' The Board of Intermediate and Secondary Education, Lahore has filed this revision petition against the judgment and decree of the Add District Judge, Lahore dated 18th of March, 1986 whereby its appeal from the judgment and decree passed by the Civil Judge, Lahore on 10-2-1985 decreeing the suit of the respondent against it was dismissed, without any order as to costs.
2. The facts of the case are that the respondent was an employee of the Board, having been initially appointed as a junior clerk on 19th of October, 1960 and subsequently promoted as senior clerk. On 10th of December, 1979, an anonymous complaint (Ex.DW.1/4) was received by the Controller of Examinations of the Board containing serious allegations of commission of unfair ' means in the conduct of Intermediate (Spring) Examination, 1979 at Bhai Pheru Centre and the involvement of the respondent therein as a master-mind. This complaint was followed by another complaint dated 27th of December, 1979 (Ex.DW.1/15) by the same complainant but this time it contained his name and address. The Chairman of the Board constituted a Special Discipline Committee comprising Professor Mir Muhammad Yaqoob, Principal, F.C. College, Lahore, Professor NA.Hamid, Principal, Govt. Islamia College, Civil Lines, Lahore and Professor Kh.Muhammad Saeed, Head of Urdu Department, Government College Lahore to make thorough probe, take suitable action against the guilty candidates after giving them personal hearing and recommend necessary action against other persons involved in the scandal. This Committee after an inquiry besides taking appropriate action against the candidates who were involved in the commission of the unfair means recommended initiation of appropriate action under the law against certain officials of the Board including the respondent and officials of Bhai Pheru Post Office vide report (Ex.DW.1/5) submitted on 26th of April, 1980. On receipt of this report, the respondent was suspended on 4th of May, 1980. On 10th of July, 1980, he was served with a charge sheet(Ex.DW.1/6) which runs as follows:-- "It has been alleged that:
(i) about 50 candidates of Science Group, with the active help and maneuvering on your part managed to substitute their answer books for the Intermediate (Spring) Examination, 1979 with forged answer books prepared in some private press and questions were attempted thereon at several places other than the Exanimation Centre i.e, Bhai Pheru,
(ii) you received Rs,2,500 for substitution of each answer book from the accused candidates,
(iii) the dispatch. Of packet of Biology Paper 'A' was delayed because the Registration Clerk of Bhai Pheru Post Office had .a dispute with you, Mr.Yousaf Sabir on the distribution of amount,
(iv) your relative Mr.Muhammad Tariq Masood s/o Muhammad Bashir appeared in the Intermediate (Spring) Examination, 1979 under Roll No,6059 at Bhai Pheru Centre while his permanent address is Salamat Pura, Lahore. You also gave him undue help at the Centre, in the substitution of answer books, and
(v) your style of living is beyond your ostensible means. In view of the foregoing, you are prima facie guilty of:
(i) gross misconduct;
(ii) style of living beyond ostensible means.
' You are hereby charge sheeted and called upon as required under Regulation VII.11 of the Board's Calendar to explain your position vis-a-vis the above charges leveled against you within 7 days of the issue of this charge sheet. In case you fail to submit your reply within the above specified period, it will be presumed that you have nothing to say in your defence and in that case, an ex parte action will be taken against you: ' The respondent in his reply denied the charges. Therefore, Mr. Muhammad Rafi was appointed as an Enquiry Officer to hold a formal enquiry. He held the enquiry in which the members of the Special Discipline Committee, Rana Muhammad Asghar, Deputy Controller and Mian Muhammad Akhtar Ali, Superintendent were examined. The respondent cross-examined these witnesses. He in rebuttal filed his written statement. The Enquiry Officer on 23rd of April, 1981 submitted his report(Ex.DW.1/7) holding that the allegation of gross misconduct against the respondent stood proved but it was difficult to say that his style of living was beyond his ostensible means. There was also no finding that he had received Rs,2,500 for substitution of each answer book from the accused candidates.
