is also found to have given enough stress to this matter of prescribing if pay-scales; but this Notification nowhere said that the employees of the banks are government servants. The Government, and more particularly, the Registrar, has been given extensive powers to help the growth of Co-operative Societies in a healthy manner and, for that purpose, wide powers of supervision and control as well as guidance have been given to the Registrar. It is in line with this policy that the Registrar exercises the power of appointment of employees of the bank who are employees of the bank and not of the government.
8. The Registrar’s main function is to register a co-operative society, and without registration, no society can come into existence. It is the Registrar, again, who may cancel the registration of a society whereupon he appoints a liquidator to wind up the affairs of the society. The entire executive authority of a cooperative society vests, as already stated above, in its managing committee which consists of members elected by the general body of members. The Registrar got power to dissolve the managing committee and appoint a committee which may be called Ad-hoc committee, for a specified period, to carry on and discharge the function of the society till a regular managing committee is constituted. The final authority of a co-operative society vests in the general body of its members; but during the time an Ad-hoc Committee, appointed either by the Registrar or by the Government, manages the affairs of a society, the final authority of the society vests in the Government. Besides the general power of supervision and control, the Registrar strictly supervises the accounts of each co-operative society. Under section 76 of the Act, the accounts of every society “shall be audited” by the Registrar who also got power of inspection of all other paper and documents of the society. He may also hold inquiry into the affairs of a society at any time. Besides any dispute touching the business or affairs of a society shall be referred to the Registrar before it is brought to a court of law. In respect of a land mortgage bank, the Registrar’s power of control and supervision is even stricter. In the case of sale of a bank’s property in auction, it is the Registrar who appoints a sales-officer (section 102). It is only this section of the Act which empowers the Registrar to make appointment in connection with a bank’s affairs. This and other provisions of the Act and the Rules have given pre-eminent position to the Registrar of Co-operative Societies in the matter of guidance, control and supervision of affairs and business of a cooperative society and for healthy growth of cooperative movement as a whole. It is in the exercise of this power and discharge of this function that the Registrar is found to have made the appointment of certain employees of the land mortgage bank; but since the bank is an organization, independent of the government, having a separate legal entity, it is not a department of the government, and as such, its employees are not in the service of the government. It has already been pointed out above that, incase of necessity, a government servant may be deputed to the service of a, bank for a specified period, but this is not the case with the respondent who was expressly appointed as an employee of the bank.
9. Mr. Maksum-ul-Hakim contends that the employees of the bank are governed by the Government Service Rules as to establishment and disciplinary matters, but no paper has been produced in support of this contention. But even if it is accepted for the sake of arguments that Government Service Rules have been made applicable to employees of the comparative land mortgage banks, this application is not under any statutory authority, but by mere adoption at the option of the bank. The final authority of a co-operative society lying with the general body, and the executive authority vesting in the managing committee the authority to appoint and dismiss employees of a society impliedly lies in the society itself. Rule 37 has made it clear in providing for removal of such employees by the managing committee. It is this managing committee which may make its own rules regulations or bye-laws to deal with the disciplinary matters, and if the managing committee, instead of making any rules or bye-laws, adopts the Government Service Rules for regulating the cases of its employees, then the application of the Government Service Rules will not have my statutory force. These Rules are merely for the managing committee’s guidance and reference. In this connection a number of decisions of both Pakistan and Indian jurisdictions have been referred to by the learned Additional Attorney General, and we propose to consider some of them below.
