The petitioner, imam Bakhsh Tatari, joined the service of Board of Intermediate and Secondary Education, Lahore, as Junior Clerk on 27-7-1963. In the year 1968, the Board was trifurcated into three Boards namely, Sargodha, Multan and Lahore. The petitioner pursuant to his option for the Multan Board, was transferred and appointed as Junior Clerk in the Board of Intermediate and Secondary Education, Multan.
2. In June, 1968 the petitioner was promoted as Senior Clerk. Subsequently in September, 1975 he was promoted to the rank of Assistant in Grade-11.
3. On 11-1-1979 the Chairman of the Board of Intermediate and Secondary Education, Multan, placed the petitioner under suspension and charge-sheeted him for negligence, insubordination, indiscipline and insolence and subversion. Alongwith the charge-sheet statement of allegations containing the details of the allegations against the petitioner was also provided to him. The petitioner submitted reply to the charge---sheet and thereby denied all the charges levelled against him.
4. Professor Kh. Azhar Hassan, Principal, Government College of Science, Multan, i.e. Respondent No.
3. Was appointed as Enquiry Officer to conduct enquiry against the petitioner into the charges contained in the charge-sheet. The petitioner was duly informed of the appointment of the Enquiry officer and required to appear before the Enquiry Officer on 25-1-1979. The Enquiry Officer after conducting the enquiry although allegedly in the absence of the petitioner found him guilty on all the charges and submitted his report accordingly.
On 18-3-1979, the petitioner was given a show-cause notice intimating him that in the enquiry report all the charges were established against him and, therefore, he was required to show cause as to why he should not be dismissed from service. The petitioner was, however, not provided with copy of the report of the Enquiry Officer although he demanded the same in writing but he was informed that the copy of the enquiry report could not be given to him.
5. On 15-4-1979 the petitioner submitted reply to the show-cause notice.
A meeting of the entire Board was held on 4-7-1979. In that meeting the petitioner appeared before the Board and was afforded personal hearing. That meeting among others was also attended by Kh. Azhar Hassan, respondent No.3 who conducted the enquiry against the petitioner. Subsequently on 15-7-1979 order of removal of the petitioner from service was issued terminating the service with immediate effect. It was mentioned in the said orders that the Board vide item No.10 of the proceedings of its meeting held on 14-7-1979 removed the petitioner. Admittedly this meeting was attended by Kh. Azhar Hassan in his capacity as Member of the Board.
6. The petitioner through the present constitutional petition has challenged the vires of the order of his removal from service and has prayed that it might be declared that the order of his removal from service dated 15-7-1979 was of no legal effect and that an appropriate writ, order or direction be issued directing the respondents to re-instate him with all benefits into service with effect from the date from which he has been placed under suspension.
7. The petitioner has mainly challenged the validity of the order of his removal from service on the following grounds:-
(a) The Enquiry Officer conducted the enquiry proceedings at his back. The petitioner was not afforded any opportunity by the Enquiry Officer to cross-examine the witnesses who appeared before him and to produce his defence at the time of enquiry;
(b) Kh. Azhar Hassan, the Enquiry Officer who recorded findings of guilt against the petitioner in his capacity as Enquiry Officer, participated as one of the Members of the Board in its meeting held on 14-7-1979 when the final order of removal of the petitioner from service was passed. The impugned order of removal of the petitioner from service was therefore, illegal ab initio and void; and
(c) The petitioner was not provided copy of the report of the Enquiry Officer although he specifically requested for the same in writing but his request was wrongfully turned down. He was, therefore, not given reasonable apportunity to defend himself even at the stage of submitting of his reply to the final show-cause notice.
8. The Chairman of the Board of Intermediate and Secondary Education, Multan, viz. Respondent No.2 submitted his parawise comments in reply to the contentions raised in the present writ petition whereby he has resisted the present petition and has urged that the Board was fully competent to terminate the services of the petitioner and that the present petition was devoid of any substance and merited to be dismissed.
9. It is, however, noteworthy that it has been admitted in the parawise comments that Kh. Azhar Hassan, Enquiry Officer, participated in the Board's meeting held on 14-7-1979, in his capacity as Member of the Board and further that copy of the enquiry report was not required to be supplied to the petitioner.
