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Petitioner: KARACHI DEVELOPMENT AUTHORITY And Another VS Respondent: WALI AHMED KHAN And JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Naimuddin, Zaffar Hussain Mirza Title:KARACHI DEVELOPMENT AUTHORITY And Another vs WALI AHMED KHAN And
JUDGMENT
Reported As: 1991 SCMR 2434 Result: Appeals dismissed Judgment JUDGMENT ZAFFAR HUSSAIN MIRZA, J.---These two appeals shall be governed by this common judgment, as they arise out of a single judgment of a Division Bench of the Sindh High Court, dated 1st June, 1981, whereby the Constitutional petition No.177 of 1977 filed by Wali Ahmed Khan (appellant in CA. No. 63-K of 1982 and respondent No.1 in CA. No.62-K of 1982) was disposed of. The facts which have given rise to these appeals may be briefly stated as follows:--- Wali Ahmad Khan joined Karachi Joint Water Board (hereinafter referred to as the Board), constituted under the Karachi Joint Water Board Ordinance, 1949, on 10th October, 1950, as a Sub- Divisional Store-Keeper. On the repeal of the Karachi Joint Water Board Ordinance, 1949 (XIII of 1949) by the K.D.A. Order V of 1957, the Board was merged with the Karachi Development Authority (hereinafter referred to as the K.DA.) on 14th March, 1958. The rules framed under Ordinance, in so far as they were not inconsistent with the provisions of the K.DA. Order, were saved by virtue of section 120(2)(ii) of the K.D.A. Order. He was promoted to the post of Circle Office Superintendent on 20th February, 1961, but not being satisfied with the same, he filed a suit in the Court of Civil Judge 1st Class, Karachi, against the K.DA. For declaration and mandatory injunction including promotion to the post of Superintendent, Chief Engineer's Office, in the scale of Rs.450-20-650. On 31st July, 1968, Circle Office Superintendents, including Wali Ahmad Khan, made a representation to the General Body of the K.D.A. For revision of their pay scales. The said representation was, however, rejected on 19th March, 1969. Wali Ahmad Khan preferred an appeal against the said order on 22nd February, 1970 which was dismissed by the Provincial Government on 20th March, 1975.
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Aggrieved by the order of Provincial Government, dated 20th March. 1975, Wali Ahmad Khan submitted a protest petition on 26th February,,1976 to the Government of Sindh, Chief Minister of Sindh and Minister for Local Bodies, Government of Sindh. The Secretary, Local Government, before whom the said representations came to be put up, called for an explanation from Wali Ahmad Khan for submitting protest petition direct to the authorities using certain Government and K.D.A. Correspondence. He furnished explanation on 4th May, 1976 which was not accepted and he was given a charge-sheet, dated 5th January, 1977 for approaching the authorities directly in violation of Administrative Instructions. In February, 1977, Wali Ahmad Khan filed a Constitution Petition No.177 of 1977, in the Sindh High Court, inter alia, on the ground that the KJWB Non-gazetted (Non-Technical) Staff Recruitment Rules 1953 had been illegally amended by the Chief Engineer which had adversely affected his promotion and that he should be restored to "rank; status, cadre and pay scale to which he would be entitled but for the unlawful amendment made in the recruitment rules" and for a declaration that the charge-sheet dated 5th January, 1957 and the proceedings initiated thereunder were mala fide and without lawful authority. On his application for injunction the High Court passed a consent order on 27th May, 1977 to the effect that the enquiry proceedings against him may proceed but no adverse order be passed against him pending the disposal of the petition. During the pendency of his abovementioned Constitutional Petition, Wali Ahmad Khan again made a representation, dated 25th March, 1977 to the Chief Secretary, Government of Sindh, followed by representations to the Chief Secretary and the Chairman, K.DA., dated 25th April, 1979. The Director General, K.DA. Thereupon, served him with a fresh show-cause notice, dated 20th June, 1979 for making such direct representation in violation of Administrative Instruction No.150, dated 24th October, 1973. Wali Ahmad Khan applied for an order of injunction against the said show-cause notice which was refused. He furnished a reply to the show-cause notice on 26th February, 1979 which was not accepted and an order removing him from service was passed by the K.D.A. On 25th August, 1980. The High Court allowed Wali Ahmad Khan to amend his Constitutional Petition so as to include relief against the said order of removal. An amended petition was accordingly filed on 22nd September, 1980 which was partially allowed on 1st June, 1981. The High Court, in its judgment, found as under:------ (a) Wali Ahmad Khan's contention that the K.DA. Had no jurisdiction