10. In Joynal Abedin Vs. Multan Central Co-operative Bank, 1966 PLD (SC), 445, the Pakistan Supreme Court considered a similar question. The appellant in that case was an Accountant of the Multan Co-operative Bank. The Bank authorities, by a resolution, adopted the Punjab Civil Service Rules for the purpose of dealing with the establishment and disciplinary matters of the said bank’s officers and employees. Rule 31(1) of the Civil Service Rules provided for appeal to the Government from an order of the bank authorities removing dismissing its employees. The Accountant-appellant’s service was terminated on certain grounds by the bank whereupon he preferred an appeal to the Government which allowed the appeal and directed his re-instatement. But the Bank authorities did not carry out this direction whereupon the Accountant filed a Writ-petition before the High Court praying for restoration of his office, but the petition was dismissed in limine on the around that the Punjab Civil Service Rules do not apply of their own force to the employees of a co-operative bank, but “these Rules apply only in so far as and to the extent, they have been adopted in exercise of the powers given to the Cooperative Societies under the Co-operative Societies Act”. The matter was then brought before the Supreme Court by special leave. The Supreme Court held that the office held by a person as Accountant of a co-operative bank, which is a private autonomous institution, is not an office of public nature and “in the ease of wrongful dismissal of such an employee a writ of mandamus would be wholly misconceived”. It was further held that where, a bank has made the Punjab Civil Service Rules applicable to its employees, not by virtue of any statutory provision, but purely by the adoption thereof, under the bye-laws of the Co-operative Bank, such rules are no more than the rules laid down for the guidance of the Bank itself. These rules, in such circumstances, do not create any right in an employee to hold his office in accordance with them. Nor such rules extend the protection given to a government servant under the constitutional provisions. The Supreme Court is this connection referred to a few of its previous decisions, such as, in the cases of Pakistan Vs. Naseem Ahmed, (1962) 14 DLR (SC) 169=PLD 1961 SC 445 State Vs. Dosso, (1959) 11 DLR (SC)1=PLD 1958 SC 533, Faiz Ahmed Vs. Registrar, Cooperative Societies West Pakistan, (1962) 14 DLR (SC) 183=PLD 1962 SC 315; Pakistan Vs. Mehrajuddin.(l959)11 DLR (SC) 260= PLD 1958 SC 147 and Lahore Central Co-operative Bank Limited Vs. Pir Saif Ullah Shah, 105=PLD (1960) 12 DLR(SC) 205=PLD 1959 SC 210. Of these cases, we shall refer to only the last mentioned one
11. In that case, Lahore Central Cooperative Bank Vs. Pir Saif Ullah, the main question was whether the respondent, Commercial Manager of the Lahore Central Cooperative Bank, could claim the application to himself of the Civil Service Rules, the respondent was dismissed from his office of Commercial Manager by the Managing Committee of the Bank on grounds of misappropriation of the bank’s money. He challenged the order of dismissal taking the ground that he was not given any opportunity to defend himself and prayed for a writ of mandamus from the High Court, and, in fact, obtained such a writ. The High Court, however, granted a certificate of appeal from this order whereupon the matter came up before the Supreme Court of Pakistan. The simple question before the Supreme Court was whether the Punjab Civil Service Rules which were adopted by the Co-operative bank for its employees, would have statutory effect. The Rules were adopted by the Managing Committee of the bank by a resolution for governing the disciplinary matters relating to its employees, and according to the High Court, the bank was bound by these Rules which therefore got statutory force. The Supreme Court disagreed with the High Court and held that these Rules were not applicable to the respondent, Manager of the bank, of their own right, but by mere reference. These rules, it was observed, cannot be availed of by employees of the cooperative dank as a matter of legal right. In that connection their Lordships referred to a previous decision in the case of Mehrajuddin, as stated above, which is to the following effect
“In the absence of proof that any statutory duty was involved or that any legal right was being enforced or that the performance of a public duty was being claimed it is clear that a mandamus could not have been issued consistently with the relevant practice and precedent”.
