Full Judgment Text & Judicial Ruling

2005 P L C (C

2005 P L C (C.S.) 1300

[Lahore High Court]

Before Syed Zahid Hussain, J

MUHAMMAD MUSHTAQ

Versus

CHANCELLOR, GOVERNMENT COLLEGE UNIVERSITY, FAISALABAD

Writ Petition No.5506 of 2005, decided on 3rd June, 2005.

(a) Government College University, Faisalabad Ordinance (LXX of 2002)-----

----S.41---Dismissal of permanent employee---Principle of audi alteram partem---Applicability---Reasonable opportunity of showing cause against and action proposed to be taken against employee has been envisaged under S.41 of Government College University, Faisalabad Ordinance, 2002, which is a recognition of basic principle of natural justice i.e. audi alteram and its applicability.

(b) Natural justice, principles of----

----Scope---principles are integral part of our jurisprudence and legal dispensation---Principle that no man should be condemned unheard is presumed to be embodied in statute in absence of any provision to the contrary.

Commissioner of Income-Tax, East Pakistan v. Fazlur Rahman PLD 1964 SC 410 and Province of East Pakistan and another v. Nur Ahmad and another PLD 1964 SC 451 ref.

(c) Government College University, Faisalabad Ordinance (LXX of 2002)---

----S.14---Constitution of Pakistan (1973), Art. 199-Constitutional petition---Principle of audi alteram partem---Applicability---Expression `pleasure of the Chancellor'---Scope---Petitioner was appointed in the University as Registrar, for a term of three years---Three days after approval of terms and conditions of the appointment of petitioner, notification was issued whereby he was removed from service on the ground that he was to hold the office at the pleasure of the Chancellor---Plea raised by the petitioner was that he was condemned unheard---Validity---Expression `pleasure of the Chancellor' mentioned in the notification did not find support from the contemporaneous law---Rather the expression was contrary to the provisions of S.14 of Government College University, Faisalabad Ordinance, 2002, which envisaged the appointment of the Registrar by following certain procedure and observing a criteria mentioned therein---Appointment though had to be made by the Chancellor, yet it has to be on the recommendations of the Government as recommended by the Committee appointed by Syndicate and headed by Vice-Chancellor and it was not an appointment in the absolute discretion of the Chancellor `at his pleasure'---' Pleasure' of the Chancellor appearing in the notification was to be regarded as otiose, superfluous. and futile being contrary to the statutory law and the law declared by Superior Courts---Any administrative/executive order/instrument that might tend to deprive a person of the right to notice about the proposed action to be taken or opportunity of showing cause to be given, was not only un-Islamic but also unlawful---Notification of the petitioner did not envisage the termination clause; it could reasonably be implied that the petitioner was in normal course entitled to complete his tenure unless curtailed earlier in accordance with law, after notice and opportunity of showing cause---Action against the petitioner was prompted by some allegations and he was summarily removed, although his terms and conditions of appointments were approved three days. before the notification; in such background the notice and opportunity of showing cause was necessary but his services were dispensed with summarily without adhering to and observing the minimum requirement of natural justice---Notification whereby the services of petitioner were dispensed with summarily without any show-cause notice to him was not sustainable in law and was declared as of no legal effect---Petition was allowed accordingly.

Mr. A.R. Azar Deputy Chief Engineer, West North-Western Railway Lahore and others v. The Federation of Pakistan another PLD 1958 Lah. 185; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; The D.F.O. South Kheri and others v. Ram Sanehi Singh AIR 1973 SC 205; Messres Airport Support Services v. The Airport Manager, Quaid-e-Ezam International Airport, Karachi and others 1998 SCMR 2268; Government of Punjab through Minister for Revenue, Board of Revenue, Lahore and others v. Messrs Crescent Textile Mills Limited PLD 2004 SC 108; Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271; Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and another v. Messrs Shoaib Bilal Corporation and 2 others 2004 CLC 1104; Zubair Ahmad and another v. Shahid Mirza and 12 others 2004 SCMR 1747; Prof, Dr. Aftab Ahmed Malik v. University of Engineering and Technology Lahore through Registrar and 3 others 2005 PLC (C.S.) 80; Sindh Road Transport Corporation through Chairman v. Muhammad Ali G. Khokhar 1990 SCMR 1404; Muhammad Aslam Chaichee v. Azad Government of the State of J&K through Chief Secretary and another 1988 PLC (C.S.) 759; Shafqat Mahmood Lodhi v. The Accountant-General West Pakistan Lahore PLD 1968 Lah. 786; Muhammad Saeed Zameer and others v. Board of Governors, Aitchison College through Chairman and 2 others 2005 PLC (C.S.) 558; Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury, and 2 others PLD 1961 SC 531; Liaqat Ali Channa and others v. Federation of Pakistan and others 1998 PLC (C.S.) 727; Khawaja Ghulam Sarwar v. Pakistan through the General Manager, P.W.R. Lahore PLD 1962 SC 142 and Pakistan and others v. Public at large and others PLD 1987 SC 304 ref.

Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934; Pakistan State Oil Company Ltd. v. M.Akram Khan and others 2004 PLC (C.S.) 992 rel.

Agha Salim Khurshid and another v. Federation of Pakistan and others 1998 SCMR 1930 disting.

(d) Good governance---

----Pleasure of rulers---Scope---Islamic Republic of Pakistan and the nation is governed by the Constitution and the laws---Absolute power and authority cannot be arrogated to or exercised by any State functionary.

(e) Master and servant---

----Master and servant, relationship of---Concept of such relationship has undergone a change and the relationship of master and servant does not confer unbridled or unfettered powers to act whimsically or capriciously in violation of the principles of natural justice and well-settled norms of justice.

Fasasat Hussain and others v. Pakistan National Shipping Corporation through Chairman and others 2004 SCMR 1874 rel.

(f) Government College University, Faisalabad Ordinance (LXX of 2002)---

----S.41---Dismissal or removal from service---Requirement of show-cause notice---Counseling by Principal Secretary to Governor whether a substitute for show-cause notice---Validity---High Court refused to accept such counselling as substitute for show-cause notice for the reason that if there was any complaint against the petitioner and he was facing some allegations for which he was heard by the Principal Secretary, then there was no occasion for issuing notification for approving the terms and conditions of his appointment under S.14 (1) of Government College University, Faisalabad Ordinance, 2002----Such counselling could not be a substitute for a notice or opportunity of showing cause as envisaged by S.41 of Government College University, Faisalabad Ordinance, 2002.

Muhammad Ahsan Bhoon for Petitioner.

Ch. Aamer Rehman, A.A.-G Punjab, Ch. Rafiq Hussain, Mushtaq Ahmed Malik, Khalid Mahmood, Deputy Secretary (Education) and Javed Aslam Bajwa, Deputy Registrar/Advisor for Respondents.

Date of hearing: 30th May, 2005.

JUDGMENT

On 11-2-2004 Muhammad Mushtaq, the petitioner, was appointed as Registrar, Government College University, Faisalabad for a period of three years under section 14(1) of the Government College University, Faisalabad Ordinance, 2002. This was through a Notification issued by the Government of Punjab, Education Department under the order of Governor/Chancellor. He assumed the charge of the office w.e.f. 14-2-2004 (A.N.) as is evident from Notification dated 17-2-2004. His terms and conditions of appointment were notified by the Government of Punjab, Education Department through Notification dated 26-3-2005 mentioning his tenure that "He shall hold office during the pleasure of the Chancellor for term not exceeding 3 years starting from 11-2-2004". Soon thereafter vide Notification dated 30-3-2005 issued from the Governor's Secretariat, Punjab his services were dispensed with "with immediate effect as the same are no longer required by he University". This has been assailed by the petitioner through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 that the same be declared as "illegal and without lawful authority and ab initio void and nullity in the eye of law".

