1. ZAFFAR HUSSAIN MIRZA, J.---These two appeals shall be governed by this common judgment, as they arise out of a single judgment of a Division Bench of the Sindh High Court, dated 1st June, 1981, whereby the Constitutional petition No.177 of 1977 filed by Wali Ahmed Khan (appellant in CA. No. 63-K of 1982 and respondent No.1 in CA. No.62-K of 1982) was disposed of.
2. The facts which have given rise to these appeals may be briefly stated as follows:--- Wali Ahmad Khan joined Karachi Joint Water Board (hereinafter referred to as the Board), constituted under the Karachi Joint Water Board Ordinance, 1949, on 10th October, 1950, as a Sub- Divisional Store-Keeper. On the repeal of the Karachi Joint Water Board Ordinance, 1949 (XIII of 1949) by the K.D.A. Order V of 1957, the Board was merged with the Karachi Development Authority (hereinafter referred to as the K.DA.) on 14th March, 1958. The rules framed under Ordinance, in so far as they were not inconsistent with the provisions of the K.DA. Order, were saved by virtue of section 120(2)(ii) of the K.D.A. Order. He was promoted to the post of Circle Office Superintendent on 20th February, 1961, but not being satisfied with the same, he filed a suit in the Court of Civil Judge 1st Class, Karachi, against the K.DA. For declaration and mandatory injunction including promotion to the post of Superintendent, Chief Engineer's Office, in the scale of Rs.450-20-650. On 31st July, 1968, Circle Office Superintendents, including Wali Ahmad Khan, made a representation to the General Body of the K.D.A. For revision of their pay scales. The said representation was, however, rejected on 19th March, 1969. Wali Ahmad Khan preferred an appeal against the said order on 22nd February, 1970 which was dismissed by the Provincial Government on 20th March, 1975.
3. Aggrieved by the order of Provincial Government, dated 20th March. 1975, Wali Ahmad Khan submitted a protest petition on 26th February,,1976 to the Government of Sindh, Chief Minister of Sindh and Minister for Local Bodies, Government of Sindh. The Secretary, Local Government, before whom the said representations came to be put up, called for an explanation from Wali Ahmad Khan for submitting protest petition direct to the authorities using certain Government and K.D.A.
4. Correspondence. He furnished explanation on 4th May, 1976 which was not accepted and he was given a charge-sheet, dated 5th January, 1977 for approaching the authorities directly in violation of Administrative Instructions.
5. In February, 1977, Wali Ahmad Khan filed a Constitution Petition No.177 of 1977, in the Sindh High Court, inter alia, on the ground that the KJWB Non-gazetted (Non-Technical) Staff Recruitment Rules 1953 had been illegally amended by the Chief Engineer which had adversely affected his promotion and that he should be restored to "rank; status, cadre and pay scale to which he would be entitled but for the unlawful amendment made in the recruitment rules" and for a declaration that the charge-sheet dated 5th January, 1957 and the proceedings initiated thereunder were mala fide and without lawful authority. On his application for injunction the High Court passed a consent order on 27th May, 1977 to the effect that the enquiry proceedings against him may proceed but no adverse order be passed against him pending the disposal of the petition.
6. During the pendency of his abovementioned Constitutional Petition, Wali Ahmad Khan again made a representation, dated 25th March, 1977 to the Chief Secretary, Government of Sindh, followed by representations to the Chief Secretary and the Chairman, K.DA., dated 25th April, 1979. The Director General, K.DA. Thereupon, served him with a fresh show-cause notice, dated 20th June, 1979 for making such direct representation in violation of Administrative Instruction No.150, dated 24th October, 1973. Wali Ahmad Khan applied for an order of injunction against the said show-cause notice which was refused. He furnished a reply to the show-cause notice on 26th February, 1979 which was not accepted and an order removing him from service was passed by the K.D.A. On 25th August, 1980. The High Court allowed Wali Ahmad Khan to amend his Constitutional Petition so as to include relief against the said order of removal. An amended petition was accordingly filed on 22nd September, 1980 which was partially allowed on 1st June, 1981. The High Court, in its judgment, found as under:------
(a) Wali Ahmad Khan's contention that the K.DA. Had no jurisdiction to issue the first charge-sheet dated, 5th January, 1977, was repelled:
(b) It was held that the suspension order and show-cause notice dated 20th June, 1979 and the order of removal passed in pursuance thereof, dated 25th August, 1980 stood vitiated, inter alia on account of being mala fide and were, therefore, passed without jurisdiction. A declaration was, therefore, issued that the removal order was passed without lawful authority and was of no legal effect.
