Full Judgment Text & Judicial Ruling

2006 P L C (C

2006 P L C (C.S.) 862

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

SAIFULLAH CHEEMA, Formerly Mathematics Teacher

Versus

CHAIRMAN BOARD OF GOVERNORS, AITCHISON COLLEGE, LAHORE and 2 others

Appeal No.1978 of 2004, decided 17th January, 2005.

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 2(aa), 3, 5, 8 & 10---Punjab Service Tribunals Act (IX of 1974), S. 4---Removal from service---Appeal---Appellant serving as a teacher in a college was removed from service with the order of Principal of the college on allegation of misconduct---Allegation against appellant was that he had beaten a student while he was taking class due to his mis behaviour---Under Rules and Regulations of the college framed by Board of Governors, Sub-Committee had full powers to appoint and remove all members of teaching staff and Principal could take only disciplinary action against a teacher not extending to his removal or dismissal---Principal of college having no power to remove or dismiss appellant from service, his action against appellant suffered from lack of jurisdiction---Authorities could not produce any Notification of Board of Governors delegating powers of appointment or removal of Masters/teachers to Principal of the college---Even otherwise appellant was removed from service without extending him an opportunity of hearing, violating mandatory provisions of proviso to S.8 of Punjab Removal from Service (Special Powers) Ordinance, 2000---Mandatory provision of law having been violated, appellant was condemned unheard and no order violating the rule specifically requiring the hearing of appellant by providing him opportunity under the rules, could be maintained---Appellant no doubt had inflicted corporal punishment upon complainant student, but no action was taken against said student on his misbehaviour, misdeed and most insulting attitude towards appellant who was a senior respectable teacher---Order of removal from service passed against appellant by Principal unauthorizedly and without providing appellant opportunity of hearing, was set aside and quashed with the direction to reinstate appellant with all benefits due to him under law from date of removal from service till date of reinstatement.

Arshad Nazir Mirza counsel for Appellant.

Khadim Hussain Sindhu, District Attorney and All Sibtain Fazli for Respondents.

Date of hearing: 11th January, 2005.

JUDGMENT

JUSTICE (RETD.) RIAZ KAYANI (CHAIRMAN).---Saifullah Cheema, former Mathematics Teacher, Senior School, Aitchison College, Lahore has brought this appeal assailing the order, dated 10-6-2004 passed by the Principal, Aitchison College, Lahore, the competent authority, under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000. His appeal to the Chairman, Board of Governors, Aitchison College, Lahore having not been attended to within the statutory period, recourse has been made through the instant appeal for the redressal of his grievances.

2. A complaint was brought on 9-10-2002 in writing by Muhammad Ahmad Malhi, a student of Class C2C (Final year of `O' level, equivalent to 10/11th Class) addressed to the Principal, Aitchison College, Lahore that he was beaten by the appellant on the date of complaint, while taking Mathematics class, as well as abused his mother and sister. It was stated that although he regretted for what he did, but the Teacher reacted harshly by slapping and pushing him, in consequence of which he started bleeding. Quick and prompt action was solicited as he felt insulted and hurt in front-of the whole class. It seems that a preliminary inquiry was ordered by the Principal by appointing a committee comprising Mr. G.D. Gillani (Convener) and Major (Retd.) Syed Muhammad Azhar as Member. The committee examined the complainant along with six students of the same class, who were selected at random by the class prefect. A report, dated 17-10-2002 was submitted statedly after a thorough investigation. Since the report shall be commented upon in this judgment in the ensuing paragraphs, it would be worthwhile to reproduce it in extenso:--

(i) Muhammad Ahmad Malhi has been a persistent source of trouble in this class. This is abundantly clear from the statements of his class-mates

(ii) M.A. Malhi has been involved in acts of moral decadence as explained by Mr. Saifullah Cheema in his interview.

(ii) M.A. Malhi has been warned by his teachers on several occasions to bring about a positive change, it is evident that he enjoys teasing his teachers and boasts of this attitude amongst his class-mates.

