1. ' ALLAHDINO G. MEMON, J.--By this petition, the petitioner Abdul Rab Jaffery has challenged the present set-up of the Management of Habib Public School, respondent No,2 (previously respondent No,3) as being contrary to the mandatory provisions of Sindh Private Schools (Management and Control) Act, 1974, and all orders made and acts done by persons other than the Board of Governors, constituted by thee Controlling Authority in terms of section 4 of the Act of 1974, for the management and control of the said school including the order dated 30th September, 1985 removing the petitioner from service as being mala fide, arbitrary, capricious, illegal and ultra vires.
2. ' The brief facts giving rise to the present petition are that the petitioner was appointed as Assistant Teacher in the Habib Public School, Karachi, in August, 1968 and he served the said Institution till 30th September, 1985 when his services were terminated. That the Habib Public School is a private school (as defined under section 2(j) of the Sindh Private Schools (Management and Control) Act, 1974. That the respondent No,2 (previously respondent No,3) is the Managing Trustee of the said school and was the "Parent Body' within the meaning of section 2(g) of the Sindh Private Schools (Management and Control) Act, 1974; whereas the respondent No,3 (previously respondent No,4) is the Principal of the said school. According to the petitioner, the said school is governed by the above Act of 1974 in terms of section 4 of the Act. The Board of Governors is established to supervise and control the affairs of the School with all such powers as are envisaged by section 8 thereof. That immediately after the enforcement of the above Act, the Board of Governors consisting the eleven Members was established with respondent No,2 Rashid D.Habib as its Chairman. It was in pursuance of the powers of Board of Governors that the full control of the Management of the said School was taken over by them with all such powers as are specified in section 8 of the Act. That the Board of Governors in pursuance of section 8 of the said Act formulated/adopted Service Rules for teaching staff and also the rules to take disciplinary action against them. The Rules known as' Efficiency and Discipline Rules' were made/adopted by the Board of Governors in exercise of powers conferred by section 8 of the said Act and were put into operation w.e.f, 20th April, 1975. That in the month of April, 1983, it became evident that the said School was not functioning in accordance with the provisions of the above Act and that the Members of teaching staff were not being accorded protection in terms of (Efficiency and Discipline) Rules, 1975; adopted by the Board, and Management started victimising the Members of teaching staff of the said School. That on 22-1-1984, the petitioner addressed a letter to the President of Pakistan, inviting his attention that the Board of Governors of the Habib Public School had been dissolved without any authority and in utter violation of the provisions of section 15 of the said Act. He requested the President of Pakistan to intervene and accord protection to the teachers and other members of the staff of the said School. Photostat copy of the petition/letter has been produced as Annescure. 'C'. The above application was forwarded to the Director of School Education Karachi, by the Government of Sindh, Education Department, Karachi, vide letter dated 22-2-1984; with a request that 'Look into the matter personally and offer its comments.' That in view of the representation made by the petitioner, Government of Sindh, Karachi, constituted an Enquiry Committee, consisting of two Members with Professor Obaid-ur-Rehman, Principal, DJ.Science College, as its Chairman, to probe into the affairs of Habib Public School, Karachi. The petitioner appeared in person before the said Committee in his individual capacity as well as in his capacity as Representative of the Members of teaching staff and placed materials before them in order to show that the Board of Governors constituted in terms of section 8 of the said Act had been dissolved illegally and was not functioning since 1981. That the Enquiry Committee submitted its report, wherein it was recommended that in order to accord protection to the members of the teaching staff of Habib Public School, Karachi, the Sindh Private Schools (Management and Control) Act, 1974, be strictly acted upon and further the Board of Governors as required under section 8 thereof be constituted. On 24th July, 1985 the respondent No,3 (previously respondent No,4) served the petitioner with a charge--sheet to show cause as to why disciplinary action should not be taken against him on the basis of the grounds as disclosed therein. He was called upon to submit his explanation within seven days. The photo stat copy of the charge--sheet has been annexed as Annexure 'G' which reads as follows:-- CHARGE SHEET
(1) You have been irregular and not been punctual throughout your service in Habib Public School.
3. You were verbally warned many times to be punctual and regular. Three ex-Principals also called your explanations and warned you on different occasions for being irregular and not punctual. You had to forfeit your salary in the past for being irregular and not punctual. However, this specific conduct of yours is being overlooked by us.
