WALL AHMED KHAN vs GOVERNMENT OF SIND AND 6 OTHERS

' Ajmal MIAN, J.-(1) The petitioner through this petition has prayed for the following reliefs: (i)

"This Hon'ble Court is pleased to declare that the petitioner is governed by the Rules set out in para. 3 of this petition and that the amendments made by the Chief Engineer of the K. D. A. In the Recruitment Rules, 1953, vide his Office Memo. No, F. 1 (42)-Estt.II./60 dated 3th/9th July, 1960 (Annexure 'G') are without jurisdiction or lawful authority and are null and void.

(ii) This petitioner further prays for direction from this Hon'ble Court to be addressed to Respondents Nos. 1 and 2 requiring them to restore to the petitioner his rank, status, cadre and pay scale to which the petitioner could be entitled but for the unlawful amendments made in the Recruitment Rules by the Chief Engineer, K. D. A. In July, 1960 and to provide to the petitioner all such benefits and advantages as the petitioner would be entitled to but for the said unlawful amendments in the Recruitment Rules.

(iii) The petitioner prays for direction addressed to the respondents and 2 to implement the assurance given to the petitioner by the respondent No, 2 (Annexures "F", "H" and "N") to this petition.

Lastly, the petitioner prays for an order declaring the charge sheet dated 5th January, 1977 (Annexure `Z-2') and the proceedings initiated thereunder against the petitioner to be without lawful authority and also mala fide.

(iii-A) The petitioner prays for a declaration that the order dated 25th August, 1980 (Annexure Z/12) removing the petitioner from the service of the K. D. A. Is ultra vires, illegal, mala fide and without lawful authority and the petitioner be directed to reinstate-in service with all due seniority, rights and back benefits.

(iv) The petitioner prays for such other or alternative reliefs as to this Hon'ble Court may, in the circumstances of the case, appear just and proper and

(v) Costs of the petition are also prayed."

2. (a) The brief facts leading to the filing of the above petition are that the (petitioner entered into the service of the then Karachi Joint Water Board (hereinafter referred to as the K.J.W.B.) a statutory body constituted under the Ordinance XIII of 1949. He continued to serve K.J.W.B. Until the same was merged with the K.D.A. Constituted under the President's Order V of 1957, whereby the services of the petitioner were transferred w,e,f, 14th March, 1958 on the same terms and conditions, benefit and privileges, which he was enjoying. It has been averred by the petitioner, that on 16th July, 1957 the petitioner was specially deputed by the Finance Adviser of the K.J.W.B to scrutinize and to report as to the irregularities and fraud alleged to have been committed by the staff of the Pay and Account Office of the Circle Division, in respect of the purchases made by them. As a result of the scrutiny of the record, it was allegedly found that huge amount had been misappropriated. It has been further averred that the respondent No, 3, which is presently working as the Director (Finance and Accounts) K.D.A. Along with other officers and staff were found involved in the aforesaid alleged irregularities. In consequence of the submission of the report by the petitioner, the persons involved were sent up for trial in the Anti-Corruption Court, but during the trial, one of the main co- accused had died. After that another co-accused, namely, Syed Ibne Ali Zaidi, presently working as a Superintendent in the Accounts Department moved them. Supreme Court of Pakistan for the abashment of the proceedings and, thereafter, the proceedings were quashed. It has also been averred that in this connection the services rendered by the petitioner were commended by the relevant authorities and the petitioner was issued a letter of appreciation dated 6th January, 1958.

It has been further averred that the Officers, who were involved in the aforesaid embezzlement were inimical to the petitioner and this animosity grew with the lapse of time and they exerted influence and presume to spoil the service record of the petitioner. Consequently the petitioner was involved in the month of November, 1959 in the alleged false and fabricated case resulting in the suspension of the petitioner. But eventually the petitioner was honourably acquitted line the year 1969. It has also been asserted that during the period which lapsed between the date of suspension and the re-instatement to the post of Superintendent, Circle Office, the respondent No, 2, that is, the K.D.A. Appointed and promoted certain Officers to various posts allegedly in flagrant contravention of Recruitment Rules then in force in the K.D.A. It has also been averred that the petitioner made representations against the aforesaid appointments and promotions effected by the Authority, but in reply he was informed by the respondent No, 2 through his letter dated 1st March, 1960 that his case was not considered, as he was under suspension and because of the pending Court proceedings against him. He was also informed that upon the termination of the Court proceedings in favour of the petitioner and re-instatement, his case would be considered.

(b) It has been further averred that the Chief Engineer (Water) K.D.A. Vide his Memo. No, F- 1(42)/Estt.-II/60 dated 8th/9th July, 1960 unauthorisedly and illegally amended the Recruitment Rules, 1953 by his executive order in spite of the restrictions imposed by Article 120(2)(ii) of the K.D.A.

Order, whereby the post of Superintendent held by the petitioner on permanent footing with effect from 7th November, 1958, was downgraded and brought below the rank, category, status and petition of the Office assistant, with the result that a new channel of promotion to the post of Superintendent Circle Office, and that of the Office assistant was prescribed. In pursuance of the aforesaid unlawful amendment of the Rules the petitioner was offered a post of office assistant and that the Deputy Secretary (Establishment K.D.A. By his office memorandum No, F-II- Estt.-12/(2)/62/Volume-1/7572 dated 22nd August, 1962 informed the petitioner that he would be entitled to the pay scale of Superintendent with effect from 7th November, 1958 as prescribed by the Government of West Pakistan and also to the promotion to the post of Assistant Secretary with effect from 16th January, 1960, in case the amendment made by the Chief Engineer, K.D.A. Was not acceptable by the Central Government. However, the petitioner declined the aforesaid offer. The question of fixation of the petitioner's pay and his representations against the aforesaid illegal amendment of the Rules by the Chief Engineer came up for consideration from time to time before the various authorities, who appreciated the services rendered by the Petitioner but expressed their liability to grant the petitioner lawful dues and promotion because of the amendment in the Recruitment Rules by the Chief Engineer. The petitioner, also filed a representation before Governing Body, K.D.A. On 31st July, 1968 which was rejected vide resolution No, 56 dated 11th August, 1969 in the following terms "To reject the representation put forward by the Circle Office Superintendents to further revise, their pay scale. They, however, have the option to retain their old Sind Government scale, if they are at a loss in adopting the new scales."

' It has been averred that since the petitioner was aggrieved by the aforesaid resolution of the Governing Body, denying him his entitlement to the proper scale of pay the post of Superintendent, he on 22nd July, 1970 preferred an appeal to the respondent No, 1, which ultimately came up before the Secretary, Local Government. The above appeal was duly entertained, processed and parawise comments were sent for from the respondent No, 2 and that while submitting the parawise comments to certain documents were discussed by the respondent No, 2, but the Government pointed that the said documents were available on the departmental files. Eventually the above appeal came up before the Secretary, Local Self-Government Mr. Mazhar Rafi, who finally passed the order holding that appeal did not lie to the Provincial Government, which decision was conveyed to the petitioner on 26th April, 1975 vide letter dated 20th March, 1975.

(c) The petitioner on 20th April, 1975 submitted a representation to the Chief Secretary of the respondent No, 1 against the decision of the Secretary (LG). Thereupon, the Chief Secretary called for parawise comments from the Secretary (LG). The petitioner made another representation on 10th July, 1975 to the Chief Secretary of the respondent No, 1 followed by an application on 22nd July, 1975 and finally on 26th February, 1976. The petitioner also submitted a protest petition (against the order of the Secretary (LG) in respect of the long outstanding grievances to the authorities, namely, Government of Sind, Chief Minister of Sind and Minister for Local Government of Sind which reached the Secretary (LG), who in turn called upon the petitioner to explain, as to why he had submitted his protest direct to the authorities and that how the petitioner had obtained the Government and the K.D.A. Correspondence. In response to the above notice, the petitioner submitted the explanation dated 4th May, 1976, while the matter was still pending with the Provincial Government, the petitioner was served with an office memo. Dated 8th November, 1976, whereby he was promoted to the post of the Assistant Accountant, and was informed that non- acceptance of the post would be indicative of his mala fide and that he would be transferred to other equivalent post if the petitioner declined to accept. The petitioner in his representation to the higher authorities also pleaded mala fide against the officers, Aqeel Ahmed Siddiqui (respondent No, 5). Mohammad Manzoor Ahmed, Director (Finance Accounts) respondent No, 3 and Saghir Ahmed Chishti, Deputy Chief Administrative Officer, K.D.A. (respondent No, 4) who allegedly attempted to harm the petitioner for ulterior motive. Subsequently, on 7th January, 1977 the petitioner was served with a charge sheet dated 5th January, 1977, together with the statement of allegations of the alleged charge of misconduct by the Director-General K.D.A., who also appointed an enquiry Officer to hold formal enquiry against the petitioner and that the grounds upon which the charge sheet was based were that the petitioner submitted his protest petition dated 26th June, 1976, direct to the authorities, namely Government of Sind, Chief Minister of Sind, Minister of Local Bodies, Government of Sind. Upon receipt of the above charge sheet, the petitioner filed the above writ petition inter alia challenging the above charge-sheet on the grounds mentioned therein, which included the competency of the Director-General to issue the charge sheet, or to appoint an Enquiry Officer. It may be pertinent to mention that upon filing of the above petition this Court by a consent order dated 27th May, 1977 ordered that the enquiry proceedings against the petitioner may proceed, but no adverse order shall be passed. However, while the above petition was pending disposal the respondent No, 2 on or about 20th June, 1979 served upon the petitioner with a fresh show cause notice against the allegations listed in the memorandum attached to the said show cause notice. It has been averred that the second show-cause notice served for the different language, in which it was couched, had embodied materially the same allegations, which were the subject matter of the first show cause notice dated 5th January, 1977. Upon the receipt of the above second show cause notice the petitioner filed Misc. Application No, 2566/79 for an ad interim injunction for restraining the respondent No, 2 from giving any effect whatsoever, to the said show cause notice of which a notice was ordered by this Court to the respondent but the above application was not heard for one reason or the other and that the above application was fixed for hearing alongwith the petition for regular hearing. It has been further averred that when the case came up for hearing alongwith the above application, one of the dates, the respondent requested and obtained an adjournment. Thereupon, the learned counsel for the petitioner invited the attention of the Court to the Order dated 29th October, 1979 and also to the subsequent orders and also expressed his apprehension that unless proceeding in respect of the second show-cause notice would not be stayed the petitioner might be removed from service. Thereupon, the Court had allegedly observed that they did not believe that the second respondent would be so indiscreet. While the above constitutional petition was pending, the petitioner received an Office memorandum dated 25th August, 1980 informing him that his reply to the show cause notice dated 20th June, 1979 had been found unsatisfactory and that he has been removed from the K.D.A. Service with immediate effect. Upon the receipt of the above memo the petitioner applied for the stay of the operation and also requested for the amendment of the petition. The petitioner's prayer for permission to amend the main petition was allowed and in consequence thereof the amended petition was filed on 22nd September, 1980 wherein the aforesaid removal order was also challenged.

