' M. S. H. QURAISHI, J.-These two appeals, namely, C. A. No, 105 of 1982 preferred by Muhammad Siddique Cheema and B. A. Ansari and C. A. No, 106 of 1982 preferred by S. Stephen and Philip Esmond, which are being disposed of by this judgment are directed against the judgment of the Lahore High Court, dated 13-7-1972 whereby Writ Petitions Nos, 1351-S of 1972 and No, 623-S of 1972 of the aforesaid appellants, respectively, were dismissed.
2. The necessary facts forming the background of these appeals are as follows. The Gordon Mission College, Rawalpindi (hereinafter called the College), established as a private educational institution in 1889, was governed by a Board of Directors appointed under its constitution. On the enforcement of the West Pakistan Private Colleges (Management and Control) Ordinance (XX of 1970) (hereinafter called the Ordinance), a Governing Body of the College was constituted. A dispute arose between the Governing Body on the one hand and the Eduction Department of the Provincial Government on the other over the appointment of the new Principal on the retirement of C. A. Victor. S. Stephen was the Vice-Principal while the other appellants were permanent members of the teaching staff of the College. S. Stephen claims that he had been appointed as Principal with effect from 12-11-1971. The dispute, however, led to service of notice on 10-8-1971 on the Governing Body, under section 17 of the Ordinance, calling upon it to show cause why it should not be dissolved and a Board of Governors appointed for managing the affairs of the College. The Governing Body submitted its reply on 23-8-1971 but before a decision could be taken, appellants S. Stephen and Philip Esmond challenged the order by filing Writ Petition No, 1199 of 1971 on 13-9-1971.
The petition was, however, disposed of the next day as being premature, with the observation that reasonable opportunity of hearing should be given before any action was taken by the Education Department. The Governing Body was ultimately dissolved by order dated 15-12-1971 and a Board of Governors was constituted comprising nine members including Dr. M. A. Q. Daskawie as its Chairman. The appellants except A. A. Ansari challenged the order of dissolution of the Governing Body dated 15-12-1971 by Writ Petition No 6 of 1972, in which ad interim order was passed on 4-1- 1972 suspending the said order of dissolution. Nevertheless, the appellants were suspended on 5-1- 1972, whereupon they moved miscellaneous petitions as well as a contempt application but the same were not pursued because of the concession made by the Advocate-General, Punjab, before the Court on 12-1-1972 that in view of the Court's order dated 4-1-1972, Dr. M. A. Q. Daskawie was no longer functioning as an Administrator of the College and that his order dated 5-1-1972 suspending the appellants stood automatically vacated. The writ petition itself was dismissed on 18-1-1972 as having abated by the enforcement of M. L.
0. No, 234 of 13-1-1972 (published in the Gazette on 19-1-1972).
3. By virtue of this M. L.
0. 234 not only was the Governing Body deemed to have been validly dissolved but the Board of Governors constituted under the Ordinance (XX of 1970) itself stood dissolved and Dr. M. A. Q.
Daskawie was appointed as Administrator of the College. The Administrator was given the power to administer the College and to discharge the duties, to perform the functions and exercise the power of the Governing Body under the Ordinance. A person aggrieved by any disciplinary action taken by the Administrator under section 8, subsection (1) of the Ordinance had a right of appeal to the competent authority. On assuming office as Administrator, Dr. Daskawie passed an order on 17- 1-1972 suspending the appellants. Shortly thereafter, that is, at 11-20 a. m. The same day, he passed another order terminating the services of the appellants, banning their entry into the College and asking S. Stephen and Philip Esmond appellants to vacate their quarters by 20-1-1972. The reason for the latter order as given therein was "for defying the order of the Administrator". It is to be noted that under the Ordinance as amended by Punjab Ordinance X of 1970, such disciplinary action could be taken- only after giving an opportunity of being heard. The appellants filed appeal on 19- 1-1972 before the Director of. Education, Rawalpindi, challenging the action on the ground, inter alia, of no opportunity having been afforded. They also moved Writ Petition No, 87-S of 1972 but withdrew the same on 9-2-1972 in order to avail of the remedy of departmental appeal. While the appeal was pending, M. L.
0. 255 made on 24-3-1972 but published on 28-3-1972, issued incorporating certain amendments in M. L.
0. 234 retrospectively from 13-1-1972. A proviso was also added at the end of section 8 whereby disciplinary action could be taken against any teacher or other employee of the College, including dismissal, removal or retirement or otherwise termination of his service "without giving him an opportunity of being heard".
