THE PRINCIPAL, CADET COLLEGE, KOHAT AND ANOTHER vs MUHAMMAD SHOAB

1. ' NASIM HASAN SHAH, J.-In the above two appeals, by leave of this Court, the judgments of the High Court setting aside the orders passed by the Principal and the Board of Governors of the Cadet College, Kohat, in relation to a member of the office staff and a member of the teaching staff, respectively, are challenged.

2. ' In Civil Appeal No, 15-P of 1968, the respondent, Muhammad Shoab Qureshi, was the Head Clerk in the Cadet College, Kohat and his services were terminated by the order dated 12-6-1976 passed by the Principal of the said College and the appeal preferred by him against the said order was dismissed by the Board of Governors vide order communicated to him by the letter dated 14-7- 1976. Both these orders were challenged by the respondent before the Peshawar High Court through a writ petition which was accepted by a Division Bench of the said learned Court vide order dated 18-4-1978 and the said orders were set aside.

3. ' In Civil Appeal No, 17 of 1981, the removal from service from the same College of Kabut Khan, a Senior Master therein, by the Board of Governors, was questioned by a writ petition before the same High Court and was similarly accepted by a Division Bench of Peshawar High Court and the impugned order removing him from service was declared to be a nullity in the eye of law. .

4. Leave to appeal was granted by this Court in both the cases mainly to consider whether in view of the law declared by this Court in R. T. N. Janjua v. National Shipping Corporation , the High Court was competent to entertain the writ petitions filed by the employees of an institution like the Cadet College, Kohat and issue writs for restoring them to their offices.1 ' The High Court found in both the matters that the dictum of this Court in the above judgment was not applicable to the case of the respondents and their reasons for reaching this conclusion were stated as follows :- "The learned Advocate-General has raised a preliminary objection to the maintainability of this writ petition. He submitted that the petitioner being the employee of a statutory body and is not holding public office, he cannot invoke the Constitutional Jurisdiction of this Court under Article 19 of the Constitution and the only remedy available to him is to sue for damages, if so advised. In support of this contention, he relied upon R. T. H. Janjua v. National Shipping Corporation PLD 1974 SC 146.

5. We have gone through this authority and our reading is that their Lordships of the Supreme Court have not laid it down that an aggrieved employee of any statutory body cannot seek his remedy by filing writ proceedings in the High Court. Their Lordships have drawn distinction between the functions of the various statutory bodies and observed that if the functions of a statutory body are analogous to the functions of a State Department, its aggrieved employee can invoke the Constitutional jurisdiction of this Court in an appropriate case, but if its functions are to carry out commercial purpose, his relations with the competent authority would be of Master-and-Servant and ordinarily in such like cases, an aggrieved employee cannot be allowed to come to the High Court in writ proceedings. In support of this proposition, their Lordships have elaborately discussed various case-law on the subject. Now in the present case, the Cadet College, Kohat, cannot be said to be an institution carrying out its functions for commercial purposes. The function of this College and all other educational institutions run by the State would be alike and thus the petitioner would be deemed as if he was holding public office. In this view of the matter, there is, therefore, no force in the preliminary objection raised by the learned Advocate-General and we rule it out."

6. ' The College authorities, feeling aggrieved by the above decision of the Peshawar High Court have questioned it, by these appeals.

7. ' We have heard the learned Advocate-General, in support of both the appeals, Qazi Atiqur Rehman,.Learned Advocate for the respondent in Civil Appeal No, 15-P of 1978 and Qazi Muhammad Jamil, learned Advocate for the respondent in Civil Appeal No, 17 of 1981 and are inclined to think that the conclusion arrived at by the learned Judges in the High Court cannot be upheld.