It is contended in the parawise reply that the Enquiry Officer duly summoned the petitioner for the purpose of enquiry. The petitioner appeared on 25-1-1979 but thereafter he purposely remained absent from the enquiry on one pretext or the other.
10. Learned counsel for the parties have been heard at length. The contents of the relevant orders and proceedings have also been perused and considered. The learned counsel for the respondents has vehemently argued that the petitioner being an employee of the Board of Intermediate and Secondary Education, Multan, was not a civil servant and, therefore, he had no locus standi for seeking redress through the constitutional petition. His status vis-a-vis that of the Board was that of a master and servant. He could at the most sue for damages if his termination from service was, in any manner, wrongful and violative of his terms of service. This contention of the learned respondents' counsel has been repelled by the learned counsel for the petitioner who maintained that the Board of Intermediate and Secondary Education, Multan, being a statutory authority functioning in connection with the affairs of the Province, its employees were not governed by law of Master and Servant, such employees could competently file constitutional petition.
11. Reliance on behalf of the petitioner has been placed on Habibullah v. Government of the Punjab and 5 others PLD 1980 Lah. 337, wherein it has been held that the Punjab Small Industries Corporation in view of the functions it is entitled to perform by virtue of sections 18 and 27 of the Punjab Small Industries Corporation Act (XV of 1973) constitutes it as a person performing functions in connection with the affairs of a Province. Employees of such Corporation are not governed by Law of Master and Servant and constitutional petition filed by its employees with regard to terms and conditions of their service, is maintainable.
12. While arriving at the aforementioned conclusion in the cited case his Lordship Mr. Justice Gul Muhammad Khan, considered R.T.H. Janjua, v. National Shipping Corporation PLD 1974 SC 146; Akbar Ali Bokhari v. State Bank of Pakistan PLD 1977 Lah. 234; Salahuddin v Frontier Sugar Mills PLD 1975 SC 244 and Anjuman-e-Ahmadiya v. Deputy Commissioner, Sargodha PLD 1975 SC 639. In the Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275 it was held that where statutory rules govern service conditions of any employee, then pleasure of master stands surrendered to the extent matter is covered by relevant rules.
13. In the under consideration case the Board of Intermediate and Secondary Education Multan, is a creature of a statute namely; West Pakistan Ordinance VII of 1968. Section 30 of the said Ordinance provides that the employees of the Board shall be deemed to be public servants within the meaning of section 21 of the Pakistan Penal Code. These employees have been provided statutory protection under section 31 from suit for damages or other legal proceedings in respect of anything done or purported to have been done in good faith in pursuance of this Ordinance and the regulations and rules made thereunder. Conditions of service, leave etc. Of the employees of the Board are governed by statutory regulations contained in Chapter VII of the Calendar of the Board of Intermediate and Secondary Education, Multan. Regulation 11 of this Chapter reads as: - "11. Except as expressly provided in these regulations every person who is an employee of the Board, holds office during the pleasure of the Board.
No such person as aforesaid shall be dismissed from service until he has been given a reasonable opportunity to defend himself. "
14. It is thus evident that the statutory regulations of the respondents' Board contemplate reasonable opportunity to an employee of the Board against dismissal/ removal from service.
15. It, therefore, follows that the employees of the Board cannot be removed from service on the principle of master and servant simply at the pleasure of the Chairman or other functionaries of the Board without being afforded reasonable opportunity of show cause.
In Abdur Razzaq Malik v. The Water and Power Development Authority through its Chairman and 3 others PLD 1973 Lah. 188 it was found that-.- "There is no dispute that the petitioner is governed by statutory rules. The power of the master, therefore to fire the employee at his sweet will is not available in the present case. And even if it is deemed to be a contract of service, the terms of engagement and the powers of controlling and dismissing the worker are so provided by statutory Rules that they should knock the bottom out of the applicability of the ordinary or general law of master and servant "
In such cases the employer could exercise the power to terminate the employment only in the circumstances in which the statutes or the Rules clothe it with authority to do so. Constitutional petition was held to be competent in Dr. Islam Mehmood v. Registrar, University of Peshawar and 2 others 1981 CLC 712.
16. Learned counsel for the respondents has cited Dr. Iqtidar Hussain Zaidi v. University of the Punjab PLD 1978 Lah 298, Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519, R.T.H.