to issue the first charge-sheet dated, 5th January, 1977, was repelled: (b) It was held that the suspension order and show-cause notice dated 20th June, 1979 and the order of removal passed in pursuance thereof, dated 25th August, 1980 stood vitiated, inter alia on account of being mala fide and were, therefore, passed without jurisdiction. A declaration was, therefore, issued that the removal order was passed without lawful authority and was of no legal effect. (c) It was observed by way of clarification that the K.D.A. Was at liberty to conclude the enquiry against Wali Ahmad Khan on the basis of the charge-sheet, dated 5th January, 1977. It was further clarified that the KDA could also issue a charge-sheet in respect of the alleged charges contained in the statement of allegations enclosed with the second show-a' cause notice, dated 20th June, 1979. As the success in the decision of the Constitutional Petition was divided between the parties, both parties, namely, the KDA. And Wali Ahmed Khan sought to challenge the respective adverse part of the impugned judgment of the High Court, dated 1st June, 1981 against them by separate petitions for leave to ' appeal. In the petition filed by the K.D.A. Leave was granted to examine the question as to the true nature of relationship between a local authority/a statutory Corporation like the K.DA. And its employee; and
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whether Such an employee is entitled to invoke the Constitutional jurisdiction for a `declaration' that his removal from service was bad in law. And in the petition filed by Wali Ahmed Khan, leave was granted to examine whether the High Court having found that the action taken against him was mala fide, it was open to it to allow the said appellant to be again proceeded against on the basis of the same or similar sets of show-cause notices. In support of the appeal filed by the K.DA., Mr. Ali Ahmad Fazeel, learned counsel, has contended, that it is well-settled by now that an employee of a local authority can be granted relief under the Constitutional jurisdiction of the High Court only if he succeeds in showing that he holds a public office. He referred to a number of decisions of the High Court and this Court in support of his contention, which will be presently referred to and discussed. His submission was that inasmuch as the office held by Wali Ahmad Khan in the service of the K.DA. And the functions attached to it were not mentioned in the statute governing the KDA, ex facie shows that he was not holder of a public office to be entitled to invoke the remedy under the Constitutional jurisdiction. Learned counsel categorically argued that every employee of a local authority was not entitled to protection under the Constitutional jurisdiction. The cases relied upon by the learned counsel may now be referred to--- (1) Dr. Abdul Hafeez v. Chairman, Municipal Corporation, Lahore and others PLD 1967 Lahore 1251. This case deals with a Writ Petition filed by Abdul Hafeez to call in question the validity of the order passed for his compulsory retirement from the post of Assistant Medical Officer of Health held by him under the Lahore Municipal Committee. The learned Judges of the Lahore High Court accepted the petition and declared the impugned order for the compulsory retirement of the petitioner "against law and ineffective". In this case a question was raised as to the maintainability of the writ petition, which was repelled by the learned Judges and it was held that the petition was competent under Article 98 of the then Constitution of 1962. The main reason that prevailed with the learned Judges was that the Lahore Municipal Corporation was a statutory Corporation and was `a person' and a `local authority' within the meaning of Article 98. The gist of the decision, however, is that the petitioner as Assistant Medical Officer of Health was holding a statutory office under the City of Lahore Corporation, and was continued in service under the Municipal Administration Ordinance, 1960, on the same terms and conditions. He was, therefore, performing duties of public nature and importance. On these grounds the learned Judges held that a Constitutional petition was maintainable. (ii) Mr. Salimullah v. Trustees of the Port of Karachi PLD 1975 Kar. 758. In this case the petitioner was serving as Deputy Chief Accounts Officer in the office of the Karachi Port Trust. The petitioner was charge-sheeted and a departmental enquiry was launched against him, as a result of which the Chairman, Karachi Port Trust after obtaining the approval of the Central Government, compulsorily retired the petitioner. He then challenged the aforesaid order in a Constitutional petition before the High Court. An objection was raised about the maintainability of a Constitutional petition on the ground that the case was governed by the master and servant rule, for which