(c) It was observed by way of clarification that the K.D.A. Was at liberty to conclude the enquiry against Wali Ahmad Khan on the basis of the charge-sheet, dated 5th January, 1977. It was further clarified that the KDA could also issue a charge-sheet in respect of the alleged charges contained in the statement of allegations enclosed with the second show-a' cause notice, dated 20th June, 1979.
7. As the success in the decision of the Constitutional Petition was divided between the parties, both parties, namely, the KDA. And Wali Ahmed Khan sought to challenge the respective adverse part of the impugned judgment of the High Court, dated 1st June, 1981 against them by separate petitions for leave to ' appeal.
8. In the petition filed by the K.D.A. Leave was granted to examine the question as to the true nature of relationship between a local authority/a statutory Corporation like the K.DA. And its employee; and whether Such an employee is entitled to invoke the Constitutional jurisdiction for a `declaration' that his removal from service was bad in law.
9. And in the petition filed by Wali Ahmed Khan, leave was granted to examine whether the High Court having found that the action taken against him was mala fide, it was open to it to allow the said appellant to be again proceeded against on the basis of the same or similar sets of show-cause notices.
10. In support of the appeal filed by the K.DA., Mr. Ali Ahmad Fazeel, learned counsel, has contended, that it is well-settled by now that an employee of a local authority can be granted relief under the Constitutional jurisdiction of the High Court only if he succeeds in showing that he holds a public office. He referred to a number of decisions of the High Court and this Court in support of his contention, which will be presently referred to and discussed. His submission was that inasmuch as the office held by Wali Ahmad Khan in the service of the K.DA. And the functions attached to it were not mentioned in the statute governing the KDA, ex facie shows that he was not holder of a public office to be entitled to invoke the remedy under the Constitutional jurisdiction. Learned counsel categorically argued that every employee of a local authority was not entitled to protection under the Constitutional jurisdiction.
11. The cases relied upon by the learned counsel may now be referred to---
(1) Dr. Abdul Hafeez v. Chairman, Municipal Corporation, Lahore and others PLD 1967 Lahore 1251.
12. This case deals with a Writ Petition filed by Abdul Hafeez to call in question the validity of the order passed for his compulsory retirement from the post of Assistant Medical Officer of Health held by him under the Lahore Municipal Committee. The learned Judges of the Lahore High Court accepted the petition and declared the impugned order for the compulsory retirement of the petitioner "against law and ineffective". In this case a question was raised as to the maintainability of the writ petition, which was repelled by the learned Judges and it was held that the petition was competent under Article 98 of the then Constitution of 1962. The main reason that prevailed with the learned Judges was that the Lahore Municipal Corporation was a statutory Corporation and was `a person' and a `local authority' within the meaning of Article 98. The gist of the decision, however, is that the petitioner as Assistant Medical Officer of Health was holding a statutory office under the City of Lahore Corporation, and was continued in service under the Municipal Administration Ordinance, 1960, on the same terms and conditions. He was, therefore, performing duties of public nature and importance. On these grounds the learned Judges held that a Constitutional petition was maintainable.
(ii) Mr. Salimullah v. Trustees of the Port of Karachi PLD 1975 Kar. 758. In this case the petitioner was serving as Deputy Chief Accounts Officer in the office of the Karachi Port Trust. The petitioner was charge-sheeted and a departmental enquiry was launched against him, as a result of which the Chairman, Karachi Port Trust after obtaining the approval of the Central Government, compulsorily retired the petitioner. He then challenged the aforesaid order in a Constitutional petition before the High Court. An objection was raised about the maintainability of a Constitutional petition on the ground that the case was governed by the master and servant rule, for which the remedy was to bring a suit for damages. Learned Judges held that the law of master and servant was based on the principle of freedom of contract, but in the present case since the KPT was not competent to retire the petitioner without the Central Government's approval because of section 24 of the KPT Act, therefore, the remedy of writ was available to responsible officers of local authority, like the KPT, managing a great harbour, collecting rates, tolls etc. And framing bye-laws.
