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Petitioner: M. KABUT KHAN VS Respondent: CHAIRMAN, BOARD OF GOVERNOR, CADET COLLEGE, KOHAT JUDGMENT
Court Name: Peshawar High Court Judge(s): Mian Burhanuddin Khan, Sardar Fakhre Alam, Syed Usman Ali Shah Title:M. KABUT KHAN vs CHAIRMAN, BOARD OF GOVERNOR, CADET COLLEGE, KOHAT
JUDGMENT
Reported As: PLD 1981 Peshawar 75 Result: Petition accepted Judgment JUDGMENT USMAN ALI SHAH, J.-In the first instance, this writ petition was fixed before a Division Bench of this Court comprising the present Chief Justice and Mr. Justice Sardar Fakhre Alam Khan. In the course of hearing, it was pointed out to their Lordships that there is a .Conflict of opinion in two similar cases of two different Division Benches of this Court : (1) Writ Petition No. 511 of 1974 (Rehman Gul v. The Vice-Chancellor of the Peshawar University was disposed of by a Division Bench comprising the former Chief Justice Mr. Justice Abdul Hakeem Khan and Mr. Justice Abdul Ghani Khan Kbattak (Retried) and it was held that writ against the order of a statutory body would not lie, vide judgment dated 14-115176. (2) Writ Petition No. 170 of 1976 (Muhammad Shoaib Qureshi v. Principal, Cadet College, Kohat), was disposed of by a Division Bench comprising Mr. Justice Mian Burhanudd;--Khan and myself and we came to the conclusion that as the Cadet college Kohat, is not an institution carrying out its functions for commercial purposes it cannot be said that the relationship of the petitioner with the college which fie was employed would be that of. Master and servant. In reaching this conclusion, we were influenced by the: fact that there was nothing in the. North-West Frontier Province Government Educational and Training Institutions Ordinance, 1971 (Ordinance; III of'.1971) to show that the rela--tionship of the petitioner with the College would be that of master and servant. We, therefore, hold that in this view of the matter the petitioner would - be. Deemed as if he was holding public office and thus writ petition would lie in. His case, vide our judgment dated 18-4-1978. We now proceed to deal with this; writ petition. The petitioner joined service as Masters of Mathematics at Cadet College, Kohat, on 1st June, 1967 and on the `completion of probationary
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period he was confirmed. Later on, he was promoted as Senior Master. Respondent No. 2 (i: e. The principal of the Cadet College, Kohat) asked him 'to give extra coaching to a particular class in the evening. The petitioner alleges that respondent No. 2 did so with a view to harass him, as he was not on good terms with him. The petitioner made a submission before Respondent No. 2 that owing to certain technical difficulties he will not 'be able to carry out the job of giving extra coaching in the evening and further requested him in writing that he be allowed to see the Chairman, Board of Governors, and although he was allowed. Respondent No. 2 made against him a complaint before the Chairman, Board of Governors fit, the same time. The petitioner states that his request to exempt him from giving extra coaching was regarded a refusal on his part and so on 4th March, 1977 he suddenly received a formal accusation from respondent No. 1 (Chairman, Board of Governors) that he has committed indiscipline. In reply to this, the petitioner submitted his explanation in which he denied the charge of indiscipline against him and stated that as he was called upon to give extra coaching at a belated stage when the examination was to be held soon, therefore, he suggested that the extra coaching would not yield any positive or appreciable result and so it should be postponed. He furl they stated that respondent No. 2 was biased against him and thus he directed him to start extra-coaching at a time when he would beg unable to show good result in which case he would have earned adverse remarks from his superiors. That after submitting his explanation. Respondent; No. 2 asked the petitioner to appear before respondent No. 3 (Deputy Commissioner, Kohat)- When he appeared before him, respondent No 3 informed him that he v vas holding inquiry against him and he should submit his written statement which he did. Thereafter, respondent No. 1 passed the impugned order dated 14th August, 1977, removing the petitioner from service of the College: with effect from 15th August, 1977. The petitioner has prayed in this writ petition that the impugned order may be declared mala fide, without jurisdiction and unlawful inter alia, on the following grounds :- (1) That the order is patently arbitrary and against the rules, as it does not disclose any ground or reasons for the removal from service of the petitioner. (2) That respondent No. 3 had no jurisdiction to hold inquiry against the: petitioner: (3) That under the rules it was the Board of Governors who were to hear the petitioner in his defence which was not done. (4) That the meeting of the Board of Governors which decided to take the impugned action was attended to by respondent No. 2 who was complainant and an interested party. (5) That there were no grounds- of complaint against the petitioner. (6) That instead of considering the request of the petitioner with regard to the extra-coaching, respondent No. 2 maneouvred to entangle him in a so-called enquiry which