3. (a) The respondent No, 2 filed a counter-affidavit dated 14th November, 1977 to the main petition.

However, upon amendment of the petition an additional counter-affidavit dated 12th January, 1981 was also filed on the aforesaid date. The respondent No, 2 in their aforesaid counter affidavits have averred that the decision of the petition requires consideration of complicated and disputed questions of fact which cannot be decided without oral and/or documentary evidence and that the petitioner ought to have filed a civil suit before Civil Court instead of invoking the constitutional jurisdiction of the Court. It was also averred that in fact the petitioner had filed the Civil Suit before a Civil Court bearing No, 470/66 on 23rd October, 1966 seeking a declaration that he was entitled to be promoted to the post of Head Clerk from 4th December, 1952, to the post of Assistant Circle Office Superintendent from 30th May, 1953 to the post of Circle Office Superintendent from 7th November, 1958 and to the post of Superintendent, Chief Engineer's Office from 20th April, 1966, and that the petitioner had further sought a mandatory injunction in the aforesaid suit for a direction that he should be promoted to the post of Superintendent, Chief Engineer's Office or its equivalent post. The above suit was dismissed somewhere in 1971/1972 and that the petitioner was not entitled to file petition on similar foundations which were the basis of the suit. It was also averred that the petitioner was facing departmental enquiry for misconduct, for illegality having access to the possession of the confidential Government documents. It was further averred that at the time of merger of KJWB with the K.D.A. The petitioner was holding the post of provisional storekeeper and that the petitioner was never promoted as Superintendent and that no cadre/post of Superintendent Circle Office, existed with neither the K.D.A. Nor it exists at present. It was averred that the petitioner was promoted as Circle Office Superintendent on 20th February, 1961. The Chief Engineer (Water) K.D.A. Was neither competent nor he actually amended KJWB non-technical (nongazetted) Staff Recruitment Rules,1953, as framed by the Government or that because of the above amendment another channel of promotion to the post of Superintendent Circle Office, assistant were prescribed. The post held by the petitioner was of the Circle Office Superintendent, which was for below the post of Superintendent and even one step below the post of assistant, according to KJWB Rules. It was also denied that the petitioner was denied the promotion because of the unlawful amendment in the year 1960 by the Chief Engineer in the Recruitment Rules. It was reiterated that no amendment was made. It was also averred that no appeal was competent under the provisions of KJWB appeal Rules of 1956 or of 1953 after the merger of KJWB with the K.D.A., nor any appeal was competent to the Chief Secretary. It was also averred that the petitioner was rightly called upon to show as to how he laid his hand over the documents which he could not have access of possession of. In para. 45 of the first counter-affidavit, it was averred that the petitioner in Suit No, 470/66 did not refer to the so-called documents filed as Annexures A to G and I to N, nor raised any plea on the basis of the aforesaid documents, It was also averred that so such documents exist or existed.

(b) in the additional counter-affidavit reference to the various representations made by the petitioner directly to the higher authorities has been made. It has been averred that the petitioner in his aforesaid appeals/representations gave details of certain confidential correspondence between the Secretary, Local Government and the KDA the copies of which were not endorsed to the petitioner and also made reference to certain other documents, to which he was not expected to have access and that he made certain false and frivolous and mischievous allegations against the senior Officers of the KDA. It has been denied that the second show-cause notice relates to the same allegations, which were the subject matter of the first charge sheet. It has also been averred that the second show cause notice was based on the allegations, which had no connection with the accusations made in the first charge-sheet. It has been denied that the petitioner services were governed exclusively by the KJWB Rules. It has further been averred that the rules framed under KJWB Ordinance, 1949, were saved so far as these were not inconsistent with the KDA Order, 1957 and that the services of the petitioner were governed by the KDA Order and the service regulations made thereunder. It has been further averred that the petitioner was holding the post of Circle Office Superintendent and his grade was equivalent to Gr. 10 of the revised National Pay Scales, 1977, and that the competent authority to take action against the Petitioner was the Director-General under Article 8 of the KDA Order, 1957, as amended, and that the allegation that the action ought to have been taken by the Chairman of the Department is misconceived and untenable. It has also been averred that under Article 8 (3), the appeal lies the governing body of the KDA against the decision of the Director-General and that the petitioner having not availed of the remedy available to him is not entitled to invoke the constitutional jurisdiction. It has been averred that the question of the petitioner's promotion was the subject-matter of suit No, 470/66 filed by him which was later dismissed and that many pleas now raised in the Petition were not taken by the petitioner in the suit.

4. (a) In support of the above Petition, Mr. Mohd. Ali Sayeed learned counsel for the petitioner has made the following submissions:-

(1) That in view of the statement made by the respondent No, 2 in para. 15 of the counter-affidavit to the effect that the Chief Engineer (Water) had not amended the Recruitment Rules in 1960 and that he was not competent to make any such amendment, the petitioner is entitled to all the benefits/promotions, which were withheld on the assumption that the above Recruitment Rules were amended by the Chief Engineer in 1960.

(ii) That the first charge-sheet dated 5th January, 1977 was ex facie without jurisdiction' i,e,, quoram non judice inasmuch as the Director-General, KDA had no power to issue the above charge-sheet as the Petitioner continued to be subject to the KJWB Rules, 1956.

(iii) That the show cause notice dated 12th June, 1979 also issued by the Director-General, KDA is also without jurisdiction for the aforesaid reason.

(iv) That even otherwise, the aforesaid second show-cause notice dated 20th June, 1979 was issued mala fidely more or less on identical allegations, which were the subject-matter of the first charge-sheet with the object to frustrate the above petition and the stay granted by this Court and therefore, any action in pursuance thereof is void and Without jurisdiction.

(v) That the dismissal of the petitioner without providing a reasonable opportunity to the petitioner to meet the charges is against the principle of natural justice.

(vi) That in view of the fact that the respondent No, 2 is a local authority a petition for re- instatement in service against the aforesaid respondent is competent in view of the language employed in Article 199 of the Constitution, particularly, because of the definition of the word 'person' given therein.

(vii) That in any case the petitioner would be satisfied if this Court would only give a declaration to the effect that removal of the petitioner from service is without lawful authority.

(b) On the other hand, Mr. Ali Ahmed Fazeel, the learned counsel for the respondent has made the following submissions:-

(i) That the Petition suffers from laches inasmuch as the alleged amendment in the Recruitment Rules was made by the Chief Engineer in 1960.

(ii) That the petitioner after having filed Suit No, 470/66 is the Court of IIIrd Civil Judge, at Karachi in respect of the alleged cause of action allegedly accrued to the petitioner on account of the degrading of the post of Superintendent in Circle Office, no relief can be granted in respect thereof in the above petition.

(iii) That under Article 120 (2) (ii) read with Article 8 (2) of the KDA Order only those rules of the Karachi Joint Water Board Rules, 1956, were saved, which were not inconsistent with the provisions of the aforesaid Order, and therefore, the Director-General of the KDA was competent to issue the charge-sheets and show-cause notice to the Petitioner in view of Article 8 (2) of the KDA Order.

(iv) That no writ can be filed against a show-cause notice.

(v) That since the Petitioner was not holding a public Office a writ of mandamus for restoration of the Office is not competent.

(vi) That the action of issuing of the above show-cause notice dated 20th June, 1979 with the statement of allegations was not mala fide.

(vii) That in view of Regulation No, 71 of the KDA Employees Service Regulations, 1973, it was not incumbent to hold any enquiry before passing of the impugned order of dismissal.

(viii) That the Petitioner has not availed of alternate remedy by way of appeal against the dismissal order and, therefore, the Petition is not competent.

5. (a) Before dealing with the contentions of the learned counsel for the parties on merits, it may be appropriate to take up the question of 'aches. IL this regard it may be noticed that the petitioner has claimed various reliefs in be Petition. In my view the doctrine of laches cannot be pressed into service in respect of the reliefs pertaining to the first charge sheet and the second charge sheet show cause notice, and the order of dismissal from the services, whereas the petitioners' reliefs in respect of the alleged illegal amendment of the Recruitment Rules in 1960 by the Chief Engineer prima facie seem to suffer from laches. It may be pertinent to observe that the alleged amendment in the Recruitment Rules was made by the Chief Engineer on 8th July, 1960 (annexure G to the Petition). The petitioner's various representations were rejected prior to the filing of the suit in 1966. However, it has been urged by Mr. Muhammad Ali Sayeed that the superior Courts have overlooked the delay of number of years in cases in which justice so demand.

' In support of his contention on the question of laches. Mr. Fazeel has referred to the case of Shaikh Shaida I. Rasul Siddiqui v. Chief Engineer, Irrigation Department, West Pakistan and another (1) and the case of Muhammad Latif v. Settlement Commissioner and others (2). Whereas Mr. Muhammad Ali Sayeed has referred to the case of Pakistan v. Shaikh Abdul Hameed (3), the case of Chairman, District Screening Committee v. Sharif Ahmad Hashmi (4), the case of MI s. Lever Bros. (Pak.) Ltd., Karachi v. Market Committee, Rahimyar Khan (5) :-

(1) With reference to 1960 Lahore case, it may he observed that the petitioner in the aforesaid case was a Zilladar in the Irrigation Department of the Government of West Pakistan. The Petitioner's services were terminated under the Public Conduct (Screening) Ordinance, 1959, on the basis of the recommendation made by the Screening Committee in the meeting held on 30th March, 1959.

The appeal filed against the above recommendation was rejected by an order dated 29th June, 1959. After that the petitioner continued to make representations. However, eventually, he filed a Writ petition in 1967. The petition was opposed by the respondents and inter alia it was urged by the respondents that the Petition suffered from laches, whereas was contended by the Petitioner that the last representation made by him was rejected on 15th July, 1967 and soon thereafter he filed the writ petition. It was held by the Lahore High Court that since there was no provision for appeal against the order passed by the appointing authority, the time taken on appeals and petitions after the passing of the order of retirement was not condonable and, therefore, the Petition suffered from laches, and, consequently, it was dismissed.