(iii) R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146. This case refers to service of National Shipping Corporation and the petitioner was serving as Regional Officer under the said Corporation established by the National Shipping Corporation Ordinance, 1963. As the petitioner was proceeded against on charges of financial irregularities and found guilty, he was removed from service. The writ petition filed by him to challenge his removal from service was dismissed in limine by a learned Single Judge of the High Court, on the ground that the case did not disclose any violation of statutory protection to the petitioner. An objection was raised when the matter was brought before this Court on behalf of the National Shipping Corporation, to the effect that the petitioner being an employee of a statutory Corporation was not entitled to seek redress in writ jurisdiction of the High Court. It was held that the fact that the petitioner was an employee of a statutory Corporation established by a statute, was immaterial to the question of law raised. It was pointed out that the essence of the matter, however, was whether the aggrieved incumbent could be regarded as holder of a "public office" which was described by Ferris in his book "Extraordinary Legal Remedies", at page 166, as: "A public office is the right, authority and duty created and conferred bylaw by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure duration, emolument and duties."
13. On behalf of the petitioner reliance was placed on the dictum laid down in the case of Dr. Abdul Hafeez (supra). But the learned Judges distinguished that case from the case in hand, by pointing out that Dr. Abdul Hafeez was performing duties of a public nature and importance, whereas as held in the case of the Lahore Central Co-operative Bank Ltd. v. Pir Saif Ullah Shah PLD 1959 SC (Pak.) 210 a Commercial Manager, even of a statutory Corporation cannot be held to be a public or statutory office, which means "an office which is by law prescribed in regard to its existence, its tenure or duties". Thus, the petitioner whose main function was to secure business for the Corporation was not found entitled toConstitutional remedy.
(iv) Salahuddin v. Frontier Sugar Mills and Distillery PLD 1975 SC 244. In this case the question was about the legality of the removal of a person from the office of Chief Executive of a Joint Stock Company incorporated under the Companies' Act and the removal of a Director of the Company. It was held that offices held by the Director and Chief Executive of such public limited company must be regarded as public offices which are of greatest interest to the public and as such a writ in the nature of quo warranto can be issued by the High Court, but no menadmus would issue for restoration or reinstatement to office.
(v) Chairman East Pakistan Development Corporation v. Rustam Ali PLD 1966 SC 848. Rustam Ali, respondent, was in the service of Pakistan Industrial Development Corporation, as Diesel-in- Charge in the. Sugar Mill at Rangpur the then East Pakistan. He was dismissed from service as a result of a domestic enquiry on charges of misconduct. In a Constitutional petition under the 1962 Constitution., he challenged his dismissal from service before the High Court, which was successful as the same was quashed. 1n the appeal before this Court it was contended that the Constitutional petition was not maintainable, inasmu ch as the service of the respondent was of a contractual nature and accordingly Constitutional remedy could not be invoked as in the case of public servants. It was held, following the case of Pir Saif Ullah Shah referred to hereinabove, that writ was not a proper remedy in a case like the one in hand, which is governed by the ordinary law of master and servant.
(vi) Shahid Khalil v. Pakistan International Airlines Corporation, Karachi 1971 SCMR 568. The question before the Court in this case was whether the post of Secretary to the Managing Director of the Pakistan International Airlines Corporation, created by a statute was a public office, so that a Constitutional petition for restoration to the said post would be competent. The Court following the case of Pir Saif Ullah Shah held that the post in question in no way can be regarded as equivalent to a "public office" and therefore writ was not available to secure restoration thereto.
