S.M.A TTIQUE SHAH, J. Through this single judgment, this Court intends to dispose of the instant W.P.No.636-D of 2019 as well as connected W.P.No.679-D of 2019 as common question of law and facts are involved in both these petitions. Through W .P.No.636-D of 2019, the petitioner has prayed that:- "A. On acceptance of instant constitutional petition, this court may be pleased to declare the Letter No.394/BOG/MTI D.I.K/ Explanation Date d 17.04.2019 & Letter No 478/ BOG/ DIK/ Explanation Dated 20.05.2019 as patently illegal, void ab initio, coram non-judice, ineffective upon the fundamental rights of the petitioner as envisaged under Article 4 to 25 of the Constitution of Islamic Republic of Pakistan, 1973 on the ground that the same are violative to the case law reported in PLD 2015 SC 360 , PLD 2016 SC 808 & PLC (C.S) 224 .
B. To struck down/cancel both the impugned Letter No.394/BOG/MTI D.I.K/ Explan ation Dated 17.04.2019 & Letter No 478/BOG/ DIK/ Explanation Dated 20.05.2019 and declare it ineffective upon the valuable fundamental rights of the petitioner ."
2. In W rit Petition No 679-D of 2019 the petitioner has prayed that:- "It is, therefore, humbly prayed that by issuance of an appropriate writ and on acceptance of the present writ petition, the impugned show cause notice as well as letter of personal hearing/statement of allegations may please be cancelled by declaring the same illegal, unlawful, without lawful authority and having no binding effect upon rights of the petitioner and removal from service order dated 25.6.2019 alongwith minutes of BOG may please be cancelled and declared as void ab initio.
It is further prayed that any actions taken and letter/notification issued for termination/removal of the petitioner on the basis of impugned show cause notice and letter of personal hearing/statement of allegations, may also be declared null, void, without jurisdiction and violative of law on the subject.
It is further prayed that respondents may please be directed to act in accordance with dictates of law and to follow the mandate of Medical Teaching Institutions Reforms Act, 2015 as amended till date."
3. The Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 was introduced to provide autonomy to the Government owned Medical Teaching Institutions and their affiliated teaching hospitals in the province of the Khyber Pakhtunkhwa and to improve the performance, enhance effectiveness and responsiveness for the provision of quality healthcare services to the people of the Khyber Pakhtunkhwa and other matters ancillary and incidental thereto, which was promulgated on 19th January , 2015. Under section 3 of the Act, 2015, the respondent No.2, vide Notification dated 6.01.2016, notified the Gomal Medical Collage and its attached teaching hospitals i.e DHQTH D.I.Khan and Mufti Mahmood Memorial Teaching Hospital as Medical Teaching Institution (MTI)
D.I.Khan. The petitioner was appointed as Hospital Director, MTI, D.I.Khan vide notification dated 21.01.2017 under section 10 of the ibid act, which was challenged by Dr. Ashiq Salim and others, however, their writ petition was dismissed by this Court on 08.5.2019. Subsequently, vide notification dated 10.6.2019, Dr. Muhammad Umar Shah was appointed as Hospital Director, Mufti Mehmood Teaching Hospital, D.I.Khan, which was challenged by the petitioner through W.P.No.635-D/2019, which is still pending before the Court.
Thereafter, the respondent No.5 issued explanation letters dated 17.4.2019 and 20.5.2019 to the petitioner, which have also been challenged by the petitioner in W.P.No.636-D/2019. Whereafter, respondent No.5 issued show-cause notice to the petitioner on 15.6.2019, which was followed by letter dated 24.6.2019 for "personal hearing" and finally the petitioner has been removed from office vide office order dated 25.05.2019, hence the instant petition.
4. At the very outset, the learned counsel representing the respondents No.3 and 4 challenged the maintainability of the present writ petitions on the groun d that this Court has got no jurisdiction to entertain the same, being the outcome of contractual obligation/employment, which squarely falls under the principle of Master and Servant and only on this score the instant petitions are liable to dismissal.
