' AJMAL MIAN, J.-This petition challenges a notification, dated 2nd May, 1975 under section 3 read with section 4 of the Sind Private Schools (Management and Control) Act, 1974 (hereinafter referred to as the Act) issued by the respondent No, 1, whereby a Board of Governors has been constituted for running the school known as "Jennings Private School" owned by the petitioner. The learned counsel for the petitioner Mr. Khalid Ishaque has assailed the above notification on the following two rounds :- (i)that the above notification has violated the rule contained in the well-known maximum audi alteram partem.
(ii) that the impugned action is mala fide.
' In order to appreciate the above contentions, it will be necessary to examine the provisions of the Act and the background under which the impugned notification was issued.
2. The Act came into force on 6th December, 1974. The object given in the preamble to the above Act is to make provisions to enable the private schools in Sind to maximize their academic efficiency, streamline their administration and regulate the conditions of service of teachers employed therein. Section 8 of the Act defines the various terms used in the sections of the Act which inter alia includes Board, Beard of Governors, chairman, Controlling Authority, Government, Parent Body and Private school, etc. As the above terms have been used in the various sections of he Act it may be advantageous to reproduce the same, which read as follows "2. Definitions.-In this Act, unless there is anything repugnant in the subject or context-
(a) "Board" with reference to a technical school, means the Sind Board of Technical Education, and with reference to any other school means the Board of Intermediate and Secondary Education within the territorial jurisdiction of which the school is located.
(b) "Board of Governors" means the Board of Governors constituted under section 4 ;
(c) "Chairman" means Chairman of the Board of Governors :
(d) "Controlling Authority" means the Minister for Education, Government of Sind or his nominee ;
(e) "Government" means the Government of Sind ;
(f) "Member" means a member of the Board of Governors and includes Chairman :
(g) "Parent Body" means the person who, or the body of persons which, established or was immediately before the commencement of this Act, maintaining and managing the school ;
(h) "Prescribed" means prescribed by rules or regulations made under this Act ;
(i) "Principal" means the Principal including the Headmaster of a school :
(j) "Private School" means a school or an institution other than a school managed or run by Government, a local body, cantonment board or a university ;
(k) "School" means a private school :
(1) "Teacher" means teacher of the school and includes the Principal and the Physical Instructor of the school ; and
(m) "Technical School" means a school, institute or other institution in Sind recognised by Government or by the Sind Board of Technical Education for Technical or commercial education and includes a Polytechnic Institute, Technical Institution, Commercial Institute and any other institute or school imparting technical training at diploma level."
' Section 3 of the Act provides that the Controlling Authority may for the efficient management and control of a school establish a Board of Governors.
' Section 4 gives the composition of the Board of Governors to be established by the Controlling Authority. It provides that the Board of Governors shall consist of-
(a) 4 members nominated by the parent body with the proviso that in case annual contribution made by the parent body which includes income from the property and assets of the school and the rental value assessed by the Controlling Authority of the property used by such school is less than 10% of the annual expenditure of the school, the number of the members to be nominated by the parent bod shall be reduced as the Controlling Authority may deem fit.
(b) five members nominated by the Controlling Authority.
(c) one member elected annually by the parents and guardians of the students on the roll of the school from amongst themselves; and
(d) one member elected annually by the teachers of the school from amongst themselves.
' Subsection (2) of the above section of the Act provides that the Chairman shall be appointed by the Controlling Authority from amongst the nominated members. Whereas under subsection (3) of the aforesaid section the Principal of the school is to act as the Secretary of the Board of Governors.
Subsection (4) lays down that the Chairman shall hold office for a period of 3 years and shall be eligible for denomination.
' Section 7 of the Act enjoins that the Board of Governors shall hold meeting at least once every month and whereas section 8 defines the power and duties of the Board of Governors, section 9 defines the power and duties of the Principal.
