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Petitioner: MUHAMMAD SAEED ZAMEER VS Respondent: BOARD OF GOVERNORSHonorable Justice Syed Jamshed AliAhmad Waheed Khan,Khawaja Ahmad Tariq Rahim and Amir Rehman
2005 P L C (C
2005 P L C (C.S.) 558 [Lahore High Court] Before Syed Jamshed Ali, J MUHAMMAD SAEED ZAMEER and others versus BOARD OF GOVERNORS, Aitchison College through Chairman and 2 others Writ Petitions Nos. 8862, 8863, 8865 to 8869, 9191, 10323 and 20184 of 2000, 13945 of 2001 and 956 of 2002, heard on 31st January, 2005.
(a) Service Rules and Regulations for the Staff of Aitchison College, Lahore--- ----Rr. 16 & 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Employee of Aitchison College---Termination from service by Sub-Committee of Board of Governors of College---Inclusion of Principal in Sub-committee, who was alleged to bear ill-will and malice against petitioner---Validity---No allegation of mala fide was alleged against other members of Sub-Committee---Such allegation against Principal had not been supported by necessary factual foundation---Not shown that Principal could in any manner influence three members of Sub-Committee---Held: President of Sub-Committee could co-opt any person---Principal was custodian of record and his association had only facilitated proceedings of Sub-Committee---High Court dismissed Constitutional petition in circumstances.
(b) Service Rules and Regulations for the Staff of Aitchison College, Lahore--- ----Rr. 16 & 17---Service of employees of Aitchison College---Nature of---Master and Servant---Service of such employees was not governed by statutory rules---Relationship of such employees with their employer was governed by the rule of Master and Servant.
(c) Constitution of Pakistan (1973)--- ----Art. 199---Civil Service---Master and Servant---Discharge or termination or removal from service with or without stigma, order of---Relief of reinstatement, grant of---Scope---In absence of violation of any law or statutory rules, simple order of discharge from service would neither be open to judicial review nor such relief could be granted, where same was made in accord with terms of employment or service rules governing the employment and without any stigma---Situation would be different in case of termination or removal as a penal measure, which involves a stigma and bars future employment. Aitchison College, Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 SCMR 468; Rizwan Akhtar v. University of the Punjab 2003 PLC (C.S.) 1508; Federation of Pakistan v. Shamsul Huda PLD 1957 Dacca 148; State of Pakistan and another v. Mehrajuddin PLD 1959 SC (Pak.) 147; Lahore Central Co-operative Bank Ltd v. Pir Saif Ullah Shah PLD 1959 SC (Pak.) 210; The Federation of Pakistan v. Ali Ahmad Hussain Shah and another PLD 1955 FC 522; The Chairman, East Pakistan Industrial Development Corporation, Dacca, and another v. Rustom Ali and another PLD 1966 SC 848; University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093; R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146; The Principal Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Muhammad Umar Malik v. The Muslim Commercial Bank Ltd through its President, Karachi and 2 others 1995 SCMR 453; Habib Bank Ltd and others v. Syed Zia-ul-Hassan Kazmi 1998 SCMR 60; United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; Arshad Ahmad Khan v. Chairman, Bank of Punjab and others 2001 PLC 207; Razi-ud-Din v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; Mrs. Zaib Mumtaz v. First Women Bank Ltd and others PLD 1999 SC 1106; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; I.N. Subba Reddy v. Andhra University and others AIR 1976 SC 2049; Russell v. Duke of Norfolk and others 1949 (I) AER. 109; Herring v. Templeman and others 1973 (3) AER 569; Ridge v. Baldwin and others 1963 (2) AER, 66; Vidyodaya University of Ceylon and others v. Silva 1964 (3) AER 865; Page v. Hull University Visitor 1993 (1) AER 97; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169; Syed Mazhar Hussain Bukhari v. Secretary, Government of Punjab Local Government and Rural Development, Department, Lahore and others 1998 SCMR 1948; Muzaffar Hussain v. The Superintendent of Police, District Sialkot 2002 PLC CS 442; Muhammad Sarfraz and 174 others v. Government of Punjab Through Secretary, Education Department, Civil Secretarial Lahore and others 2001 PLC (C.S.) 1224; Rao Faisal Sikandar v. Pakistan International Airlines Corporation through Chairman, Karachi and 4 others 2002 PLC (C.S.) 762; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Abdul Wahab Khan v. Government of Punjab and 3 others PLD 1989 SC 508; Administrative Action (4th Edition) by de Smith; Administrative Law by Bassu (5th Edition); Volume 8 of Halsbury Laws of England; Muhammad Ashraf v. Director General Multan Development Authority, Multan and another 2000 PLC (C.S.) 796; Muhammad Akram v. Farman Bibi PLD 1999 SC 28; Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934 and Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation Karachi and others 2002 SCMR 1034 ref.