4. In view of the above legal change, the argument that the action could not have been taken against the appellants without giving them opportunity of hearing was repelled by the departmental Appellate Authority and the appeal was rejected on 5-4-1972. The appellants thereupon filed Writ Petition No, 623-S of 1972 challenging the order of the appellate authority dated 5-4-1972 as also the orders of the Administrator made on 17-1-1972. Subsequently Muhammad Siddique Cheema and A. A. Ansari withdrew from the petition and moved a separate Writ Petition No,1351-S of 1972. It had been contended on behalf of the appellants before the High Court that the disposal of the appellants' departmental appeal was improper, that M. L. Os. 234 and 255 were ultra vires, that the amendments especially the proviso introduced at the end of section 8 of the Ordinance were repugnant to its substantive provisions and as such must yield to the same, that no retrospective effect could be given to the provisions of M. L. Os. 234 and 255 which were deemed to have been enforced on the respective dates of their publication and that the impugned action was male fide. All these contentions were, however, rejected after elaborate discussion, by a learned Single Judge of the High Court, who consequently dismissed the writ petitions by the impugned judgment dated 13-7-1973.
5. It may be mentioned in passing that S. Stephen and Philip Esmond appellants agitated the dismissal of their writ petition by filing L. P. A. No, 88 of 1973 but the same was held to have abated in view of the enforcement of the Punjab Administrative Tribunal Act IX of 1974, vide order dated 16- 9-1974. The matter was then taken before the Punjab Service Tribunal by S. Stephen in Appeal No, 685/4 of 1974 and by Muhammad Siddique Cheema in Appeal No, 97/971 of 1975, but the appeals were dismissed on 13-3-1979 as being not maintainable upon the view that the appellants were not civil servants. S. Stephen and Philip Esmond then went back to the High Court in Review Application No, 38 of 1979 but the learned Judges held that the L.P.A. tNo, 88 of 1973) itself not being competent, the Review Application was not maintainable, vide order dated 30-11-1981.
6. The appellants thereupon moved this Court in C. P. S. L. A. No, 27/R of 1982 and C. P. S. L. A. No, 29/R of 1982, respectively, for leave to appeal. The delay in moving the petitions was condoned in the interest of justice by the Petition Bench and leave was granted to consider the contentions that the order of suspension passed on 17-1-1972 had been merely a repetition of the earlier order dated 5- 1-1972 which had been, as conceded by the Advocate-General, illegal and as such the same could not have been revived on 17-1-1972; that M. L. Os. 234 and 255, though given a general protection by Article 281 of the Interim Constitution, were deemed repealed by Article 280 of 1973 Constitution and as such even if they A retained the position of a sub-constitutional legislation, their vires could be questioned in the Courts of law; that M. L. Os. 234 and 255 were ultra vires of the legal norm as they placed unqualified discretion in the hands of the Administrator of the College who was not even required to give an opportunity of hearing and that the departmental appeal was bound to bet accepted on the ground of no opportunity of hearing having been given which was the requirement at the relevant time, which requirement could, not have been taken away retrospectively.
7. Mr. Abid Hassan Minto appearing for appellants S. Stephen and Philip Esmond contended that M.
L.
0. 234 became effective only from 19-1-1972 on which date it was published and not from 13-1-1972 when it was purported to have been made. It, according to him, followed that this legislative measure not being in existence on 13-1-1972, the amendments introduced by M. L.
0. 255 could not operate retrospectively from that date but only from 19-1-1972 and that, therefore, the order of termination of service passed on 17-1-1972 was bad being violative of the provision requiring giving of opportunity of hearing which was still in force on that date. He challenged the validity of M. L. Os. 234 and 255 also on the ground that the pre-conditions to the exercise of powers by the Zonal Martial Law Authority as envisaged by M. L.
0. 5 of 1969 did not exist. In this connection, he further contended that even the preamble of M. L.
0. 234 had no nexus with the situation prevailing in the College and could not justify the action taken against the appellants and that the action in the absence of any fresh cause had been nothing but a repetition of the earlier action and as such mala fide. Mr. Bashir Ahmad Ansari, appearing for A. A. Ansari appellant, added that even if M. L.
0. 255 be retrospective in its operation, it, did not expressly validate acts already done and as such would not cure the illegality of the orders made on 17-1-1972.
8. The arguments against the validity and the effect of M. L. Os. 234 and 255 have been dealt with adequately by the learned Single Judge of the High Court and we see no reason to disagree with him. In any case, the validity of the Martial Law Orders made between 20-12-1971 and 20-4-1972 could not be questioned in a Court of law by virtue of the validating provisions of Article 281 of the Interim Constitution and Article 269 of the 1973 Constitution, This Court in a recent judgment reported as Fauji Foundation v. Shamimur Rehman (1) has, after a detailed examination of the case law on the subject, held that : "There is, therefore, consistent view that those Martial Law Regulations and Martial Law Orders which were saved acquired the status of law and their validity was protected by Article 281(1) of the
(1) P L, D 1983 SC 457 Interim Constitution, and on its repeal by Article 269 of the 1973 Constitution."