(ii) Referring to 1975 SCMR, it may be stated that in the above case the petitioner exhausted the remedies provided for under the settlement laws on 15th February, 1962, but filed a writ petition on 13th December, 1965. The explanation of the above delay advanced by the Petitioner was that he had approached the President of Pakistan on these occasions beginning from 9th May, 1962 ending on 23rd July, 1964 and that the above representations being referred to the Settlement Authorities who passed the final determination order on 27th September, 1965. However, the Petition was dismissed on the ground of laches by the Lahore {{FOOT NOTE}}

(1) PLD 1969 Lah. 313 (2) 1975 SCMR 217

(3) PLD 1961 SC 105 (4) PLD 1976 SC 258

(5) PLD 1980 B J 23 {{FOOT NOTE}} ' High Court. The petitioner filed the petition for leave in the Supreme Court, which was also declined. It was held that the petitioner having exhausted his remedies under the Settlement laws on 15th February, 1962 was not justified in waiting till 13th December, 1965 for filing writ petition.

(iii) As regards the case reported in 1961 SC, it may be observed that in the above case the respondent filed a petition in the High Court for writ of mandamus for directing the Government to restore the Petitioner to his seniority on the basis of his continuous services since 27th May, 1954, which was allowed. The Government of Pakistan being aggrieved by the above judgment of the High Court filed an appeal. It was urged by the learned counsel for the State before the Supreme Court, that the writ could not have been issued as it suffered from laches, inasmuch as the cause of action accrued to the petitioner/respondent in 1949, whereas the Petition was filed in 1957. It was observed by the Supreme Court that the petitioner/respondent was not lacking in diligence in making the representations throughout the period from 1949, when he suffered the injury upto 1957 when he filed the Petition in the High Court. The delay of about 8 years was overlooked.

(iv) Whereas the facts of the case reported in 1976 SC, 258 were that the respondent/petitioner filed a Writ Petition against the termination of his services on 3rd December, 1953 on the ground of his failure to pass the departmental examination within the prescribed period. The petition filed by the respondent/petitioner was dismissed in limine on 8th November, 1971 on the ground of laches.

However, a Division Bench of the Lahore High Court reversed the above judgment and granted the relief. It was conceded before the D. B. By the learned counsel for the State that the retirement order dated 30th June, 1959 was bad in law, but the writ was opposed on the ground of laches. It was urged by the learned counsel for the respondent/petitioner that the respondent/petitioner made the various representations and in the course of these representations genuine hopes were created in him that justice would be done to him inasmuch as the then Governor of the Province granted him an interview on 5th March, 1962. The same ground was urged before the Supreme Court. While commenting upon the above argument, it was observed by the Supreme Court that it cannot be controverted that the respondent's writ petition suffered from inordinate delay and that ordinarily the writ should have been dismissed on the above ground, as was done by the learned single Judge, but because of the repeated representations made by the respondent. It was also observed by the Supreme Court that "no hard and fast rule can be laid down for condonation of delay and the question of sufficiency or otherwise of the cause is to be examined in the light of each case. There have been cases as happened in the case of Abdul Hameed where 8 years' delay was overlooked. On the other hand, there are cases in which few months delay was treated to be uncondonable.

' Reverting to the case reported in 1980 Baghdadul Jadid 23, it will suffice to observe that it was held by a learned single Judge of the Lahore High Court that delay per se is not a legitimate ground for dismissal of Writ Petition. However, delay coupled with conduct of the Petitioner amounting to estoppel may be uncondonable."

(b) From the above-cited and discussed eases the following principles are deducible :-

(i) That normally any or repeated representation/appeal not provided for under the relevant law filed by the petitioner will not justify the condonation of the delay in filing of a writ petition.

(ii) That in fit case if the facts of the case so justify, the Court may overlook the laches and may condone the delay for a number of years for the reason that the Petitioner was making serious efforts to get the grievances remedied by the authorities concerned.

(iii) That as a general rule it cannot be said that the delay per se itself is sufficient to dismiss the petition even if the facts of the case furnish sufficient justification to condone the delay or the facts do not indicate that the petitioner was negligent or had acquiesced to the illegal order/action.

(c) In the instant case, as pointed out hereinabove, the alleged amendment was made by the Chief Engineer illegally in 1960. From the facts brought on the record, it is clear that the Petitioner made numerous representations and one of such representation was rejected by the respondent No, 2's letter dated 24th September, 1964 (Annexure N), and after that he filed the aforesaid suit No, 470/66 on 23rd October, 1966. It is also apparent from the record that a joint representation made by the Superintendents of circle office was considered by the respondent No, 2's Governing Body and it was rejected through Resolution No, 56, dated 11th March, 1969. The appeal filed against the above rejection by the Governing Body was dismissed by the respondent No, 1 on the ground that the name was not competent. In our view the alleged cause of action accrued to the petitioner in respect of the alleged illegal amendment of the Recruitment Rules in 1960 and in any case prior to the filing of the above suit in 1966. The rejection of joint representation by the Governing Body of the respondent No, 2 or the rejection of the appeal by the respondent No, 1 against the rejection of the aforesaid representation by the governing body of the respondent No, 2 would not entitle the Petitioner to seek reliefs in respect of the above cause of action through the above writ petition, which was filed on 26th February, 1977 i. e. About 2 years after the rejection of the appeal by the respondent No, 1. (ii) Furthermore, we are not inclined to condone the delay as the facts of the instant case do not warrant as the Petitioner availed of alternate remedy in the form of suit about 15 years back which suit is still pending.

' We enquired from Mr. Muhammad Ali Sayeed, learned counsel for the Petitioner as to why the Petitioner has prayed for the same reliefs in the above writ petition in respect of the alleged illegal amendment in the Recruitment Rules, which he had prayed for in the above suit, his reply was that the file of the suit had become untraceable soon after the dismissal of the appeal by the appellate Court against the refusal to grant an ad interim injunction in favour of the petitioner by the Civil Judge. We further enquired from the learned counsel for the petitioner as to whether the petitioner had made any application before the learned Civil Judge concerned for tracing out the file of the suit or had he reported the matter to the District Judge for taking appropriate action, his reply was in the negative. However, we may observe that it is astonishing/shocking to note that the last order on the diary of the aforesaid Suit No, 470/66 is dated 10th October, 1960. It may be observed that Civil Miscellaneous Appeal No, 163/69 filed against the aforesaid interlocutory order was dismissed by be appellate Court on 18th November, 1970. It seems that after the dismissal of the above appeal no action was taken till the time we summoned the above suit file by our order dated 12th May, 1931. Since the petitioner has not shown that he was diligent in prosecuting the above suit, in our view the alleged reason that the file had become untraceable would not justify the filing of a petition for more or less same reliefs which have been sought in the suit in respect of the alleged illegal amendment in the Recruitment Rules. Since no circumstances, which warrant the condonation of the delay of more than one decade have been shown, the petition suffers from ladies in respect of the reliefs pertaining to the alleged illegal amendment in the Recruitment Rules.

6. (a) Reverting to the contention of Mr. Fazeel that the petitioner after having filed the suit in respect of alleged illegal amendment of the Recruitment Rules cannot maintain the above petition, it may be pertinent to observe that the parties to above petition are at issue on the question as to whether in fact any such amendment was made or not. From the correspondence on the record, it seems that the respondent No, 2 declined to grant certain benefits to the petitioner on the assumption that the Chief Engineer had in fact made amendments in the Recruitment Rules in 1960. Whereas the respondent No, 2 in para. 15 of its counter-affidavit filed through the respondent No, 5 has taken up entirely an inconsistent stand. The above para. 15 reads as follows :- "That I also deny the contents of para. 13 to the petition. I say that Chief Engineer (Water) K D A was neither competent nor he actually amended the K. J. W. B. Non-Technical (Non-Gazetted Staff Recruitment Rules, 1953 as frame) by the Government, It is also false that another channel of promotion to the post of Superintendent Circle Office and Assistant were prescribed, in such amendment. As submitted earlier no post of Superintendent, Circle Office ever existed. I further say that the post held by the petitioner was of Circle Office Superintendent which is far below the post/cadre of Superintendent and even one step below the post of Assistant according to K J W B Rules as originally framed by the Government. I further say that the petitioner did not refer to any such amendment in his suit No, 470/66 nor did he claim himself as Superintendent Circle Office which in fact never existed nor exists. Annexure G to the petition is also false and fictitious."

(b) The respondent No, 2 in para. 45 of their counter-affidavit have also denied the existence of Annexures A to G and Ito N. It was also urged by Mr. All Ahmed Fazeel that the alleged amendment in the Recruitment Rules made on 10th March, 1958 contained in Annexure K to the petition purporting to place on equal footing the superintendents in circle office to the Superintendents in the Secretariat in one cadre was also never made. If we would have been inclined to grant any relief in respect of the alleged illegal amendment in the Recruitment Rules made by the Chief Engineer in 1960, we were to resolve the above controversy and also the dispute about the existence or non-existence of the aforesaid annexures. However, since we are not inclined to grant any relief in respect of the aforesaid alleged illegal amendment in the Recruitment Rules, and since this may be an issue in the pending suit, we have refrained ourselves from expressing any opinion.

However, the question remains as to whether on account of the filing of the above suit, the petitioner is not entitled to claim any relief in the present petition in respect of the alleged illegal amendment of the Recruitment Rules in 1960. Mr. Muhammad Ali Sayeed has referred to the case of Salahuddin and 2 others v. Frontier Sugar Mills and Distrillery Ltd. (1), wherein the facts were that the petitioner/appellant had challenged the election of certain directors in a Joint Stock Company.

The petition was dismissed by the High Court, inter alia, on the ground that the petitioner/ appellant had already filed a suit on the same relief, which was pending. The Supreme Court while reversing the judgment of the High Court observed on the question of pendency of the suit as follows ;- "We now proceed to consider the question whether the High Court was in refusing relief on the ground that the appellants had already filed a civil suit on the same cause of action. Learned counsel for the appellants is right in pointing out that the learned Judges in the High Court overlooked the fact that in the Civil Suit the legality of the proceedings of the meeting held on the 15th June, 1972 was not under challenge, as the suit had been filed before the date of this meeting, with the object of restraining the defendants from holding the same. The suit, however, did not prove effective, as temporary injunction was refused by the trial Court only one day before the meeting was scheduled to be held. It would, therefore, appear that, on the factual plane, the suit filed by the appellants could not be regarded as an adequate alternative remedy.

