' QAZI MUHAMMAD JAMIL, J.--The petitioner who was working as District Manager in the Agricultural Development Authority, N.-W.F.P. Peshawar, was convicted and sentenced alongwith others by the Summary Military Court in an embezzlement case of fertilizer stocks on 18th February, 1979.
However, his Constitutional petition was accepted by this Court on July 11, 1979 and his conviction and sentence were set aside. Despite the petitioner's conviction and sentence having been set aside by this Court the Agricultural Development Authority, N.-W.F.P. On 29th July, 1980 decided to remove the petitioner from the service on the ground that as clauses 3-A and 3-B inserted in Article 199 of she Constitution "having retrospective operation rendered all such orders of the High Court as null and void and of no effect whatsoever, and consequently the order of conviction made by the Summary Military Court in respect of him automatically be restored". On 5th December, 1981, however, the Deputy Martial Law Administrator, Sector No,1 Zone 'B' issued an order of pardon to the petitioner with a condition that he would not claim pay and allowances for the period of his suspension from duty. The aforesaid order of pardon made it expressly clear that the pardon had taken away the conviction and it was further directed that the record of conviction must be removed from the petitioner's conduct sheet and would not be "provable against him should he again be tried by a Court and convicted". With regard to his service para 3 of the order of pardon reads as follows: - "Mr. Safiullah will be reinstated forthwith. Period of suspension from duty will not affect his seniority provided it is not against existing service rules."
Consequently the petitioner was reinstated as District Agricultural Supply Officer with effect from 6th December. 1981 vide Office Order dated 22-12-1981.
2. However, the petitioner's services were terminated on 4-3-1982 with three months salary in lieu of notice period. No reason was given for the aforesaid termination of petitioner's service. The order of termination was signed by respondent No,1, the Managing Director of the Agricultural Development Authority. The petitioner made a representation and on 4-12-1982 the aforesaid order of termination was cancelled. Once again the petitioner assumed his duty. On 2-9-1982 respondent No,1 issued yet another order of termination of petitioner's service which is being impugned by him in this Constitutional petition.
3. Qazi Atiqur Rehman, Advocate, the learned counsel for the petitioner argued that the entire exercise of throwing the petitioner out of his service time and again is patently mala fide. Tie further urged that respondent No,1 was not competent to pass the said order and furthermore termination of the service of the petitioner could not be done in compliance with the directions of the Governor as stated in the termination order. He further stated that the stand taken by the respondent in the written statement that the impugned order was in sequence to his conviction and sentence passed by a Summary Military Court is patently unjustified as not only the said conviction and sentence were set aside by the Peshawar High Court but the same have been washed away by the order of pardon passed by the Martial Law Authorities as a result of which the petitioner was reinstated in service.
4. Mr. J.D. Akbarji, the learned Advocate-General, appearing on behalf of the respondents before us raised only technical objections to the maintainability of the Constitutional Petition in view of the prayer made therein. According to him this Court could not direct the reinstatement of the petitioner under Article 199 of the Constitution even if the said order was without lawful authority.
The judgments of the superior Courts cited by the learned Advocate-General relate to the cases where the nature of the employment of an aggrieved party was discussed and the question, raised from time to time as to what kind of employees can seek redress under Article 199 of the Constitution against their employer was considered. The sum total of principles laid down in the aforesaid judicial precedents was discussed by the Supreme Court of Pakistan, in its latest judgment cited before us, reported in PLD 1984 SC 170 in case titled The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi. It has been settled that once the relationship of employer and employee is controlled by the statute or statutory rules it cannot be termed as a relationship of master and servant and an aggrieved employee can seek his remedy with regard to his terms and conditions of service from a Civil Court or High Court in its extraordinary jurisdiction.
