1. MRS. YASMIN ABBASEY, J. - Facts leading to this case are that vide office order dated 27.2.2007 petitioner was appointed on the post .Of Director General of Dr. Abdul Qadeer Khan Institute of Biotechnology & Genetic Engineering, University of Karachi for four years w.e.f. 1st March, 2007.
2. According to petitioner during the course of meeting, held on 5.4.2008 he was directed by respondent No. 2 to leave the meeting room. After an hour he was called again by respondent No. 2 and was informed that as he is not satisfied with the administration work of the petitioner, therefore, petitioner should resign from the post of Director General of the Institute. However, being renowned scientist he may continue as Professor/Scientist and guide the research workers in KIBGE. In the same meeting suggestion for appointment of any other suitable candidate in place of petitioner was recommended.
3. Bring aggrieved with this termination order from the post of Director General, this petition has been filed.
4. Emphasizing the position of the petitioner and importance of his posting on the post, letter of Dr. Abdul Qadeer Khan in his on handwriting appointing the petitioner as Director General of KIBGE from the date he took over the charge i.e. 1.3.2007 for a period of three years has been referred, alongwith extract of publication issued by Henry Stewart Talks wherein name of petitioner Prof. S. Qasim Mehdi has been shown as one of leading speaker of world in the seminar organized by the referred organization. His research work and the expertise in the field were recognized at different levels, which has been detailed by him in document placed as Annexure "B".
5. Irrespective of the experience and qualifications gained by petitioner in the particular field, the question for consideration in the present petition is that WHETHER THE RESPONDENTS AFTER ENTERING INTO CONTRACT AS PER RULES AND REGULATIONS ALREADY.LEGISLATED CAN DEVIATE FROM THE SAME WITHOUT PROVIDING OPPORTUNITY OF HEARING TO THE AGGRIEVED PERSON AND JF SO WHETHER THE DOCTRINE OF AUDI ALTERAM PARTEM WILL NOT COME IN THE WAY.
6. To support his argument learned counsel for petitioner has referred 2001 SGMR 934, 2008 PLC (CS)
7. 715 and 2005 SCMR 57.
8. Charge against the petitioner as detailed in the minutes of the meeting placed on record is that after discussion on the administrative, financial and academic affairs Of the institution under the- administration of the petitioner as Director General "Governing Council expressed its concern on the unpleasant and disturbing financial and administrative irregularities committed, mishandling and lapses in implementation of resolutions/instructions of the Governing Council by the Director General of the Institute".
9. Observation as quoted above, beside the administrative work also includes the financial irregularities happened during petitioner's period, which are of serious nature, but record is silent that whether after charging the petitioner with the allegation as expressed above any Show- Cause Notice as given to him before terminating him from the post or even during meeting he was provided an opportunity to defend himself and clarify the allegations levelled against him. On the contrary the minutes reflect that even during discussion on the alleged facts petitioner was asked to leave the committee room and whole process was done in his absence. After taking final decision he was called and was communicated about the decision taken by the members of the meeting.
10. According to learned counsel for the respondents as petitioner was removed from service without any charge therefore, no show-cause notice was required to be issued. Further the institution does not have any statutory rules, therefore, authorities referred by petitioner's counsel as to providing of opportunity of hearing are not applicable in the matter. According to him even otherwise, petition is not maintainable against Karachi University as neither petitioner was holding a public office nor he was employee of Karachi University. According to him Dr. Abdul Qadeer Khan Institute of Biotechnology & Genetic Engineering should had been impleaded as party because petitioner was employee of institution and not of Karachi University. New Director General being the first affectee has not been impleaded as party.
11. When attention of respondents' counsel was drawn towards the rules framed under title of "statute for the establishment of Dr. Abdul Qadeer Khan Institute of Biotechnology & Genetic Engineering, University of Karachi" wherein as per clause 1{a) it is specified that the institute will be deemed to be a Constituent Institution of Karachi University under its academic, administrative and financial disciplines in accordance with the provisions of this statute, it is argued that University of Karachi and KIBGE are two different entities, therefore, when an act of termination Of an employee of KIBGE has been challenged, it should had been joined as party.
12. Be that, as argued but very clause "a" of Statute defined KIBGE as "Constituent Institution of University. Further from the stage of constitution and composition of council, for the purpose of appointment and termination of employee of institution, we see the active role of Chairman of Council i.e. Vice Chancellor of University, which left no space to say that institution has no independent existent but. It is subservient to University of Karachi. Appointment letter, of petitioner issued by Vice-Chancellor, University of Karachi as Chairman, Governing Council KIBGE is sufficient proof of it, therefore, KIBGE cannot be said a necessary party in proceeding and it has rightly been sued through University of Karachi.
13. Here reference of a letter dated 15.5.2002 Annexure P/2 would be material to refer, which clarifies that project of the institute was sponsored by Karachi University and it has its administrative and financial control.
14. Next as per para-9 of the very statute, tenure of the Director General was settled for four years extendable by the appointing authority, It is contended by Mr. Muhammad Tasnim that petitioner as a right cannot claim to hold a particular post for a particular period as even otherwise, the contract employees are not entitled for reinstatement on their post. Beside that he has not been removed from the' employment of the institution, only charge of Director. General was taken over from him. He is still working in the Institute and supervising research work, but these arguments advanced by the learned counsel for respondents do not appeal to reason because bye-law or regulation being in nature of satisfactory legislation has statutory force. Therefore, once statute confers a benefit by advancing an onerous obligation under a contract entered into, then the employer or one of executor 'of it cannot deviate from the same without any reasoning. The rules and regulations framed under an act, even if taken under the rule of master and servant, does not confer on the employer unbridled or unfettered power to act vehemently in violation of the principle of natural justice and well-settled norms of justice.