(vii) Muhammad Aslam v. National Shipping Corporation PLD 1979 Kar. 246. An employee of the National Shipping Corporation appointed as Fourth Engineer on a ship was dismissed from service on being found guilty of charges of misconduct. In this case. The learned Judges of the High Court held that the fact that a Corporation performs the functions relating to the affairs of the Government will not ipso facto entitle an employee of such Corporation to invoke the Constitutional remedy for his reinstatement in service. It was further held that in view of the large number of reported cases of this Court the rule is well-laid down that the relationship between a Corporation and its employee is that of master and servant. In this view of the matter the Constitutional petition was dismissed.
(viii) Evacuee Trust Property Board v. Muhammad Nawaz 1983 SCMR 1275. This case related to the removal of the employee from service of the District Evacuee Trust Committee which was governed by statutory rules of service. However, in this case the dismissed employee challenged his removal from service in a suit for declaration tiled in the Civil Court. As the suit was ultimately decreed in appeal and the revision riled by the Evacuee Trust Property Board was dismissed by the High Court, the matter was ultimately brought before this Court. It was contended that even though the removal or dismissal of the employee was illegal, non-the-less the employee could only sue for damages for wrongful dismissal from service, but could not be granted a declaration, in that, the relationship between the parties was that of master and servant, subject to the pleasure of the master. This contention was repelled, on the ground that the service of the employee was governed by statutory rules and as the dismissal was in violation of those rules it was illegal. The learned Judges in taking this view observed that "where statutory rules governed the service conditions of an employee, then the pleasure of the master stands surrendered to the extent the matter is covered by the relevant rules".
(ix) Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170. The decision in this case related to the termination of service of a member of the office staff and a member of the teaching staff of the Cadet College, Kohat by the Board of Governors. The Cadet College was established under a statute called; The West Pakistan Educational and Training Institution Ordinance, 1960, which was run by a Board of Governors, with powers of recruitments of members of staff and determination of the terms and conditions of their service. The rule making power under the statute vested in the Government, whereas the Board of Governors, subject to the approval of' the Government, was empowered to frame regulations, inter alia, relating to recruitment, tenure of office, terms and conditions of service of the officers and servants appointed by the Board. The aforesaid West Pakistan Ordinance of 1960 was repealed and replaced by the N.W.F.P. Ordinance of 1971, re-enacting identical provisions relating to the aforesaid relevant matters. It was held in this case that as no rules or regulations were in fact framed there is no question of the violation of any statutory rule, and no statutory provision was also violated.
14. Therefore, the Constitutional jurisdiction of the High Court could not be invoked. Nasim Hasan Shah, J., who wrote the judgment (or the Court, reviewed the case law touching the question of law from Janjua's case downwards including most of the cases referred to above. It was then observed by him as follows: "It is, therefore, evident that where the conditions of service of an employee of a statutory body are governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules can be set aside by a writ petition. However, where his terms and conditions are not governed by statutory rules but only by regulations, instructions or directions which the institution or body, in which he is employed, has issued for its internal use, any violation thereof will not, normally, be enforced through a writ petition.
15. In this view of the matter, the holding of a `public office' by an employee is not all that crucial because, as rightly pointed out by Qari Muhammad Jamil, learned counsel for the respondent in Civil Appeal No.17 of 1981, this condition is relevant only in cases wherein a writ in the nature of quo warranto is sought whereby a person holding a public office within the territorial jurisdiction of a High Court may be required to show the authority, of law tinder which he claims tohold the said public office.
16. Thus, apart from the question whether the aggrieved employee of a statutory body was a holder of a `public office' the more important question will be whether the conditions of his 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."