was patently mala fide. (7) That a request to consider his case relating to extra-coaching was met with an extreme penalty of his removal. (8) That the impugned action of respondents Nos. 1 and 2 and procedure adopted by them in passing the impugned order is against rules governing the service of the petitioner. (9) That the manner of removal from service of the petitioner is against the principles of natural justice. (10) That the report of so-called enquiry conducted by respondent No. 3 exonerated the petitioner from charges levelled against him and did not recommend any penalty against the petitioner. The learned Advocate-General appearing on behalf of the respondents raised a preliminary objection that this writ petition is not maintainable under Article 199 of the Constitution, as the Cadet College, Kohat, in which the petitioner was an employee, is a statutory body and thus no writ can be issued against any action of the authorities of the said College. He submitted that the proper remedy available to the petitioner was to sue for damages. In support of his contention, he
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relied upon various authorities particularly the authority in the case of R. T. H. Janjua v. National Shipping Corporation (PLD1974SC146). Similar contention was also raised before this Court in Writ Petition No. 170 of 1976 (Muhammad Shoaib Qureshi v. Principal, Cadet College, Kohat) and was repelled. It is noteworthy to mention here that the present writ petition is also directed against the authorities of the same College. While repelling the above contention, this Court observed : "The learned Advocate-General has raised a preliminary objection to the maintainability of this writ petition. He submitted. That the petitioner being the employee of a statutory body and is not holding public office, be cannot invoke the constitutional jurisdiction of this Court under Article 199 of the Constitution and the only remedy available to him is to sue for damages; if so advised. In support of this contention, he relied upon R. T. H. Janjua v. National ,Shipping Corporation PLD 1974 SC 146. We have gone through this authority and our reading is that their Lordships of the Supreme Court have not laid it down that an aggrieved employee of any statutory body cannot seek his remedy by filing writ proceedings in the High Court. Their Lordships have drawn distinction between the functions of the various statutory; bodies and observed that if the functions of a statutory body are analogous to the functions of a State Department, its aggrieved employee can invoke the constitutional jurisdiction of this Court in an appropriate case, but if its functions are to carry out commercial purpose, his relations with the competent authority would be of Master and Servant and ordinarily in such like cases, an aggrieved employee cannot be allowed to come to the High Court in writ proceedings. In support of this proposition, their Lordships have elaborately discussed various case law on the subject. Now in the present case, the Cadet College, Kohat, cannot be said to be an institution carrying out its function for commercial purposes. The function of this College and all other educational institution run by the State would be alike and thus the petitioner would be deemed as if he was holding public office. In this view of the matter, there is, therefore, no force in the preliminary objection raised by the learned Advocate-General and we rule it out." As this Court is called upon to consider a similar case for the second time, it will be proper to discuss the relevant law governing the Cadet College, Kohat. This College was established under the West Pakistan Government Educational and Training Institution Ordinance, 1960, which has been repealed and substituted by the North-West Frontier Province Government Educational and. Training Institution Ordinance No. III of 1971 (hereinafter called the Ordinance). According to section 3, for the efficient management and control of an institution established under the Ordinance, there shall be a Board of Governors and according to section 4, the Board shall consist of not more than 11 members to be appointed by the Governor. Section 8 lays down that subject to the other provisions -of the Ordinance, the Board shall have full powers to administer and manage an institution and in particular in respect of the following matters- (a) to acquire and dispose of property and generally enter into contracts in conformity with the purposes of this Ordinance ; (b) recruitment and determination of the terms and conditions of service of the Principal and other members of the staff of the institution and of other offices and servants of the Board ; (c) to formulate the budget of the institution for approval of Govern--ment ; (d) to set up an Executive committee and other Standing Committees as may be required for carrying out the purposes of this Ordinance ; (e) to delegate powers to the Chairman, the Vice-Chairman, the Executive Committee, Standing Committee, the Principal, the Staff of the institution and other officers and servants of the Board ; and (f) to frame, subject to the approval of the Government, regulations for the conduct of business of the Board. Section 9 of the Ordinance says that the Governor or his nominee shall be the Controlling Authority of the Board.