5. The learned counsel representing the petitioner, while rebutting the arguments of learned counsel for respondents No.3 and 4 argued that this Court has got the jurisdiction to entertain the present petitions as not only the post of the petitioner is statutory, but the Rules and Regulations are also statutory, thus, the principle of Master and Servant in the given circumstances is not attracted to the case of the petitioner.
6. This Court is going to first address the question of maintainability of the instant writ petitions raised at the bar with reference to the jurisdiction of this Court under Article 199 of the Constitution of Pakistan, 1973. It needs no reiteration that the Medical Teaching Institution, D.I.Khan is composed of District Headquarter Teaching Hospital D.I.Khan and Mufti Mahmood Memorial Teaching Hospital D.I.Khan, which was established under section 3 of the Khyber Pakhtunkhwa Medical Teaching Institution Reforms Act, 2015 and its affairs are governed under the said Act, rules and regulation framed thereunder .
7. As the matter in question revolves around Section 10 of the Act, 2015, therefore, the same is reproduced below: - "(1) Each Board shall appoint a full time Hospital Director for Medical Teaching Institution for a period of three years on the recommendation of a Recruitment Committee, on such terms and conditions as the Board may determine; provided that no Board member shall be appointed as Hospital Director.
(2) The Hospital Director shall possess a recognized Master's Degree in Hospital Management or Health Services Management or Business Management or Public Health or Public Administration or any other relevant management qualification having at least five years experience of management in an organization or institution as may be prescribed; Provided that a person, who possess a recognized medical degree may also apply for the post of Hospital Director with the condition that he shall have no right to do private practice.
(3) The Hospital Director may be removed from the office by the Board, before the expiration of the period of three years, on such grounds as may be prescribed.
(4) The Hospital Director shall attend all or part of each Board meeting as invited guest as required by the Board, to update the Board on hospital non-clinical activities and functions and any other matters as required by the Board.
(5) In performance of his functions, the Hospital Director shall be responsible to the Board.
(6) The Hospital Director shall not have any conflict of interest with such a position."
8. The ibid provisions of Section 10 exclusively deal with the matters of Hospital Director, which clearly provide that the Hospital Director shall be appointed for a term of three years by the Board of Directors (BOG) on the recommendation of the Recruitment Committee, on such terms and conditions as the Board may determine.
Subsection 3 of section 10 provides for the removal of the Hospital Director before the expiration of his period of three years, on such grounds as may be prescribed by the Board. The term 'prescribed' has been defined by clause (m) of section 2 of the Act, which means 'prescribed by the rules and regulations made under the Act.
It is worth to note that till date the grounds for removal have not yet been prescribed under the Act, 2015.
9. The petitioner was appointed as Hospital Director on 21.01.2017, whereas , terms and conditions of his appointment were separately notified on 15.12.2017, wherein clause 8 provides for the termination of the contract under the following circumstances:- "a. You may terminate this contract of employment at any stage during the term of this contract, without assigning any reason by serving at least three months notice period or in lieu thereof by paying the agreed total monthly compensation for three months which includes the minimum guaranteed exclusive professional practice allowance and base salary . b. The hospital may terminate this contract of employment by serving at least three months notice period with or without assigning any reason, or in lieu thereof, by paying the agreed total monthly compensation of three months, provided this termination is not the result of disciplinary action."
10. Whereas, clause 9 of the said contract provides that "your employment will be governed by the General Policies and Procedure for employees as may be enforced/amended from time to time, and your terms of service shall be subject to such rules and regulati ons. However , for the avoidance of any doubt the terms of this agreement shall prevail.
11. It is noteworthy that section 23 of the Act empowers the government to frame rules for giving effect to the provisions of the ibid Act. Likewise, section 24 empowers the Board to make regulations for carrying out the purpose of the Act. Though the rules and regulations, both were framed under the ibid Act, however , both of the said rules and regulation are silent in the matters of Efficiency and Discipline in respect of the employees of MTI, D.I.Khan, nor the Efficiency and Discipline rules of the provincial government have been adopted by the respondents.
12. In view of the above, this Court has no hesitation in holding that when the very post of petitioner is created by the statute itself and the rules and regulations have also been framed thereunder, then the matters arising out of the terms and conditions of the service of the petitioner shall not be governed under the principle of Master and Servant, rather the terms and conditions of the appointment and removal of the petitioner shall be subservient to the statute and thus, this Court has the jurisdiction, in the circumstances, to entertain the present writ petitions.