' Section 10 enjoins the parent body to file a statement in the form given in the schedule to this Act within two months of the enforcement of the Act or within two months of the recognition of the school by a Board, after the commencement of the Act.
' Section 13 empowers the Controlling Authority to inspect the school placed under the control and management of the Board of Governors or cause it to be inspected and/or to issue direction for taking any action within the period specified.
' Section 14 constitutes a Staff Council consisting of the Principal as its Chairman and four senior most teachers as its members to advise the Principal in connection with the day to day affairs of the school and the matters mentioned in section 9.
' Section 15 empowers the Controlling Authority to take actions specified therein which includes the power to dissolve the Board of Governors, to appoint an Administrator to take over the school or to take such other action as it may deem fit after giving an opportunity to show cause to the parent body and to the Board of Governors.
' A perusal of the above provisions of the Act indicates that the same has provided a complete frame work with the view to achieve the object of the Act referred to hereinabove.
3. Before dealing with the question as to whether the impugned notification has violated the rules contained in the above maxim audi alteram partem we may state the background which necessitated the issuing of the impugned notification. In this regard we may refer to the various documents filed as annexures to the petition, counter-affidavit and the rejoinder. On 10th February, 1975 the petitioner had addressed a letter to the Minister of Education, Government of Sind, informing him that the management had terminated the services of the Headmistress Mrs. Rafia Subhani, on the grounds specified therein (Annexure 'E' to the petition). The second letter which is on record is a letter, dated 25th February, 1975 written by the Additional Director (Women)
Directorate of School Education, addressed to the petitioner, whereby the petitioner's attention was drawn to the Directorate letter, dated 21st February, 1975 and the copy of the directive from Section Offer Government of Sind, Education Department (received by the petitioner on 22nd February, 1975), whereby the petitioner was requested to re-instate Mrs. Rafia Subhani and to allow her to continue as the Headmistress (Annexure 'F.' to the petition). It was pointed out in the above letter that she had failed to comply with the requisition specified in the above letter, dated 21st February, 1975 received by the petitioner. The petitioner was again requested to re-instate Mrs. Rafia Subhani immediately. After that the Additional Director (Women) again wrote a letter, dated 27th February, 1975 (Annexure '0' to the petition) addressed to the petitioner wherein it was stated that it had been reported that the petitioner was harassing the staff members of the school unnecessarily resulting in a deep feeling of insecurity. It was also stated that this state of affairs was likely to affect the instructional work and discipline of the school adversely. The petitioner was directed that all cases of disciplinary actions against any of the staff members be taken after obtaining prior approval of the writer of the letter. In response to the Additional Director's above two letters the petitioner sent a reply, dated 10th March. 1975 (Annexure 'H' to the petition), wherein the petitioner asserted that the above two letters were contrary to the findings and the impression which the Additional Director indicated during the inquiry regarding the termination of the services of the aforesaid Headmistress. The petitioner had also invited the attention of the Additional Director (Women) to the various alleged irregularities committed by the aforesaid Headmistress which necessitated the termination of her services. It was also pointed out that the Additional Director herself appointed Miss Claira Yousuf as acting Headmistress and, therefore, there was no need of issuing the above two letters.
4. The last latter which the petitioner has filed along with its annexures with the petition is the petitioners' letter dated 25th March, 1975 addressed to the Hon'ble Chief Minister, Government of Sind, Karachi (Annexure to the petition) forwarding a copy of a notice signed by 18 teachers out of 31 threatening to go on strike if their demand contained in the above notice was not met within a week from the date of the letter. As the contents of the above letter and the annexure thereto are very pertinent to the point in issue the same are reproduced here in below which read as under :- "No exaltation or grandeur is superior to learning and knowledge......
(Hazrat Ali)
' JENNINGS PRIVATE SCHOOL Regd. No, R. 40 ' An English Medium and Lower Secondary School for Boys and Girls ' Fatima Jinnah Road, (13, Bonus Road), Karachi.