(2) A decree of Rs,5,200 was passed against you by a Civil Court. When you defaulted in payment of decretal amount; the Court directed the management to attach your salary. This did not enhance the reputation of the School and is also being ignored by us now.
(3) It has been noticed with great dismay that you have been persistent in making false misleading and malicious statements using defamatory language about the management of the School, and addressing those to the higher Government authorities including C.M.L.A. In writing, as member of delegation or individually, thus defying the School instructions regarding such representations. Specifically, you have been agitating against the higher management of the Habib Public School Trust, your employer. You sent a letter to the President/C.M.LA. In January, 1984, making false statements and using contemptuous language against the School management and its officials and expressing your misapprehensions. You instigated other teachers in the School, at their homes, or elsewhere to sign baseless complaints; approached Government officials to complain against the School and its management since February/March, 1985, defying the laid- down procedures regarding submission of complaints thus causing harm and disrepute to the good name and reputation of the School. Copies of your letter to C.M.LA., telegram to Education Minister and alleged complaint can be seen in my office.
4. ' As a result of your indiscipline, insubordination and poor behavior in the School, the management has cogent reasons to believe that you are not fit to teach the students of impressionable age of the School.
5. ' Your attention is further drawn to your service rules and terms of your agreement of service in the School. Extracts read as given below:- ' No employee shall enter into or assist any subversive activity which is in any way prejudicial to the interest of Habib Public School.
6. ' No person will have a claim to leave, any special increment or promotion to a higher scale or status outside his own terms and conditions, just as a matter of right.
7. ' That the employee will not remain absent from his duties without first obtaining the permission or in case of sickness or accident without forwarding a Medical Certificate.
8. ' On the basis of the above grounds, you are hereby charge-sheeted as follows:- ' Damaging the good name of the School and tarnishing its image, and damaging the name of your employer through false allegations to higher authorities without submitting your alleged grievance through proper channels.
9. ' Instigating the teachers against the management of the School and inciting them to sign a representation based on false, malicious and bogus allegations.
10. ' Habitual disobedience of School instructions.
11. ' Deliberate defiance of School instructions, particularly the Admn. Insturctions Nos. 43, 44 and 44-A.
12. ' You are required to reply to the above charges within seven days of the receipt of this charge- sheet and you are hereby required to explain as to why appropriate disciplinary action should not be taken against you.
(8) Pending finalization of this case, you are hereby suspended from the School service. Your pay and allowance during the suspension period will be paid in accordance with appropriate rates/rules.
(9) During the suspension period, you are not required to come to the School unless you are called by the School authorities.
13. Sd/- PRINCIPAL."
14. ' That the petitioner wrote a letter to the Education Secretary, pointing out to him that he had been charge-sheeted by the respondent No,4 (now respondent No,3) because of his participation in the Enquiry Committee and he was being victimized. He also made a representation dated 31-7-1985 to the respondent No,4, inviting his attention to certain provisions of the Act and pointed out that since the Board of Governors of the School has been dissolved illegally and the persons who have taken over its management were persons other than those duly authorized to exercise general supervision and control over the affairs of the School. That the charge-sheet dated 14th July, 1985 served on him was without any authority and he was under no obligation to submit reply thereof.
15. The letter dated 31-7-1985, addressed by the petitioner to the respondent No,3, reads as follows:- "The Principal, ' Habib Public School, ' Karachi.
16. ' Respected Sir, ' On the 24th of this month, I was called in your office with two others, after the School was over, and was/were given the so-called cshargesheets and explanation letteRs,
(a) When we protested against it being Naked Victimization of our longstanding meritorious services, ranging from 19 to 23 years, you told us to have received all the documents from the Education Department, Government of Sindh. That charges were framed in light of the Inquiry Report, submitted to the Government and also that disciplinary actions were being taken against us as per order of the Controlling Authority, on the report submitted.
(b) But, on the contrary, you also told us that we the teachers were 'fools' to approach 'men' without authority and jurisdiction, while serving in a `purely' private School, for the redress of their grievances. In the list of `men' you meant the C.M.L.A./President of Pakistan, the Minister of Education, Government of Sindh, the Controlling Authority of our School under Sindh Private Schools Management Act, 1974, the Secretary of Education, the Head of Education Department, ' Government of Sindh and the members of the Inquiry Committee, appointed by the Government on affairs of our School.
(c) Overlooking the obvious contradictions in the two statements, as above, will you please be kind enough to let me know officially, if you, too, participated in the said Inquiry or not?