(x) Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194. In this case a junior officer in the service of Agricultural Development Bank of Pakistan had tendered his resignation which he subsequently sought to withdraw, but in the meantime he was communicated the decision of the Bank that his resignation had been accepted. Thereupon, he instituted a suit for declaration challenging the acceptance of his resignation as termination of service and sought declaration and permanent injunction. The Bank in its defence, inter alia, took up the plea that the suit was not maintainable as the service of the employee was governed by the law of master and servant. The suit was, however, decreed by the trial Court and this decree was affirmed in appeal. Ultimately, the High Court set aside the decree passed in favour of the employee upholding the objection with regard to the maintainability of the suit. The petition brought before this Court against the decision of the High Court was dismissed by the judgment which has been reported in Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194. It was held that as the matter of appointment and terms and conditions of service of the employees were left to be regulated by the Agricultural Development Bank of Pakistan under section 30 of the Agricultural Development Bank of Pakistan Ordinance, 1961, which also conferred power of appointment of officers on the Bank upon terms and conditions as may be prescribed by Regulations framed under section 39 of the said Ordinance, the general law of master and servant was applicable. The reasoning adopted in this case runs as follows:--- "It follows that if the relationship is the result of a contract freely entered into by the contracting parties then the principle of master and servant will apply. The principle, however, will not apply if some law or statutory rule intervenes and places fetters upon the freedom of the parties in the matter of the terms of the contract. It is on this principle that a civil servant for whom there are Constitutional safeguards, is not governed by the principle of master and servant, for he is possessed of a legal character for the enforcement of which he can bring an action. Even where the employee is not a civil servant but there are statutory safe---guard 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. In such cases the employer would be bound to follow the procedure provided for in the statute or the statutory rules before terminating the service of the employee and in the absence of conformity to such procedure, the termination of service would not be clothed with validity and the employee will be entitled to an action for his re-instatement"
17. After referring to sections 30 and 39 of the aforesaid Ordinance the final conclusion dismissing the petition of the employee was stated as hereunder---- "It is clear from the above that the Bank has complete control over its employees, their appointment and dismissal and their terms and conditions of service and that this control is not fettered by any statutory provision. The rule of Master and Servant will, therefore, apply to the case of the servants of the Bank."
18. However, as there was an amendment made in section 39 of the Ordinance by Act XII of 1973, which was not brought to the notice of the Court, the reported judgment was reviewed, because although as originally enacted section 39 placed no fetter on the power of the Bank to regulate the terms and conditions of the service of the its employees inasmuch as the Board of the Bank was free to make any regulations with regard to the terms and conditions of service of its employees, by the aforesaid Amending Act the regulations relating to terms and conditions of service of the employees, were subjected to the approval of the Federal Government. In this view of the matter the review application was accepted and leave was granted against the judgment of the High Court and the matter was disposed of as Civil Appeal No.922-K of 1990 (Anwar Hussain v.
19. Agricultural Development Bank of Pakistan and others). The law as laid down in the reported judgment relevant portion of which has been reproduced first hereinabove, was maintained, but the question was considered whether there was any such statutory regulation issued with the approval of the Government, which was violated in this case, so as to entitle the employee to the relief of declaration and re-instatement. Upon considering the statutory regulations bearing upon the terms and conditions of service of the employee, it was found that there was no such violation of any specific statutory rule or regulation so as to entitle the employee to the relief of re- instatement in service. However, the case was decided on the principle enunciated in Evacuee Trust Property Board v. Muhammad Nawaz 1983 SCMR 1275 that if there had 'teen any rule having the effect of creating "statutory fetters, whereby the master's pleasure is deemed to have been surrendered to the extent that the matter is covered by the relevant rules", then the theory of master and servant would be inapplicable.
20. The review of the cases discussed above shows that the general rule is that the service of a person with a statutory Corporation is essentially based on contractual relationship and is therefore governed by the law of master and servant, which implies that the remedy for illegal termination of service resulting into the breach of contract of service, is to file a suit for damages but no suit for declaration is maintainable, for the simple reason that a service contract is not specifically enforcible, which will result in compelling an unwilling master to accept a person in his service against his will. The position so far as the Constitutional remedy under Article 199 of the Constitution is identical. However, in cases where the post held by the employee of a statutory Corporation, is a public office, as defined hereinabove, then relief in the nature of quo warranto to remove a person who is unlawfully holding the post can be granted in Constitutional jurisdiction.
21. The other exception to the aforesaid general rule is that if the freedom of contract is placed under statutory fetters, by reserving controlling power with the Government in the matter of framing of rules or regulations touching the terms and conditions of service of the employees of such a statutory body, in such a case the pleasure of the master is taken over by the statutory provisions and the case would stand outside the master and--- servant rule, so that Constitutional jurisdiction would be amenable to any violation of the I statutory rules or regulations.