' Dated 28th March, 1975.
' The Honourable Chief Minister, Government of Sind, Karachi.
' Termination of Headmistress ' After your verbal permission, the appointed a new Headmistress which brought about the illegal strike notice by 18 out of the 31 teachers, a copy of which is attached for your perusal.
' The Examinations of the children are next month and the teachers are just creating mischief to pressurize the management and to spoil the good name of our school by giving strike notice which is illegal and its penalty dismissal.
' I believe that a definite action from you could settle the matter once for all and the management be given a free latitude to handle things in their proper perspective.
' However, I have full confidence in you that you will help us to end this case in the befitting manner.
' Thanking you in anticipation.
' Yours faithfully ' Esd for JENNINGS PRIVATE SCHOOL (S.B. Manjiani)
"The Headmistress, Jennings Private School, ' Fatima Jinnah Road, Karachi.
' Dear Madam.
We, the undersigned teachers of Jennings Private School, want to place the following points before you :-
(a) That you have removed the acting Headmistress Miss Clara appointed by the Additional Director of School Education (Women), Karachi (Inquiry Officer deputed by the Minister).
(b) That Miss Clara's appointment as Acting Headmistress was conditional till such time the case of our Headmistress is decided by the Government.
(c) That the appointment of the new Headmistress in place of the acting Headmistress is not desirable.
(d) That please take note if the appointment of the new Headmistress is not withdrawn within a week from the date of this letter, we the undersigned teachers of Jennings Private School will go on strike. Please treat this as an advance notice from us.
' Yours faithfully"
5. It may be noted that the petitioner in her aforesaid letter dated 25th March, 1975 requested the Chief Minister, Government of Sind to take a definite action in order to avert the above threatened strike. The photo stat copy of the above annexure contains two notes thereon, namely, (1) one from Mrs. Saba Effendi, the newly appointed Headmistress dated 18th March, 1975, and (2) the other apparently from Mr. Ghulam Mustafa Jatoi dated 25th March, 1975. In the former note the newly appointed Headmistress termed the above strike notice as an insult to her appointment and requested that necessary action be taken. In the latter note it appears that the Chief Minister marked the notice of the strike to the Minister for Education directing him to take suitable action so that the normal functioning of the school was not disturbed. Before parting with the discussion of the documents on record, it may also be stated that the Additional Director (Women) addressed a letter to the Secretary, Ministry 9f Education (Annexure `C' to the counter-affidavit) the copy of which was also forwarded to the Minister for Education, Government of Sind. The above letter does not bear any date but apparently was written sometime after 25th February, 1975, as in the last para. Of the said letter a reference to a letter dated 25th February 1975, has been made. In the above letter she has dealt with the various problems faced by the aforesaid school and the reasons thereof. She has also pointed out the various grievances of the teaching staff and their demands. She also recommended that a Board of Governors be established. It may be advantageous to reproduce herein below the grievances of the teaching staff and their demands mentioned in the above letter were as follows :- The staff of this school has also put up the grievances as detailed below :-
(1) The Managing Committee of the School comprise of the brothers and friends of Miss Sabera Nanjiani including Miss T. Naqvi the canteen incharge of the school whose name has been recently put on the staff register. Moreover, none of the trained and qualified staff has been included as member of the Managing Committee.
(2) No casual or sick leave has been granted to the staff. On the contrary a teacher's salary is deducted if she is sick and unable to provide substitute. Besides, if she is late for 10 or 15 minutes in the morning due to acute transport problem her salary is again deducted.
(3) There is so much personal interference from the side of the proprietress on the teachers in general that they find it very difficult if not impossible to pay proper attention to their respective classes and under such prevailing conditions they find it very difficult to discharge duties diligently.
They are subjected almost every day to mental torture and every day unnecessary and undesirable meetings are called by the owner during the school time and the teachers have to fore sake their classes to attend these meetings.