(c) It may be noticed that from the above-quoted extract from the above-reported judgment, it is apparent that in the suit filed by the petitioner/appellant a temporary injunction against holding of the meeting was declined by the learned Civil Judge as a result of which meeting was held and the impugned resolution was passed. In this view of the matter it was held by the Supreme Court that the suit was not the adequate alternate remedy. From the above judgment of the Supreme Court it is clear that simplicitor filing of a suit may not be a bar to the filing of the writ petition. However, what is to be seen is as to whether the suit is an adequate alternate remedy in the circumstances of the case. If it is so, the writ will be barred. In the instant case the petitioner had prayed for the following reliefs in the aforesaid Suit No, 470/66.

"That the plaintiff is entitled to and prays for the following reliefs :-

(b) Assistant Circle Office Superintendent from 30th May, 1953 scale Rs, 180-20-300 ;

(c) Circle Office Superintendent from 7th November, 1953 Scale Rs, 225 -25-350 revised into Rs, 325-20-525 with effect from 1st December, 1962 ;

(d) Superintendent Chief Engineer's Office, from 24th April, 1966 Scale Rs, 450-20-650 revised with effect from 1st December, 1962."

' Whereas in the present petition in sub-paras. (1) (ii) and (iii) of para. 19 the quoted hereinabove in para. 1, the petitioner has prayed for more or less identical reliefs, which he has sought in the above-quoted para. Of plaint of the aforesaid suit. In our view the suit is an adequate alternate remedy for the reliefs in respect of the alleged amendment in the Recruitment Rules inasmuch as dispute in respect thereof involves determination of certain disputed questions of facts on which the parties are at issue as pointed out hereinabove.

5. (a) Reverting Mr. Muhammad Ali Sayeed's contention that the first charge-sheet dated 5th January, 1977 as well as show-cause notice dated 12th June, 1979 were ex facie without jurisdiction, inasmuch as the Director-General KDA had no power to issue the same, it may be pertinent to observe that the reliance has been placed on rule 16 of the Karachi Joint Water Board Rules, 1956, which reads as follows :- "16. Appointment, punishment and appeal.-(1) Subject to any rules for the time being in force, the power of making appointments and promotions to posts in the service of the Board, of granting leave to officers and servants holding such posts, of censuring, fining, withholding of increments or promotion reducing suspending, removing or dismissing such officers and servants for any breach of departmental rules or discipline or for carelessness, unfitness, neglect of duty or other misconduct, and of discharging such officers and servants from the service of the Board for any other reasons, shall be exercised by the under mentioned authorities.

(a) in the case of posts the monthly salary or the maximum monthly salary of which does not exceed five hundred rupees and Officers and servants holding such posts-the Chairman ;

(b) in the case of posts the monthly salary or the maximum monthly salary of which exceeds five hundred rupees but does not exceed thousand rupees and officers and servants holding such posts-the Board, subject to the previous sanction of the Central Government : ' Provided that a servant of the Central Government or any Provincial Government or a local authority whose services have been lent to the Board shall not be so punished except by an authority which would have been competent to inflict such punishment if his services had not been so lent, and the Chairman or the Board, as the case may be shall be entitled only to make a recommendation in that behalf to such authority (2) Against any order sub-rule (1) imposing any punishment on him, an officer or servant of the Board may appeal :-

(a) to the Board, if the order was passed by the Chairman, and (b) to the Central Government, if the order was passed by the Boarded.

(3) Against any order imposing a penalty passed by a person to whom the Chairman's power in that behalf has been delegated under the provisions of rule 17, an appeal shall lie to the Board, unless the Chairman has himself revised the order of such person, in which cases an appeal shall lie to the Board against the order of the Chairman.

' Upon hearing an appeal under clause (a) of sub-rule (2) the Board may enhance the punishment but an appeal shall lie to the Central Government against such enhancement."

' On the basis of the above Rules, it has been urged that as admittedly the petitioner was drawing mole than Rs, 500 per month as the salary at the material time, the respondent No, 2 was competent to issue charge-sheet or the show-cause notice and not the Director-General KDA and, therefore, the aforesaid charge-sheet/show cause notice etc. Are without jurisdiction. On the other hand, it was urged by Mr. Fazeel that under Article 120 (2) (ii) of the KDA Order only those rules of the KJWB were saved, which were not inconsistent with the provisions of the aforesaid Order and since the Article 8 (2) provided inconsistent provisions, the aforesaid rule 16 to the extent of inconsistency was not saved. It may be advantageous to reproduce hereinbelow the aforesaid Article 8 (2) and (2) (ii) of KDA Order, which read as follows.

(I)

(2) Subject to any rules for the time being in force, the power of making appointments and promotions to posts in the service of the Authority, of granting leave to officers and servants holding such posts, of censuring, fining, withholding, promotion from, reducing, suspending, removing or dismissing such officers and servants for any breach of departmental rules or discipline, or for carelessness unfitness, neglect of duty or other misconduct, and of discharging such officers and servants from the service of the Authority or any other reason, shall be exercised by the under-mentioned authorities :-

(a) in the case of posts the monthly salary of the maximum monthly salary of which does not exceed Rs, 750 and officers and servants holding such posts--the Director-General ;

(b) In the case of posts the monthly salary or the maximum monthly salary of which does not exceed one thousand rupees and servants holding such posts the Chairman ;

(c) in the case of posts the monthly salary or the maximum-monthly salary of which does not exceed Rs, 1,500 and officers and servants holding such posts the Governing Body ; and

(d) in the case of posts the monthly salary or the maximum monthly salary of which exceed Rs, 1,500 and officers and servants holding such posts the Governing Body with the previous sanction of the Provincial Government : ' Provided that a servant of the Central Government or the Provincial Government or a Local Authority whose services have been lent to the Authority shall not be so punished except by an authority which would have been competent to inflict such punishment if his services had not been so lent, and the Director-General, the Chairman, or the Governing Body, as the case may be, shall be entitled only to make recommendations in that behalf to such authority."

"120 (2) Notwithstanding the aforesaid repeal-

(1) .........................................................................

(ii) every appointment order, rule and regulation made or issued under the Karachi Joint Water Board Ordinance, 1949 (XIII of 1949), and in force immediately before the coming into force of this Chapter shall so far as it is not inconsistent with the provisions of this Order be deemed to have been made or issued under this Order as if this Order were in force at the time at which such appointment, order, rule or regulation was made or issued;"

(b) It has been vehemently urged by Mr. Muhammad Ali Sayeed that since sub-Article (2) of Article 8 itself provides that the provisions contained therein are subject to rules for the time being in force, inter alia the above rule 16 in its entirety stood saved. In order to appreciate the respective contentions of the learned counsel for the parties, it is necessary to determine the scope of the aforesaid saving provision, namely, Article 120(2) (ii) of the KDA Order. In our view the provisions of Karachi Joint Water Board Rules. 1956 were saved to the extent, which were not inconsistent with the main provisions of the KDA Order. The phrase "subject to any rules for the time being in force" used in Article 8(2) refers to only those provisions of the Rules which were not inconsistent with the provisions of the Ordinance for the simple reason that by fiction of law by virtue of above Article 120(2)(ii), the KDA Order is deemed to have been in force at the time of the framing of the above Karachi Joint Water Board Rules, 1956. If that is so, from it, it must follow that on the day of the promulgation of the KDA Order by fiction of law the above Rules of 1956 were not in existence, as they are deemed to have been framed as if the KDA Order was in force on the day of the framing of the above Rules. In this view of the matter, the petitioner cannot press into service the original rule 16 of the Karachi Joint Water Board Rules, 1956 in toto. Since there is inconsistency between rule 16 and Article 8(2) of the KDA Order inasmuch as rule 16 provides that in case of posts the monthly salary of which does not exceed Rs, 500 the Chairman was competent and in respect of the posts, the monthly salary of which exceeds Rs, 500 but does not exceed Rs, 1,000, the Board subject to the approval of the Central Government was competent, whereas in Article 8(2) lays down that in case of posts, the monthly salary of which does not exceed Rs, 750 the Director-General KDA is the competent authority and in case of posts, the monthly salary of which does not exceed Rs, 1,000 the Chairman etc. The above inconsistent provision of rule 16 has been negatived by Article 8(2) of the KDA Order and was not saved by Article 120(2)(ii). In this view of the matter, it cannot be urged that ex fade the Director-General KDA had no jurisdiction to issue the impugned charge sheets/show cause notice, etc.

6. (a) Reverting to the contention of the learned counsel for the petitioner that the second show- cause notice dated 20th June 1979 was issued makfidely more per less on the identical allegations which the subject matter of the first charge-sheet with the object to frustrate the above petition and the stay order granted by this Court and in consequence thereof the dismissal order is also mala fide and, therefore, is without jurisdiction, it may be observed that the main charge in the first charge-sheet was that the petitioner had made numerous representations directly to the higher authorities including to the Chief Secretary to the Government of Sind etc. The petitioner filed the above petition inter alia challenging the aforesaid charge-sheet. The petitioner also filed a stay application, in which by an order dated 27th May, 1977 it was ordered that in pursuance of the above charge-sheet, no final order shall be passed against the petitioner, but the enquiry could be conducted. While the above petition was pending the respondent No, 2 served the petitioner with an office memo dated 20th June, 1979 (Annexure Z-10) informing him that he was placed under suspension with immediate effect. He was also served with a show-cause notice of even dated, calling upon him to show cause as to why his services should not be terminated under the KDA Order as amended, by the KDA (Sind Amendment) Ordinance IV of 1979 read with Article 71(3) and (a)(b) of the KDA (Employees Services) (Third Amendment) Regulations, 1975, through dismissal or removal, as prescribed in Regulation No, 70 for acts of omission and commission shown in annexure A. It may be observed that paras. 1 to 5 of the statement of allegations contained the allegations of the nature which were the subject-matter of the first charge-sheet, namely, sending of the representations to the higher authorities and not through the proper channel. The additional allegations contained in the aforesaid statement of allegations related to making of frivolous allegations against the officers of the KDA and making of reference to certain representations/appeals/documents which allegedly did not exist. Upon the receipt of the above show cause notice and the statement of allegations etc., the petitioner submitted a reply dated 26th June, 1979, wherein inter alia it was pointed out by him that he had been under treatment for serious heart ailment with Professor Dr. Muhammad Sharif, the Head of the Department of Cardiology, Dow Medical College and the Civil Hospital, and that he had tiled writ petition involving same points of law and facts and that he was not given any opportunity to meet the evidence on the basis of which the above show-cause notice was issued for the termination of his services by dismissal/removal. He also requested for extension of time so that he may consult his counsel.

