' The petitioner who is an employee of the University of Engineering and Technology, Lahore has filed this writ petition to assail the validity of the order of his removal from service by the Syndicate of the said University on the ground that the proceedings were coram non judice.
2. On the factual aspects, it would suffice to observe that the petitioner was initially appointed as a steno-typist and then promoted as stenographer. In the course of his service, he suffered mental illness. Thereafter, he claimed to have recovered from the disease. The University authorities referred him to a Medical Board and required a certificate of his mental fitness to be produced by 28th February, 1978 as per decision of the Syndicate otherwise his services would be terminated.
The petitioner produced the desired certificate which in any case was before the impugned order, dated 13th July, 1987 terminating his services was communicated to the petitioner.
3. The short question that arises for consideration in this case is whether the petitioner was dealt with in accordance with the absolute requirements , of Schedule II to the West Pakistan Universities (Amendment) Ordinance, 1962 (W.P. Ordinance No,XL of 1962) called the West Pakistan University of Engineering and Technology Employees (Efficiency & Discipline) University Ordinance, 1962 which appears to be a complete Code in itself to deal with the servants of the University in disciplinary matters. The Authority has been defined as Officer or authorities specified in the appendix competent to appoint and take disciplinary action against the University employees and includes an officer of the University authorised by such authority to act on its behalf. This very statute then gives the grounds of penalty in Ordinance 3 which reads as follows:-- ' Where a University employee, in the opinion of the authority or in respect of matters referred to in clause (e), of the Chancellor--
(a) is inefficient, or has ceased to be efficient, whether by reason of infirmity of mind or body, or otherwise, and is not likely to recover his efficiency; or
(b) is indifferent to his duties of teaching and research; or
(c) is guilty of misconduct; or
(d) is corrupt, or may reasonably be considered corrupt because:-
(i) he is, or any of his dependents or any other person through him or on his behalf is, in possession (for which he cannot reasonably account) of pecuniary resources or of property disproportionate to his known sources of income; or
(ii) he has assumed a style of living beyond his ostensible means;
(e) is engaged or is reasonably suspected of being engaged in subversive activities or activities detrimental to the interest of the University or national security, or is reasonably suspected of being associated with others in such activities, and whose retention in service is considered prejudicial to the interest of the University or national security; or
(f) becomes a member of or is associated in any capacity with an association of any kind other than an association organised by or under the aegis of the University, without obtaining prior permission of the Vice-Chancellor in writing; or
(g) ..................................................................................
(h) (i)
' Thereafter, Ordinance 4 lays down the penalties. Ordinance 6 lays down enquiry procedure in cases (other than subversion) which would include clause (a) of Ordinance 3 reproduced above.
4. For the purpose of the case under disposal the apt provision is Ordinance 7 which confers powers for ordering medical examination as to mental or bodily infirmity of an employee. It postulates that where it is proposed to proceed against a University employee on the ground of inefficiency by reason of infirmity of mind or body, the authority may at any stage, whether or not an officer has been appointed in pursuance of paragraph (1) of University Ordinance 6, require the University employee to undergo a medical examination by a Medical Board or a Civil Surgeon, as the authority may direct and the report of the Board or the Civil Surgeon shall form part of the proceedings. University Ordinance 8 then deals with appointment and procedure of Enquiry Officer.
Thereafter, University Ordinance 9 contemplates that in case the Authority is of the view that a penalty should be imposed upon the accused, it shall provisionally determine the penalty to be imposed and inform the accused and supply him with a copy of the report and call upon him to show cause within a reasonable time, which shall not be less than 7 days nor more than 14 days,.
As to why the penalty proposed should not be imposed. Then comes University Ordinance 14 which gives a right to a University employee to file an appeal within fifteen days of imposition of the penalty or receipt of an order imposing penalty before the appropriate appellate authority specified in column five to the appendix. In case a penalty is imposed by the Chancellor then no appeal will be available but a review may be filed. Ordinance 15 then lays down that these University Ordinances supersede all University Ordinances in the matters of the University employees and deemed to have been continued in force under section 39 of the West Pakistan University of Engineering and Technology Ordinance, 1961.
5. There is yet another very important provision dealing with the powers of the Syndicate which is contained in the University Ordinance 16 which reads as follows:-- "For the purposes of these University Ordinances the Syndicate, may from time to time, issue instructions for the maintenance of appropriate standards of efficiency, good conduct, discipline and integrity."
The above is the short resume of the legal position which is relevant for the purposes of the case of the petitioner.
6. As against this, what happened in the present case was that disciplinary proceedings initiated against the petitioner did not conform to the absolute requirements of University Ordinance referred to above. The petitioner was straightaway sent to appear before a Medical Board under the orders of the Syndicate. He was initially declared unfit. It is not understood as to why the petitioner's case from the very initial stage was taken up directly by the Syndicate of the University itself when the Vice-Chancellor alone was the competent Authority under the Statute.
7. Strangely enough, none from the respondents side is in a position to explain as to how the disciplinary proceedings emanated from the Syndicate which was the appellate authority in the absence of an original order having been passed by a competent Authority contemplated by law.
Learned counsel for the University submits that the original order was passed by the Syndicate, because the mental condition report of the petitioner was conveyed to the Syndicate. If that be so, then the question which pertinently arises for consideration is whether an appellate Authority can assume jurisdiction in the absence of the original order having been passed by the competent authority below. It must be observed for the benefit of the learned counsel for the University that if no order is passed by the initial or original authority, then there is no foundation laid for exercise of appellate jurisdiction. The passing of an order by the original authority which could be assailed in appeal is a condition precedent to the maintainability of the appeal and exercise of appellate powers and jurisdiction. The impugned proceedings, therefore, suffer from an inherent misdirection and infirmity in law. The petitioner has through non-observance of law been deprived of his valuable right of appeal guaranteed to him by the University Ordinance Schedule II to the West Pakistan University (Amendment) Ordinance, 1962 which is called the West Pakistan University of Engineering and Technology (Employees Efficiency and Discipline) Ordinance, 1962. The provisions of this Ordinance are in the relevant respect mandatory. It was beyond the competence of the Vice-Chancellor or the Syndicate to ignore or by-pass the obligatory provisions of the Statute by which they were bound. The impugned proceedings before the Syndicate were patently coram non judice and nullity in law.
8. The view that I have taken also appears to find support from the case of Barnard v. National Dock Labour Board, (1953)2 QB 18(L) and in particular the observations of Denning L.J. Which are as under:-- "So far as the decision of the appeal Tribunal is concerned, it seems to me that, once the port manager's order is found to be a nullity, it follows that the order of the appeal Tribunal is also nullity.
The appeal Tribunal has no original jurisdiction of its own; it cannot itself make a suspension order; it can only affirm or disaffirm a suspension order which has already been made. If none has been made because it is a nullity, the Tribunal can do nothing. It cannot make something out of nothing any more than anybody else can."
9. By a short order for reasons to be recorded the impugned order of termination of services of the petitioner was declared to be without lawful authority and of no legal effect. The petitioner in the circumstances of the case was held not entitled to get back benefits of pay. The detailed reasons for the aforementioned orders have been provided.