' That staff of the Jennings Private School have put up the following demands for consideration :-
(a) Immediate re-instatement of the headmistress Mrs. Rafia Subhani.
(b) Security of jobs ;
(c) They be given the same facilities as enjoyed by their counter-parts in the nationalized schools ;
(d) The Managing Committee to include elected members of the Staff in future ;
(e) No further harassm ent from the side of the proprietress."
6. If we judge the impugned notification keeping in view the above background, then it cannot be said that the impugned notification was not justified. The petitioner herself admitted in her aforesaid letter dated 25th March, 1975 (aunexure to the petition) that the school management was served with a notice of strike by 18 teachers out of 31. She also requested the Chief Minister to take a definite action in the matter to avert the above threatened strike which would affect the examinations then due in the following month. The petitioner in her petition has attempted to give an impression that the impugned notification was issued all of a sudden as a surprise to her (copy of which was allegedly received by her on 5th May, 1975) but this is not so in view of the above background. It has also been asserted by the petitioner that she received the letter dated 29th April, 1975 on 5th May, 1975 in which her attention was invited to the Ministry of Education letter dated 12th April, 1975 (copy of which was enclosed with the above letter, whereby the petitioner was requested to propose 4 names for the Board of Directors to be established. According to the respondent No, I, the aforesaid letter dated 12th April, 1975 (Annexure A/I to the counter affidavit) was followed by a reminder dated 19th April, 1975 (Annexure A/2 to the counter-affidavit). When the above two letters were not responded to by the petitioner a third letter dated 29th April, 1975, referred hereinabove was sent under registered acknowledgement due with the copy of the letter dated 12th April, 1975, which was acknowledged by the petitioner. The learned counsel for the respondent No, 1 has contended that in fact the petitioner has suppressed the aforesaid letters dated 12th April, 1975 and dated 19th April 1975, in order to contend that she had received the copy of the impugned notification and the above letter dated 29th April 1975, on 5th May, 1975. Be that as it may, the alleged non-receipt of the two letters by the petitioner does not make any difference in as much as the petitioner herself requested the Chief Minister of the respondent No, 1 to take action in the matter and, therefore, it is not open to the petitioner to urge that the impugned notification was a surprise to her.
7. The question which remains to be considered is as to whether there was any legal requirement to serve a show-cause notice on the petitioner before issuing the impugned notification. We may observe here that sections 3 and 4 of the Act do not contemplate issuing of a show-cause notice before issuing a notification for constituting a Board of Governors. On the other hand, section 15 expressly provides that before taking an action specified therein a show-cause notice is to be given to the parent body and the Board of Governors. It may be advantageous to reproduce here in below sections 3, 4 and 15 of the Act %hid) read as follows :- ' Establishment of Board of Governors.-The Controlling Authority may for the efficient management and control of a school establish a Board of Governors.
4. Constitution of Board of Governors.-(1) The Board of Governors shall consist of-
(a) four members nominated by the parent body, provided that if the annual contribution made by parent body which includes the income from property and assets of the school and the rental value as assessed by the Controlling Authority of the property used by such school, is less than ten per cent, of the annual expenditure of the school, the number of members nominated by the parent body shall be reduced as the Controlling Authority may deem fit ;
(b) five members nominated by the Controlling Authority ;
(c) one member elected annually by the parents and guardians of the students on the roll of the school from amongst themselves ; and
(d) one member elected annually by the teachers of the school from amongst themselves.
(2) The Chairman shall be appointed by the Controlling Authority from amongst the nominated members.
(3) The Principal shall be the Secretary of the Board of Governors.
(4) The Chairman and the nominated members shall hold office for a period of three years and be eligible for re-nomination.