(iv) On the day of this particular incident, Mr. Saifullah Cheema reacted to the complainant's aggressive, rude and immoral act with outrage and anger. He definitely pulled him out of his seat upon his refusal to leave the class voluntarily. While pushing Maihi out of the class, he hit him on the back. However, there is no evidence whatsoever to support the claim of the complainant that he was beaten up to the extent of bleeding.

(v) M.A. Malhi in his formal complaint, written statement and during the course of interview did admit causing trouble in the class. Although he expressed his guilt and apologized for his actions, it is very unlikely that this boy would behave any better in future.

(vi) It is noted that Mr. Saifullah Cheema is a very dedicated, capable and upright person who enjoys his work. His past record is unblemished and he commands respect of his pupils.

(vii) The grievous action taken by Mr. Saifullah Cheema has not been transpired by alone episode rather it looks like an action of a person who failed to control his outrage due to persistent teasing and mental torture inflicted by the complainant.

In view of the above, the inquiry committee suggests that a lenient view should be taken regarding Mr. Saifullah Cheema. The committee further suggests that a strong warning should be issued to M.A. Malhi, who has been responsible for spoiling the class discipline and who in our opinion is the main cause of this untoward incident.

The findings and recommendations are being put up for your perusal please."

While conducting the inquiry, the committee recorded the statements of the students whose names have been mentioned. One of the student namely Ali Imam Sabir stated that Muhammad Ahmad Malhi, the student, suddenly started laughing loudly and tried to be funny. It was further stated that M.A. Malhi is normally one of the mischievous boys in the class and has often teased the teachers and irritated them. Continuing with his statement, the witness stated that Sir Saifullah Cheema was quite aggravated and reacted by beating Maihi and threw him out of the class. In the end, it was added that Sir Saifullah Cheema obviously likes to maintain discipline in the class and honestly speaking, the beating was justified to some extent. Syed Hamza Hussaini, another student stated that Malhi started to disturb the class as he was laughing loudly and Sir Saifullah Cheema ignored him and became angry and hit him. It was stated that the Teacher was one of the best teachers and normally ignored these disturbances and attitudes, whereas Malhi often teases and disturbs the class and after ignoring all this on various occasions, Saifullah Cheema finally hit him. The student elaborated that it was the extent of his patience as he had previously warned Malhi not to indulge in all these bad habits. Muhammad Usman Ijaz, yet another student although stated that Sir Saifullah Cheema was annoyed to the extent that he was compelled to beat the fellow (Muhammad Ahmad Malhi), yet described and blamed Malhi to be an average graded student and is always annoying most of the teachers. The Mathematics Teacher (appellant) always used to ignore him and kept on giving warnings, but that day on the 9th of October, he lost his patience and started to beat him. Praising the teacher, the student acclaimed him as one of the best teachers in Mathematics, who was punctual in his work and was otherwise a friendly man. The competent authority decided to proceed against the appellant and on 18-10-2002, sought an explanation in writing to show cause as to why disciplinary action should not be initiated on account of professional misconduct. On 29-10-2002, a formal show-cause notice under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000 was issued to him containing the following charge:

"You on 9th October, 2002 physically tortured and used filthy language to Ahmad Malhi, a student in your class in the presence of the other students.

Further you expelled him by force from the class. This irresponsible conduct has created a bad reputation of the institution as physical torture is prohibited. In case of any problem from the student, you are bound to inform the Principal of the College. But you handled the student so ruthlessly which conduct is prejudicial to good order and service discipline and is a grave misconduct. You are not the Judge of your own cause while serving the Institution. Thus by giving physical torture has not lowered the prestige of the College, but also has created embarrassment among the students of the College including their parents.

So your remaining on the strength of the College will further deteriorate the good order of the College. As the charge of misconduct is self-evident from the record, the question of inquiry does not arise in the view of the above and you are hereby given show-cause notice of major penalty for removal from service under section 3(1) of the above said Ordinance within seven days or otherwise through ex parte proceedings if no reply is received."