2. Report and parawise comments have been filed by the contesting respondents.

3. The learned counsel for the petitioner contended that bare reading of Notifications dated 11-2-2004, 17-2-2004 and 26-3-2005 would show that the appointment of the petitioner was under the specific provisions of the law i.e. section 14(1) of the Ordinance which was for a fixed term, it could neither be curtailed nor described as contractual simpliciter. It is contended that three days prior to the impugned notification, the terms of appointment of the petitioner were notified and the abrupt action of his removal from service is un under standable and unlawful as the petitioner was not issued any show-cause notice nor afforded opportunity of hearing who has been taken aback by such a drastic action. It is contended that there was no complaint, allegation or charge-sheet against the petitioner, which could justify such an action. As to the stance taken by the respondents in the comments, it is contended that concept of service during "pleasure" cannot be invoked which is no longer available to any authority under the prevailing Constitutional dispensation and that even no absolute and unbridled discretion vests in any of the respondents nor the discretion could be exercised in such an unreasonable and unjust mariner. Reference has been made by him to a passage from "What next in the law" page 309 by Lord Denning. Mr. A.R. Azar Deputy Chief Engineer, West, North-Western Railway Lahore and others v. The Federation of Pakistan another (PLD 1958 Lahore 185), Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232), Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others (2001 SCMR 934), Pakistan State Oil Company Ltd. v. M. Akram Khan and others (2004 PLC (C.S.) 992). The D.F.O. South Kheri and others v. Ram Sanehi Singh (AIR 1973 SC 205); Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1988 SCMR 2268); Government of Punjab through Minister for Revenue, Board of Revenue, Lahore and others v. Messrs Crescent Textile Mills Limited (PLD 2004 SC 108); Brig Muhammad Bashir v. Abdul Karim and others (PLD 2004 SC 271); Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and another v. Messrs Shoaib Bilal Corporation and 2 others (2004 CLC 1104); Zubair Ahmad and another v. Shahid Mirza and 2 others (2004 SCMR 1747); and Prof. Dr. Aftab Ahmed Malik v. University of Engineering and Technology Lahore through Registrar and 3 others (2005 PLC (C.S.) 80).

4. The learned Additional Advocate-General Punjab and the learned counsel for the respondents have vehemently contested and opposed the petition and endeavoured to support the action taken against the petitioner. The learned Law Officer has objected to the maintainability of the petition, as according to him the petitioner was a contract employee, which contract cannot be enforced through writ jurisdiction. According to him he was not governed by any statutory rules, therefore, the rule of master and servant was applicable and remedy for him at the most was the filing of suit for damages. It is contended that the petitioner had appeared before respondent No.5 on 14-1-2005 and according to his instructions was counselled. It is contended that his appointment was subject to the `pleasure' of respondent No.1 and was terminable at any time without any cause. He has cited Sindh Road Transport Corporation through Chairman v. Muhammad Ali G. Khokhar (1990 SCMR 1404), Muhammad Aslam Chaichee v, Azad Government of the State of J&K through Chief Secretary and another (1988 PLC (C.S.) 759), Shafqat Mahmood Lodhi v. The Accountant-General West Pakistan Lahore (PLD 1968 Lahore 786), and Muhammad Saeed Zameer and another v. Board of Governors, Aitchison College through Chairman and 2 others (2005 PLC (C.S.) 558). M/s. Ch. Rafiq Hussain and Mushtaq Ahmed Malik, Advocates, learned counsel for the respondents in addition to the contentions of the learned Additional Advocate General Punjab have cited Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury, and 2 others (PLD 1961 SC 531), Liaqat Ali Channa and others v. Federation of Pakistan and others (1998 PLC (C.S.) 727), and Agha Salim Khurshid and another v. Federation of Pakistan and others (1998 SCMR 1930) to supplement the contentions of the learned Law Officer. It is contended that he was promoting 'Bradri-ism' in the, University and had been encouraging grouping of teachers and other staff members. It has been contended that in such circumstances, it had become extremely difficult for the Vice-Chancellor to run the affairs of the University in congenial and conducive atmosphere.

5. In view of the tenor of order of appointment of the petitioner and order dated 30-3-2005 whereby the services of the petitioner have been dispensed with, I need not dilate and dwell much upon the respective contentions of the learned counsel for the parties inasmuch as in my humble view the matter can be resolved and determined by examining the nature of appointment of the petitioner and as to whether he was entitled to a notice of show cause and be heard in the matter before the action was taken against him. The parent legislation under which the Government College University, Faisalabad was established is the Government College University Faisalabad Ordinance 2002 (Punjab Ordinance No.LXX of 2002). It was promulgated on 19-10-2002. The object and purpose of the said Ordinance was to establish Government College University, Faisalabad, as is evident from its preamble. It was established accordingly being a body corporate having perpetual succession as per section 3 of the Ordinance. Section 8 thereof serialized "Officers of the University" which included "the Registrar" of the University as per item (No.viii) thereof. The other Officers of the University included the Chancellor. The Vice-Chancellor etc. sections 9, 10 and 11 make mention of the powers, duties and functions of the Chancellor whereas sections 12 and 13 with that of Vice-Chancellor. Section 14 deals with the office of Registrar, which reads as under: --