5. The petitioner before us was admittedly an employee of Agricultural Development Authority, N.- W.F.P. Duly established under a statute, North-West Frontier Province Agricultural Development Authority Ordinance, 1980. Section 8 of the aforesaid Ordinance relates to the appointment of the employees of the Agricultural Development Authority, N.-W.F.P. The appointing authority according to section 8 of the aforesaid Ordinance is the Board which is defined in section 6 of the said Ordinance and which does not include the Governor of the Province. The Governor has power of appointing a Managing Director alone. Terms and conditions of service of the petitioner were further fortified by rules made by the Agricultural Development Authority Board with the approval of the Governor of the N.-W.F.P. Under section 3 of the aforesaid Ordinance. As such the arguments advanced by the learned Advocate-General shall not prevail in the case of the petitioner whose terms and conditions are governed by a statute and statutory rules. Any violation of the same can be looked into by this Court under Article 199 of the Constitution.
6. The argument of the learned Advocate-General that this Court could not direct the reinstatement of the petitioner as he was not holding a public office is again to be judged by the contents of Article 199 of the Constitution. We would not go into the controversy whether the petitioner was holding a public office or not, although the learned counsel for the petitioner has persuaded us that the functions performed by the petitioner as District Manager in the Agricultural Development Authority pertain to public office as defined from time to time. There is no need to resolve the aforesaid controversy as the petitioner can be granted relief prayed for by him without declaring whether he holds a public office or not. Article 199 of the Constitution envisages directions to be issued to a person connected with the affairs of the Centre, Province or Local Authority. The word 'person' has been defined in the Article itself which includes a body corporate.
Admittedly, Agricultural Development Authority has been incorporated under a statute and is a person performing functions in connection with the affairs of the North-West Frontier Province. B As for the one who invokes the jurisdiction of this Court under Article 199 of the Constitution he may be an aggrieved person or any person depending upon the nature of the direction he is seeking from the Court. Except for the directions that a person in unlawful custody be set free and that pretender to an office be asked as to under what authority of law he is holding his office, rest of the directions may be issued on the application of an aggrieved party.
' Therefore, as far the petitioner before the High Court is concerned, he may or may not hold a public office for seeking .The directions incorporated therein. The concept of the petitioner holding a public office before he could be granted a relief in the nature of mandamus for reinstatement to his office loses its significance in view of the clear language of Article 199 of the Constitution. The moment we declare the action of termination of the service of an employee as without lawful authority and of no legal effect status quo ante is revived and his reinstatement by the authorities concerned would automatically follow.
7. In the case in hand, as stated above, the petitioner's conviction and sentence, which was the basis of losing his job was not only set aside by the High Court but subsequently his reinstatement was ordered on the basis of pardon granted to him by the Martial Law Authorities who were responsible for his aforesaid conviction. His services were once again dispensed with but soon thereafter better sense prevailed and the order of termination of his service was rescinded. But the forces against him remained active and the impugned order was passed throwing him out of service again. This was third fall of the petitioner which, apart from apparent mala fides, cannot be allowed. For two reasons alone. First, his appointing authority, according to the Statute, is the Board, and the terms and conditions of his service as laid down in the statutory rules do not give power to the Governor of the Province to issue directions or orders for the termination of his service.
Therefore, the directions issued by the Governor for the termination of the petitioner's service and the compliance made thereto by respondent No,1 are without lawful authority. Even the subsequent approval by the Board as alleged by respondents Nos.1 and 2, of the termination order shall not validate the same. Secondly, though no reasons are given for terminating the service of the petitioner except that Governor has instructed them to do so through a letter which has been conveniently withheld from us, the stand taken by respondents Nos.1 and 2 before us was that the original charges of which the petitioner was twice absolved warranted the same. It cannot, therefore, be said that his removal from service was termination simpliciter as envisaged by the rules. In case it was not so, no notice was given to the petitioner, no inquiry was held and no material was supplied to him before passing the impugned order.
8. We, therefore, accept this petition and set aside the order of termination of petitioner's service being without lawful authority, hence of no legal effect. There shall be no order as to costs.