(d) It is obvious enough that without the answer to the above question, I will be unable to determine my position to meet the charges leveled against.
(e) You also spoke a few words of 'Practical Wisdom' to us, saying that "it is the 'purchasing power', that all matters, not the law of the land nor justice".
17. ' You did not explain or apply your wise saying, but in the context of the given situation, the impression you meant to create, was naturally all-pervading for all concerned with the present affairs of our School.
(1) Will you please let me know officially who that 'Purchasing Power' is, also those 'Purchased' and the 'Business' transacted with the 'Purchasing Power', so that I may really be 'wise' in my practical life in future.
2. (a) I have very strong reasons to believe that you have intentionally and deliberately created a mess of confusion and ambiguity in you charge-sheets and explanation letters, simply to evade the basic issues based on basic law-points and facts, which, you naturally, do not like to face.
(b) But my "m" is that I am totally unable to reply your charge-sheet unless you please help me clear the mess and determine my legal position and also bring the basic facts, on record, bare.
(c) I, therefore, make hereunder, certain observations which you please correct officially, if wrong anywhere. Thanks for your co-operation.
18. ' Our services, the assets, funds and very things of our School, were transferred to the charge of the Board of Governors (The Statutory Body) constituted by the Controlling Authority (the Government) under the Sindh Private Schools Management Control Act, 1975; in the year 1974-75 (Correct ?).
(ii) Our Employers are/were Parent Body and Managing Body of the said Statutory Body (Correct ?)
(iii) That is, the said Board of Governors is/was Governing Body of our Employer, raised to the Statutory Status (Correct ?)
(iv) With the rise to the Statutory Status, our Employer raised our Great National Institution and also our services to the Statutory Status. Our National Institution was brought at par with the Legal Status of a University (Correct ?)
(v) I have very strong reasons to believe that our School was given the Statutory Status in recognition to the National importance of our Institution and also in recognition to our humble services which we contributed to make our School of National and International fame (Agree ?).
(vi) I have equally strong reasons, also to believe that our Employers did not accept the statutory status in their own-self interest (to raise the Legal Status of their own) but in the best interest of their Great Institution and our humble services. Hahibs are above all status (Agree ?).
(vii) To our great surprise and wonder, it is 'claimed' for some time that the Board of governors (The Statutory Body) has been dissolved by the `Controlling Authority' and that this 'Management' and that Management has taken over the School as the Legal Successors to the Statutory Body (Correct ?).
19. (viii)That is, it is 'claimed' that the Statutory Status of our Great Institution, of our Employers, of ourselves (our services) are all snatched away. (Correct ?).
(ix) If dissolved, what happened to our Employers? They were the Parent Body and the Managing Body of the Board of GovernoRs, They also stand dissolved in law; and in practice too we do not find our Chairman of the Board of Governors (formerly our Managing Trustee) anywhere. He is nowhere and a salaried person, who himself claims to be a trustee; has 'assumed' all the powers of the 'Managing Trustee' (What nonsense) and is governing the School and also its administration (what nonsense) both at the same time, as if we are under a Dictator - Not a Management, nor an Administration. Teachers are permanently kept under mental torture through Heads (Gestapo) under 'him'. It gives a very bad shape of things in our School to the Guardians and visitors coming daily. Is it not an insult and disgrace to our Great Institution and also to our-long standing meritorious service (Correct ?).
20. (x)If dissolved by the Controlling Authority, what about the Statutory status of our Great Institution and our services? Should we leave the question unanswered by the Govternment (Please comment).
21. (xi)If dissolved, what about the terms and conditions of our services as regulated by the Board of Governors under the Act, 1974, such as the Rules of Efficiency and Discipline, our pay scales, security of our longstanding meritorious services and other provisions of the Act, 1974; under which our services are/were governed? (Please comment).
(xii) We the teachers are/were a party to the Board of Governors through one of our elected representatives and also a party to the Act under its provision. (Correct ?)
(a) What about our representation on the Management (Please comment).
(b) Being a party to the Board of Governors, it is not our legal obligation to ask the Government to explain how the Board of Governors was dissolved without our consent when we are/were a party to it (please comment).
(c) Under which provision of the Act 1974, the Board of Governors was dissolved?
(d) Where is the order?
(e) Who have been made our Masters? On what terms and conditions, have our services been transferred to them?
(f) Where is the Transfer order etc. (Please comment).