3. After receipt of the above report, the respondent was served with the following show-cause notice(Ex.DW.1/8) on 19th of May, 1981:- "You, Mr.Muhammad Yousaf Sabir, Sr.Clerk (under suspension) were charge sheeted vide this office letter No,3105-SE/EST, dated 10-7-80 alleging therein that:-
(i) about 50 candidates of Science Group, with the active help and maneuvering on your part managed to substitute their answer books for the Intermediate(Spring) Examination, 1979 with forged answer books prepared in some private press and questions were attempted thereon at several places other than the Examination Centre i.e, Bhai Pheru,
(ii) you received Rs,2,500 for substitution of each answer book from the accused candidates,
(iii) the dispatch of packet of Biology Paper 'A' was delayed because the Registration Clerk of Bhai Pheru Post Office had a dispute with you, Mr.Yousaf Sabir on the distribution of amount,
(iv) your relative Mr.Muhammad Tariq Masood s/o Muhammad Bashir appeared in the Intermediate(Spring) Examination, 1979 under Roll No,6059 at Bhai Pheru Centre while his permanent address is Salamat Pura, Lahore. You also gave him undue help at the Centre, in the substitution of answer books, and
(v) your style of living is beyond your ostensible means.
' The Enquiry Officer after conducting a formal enquiry against you in this connection has found you guilty of gross misconduct. You are therefore served with a "Show-Cause Notice" under Regulation VII.11 of the Board's Calendar as to why you should not be dismissed from the services of the Board.
' Your reply should reach the undersigned by name within 10 days of the issue of this show-cause Notice. In case you fail to submit your reply within the above specific period it will be presumed that you have nothing to say in your defence and in that case an ex parte action will be taken against you."
' On 13th of October, 1981, a notice for personal hearing (Ex.DW.1/9) was given to the respondent for 20th of October, 1981. On the request (Ex.DW.1/10) of the respondent, the date for personal hearing was fixed on 4th of November, 1981 (Ex.DW.1/11). On 14th of December, 1981, the respondent was dismissed from service vide office order (Ex.DW.1/12). The respondent filed an appeal before the Board against his dismissal from service. This appeal was dismissed by the Board on 9th of October, 1982 (Ex.DW.1/14).
4. On 2nd of November, 1982, the respondent instituted a civil suit against the Board through its Chairman for a declaration that his dismissal from service was void and ineffective and for a mandatory injunction as a consequential relief directing the Board to reinstate him with all back benefits. He alleged that the report of the Special Discipline Committee was based on suspicion, that there was no evidence to prove his involvement directly or indirectly in the commission of the unfair means by the candidates and that his dismissal was mala fide.
5. The Board resisted the suit controverting the averments of the respondent. It was contended that all the allegations leveled against the respondent were proved before the Special Discipline Committee and also before the Enquiry Officer who observed all the formalities of a proper enquiry and gave due opportunity to the respondent to defend himself. Preliminary objections were also raised to the effect that the jurisdiction of the Civil Court was barred under sections 29 and 31 of the Punjab Boards of Intermediate and Secondary Education Act, 1976 as amended by the Punjab Boards of Intermediate and Secondary Education (Amendment) Ordinance, 1985 and that the suit for declaration was not maintainable as there existed relationship of master and servant between the parties.
6. The following issues were framed by the trial Court:-
(1) Whether orders dated 14-12-1981 passed by the defendant are void ineffective against the rights of the plaintiff? O.P.P.
(2) Whether the plaintiff is entitled to the decree as prayed for? O.P.P.
(3) Whether jurisdiction of this Court is barred under sections 29 and 31 of the Boards Act ? O.P.D.
(4) Relief.
7. The respondent examined himself as PW.2 and Muhammad Ishaq (PW.1), an Establishment Assistant of the Board to prove certain documents. In rebuttal, Muhammad Akhtar Ali, a Superintendent of the Board, appeared as DW.1. He too produced certain documents. After appraising the evidence, the learned trial Court found all the issues in favour of the respondent and consequently decreed his suit.
