' JAMAL KHAN MANDOKHA41.4-1.--- Facts of the case are that the petitioner was serving, as a Regional Director, in Allama Iqbal Open University, Campus at Quetta ("the University"). On an allegation of corruption, the Competent Authority of the University initiated an enquiry against the petitioner, wherein he was held responsible for an attempt to embezzle an amount of Rs,38,380 (Rupees Thirty Eight Thousand, Three Hundred and Eighty only). The Inquiry Committee submitted its report on 5th March, 2003, and recommended compulsory retirement of the petitioner, but no order was passed thereon. It is important to mention here that after almost a year, fresh inquiry was conducted against the petitioner, which submitted its report on 20th June, 2007 and on the basis of its recommendation, the Competent Authority through an order dated 20th July, 2007, imposed a major penalty of compulsory retirement upon the petitioner. Feeling aggrieved, the petitioner preferred an appeal on 4th August, 2007, before the Executive Council of the University under section 10 of the Removal from Service (Special Powers) Ordinance, 2000 ("the Ordinance"), read with section 31 of the Allama Iqbal Open University Act, 1974 ("the Act"). The Executive Council constituted a Committee, consisting upon three members, and assigned power to hear the appeal and referred the same to it, but the same could not be decided despite a lapse of considerable time, therefore, the petitioner filed this petition. During pendency of the petition, the Executive Council decided the appeal of the petitioner on 28th September, 2009 ("the impugned order"), copy whereof has been placed on the record. At the request of the learned counsel for the petitioner and with consent of the counsel for the respondent, the petition was amended on 22nd September, 2011, through which, the impugned order has been assailed.
2. The learned counsel for the petitioner stated that since the University is a statutory body, therefore, under Article 199 of the Constitution, this Court can issue a writ against the respondents, as prayed for. The learned counsel contended that the impugned order is without jurisdiction, as it was passed by a Committee, instead of the Executive Council, which is empowered by section 31 of the Act. He further stated that even otherwise, it is .a mandatory requirement that the appellant should be provided an opportunity of hearing while deciding the appeal, but in the present case, the appellant has not been provided an opportunity, which is contrary to the provision of Article 10- A of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), and the Act. He lastly argued that from the inquiry report, there is no evidence to prove the allegation against the petitioner, therefore, the order impugned is illegal.
3. The learned counsel for the respondents raised an objection that the petition is not maintainable against the University, as it is a body corporate and there is a relationship of master and servant between the petitioner and the University. He added that the final order was passed by the Executive Council and the report, submitted by the Committee, does not amount to a decision.
According to him, the petitioner was provided proper opportunity of hearing and thereafter, the Executive Council passed the impugned order on the basis of the report of the Inquiry Committee, which is just and proper, and no illegality or irregularity has been pointed in the same.
4. We have heard the learned counsel for the parties and have gone through the record. Before dilating upon merits of the case, we would like to decide the objection so raised by the learned counsel for the respondents with regard to maintainability of the Constitutional Petition. It is the responsibility of the Government to provide education to the people of Pakistan, as provided by sub-clause (d) of the Article 38 of the Constitution, therefore, in the year 1974, an Act was promulgated by the Parliament, called as the People's Open University Act, 1974. Pursuant to section 3 of the Act, a People's Open University was established, which was subsequently renamed as Allama Iqbal Open University. President of the Islamic Republic of Pakistan is its Chancellor, who is the appointing authority of a Vice-Chancellor of the University. To run the internal affairs of the University, the following Authorities have been described by section 17 of the Act, which is reproduced as under:--- "(i) the Executive Council;
(ii) the Academic Council;
(iii) the Faculties;
(iv) the Committees of Courses;
(v) the Selection Board;
(vi) the Committee for Research and Educational Technology;
(vii) the Finance Committee;
(viii) the Academic Planning and Development Committee; and
(ix) such other authorities as may be prescribed by Statutes."
' The Executive Council consists of different members, including a Secretary, Ministry of Education, Government of Pakistan, who participates in the affairs of the University on behalf of the Federal Government, whereas a Member of the National Assembly, to be nominated by its Speaker, represents the Federation, as members of the Executive Council. The University Grants Commission ("UGC"), which is being established by the Federal Government, affiliates, supervises and vides funds to the universities in the Country. So, undoubtedly, the University, being creation of an Act of the Parliament, as such, is a statutory body. The University, by providing education to the people of Pakistan, is performing its function, in connection with affairs of the Federation.
5. Article 199 of the Constitution prescribes the jurisdiction of the High Court, which is reproduced herein-below:--- "199. Jurisdiction of High Court.-- (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,---
(a) on the application of any aggrieved party, make an order---
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required be law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order---
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an lawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the unforcement-of any of the Fundamental Rights conferred' by- Chapter 1 of Part II."
' The word 'person' used in the above-referred Article, is in the most ordinary contacts, used for a group. of people, body authority etc thus, a person includes a University, its Vice-Chancellor and its Authorities as well. Since the University performs its functions, in connection with the affairs of the Federation, therefore, a High Court, under Article 199 of the Constitution, can exercise a power of a judicial review, pertaining to matters of the University, hence a Constitutional Petition lies against it.