(d) Service Rules and Regulations for the Staff of Aitchison College, Lahore--- ----Rr.16 & 17---Punjab Civil Servants Act (VIII of 1974), S.2---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Arts. 199 and 212---Employees of Aitchison College, status of---Taking over control of Board of Governors of College by Education Department of Provincial Government as a Special Institution---Effect---Fact of being employees of an institution declared as Special Institution and under administrative control of Education Department would not change their status from employees of a statutory body into civil servant as defined in Punjab Civil Servants Act, 1974---Such employees would continue to be employees of a statutory body and thus, bar of Art. 212 of the Constitution would not be attracted.
(e) Service Rules and Regulations for the Staff of Aitchison College, Lahore--- ----Rr. 16 & 17---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Employee of Aitchison College---Retirement from service on basis of resignation---Petitioner alleged his resignation to be involuntary---Validity---Determination of such fact would involve factual inquiry, which was not possible in Constitutional proceedings---High Court dismissed Constitutional petition in circumstances.
(f) Service Rules and Regulations for the Staff of Aitchison College, Lahore--- ----Rr. 16 & 17---Constitution of Pakistan (1973), Art.199---Teacher of Aitchison College---Constitutional petition assailing validity of show-cause notice and letter of warning issued to petitioner---Maintainability---Such action would require resolution of disputed questions of fact, which was beyond the scope of Constitutional proceedings---High Court dismissed Constitutional petition in circumstances.
Ahmad Waheed Khan for Petitioners. Khawaja Ahmad Tariq Rahim and Amir Rehman, Addl. Advocate General Punjab for Respondents. Dates of hearing: 4th, 8th, 10th, 18th, November, 14th, December, 2004 and 18th and 31st, January, 2005.
JUDGMENT This judgment will dispose of the following petitions:-- (i) Writ Petition No. 8862 of 2000 (ii) Writ Petition No.8863 of 2000 (iii) Writ Petition No.8865 of 2000 (iv) Writ Petition No.8866 of 2000 (v) Writ Petition No.8867 of 2000 (vi) Writ Petition No.8868 of 2000 (vii) Writ Petition No.8869 of 2000; (viii) Writ Petition No.9191 of 2000 (ix) Writ Petition No.13945 of 2001 (x) Writ Petition No.956 of 2002 (xi) Writ Petition No.10323 of 2000 and (xii) Writ Petition No.20184 of 2000. 2. The petitioners were employed as Teachers in the Aitchison College, Lahore. In the first eight cases their services were terminated vide order dated 13-5-2000 while the date of termination of the services of the petitioners in the petitions at serial No.(ix) and (x) respectively are 12-7-2001 and 24-10-2001. In Writ Petition No.10323 of 2000, Khizar Hayat, the petitioner, tendered his resignation on 29-3-2000 and on the basis of the said resignation vide order of the same date he was directed to be retired. In Writ Petition No.20184 of 2000 originally the order dated 27-12-1995 of the Principal of the Aitchison College was challenged according to which she was warned not to beat any child in future and taking a lenient view she was offered a job as a teacher in the Campus Girls High School w.e.f. 1-1-1996. There is, however, amended petition on the record according to which the letter of warning dated 26-8-1995 and show-cause notice dated 25-10-1995 were also assailed besides the order dated 27-12-1995 aforesaid. 3. These cases were heard at length. The main submissions were made by Mr. Ahmad Waheed Khan, Advocate. He contends that vide letter dated 21-1-2000 the petitioners were called upon to meet the members of the staff to ascertain their view, discuss the future of the college and assess the individual and collective contribution they can make to improve the quality of education at the college. However, their services were terminated vide the orders impugned in the writ petitions at serial number (i) to (x). This action, he maintains, was without notice and the rule of Audi Alteram Partem was violated. He submits that the Principal of the college bore personal grudge against the petitioners and, therefore, the impugned order was mala fide. He next contends that the Sub-Committee who decided to dispense with the services of the petitioners was not lawfully constituted because according to Statute No.VI of the Statutes of the Aitchison College promulgated by the Governor of West Pakistan in exercise of the powers under Martial Law Administrator Zone B s order No.86 dated 22-5-1961 the Sub-Committee appointed by the Board of Governors consists of the President and two other members. His contention is that inclusion of the Principal in this sub-committee, who bore ill-will and malice against