Another step which the competent authority took was to suspend the appellant vide order of even date. He was however, directed during the period of suspension to remain in attendance in the institution. In the reply given by the appellant titled as `Factual plain' the appellant denied to have physically tortured or used filthy language against the student, and stated that Mr. Malhi was a notorious student of the college, who indulged in immoral and unethical activities, unbecoming of a student of any educational institution. Elaborating his explanation, appellant stated that he would like to explain it here as to his (Malhi) nefarious activities, but his pen and conscious does not permit him to bring it in writing. However, the activities of Mr. Malhi shall be narrated to your goodself (competent authority) during the course of personal hearing.

Recounting the event of 9-10-2002, appellant explained that Mr. Malhi again indulged in the same immoral and unethical activity, which the boys of the class exhibited some unrest when he (appellant) was about to turn to the blackboard in order to explain a proposition, when the said body burst into sarcastic laughter and, when he (appellant) ordered him to leave the class, he disobeyed the command of the Teacher with impunity. The boy was again ordered to go and leave the class, but he still remained adamant, with the result that he approached him and pushed him out of the class and this, what all, happened. Appellant emphasized that he believed in strict discipline in the class, as he did in the past, but all his efforts proved abortive, and turning him (Malhi) out of the class was the requirement to bring discipline in the class being the foremost requirement of a teacher. Appellant stressed that the mother of the student also threatened him of dire consequences, which matter he had already reported to the Principal, and to cap it all, regarding his misdemenour, it was stated that Mr. Kashmiri (Headmaster, Senior School) had canned the boy earlier. On the legal plain, a regular inquiry was demanded.

3. Appellant thereafter invoked the constitutional jurisdiction of the Lahore High Court through Writ Petition No.19452 of 2002, which resulted in an order, dated 29-3-2002, in which, on the basis of the supplementary statement of the respondents (Aitchison College, Lahore), a regular inquiry was ordered, and secondly the appellant was directed to make a written representation before the competent authority for the payment of his salary which was statedly withheld. A formal order holding a regular inquiry was passed by the respondents on 13-4-2004 on the same charge, which, for the sake of brevity need not be reproduced. It would be pertinent to point out that Mr. Iftikhar A. Malik, a Bursar was appointed as Inquiry Officer, and the appellant was directed to appear before him on 22-4-2004, at 9-30 a.m., on which date the inquiry was to commence. On 17-4-2004, appellant submitted a written application to the Principal, Aitchison College, Lahore against the Inquiry Officer, stating that due to his liaison with the prosecution in his case in the Court of law, justice was not expected from him as he apprehended partiality. The application was dismissed by the respondent.