Janjua v. National Shipping Corporation PLD 1974 SC 146, Mrs. Hamida Mahboob v. Fauji Foundation Medical Centre Rawalpindi 1979 CLC 175 and Chaudhri Muhammad Ibrahim Haleem Chishti v. Pakistan Council of Scientific and Industrial Research and another 1980 SCMR 831.
17. I have gone through the judicial precedents cited by the learned counsel for the respondents. All these cases are, in fact, distinguishable on merits. In the light of what has gone above, it is concluded that the Board of Intermediate and Secondary Education, Multan, is a statutory body.
The terms and conditions of service of its employees are governed by statutory Regulations and, therefore, the principle of master and servant does not apply while terminating the services of such employees. Their services can only be terminated in accordance with the provisions of the statutory Regulations, governing the terms and conditions of service of the employees of the Board.
18. As regards the merits of the case, as already observed, the Chairman of the respondents' Board has admitted in parawise comments submitted by him that the Enquiry Officer who found the petitioner guilty of the charges, participated in the meeting of the Board, as Member of the Board, in which it was decided that the services of the petitioner should be terminated. It has, also been admitted in the parawise reply that copy of the report of the Enquiry Officer was not supplied to the petitioner although he applied for the same in writing.
19. In Mian Muhammad Abdullah, District Manager, Government Transport Service, Lyalipur v. The Road Transport Corporation, Lahore, through its Secretary and 4 others PLD 1964 (W.P) Lah. 743. It was held:- "that the Enquiry Officer had already formed an opinion against the petitioner and it could not be said that he sat in the meeting of the Corporation with an unbiased mind. By his report he had pre- judged the issue against the petitioner before participating in the meeting. The petitioner was placed in a position of great disadvantage in having to face the member who already expressed his opinion against him in writing. Moreover, in the situation of the petitioner, he was bound to experience considerable reluctance and embarrassment to face the Enquiry Officer and to criticise his conduct and the report.
No doubt administrative tribunals are not required to follow the procedure commonly known to law Courts but nevertheless in quasi-judicial matters they are bound to act in conformity with the principles of natural justice and in accordance with the canons of fair play. It is one of the fundamental and well---recognised principles of administration of justice that justice should not only be done but it should manifestly and undoubtedly be seen to be done. If one of the members of a tribunal is biased or, which is the same thing, has prejudged the issue against a party, it is bound to cause reasonable apprehension in the mind of the party that he is not likely to get a fair and impartial deal at the hands of tribunal. If one of the authority or any one of the authorities hearing a case has any pecuniary or otherwise substantial interest or is biased, the defect goes to the root of the constitution of the tribunal which becomes improperly constituted.
The mere presence of a member who is disqualified from taking part in the proceedings of the tribunal renders it incompetent to function as such and it is immaterial what part that particular member played in the proceeding of the Tribunal and how far he was able to influence its decision.
The member in question was, therefore, disqualified from attending the meeting of the Road Transport Corporation held to consider the case of employee."
It is thus evident that in the under consideration case also on account of participation of respondent No.3 in the meeting of the Board in which decision was taken about the removal of the petitioner from service although the said respondent had already as Enquiry Officer, held the petitioner guilty of all the charges, the impugned order of~ removal of services of the petitioner, is rendered as illegal being in utter disregard of the principles of natural justice. Similarly the failure of the Board to provide copy of the report of the Enquiry Officer to the petitioner in spite of his written request, also amounts to breach of service conditions as contained in Regulation No.11 of Chapter VII, which provides that no employee of the Board shall be removed from service unless he has been given a reasonable opportunity to defend himself. In the circumstances of the present case such opportunity has, unfortunately, been denied to the petitioner.
20. The upshot of the above discussion is that the impugned order whereby the petitioner has been removed from service of the respondent Board is not sustainable. The impugned order is therefore, declared to be without lawful authority and of no legal effect.
21. The result is that the petitioner shall be deemed to be in the service of the respondent Board. The said Board shall not, however, be debarred from proceeding afresh, in accordance with law and principles of natural justice, against the petitioner for the lapses for which he was charge-sheeted.
There will be no order as to costs.
A.A.