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Section 10 of the Ordinance provides as under :-- Powers of the Controlling Authority.-(1) The Controlling Authority shall have the power to, cause an inspection to be made by such person ort-;persons as it may direct, of the offices, activities and funds of the Board, and to cause on enquiry to be made in like manner in respect of any matter concerning the Board. (a) The Controlling Authority shall communicate to the Board the result of such inspection or enquiry and may advise the Board to take such action within such period as may be specified. (3) The Board shall report to the Controlling Authority the action as it proposes to take or has taken on such communication. (4) Where the Board does not within reasonable time take action to the satisfaction of the Controlling Authority, the Controlling Authority may, after considering any explanation made by the Board, issue such directions as it thinks fit, and the Chairman shall comply with such directions. (5) If the Controlling Authority is satisfied that any proceedings of the Board is not in conformity with this Ordinance, the Controlling Authority may without prejudice to the foregoing provisions of this section, by an order in writing, annul such proceeding : Provided that before making any such order the Controller Authority shall, through the Chairman, call upon the Board to show cause why such an order should not be made. Section 12 of the Ordinance is to the following effect :- "All property, movable or immovable, vesting in Government in connec--petition with the affairs of an institution immediately before the said day shall vest in the Board. In the event of Government rescinding the notification made under subsection (1), the property vesting in the Board shall stand transferred to Government." Section 13 of the Ordinance is in the following terms :- "(1) There shall be a fund to be known as "Board Fund" vested in the Board. . (2) The Board Fund shall consist of- (a) grants in aid made by Government ; (b) loans obtained from Government ; (c) loans raised by the Board with the Special or general sanction of Government (d) foreign aid and loans obtained by the Board with the sanction of and on terms and conditions approved by Government ; (e) fees and other sums received by the Board. (3) All moneys at the credit of the Board shah be. Kept in such custody as may be prescribed, (4) The Board Fund shall be utilized by the Board in connection with its functions under this Ordinance, including the payment of salaries and other remunerations of the Principal and the staff of the institution and of officers and servants appointed under this Ordinance." Section 15 lays down that "The Board shall submit a statement of estimated receipts and expendi--ture in respect of the next financial year to Government for approval, at such time and in the manner as may be prescribed and shall give effect to any modification made therein by Government." Section 16 is in the following words : "(1) As soon as may be after the close of every financial year but not later than the last day of September next following, the Board shall submit to Government for approval a report on the conduct of the affairs of the Board for that year. (2) Government may require the Board to furnish Government with - (a) any return, statement, estimate, statistics or other information or report regarding any matter under the control of the Board, or (b) a copy of any in the charge of the Board, and the Board shall comply with every such requisition."
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Section 19 of the Ordinance reads "(1) Government may make rules for carrying out the purposes of this Ordinance. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for - (a) the terms and conditions on which ,Government servants may be transferred to the Board ; (b) the frequency of meeting of the Boards and the procedure that shall be followed at such meetings ; (c) the forms and registers for keeping the accounts ; (d) the manner in which and the time at which the annual financial statement shall be submitted to Government for approval ; (e) the returns, statements, estimates, statistics, information or reports which may be submitted to Government ; (f )the manner in which the accounts of the Board shall be audited ; (g) the custody in which the Board fund shall be kept ; (h) any other matter required under the provisions of this Ordinance to be prescribed." Section 20 of the Ordinance runs as follows "Regulations.-(1) The Board may, subject to the approval of Govern--ment, frame regulations not inconsistent with the provisions of this Ordinance and the rules made thereunder, to carry out the purposes of this Ordinance. (2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for - (a) the notice on which an ordinary or special meeting may be convened ; (b) the time and place at which meeting of the Board may be held ; (c) the manner in which the minutes shall be circulated and confirmed ; (d) the manner in which the Executive Committee or a Standing Com--mittee shall be constituted and the powers and functions that may be exercised and performed by the Committee ; (e) the recruitment, tenure of office, terms and conditions of service of the officers and servants appointed by the Board ; (f) the delegation of administrative and financial powers to the Executive Committee, Standing Committee, or other officers and servants of the Board ; (g) the manner in which the funds shall be disbursed ; (h) any other matter required under any of the provisions of this Ordi--nance to be prescribed." From the various provisions of the Ordinance reproduced above, it will be seen that the Government will hold full control over an institution established under the Ordinance. The procedure to be adopted by the institution will be prescribed by the Government itself or if prescribed by the Board the same will have to be approved by the Government. The institution will be financed by the Government for running its affairs. Its employees are paid salaries and other remunerations from the fund consisting of grants-in-aid by Government, loans obtained from Government and loans raised by the Board with the special or general sanction of Government. This position is not controverted. It is, therefore, clear that the functions of an institution or for that matter a Statutory body set up under the Ordi--nance will be governmental or State functions. Had this not been so, the very title of the Ordinance "North-West Frontier Province Government Educational and Training Institutions Ordinance, 1971" would not have mentioned in it the words "Government Educational and Training Institutions. By going through the various provisions of the Ordinance, we are left in no manner of doubt that as the Cadet College, Kohat, is a statutory body set up under the Ordinance, its employees will be regarded as holding public offices in connection with the affairs of the State.