8. Feeling aggrieved the petitioner preferred an appeal which was, however, dismissed by the learned Addl. District Judge, Lahore vide his impugned judgment concurring in the findings of the learned trial Court. Hence this revision petition.
9. Learned counsel for the petitioner has pressed into service the same contentions which were agitated before the learned Courts below viz. Firstly that the suit as instituted by the respondent was not maintainable as the relationship between the parties was governed by the principle of master and servant, secondly that the jurisdiction of the Civil Court was barred under the provisions of sections 29 and 31 of the Punjab Boards of Intermediate and Secondary Education Act, 1976 and thirdly that the requirements of natural justice were fulfilled in the enquiry held against the respondent and the Civil Court was not competent to interfere with the finding of the Enquiry Officer. He has also stressed that even if the enquiry suffered from any lacuna, the civil Court could not order reinstatement of the respondent. Learned counsel for the respondent has repelled these contentions.
10. As regards the contention that the relationship between the parties was governed by the principle of master and servant, learned counsel for the petitioner has cited Muhammad Aslam v.
National Shipping Corporation Karachi through its Chairman and 2 others (PLD 1979 Karachi 246) which is based on R.T.H. Janjua v. National'Shipping Corporation (PLD 1974 SC 146) in which it was held as follows:-- "The Constitutional safeguards available to the generality of civil servants against arbitrary dismissal or removal from service are not available to the servants of a 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."
' The above principle was amplified in the later authority of the Supreme Court reported as the Principal Cadet College Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170) wherein after discussing the subsequent authorities, it was held as follows:- "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."
11. The same principle was enunciated in Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194) in which it was observed that: "Even where the employee is not a civil servant but there are statutory safeguards governing his relationship with the employer and placing restrictions on the freedom of the parties to act, the general law of master and servant will not apply."
' Both these authorities were followed in National Bank of Pakistan v. Manzoorul Hassan 1989 SCMR 832.
12. Learned counsel for the petitioner has also referred to MRs,Hamida Mahboob v. Fauji Foundation Medical Centre Rawalpindi (1979 CLC 175) and S. Itiqad Hussain Naqvi and 5 others v. Chief Officer, Karachi and another (1979 CLC 391) which, however, are not relevant as MRs, Hamida Mahboob was not an employee of a statutory body and S.Itiqad Hussain Naqvi had been appointed purely on temporary capacity.
13. In this case, the service of the respondent was governed by Chapter VI of the Regulations containing conditions of service, leave etc. Of the employees of the Board. Regulation 11 provides as follows:- "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."
' This regulation was discussed in Board of Intermediate and Secondary Education, Sargodha through its Secretary v. Abdur Rehman (1988 SCMR 1711) and it was held that notwithstanding the use of the expression at pleasure, the relationship was statutory. The same principle was postulated in Imam Bakhsh Tatari v. Board of Intermediate and others (1986 t' L C (C S) 12) and it was observed that the statutory regulations of the Board contemplated reasonable opportunity to an employee of the Board against dismissal/removal from service and, therefore, the employees of the Board could not 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 view of the above authorities, therefore, it is quite clear that the relationship between the parties was not governed by the principle of master and servant and the respondent enjoyed statutory protection against wrongful dismissal.
14. Learned counsel for the petitioner has argued that in view of the provisions of section 20(1)(iii) of the Punjab Board of Intermediate and Secondary Education Act, 1976 before amendment by the Punjab Boards of Intermediate and Secondary Education(Amendment) Ordinance, 1985, the Board did not have the power to make any regulation concerning efficiency and discipline of officers and other employees and, therefore, Chapter VI of the Regulations containing conditions of service, leave etc. Of the employees of the Board was ultra vires. This argument is without any force. The unlamented section 20(1)(iii) contemplated that the Board would not have the power to make any regulation concerning efficiency and discipline of its employees as this power had been reserved for the controlling authority under section 12(8)(iii) of the Act. Chapter VI of the Regulations containing regulation 11 prescribes conditions of service and not efficiency and discipline rules and, therefore, the objection raised by the learned counsel does not affect the same.