Upon the receipt of the above reply by the respondent 2, the petitioner was served with an office memorandum dated 25th August, 1980 informing him that his reply was found unsatisfactory by the competent authority and that in exercise of the power vested in him under Article 8(2) (i)(b) of the KDA Order, 1957, as amended by the KDA (Sind Amendment) (Ordinance IV of 1979) he has been pleased to remove the petitioner from service of the KDA with immediate effect (Annexure Z- 12).

(b) It may be pertinent to observe that upon the receipt of the aforesaid show-cause notice dated 20th June, 1979 alongwith the statement of allegations etc. The petitioner moved C. M. A. 2566/79 praying, therein that the respondent No, 2 may be restrained from giving effect to the order dated 20th June, 1979 suspending the petitioner and from proceeding in relation to the fresh show cause notice. However, it seems that notice of the above application was issued to the respondents but no ad interim order was passed, though the above application had come up for bearing inter alia on the dates referred to hereinbelow alongwith the hearing of the main petition. Upon service of the above termination notice the petitioner moved an application (CMA 3649/81) for restraining the respondent from acting upon the aforesaid order dated 25th August 1980. But, no ad interim order was passed on the above application and the same remained pending till the hearing of the above petition by us. The petitioner was allowed by an order dated 14th September, 1980 to amend the above petition as to include the reliefs against the issuance of the aforesaid show-cause notice and the removal order.

(c) It has been vehemently urged by Mr. Fazeel that since the petitioner had made fresh representations to the higher authorities after filing of the above petition and as there were further acts of omission and commission on the part of the petitioner, the respondent No, 2 was entitled in law to issue a second charge-sheet/statement of allegations and show-cause notice for the termination. In our view the respondent No, 2 should have exercised restraint and should not have acted in haste in removing the petitioner from service without even holding an enquiry against the serious charge like the fabrication of documents etc. ' We are constrained to observe that from the manner in which the respondent No, 2 has acted, it is manifest that their action was tainted with malice. It may be pertinent to recapitulate the events leading to passing of the removal order, namely :-

(i) In C. M. A. No, 310 of 1977 this Court by a consent order dated 27th May, 1977 ordered that the respondent No, 2 shall not pass any adverse order against the petitioner but may continue to hold enquiry in respect of the first charge-sheet.

(ii) On 27th May, 1977 it was also ordered by this Court that the petition would be heard in August, 1977. But the petition could not be proceeded with as the respondents obtained adjournments infer alia on 12th September, 1977, 3rd October, 1977, 26th October, 1977, 19th February, 1978 and 29th October, 1979.

(iii) On 20th June, 1979 the petitioner was served with the order of suspension.

(iv) On the above date 1. e. 20th June, 1979 the petitioner was simultaneously served with a show- cause notice calling upon him to show cause as to why his services may not be terminated through dismissal or removal for the acts of omissions and commissions shown in the enclosed statement of allegations.

(v) The petitioner submitted his reply dated 26th June 1979 to the above show-cause notice and requested for time. It was pointed out by him that he was suffering from serious heart ailment and that the above petition was pending.

(vi) The petitioner also moved an application (C. M. A. No, 2566/79) on 13th August, 1979 praying that the respondents be restrained from giving effect to the above suspension order and also from proceeding in relation to the aforesaid show-cause notice.

(vii) On 21st August, 1979 the Court ordered notice of the above C. M. A. 2566/79 to the respondents for 2nd September, 1979. But the respondents were served on 17th September, 1979.

(viii) The above application came up for hearing alongwith the main petition on 10th December, 1979, 4th February, 1980, 26th February, 1980, 16th March, 1980, 31st March, 1980. But neither the petition nor the above application was heard.

(ix) While the above petition and the applications were pending, the respondent No, 2 without waiting for the result of the application, in which the aforesaid show-cause notice was the subject matter served upon the petitioner the aforesaid order dated 25th August, 1980.

(b) It may again be observed that on 27th May, 1977, it was ordered by this Court that the petition should be heard in August 1977, but could not be proceeded with inter alia for the reason that the respondents obtained adjournments on the above dates. Keeping in view the above background,.

It was neither just nor proper on the part of the respondent No, 2 to remove that petitioner from service without even holding an enquiry. It is evident that the respondent No, 2 was prompted to remove the petitioner from service with the object to render the above petition and the above C. M.

A. 2566/79 infructuous. This inference is fortified by the subsequent conduct of the respondent No, 2 inasmuch as when the petitioner sought amendment of the petition for claiming relief against his removal from service, it was opposed by the respondents and it was urged that the petitioner should file a fresh petition. However, this Court allowed the requisite amendment by the aforesaid order dated 14th September, 1980. According to the learned counsel for the petitioner Mr. Muhammad Ali Sayeed, the respondent No, 2 had filed a petition for leave against the above order of this Court, allowing the amendment of the petition, which was dismissed by the Supreme Court.

It is by now a well-established principle of law that an action/or order if taken/passed malafidely, the same is without jurisdiction. In this connection reference may be made to the case of Zafarul Ahsan v. The Republic of Pakistan through Cabinet Secretary, Government of Pakistan (1), the case of Abdul Rauf and others v. Abdul Hameed Khan and others (2), the case of Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (3), the case of Government of West Pakistan v.

Begum Agha Abdul Karim Shorish Kashmiri (4), the case of The State v. Zia-purRehman, (5), the case of Haji Hashmatullah v. Karachi Municipal Corporation (6) :-

(I) With reference to PLD 1960 SC 113, it may be observed that in the above case the appellant was screened out under the Public Conduct (Scrutiny) Ordinance, 1959 the petition filed by him against the above action was dismissed by a Division Bench of the High Court of Lahore in limine. The appellant filed an appeal in the Supreme Court. Though the appeal was dismissed on the ground that the action of the authority was within the four corners of the aforesaid Ordinance, but at the same time, it was observed that, "where, however, the proceedings are taken mala fide and the statute is used merely a cloak to cover the act which in fact is not taken, though it purports to have been taken, {{FOOT NOTE}}

(1) PLD 1960 SC 113 (2) PLD 1965 SC 671

(3) PLD 1965 SC 698 (4) PLD 1969 SC 14

(5) PLD 1973 SC 49 (6) PLD 1971 Kar. 514 {{FOOT NOTE}} ' under the statute, the order will not, in accordance with long line of decision in England and in this sub-continent, he treated as an order under the statute.

(ii) Reverting to PLD 1965 SC 617, it may be stated that in the above case the respondent had filed a suit challenging orders passed in proceedings under the Frontier Crimes Regulations, the above suit was dismissed because of sections 10 and 16 of the Frontier Crimes Regulations. Upon appeal the case was remanded to the trial Court, but while passing the order of remand, the High Court also granted certificate for filing an appeal in the Supreme Court. The Supreme Court dismissed the above appeal, but it was observed that "a mala fide act is by its nature an act without jurisdiction. No legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on statute. It may be explained that mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purpose.

(iii) With reference to PLD 1965 SC 698, it may be observed that the appellant filed a suit challenging the acquisition by the Improvement Trust Rawalpindi a plot of land included in the house transferred to the appellant by the Settlement Authorities. The suit was dismissed by a learned single Judge of the erstwhile High Court of West Pakistan on the ground that it was barred by section 25 of the Displaced Persons (Compensation and Rehabilitation) Act. The appellant filed an appeal in the Supreme Court, which was accepted. While allowing the appeal it was observed by the Supreme Court that "however with respect to mala fide the jurisdiction of the Civil Court can never be taken away for a mala fide act is its very nature an illegal and void act and the Civil Court cat* always pronounce an act to be mala fide and, therefore, void.

(iv) As regard PLD 1969 SC 14, it may be stated that in the aforesaid case the respondent had filed a writ petition challenging the detention of her husband. A preliminary objection was raised by the State that the Court was not competent to examine the grounds of detention, which objection was overruled by the High Court. The State filed an appeal against the above order of rejecting the aforesaid objection. While dismissing the above appeal it was observed by the Supreme Court that, "a person acting in pursuance of a statute cannot be said to be acting bona fide, if he has no reasonable ground for believing that the statute justify him in what he does." It was also observed that mala fide should be specifically pleaded with particularity.

(v) With reference to PLD 1973 SC 49, it will suffice to observe that Supreme Court reiterated that a mala fide act is an act without jurisdiction.

(vi) Reverting to PLD 1971 Karachi 514 it may be stated that Division Bench of the erstwhile High Court of Sind and Baluchistan held that an order in violation of law is mala fide in law though actual malice not present in the mind of the authority passing the order.

(e) From the above cited and discussed cases it is evident that a Court can always interfere with an order passed mala fidely being an order without jurisdiction.

7. (a) Reverting to Muhammad Ali Sayeed's contention that the dismissal order of the petitioner was passed without providing him a reasonable opportunity to meet the charges, and, therefore, the same is against the principle of natural justice, it may be observed that on the other hand Mr. Fazeel has vehemently urged that in view of Regulation 71 of the KDA Employees Service Regulations, 1973, it was not incumbent upon the respondent No, 2 to hold an enquiry. In order to appreciate the above contention, it may be advantageous to reproduce herein below the above Regulation No, 71, which reads as follows :- "71. Inquiry Procedure.-The following procedure shall be observed when a KDA Employee is proceeded against under these Regulations :-

(1) In case where a KDA Employee is accused of observation, corruption or misconduct, the Authorised Officer may require him to proceed on leave or, with the approval of the authority, suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months.

(2) The Authorised Officer shall decide whether in the light of facts of the case or the interest of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, the procedure indicated in Regulation 6 shall apply.

(3) If the Authorised Officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, be shall:-

(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action ; and

(6) give him a reasonable opportunity of showing cause against that action : ' Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity.

(4) On receipt of the report of the Inquiry Officer or Inquiry Committee or where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the Authorised Officer shall determine whether the charge has been proved and-

(a) if it is proposed to impose a minor penalty, he shall pass orders accordingly ;

(b) if it is proposed to impose major penalty he shall forward the case to the authority along with the charge and statement of allegations served on the accused, the explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee, if appointed and his own recommendations regarding the penalty to be imposed, and the authority shall pass such orders as it may deem proper."

(b) It may be noticed that under clause 3 of the above-quoted regulation, the authorized officer has been empowered to dispense with the holding of an enquiry and instead of to serve a notice upon the employee concerned of the action proposed to be taken in regard to him and the ground of the action and also to give him reasonable opportunity of showing cause against the proposed actions The Authorised Officer can also dispense with providing of an opportunity if he is satisfied that in the interest of the security of Pakistan or any part thereof, is not expedient to give such an opportunity. In the instant case there is no doubt that the respondent No, 2 purported to issue the show cause notice dated 20th June, 1979 in terms of the aforesaid Regulation No, 71 (3) (a) and (b).