the remedy was to bring a suit for damages. Learned Judges held that the law of master and servant was based on the principle of freedom of contract, but in the present case since the KPT was not competent to retire the petitioner without the Central Government's approval because of section 24 of the KPT Act, therefore, the remedy of writ was available to responsible officers of local authority, like the KPT, managing a great harbour, collecting rates, tolls etc. And framing bye-laws. (iii) R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146. This case refers to service of National Shipping Corporation and the petitioner was serving as Regional Officer under the said Corporation established by the National Shipping Corporation Ordinance, 1963. As the petitioner was proceeded against on charges of financial irregularities and found guilty, he was removed
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from service. The writ petition filed by him to challenge his removal from service was dismissed in limine by a learned Single Judge of the High Court, on the ground that the case did not disclose any violation of statutory protection to the petitioner. An objection was raised when the matter was brought before this Court on behalf of the National Shipping Corporation, to the effect that the petitioner being an employee of a statutory Corporation was not entitled to seek redress in writ jurisdiction of the High Court. It was held that the fact that the petitioner was an employee of a statutory Corporation established by a statute, was immaterial to the question of law raised. It was pointed out that the essence of the matter, however, was whether the aggrieved incumbent could be regarded as holder of a "public office" which was described by Ferris in his book "Extraordinary Legal Remedies", at page 166, as: "A public office is the right, authority and duty created and conferred bylaw by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure duration, emolument and duties." On behalf of the petitioner reliance was placed on the dictum laid down in the case of Dr. Abdul Hafeez (supra). But the learned Judges distinguished that case from the case in hand, by pointing out that Dr. Abdul Hafeez was performing duties of a public nature and importance, whereas as held in the case of the Lahore Central Co-operative Bank Ltd. v. Pir Saif Ullah Shah PLD 1959 SC (Pak.) 210 a Commercial Manager, even of a statutory Corporation cannot be held to be a public or statutory office, which means "an office which is by law prescribed in regard to its existence, its tenure or duties". Thus, the petitioner whose main function was to secure business for the Corporation was not found entitled toConstitutional remedy. (iv) Salahuddin v. Frontier Sugar Mills and Distillery PLD 1975 SC 244. In this case the question was about the legality of the removal of a person from the office of Chief Executive of a Joint Stock Company incorporated under the Companies' Act and the removal of a Director of the Company. It was held that offices held by the Director and Chief Executive of such public limited company must be regarded as public offices which are of greatest interest to the public and as such a writ in the nature of quo warranto can be issued by the High Court, but no menadmus would issue for restoration or reinstatement to office. (v) Chairman East Pakistan Development Corporation v. Rustam Ali PLD 1966 SC 848. Rustam Ali, respondent, was in the service of Pakistan Industrial Development Corporation, as Diesel-in- Charge in the. Sugar Mill at Rangpur the then East Pakistan. He was dismissed from service as a result of a domestic enquiry on charges of misconduct. In a Constitutional petition under the 1962 Constitution., he challenged his dismissal from service before the High Court, which was successful as the same was quashed. 1n the appeal before this Court it was contended that the Constitutional petition was not maintainable, inasmu ch as the service of the respondent was of a contractual nature and accordingly Constitutional remedy could not be invoked as in the case of public servants. It was held, following the case of Pir Saif Ullah Shah referred to hereinabove, that writ was not a proper remedy in a case like the one in hand, which is governed by the ordinary law of master and servant. (vi) Shahid Khalil v. Pakistan International Airlines Corporation, Karachi 1971 SCMR 568. The question before the Court in this case was whether the post of Secretary to the Managing Director of the Pakistan International Airlines Corporation, created by a statute was a public office, so that a Constitutional petition for restoration to the said post would be competent. The Court following the case of Pir Saif Ullah Shah held that the post in question in no way can be regarded as equivalent to a "public office" and therefore writ was not available to secure restoration thereto.