15. Dissolution of the Board of Governors and taking over of school.-If the school ceases to maintain efficiency any discipline in accordance with or fails to satisfy the requirements of, the provisions of this Act and the rules and regulations made thereunder, or fails to take any action which it has been called upon to take by the Controlling Authority under section 13, or it is conducted in a manner which is prejudicial to the interests of education, Government may, after giving the Parent Body and the Board of Governors an opportunity to show cause against the proposed action-
(a) dissolve the Board of Governors ; and
(i) appoint an administrator who shall perform the functions and duties of the Board of Governors until a new Board of Governors is constituted ; or such other arrangement as it may deemed fit ;
(ii) take over the school ; or
(b) take such other action as it may deem fit.
A perusal of the above-quoted provisions shows that where a punitive action is to be taken under section 15 which will result in total exclusion of the parent body and the Board of Governors from the management of the school a show-cause notice is to be issued for providing an opportunity but there is no such requirement provided for in section 3 of the Act. The above deliberate omission in section 3 of the Act by legislation is indicative of the fact that no show-cause notice was contemplated. In this regard a reference to the case of Mohammad All v. Chief Administrator, Aukaf
(1) may be pertinent. In the above case the petitioner had assailed the notification issued by the Chief Administrator, Aukaf under section 6 of the West Pakistan Wakf Properties Ordinance, 1961 for assuming the management and control of the Wakf properties specified in the notification, on the basis of the above maxim audi alterm partem, While dealing with the above contention their Lordships were pleased to observe that the factors which may exclude the application of the above rule are (i) whether the Legislature expressly requires notice and hearing for certain purposes but does not provide such requirement for other purposes, (ii) whether a proper substitution for prior notice of an opportunity to be heard is available.
8. Reverting to the maxim audi alteram partem, it is true that our Supreme ('curt as well as the High Courts have consistently held that even though there might not be an express provision for providing a hearing but the rule of natural justice requiring that a person should not be condemned unheard is a settled principle of law which will be read into the relevant law unless the application is excluded by express words. In our view there has not been any violation of the above rule in the instant case. The situation obtaining demanded immediate action in order to avert the threatened strike and to maintain the normal working of the (1) PLD 1972 Lah. 416 school which according to one of the inspection note filed by the petitioner as an annexure to the rejoinder catered for 1100 students. The petitioner herself requested for an action and, therefore, it was open to the respondent No, 1 to take whatever action it considered proper under the circumstances of the case. The petitioner cannot make a grievance of the fact that the respondent No, 1 instead of taking some other action has issued the impugned notification. We may observe that the rule of natural justice does not require a personal hearing or issuing of a show-cause notice in every case, as it will depend on the facts of each case. If an action ist just and fair in the circumstances of the case, the Court will be reluctant to interfere with such action on the plea of violation of the rule, audi alteram partem particularly when such interference instead of suppressing mischief will cause further mischief. It is the duty of the Court to make such construction of a statute which shall suppress the mischief and advance the remedy provided for in the statute. It is also well-settled principle of interpretation of a statute that it should be so interpreted as to promote in the fullest manner, the policy and object of the Legislature.
9. (a) We may refer to the case of Mehrab Khan v. Taj Muhammad (1), the case of Dr. Mumtaz Hussain v. University of Sind (2) and the case of Pakistan Chrome Mines Ltd. v. The Inquiry Officer, War Risk Insurance (3).
(b) Reverting to the above Quetta case, it may be stated that in the above case the action of the Additional Commissioner to refer a criminal case to a Jirga under the Frontier Crimes Regulation (III of 1901) was challenged inter alia on the ground that before making a reference no personal hearing was given. A Division Bench of the erstwhile High Court of West Pakistan while rejecting the above contention was pleased to observe that a personal hearing before deciding the matter is not a necessary requirement of the principle of natural justice. All that is necessary is full and fair opportunity of making a representation or showing cause. What is full and fair opportunity depends upon the facts of each case, and that in some cases it may be enough if a party has placed its point of view and has shown the cause for the consideration of the authority.