" 14. Registrar.-(1) The Registrar shall be a whole time officer of the University and shall be appointed by the Chancellor on the recommendations of the Government which shall consider for this purpose of penal of three persons recommended by a Search Committee appointed by the Syndicate and headed by the Vice-Chancellor on such terms and conditions as it may determine.

(2) Under the general supervision of the Vice-Chancellor, the Registrar shall---

(i) be custodian of the Common Seal and the academic records of the University;

(ii) maintain a register of Registered Graduates in the prescribed manner.

(iii) conduct elections of members to the various authorities in the prescribed manner;

(iv) be the Secretary of the Syndicate, the Academic Council. Advanced Studies and Research Board, the Selection Board and such other Committees as may be prescribed; and

(v) perform such other duties as may be specified by the Vice-Chancellor and other authorities from time to time.

It is this provision of the Ordinance by virtue of which the petitioner was appointed vide Notification dated 11-2-2004 and has been performing his duties and functions as such till 30-3-2005, the date when the impugned notification was issued. There are allegations and counter-allegations contained in the petition and the reply filed by the respondents. As to what prompted the action against the petitioner and the issuance of Notification dated 30-3-2005, its probe, verity and credibility need not be gone into by this Court in writ jurisdiction.

6. The stance of the respondents in essence is that the service of the petitioner was at the `pleasure' of the Chancellor meaning thereby, the same could be dispensed with at anytime irrespective of the tenure mentioned in Notifications dated 11-2-2004, 17-2-2004 and 26-3-2005, and was a contract employment. The question, therefore, is whether such a holder of office could be removed in such a manner as has been done through the impugned notification. Such issues had been coming up before the Superior Courts directly or indirectly in several cases.

Reference in this context may be made to Khawaja Ghulam Sarwar. v. Pakistan through the General Manager, P.W.R. Lahore (PLD 1962 SC 142). That was a case of fundamental importance which was heard and decided by a Special Bench of the Hon'ble Supreme Court of Pakistan (Four Hon'ble Judges of Supreme Court of Pakistan and three learned Judges of the High Courts). The contract of service' of the appellant in that case, a railway employee, was terminable at anytime on one month's notice or month's pay in lieu of notice. On 24-8-1953 termination order was issued to Kh. Ghulam Sarwar appellant therein that "his services were no longer required by the Administration, and that they were being terminated with effect from the same day with one month's pay in lieu of notice. In terms of paragraph 3 of his Service Agreement. "Dealing with the subject as to the legality of the action terminating his services, it was observed by the learned Chief Justice late A.R. Cornelius, J. that "It seems to me necessarily to follow that the claim to an absolute and unfettered powers of discharge by. notice, without assignment or even ascertainment of reasons is inconsistent with these provisions. "It was concluded by the Hon'ble Chief Justice that "That, I come to the conclusion that to contract employees also, all those protections must be extended which are not excluded either expressly or by necessary intendment. The employer namely the Government acting through a Competent Authority, cannot affect to ignore the requirements of the Constitution of 1935, and plead the letter of any clause in a contract in bar of a protection which is provided by that Constitution in the particular case." While agreeing with the views of the Hon'ble Chief Justice, late Fazle-Akbar, J., added that "There seems to be a disposition to draw highly refined distinction between removal by way of penalty and termination of service brought about otherwise than by way of punishment. I think that the tendency and its consequence will be lessened if it is borne in mind that the consequence is the same both in removal and termination of service by notice." Late Mr. Justice B.Z. Kaikaus, observed that "it was immaterial whether the order was passed as a result of disciplinary proceedings or otherwise or whether it implied a stigma or not. Every termination of service is a punishment for the employee because it inflicts harm on him. That is the criterion for deciding whether it is punishment or not and not whether it is a result of disciplinary proceedings. The servant places a value upon his employment and if he is deprived of it he stands punished." It was further observed that "No statutory provision was needed for enforcing a principle of natural justice. In the exercise of certiorari jurisdiction any such finding of guilty could always be quashed." Late Hamoodur Rehman, J., also found the termination of the appellant illegal and wrong for the conclusion that "I have come to this conclusion for I too wish, in the words of noble Lord Roche in the opinion which he delivered at the Board of the Judicial Committee of the Privy Council in the case of Venkata Rao (1) to "regard the terms of the section as containing a statutory and solemn assurance that the "tenure of office, though at pleasure, will not be subject to capricious or arbitrary action' and am as equally anxious as the noble Lord was "that supreme care should be taken that this assurance should be carried out in the letter and in the spirit" in which it was granted by Parliament." (Underlined by me for emphasis).

