SYED JAMSHED ALI, J. - 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 2000
(x) Writ Petition No. 956 of 2000
(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 13.5.200C) while the date of termination of the services of the petitioners in the petitions at Serial Nos. (ix) and (x) respectively 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.
4. 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 numbers (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 subcommittee, 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 mis- conduct, 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 a 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 Subcommittee 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 S.C. 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 that even if the Service Rules are not statutory the principles of natural justice were nevertheless attracted, reliance was placed oh Mrs. Anisa Rehman v. P.I.A.C, and another (1994 S.C.M.R. 2232). Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others (2004 S.C.M.R. 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 P.L.C. (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 Subcommittee in a series of meeting. All the members of the staff fully knew the object of the meetings of the Subcommittee with the staff members. He particularly referred to the representation of the petitioners in Writ Petitions Nos. 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 Subcommittee. 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 Servants was applicable, he placed reliance on Federation of Pakistan v. Shamsul Huda (P.L.D. 1957 Dacca 148), The State of Pakistan and another v. Mehrajuddin (PLD 1959 S.C. (Pak)
147), The Lahore Central Co-operative Bank Ltd. v. Pir Saif Ullah Shah (PLD 1959 S.C. (Pak) 210), The Federation of Pakistan v. Ali Ahmad Hussain Shah and another (P.L.D. 1955 F.C. 522), The Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustom Ali and another (PLD 1966 S.C. 848), University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 S.C.M.R.
1093), R. T.H. Janjua v. National Shipping Corporation (PLD 1974 S. C. 146), The Principal Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 S.O. 170), Anwar Hussain v.
Agricultural Development Bank of Pakistan and others (PLD 1984 S.C. 194), Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. Through its President, Karachi and 2 others (1995 S.C.M.R. 453), Habib Bank Ltd. And others v. Syed Zia-ul-Hassan Kazmi (1998 S.C.M.R. 60), United Bank Limited and others v. Ahsan Akhtar and others (1998 S.C.M.R. 68), Arshad Ahmad Khan v. Chairman, Bank of Pakistan and others (2001 P.L.C. (C.S.) 207), Razi-ud-Din v. Chairman, Pakistan International Airlines Corporation and 2 others (PLD 1992 S.C. 531), Mr. Zeba Mumtaz v. First Women Bank Ltd. And others (PLD 1999 S.C. 1106), Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others (PLD 2002 S.C. 101), I.N. Subba Reddy V. Andhra University and others (AIR 1976 S.C. 2049), Russell v. Duke of Norfolk and others (1949 (I) AER. 109), Herrinig 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 Pag v. Hull University Visitor (1993 (I) 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 Siddiqul and 4 others (1991 S.C.M.R. 1129), Ayyaz Anjum v.
Government of Punjab, Housing and Physical Planning Department through Secretary and others (1997 S.C.M.R. 169), Syed Mazhar Hussain Bukhari v. Secretary, Government of Punjab Local Government and Rural Development Department, Lahore and others (1998 S.C.M.R. 1948), Muzaffar Hussain v. The Superintendent of Police, District Sialkot (2002 P.L.C. (C.S.) 442), Muhammad Sarfraz and 174 others v. Government of Punjab through Secretary, Education Department, Civil Secretariat Lahore, etc. (2002 SCJ 145), Rao Faisal Sikandar v. Pakistan International Airlines Corporation through Chairman, Karachi and 4 others (2002 P.L.C. (C.S.) 762), Muhammad Anis and others v.
Abdul Haseeb and others (PLD 1994 S.C. 539) and Abdul Wahab Khan v. Government of the Punjab and 3 others (PLD 1989 S.C. 508). He further contended that a discharge simpliciter on the ground of unsuitability stands on a different footing than removal or termination on the ground 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) and Volume 8 of Halsbury's 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 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. Vl(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 Subcommittee 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 re-instatement in service and his remedy was for damages for 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 ease 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 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 P.L.C. (C.S.) 796) in which an order of termination of an employee 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 (P.L.D. 1999 S.C. 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 Js 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 the 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 (supra) has also been examined, in that case an employee of N.W.F.P. 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 Hafiz Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others (2002 S.C.M.R. 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 Honourable 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 simpliciter 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 Pag v. Hull (supra), in the said case the petitioner was appointed as a lecturer in the University and according to the terms of his appointment, his service could be terminated by either parties on three months' notice. His services were terminated in accordance with the terms of appointment. On a petition to the Visitor of the University the onler of termination was maintained.. The decision of the Visitor was however, quashed by the High Court. The Court of appeal however, set aside the decision of the High Court. The matter was then taken to the House of Lords and the decision of the Visitor was maintained with an observation that the terms of appointment of the teacher in the said case provided for termination either for good cause or on three months notice which was one of the terms of this appointment.
11. From the trend of judicial opinion in this country, India as well as in England it is clear that a case of discharge simpliciter in accordance with the terms of appointment or the service rules governing the employment without any stigma is not open to judicial review if the services of the employee are not governed by any statutory rule. The situation is however, different in case of termination or removal as a penal measure which involves a stigma and bars future employment.
12. Before parting with this judgment, the objection of the learned counsel for the respondents based on Article 212 of. The Constitution may also be adverted to. The petitioners are employees of an institution declared as a Special Institution and is under the administrative control of the Education Department of the Government of the Punjab. This fact alone does not change their status from the employees of statutory body into civil servant as defined in the Punjab Civil Servants Act, 1974. Notwithstanding the administrative control of the Education Department, the petitioners continue to be the employee of a statutory body and, therefore, Article 212 of the Constitution is not attracted. In none of the judgments cited by the learned counsel for the respondents, to press the bar of Article 212 of the Constitution, an employee of a statutory body, was held to be a civil servant.
13. The contention of the learned counsel for the petitioner that . Association of the Principal with the deliberations of the Sub-Committee vitiated the proceedings and the termination order has no merit either. The President of the Sub-Committee could co-opt any person and in this case since the custodian of the record was the Principal, his association only facilitated the proceedings of the Subcommittee. Further, it was also not demonstrated that the Principal could, in any manner, influence the three members of the Sub-Committee.
Writ Petition No. 10323 of 2000.
14. The petitioner in this case was retired on the basis of his resignation. His case is that it was in- voluntary. The determination of this question involves a factual inquiry which is not possible in these proceedings.
Writ Petition No. 20184 of 2000.
15. In the case, the petitioner was put to show- cause notice and was let of with a warning and was offeree fresh appointment as a teacher. The show-cause notice anc the letter of warning have been assailed in this petition which action requires resolution of disputed questions of fact and is beyond the scope of these proceedings.
16. For what has been stated above, all these writ petitions are dismissed. No order as to costs.