22. ' In short, should we not approach the Government the Controlling Authority to answer the above basic questions, being a party to the Statutory Body and also a party to the Act, 1974 under its provisions (Please comment ?).
(xiii) Who are our legal Successors?
23. ' We do not know yet. Sometime it is named as Habib Education Trust; Sometime, 'The Board of Trustees'. Sometime only the 'Trustee'. Not even the Managing Trustee, without any reference to any Board or Trust and now it is HABIB PUBLIC SCHOOL TRUST as mentioned in our Charge-Sheets.
24. (Correct ?)
25. ' It simply means there are no legal successors to the Board of Governors and no Management in Law (Correct).
(xiv) In practice too, we find that the terms and conditions of our services are being horribly changed for the worse very rapidly at threats of `Disciplinary actions' being taken if we approach the Controlling Authority as in this case.
(a) Our Pay Scales, sanctioned by the Board of Governors have been `cancelled' and 'New Pay Scales' forced upon us (Correct ?).
(b) Long-standing services of several of our colleagues have been terminated without having recourse to Habib School Rules of Efficiency and Discipline, 1975 adopted by the Board of Governors (Correct ?).
(xv) No legal successors can change morally as well as legally the terms and conditions of service for worse adopted by his predecessors nor the legal status (Correct ?)
(xvi) Further as Senior Teachers, I/we have been persistently and constantly requesting our de- facto Principals very kindly to provide us the certified copies of the following documents in order to ascertain the change of our Masters, (if any) as claimed--
(a) The order of the Controlling Authority under the Act 1974 under which the Board of Governors is 'claimed' to have been dissolved.
(b) The appointment order under which our services are claimed to have been transferred from the Statutory Body to the 'Management' if any, as the Legal SuccessoRs,
(c) The Notification of the change (take-over) served on us, the teachers and other employees duly signed by them.
(d) The Agreement relating to the Terms and Conditions of our services and the Rules and Regulations, framed and adopted under the Board of GovernoRs,
(e) Most important of all, the application made to the Controlling Authority for the dissolution of the Board of Governors on which the Statutory Body was 'dissolved' with sure proof that there was no conspiracy against the Statutory Status of our Employees. He himself wanted it in the best interest of his Institution and his employees (teachers and others).
26. But to OUP greatest surprise and dismay, the above five (5) basic documents were never provided to us under this, or that plea a pretext (Correct ?)
(xvii) It is not the legal obligation on the part of the 'Legal Successors' to get his identity and Authority notified at his own, when such a change (Transfer of Power) takes place legally or at least to satisfy his employees when requested for (Please comment).
27. (xviii) Suppose the Board of Governors is not dissolved in law and some usurpation sort of thing has happened against our employers and their/our legal status, what should be our moral duty as Teachers by Profession and men of conscience? Should we join the usurpation and be a party to it?
28. (Please comment).
(xix) Now that I/We have been charge-sheeted, for my/our approach to 'men without Authority and Jurisdiction' (The Government including the C.M.L.A./President of Pakistan) how we can approach you with our reply to our charge-sheet unless your 'Management' (who appointed you the Principal) and also you, on that account, prove his Legal Authority over us and our Institution; as being the Legal Successors to the Board of Governors the basic issue; for which obviously the certified copies of above five listed documents, together with those who claimed to have received from the Education Department of Government of Sindh including the Inquiry Report and the order of the Controlling Authority thereon which you claimed to have based your charge-sheets, explanation letters and disciplinary action against me/us, upon, may kindly be sent to me per return of post with a point to point answer and comments on the contents of this letter as requested herein. 000 There was a press report dated 4th May, 1985, appeared in the daily `Jang' and the 'Dawn' on Affairs of our School as under:-
(1) The Board of Governors is not there in Habib Public School since 1981 The news item clearly meant that the Board of Governors was not dissolved by the Controlling Authority, the Government, it has `disappeared' or made to 'disappear'.
(2) There is no management in Habib Public School. It meant that this Great National Institution of ours, having the Statutory Status in law, is even without a management, which even an ordinary institution has (Horrible).
(3) A few persons are running the administration of the School at their own risk and responsibility.