4. The Inquiry Officer commenced the inquiry, and in the presence of the appellant, took the statement of Syed Muhammad Azhar, Teacher of Senior School and one of the members of the inquiry committee, who conducted the preliminary inquiry. In his statement, the witness stated that they submitted their verdict to the Principal in the preliminary inquiry report, and that Saifullah Cheema (appellant) was a reasonable and dedicated teacher, and if what happened, it was the result of some provocation, and because of its nature, the act committed by the appellant should be condoned, and the Teacher be exonerated. The witness submitted a statement with a request to the Principal, Aitchison College, signed by the students to pardon the Teacher. Appellant was given a chance to cross-examine the witness, which he declined. The statement of Muhammad Ahmad Malhi was also recorded, who stated that the appellant beat him in the class whilst he was teaching, as he was laughing loudly, and when he came home, he told his mother, who wrote an application and dropped it in the box placed outside the room of the Headmaster. Thereafter, his mother came to the Principal and asked for some action to be taken against the appellant for what happened on 9-10-2002. He was put questions by the inquiry committee, who conducted the preliminary inquiry, and in response, the whole incident was explained. In reply to the cross-examination conducted by the appellant,. the student stated that he was laughing loudly. To another question put by the appellant whether (student) was told to leave the class, the answer was in the negative. To yet another question as to what did the appellant ask the student to do, the reply by Malhi was that he was beaten and while he was, sitting, Sir pulled him up, pushed him and hit him on the chest. To the last question, the student stated that in his opinion, the case should be finished as soon as possible because he felt repentant and that he was under a lot of stress because he felt guilty in front of the whole school, as a result of the suspension of the teacher. Appellant was asked to depose, but before doing that, he made a request to engage a counsel, which was declined by the authority. He also placed on record a written request made by about 29 students stating that the boy (complainant Malhi) committed an unfortunate incident by behaving in an intolerable way and that they believed that the act of the Teacher was morally correct. They prayed that taking strict action was unjustified, rather the boy should be punished who was taking pride in what he had done. The second request made by the appellant in writing on 30-4-2004 was that since the complainant has moved the application for withdrawal of the complaint/inquiry, the same be dropped and the case be closed. This request was declined by the competent authority. Appellant named his defence witnesses as Rizwan Hussain and Abuzar Moazam, both students, whom he could not produce, resultantly the defence was closed. The Inquiry. Officer on 15-5-2004 submitted his report to the competent authority. In his report, the Inquiry Officer admitted that there was evidence that the boy was misbehaving in the class and that the action of the Teacher (appellant) alleged to have beaten the boy was the misconduct, which was being investigated, and further there was no complaint by Saifullah Cheema (appellant) to the Principal either on the day of the incident or earlier about the body's misbehaviour. The Inquiry Officer in Para 25 of his report decided not to give chance to the appellant to cross-examine the six boys who gave their statement in the preliminary inquiry leading upto the report, dated 7-10-2002 as there was no point to cross-examine them, they having failed to appear in the regular inquiry, and that their statements in the preliminary inquiry was to be ignored. As regards the application moved by 29 boys seeking pardon on behalf of the appellant, the Inquiry Officer observed as under:--

"The boys (29 in number) application (undated) (Annexure-C) to the Principal produced by Saifullah Cheema indicate that the said Saifullah Cheema is an extremely good and competent teacher and in their view 'the boy due to whom this unfortunate incident took place was behaving in an intolerable way'. Whilst this may be so as far as the conduct and reputation of the teacher, he or she working as a teacher in the College has td show and display above per conduct, be very patient with boys and be tolerant and understanding to earn their everlasting respect and teach them with honour, self-respect, compassion, fairness and enthusiasm which is expected of a teacher in the College. In case of any unruly boy the correct way would be to report him to the higher authorities and not take any action personally.

It has been brought on record that 29 boys submitted an application to the Principal to pardon Saifullah Cheema and there is no reason why the undersigned should gather them and their statements. Their statement is accepted but even the joint applications of the 29 boys does say Malhi's behaviour resulted in `this unfortunate incident' took place."

In para 31 of the report by the Inquiry Officer titled as `Findings and Recommendations, the conclusion drawn was that the appellant had been rough and brutal with Malhi who was physically pushed and expelled by the appellant, by using force, out of the class and also hit him in the process, which constituted misconduct. It was further added that the act of the appellant lowered the prestige of the college and caused embarrassment amongst the students of the college and their parents. Stating further, the Inquiry Officer held that any problem from the student should have been complained to the Principal, but manhandling the student is the conduct prejudicial to good order and service discipline. Appellant was recommended to be removed from service as contemplated in section 3 of the Punjab Removal from Service (Special Powers) Ordinance, 2000. The competent authority after hearing the appellant imposed the penalty now impugned.

5. Learned counsel for the appellant raised some preliminary objections in that the respondent No.3, i.e, the Principal Aitchison College, the Mall, Lahore, not being the competent authority under the provisions of the Punjab Removal from Service (Special Powers) Ordinance, 2000 could not inflict the penalty of removal from service through the order now impugned. The second preliminary objection raised was that the Principal Aitchison College, Lahore passed the impugned order of removal from service, dated 10-6-2004 without extending the appellant an opportunity of hearing, thereby not only violating the proviso to Rule 8 of the Ordinance, but also, trampling with impunity, the principles of natural justice enshrined in every proceeding affecting all forms of rights which are likely to cause detriment and injury in case any action is proposed to be taken.

