' SAHIB KHAN, J.--- This writ petition questions the validity of the orders dated 20-9-2002, issued by the respondents, whereby the petitioners were relieved from their services.
2. Briefly narrated facts given' in the writ petition are that the petitioners were appointed as school teachers by the Agha Khan Education Services Central Education Board, (C.E.B.), on different dates on permanent posts. During their services, the petitioners had gone under departmental training and also appeared in various Boards and University Examinations, that the petitioners are having excellent record and outstanding .Career backgrounds, that during the service period, the petitioners were rendering their duties honestly, diligently, punctually and efficiently and there was no record of any kind adverse to the interest of respondents. That the respondents are legally bound to accept the factual and legal position of relationship between the petitioners and respondents as employers and employees and any act, omission or commission carried out by the respondents prejudicial to the interest of the services of the petitioners shall be illegal, unlawful and void ab initio and has no binding effect on the rights of the petitioners. The petitioners are entitled to carry on their services as per service contract and office orders of employment of respondents, that any act, omission or commission on the part of respondents which is not provided in the employment orders of the petitioners shall have no effect on the rights of the petitioners.
3. Counsel for the petitioners vehemently argued that the impugned office order, dated 20-9-2002, issued by the respondent No,3 is illegal, unlawful, ultra vires, as the respondents neither issued any notice, nor provided any opportunity to appear and defend themselves from the action of termination. The said act of termination without any notice amounts to condemn the petitioner unheard, as such, the impugned order of termination is not sustainable. That in absence of any provision in the Rules, Appointment orders, appraisal scheme about termination of service, the action taken by the respondents is illegal, incorrect unjustified, without authority and sanctity and has no force of rule and law. That the petitioners consumed their precious time and age in the service of respondents as teachers and the petitioners are entitled to carry on their remaining services. That the petitioners have been met out discriminatory treatment. That the impugned order of termination has deprived the petitioners of their precious and sacrosanct right of services, that due to the said illegal order, the petitioners have become jobless. Moreover, the termination order has spoiled the family life of the petitioners as the petitioners have become over aged and ineligible to be employed or considered by any other institution or department, as' such, the petitioners are entitled to be reinstated in their 'service and continue it till sixty years of age or alternatively the petitioners are entitled to claim damages as compensation as provided under the rules. In support of arguments, counsel for the petitioners referred PLD 1990 SC Page 612 and 1991 SCMR, page 2434.
4. On the other hand learned counsel for the respondent strongly opposed the petition with the contention that the writ petition is not maintainable, section 19A of the N.A. Legal Framework Order, 1999, is not applicable. Legal remedy is available to the petitioners in specific Relief Act. That the respondents' department is a private company, theory of master and servant applies to both the parties, both the parties are bound to follow the theory of master and servant and the petitioners are bound to follow their service' terms and conditions. That even after providing training facility the petitioners 'could not prove their efficiency, as a result they were 'liable to be terminated from their services. The termination orders are legal and made under the rules and regulations. The medium of education has been changed from Urdu to English and the petitioners were given full chance of training to enable them to teach different subjects in English, but they could not improve their ability, which resulted to be relieved them from services. The respondent is a private company which provides education in English medium to the young general on humanitarian basis. The petitioners could not improve their ability in English language, they could not be employed any more to affect the education of the children. That the petitioners have rightly been relieved from their services and they will not be paid terminal dues as per the terms of their employment. The petitioners were relieved from their services by giving one month gross salary in lieu of one month's notice, as such, the petition is not maintainable and liable to be dismissed.. In support of arguments, he referred PLD 2006 SC page 602 and section 2 of the Civil Servants Act.
5. We have heard the learned counsel 'for the parties at length, gone through the available record and guided ourselves from the valued case-laws, referred by the parties.
6. It is admitted that the petitioners were initially employed by the Agha Khan Education Services Northern Areas. (hereinafter called as A.K.E.S.) predecessor-in-office of the respondent No,l.Under Control of Education Board (hereinafter called as C.E.B.), in the position of school teachers for the schools/units managed and run by A.K.E.S. The service particulars of the petitioners are as follows:- - S.No.NameDate of appointmentDate of dismissal of serviceDuration
1. Sultan Ali 28-9-1986 20-9-2002 = 16 2.Mst. Shakila Begum28-9-1981 20-9-2002 = 21 3.Mst. Razia Begum28-9-1981 20-9-2002 = 21 4.Mst. Sulemani 29-9-1988 20-9-2002 = 14 5.Salimuddin 15-1-1981 20-9-2002 = 21 6.Fazal Karim Nil 20-9-2002
7. Mst. Shireen Bano5-5-1991 20-9-2002 = 12 8.Mst. Bulbul Shireen6-7-1991 20-9-2002 = 12 9.Mst. Malika Hassan- - 1985 20-9-2002 = 17
7. The A.K.E.S., while appointing the petitioners offered the posts with certain terms and conditions appended with their appointment letters. It reveals from both the documents that the appointments had taken place purely on temporary basis and were revocable on seven days' notice. The other terms of service were held to be governed under the rules framed under Aga Khan Education Service of Pakistan (hereinafter called as A.K.E.S.P.).. It is further admitted that A.K.E.S.P. Is a company formed under Companies Ordinance, 1984, took over the management and operations of the chools/units/programme run by A.K.E.S. About 1998. Resultantly, the institutions and employees including the petitioners of A.K.E.S. Merged into the organization of A.K.E.S.P., therefore, there is no ambiguity that service rules framed under A.K.E.S.P. Are applicable service affairs of the petitioners.