8. ' The learned Judges in the High Court have laid great stress on the fact that according to the judgment of this Court in Janjua's case, the question to be seen is mainly whether the institution or organisation, in which the aggrieved person is employed functions purely for commercial purposes or is analogous to a department of the State and further whether the aggrieved incumbent can be regarded as a holder of a "public office". In Janjua's Case the petitioner R. T. H. Janjua, was a Regional Officer of the National Shipping Corporation, established by the National Shipping Corporation Ordinance, 1963 (Ordinance IV of 1963). He was removed from service by the Managing Director and his appeal to the Chairman, Board of Directors, was dismissed. He filed a writ petition before the Lahore High Court which was dismissed by a learned Single Judge of the said Court. On the ground that the case did not disclose any violation of any statutory protection which the petitioner might have enjoyed. Leave was sought from this Court, in that case, on the grounds :- "(1) that the petitioner- was not afforded reasonable opportunity contemplated by Regulation 59 of the National Shipping Corporation (Service) Regulations, 1965, framed under section 32 of the 1963 Ordinance, either to meet the changes or to show cause against his removal from service and the proceedings against him were mala fide and farcical ; and

(ii) that in any case the order of the petitioner's removal from service was bad in law firstly because, at penultimate stage, notice to show-cause against his removal from service was issued by the Secretary to the Corporation and, secondly, Regulation 59, under which the petitioner was proceeded against does not contemplate "removal from service."

9. ' Both these grounds were found to be untenable. It was found that he was allowed adequate opportunity to defend himself and the allegation that the proceedings were farcical and, therefore, mala fide was without substance. The second submission that under Regulation 59, the petitioner could not be removed from service was also found to be without any force.

10. ' Although these conclusions were sufficient to dispose of the petition, however, in deference to the argument raised by the learned counsel for the Caveator 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, this Court went on to discuss the question whether a writ was a proper remedy in the case in the case of an employee of a statutory Corporation and expressed the view that a writ petition was not competent by an employee of a statutory Corporation unless he could be regarded as a holder of a "public office". The two learned Judges hearing the petition for leave in the said case refused leave to appeal on this view of the matter and dismissed the petition for leave observing that apart from its facts, a writ petition did not lie in such a case.

11. ' It is noteworthy that the order of this Court in Janjua's case has been the subject-matter of consideration on several subsequent cases, either directly or indirectly and its scope and purport has by now been fully alucidated. In Syed Akbar All Bokhari v. State Bank of Pakistan and others . K.

12. E. Chauhan, J (as a Judge in the Lahore High Court) in the course of an elaborate and well- considered judgment found that the theory of master and servant or of pleasure of the master to hire and fire at will cannot be competently raised when the conditions of the service of an employee are regulated by the terms of the statute and the rules framed thereunder; in other words where statutory Fetters existed to the free operation, working or application of that theory or that concept, the theory of "master and servant" was inapplicable. The above conclusions were reached by the learned Judge after referring inter cilia to the case of Janjua.

13. ' The question, now in issue, also came up, though indirectly in the case of Muhammad Yusuf Shah v. Pakistan International Airlines Corporation . In this case, K. E. Chauhan, J. Speaking for the Bench consisting of three Judges of this Court again expounded the legal position in such matters and observed that the case of an employee who was governed by Statutory Rules stood on a different pedestal from the case of an employee whose conditions of service were regulated merely by the instructions issued by the employing organisation for its own internal use. In the above case, the appellant Muhammad Yusuf Shah was a Security Guard in the Pakistan International Airlines Corporation and was dismissed from service for misconduct. The services of the employee were, however, not shown to be governed by any statutory rule or regulation but by a Service Code published by the said Corporation. The provisions of the said Code were found to be in the nature of mere instructions issued by the Corporation for the guidance of its officers for their internal use and were entirely of a directory nature. This Court observed that in the absence of any statutory rules, the Courts below were justified in holding that this was a case which was governed by the simple theory of Master and Servant and a suit for declaration to the effect that the dismissal of the appellant was illegal and ultra vires was not maintainable.

14. ' Again in case of The Evacuee Trust Property Board and another v. Muhammad Nawaz , the case of Janjua came up for consideration. In this case, the respondent, Muhammad Nawaz, was employed as an Inspector in the office of the District Evacuee Trust Committee, Multan. His services having been terminated for misconduct the question was whether the Court had any jurisdiction to grant a declaration that his removal from service was illegal. The petitioner, Trust, relied upon the decision in the case of Janjua in support of its contention that the relationship between the petitioner and its employees being that of master and servant, no suit for declaration by the2 3 4 employee that his services were illegally terminated was competent. This Court rejected this contention observing that "in the aforesaid case (i,e, in Janjua's case) the powers of the master to deal with the service matters of his employee were not regulated by the statutory rules, whereas in the instant case the subject was covered and controlled by regular rules on the subject in the form of "Efficiency and Discipline Rules" which were adopted by the Evacuee Trust Property Board, as its own rules by means of a proper resolution in their meeting of May, 1969". The Court went on to observe that "it is well-settled that where statutory rules govern the service conditions of an employee, then the pleasure of the master stands surrendered to the extent that the matter is covered by the relevant rules".