13. Now coming to the facts of the W.P.No 636 of 2019, through which the petitioner has challenged the validity of the two letters issued by respondent No.3 in his singular capacity without the approval of the BOG, the precise question for the determination before this Court is that whether the respondent No.3 (Chairperson BOG) has any lawful authority to initiate disciplinary proceedings through impugned letters against the petitioner? The answer to such a question is emphatic 'NO' because the Act does not empower the BOG to delegate its powers to any other authority . Therefore, the respondent No.3 who is Chairperson of the BOG alone has no authority to initiate any action against the petitioner . It is settled law that in order to enable a person to delegate the powers or functions, there must be an authority , expressed or implied, to delegate. When power is conferred on a particular person, then that person alone has to exercise the powers and cannot transfer its exercise to another person. A similar question came up for hearing before this court in a case titled Salim Wazir Professor Community Medicine and 6 others.
Vs. Government of Khyber Pakhtunkhwa through Secretary health Peshawar and 2 others (2019 PLC (C.S)
224) wherein it was held that:- "According to section 9 of the Act of 2015, it is only the BOG which can appoint and remove the Directors.
Although the Act of 2015 and the Regulations provide a procedure for appointment and functions of the Dean and the term of his appointment (three years), however, the same is completely silent about the procedure for removing the Dean. Section 9 (6) of the Act of 2015 only envisages that the Dean can be appointed for three (3) years and he/she may be removed by the BOG on such grounds as may be prescribed. The Act does not empower the BOG to delegate its powers to any other authority for appointment or removal of the Dean.
Therefore, the respondent No.4 who is Chairman of the BOG alone has no authority to initiate any action against the Dean. It is settled law that in order to enable a person to delegate the powers or functions, there must be an authority, expressed or implied, to delegate. When power is conferred on a particular person, then that person alone has to exercise the powers and cannot transfer its exercise to another person. Reliance in this regard is placed on Muhammad Ashraf Tiwana and others. Vs. Pakistan and others (2013 SCMR 1159), Ch. Allah Ditta. Vs. Muhammad Azeem Bhatti and 15 others (2017 CLC 776), Meraj Dn Bhatti. V.s Chairman, Punjab Board of Technical Education, Lahore and 4 others (2005 PLC (C.S) 551) and Oil and Gas Development Company Ltd. Through Manager (Pricing). Vs. Federal Board of Revenue through Chairman and 2 others (2016 PTD 1675 )."
14. Thus, this Court has no hesitation in holding that the respondent No.3 was having no lawful authority to issue the impugned letters independently without the approval of the BOG, therefore, the same are illegal and void ab initio and thus, are liable to be set aside.
15. Now coming to the facts of W.P.No.679 of 2019, the record reveals that the petitioner was appointed as Hospital Director MTI, D.I.Khan on 21.01.2017, but his appointment was challenged by Dr. Ashiq Salim and others in W.P.No.342 of 2017 and the said writ petition was dismissed by this Court on 08.5.2019. whereafter , the respondent No.5, vide notification dated 10.6.2019, appointed one Dr. Muhammad Umar Shah as Hospital Director Mufti Mehmood Teaching Hospital, D.I.Khan, which was challenged by the petitioner through W.P.No.635-D/2019.
Subsequently , the respondent No.5 issued explanation letters dated 17.4.2019 and 20.5.2019 to the petitioner , which have also been challenged by the petitioner in W.P.No.636-D/2019 . Thereafter , the respondents issued show-cause notice to the petitioner on 15.6.2019, which was replied with by the petitioner on 24.6.2019, whereafter , on even date notice of personal hearing was served upon the petitioner for 25.6.2019 and on that very date the petitioner was removed from service. For the sake of convenience, the contents of the impugned show cause notice are reproduced below:- "The Board of Governors in its meeting held on 11.6.2019 has given approval to issue you Show Cause Notice for the following charges:- I. Your attitude is arrogant, insubordinate and defiant of BOG Policy decisions and directives, which is hindering smooth and efficient functioning of the institute. The Board has demanded of you on many occasions to cease this behavior in the interest of the institute but you have failed to follow the advice given to you, as such you have violated the code of conduct expected of you as a MTI employee. Your this conduct is incompatible with the faithful discharge of your duties.