8. We have minutely gone through the rules framed thereunder and noted that the employees of one unit can be transferred to other unit within the programme area, which is spread almost all over the country level or it can be said that it is a country vide programme, Moreover, clauses (35) .And (36) of the rules provide mechanism for disciplinary actions against the employees of A.K.E.S.P.
It has further been provided under Clause (37) of the Rules that the service of any employee cannot be discontinued until and unless fulfilling the formalities provided therein. We could not find any document on file issued by the respondents against the petitioners levelling any of the charges them from continuation of service or any notice requiring improvement in proficiency or notice for discontinuation of service. It is astonishing that the employees working for a considerable period shown above were given no chance to explain their position about the allegation levelled against them. The charge of incompetency as shown in the termination letter did not support any report or warning issued by respondents during the period of the years 2000, 2001 and 2002. We have also gone through result-sheets placed on file pertaining to different schools where the petitioners were posted, give a picture adverse to that levelled in the termination letter.
Respondents were legally and morally bound to convey the deficiencies if found against the petitioners during the period of their service, placing the petitioners in any category, is also not free from doubts without any feed back by the field staff and conveyed it to the petitioners. The organization did not bother to provide an opportunity to the petitioners to be heard and have acted in violation of self made rules. It is the basic principle of law "audi alteram partem" that no one can be condemned unheard.
9. The learned counsel for the respondents in his arguments as well as in his written reply has stressed that no writ can be issued against the respondents, not being a statutory Corporation as given under Article 199 of the Constitution of Pakistan. Moreover, they can seek relief under Specific Relief Act, but not through this writ petition. He in support of his contention referred PLD 2006 SC page 602, PLD 1956 Pesh. Page 77, PLD 1961 SC 531.
' We have gone through the case-laws, we found no relevancy of those cases with the case in hand. However, we updated ourselves on some of the material points.
10. Generally corporation created by the authority of the Parliament can be divided into four classes (1) Corporation directly created by Public General Acts of the Parliament (2) Corporation created by registration under Public General Act of the Parliament authorizing the B members of a proposed Corporation to apply for its incorporation, (3) Corporation created by Special Act (namely Local or personal) of the Parliament and (4) Corporation created under the authority delegated by the Act of the Parliament. As stated above, respondent No,1 was framed under the Companies Ordinance, 1984 (hereinafter called as Ordinance, 1984). The A.K.E.S.P. Has got authority and power from the law of the land enacted by authority empowered by the Constitution of the, State/Federation, therefore, perfectly it can be assumed as statutory Corporation as provided under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. A.K.E.S.P. Has framed rules for appointment, disciplinary action, and for dismissal of the employees and rules are applicable on the employees and employer equally and no one can claim exempted-authority from it.
11. With regard to the argument of the learned counsel for the respondent that the petitioners can seek remedy from the available forum under Specific Relief Act. We disagree with the contention of the learned counsel for the reason that if the relationship is the result of a contract freely entered into by the contracting parties then the principle of master and servant will apply. The principle however, will not apply if some law or statutory rules intervene and place fetters upon the freedom of the parties in the matter of terms of the contract. It is on this principle that a civil servant for whom there are constitutional safeguards is not governed by the principle of master and servant, as he is possessor of a legal character for the enforcement of which he can bring an action. Even where the employee is not a civil servant but when there are statutory safeguards covering his relationship with the employer and placing restrictions on the freedom of the parties to act, the general law of master and servant will not apply. In such cases the employer would be bound to follow the procedure provided for, in the statute or the statutory rules before terminating the services of the employee and in absence of conformity to such procedure the termination of service would not be clothed with the validity and the employee will be entitled to an action for reinstatement. To apply the law of master and servant the relationship essentially based on a contract entered into by the parties with their free will and consent, which implies that the remedy for illegal termination of service is to file a suit for damages under the provisions of Specific Relief Act but suit for declaration is not maintainable for the simple reason that the service contract is.
Not specifically enforceable which will in compelling in an unwilling master to accept a person in his service against his will.
12. The contract of employment in between the parties to the petition is subjected to the terms and conditions regulated through rules by the statutory corporation/body applicable on both sides. The pleasure of master has replaced by the statutory provisions and case would stand outside the rule of master and servant, so that, the constitutional jurisdiction would be amendable to any violation of rule.
13. Besides the above age and period of services rendered by the petitioners beginning from 1981 in the far-flung areas under the tough terms and conditions, have served and rendered services for A.K.E.S. As A.K.E.S.P. Respondents could not be able to prove any laps in the performance of the petitioners. We disagree with the contention of the learned counsel for respondents that A.K.E.S.P. Is only education oriented organization but not service. We observe that the organization is fully responsible to observe the rights of the employees besides imparting education to the children:---
(1) As discussed above we found that the termination orders dated 20-9-2002 passed by the respondent against petitioners are in violation of rules and natural justice, hence, declared void.
Petitioners are hereby reinstated against the posts they were on 20-9-2002.
(2) The petitioners are entitled to full benefits for intervening period, admissible to them under Service Rules of A.K.E.S.P.
(3) The petitioners are entitled to complete their service and avail pension benefits provided under A.K.E.S.P. Rules.