15. It is, therefore, evident that where the conditions of service of an employee of a statutory body are governed by statutory rules, any action prejudicial taken against him in derogation or in violation, of the said rules can be set aside by a writ petition. However, where his terms and conditions are not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which he is employed, has issued for its internal use, any violation thereof will not, normally, be enforced through a writ petition.

16. In this view of the matter, the holding of a "public office" by an employee is not all that crucial because, as rightly pointed out by Qazi Muhammad Jamil, learned counsel: for the respondent in Civil Appeal No, 17 of 1981. This condition is relevant only in cases wherein a writ in the nature of quo warranto is sought whereby a person holding a public office within the territorial -jurisdiction of a High Court may he required to show the authority of law under which he claims to hold the 'said public office. Thus, apart from the question whether the aggrieved employee of a statutory body was a holder of a "public office", the more important question will be whether the conditions of his service were governed by any statute and/or a statutory rule, if so, whether the statute or statutory rule was disregarded while taking the action which is impugned by him.

17. ' Coming now to the facts of the present appeals, it appears that the Cadet College, Kohat, was instituted under a statute. Namely, the West Pakistan Government Educational & Training Institution Ordinance, 1960 (Ordinance XI of 1960). The provisions of this Ordinance, which are of some relevance in these appeals, are in the following terms :- "3. Incorporation.-(1) For the efficient management and control of an institution there shall be established a Board of Governors.

(2) The Board shall be a body corporate, shall have perpetual succession and a common seal, with power to enter into contracts and to acquire and hold property, movable and immovable, and shall in its corporate name sue and be sued."

18. "8. General powers of the Board.-Subject to the other provisions of this Ordinance the Board shall have full powers to administer and manage an institution and in particular in respect of the following matters :- (a)

(b) recruitment and determination of the terms and conditions of service of the Principal and other members of the staff of the institution and of other officers and servants of the Board;

(c) .

(d) to delegate powers to the Chairman, the Executive Committee, Standing Committee, the Principal, the staff of the institution and other officers and servants of the Board; and

(e) to frame, subject to the approval of Government, regulations for the conduct of business of the Board."

19. "9. Transitional provisions regarding staff-Any person serving, in connection with the affairs of the Province, in an institution in any capacity immediately before the day notified under subsection (2) of section 1, hereinafter referred to as the "said day", may be transferred by Government for service under the Board on such terms and conditions shall not be less favourable than those admissible to him under Government provided further that no such person shall be dismissed, removed from service or reduced in rank by an authority subordinate to that by which he was appointed."

20. "17. Power to make rules.--(1) Government may make rules for carrying out the purposes of this Ordinance.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for-

(a) the terms and conditions on which Government servants may be transferred to the Board.

(b) .

21. "18. Regulations.-(1) The Board may, subject to the approval of Government, frame regulations not inconsistent with the provisions of this Ordinance and the rules made thereunder, to carry out the purposes of this Ordinance.

(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for-- (a)

(b) .

(c) the recruitment, tenure of office, terms and conditions of service of the officers and servants appointed by the Board; It is common ground that neither any rules, as contemplated by section 17 of the Ordinance nor any Regulations under section 18 thereof were framed. The Board of Governors did frame some "rules" for "governing the appointment, promotion, retirement,. Termination of service, and dismissal of staff employed by the Board of Governors of the College" in its meeting held on 29th September, 1964, but these not having been made by the Government, could not be regarded as "rules" under section 17, nor having been approved by the Government, be treated as Regulations under section 18 thereof. These "rules" therefore could only be regarded to be in the nature of mere instructions issued for the guidance of the Board of Governors and the Principal of the Cadet College, Kohat.

22. ' After the dissolution of the Province of West Pakistan, a new Ordinance repealing the Ordinance of 1960, was promulgated in relation to theN.-W.F.P. Namely, the North-West Province Government Educational & Training Institutions Ordinance, 1971. However, so far as the provisions-of sections 3, 8, 17 and 18, reproduced 'above, are concerned, they were reenacted in exactly the same words.