15. In support of. The contention that jurisdiction of the Civil Court is barred in the matter, reliance is placed on sections 29 and 31 of the Punjab Boards of Intermediate & Secondary Education Act, 1976, reproduced as under:-- "29. No act done, order made or proceeding taken by a Board in pursuance of the provisions of this Act shall be called in question in any Court.
31. No suit for damages or other legal proceedings shall be instituted against Government, the Controlling Authority, a Board, a Committee, as member of a committee or an officer or employee of a Board in respect of anything done or purported to have been done in good faith in pursuance of the provisions of this Act and the regulations and rules made thereunder."
' The above provisions have been discussed in Muhammad Rafiq v. The Board of Intermediate & Secondary Education and others (1983 SCMR 1024), Board of Intermediate and Secondary Education, Lahore v. Ch. Anjum Pervaiz and another (1989 CLC 64) and Board of Intermediate and Secondary Education, Lahore v. Ghulam Qadir PLD 1988 SC 625) and it has been propounded that the protection under section 29 and section 31 can be availed of only when the act or purported act has been done "in good faith" and "in pursuance of the provisions of the act and regulations and rules made thereunder." Therefore, these two sections do not accord complete and unfettered immunity to an action of the Board.
16. So far as the merits of the case are concerned, no direct evidence was available to prove the participation or collaboration of the respondent in the commission of the unfair means at the Bhai Pheru Examination Centre. The only circumstances which were relied upon to implicate the respondent were that his name was specifically mentioned in the complaint, that when members of the Special Discipline Committee visited Bhai Pheru Centre they were told by an official there that before the commencement of the examination, a darkish tall person wearing spectacles came there and that this description resembled with the profile of the respondent and that one of the accused candidates had in his admission form mentioned the same address which had been intimated by the respondent as his redress to the Board and when the members of the Committee visited that place they found the candidate there and the respondent also happened to come there and admitted that the candidate was his relation. It is admitted that members of the committee never called the complainant nor did they try to contact him although his name and address found mention in the second complaint nor did he appear in the formal enquiry against the respondent although he was summoned. The name of the official of the Bhai Pheru Centre whose description of the person who visited the Centre before the examination was similar to the profile of the respondent was not disclosed in the report of the Committee nor was he examined as a witness in the formal enquiry. Therefore, these two circumstances cannot obviously he used against the respondent. The third circumstance that one of the accused candidates was a resident of the same house where the respondent resided or that they were related to each other does not furnish positive evidence of the culpability of the respondent. Inferences, howsoever strong, do not constitute positive evidence for overturning the bedrock presumption of innocence which is enjoyed by everyone till his guilt is proved beyond reasonable doubt by due process of law.
Accordingly, learned Courts below were justified in recording the concurrent finding that there was no evidence before the Enquiry Officer for holding the respondent guilty of the charge of misconduct and, therefore, the order of dismissal was unsustainable. This finding conforms to the principle laid down in Government of Punjab and another v. Tassadaq Hussain Bokhari PLD 1986 SC 162 in which it was observed that the procedure of a departmental enquiry, though shorter and somewhat summary, confers no arbitrary or capricious powers on the competent officers to draw any conclusions or to reach any destination as they please.
17. Learned counsel for the petitioner has contended that even if the departmental enquiry held against the respondent suffered from any lacuna, the Court was not competent to order his reinstatement and the only course open to it was to issue a direction to the petitioner to hold a fresh enquiry against him. This contention also is without force. The Special Discipline Committee even in the preliminary enquiry held in the absence of the respondent failed to collect any tangible evidence against him. Therefore, any fresh departmental enquiry against him would have been simply an exercise in futility.
18. In view of the above discussion, I find no ground for interference with the impugned judgment and decree and dismiss this revision petition. There shall be no order as to costs.