7. Besides the above valuable observations in Kh. Ghulam Sarwar case (Supra), reference may be made to Pakistan and others v. Public at large and others (PLD 1987 SC 304) wherein the Shariat Appellate Bench of Supreme Court had dealt with somewhat identical issue of retirement of a civil servant wherein some pertinent observations worth guidance are available that. "The retirement is admittedly premature. Thus, it is deprivation of right to continue up to age of sixty which the other civil servants even placed in the same categories, not to talk of the civil servant in general, do not suffer. Right to work in this context is very valuable, which is denied. This denial is more significant when it is visualized that in both categories, nature, experience and those placed in higher strata are normally hit by these provisions. It becomes more harsh when looked at from the angle that at the relevant stage of one' life and service, he needs the job to show his ultimate worth on the one hand and settle his affairs including family and children on the other. The application of this law also involves element of compulsion. The civil servant is forced to retire. Although no fault need be attributed and none is in fact attributed; however, the rules and practice relating thereto assume that it is not without fault or deficiency. Thus, it carries the stigma and disgrace in the public eye. This inference gets confirmed from the fact that the law itself is explicit in informing the enquirer, whosoever may be, that the retirement is in public interest. In other words, the continuance any further in the service of the affected officer is not in the public interest. This cannot be without a fault, deficiency etc. Thus, this type of retirement adversely affects his reputation also. And as the curtailment of service is summary and sudden, the injury to reputation is also pronounced and acts as severe blow to the self-respect and dignity on man. "Referring to the various , `Ayyat' of the Holy Qur'an and Injunctions of Islam it was observed that "Right to property and honour, in addition to life, were also declared sacred which means not only that their violation is to be punished and or compensated but also that it is to be prevented. In this behalf while the victim needs to be protected against the violation, the one who violates is made accountable. All this cannot be possible without a notice and opportunity of hearing. The denial of these safeguards for doing justice would amount to Zulm and Ziaditi against oneself as also the victim. "After quoting some `Ahadees' it was observed. "This Command is specific to the effect that when a public authority is to be exercised for resolving a controversy regarding rights and liabilities the decision would not be rendered without proceedings in which the person affected is also afforded an opportunity of hearing." Shafiur Rehamn, J. (as his Lordship then was), in respect of section 4 of the Civil Servant Act, 1973 that "every civil servant shall hold office during the pleasure of President", by referring to the Constitutional provisions, the objectives resolution of Pakistan and the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (P.B.U.H) recorded the conclusion that "it must be held that the concept of tenure at pleasure is repugnant to the Injunctions of Islam." (Portions underlined by me due to relevance). These were observations made in presence of the statutory provisions in the Civil Servants Act, 1973 i.e. section 4, ibid.

Reference at this juncture may also be made to the Division Bench judgment in Mr. A.R. Azar, Deputy Chief Engineer, West, North-Western Railways, Lahore and others v. The Federation of Pakistan and another (PLD 1958 (W.P.) Lahore 185), wherein late M.R. Kayani, J., observed that "I add this note with a view to laying greater emphasis on the futility of the phrase "during pleasure" occurring in Article 180. 1 had occasion to say in an Introduction to a Commentary (1) that members of the public services were said to hold office during the pleasure of the President or the Governor, as though anyone could be dismissed by either of them at his pleasure. This, I said, was a vicious phrase and a vestige of royal…

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