23. Even under the new Ordinance of 1971, neither any "rules" nor any Regulations were framed and the position obtaining in this respect contained unchanged. The provision regarding the repeal of the Ordinance of 1960 and its effect was contained in section 21 of the new Ordinance, which is as follows :- "21. Repeal and savings.-(1) The West Pakistan Government Educational and Training Institutions Ordinance, 1960 (West Pakistan Ordinance XI of 1960), hereinafter referred to as the said Ordinance, in its application to the North-West Frontier Province, is hereby repealed.

(2) Notwithstanding, the repeal of the said Ordinance, everything done, action taken, liability incurred, jurisdiction or power conferred, contract entered into and proceeding instituted, rights and assets acquired, officer appointed or person authorised, notification or order issued or Board constituted under any of the provisions of the said Ordinance and the Rules and Regulations made thereunder in respect of any institution in the North-West Frontier Province, shall, if not inconsistent with the provisions of this Ordinance and the Rules and Regulations made thereunder, continue in force and, so far as may be, be deemed to have been respectively done, taken, incurred, conferred, entered into and instituted, acquired, appointed or authorised, issued or constituted under this Ordinance and the Rules and - Regulations made thereunder."

24. ' We may now take up Civil Appeal No, 15-P of 1978. In this case, the services of the respondent Muhammad Shoab Quresbi, Head Clerk, were terminated by the order of the Principal, Cadet College, Kohat. He filed an appeal against the said order of his termination, which was dismissed by the Board of Governors. On the writ petition filed by Muhammad Shoab Qureshi, the High Court, after holding that the respondent herein was holding a "public office" went on to hold that the impugned action taken against the said respondent resulting in the termination of his services as Head Clerk of the Cadet College, Kobat, was "highly objectionable, for, at no stage, he was given a fair trial to defend himself". Accordingly, his writ petition was accepted, and the orders of termination set aside. .

25. ' In support of this appeal before us, the learned Advocate-General submitted that the order of termination of services of the respondent could not be interfered with under the Writ Jurisdiction of the High Court because neither any statutory provision in relation to the conditions of service of the respondent nor any statutory rule in this regard was violated and even if he was held to be holding a "public office", the High Court could not set aside the order of his termination in view of the law explained by this Court in the cases of Muhammad Yusuf Shah v. Pakislan International Airlines Corporation and The Evacuee. Trust Property Board and another v. Muhammad Nawaz.

26. ' Qazi Atiqur Rehman, learned counsel for the respondent, conceded that the High Court could only have interfered with the order of termination if a statutory provision or a statutory rule was violated.

27. In this connection, he- submitted that the respondent had been appointed by the Board of the Governors, as was evident from the Minutes of the Meeting of the Board of Governors held on 3-4- 1965, which showed that he was appointed by the Board. Consequently, on general principles of law he could be removed from service only by the Board. Therefore, the order passed by the Principal terminating his services was illegal and without lawful authority. He further submitted that the mere fact that the decision of the Principal was upheld on appeal by the Board of the Governors could not validate inherent defect in the basic order. In this connection, he relied on Yusuf All v. Muhammad Asian; Zia and others .

28. ' The learned Advocate-General could not controvert the submission that if the order of the Principal was found to be without jurisdiction the mere fact, that this order was not interfered with on appeal, the decision on the appeal would not validate the said order but he contended that in point of fact, the order of the Principal itself was quite legal and valid. In this connection, he referred to the decision of the Board of the Governors taken in the meeting held by it on 18th July, 1968 wherein it was, inter alia decided that "the appointing authority of subordinate employees of the college, in which category the respondent fell, could be made by the Principal and the approval of the Board in this connection was not necessary.

29. ' The question, therefore, was whether the termination from service of the respondent by the Principal of the Cadet College, Kohat, even though his appointment was made by the Board of Governors, was lawful.