12. As to the Indian jurisdiction, the learned Additional Attorney General has referred to the cases of Dr. S. L. Agarwal Vs. The General Manager, Hindustan Steel Ltd, AIR I970 SC 1150, and Ranju Kumar Chatterjee V. Union of India, AIR 1969 Cal. 95, in older to strengthen his argument that appointment, by a government servant or even by the government itself, or employees to the service of a non-government organization does not make the employees government servants. In the former, the employer was the Hindustan Steel Limited which is a corporation, and in the latter, the employer was the Durgapur Steel Plant, appertaining to the Hindustan Steel Limited. The appellant in the first mentioned case was an Assistant Surgeon. His service was terminated by his employer, according to him, illegally. He filed a writ petition invoking protection of Article 311 (2) of the Indian Constitution claiming that he held a civil post under the Government of India. His petition was rejected by the High Court which, however, granted a certificate of appeal to the Supreme Court. The Supreme Court held that the Hindustan Steel Limited is a corporation, but not a department of the Government, nor are its servants holders of any civil posts under the State; it has independent existence and by law, relating to corporations, it is distinct even from its members and its employees are not entitled to protection of Article 311. In the Calcutta case, as referred to above, the appellant was an employee of Durgapur Steel Plant which was “a non-statutory company registered under the Companies Act”. The employees of this plant do not hold any civil posts under the government. It was contended on behalf of the appellant that 100% shares of the company were owned by the President of India and his two secretaries and no private individual was allowed to acquire any share; secondly, officers and employees of the company were appointed by the President of India, and as such, these employees of the company are government servants. This contention was rejected and it was held that a company registered under the Companies Act has a legal entity of its own. It was held, following a decision of the Supreme Court in AIR 1963, S.C. 1811 that a bank is separate from that of its shareholders, whoever they may be; it makes no difference whether the entirety of the capital is subscribed by the Government or the company is controlled by the Government and run, in substance, as a Government Department; it cannot be said that when a statutory corporation-exercises statutory powers, it is identified with the Government or a Government Department. “The Hindustan Steel Mill is a non-statutory corporation or company which exercises no statutory, powers. The fact that the employees of the company were appointed and removed by the President does not make the employees government servants or persons holding civil posts”.
13. In the instant case, the only point which has been repeatedly stressed for the respondent is that he was appointed by the Registrar who also allowed him promotions and maintained his service records. But this function of the Registrar, as stated above, has been performed in exercise of his fundamental authority of general supervision since he is the prime mover of the entire machinery of co-operative movement in this country. The managing committee has got absolute power for running its affairs, doing his business and appointing and dismissing its employees. But for the sake of convenience the bank authorities, it appears, agreed that selection and appointment of their employees should be made by a more competent authority, such as the Registrar, who is found to have made the appointment of the respondent on behalf of the bank. The fact that certain service benefits of government servants such as, periodical salary increase, recreation allowance, have been made available to the banks, employees does not confer upon them the status of government servants. This matter has been clarified by the Government by a memorandum dated 11-8-69 (Ext.A). It has been stated there that the employees of the Land Mortgage Banks should not be considered as government servants as they are for all purposes staff of the banks and their service conditions are governed by the rules and regulations of the banks. The matter went before the Government in connection with the payment of recreation allowance to employees of the land mortgage banks when the Government introduced Rest and Recreation Allowance for government servants. The Government in that memorandum stated that they got no objection to the payment of recreation allowance and other benefits, if any, to the banks employees “from the banks’ fund without asking any assistance from the Government”. The learned Single Judge of the High Court Division has observed that this memorandum of the Government got no legal force as it is unilateral. We simply fail to understand what is sought to be meant by unilateral decision. When the Government got absolute power to create or abolish any post, prescribe any pay-scale for such post, or define the status and nature of such posts as well as duration of such posts the Government need not consult any individual employee or class of employees, for such a matter is purely within its domain and competence. This memorandum, dated 11 August 1969, relates to all classes of employees of Cooperative Land Mortgage Banks. This matter as again clarified by the Government by another memorandum dated 26 June 1979 when the employees of the same batik demanded the benefit of National Pay Scales of 1976. The Government reiterated that these employees are not government servants, and as such, there is no point to reconsider the matter.
14. Again the learned Judge is found to have placed reliance upon a decision given in Writ Petition No. 67 of 1980, filed by another employee of the same bank in which he had claimed to be a government servant. His claim was accepted by the High Court Division that he was a government servant. But the learned Judges who decided the case are not found have taken into consideration the all-important fact that the Land Mortgage Bank is a ‘Co-operative society’, a voluntary association of people, having a separate entity of its own independent of any government department and that the relevant provisions of the Co-operative Societies Act were not adverted to. Mr. Maksum-ul-Hakim has submitted that the decision in the Writ Petition was implemented by the Government without preferring any appeal. The learned Additional Attorney General has explained that in that Writ Petition the Government could not controvert certain basic allegations brought by the petitioner for want of time and materials which were not readily available and as such the Government found it difficult to challenge the decision in appeal, but in deference to the decision of the Court the Government absorbed the said petitioner in the government service by issuing fresh order of appointment and withdrew him from the bank’s service altogether, and gave him a new assignment in the Government’s Directorate whereupon that petitioner ceased to be an employee of the bank. Be that as it may, we are here concerned with the facts of the instant case and the law under which it is governed.