29. ' Is it now a very horrible state of affairs of our School? Why did not you contradict the press report to restore the prestige of the School and confidence of the people having their children in the School ? You did not contradict; that is, you accepted it as an undeniable fact, if so, is it the loyalty to the Institution to let this horrible state of affairs continue at your own risk and responsibility and even at the cost of the Great Nam of HABIB our employers, the Parent Body, the Managing Body and the Chairman of the Board of GovernoRs, Yours sincerely Sd/- (ABDUR RAB JAFFERY) Senior Teacher, & Officiating appointed Teachers'
30. Representative HABIB PUBLIC SCHOOL, Karachi-1"
31. ' He also approached the Director of the School Education (Karachi Region) Karachi and sought stay of proceedings against him. On which, a letter bearing No,DSE/G-EXAM/813-85, dated 4th August, 1985; was issued by the Directorate of Education, directing the respondent No,4 (now respondent No,3) not to take further action without prior approval of the Director. The respondent called upon the petitioner vide letter dated 3rd August, 1985 to appear before the Enquiry Committee on 8th August, 1985 but the petitioner declined to appear before the Committee and raised certain legal objections as mentioned in his explanation dated 31st July, 1985. That the respondent sent another letter to the petitioner dated 8th August, 1985, whereby he once again directed him to appear before the Enquiry Committee on 13th August, 1985, at 2-00 p.m. Failing which the matter would be decided ex parte against him. That the respondent informed the petitioner vide his letter dated 14th September, 1985 that his reply dated 31st July, 1985 in response to the charge-sheet dated 24th July, 1985 had been taken into consideration by Enquiry Committee and he was called upon to show cause as to why he should not be dismissed from the service for gross misconduct, insubordination and repudiation of the authority of his EmployeRs, He was further directed to appear before the respondent and explain his conduct on 16th September, 1985 at 11-00 a.m. That on receipt of the above letter, he, appeared before the respondent as well as addressed a letter dated 16th September, 1985 to him pointing out that so far charges of gross misconduct and in-subordination were concerned, no specific instances have been quoted and he was not provided with the basic requirement as requested for in his letter dated 31st July, 1985 and thus he was deprived of his natural and legal right of defence. He, therefore, was unable to defend himself against the baseless charges. That the petitioner sent a letter dated 21st September, 1985, to the Director of Education pointing out the above facts to him and fact regarding stay granted by him. The said application was forwarded to the respondent No,3, requesting him to go through the same and offer his comments immediately, for taking further action in the matter. However, the petitioner was served with a letter dated 30th September, 1985. That the petitioner was intimated by letter dated 30th September, 1985, that, 'as per direction received from the Board of Trustees he had been removed from service with effect from 30th September, 1985.' That the petitioner requested the respondent to inform him about the particulars of Appellate Authority before whom he could file his appeal but he did not receive any reply thereof. Therefore, the present petition was filed with the following prayers:-- PRAYER ' The petitioner, therefore, prays as follows:--
(1) That, this Honorable Court may by an order, hold and declare that the Board of Governors, established in terms of section 4 of the Sindh Private Schools (Management and Control) Act, 1974, by the respondent No,1, to run Habib Public School, Karachi, is alone competent to exercise general supervision and control over the affairs of this school, as laid down in section 8 of the Sindh Private Schools (Management and Control) Act, 1974,
(2) That, this Honorable Court may by an order further, hold and declare that the dissolution of the Board of Governors established by the respondent No,1 in terms of section 4 of the Sindh Private Schools (Management and Control) Act, 1974 is without 'any lawful authority' and of 'no legal effect'.
(3) That, this Honorable Court may by an order hold and declare that all orders made, all acts done by persons other than the Board of Governors, established by the Controlling Authority, in terms of section 4 of the Sindh Private Schools (Management and Control) Act, 1974, including the removal of the petitioner from service are without 'any lawful authority and of no legal effect'.
(4) That this Honorable Court may by an order direct the respondent No,2 to revive/re-constitute the Board of Governors to exercise general supervision and control over the affairs of Habib Public School, Karachi, with all such powers, as envisaged in section 8 of the Sindh Private Schools (Management and Control) Act, 1974.
(5) Any other relief or reliefs as this Honorable Court may deem fit and proper.
(6) Costs of the petition."
32. ' On behalf of respondents Nos.3 and 4 (now respondents Nos.2 and 3, as the name of the defendant No,1 Minister of Education has been struck off) counter affidavit has been filed by Asghar Mehdi Naqvi, who is now respondent No,3 in the case and has stated therein that the petition is mis-conceived and not maintainable in law. That the petition suffers from laches. The petition also suffers from misjoinder of causes of action and of parties. The petitioner cannot resort to Constitutional jurisdiction of this Court for termination of his employment, and no cause of action has accrued to him. The conduct and character of the petitioner was unfit and undesirable for school environment. He was bad debtor and his salary was attached under the order of Civil Court.