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(vii) Muhammad Aslam v. National Shipping Corporation PLD 1979 Kar. 246. An employee of the National Shipping Corporation appointed as Fourth Engineer on a ship was dismissed from service on being found guilty of charges of misconduct. In this case. The learned Judges of the High Court held that the fact that a Corporation performs the functions relating to the affairs of the Government will not ipso facto entitle an employee of such Corporation to invoke the Constitutional remedy for his reinstatement in service. It was further held that in view of the large number of reported cases of this Court the rule is well-laid down that the relationship between a Corporation and its employee is that of master and servant. In this view of the matter the Constitutional petition was dismissed. (viii) Evacuee Trust Property Board v. Muhammad Nawaz 1983 SCMR 1275. This case related to the removal of the employee from service of the District Evacuee Trust Committee which was governed by statutory rules of service. However, in this case the dismissed employee challenged his removal from service in a suit for declaration tiled in the Civil Court. As the suit was ultimately decreed in appeal and the revision riled by the Evacuee Trust Property Board was dismissed by the High Court, the matter was ultimately brought before this Court. It was contended that even though the removal or dismissal of the employee was illegal, non-the-less the employee could only sue for damages for wrongful dismissal from service, but could not be granted a declaration, in that, the relationship between the parties was that of master and servant, subject to the pleasure of the master. This contention was repelled, on the ground that the service of the employee was governed by statutory rules and as the dismissal was in violation of those rules it was illegal. The learned Judges in taking this view observed that "where statutory rules governed the service conditions of an employee, then the pleasure of the master stands surrendered to the extent the matter is covered by the relevant rules". (ix) Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170. The decision in this case related to the termination of service of a member of the office staff and a member of the teaching staff of the Cadet College, Kohat by the Board of Governors. The Cadet College was established under a statute called; The West Pakistan Educational and Training Institution Ordinance, 1960, which was run by a Board of Governors, with powers of recruitments of members of staff and determination of the terms and conditions of their service. The rule making power under the statute vested in the Government, whereas the Board of Governors, subject to the approval of' the Government, was empowered to frame regulations, inter alia, relating to recruitment, tenure of office, terms and conditions of service of the officers and servants appointed by the Board. The aforesaid West Pakistan Ordinance of 1960 was repealed and replaced by the N.W.F.P. Ordinance of 1971, re-enacting identical provisions relating to the aforesaid relevant matters. It was held in this case that as no rules or regulations were in fact framed there is no question of the violation of any statutory rule, and no statutory provision was also violated. Therefore, the Constitutional jurisdiction of the High Court could not be invoked. Nasim Hasan Shah, J., who wrote the judgment (or the Court, reviewed the case law touching the question of law from Janjua's case downwards including most of the cases referred to above. It was then observed by him as follows: "It is, therefore, evident that where the conditions of service of an employee of a statutory body are governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules can be set aside by a writ petition. However, where his terms and conditions are not governed by statutory rules but only by regulations, instructions or directions which the institution or body, in which he is employed, has issued for its internal use, any violation thereof will not, normally, be enforced through a writ petition. In this view of the matter, the holding of a `public office' by an employee is not all that crucial because, as rightly pointed out by Qari Muhammad Jamil, learned counsel for the respondent in