6. Now considering the service structure of the ministerial staff, academic staff and other employees, admittedly they are in the employment of a statutory body, therefore, are not the members of All-Pakistan Service ("APS"), nor of a Civil Service of the Federation or a Province Service. The University has its own Act, pursuant to which, a person is employed and his/her/their services are being governed by its own Efficiency and Discipline Rules. Any disciplinary action taken or order passed against an officer, academic staff or other employee of the University, is appealable before the Executive Council under section 31 of the Act. The bar contained in Article 212 of the Constitution, does not apply to the service matters of the University. It is a fact that against an order of the appellate authority, no remedy has been provided by the Act, therefore, under Article 199 of the Constitution "a High Court may if it is satisfied that no other adequate remedy is provided by law", can entertain a Constitutional Petition against an order of the appellate authority of the University, consequently the objection so raised by the learned counsel for the respondents is overruled.
7. As far as, merits of the case are concerned, it is a fact that the petitioner filed an appeal against the order of his compulsory retirement, passed by a competent authority, before the Executive Council, which in its 86th Meeting, held on 22nd September, 2007, constituted a Sub-Committee to consider the appeals of the university employees, including the petitioner, against penalties imposed upon them, on various charges. The Committee consists upon a Chairman, two members and a Secretary. Section 31 of the Act, provides a forum of appeal, which is reproduced herein- below:--- "31. Appeal to and review by the Executive Council.--- (1) Where an order is passed punishing any officer (other than the Vice-Chancellor), teacher or other employee of the University or altering or interpreting to his disadvantage the prescribed terms and conditions of his service, he shall, where the order is passed by the Vice-Chancellor or any other officer or teacher of the University, have the right to appeal to the Executive Council against the order, and where the, order is made by the Executive Council, have the right to apply to that Authority for review of that order of appeal to the Pro-Chancellor.
(2) The appeal or application for review shall be submitted to the Vice-Chancellor who shall lay it before the Executive Council, as the case may be, the Pro-Chancellor with his comments.
31(3) "No order on an appeal or application for review shall be passed without affording to the appellant or applicant, as the case may be, an opportunity of being heard". "
' The Executive council is performing its duties in two capacities, i.e, to exercise powers, as provided by section 19 of the Act, and to be an appellate Authority in accordance with section 31 of the Act. It can delegate any of its powers prescribed by section 19 of the Act, to an Authority, an Officer, a Committee, or a Sub-Committee, but the power to hear an appeal by it under section 31 of the Act, cannot be delegated to anybody. Under such circumstances, none, except the Executive Council can hear and decide an appeal of any officer, teaching staff or any other employee of. the University. In the present case, though, the Executive Council in its meeting, held on 22nd September, 2007, constituted a Sub-Committee to look into the appeals of the employees, including the appeal of the petitioner, regarding their disciplinary matters, but admittedly, no appeal was decided by the said Committee. It acted just as an Inquiry Committee and submitted its recommendations to the Executive Council, which finally dismissed the appeal of the petitioner.
Thus, it cannot be said that the appeal was decided by the Committee, rather it was decided by Executive Council, consequently the impugned order, passed by it, was within its jurisdiction.
Moreover, subsection (3) of section 31 of the Act, provides that "No order on an appeal or application for review shall be passed without affording to the appellant or applicant, as the case may be, an opportunity of being heard", but admittedly, the Executive Council, without considering the evidence and the material available on the record and without providing an opportunity of hearing to the petitioner, simply relied upon the recommendation of the Committee and decided the appeal, which is a violation of the law.
8. Besides, perusal of the first inquiry report dated 5th March,. 2003, the second report by another Committee dated 20th June, 2007, and the recommendation of the Sub-Committee, constituted by the Executive Council, does not reveal any mens rea on the part of the petitioner. The only allegation levelled against him was that he forwarded the vouchers, amounting to Rs,38,380, submitted by a part time tutor, who performed his duty and was entitled for the T.A/D.A. It is a fact that no amount was drawn on the basis of the said vouchers, therefore, no loss has been incurred to the University. Even, the only allegation that the petitioner did not verify the vouchers, has not been established. Both the Inquiry Committees and the Sub-Committee have failed to collect an evidence against the petitioner showing an attempt to embezzle the alleged amount, therefore, the charge framed against him stands disproved. Under such circumstances, imposing a penalty of compulsory retirement by the Executive Council was unjustified, consequently the impugned order is not sustainable.
' Thus, in view of what has been stated and discussed hereinabove, the petition is allowed. The impugned order dated 28th September, 2009, passed by the Executive Council of the University, is set aside. It is not proved that after the impugned order, the petitioner was indulged in any profitable business or service. He has faced the inquiries and agony of the litigation since 2003 and 2007 respectively, therefore, the service of the petitioner is ordered to be restored with all back- benefits, with effect from the date, his service was discontinued.