33. He was habitually late corner to the school and used to take long leave without any grounds and often told lies. The petitioner was employed as temporary Assistant Master on 24th August, 1968. He was removed from service on 30th September, 1989 in accordance with the Rules and Regulations.
34. On 30th December, 1985, his provident fund deposit and employees contribution with interest was remitted to him by cheques which he accepted. That neither the Ministry of Education nor the Government of Sindh is controlling Authority of Habib Public School, the Trustees of Habib Public High School Trust are the Controlling Authority of Habib Public School, and were the employers of the petitioner. The applicability of Sindh Act XXVII of 1974 to the case of the petitioner is denied. The contents of paras. 6 and 7 were denied. As regards para. 8 and its each and every part, it has been stated that the nomination of Board of Governors was for a period of three years and thereafter the respondent No,2 made request to the Secretary Education Department that since all expenses were being incurred by the Trustees of Habib Public School and they further intend to expand the school with cost of Rs,12,00,000 and there was never any mismanagement in the affairs of School, the Board of Governors should not be continued. However, the above request was not acceded to and another Notification dated 22nd January, 1979 was issued appointing twelve (12) Members to the Board of GovernoRs, The term of the office of the above Board expired on 18th January, 1981 and thereafter no further notification was issued. The Board of Governors never took interest in the matter and they rarely attended the meetings. The Secretary of Education held a meeting on 9th February, 1981, in which it was decided that there was no need of the Board of Governors for Habib Public School and Agha Khan School, as most of the private schools have no Board of GovernoRs, The said decision was communicated vide letter dated 9th March 1981 addressed to the Director of School Education, Karachi and copy has been annexed as Annexure 7. The contents of paras. 9,10,11 and 12 were denied being false and incorrect. It was further stated that copy of the letter, written by the petitioner to the President of Pakistan was not supplied to the Management. It was specifically denied that the Trustees have dissolved the Board of GovernoRs, The action of the petitioner amounted to gross misconduct, defamation and violation of the Service Rules and Regulations. He did not at any time take the Trustees into confidence. No prima facie case was spelled out either in the representations of the petitioner or in the Governors' letter dated 22nd February, 1984 addressed to the Directors of School Education. The rest of the allegations were also denied.
35. ' We have heard the petitioner in person, Mr.Tasawar Hashmi, learned counsel appearing for the respondents Nos. 2 and 3, Mr. A.A. Mohammadally, learned Addl. A.G. And have gone through the documents produced along with the petition.
36. ' It was contended by the petitioner that he was discharged from service in the year 1985 mala fide and without observing the Rules and Regulations. That Habib Public School being a Private Institution had to be governed by a Board of Governors appointed by the Governors in terms of section 4 of Sindh Private Schools (Management and Control) Act, 1974, but the same was dissolved illegally. That the petitioner was discharged from service mala fide and was victimised by Administration only because he used to pin point the illegalities committed by them.
37. ' Mr. Tasawar Hashmi, learned counsel appearing for the respondents No,2 and 3 has contended that by letter dated 9th March, 1981, the Government of Sindh after satisfying itself decided that there is no need of Board of Governors for Habib Public School and Sultan Muhammad Shah Agha Khan School, Karachi. That the petitioner was discharged from service in 1985 and he was paid his provident fund and other dues/amount on 30th December, 1985, and the said amount was withdrawn by him. That looking to the conduct and character of the petitioner he cannot be thrusted on the trustees of the Board. He has further contended that contract of service was incapable of being specifically enforced and consequently a servant cannot force himself upon his Master. In this connection reliance has been placed on Qari Yar Muhammad v. Anjuman-e-Islamia (1987 SCM R 1776). He has also relied upon the case of the Principal Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170); and M/s. Momin Motor Company v. The Regional Transport Authority, Dacca and others (PLD 1962 SC 108).
38. ' Mr. AA. Muhammadally learned Addl. A.-G. Has contended that the Government had dissolved the Board of Governors appointed to manage and control Habib Public School and, therefore, Government was no more interested in the case.