Apart from the question that the purported exercise of the power in the circumstances of the instant case was mala fide and, therefore, was without jurisdiction the question which remains to be considered is, as to whether the respondent No, 2 by virtue of the above Regulation 71 could dispense with the holding of an enquiry even in respect of the various charges like fabrication of documents etc. In this regard, it may be pertinent to point out that under Article 14 of the KDA Order, the Provincial Government has been empowered to make rules not inconsistent with the provisions of the Order, whereas under Article 15, the KDA has been authorised to make regulations not inconsistent with the provision of the KDA Order or the rules framed thereunder by the Provincial Government under aforesaid Article 14. It has also been provided in Article 14 that in case of a conflict between the rules and the regulations, the former shall prevail. It is evident that regulations are not even on the footing of the statutory rules, but they are species of inferior delegated legislation. The KDA being an employer in our view cannot arrogate upon itself the power to condemn no employee for serious charges even without holding an enquiry or providing a reasonable opportunity. In the instant case as pointed out hereinabove that the statement of allegations enclosed to the show-cause notice contained some serious allegations inter alia in paras. 9 to 14, which read as follows :-

(9) That in paras Nos. 2 and 6 of your representation/appeal, dated 25th April, 1979, addressed to the Chairman, KDA you made the similar false, frivolous, unfounded and mischievous allegations against senior Officers of KDA such as manipulation of records and entering into a conspiracy etc. Thus casting personal aspersion on them which is prejudicial to good order to service discipline, contrary to KDA (Employees Service) Regulations, 1973 and unbecoming of an official of KDA,

(10) That in para 8 of your representation/appeal dated 25th March, 1977, addressed to the Chief Secretary, Government of Sind by way of misrepresentation and fabrication of facts you made a reference to a so-called petition of appeal purported to have been filed by you on 22nd February, 1977 with the Chairman, KDA and also filed a copy thereof as (Annexure 'D') whereas no such petition of appeal was actually filed by you with the Chairman, KDA.

(11) That, in your representation/appeal dated 25th April, 1979, addressed to the Chairman, KDA under the Caption 'Reminder of my petition of appeal dated 22nd February, 1977', you again with an ulterior motive referred to the said fictitious petition of appeal, which is nonexistent and was never filed with the Chairman of the KDA as certified by the Chairman's Office.

(12) That, with a view to show that such petition of appeal was filed by you with the Chairman, KDA, you fraudulently prepared a false acknowledgment receipt purported to have been issued by the Office of the Chairman, KDA on 22nd February, 1977 in lieu of receipt of the said petition of appeal and enclosed a Photostat copy thereof with your representation/appeal dated 25th April, 1979 to the Chairman, KDA.

(13) That the signature on the photo stat copy of the said acknowledgment receipt does not tally with the signature of any of the authorised member of staff of the Office of the Chairman, KDA as reported by that Office which shows that the same is not genuine and was simply forged by you.

(14) As reported by the Chairman's Office you somehow managed to get the diary stamp of the Chairman's Office probably after office hours and fraudulently affixed it on the said acknowledgement receipt which does not contain any diary number with a view to give it a colour of genuineness. It was thus a manipulation and a clever device on your part, in order to establish your claim by foul means and undue advantage out of it."

(c) As pointed out hereinabove that the petitioner upon the receipt of the above show-cause notice submitted his reply dated 26th June, 1979 (document No, 5 to the respondent No, 2 Addl.

Affidavit), in which it was pointed out by him that a petition on the subject was pending and that he was suffering from serious heart ailment and that no opportunity had been afforded to him to test the evidence collected against him and to defend himself against the allegations. He also requested for time for submitting a reply. After receiving the above reply, the respondent No, 2 without any further communication after more than one year passed the impugned removal order dated 25th August, 1980 on the ground that the petitioner's above reply was found unsatisfactory.

In our view the procedure adopted by the respondent No, 2 in the instant case cannot even be justified in terms of the above Regulation 71 inasmuch as clause 3 (b) of the above Regulations contemplates providing a reasonable opportunity of showing cause against the action. In the instant case the petitioner was not even given the opportunity to see the evidence which was collected by the respondent No, 2 against him in respect of the statement of allegations particularly contained in the above-quoted paras of the statement of allegation. In our view serving a show-cause notice with the statement of allegations without further providing any opportunity to know the evidence upon which allegations are based in order to meet the same cannot be said to be sufficient compliance of the above provision of the Regulation. Furthermore, we are inclined to hold that if an employee is to be dismissed/removed on the ground of serious allegations of misconduct, the employer is obliged to hold an enquiry and to provide a reasonable opportunity to the employee concerned before removing/dismissing him from service. The removal/dismissal of an employee on serious allegations like fraudulently preparation of false documents, carries with it a stigma rendering the employee disqualified from taking any job in Government or private organizations, in such case the least which is expected of an employer is to comply with the principle of natural justice. We may also observe that Regulations framed by the employer cannot negative the principle of natural justice' (Audi alteram partem) which is to be read into or to be implied in the absence of any contrary provision in the relevant law. For the foregoing reasons in our view the respondent No, 2 cannot defend the removal order on the strength of the above Regulation No, 71.

8. (a) Before taking up the question, as to whether the petitioner being an employee of a statutory corporation/local authority is entitled to any relief through the above writ Petition, it may be appropriate to take up legal pleas raised by Mr. Ali Ahmad Fazeel, the learned counsel for the respondents. Nos. 2 to 7, that no writ Petition is competent against a show-cause notice and that the Petitioner having failed to avail of an alternate remedy in the form of an appeal provided for in Article 8 of the K.D.A. Order against the removal, the above, Petition is not competent. It may be pertinent to observe that Mr. Fazeel has relied upon the case of Abdul Majid v. Pakistan (1), in support of his contention that the Petition is not competent against a show-cause notice. , In the above case the Petitioner had challenged a notice for ejectment issued by the respondent, while considering the legality of the above notice, it was observed by a Division Bench of the Lahore High Court, "that the proceedings initiated for ejectment of the petitioner in the two cases, are still pending before the settlement authorities and no final order has so far been passed thereon, and we are sure that they shall have ample opportunity to defend themselves in response to the notices sent to them. As such we have no jurisdiction to interfere in the matter".

In our view if a show-cause notice is without jurisdiction either for want of the requisite authority or because of mala fide, which should be manifest from the facts of the case, a writ petition in such a case would be competent. But generally a writ Petition is not competent against a show-cause notice issued by a competent authority in good faith. In the instant case the above Petition was filed by the petitioner against the first charge-sheet on the ground that the Director-General of the K.D.A. Had no authority to issue the said show-cause notice in view of the rule 16 of the Karachi Joint Water Board Rules, 1956. If we would have accepted the petitioner's above contention, the above ground was sufficient to warrant the maintenance of the above writ Petition. We have already held hereinabove that the Director-General, K.D.A. Was competent to issue the aforesaid first charge.

Furthermore, we are not inclined to hold that the aforesaid first charge sheet was issued malafidely as from the state of the record such an interference is not warranted.

(c) With reference to Mr. Fazeel's contention that the petitioner having failed to avail the remedy by way of appeal against the removal order, the above petition is not competent in respect thereof, it may be observed that it is a well settled principle of law that if an order is without jurisdiction or that alternate remedy is not adequate/efficacious remedy, an aggrieved party may file a writ Petition without having the {{FOOT NOTE}}

(1) PLD 1967 Lab. 459 {{FOOT NOTE}} ' recourse to the alternate remedy. In this regard reference may be made to the case of Murree Brewery Company Ltd. v. Pakistan through the Secretary of the Government of Pakistan and 2 others (1). In the instant case for the reasons disclosed hereinabove in para. (6) (c)(d) and (e), we have already held that the order of the removal inter alia is of without jurisdiction being mala fide and, therefore, the petitioner could file a Petition without availing of the remedy in the form of an appeal. Furthermore, while the above petition was pending the respondent No, 2 prima facie with the object to render the petition infructuous passed by the removal order. The petitioner's application for amending the Petition was opposed by the respondent No, 2, but the same was allowed by this Court. The respondent No, 2's petition for leave against the order of allowing the amendment of the petition was refused by the Supreme Court. In the circumstances of the instant case in our view the appeal was not an adequate alternate remedy, though in normal circumstances it would have been so.

(c) We may also observe that though no plea was raised in the counter-affidavit by the respondents Nos. 2 to 7, but Mr. Fazeel during the course of his arguments also urged that the Petitioner being a worker/workman within the meaning of section 2 (xxvii) of the I.R.O., his remedy against the alleged removal was under section 25-A of the I.R.O. In our view the question, as to whether the petitioner was a worker/workman or not, is a mixed question of fact and law, which cannot be determined without having anything on the record to indicate the nature of the petitioner's duties. It may be pertinent to observe that the definition of the worker/workman given in the I.R.O. Expressly excludes any person from its ambit, who is employed mainly in the Managerial or Administrative capacity or who being employed in Supervisory capacity draws wages exceeding Rs, 8,000 per month or performs either because of the nature of the duties attached to the office or by reason of the power vested in him, function mainly of managerial nature. In the absence of the averment in the counter affidavit of the respondent No, 2, in our view it will not be fair and proper to allow the respondent No, 2 to raise the above plea. However, it may be observed that Mr. Fazeel during the arguments has produced an office memorandum dated 7th May, 1975 to show that in response to the demand of the Collective Bargaining Agent, the governing body of the respondent No, 2 by its resolution No, 350 dated 17th August, 1974 granted to the Superintendents in circle office grade 10 viz. Rs, 250-540. Since the respondent No, 2 had not filed the above document alongwith the counter-affidavit nor had raised any plea, which would have necessitated the filing of the same, we are not inclined to accept the same. Furthermore, the question, as to whether the Petitioner is a worker/workman within the ambit of section 2 (xxvii) of the I. R.

0. Is to be determined with reference to the definition of the above term given in the I. R.

0. And not on the basis of a decision of the governing body of the respondent No, 2 made in response to an alleged demand of the collective bargaining agent, and, therefore, the above document is not sufficient to arrive at a finding on the above point.