15. Mr. Maksum-ul Hakim has referred to a few decisions such, as Dr. Nurul Islam v. Government of Bangladesh, DLR (AD) 371, B S I. Corporation V. Mahbub Hossain, 19 DLR (A.D) 41 and Gould V. Minister of National Insurance,-All E. R. 1951 Vol. (1) p.368. In the first mentioned two cases, which were dealt with by this Court, the question was as to protection of a government servant or an employee of a statutory corporation under Article 135 of the Constitution of Bangladesh and invocation of Writ jurisdiction of the High Court Division. These decisions are hardly of any assistance to the respondent in view of the simple fact that the position of the employees in those cases was not disputed; one was in the service of the Republic and was very much within the protection of Article 135, and the other being a servant of a statutory corporation and performing functions of public nature was held by the court to be entitled to invoke writ jurisdiction of the High Court Division in the case of wrongful dismissal. In the instant case, the respondent is neither a government servant nor an employee of any statutory corporation nor holding any statutory post nor performing any duty of public character, and as such, he lies outside the ambit of Article 102 of the Constitution.
16. In the English case, as referred to, the question was altogether different. The question was whether the appellant in that case, who was a music-hall artist, was an “employed person” within the meaning of section 1 (2) (a) of the National Insurance Act, 1946 or was a ‘self-employed’ person, within the meaning of section 1 (2) (b) of that Act. The question for decision, in other words, was whether the appellant’s contract should be regarded as ”contract of service” or “contract for service.” In that case reliance was sought from a decision of the House of Lords in Short V Henderson, governed by the Workmen’s Compensation Act. There Lord Thankerton recapitulated the four indices of a contract of service in the following words:
“These are: (a) the master’s power of selection of his servant; (b) the payment of wages or other remuneration; (c) the master’s right to control the method of doing the work; and (d) the master’s right of suspension or dismissal. The particular requirement of a contract of service is the right of the master in some reasonable sense to control the method of doing the work, and that this factor of superintendence and control has frequently been treated as critical and decisive of toe legal quality of the relationship”.
This decision does not bear directly on the question raised before us except byway of analogy. What Mr. Hakim tries to convey is that the respondent was not only selected and appointed by the Registrar of Co-operative Societies, but also he was fully under the control of the Registrar and acted in accordance with the direction given by the Registrar who maintained his service records, etc. As we have discussed above the Registrar’s power of control and supervision of a cooperative society’s employees does not alter the character and status of the organization, namely the bank to whose service the appointment was made. Mr. Hakim’s argument that the respondent’s appointment by the Registrar is not covered by any provision of law is rather self-defeating. If the appointment were not made under any law, then it is illegal or unauthorised. How then, such illegal or unauthorised net can confer legal status of a government servant upon the respondent? It follows from what we have stated and observed above that the impugned decision of the High Court Division that the respondent is a government servant cannot be maintained.
17. Lastly, the respondent was proceeded against on a definite charge of misappropriation of the bank’s money. He submitted an explanation in which he admitted his guilt and prayed for mercy (Ext. E). The bank authorities on consideration of his explanation dismissed him from service; now respondent tried to say that in his explanation be did not admit his guilt, But the learned Munsif considered his explanation which was marked Ext. E and observed :
“The plaintiff has also submitted explanation vide Ext. E wherein he admitted his guilt and prayed for mercy of the authorities. Principle of natural justice has been followed in the process of taking action against the plaintiff.”
In the circumstances, even if the Civil Service Rules as to disciplinary matters were not applicable to the respondent, principles of natural justice were duly complied with as the respondent was given opportunity to explain his position in response to the allegation brought against him.
18. In the result, the appeal is allowed, the impugned order of the High Court Division is set aside and that of the Subordinate Judge and the trial court is restored. No order as to costs.
Ed.
Source: 38 DLR (AD) (1986) 81