39. ' We have considered the contentions. The documents produced by the parties show that the petitioner was served with charge-sheet dated 14th July, 1985 which has been produced as Annexure 'G' and there is also a reply dated 31st July, 1985; from the petitioner which has been produced as Anx. I. Thereafter there is letter dated 8th August, 1985, produced as Annxscure 'K' which shows that the petitioner was asked to appear before the Enquiry Committee on 8th August, 1985 at 3-00 p.m. But he did not turn up. There is show-cause notice dated 14th September, 1985 and reply thereto dated 16th September, 1985 submitted by the petitioner. The show-cause notice dated 14th September, 1985 reads as under:- "To Mr. Abdul Rab Jafri, G-42/5, Malir Extension Colony, Karachi.
40. ' Your reply dated 31st July, 1985 in response to the charge-sheet, your letter dated 3rd August, 1985 addressed to the Director School Education and your letter dated 7th August, 1985 in reply to the Principal's letter dated 3rd August, 1985 besides all relevant record and evidence have been taken into consideration by the Enquiry Committee whose recommendation is under consideration of the Trustees. Under the instruction of the Trustees, I do hereby communicate to you this show-cause notice as to why you should not be dismissed from service for gross misconduct, insubordination and repudiation of the authority of your employer and libel.
41. ' You may appear personally before the undersignd and explain your conduct and produce evidence in your defence at the school premises on Monday the 16th September, 1985 at 11-00 a.m for Trustees of Habib Public School Sd/- PRINCIPAL."
42. ' Thereafter the last letter dated 30th September, 1985 sent to the petitioner reads as under:- "Mr. Abdur Rub Jafri, G-42/5, Malir Extension, Karachi.
43. ' REMOVAL FROM SERVICE.
44. ' I am directed by the Board of Trustees to communicate to you that you have been removed from School Service w.e.f, 30th September, 1985 (afternoon).
45. Sd/- PRINCIPAL."
46. ' It is an admitted position that the Board of Governors for Habib Public School was dissolved by the Government of Sindh vide letter dated 9th March, 1981 which reads as under:- "No,S0(G-II) 5-13/74 ' The Director School Education, Karachi.
47. ' Subject: CONTINUANCE OF BOARD OF GOVERNORS FOR HABIB PUBLIC SCHOOL KARACHI AND SULTAN MUHAMMAD SHAH AGHA KHAN SCHOOL KARIMABAD, KARACHI.
48. ' I am directed to refer to the subject noted above to say that in most of the Privately managed schools, no Board of Governors has been constituted. The school has to be registered with the Directorate of School Education as per terms and conditions laid down for the Opening Private Schools and also registered and affiliated with the Board of Secondary Education for academic requirements and conduct of examination.
49. ' As discussed by you with the Education Secretary in the meeting held on 9th February, 1981 of this Department, it has now been decided that there is no need of Board of Governors for Habib Public School and Sultan Muhammad Shah Agha Khan School, Karimabad, Karachi. The Director should only ensure proper academic control and also see that there is no commercialization beyond accepted limits in these schools. In case of any incident which may affect the proper functioning of the school adversely, the matter may be brought to the notice of this Department for appropriate action."
50. ' It is also an admitted position that Habib Public School is a private education institution and is being run by the trustees. Rule 4 of the Efficiency and Discipline Rules framed by the Board of Governors Habib Public School Karachi, by virtue of section 8 of the Sindh Private Schools (Management and Control) Act, 1974 defines "misconduct" means conduct prejudicial to good order of service discipline or unbecoming of a teacher and a gentleman and includes any act on the part of an employee to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Board or the Principal in respect of any matter relating to the appointment, promotion, transfer, punishment, removal from service or dismissal from service or other conditions of service of an employee and in addition the following acts and omissions shall be treated as misconduct.
51. (a)............
52. (b)............
(c) making false or misleading statements;
(d) ....
(e) ..........
(f) wilful in subordination or disobedience, whether alone or in combination with others to any lawful and reasonable order of a superior; (g)
53. (h)
(i) ...............
(j) habitual absence without leave or absence without leave for more than ten days;
(k) habitual late attendance;
(l) ...............
54. (m).............
(n) frequent repetition of any act or omission referred to in clauses (a), (b), (c), (d).
55. ' The penalties provided for any of the acts or omissions include removal from service and dismissal from service.