(c) The facts in the Karachi case were that the petitioner was a lecturer in the University. He was dismissed on the basis of an inquiry held against him for malpractice. He filed an appeal under section 14 of the University of Sind Employees (Efficiency and Discipline) Ordinance, 1961 before the Chancellor, which was dismissed without giving him a personal hearing. It was urged by the petitioner that as he was not given a personal hearing the above dismissal of the appeal was in violation of the maxim audi alteram partem. A Division Bench of the erstwhile High Court of West Pakistan, Karachi Bench, was pleased to repel the above contention. It was pleased to observe that a personal hearing before deciding the matter is not a necessary requirement of the principle of natural justice. All that is necessary is full and fair opportunity of making a representation or of showing cause. The above principle was re-affirmed in the above Karachi case of 1976 and it was held that there was no requirement of personal hearing in relation to an appeal filed under the War Risk Insurance Ordinance.
(1) PLD 1961 Quetta 1
(2) PLD 1966 Kar. 229
(3) PLD 1976 Kar. 673
10. We may observe that the petitioner in response to the above letter dated 29th April, 1975 has nominated 4 members for the Board of Governors without raising any objection or lodging protest through her letter dated 6th April, 1975 (wrongly dated as 6th April, 1975 instead of 6th May, 1975 (Annexure A/4 to the counter-affidavit). The contents of the above letter are very material and, therefore, the same are produced hereinbelow "No exaltation or grandeur is superior to learning and knowledge (Hazrat Ali)
' JENNINGS PRIVATE SCHOOL Regd. No, R. 40 ' An English Medium and Lower Secondary School for Boys and Girls ' Fatima Jinnah Road, (13, Bonus Road), Karachi.
' Dated 6th April, 1975.
' To ' Qadder Saleem, ' Section Officer (N), ' Education Department, Govt. Of Sind, Karachi.
' Dear Sir, ' With reference to your registered letter dated 29th April, 1975, it was received by me yesterday in the afternoon. I am surprised that you have enclosed a copy of a letter said to have been sent to me around 12th April, 1975 because I have never received the same. However, I am giving below the names of the nominees of the parents body for completing the Board of Governors. {{TABLE}} Miss S. B. Nanjiani. 2B 1st East Street, Defence Society, Karachi.
Muhammad Yousuf Haji Ismail. 4, Mahfooz Manzil, Sardar Sultan Chandio, Chandio House, 5, Gizri Street 8F, Karachi.
Mr. Mahmood B. Manjiani, 2B 1st East Street, Defence Society, Karachi.
The names of elected representatives of the teachers and parents are
1. Miss T. Naqvi 98, PIB Colony, Karachi.
2. Mrs. Azra Chandio Chandio House, 5, Gizri Street, 8F, Karachi.
It is also requested that no meeting of the Board should be held till the Board of Governors is completed by the Government.
(Sd.) S. B. Nanjiani for Jennings Private School, {{TABLE}} ' After having nominated the members to the Board of Governors without any protest and after the same having been notified through a notification dated 16th May. 1975 (Annexure B to the counter- affidavit) it is not open to the petitioner to challenge the same.
11. Reverting to the second ground that the impugned action is mala fide, it may be observed that the petitioner has not alleged any mala fide against the respondent No, 1 in her petition. The petitioner's allegation in the petition is that the dismissed Headmistress Mrs. Rafia Subhani has caused the issuing of the impugned notification. In our view mala fide on the part of Mrs. Rafia Subhani shall not constitute mala fide on the part of the respondent No, 1 and, therefore, the above contention is devoid of force. Even otherwise in our view the action taken by the respondent No, 1 was prima facie a bona fide action and was taken in order to avert the threatened strike by the majority of the teaching staff and to provide participation in the management of school to the teachers and parents in addition to the respondent No, l's nominees. The above act was to inspire confidence amongst the teaching staff and to provide them a sense of security which was lacking.
' In view of the above discussion we see no merit in the petition and, therefore, the same is dismissed but with no order as to costs.