the petitioners, had the effect of vitiating the proceedings and the impugned orders of termination of the petitioners. He then referred to rules 16 and 17 of the Service Rules and Regulations for the Staff of the Aitchison College. Rule 16 provides for termination of the services of an employee on the ground of professional misconduct, moral turpitude, indiscipline, gross insubordination, or if he is convicted by a Court of law on a criminal charge while according to rule 17 the services of a confirmed employee could be terminated for the reasons of reduction in establishment, being surplus to requirement, unsuitability or being continuously on sick list. In such case the employee shall be given three months notice or three months pay in lieu thereof. According to him, the impugned order amounts to removal of the petitioners under rule 16 which could not have been passed without a proper inquiry. In fact, the power exercised under rule 17 was a colourable exercise of authority. He next submits that the order being penal in nature and the petitioners were never informed that the purpose of the Sub-Committee was to determine their suitability, the proceedings stands vitiated. He further maintains that since the Aitchison College has been declared as a person within the contemplation of Article 199 (5) of the Constitution of Islamic Republic of Pakistan in Aitchison College Lahore through Principal v. Muhammad Zubair and another (PLD 2002 SC 326) it was required to act justly and fairly in the matter to satisfy the requirement of Article 4 of the Constitution. In support of the submission at even if the services Rules are not statutory the principles of natural justice were nevertheless attracted, reliance was placed on Mrs. Anisa Rehman v. P.I.A.C and another (1994 SCMR 2232); Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others (2004 SCMR 468) and a judgment delivered by me in Writ Petition No.2360 of 2001 decided on 10-4-2003. Rizwan Akhtar v. University of the Punjab (2003 PLC (C.S.) 1508). 4. On the other hand, Khawaja Ahmad Tariq Rahim, Advocate has vehemently opposed these petitions. He submits that since the services of the petitioners are not governed by any statutory rules therefore, these Constitutional petitions are not maintainable. Another contention is that in accordance with the observations of the Hon ble Supreme Court in the case of Aitchison College Lahore supra the said college has been brought within the folds of Education Department of the Punjab Government as a Special Institution and, therefore, the employees working therein are civil servants. Thus, the termination orders cannot be questioned on account of the bar of Article 212 of the Constitution. He next submits that although the rule of natural justice was not attracted because the impugned orders of termination are the orders of discharge simpliciter not only permitted by the service rules but are also in accordance with the terms and conditions of the appointment of the petitioners yet all the members of the teaching staff including the petitioners were duly heard by the Sub-Committee in a series of meeting. All the members of the staff fully knew the object of the meetings of the Sub-Committee with the staff members. He particularly referred to the representation of the petitioners in Writ Petition No.8862 of 2000, 8863 of 2000, 8865 of 2000, 8866 of 2000 and Writ Petition No.10323 of 2000 addressed to the Chairman of the Sub-Committee on which they were heard by the Sub-Committee. He next submits that rule 69 of the Service Regulations provides for an appeal and that being an adequate remedy these Constitutional petitions are not maintainable. On the question that in the absence of statutory rules the principle of Master and Servant was applicable, he placed reliance on Federation of Pakistan v. Shamsul Huda (PLD 1957 Dacca 148), The State of Pakistan and another v. Mehrajuddin (PLD 1959 SC (Pak.) 147), the Lahore Central Co-operative Bank Ltd v. Pir Saif Ullah Shah (PLD 1959 SC (Pak.) 210), The Federation of Pakistan v. Ali Ahmad Hussain Shah and another (PLD 1955 FC 522), The Chairman, East Pakistan Industrial Development Corporation, Dacca, and another v. Rustom Ali and another (PLD 1966 SC 848), University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 SCMR 1093), R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146), The Principal Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1981 SC 170), Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194), Muhammad Umar Malik v. The Muslim Commercial Bank Ltd through its President, Karachi and 2 others (1995 SCMR 453), Habib Bank Ltd. and others v. Syed Zia-ul-Hassan Kazmi (1998 SCMR 60) United Bank Limited and others v. Ahsan Akhtar and others (1998 SCMR 68), Arshad Ahmad Khan v. Chairman, Bank of Punjab and others (2001 PLC (C.S.) 207), Razi-ud-Din v. Chairman, Pakistan International Airlines Corporation and 2 others (PLD 1992 SC 531), Mrs. Zaib Mumtaz v. First Women Bank Ltd and others (PLD 1999 SC 1106), Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others (PLD 2002 SC 101), I.N. Subba Reddy v. Andhra University and others (AIR 1976 SC 2049), Russell v. Duke of Norfolk and others (1949 (I) AER. 109), Herring v. Templeman and others (1973 (3) AER 569), Ridge v. Baldwin and others (1963 (2) AER, 66), Vidyodaya University of Ceylon and others v. Silva (1964 (3) AER 865) and Page v. Hull University Visitor (1993 (1) AER 97). 