9. (a) Reverting to the question, as to whether the petitioner being an employee of a statutory corporation is entitled to any relief or not through the above Petition, it may be pertinent to observe that it has been vehemently urged by Mr, Muhammad Ali Sayeed that the petitioner is {{FOOT NOTE}}

(1) PLD 1972 SC 279 {{FOOT NOTE}} ' not merely an employee of a statutory corporation but in fact the said statutory corporation is also a local authority and, therefore, the petitioner is entitled to the relief of re-instatement. It was further urged by him that in any case this Court can declare the impugned action as of being without lawful authority without granting the relief of re-instatement. On the other hand it was tenaciously contended by Mr. Ali Ahmad Fazeel that by now, it is a well-settled principle of law that the relationship between a statutory corporation and its employee is that of a master and servant and is to be regulated on the basis of principles pertaining to master and servant. Mr. Muhammad Ali Sayeed in support of his above contention has referred to the case of K. D. A. v. Province of Sind (1), the case of Salahuddin and two others v. Frontier Sugar Mills and Distillery Ltd. (2) and the case of Muhammad Saleemullah v. The Trustee of the Port of Karachi (3), the case of Mayor of Rechestor v. REG (4), whereas Mr. Ali Ahmad Fazeel has referred to the case of Muhammad Aslam v. National Shipping Corporation Karachi (5), the case of R. T. H. Janjua v. National Shipping Corporation (6), the case of Shahid Khalil v. Pakistan International Airlines Corporation, Karachi (7), the case of Zainul Abedin v. Multan Central Co-operative Bank Ltd., Multan (8), the case of Chairman East Pakistan Industrial Development Corporation Dacca and another v. Rustom Ali and another (9) and the case of Lahore Central Co-operative Bank v. Pir Saifullah Shah (10) :-

(i) With reference to PLD 1977 Karachi 152, it may be observed that a Division Bench of this Court while considering the question, whether the K. D. A. Is a local authority within the meaning of the Workers Children (Education Cess)-Ordinance, 1972 held that keeping in view the functions entrusted to the K. D. A. It is a local Authority. It may be pertinent to observe that Mr. Fazeel has not disputed the fact that the K. D. A. Is a local authority.

(ii) Reverting to P I. D 1975 SC 244, it may be stated that in the above case the question before the Supreme Court was, as to whether the High Court of Peshawar could grant any relief to the petitioner in respect of the office of Director hip in a Joint Stock Companying which certain shares were subscribed by the Government of N.-W.F.P. It may be pertinent to mention that the High Court of Peshawar had declined to grant any relief. While considering the above question the Supreme Court held that the Offices held by the Directors and its Chief Executive must be regarded as Public Offices inasmuch as they involve the performance of public duties, which are of the greatest importance to the public interest in the field of the operation of public joint stock companies under the company law. It was further held that a joint stock company may not be amenable to the issuance of a writ under clause (2) (a)(i) and (2)(ii) of Article 201 of the Interim Constitution but its directions and the chief {{FOOT NOTE}} PLD 1977 Kar. 152 PLD 1975 Kar. 758 PLD 1979 Kar. 246 1971 SC M R1568 PLD 1966 SC 848 (2) PLD 1975 SC 244 (4) 113 Revised Reports 978 (6) PLD 1974 SC 146 (8) PLD 1966 SC 445 (10) PLD 1959 SC 210 {{FOOT NOTE}} ' executive are within the purview of Clause 2(2) (b) (ii) of Article 201, which permits the High Court to issue a writ in the nature of qua warranto requiring a person within its territorial jurisdiction holding or purporting to hold a public office to show under what authority or law he claims to hold that office. It was also held by the Supreme Court that under clause 2 (2) (b) (ii) the High Court could rant only a declaration as to the authority of the_ respondent to hold the office, but it could not grant a mandamus to restore or to re-instate the applicant to that office.

' On the basis of the above Supreme Court case of 1975, it has been vehemently urged by Mr. Muhammad Ali Sayeed that the Supreme Court in the above case departed from its previous view found favour with it in the cases relied upon by Mr. Fazeel. It may be pertinent to observe that in our view the Supreme Court has reiterated in the above case the view found favour with it in the earlier case of Shaikh Maqbool Elahi and others v. Khan Abdur Rehman Khan and others (1) except that in the above case of 1975 the scope of writ of quo warranto and its application to the office of directorship has been propounded. In the above Maqbool Ellahi's case a writ petition was filed under Article 170 of the late Constitution of Pakistan 1956 (Petition No, 1074/57) a Division Bench of the erstwhile High Court of West Pakistan, Lahore Bench allowed the petition and the matter went in appeal before the Supreme Court. It was observed by the Supreme Court that functioning as a Director does not involve the performance of any statutory duty, but the right to sit on the board of directors is a right, which is of a greatest importance to the public interest in the field of the operation of joint stock companies under the Companies Act. It was held that appropriate reliefs in respect of the office of directorship could be granted, but no relief in respect of the office of the Secretary to the Managing Director could be granted as it was neither a public office nor an office akin to a directorship.

(iii) With reference to PLD 1975 Karachi, it may be stated that in the above case the Deputy Chief Accounts Officer of the K. P. T. Challenged the order of the K. P. T. Retiring him from the service compulsorily. It was contended by the respondents that the petitioner being an employee of a statutory corporation was not entitled to maintain the petition as the relationship is of that master and servant. However, a Division Bench of the erstwhile High Court of Sind and Baluchistan held that the Petitioner held a public office inasmuch as the duties of the Deputy Chief Accounts Officer were given in section 60 of the K. P. T. Act and that there was violation of section 24 of the K. P. T. Act inasmuch as no prior approval of the Central Government to the issuance of the show-cause notice dated 2nd June, 1969 was obtained. A distinction was also pointed out between a breach of a statutory rule and a breach of a provision of law. The High Court declared the aforesaid show cause notice dated 6th June, 1969 as illegal and set aside the same along with the subsequent proceedings taken against the petitioner with the clarification that the respondents would be free to continue proceeding according to law against the Petitioner from the stage of the submission of the enquiry report. {{FOOT NOTE}}

(1) PLD 1960 SC 266 {{FOOT NOTE}}

(iv) With reference to the English case, reported in 113 the Revised Reports 978, it will suffice to observe that it is one of the oldest cases on the scope of writ of mandamus. In the aforesaid case a writ of mandamus was issued on 26th January, 1857 directing the Mayor to hold a court and to revise the list of 1856. While considering the scope it was held "that Court has power, by the prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject or other misgovernment and ought to be used when the law has provided no specific remedy, and justice and good government require that there ought to be one for the execution of the common law or the provisions of a statute."

' As regard PLD 1979 Karachi 246, it may be stated that a Division Bench of this Court (to which one of us was a party) dismissed the writ Petition filed by an employee of the National Shipping Corporation Karachi on the ground that appropriate remedy for the Petitioner was to file a suit for damages for wrongful dismissal and not for a writ of mandamus as the relationship between the respondent and the Petitioner was that of master and servant and the principles applicable in respect thereof were applicable to him. It was also observed that the Supreme Court has consistently held that the relationship between a Corporation and its employees is that of master and servant.

(vi) Reverting to PLD 1974 SC 146, it may be observed that the Petitioner was working as a Revisional Officer at the Lahore Office of the National Shipping Corporation. He was dismissed from the service, the Petition filed by the petitioner was dismissed by the Lahore High Court in limine on the ground that the case did not disclose any violation of the statutory protection to the petitioner and that the case involved controversial question of facts, which needed a detailed enquiry. The petition for leave filed in the Supreme Court was also dismissed. Muhammad Gul, J. While dismissing the Petition held that the petitioner was not holding any public office as to warrant issuance of a writ of mandamus and that the constitutional safeguards provided for civil servants were not available to the Petitioner. It may be instructive to reproduce hereinbelow an extract from the above judgment :- "On behalf of the caveator, the main argument by Mr. Muhammad Ilyas, however, was on the broad legal aspect of the question namely that the petitioner being an employee of a statutory Corporation could not seek redress in writ jurisdiction of the High Court, generally available to a civil servant against his removal from service. In support of his argument, the caveator's learned counsel relied on judgments of the Court in Abdul Salam Mehta v. Chairman, Water and Power Development Authorily and another, Shahid Khalil v. Pakistan International Airlines Corporation, Karachi, The Chairman, East Pakistan Industrial Development Corporation and another v. Rustom Ali and another, Zainul Abidin v. Multan Central Co-operative Bank Ltd., Multan and The Lahore Central Co-operative Bank Ltd. v. Pir Saif Ullah Shah. The broad proposition laid down in all these cases was, that the Constitutional safeguards available to the generality of Civil Servants against arbitrary dismissal or removal from service are not available to the servants of a registered Company, or a statutory Corporation. The precedent cases (with the exception of the case of Pir Saif Ullah Shah which was the case of a Commercial Manager of a Co-operative Bank) related to the removal from service of statutory Corporations like, PIAC, WAPDA and EPIDC, each of which was established by a statute, over which the Government exercised control in varying degree. In all these cases, the grievance related to alleged arbitrary dismissal from service of an employee by an incorporated Company or statutory corporation in which the general law of master and servant was held applicable and it was laid down that the "only remedy available to the aggrieved servant in such cases to sue for damages for wrongful dismissal and not a writ of mandamus or certiorari."

(vii) Referring to 1971 SCMR 568, it will suffice to observe that in the above case the Petitioner was an employee of the Pakistan International Airways filed a writ petition for the restoration to the post of the Secretary to the Managing Director of the P.

1. A. The Petitioner was dismissed on the ground that he was not entitled to the protection of Article 181 of the late Constitution of Pakistan, 1956 as he was not a member of the Central or Provincial Service nor he held a civil post in connection with the affairs of the Federation or of a province. The Petition for leave filed by the petitioner against the above order of the High Court was refused and it was held that the corporation is a statutory body created by an Act, and although it is rendered amenable to the exercise of the various control by the Central Government, nevertheless it is not a branch of the Government and that as an employer, it is quite distinct from the Government.

(viii) With reference to PLD 1966 SC 445, it may be stated that the Petitioner in the above case was working in the Multan Central Co-operative Bank Limited as an accountant. His services were terminated. Thereupon, he filed a Writ Petition for grant of writ of mandamus for directing the respondent bank to restore the petitioner to his office of accountant. The High Court dismissed the above petition, the appeal filed by the petitioner in the Supreme Court was also dismissed. While dismissing the above appeal it was observed by the Supreme Court "that a writ of mandamus will lie to compel the restoration of a person to an office or franchise whether spiritual or temporal, of which he has been wrongfully dispossessed, provided such office or franchise is of a public nature and not for restoration to any and every kind of office". It was also held that the office held by a person as an accountant of co-operative bank (a private autonomous institution) is not an office of public nature and in the case of wrongful dismissal of such an employee a writ of mandamus would be wholly misconceived and not proper.