6. On factual plinth, learned counsel for the appellant contended that the proceedings were commenced against the appellant as a result of malice and grudge entertained by the Principal of the College due to litigation initiated by him, which was mainly to protect his rights, and that his act only amounted to a fatherly admonishment to an erring student for the maintenance of discipline in the class. Therefore, the impugned order has resulted in a grave miscarriage of justice. It was next contended that the student, who appeared in the preliminary inquiry were deliberately not allowed to depose in the regular inquiry as they had supported the appellant and there was fear that the malice entertained by the respondent would not be executable against the appellant in case the depositions come on record. The order of the respondent refusing to change the Inquiry Officer on the request of the appellant was also lambasted reiterating therein that the Inquiry Officer was grossly biased and prejudiced in his approach towards the appellant, which hampered him from doing justice to the case of the appellant. Lastly, it was pleaded that the penalty imposed was extremely harsh taking to consideration the offence and consequent provocation given by the complainant whose act eroded the discipline not only of the class, but of the institution. Learned counsel for the respondents supported the impugned order, submitting that corporal punishment was condemned world over and the perception, with passage of time, has trickled to the Provinces of Sindh and Punjab. He laced his arguments with press clippings and news items gathered from the Internet. However, the learned District Attorney addressed the Tribunal on the harshness of the penalty and emphasized that the same was grossly disproportionate even if the acts committed by the appellant are admitted, which were proved to be the result of provocation given by the complainant, by his rowdy behaviour coupled with some immoral act as suggested in the preliminary inquiry report.

7. I have heard the respective counsel at length and perused the record.

8. I intend to deal with the preliminary objections in the first instance. Learned counsel for the appellant went on to contend while collaborating his arguments regarding the lack of jurisdiction on the part of respondent No.3 to pass the impugned order, alluding to the statutes of Aitchison College, Lahore in particular to sub-clause (b) of Clause-I, that the terms and conditions of service of Principal and other Members of the staff of the institution are determined by the Board, which comprises the Governor of the province of Punjab as President and such members as may be appointed by the Governor from time to time. Coming to Clause `d', it was stated that the Board has to set up an executive committee, sub committee and other standing committees as may be required for carrying out the purposes of the statutes. Similarly, sub-clause (e) relates to the delegation of powers to the President, the executive committee, the sub-committee, the standing committee, the Principal, the staff of the institution and other officers and servants of the Board. Finally sub-clause (f) authorizes the Board to frame, subject to the approval of the Government, regulations for the conduct of business of the Board. Learned counsel also referred to sub-clause (1) of Clause-VI which deals with the powers and duties of the sub committee to state that the sub-committee shall be appointed and shall consist of the President and two other members appointed annually by the Board and in the event of the President being unable to attend, he shall appoint any other member of the Board to act as its President. Sub-rule (2) was referred to point out that the sub committee shall have full powers to remove and appoint all members of the teaching and administrative staff including the Principal other than a member of Class-III or IV staff, notwithstanding any existing terms and conditions. As regards the powers of the Principal to impose penalties, reference was made to Sub-Clause '(6)' of the main Clause-V, which states that the Principal shall take such disciplinary action not extending to removal or dismissal as he may deem necessary against any member of the teaching and senior administrative staff. Thereafter, a reference was made to sub-clause '(7)', which deals with the power of the Principal to appoint, suspend or dismiss any member of Class-III or Class-IV. Summing up his arguments on this issue, it was stated that the Principal having no powers to remove or dismiss the appellant from service, his action, as reflected in the impugned order suffers from lack of jurisdiction. In reply to this argument, learned counsel for respondent No.3 banked upon the Service Regulations of the Aitchison College admittedly framed under sub-clause (f) of Clause-III of the statutes in particular to Regulation No.9, which stated that the Principal shall be competent to make…

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