5. On the question of bar of jurisdiction contemplated by Article 212 of the Constitution he relied on Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others (1991 SCMR 1129), Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others (1997 SCMR 169), Syed Mazhar Hussain Bukhari v. Secretary, Government of Punjab Local Government and Rural Development Department, Lahore and others (1998 SCMR 1948), Muzaffar Hussain v. The Superintendent of Police, District Sialkot (2002 PLC (C.S.) 442), Muhammad Sarfraz and 174 others v. Government of Punjab through Secretary, Education Department, Civil Secretariat Lahore and others (2001 PLC (C.S.) 1224), Rao Faisal Sikandar v. Pakistan International Airlines Corporation through Chairman, Karachi and 4 others (2002 PLC (C.S.) 762), Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539) and Abdul Wahab Khan v. Government of Punjab and 3 others (PLD 1989 SC 508). He further contended that a discharge simpliciter on the ground of unsuitability stands on a different footing than removal or termination on the grounds of mis-conduct and according to him, the question of suitability lay within the subjective satisfaction of the Sub-Committee i.e. the competent authority. He contends that the discharge simpliciter in these cases does not entail any stigma. Copious references were made from the Judicial Review of Administrative Action (4th Edition) by de Smith Administrative Law by Bassu (5th Edition) Volume 8 of Halsbury Laws of England. A number of documents were placed on the record by the respondents through C.M. No. 3312 of 2004 including the proceedings of the meeting of the Sub-Committee to demonstrate that these proceedings were conducted in a fair and a transparent manner. He maintains that there was not a word of allegation in the writ petitions that the members of the Sub-Committee were biased or bore any ill-will against the petitioners. Even the plea of mala fide against the Principal was shorn of necessary details and, therefore, is not worthy of consideration. As to the contention of the learned counsel that association of the Principal with the deliberations of the Sub-Committee had the effect of vitiating the proceedings and the termination orders his contention was that statute No.VI (3) authorizes the President of the Sub-Committee to co-opt any other person as a member of the Sub-Committee for a particular purpose. Therefore, the association of the Principal was not unauthorized. He explained that the members of the Sub-Committee comprised Sardar Zulfiqar Ali Khosa, Makhdoom Ahmad Mahmood and Mr. Akram Malik, Finance Secretary and the meetings were held on 23-1-2000, 26-1-2000, 27-1-2000, 2-2-2000, 3-2-2000, 4-2-2000, 5-2-2000, 8-2-2000 and on 24-2-2000, and the decisions taken by the aforesaid Sub-Committee which were not only bona fide assessment of the suitability of the petitioners but were free from any taint of malice or bias. The Principal was not in a position to influence any of the three members of the Sub-Committee. 6. The submissions made by the learned counsel for the parties have been considered. Undisputedly the service of the petitioners is not governed by statutory rules and the relationship of the petitioners with their employer is governed by the rule of the Master and Servant. However, in the case of Anisa Rehman supra the Hon ble Supreme Court, after holding that the relationship of the employee with the employer was governed by the rule of Master and Servant interfered in a case of demotion of an employee of the P.I.A. on the ground of breach of rule of natural justice with an observation that violation of principle of natural justice infringes the guarantee of Article 4 of the Constitution. However, the said judgment came under consideration of the Hon ble Supreme Court in the case of Habib Bank Ltd. supra in which it was reiterated by the Hon ble Supreme Court that in the absence of violation of any law or statutory rule an employee cannot press into service Constitutional jurisdiction for seeking relief of reinstatement in service and his remedy was for damages of wrongful dismissal. The principle was reiterated by the