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(a) That the High Court had erred in thinking that the respondent --Company was not a person within the meaning of clause (2) (a) (i) of Article 201 of the Interim Constitution, and, therefore, not amenable to its jurisdiction, for facts were brought to the notice of the learned Judges to show that the Provincial Government was an active party in the management of the affairs of this Company particularly, under Article 105 of the Articles of Association which gives to the Provincial Government the right to nominate its representative for attending the meetings of the shareholders and for contesting election to the office of Director ; (b) that in any case the requirement that the respondent should be a per--son performing functions in connection with the affairs of the Federation or a Province is not attracted for the issuance of a writ in the nature of quo warranto as contemplated by clause (2) (b) (ii) of the said Article, as no such condition is in fact contained in this clause, which deals with a case of a person holding or purporting to hold a public office. According to the learned counsel, the office of the Director or the Chief Executive of a joint stock company is a public office, and especially so in the present case, for the reason that these appoint--ments were made under a statutory order, namely, Companies (Managing Agency and Election of Directors) Order, 1972 ; and (c) that in the circumstances of the case, the pendency of a civil suit could not be regarded as an adequate alternative remedy in view of the time and expense involved in pursuing that remedy." Their Lordships first addressed themselves to the question about the interpretation of the word "person" occurring in Article 201 of the Interim Constitution as well as in Article 199 of the 1973 Constitution to determine whether the respondent-Company (Frontier Suger Mills and Distillery Ltd. Takhat Bhai) was or was not a person performing func--tions in connection with the affairs of the Federation or a Province. After discussing quite a number of authorities on the point, their Lord-- ships held that although the respondent-Company established under the Companies Act was not a person functioning in connection with the affairs of the Federation or a Province, but as the appellant was a no--minee on behalf of the Government, he will be regarded as holding public office and in his case writ will lie. In that case, their Lordships took note of the various statutory bodies and held that if a statutory body is found to be a person carrying out its functions in connection with the affairs of the Federation or a Province, writ will issue to it. In this respect, we will, with advantage, reproduce the following observations of their Lordships from the report at page 256: "Now, what is meant by the phrase "performing functions in connec--petition with the affairs of the Federation or a Province. It is clear that the reference is to governmental or State functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the- maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i.e. By the Federal Government or a Provincial -Government. However, in recent years, there has been manifest a growing tendency on the part of Government to create statutory corporations for undertaking many such functions, particularly in the industrial and commercial spheres, in the belief that free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Government retains effective control over their functioning .By appointing the heads and other senior officers of these .Corporations, by regulating their composition and procedures by appropriate statutes, and by finding. Funds for financing their activities. Examples of such statutory corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporations, the Agricultural Development Bank of Pakistan, and the large number of Universities functioning under their
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respective statutes. On account of their common attributes, as mentioned.. In the preceding paragraph they have all been regarded as persons performing functions in connection with the affairs of the Federation or a Province (See Deputy Director, National Bank of Pakistan v. Ataul Haq PLD 1965 SC 201; Wali Muhommad v. General Manager, WAPDA, Lahore PLD 1964 Pesh. 167, Chairman, East Pakistan Industrial Development Corporation v. Rustam A.I PLD 1966 SC 848; Muhammad Ashraf Parvaiz v. Agricultural Development Bank of Pakistan PLD 1973 Lah. 425; Abdur Razaq v. WAPDA PLD 1973 Lah. 188 and R. T. H. Janjua v. National Shipping Corporation PLD 1974 SC 146. " About a statutory body to be regarded a person functioning in connection with the affairs of the. Federation or a.. Province, their Lordships laid down the following test at page 257 of the report :- "The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of the Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not." The learned Advocate-General with emphasis relied upon R. H. T. Janjua v. National Shipping Corporation referred to in the above authority with approval. He contended that as the petitioner was not a civil servant, he, according to the said authority, could not seek his redress from the High Court in exercise of its writ jurisdiction. With respect, the learned Advocate-General seems to have not appreciated the principle formulated in this authority. In that case it was held that as the function of the petitioner was to secure business for the Corporation from the Lahore region, he could not possibly claim a better or a higher status than the Commercial Manager of a Bank or the Secretary of a Joint Stock Comp--any. It has nowhere been laid down therein that the door of the High Court in the exercise of its writ jurisdiction is always closed for the aggrieved person of every statutory body. In other words, it is not laid down that an aggrieved employee of a statutory body, even if the said statutory body is functioning in connection with the affairs of the Federa--petition or a Province or for that matter an aggrieved employee of a commercial statutory body even if he is acting on behalf of the Federation or a Province, cannot approach the High Court in exercise of its writ jurisdic--petition. The ratio decidendi enunciated in that authority is that the essence of the…
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