15. Dr. Abdul Qadeer Khan's personal recommendation and appointment in his handwriting by letter dated 24.2.2007, which was followed up with issuance of office order on 27.4.2008 cannot be set aside in such arbitrary manner as was done in the present case.
16. Reference can be made to 2004 SCMR 1874.
17. Almost identical case as that of petitioner-was placed before the Single Bench at Lahore whereto contract employees for a period of three years were terminated from service after few months on the ground that appointments were illegal. On the plea-raised by the petitioners that no notice was given to them before termination of their contract and they were condemned unheard nor any enquiry was conducted, it was observed that even if it was found that the then authorities had made illegal or irregular appointments even then the petitioners cannot be held responsible for the same with these observations termination letters were set aside and petitioners were reinstated in services.
18. Same view has also been taken in 2004 PLC (CS) 992 (Pakistan State Oil Company Ltd. v. M. Akram Khan and others) that:- "It is well-settled by now that the principle of natural justice is attracted in the proceedings whether judicial or administrative if it result in consequence affecting "the person or property or other right of the parties concerned". Though the principle , of master and servant was applicable yet this. Court in the case of Mrs. Anisa Rehman v. PIAC and others (1994 SCMR 2232) has held the action of the Corporation violating the principles of natural justice as without lawful authority and of no legal consequences. The principle of audi alteram partem was introduced in this case. This principle is being reiterated by this Court in various other cases such as Pakistan and others v. Public-at-Large and others (PLD 1987 SC/Shariat Appellate Bench 304) and PIAC through its Chairman and others v.
19. Nasir Jamal Malik and others (2001 SCMR 934). In the case of Pakistan State Oil Co. Ltd. Referred (supra), it has been categorically held that even in case of trainee or a probationer, if his services are terminated on grounds of mala fide in law or fact,' they are entitled to show-cause notices not on the basis of principles of natural justice but on the ground that the authority concerned has abused the power vested in it."
20. Next highlighting mala fide of respondents a clipping of daily "Dawn" of Monday dated 7.4.2008 has been placed on record to show that in spite of fact that on 7.4.2008 University was closed but just to facilitate subsequent comer Professor Dr. Syed Irtifaq Ali on the post of Director General, termination order of petitioner was issued on a notified holiday.
21. In reply it is argued that, no doubt on 7.4.2008 University was closed but only for academic purpose and the administrative work was going in routine, therefore, issuance of office order on 7.4.2008 neither is illegal nor can be based on any mala fide reason.
22. Minutes of the meeting of 2.5.2008 further show that when financial and administrative problems during the period of petitioner as Director General of the Institute were taken up in the meeting Dr. Syed Qasim Mehdi the petitioner was directed to leave the room and after taking final decision Chairman allowed the petitioner to present his submissions. As per minutes he spoke for-a few minutes and left the room. Submissions made by him have not been placed in the minutes, however, it appears that as petitioner did not agree to resign at his on therefore, he was relieved from the responsibilities as Director General of the Institution with immediate effect.
23. The concept of natural justice is not limited to the proceeding initiated before judicial or quasi:judicial authority but it extends to those authorities who have been empowered by Statute to decide and determine the respective rights of parties. So if, once an employer itself framed rules for its domestic purpose, is bound to follow the same. Any beviation from such rules and regulations would amount to violate the principles of natural justice.
24. Record reveals that main allegation against the petitioner was of dissatisfaction of members of governing council on appointment, financial expenditure and disposing of valuable books to "Raddi Paperwala", but undisputedly: after leveling, these allegations neither any show-cause notice was issued to the petitioner nor any enquiry was conducted nor any detailed statement of allegation in the form of charge-sheet is appearing to show that any fair opportunity was provided to petitioner to defend this case.
25. Only statement that has come on record is that when in a meeting of 2.5.2008 he was conveyed about decision of his removal from post of Director General, he "spoke for a few minutes and left".
26. Even the details of his submission are not on record to ascertain the real facts.
27. In such circumstances reference of an unreported judgment of Honourable Supreme Court of Pakistan in C.A.. No. 1437/1999 observing that:- "Removal depends upon the discretion of the appointing authority, which, of course, shall be exercised judicially and bona fide, It is a wrong impression that in case of tenure appointment the incumbent cannot be removed till expiry of stipulated period. He can be removed at time, if the circumstances so justify, and this shall be determined by the appointing authority, It is true that the appointment of the appellant was under the provisions of Section 27 of the Act, but the terms and conditions of his service are not governed by any Statute or rules and regulations made in this behalf." would be relevant, expressing the exercise of discretion judicially and bona fide, which in absence of any fair enquiry is missing in the present case.
28. Natural justice requires that a person must be allowed an adequate opportunity to present his case where certain interests and rights may be adversely affected by a decision maker.
29. Particularly an administrative decision must be based upon logical proof and material evidence.
30. In view of the foregoing reasons, we hereby allow this petition and direct th respondents to*reinstate the petitioner in the institution without any failure.