Hon ble Supreme Court in the case of United Bank supra and it was noted that the case of Anisa Rehman involved demotion of an employee and by referring to a number of judgments of the Hon ble Supreme Court the observations made was that the case of Anisa Rehman did not lay down that the principle of Master and Servant was no longer the correct law. 7. The emphasis of the learned counsel for the petitioner has been on the case of Rizwan Akhtar supra. In the said judgment it was observed that a person who is amenable to the Constitutional jurisdiction is required to observe the principles of natural justice and to act in the matter in a just and fair manner so that requirement of Article 4 of the Constitution is met. It was however, a case of an employee of the Punjab University in which penal action was taken under the Efficiency and Discipline Rules on the allegations of mis-conduct and corruption. In that context the principle of natural justice was held to be applicable. 8. Reference may also be made to a Division Bench judgment of this Court in the case of Muhammad Ashraf v. Director General Multan Development Authority, Multan and another (2000 PLC (C.S.) 796) in which an order of termination of an emplyee of the M.D.A. was interfered with and the observation made was that law of Master and Servant does not emanate from statutory provisions or injunction of Holy Quran and Sunnah and was a notion of English common law. The following observations in Muhammad Akram v. Farman Bibi (PLD 1999 SC 28) were relied upon. The resort to a rule of common law of England in preference to one of Pakistan law or rule of Islamic Law or jurisprudence, or for that matter, Islamic Common Law is not now possible under the Constitutional and legal set up . The view taken by the Division Bench was that even if the relationship of an employee and the employer is not regulated by any statutory rules, interference in Constitutional jurisdiction is possible when the action is mala fide, without jurisdiction and coram non judice. The learned Division Bench in that case had found that the order of termination of the employee was mala fide. 9. The case of the petitioners does not fall within the parameters laid down by Division Bench of this Court in the said case because there was no allegation of mala fide against the members of the Sub-Committee and even the allegation against the Principal that he bore malice and ill-will was not supported with necessary factual foundation. The consensus of authority has been that in the absence of violation of any law or the statutory rules the relief of reinstatement is not possible particularly, in case of an order of discharge simpliciter which is not only in accordance with the terms and conditions of employment but specifically provided for in the service rules under which person is appointed. 10. The judgment in the case of Arshad Jamal s supra has also been examined. In that case an employee of N.-W.P.F. Forest Development Corporation had approached the learned Peshawar High Court against termination of his service. It was noted that in accordance with the rule laid down in Pakistan International Airlines Corporation v. Nasir Jamal Malik and others (2001 SCMR 934) and Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation Karachi and others (2002 SCMR 1034) when removal of an employee of statutory Corporation, even in the absence of the statutory rules, is made on particular grounds which are in the nature of charges, the employee has vested right of hearing before any order adverse to his interest was passed. The Hon ble Supreme Court noted that the order of removal in the said case was passed on the ground that the appointment of appellant was illegal, void ab initio and against the rules and therefore an opportunity of a show-cause notice and hearing should have been allowed. In these cases, however, no charges were brought against the petitioners and only on the ground of suitability, their services were dispensed with which was permitted by rule 17 of the Service Rules aforesaid. Reference may be made to Zaib Mumtaz supra in which the Hon ble Supreme Court upheld an order of termination simpliciter in accordance with the service rules of an employee of a statutory corporation. Likewise in the case of Razi-ud-Din supra termination on one month s notice was maintained by the Hon ble Supreme Court. The Indian Supreme Court in the case of I.N. Suba Reddy (supra) maintained discharge simplicter of a University teacher which was in accordance with University Regulations on payment of six months salary. Reference may also be made to the case of Page versus Hull (supra). In the said case the petitioner was appointed as a lecturer in the University and according to…
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