30. The statutory provision relied upon, on behalf of the respondent, is contained in section 8 of the Ordinance which provides that subject to the -other provisions of this Ordinance, the Board shall have full powers to administer and manage an institution including the power to recruit members of the staff (clause (b) of section 8). The appointment of the respondent is claimed to be in exercise of this power, from which circumstance it is submitted E that he could only be removed by the same authority. However, clause (e) of the same section 8 empowers the Board to delegate its powers, inter alia to the Principal and reliance was placed on the decision taken on 18-7-196 by the Board of Governors, whereby the powers of the Board in the relevant regard were delegated to the Principal. Hence the Principal could have terminated the services of the respondent.

31. ' The only answer to this argument, which Qazi Atiqur Reiman, learned counsel for the respondent, could make was that the order of delegation was bad under section 9 of the West Pakistan Government Educational and Training Institutions Ordinance, 1960 (Ordinance XI of 1960), the effect of which was saved by section 21 of the N.-W. F. P. Government Educational and Training Institutions5 Ordinance No, III of 1971. The terms of section 9 have already been reproduced above and reliance is placed on the proviso, which laid down :- "Provided further that no such person shall be dismissed, removed from service or reduced in rank by an authority subordinate to that by which he was appointed."

32. The learned Advocate-General, however, rightly pointed out that the said provision was not relevant because it dealt with the cases of persons who were serving in connection with the affairs of the Province in any Educational Institutions and did not apply to the servants appointed by the Board itself. Qazi Atiqur Rehman had no answer to this obvious position, ' and further frankly conceded that he could not point to any other statutory provision or to any statutory rule which was violated while terminating the services of the respondent.

33. ' The appeal is liable to succeed, on this short ground. However, even otherwise the finding of the High Court that the respondent was not given any fair trial before ordering his termination is not tenable. The record shows that the respondent had himself admitted his guilt and asked to be excused. Reference. In this connection is made to his letter addressed to the Principal dated 7th June, 1976, in which he stated :- "I have tried my best to perform my duties to the entire satisfaction of my employer. I have been loyal to my employer and shall remain loyal to the institution in future as well. However, certain differences of opinion crept in the past few days with regard to the chart of duties due to which there remained a great tension in the College. I find myself responsible for this tense situation in the College which is very much regretted.

34. ' I tender my apology with open heart and deep sorrow and request your honour to be kind enough if I could be excused this time."

35. In view of this clear admission any further trial was hardly necessary. The question whether the respondents' apology should have been accepted and he should have been excused, was a matter for the College authorities to have considered and was not a matter for interference by the Court.

36. ' Coming now to Civil Appeal No, 17 of 1981, the facts are that respondent No, 1 was appointed by the Board of Governors as Master of Mathematics in the Cadet College, Kohat on 1-4-1967. He was removed from service also by the order of the Board dated 15-8-1977. Thus, in his case, no violation of any statutory provision is alleged. The defect found by the High Court in the order of removal passed by the Board was that the respondent was not given a sufficient opportunity to contest the charges levelled against him and that the Principal was biased against the respondent and that he had influenced the authorities to initiate disciplinary proceedings against him and had ultimately succeeded in getting him removed from service.

37. This appeal is liable to succeed on the short ground that a writ petition would not be competent unless the violation of any provision of the Statute or of a statutory rule is shown. However, in order to satisfy ourselves whether the respondent No, 1 was dealt with unfairly because of the alleged bias of the Principal against him we have not only perused the document placed on record of the paper-book of this case but also perused the personal file of the respondent and seen all the relevant documents. We are satins fled' that not only was the respondent given a full opportunity to contest the charges levelled against him but that his conduct was highly undesirable and unbecoming of a teacher of a responsible and disciplined teaching institution. The charge of bias, as alleged by the respondent against the Principal, did not also have any real basis. Hence the issuance of the writ to set aside the order of his removal from service was not at all justified.

38. ' The result is that this appeal must also succeed.

39. ' The learned Advocate-General has, however, assured us that the respondent No, 1, who has been paid the salary of his post, throughout this period, will not be asked to refund it despite the acceptance of the appeal. He shall also be allowed to retain his present accommodation until 2-1- 1984, ' The overall conclusion is that both these appeals must be accepted. They are, accordingly, allowed in the above terms, leaving the parties to bear their own costs. PLD 1974 SC 146 PLD 1977 Lah. 234 PLD 19$1.SC 224 1983 SCMR 1275 PLD 1958 SC 104