9. The plea of mala fide was based on the assertion that though no new fact had arisen to justify the order of suspension made on 17-1-1972, Dr. Daskawie had, nevertheless, passed it on account of his annoyance over the appellants having successfully challenged his earlier order. It appears, however, from the order terminating the appellants' service dated 17-1-1972 that it had been made "for defying the 'order' of the Administrator". That 'order' could only be the one made earlier the same day, whereby the appellants had been suspended from service of the College. Copy of the comments sent by the Administrator to the departmental Appellate Authority in response to the latter's letter dated 21-1-1972, which could have thrown some light on the point, has not been furnished. However, in the comments submitted before the Appellate Tribunal, a definite stand had been taken on behalf of the Administrator that : "The petitioner (M. S. Cheema) alongwith other three suspended teachers defied the order and continued to take the classes. The Administrator was left with no alternative except to issue the order for the termination of the services of the petitioner."
' It is not shown that this assertion that the appellants had continued to take the classes in spite of the suspension order had been specifically denied. In fact learned counsel for the appellants did not dispute the fact that the appellants might have continued taking their classes even after the service of the order of suspension.
10. The extent to which the discipline of the College had deteriorated, has been highlighted by the appellants themselves in the following words in Writ Petition No, 623-S of 1972 : "(5) That on account of the machinations of a former Principal, Prof. V. K. Mall, and his associates and partisans, the College became the rendezvous of activities, ruinous for the Institution. The Managing Body of the College i,e,, the Board of Directors constituted under the College Constitution 1964 and its office-bearers and those Teachers including the present petitioners who co-operated with it, were involved in civil and criminal litigations at a very considerable personal inconvenience to them and at colossal expense to them personally and to the institution; about half a dozen cases are still pending in the District Courts of Rawalpindi and the High Court, Lahore.
(6) That on account of this litigation the management of the College and discipline therein were very adversely affected. The Institution became a hot bed of intrigues and when the matter went before the High Court, Mr. Justice Shamim Hussain Kadri felt constrained to direct the Advocate- General to consult the Government to take over the Institution under its control under section 17 of the Ordinance XX of 1970 which was yet in the offing but the Educational Authorities of the Government opposed the suggestion and the matter was dropped.
(7) That sometime later when the matter came before the High Court once again, Mr. Justice Muhammad Afzal Cheema had to direct on telephone, the Police Authorities at Rawalpindi to help the management in controlling the law and order situation which had been brought at the instance of the outgoing Principal, and the associates of the Principal amongst the Teachers and Students in the form of an open rebellion against the management."
In this background, the action taken, though swift, cannot be said to be mala fide.
11. The next submission was in regard to the quantum of the punishment. It was pointed out on behalf of the appellants that the Director of Education while dismissing the appellants' departmental appeal had not at all adverted to that question. It was submitted that the earlier order of suspension passed on 5-1-1972 having been conceded by the Advocate-General to be illegal, the appellants, who were perhaps not aware on 17-1-1972 of the promulgation of M. L.
0. 234, could not be entirely unjustified in doubting the correctness of the second order of suspension passed on the later date. In this connection, they further submitted that in case the appellants could succeed before the Appellate Authority if the matter be remanded, there, they would not claim benefit of back pay, seniority or even posting in the same College but would only ask for allowing them continuity of service for the purpose of pension and gratuity. Mr. Khalil Ramdey, the learned Assistant Advocate-General, on the other hand, urged that in view of the lawless situation prevailing in the College at the relevant time, the punishment was fully merited and that in any case the question of the quantum of punishment not having been taken earlier, need not be permitted to be agitated now. Since an appeal is a continuation of the proceeding, the Appellate Authority could, on the material on record, examine the reasonableness or severity of the punishment meted out to the appellants. The fact that the appellants themselves had not agitated that point would not absolve the Appellate Authority from its duty to do justice in the case on the principle of Order XLI, rule 33 C. P. C.
12. While, therefore, declining to set aside the impugned judgment of the High Court dated 13-7- 1973 or the order of the Appellate Authority dated 5-4-1972, we remand the matter to the Appellate Authority with the direction to examine subject, of course, to the conditions/undertaking aforenoted, d decide the question of the quantum of the punishment of each appellant. The appeals are partly allowed to this extent. There shall be no order as to costs.