II. You didn't coordinate and co-operate with the management and BOG MTI, D.I.Khan in the recent Khyber Pakhtunkhwa Doctors Council Strike from 15.5.2019 to 22.5.2019 against the Health Department Govt. of Khyber Pakhtunkhwa proposed reforms Act of Regional Health Authority and District Health Authority. You remained un- concerned and didn't attend any meeting of management with the BoG in this regard. You were contacted repeatedly but you kept your cell off and abstained from attending the meeting.
III. You are bypassing the due procedure for processing the Budget as prescribed in the MTI Act, Rules & Regulations. You have committed financial irregularities in the budget management of the institute.
IV. BOG MTI, D.I.Khan is of the view that you are not performing your Responsibil ities/duties competently and you have ceased to be competent to carry out your duties as Hospital Director and your performance is not satisfactory .
V. You are in the habit of absenting from your duties without prior information or leave sanctioned. You have been advised to follow the leave rules in this regard but you have not improved your regularity . You are hereby required to show cause in writing within 07 days that why disciplinary action should not be taken against you for the charges referred to".
16. The above referred show cause notice is containing serious and grave allegations of misconduct and without holding a regular inquiry, the petitioner ought not to have been removed from service in a slipshod, casual and perfunctory manner. The statement of allegations on the basis of which the petitioner has been removed could not be established without a regular inquiry. As it has earlier been discussed, though interim rules and regulation under the Act have been framed by the Government and the Board, respectively, for giving effect and carrying out the purpose of the said Act, however, on one hand, both the said rules and regulations are silent in respect of the matters concerning Efficiency and Discipline of the employees of the MTI, D.I.Khan, whereas on the other hand, the Efficiency and Discipline rules of the provincial government have also not been adopted by the Board, therefore, in such circumstances the petitioner could not be left at the mercy of the respondents. As of now, it is well settled that when serious and grave allegations of misconduct are levelled against an employee, it stigmatizes his entire service career and in such an eventuality, he must get a fair chance of defence in a regular inquiry in order to get a proper opportunity to defend and clear himself from the allegations levelled against him. Thus, it was imperative that the respondents should have conducted a regular inquiry before passing the impugned order of major penalty of removal from office. Reliance is placed on cases of Muhammad Naeem Akhtar. Vs. Managing Director Water and Sanitation Agency LDA, Lahore (2017 SCMR 356), Muhammad Abdul Moied. Vs. Government of Pakistan (2010 SCMR 1546), Government of Punjab. Vs. Tauqeer Mazhar Bukhari (2008 SCMR 1362), Zulfiquar Ali. Vs. District Health Officer, Okara (2014 PLC (C.S) 856), Syed Sajjad Haider Kazmi. Vs. Director-General (S & GAD) WAPDA (2007 SCMR 1643), Engineer Majeed Ahmad Memon. Vs. Liaquat University of Medical and Health Sciences Jamshoro (2014 SCMR 1263) and Saleem Wazir Professor Community Medicine. Vs. Government of Khyber Pakhtunkhwa (2019 PLC (C.S) 224. This Court is of the view that by not holding a regular inquiry into the matter of the petitioner before the imposition of major penalty of removal from his position as the Hospital Director, the respondents have violated the well-recognized principle of transparency and fair play and thus, such illegality is not sustainable in the eye of law. So far merits of the case are concerned, this Court would refrain from discussing the same, as it may prejudice the interest of either party.
17. In view of above, both the petitions are allowed, the explanation letters dated 17.4.2019, 20.5.2019, show cause notice dated 15.06.2019 and removal from service order dated 25.06.2019 are declared illegal, unlawful, void ab initio and thus, having no legal effect upon the rights of the petitioner. However, the respondents are at liberty to initiate fresh disciplinary proceedings against the petitioner, if they so wished and advised. Meanwhile, the petitioner shall not be entitled to receive his salaries under the principle of no work no gain.