56. From the above narration of facts, it is clear that Habib Public School is a private educational institution and is being run by its Trustees. The Provincial Government after taking into consideration the facts and circumstances has dissolved the Board of Governors as there are other private schools, also which are running without the Board of Governors appointed by the Government and, therefore, the petitioner cannot insist that there should be a Board of Governors for running and controlling the affairs of the Habib Public School, Karachi. As far as the termination of service were concerned, the documentary evidence goes a long way to show that formalities of law were complied with inasmuch as he was charge-sheeted and after receipt of reply he was given an opportunity to appear before the Enquiry Committee but he failed to appear. However, he was given another opportunity and thereafter the Trustees after taking into consideration the entire material available against the petitioner terminated his service. He was sent a cheque towards his dues including G.P.Fund and the same was encased by the petitioner. The relationship between Habib Public School and the petitioner was that of master and servant and, therefore, looking to the facts and circumstances of the case he could not be thrusted upon the Habib Public School against the wishes of its Trustees. In this connection reliance is placed on (1) R.T.HJanjua v. National Shipping Corporation (PLD 1974 SC 146); wherein an employee of the National Shipping Corporation was removed from service on number of charges, and he filed a writ petition before the High Court which was dismissed. The petition for Special Leave to Appeal was filed before the Honorable Supreme Court and their Lordships were _pleased to observe that:- "The Constitutional safeguards available to the generality of civil servants against arbitrary dismissal or removal from service are not available to the servants of registered company or a statutory Corporation. The general law of master and servant is applicable and the only remedy available to the aggrieved servant in such cases is to sue for damages for wrongful dismissal and not a writ of mandamus or certiorari."
(2) In the case of Principal, Cadet College, Kohat v. Mohammad Shoib Qureshi (PLD 1984 SC 170); it was observed that:-- ' In order to succeed in constitutional jurisdiction apart from the question whether the aggrieved employee to statutory body was a holder of a `public office.' More important question will be whether the conditions of 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."
57. ' In the above case, their Lordships themselves perused the documents placed on record and the papers of the case and went through the personal file of the petitioner and other relevant documents and came to the conclusion that:--- "Since the petitioner was given full opportunity to contest the charges against him but that his conduct was highly undesirable and unbecoming of a teacher of a responsible and disciplined teaching institution, the petition was dismissed."
(3) In the case of M/s. Momin Motor Company v. The Regional Transport Authority, Dacca and others (PLD 1962 SC 108); wherein by a resolution three stage--carrige permits of the appellant were taken away and allotted to the other respondent. It was contended that the appellant had a contractual right because he had been made to spend a lot of money on making route bus worthy and the understanding was that no other permit would be introduced on this route, the contention was repelled by their Lordships and it was observed that:- "The short answer of this contention is that contractual rights, if any, are not enforceable by recourse to writ jurisdiction."
(4) In the case of Qari Yar Muhammad v. Anjuman-e-Islamia (1987 SCM R 1776); the petitioner who was serving in Islamia High School Quetta, which was being run by a private institution known as Anjuman-e-Islamia challenged the order of his dismissal from service by a suit. The respondent, Anjuman-e-Islamia resisted the suit and it was contended that the suit was not maintainable but the shit was decreed. The respondent filed appeal which was dismissed by the learned Additional District Judge and the objection regarding maintainability of the suit was repelled on the ground that the school was receiving aid from the-Government. The respondent filed revision before the High Court which was allowed and the learned Single Judge was of the view that suit filed by the petitioner for declaration that the order of his dismissal was illegal and for consequential relief of reinstatement in service was not maintainable. The petitioner filed petition for leave to appeal before the Supreme Court and their Lordships were pleased to dismiss the above petition after taking note of Janjua's case (PLD 1974 SC 116) and section 21(b) of the Specific Relief Act, referred to by learned Single Judge of the High Court and the fact that the learned counsel for Educational Institution/respondent had already made concession in favour of the petitioner that he was entitled to three months 'pay, it was observed that:--- "Mere fact that the Educational Institution was receiving grant in aid from Government could not convert such a institution into a public institution or attract statutory -rules applicable to civil servants and the concession made by the learned counsel for three months' salary in lieu of three months' notice was sufficient to hold that the suit for declaration and consequential relief was not maintainable."
58. In view of the above factual as well as legal position we are of the considered view that the petitioner was given ample opportunity by the respondents Nos.2 and 3 to defend his case and that there is material on record which justifies the order regarding termination of his service.
59. Moreover, the petition itself is not maintainable in law and, therefore, the same is accordingly dismissed.
60. ' We had decided the above petition by a short order dated 05th October, 1989 and these are the reasons for the same.