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Civil Appeal No.17 of 1981, this condition is relevant only in cases wherein a writ in the nature of quo warranto is sought whereby a person holding a public office within the territorial jurisdiction of a High Court may be required to show the authority, of law tinder which he claims tohold the said public office. Thus, apart from the question whether the aggrieved employee of a statutory body was a holder of a `public office' the more important question will be whether the conditions of his service were governed by any statute and/or a statutory rule, if so, whether the statute or statutory rule was disregarded while taking the action which is impugned by him." (x) Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194. In this case a junior officer in the service of Agricultural Development Bank of Pakistan had tendered his resignation which he subsequently sought to withdraw, but in the meantime he was communicated the decision of the Bank that his resignation had been accepted. Thereupon, he instituted a suit for declaration challenging the acceptance of his resignation as termination of service and sought declaration and permanent injunction. The Bank in its defence, inter alia, took up the plea that the suit was not maintainable as the service of the employee was governed by the law of master and servant. The suit was, however, decreed by the trial Court and this decree was affirmed in appeal. Ultimately, the High Court set aside the decree passed in favour of the employee upholding the objection with regard to the maintainability of the suit. The petition brought before this Court against the decision of the High Court was dismissed by the judgment which has been reported in Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194. It was held that as the matter of appointment and terms and conditions of service of the employees were left to be regulated by the Agricultural Development Bank of Pakistan under section 30 of the Agricultural Development Bank of Pakistan Ordinance, 1961, which also conferred power of appointment of officers on the Bank upon terms and conditions as may be prescribed by Regulations framed under section 39 of the said Ordinance, the general law of master and servant was applicable. The reasoning adopted in this case runs as follows:--- "It follows that if the relationship is the result of a contract freely entered into by the contracting parties then the principle of master and servant will apply. The principle, however, will not apply if some law or statutory rule intervenes and places fetters upon the freedom of the parties in the matter of the terms of the contract. It is on this principle that a civil servant for whom there are Constitutional safeguards, is not governed by the principle of master and servant, for he is possessed of a legal character for the enforcement of which he can bring an action. Even where the employee is not a civil servant but there are statutory safe---guard governing his relationship with the employer and placing restrictions on the freedom of the parties to act, the general law of master and servant will not apply. In such cases the employer would be bound to follow the procedure provided for in the statute or the statutory rules before terminating the service of the employee and in the absence of conformity to such procedure, the termination of service would not be clothed with validity and the employee will be entitled to an action for his re-instatement" After referring to sections 30 and 39 of the aforesaid Ordinance the final conclusion dismissing the petition of the employee was stated as hereunder---- "It is clear from the above that the Bank has complete control over its employees, their appointment and dismissal and their terms and conditions of service and that this control is not fettered by any statutory provision. The rule of Master and Servant will, therefore, apply to the case of the servants of the Bank." However, as there was an amendment made in section 39 of the Ordinance by Act XII of 1973, which was not brought to the notice of the Court, the reported judgment was reviewed, because although as originally enacted section 39 placed no fetter on the power of the Bank to regulate the terms and conditions of the service of the its employees inasmuch as the Board of the Bank was free to
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make any regulations with regard to the terms and conditions of service of its employees, by the aforesaid Amending Act the regulations relating to terms and conditions of service of the employees, were subjected to the approval of the Federal Government. In this view of the matter the review application was accepted and leave was granted against the judgment of the High Court and the matter was disposed of as Civil Appeal No.922-K of 1990 (Anwar Hussain v. Agricultural Development Bank of Pakistan and others). The law as laid down in the reported judgment relevant portion of which has been reproduced first hereinabove, was maintained, but the question was considered whether there was any such statutory regulation issued with the approval of the Government, which was violated in this case, so as to entitle the employee to the relief of declaration and re-instatement. Upon considering the statutory regulations bearing upon the terms and conditions of service of the employee, it was found that there was no such violation of any specific statutory rule or regulation so as to entitle the employee to the relief of re- instatement in service. However, the case was decided on the principle enunciated in Evacuee Trust Property Board v. Muhammad Nawaz 1983 SCMR 1275 that if there had…
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