(ix) Whereas in the case reported in PLD 1966 SC 848, the respondent Rustom Ali was an employee of the East Pakistan Industrial Development Corporation. After holding an enquiry in respect of certain charges, he was dismissed from the service. He tiled a writ petition under Article 98 of the late Constitution of Pakistan 1962, which was allowed by the Dacca High Court. Upon appeal the above judgment of the High Court was set aside. While allowing the above appeal it was observed by the Supreme Court that the respondent not being public servant the safeguards provided for public servants under the constitution could not have been availed of by him. The reliance was placed on the case of the Lahore Central Co-operative Bank Limited v. Pir Saif Ullah Shah decided by the Supreme Court referred to herein below.

(x) Reverting to PLD 1959 SC 210, it may be observed that the respondent in the aforesaid case was working as a Commercial Manager in the Lahore Central Co-operative Bank Limited under a service agreement. His services were terminated on the ground of serious irregularities. The respondent filed a writ Petition in which he sought the following reliefs :-

(i) that the order removing the Petitioner from service should be treated as illegal and invalid.

(ii) that the respondent should reinstate him as the Commercial Manager,

(iii) that the respondent should desist from removing the petitioner from service till the criminal cases pending against him were finally decided.

(iv) to set aside the order of suspension.

' The High Court allowed the above-mentioned relief No, 1 only to the petitioner. The Co-operative Bank filed an appeal in the Supreme Court, which was allowed. The Supreme Court while allowing the appeal made following observations:- "The superior Courts in England have not found it possible to extend the scope of mandamus to restoration to office in private corporations. All the offices mentioned in the list contained in the quotation above appear to be of a public nature, and to have a quality which is entirely foreign to that belonging to the post of Commercial Manager in a Co-operative Bank. The Post was clearly of a contractual nature, falling within the category of employment, and having nothing of the true character of a statutory or corporate office."

(b) It may also be advantageous to refer to the following three cases, which are also on the point in issue, namely, the case of the Managing Committee of Co-operative Model Town Society Ltd. v.

Khawaja Muhammad Iqbal (1), the case of Dr. Abdul Hafeez v. Chairman, Municipal Corporation, Lahore (2) and the case of Syed Akbar Ali Bukhari v. State Bank of Pakistan and 7 others (3).

(i) In the first case the Supreme Court of Pakistan was pleased to hold that a Secretary of a Co- operative Society exercising administrative functions in a considerable township is a statutory office in contrast to the office of Commercial Manager of a Cooperative Bank and, therefore, the High Court of Lahore was {{FOOT NOTE}}

(1) PLD 1963 SC 179 (2) PLD 1967 Lah. 125

(3) PLD 1977 Lab. 234 {{FOOT NOTE}} ' justified in issuing a writ of certiorari, which was undoubtedly available to corre3t errors committed in the exercise of quasi-judicial appellate powers. In the above Supreme Court case, the respondent/petitioner challenged the order of the Society terminating his services as the Secretary and the order passed in the appeal by the appellate board of the society, which consisted of the Registrar of Co-operative Societies and one elected member of the society.

(II) Whereas in the second case a Division Bench of the Lahore High Court consisting of Nazir Ahmad Mahmood, Muhammad Akram, JJ. Held that an office of the Assistant Health Officer in the Lahore Municipal Committee was a public office as his duties are preferable to the Municipal Administration Ordinance and, therefore, the petitioner was entitled to challenge an order of the retirement passed against him. Consequently, a declaration was granted to the effect that the impugned order passed by the Lahore Municipal Committee for the compulsory retirement of the petitioner was against law and ineffective. It may be pertinent to observe that the above Lahore case has been referred to in the aforesaid case of the Supreme Court of Pakistan, namely, R. T. H. 'aqua v. National Shipping Corporation in PLD 1974 SC 146, but it was not dissented from.

(ill) Reverting to the third case, of Syed Akbar All Bukhari v. State Bank of Pakistan and 7 others PLD 1977 Lah. 234, it may be observed that in the above case Karam Eilahi Chohan (as he then was) while dismissing the petition filed by an employee of the State Bank of Pakistan on merits, also observed that for relationship of master and servant there should be a freedom of contract both for master as well as for servant, so as to act freely unfettered by any legal disability and that since the employees of the State Bank were subject to the application of the Pakistan Essential Services (Maintenance) Act (LIII of 1952) being essential services cannot be regulated by law of master and servant.

(c) It may be observed that from the cited and discussed cases here In above, it is evident that the superior Courts including the Supreme Court of Pakistan have declined to grant a relief in the nature of writ of mandamus to an employee of a corporation on the ground that such a writ can only be granted in respect of a public office. It has also been held that the relationship between a corporation and its employees is of that master and servant and the proper remedy for wrongful dismissal 1 in such a case is to file a suit for the recovery of damages. However, in some of the above cases the High Courts and the Supreme Court granted appropriate relief or reliefs even to an employee of corporation in writ petitions for the reason that the employee concerned was holding a public office by virtue of the nature of his duties and because of the fact that the Petitioner's office was relatable to the provisions of relevant enactment.

(c) It has been urged by Mr. Muhammad Ali Sayeed that the cases relied upon by the learned counsel for the respondents Nos. 2 to 7 Mr. Fazeel are distinguishable for the reason that in the aforesaid cases the respondents corporations were simplicity corporations either under the Companies Act or the Co-operative Societies Act or under some Enactment, whereas in the instant case the respondent No, 2 is not only a corporation, but is also a local authority.

' However, we are not inclined to accept the above contention, that merely because of the fact that the respondent No, 2 is local authority a writ of mandamus can be issued for the restoration of the office. Mr. Sayeed was unable to point out that the office, which the petitioner was holding was a public office. His contention was that if an office of a Director in a joint stock Company can be considered to be a public office, the office of a Superintendent in a local authority's Department is on a better footing to be treated as a public office. In our view this contention is devoid of any force inasmuch as every office in a local authority cannot be considered as a public office. The term public office in context with a writ of mandamus has different cannot a section, which aspect has been considered by the Supreme Court in the of resaid cases reported in PLD 1959 SC 210, PLD 1960 SC 266, PLD 1966 SC 445 & 848, PLD 1963 SC 179 and PLD 1975 SC 244. In our view by no stretch of imagination the office which the petitioner was holding can be treated as a public office of the nature as to entitle him to seek the relief of a writ of mandamus. In this regard, it may be pertinent to observe that in the aforesaid Salahuddin's case, reported in PLD 1975 SC 244 the Supreme Court held that the High Court could only grant a declaration under clause 2(b) (ii) of Article 199 of the Constitution, but it could not grant a mandamus to restore or to reinstate the applicant to that office and that in case it would have come to the conclusion that the incumbent had no authority to hold the same, in that event the High Court would have left the rightful claimant if any to take whatever step may be open to him to occupy the office. In our view since the respondent No, 2 is a local authority the petitioner is entitled to a declaration under Article 199 (1)

(a)(ii) of the Constitution to the extent mentioned hereinbelow in para. 9 for the reasons mentioned hereinbelow in para. (e).

(e) As regard the learned counsel for the Petitioner's contention that in any case the Petitioner is entitled to a declaration under Article 199 (1)(a)(ii), it may be advantageous to reproduce hereinbelow the above provision, which reads as follows :- "199. (i) ............................ (a) . . ..

(i) .......................

(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, A perusal of the above quoted clause of the above Article of the Constitution indicates that this Court can grant a declaration that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing function in connection with the affairs of a State, a Province or a local authority, has been done or taken without lawful authority and is of no legal effect. We are inclined to agree with the contention of Mr. Muhammad All Sayeed that the above- quoted provision of the Constitution declaration simplicity can be granted inter alia against a local authority.

9-A. In view of the above discussion we are not inclined to hold that the first charge sheet dated 5th January, 1977 is without jurisdiction as we have held that the Director-General, K. D. A. Was competent to issue the same, however, the suspension order dated 20th June, 1979, the show cause notice dated 20th June, 1979, and in pursuance thereof the removal order dated 25th August, 1980 stand vitiated inter alia on account of being mala fide and, therefore, without jurisdiction. We accordingly declare the same as being without lawful authority and of having no legal effect. However, we may clarify that the respondent No, 2 shall be at liberty to conclude the enquiry, which was being conducted in pursuance of the charge-sheet dated 5th January, 1977 and in respect of which the Court by a consent order dated 27th May, 1977, allowed the respondent No, 2 to continue to hold enquiry bat not to pass any adverse order against the petitioner.

' We may also clarify that it will also be open to the respondent No, 2 to issue a charge-sheet in respect of the alleged charges contained in the statement of allegations enclosed with the aforesaid show-cause notice dated 20th June, 1979 and to hold an enquiry instead of removing the petitioner summarily without holding any enquiry for the serious charges like the fabrication of the documents.

' In the circumstances of the case there will be no order as to costs.

10. (a) Before parting with the above discussion, it may be pertinent to observe that the Petitioner's application under Order XIX, rule 2, C. P. C. (C. M. A. 1725/77 was heard by us on 5th May, 1981, but no order was passed and it was observed by us that in case after hearing the learned counsel for the parties on the merits of the petition, we would come to the conclusion that the cross-examination of the deponent was necessary, we would allow the above application. It may be observed that Mr. Muhammad Ali Sayeed sought the permission to cross-examine the aforesaid deponent in order to prove Annexures B to G and I to N to the petition, the existence of which has been denied by the respondent No, 2 in para. 45 of their counter-affidavit. The above documents relate mainly to the alleged amendment made by Chief Engineer in 1960 in the Recruitment Rules and its effect. Since we have held the Petitioner is not entitled to any relief in respect of the above matter because of the aforesaid pending suit, we are not inclined to grant the petitioner's above application, which is accordingly hereby dismissed.

(b) We may also observe that upon the respondent No, 2's application under section 151, C. P. C.

Filed on 12th May, 1981 1. e. On the last day of the argument in the above writ Petition, we had sent for the aforesaid suit No, 470 of 1966's file from the Court of Civil Judge, as it was alleged that the certified copy of the written statement filed by the petitioner in the above petition is different from the written statement which was filed by the respondent No, 2, in the above suit. Since we have not touched upon the subject matter of the suit, we have refrained ourselves from commenting upon the merits of the above allegation. However, it will be open to the respondent No, 2 to raise the above point before the Civil Judge. The Office Superintendent of the Writ Branch is directed to put his initial and stamp on each page of the suit file before returning the same to the trial Court, The suit file should be sent back to the trial Court with the direction to finalize the suit within six months from the date of receipt of the record from this Court as the suit is pending since, 1966.