22. The main burden of the arguments advanced by Mr. Ali Ahmad Fazeel on behalf of the K.DA. Was that Wali Ahmad Khan having held the post of Office Superintendent was not holding a public office and therefore remedy under the Constitutional jurisdiction could not be invoked. This position has not been controverted and learned counsel for Wali Ahmad Khan was unable to show that the post held by him satisfies the tests laid down for the purpose whether the post was a public office.
23. So far as the power of appointment and dismissal from service in respect of the post of office Superintendent is concerned, admittedly it vests in the Director General, subject to any rules for the time being in force. The rule making power for the purpose-of giving effect to the provisions of the K.DA. Order has been given to the Government under Article 14 thereof, whereas under Article 15 of the said Order, power has been vested in the KDA. To frame regulations, inter alia, in the matter of terms and conditions of service. This power is unbridled and unfettered by the statutory intervention of any outside authority. It is common ground that no rules have been framed by the Government under Article 14. Therefore, in accordance with the dictum laid down in the case of Anwar Hussain PLD 1984 SC 194, as there is no clog on the freedom of the parties in the matter of terms of contract of service, ordinarily the rights of the employee will be governed by the law of master and servant.
24. However, it has been argued by Mr. Muhammad Ali Sayeed, learned counsel for Wali Ahmad Khan that as he was an employee of the now defunct Karachi Joint Water Board until its merger with the K.DA. Pursuant to K.D.A. Order, 1957, therefore, he became an employee of the K.DA. By operation of law. In the premises it is urged that by virtue of Article 120(2)(ii) of the K.DA. Order, his service will be governed by the rules framed by the Karachi Joint Water Board, called the Karachi Joint Water Board Rules, 1956, which were continued and made applicable to him notwithstanding the change of the employer. Learned counsel further submitted that as no rules under Article 14 of the Order have so far been framed by the Government, the aforesaid Karachi Joint Water Board Rules, 1956 would be continued in force and be deemed to be rules made under the Order. He referred to rule 16(b) of the said Karachi Joint Water Board Rules, 1956 whereby disciplinary action resulting in removal or dismissal from service in respect of persons holding the posts the monthly salary or the maximum monthly salary of which exceeds 500 rupees but does not exceed 1,000 rupees, was subject to the previous sanction of the Government. Accordingly he emphatically urged that as the power under section 8(2) authorising dismissal from service of various categories of officers, was expressly made subject to any rules for the time being to force, it follows that in the case of Wali Ahmad Khan who fell under the aforementioned category of officers, the action of dismissal could only be taken with the prior sanction of the Government. In this view of the matter, in the case of Wali Ahmad Khan, the powers of the K.D.A. Were fettered and therefore he could not be dismissed without the prior sanction of the Government which was not obtained. He was therefore entitled to invoke the Constitutional jurisdiction in terms of the dictum laid down in the case of Anwar Hussain (supra).
25. We are unable to accept the contention of the learned counsel for the same reasons as prevailed with the learned Judges of the High Court in repelling the same contention which are reproduced from the following extract of the judgment: "In our view the provisions of Karachi Joint Water Board Rules, 1956 were saved to the extent, which were not inconsistent with the main provisions of the K.D.A. Order. The phrase `subject to any rules for the time being in force' used in Article 8(2) refers to only those provisions of the Rules which were not inconsistent with the provisions of the Ordinance for the simple reason that by fiction of law by virtue Of above Article 120(2)(ii), the K.D.A. Order is deemed to have been in force at the time of the framing of the above Karachi Joint Water Board Rules, 1956. If that is so, from it, it must follow that on the day of the promulgation of the K.D.A. Order by fiction of law the above Rules of 1956 were not in existence, as they are deemed to have been framed as if the K.DA. Order was in force on the day of the framing of the above Rules. In this view of the matter, the petitioner cannot press into service the original Rule 16 of the Karachi Joint Water Board Rules, 1956 in toto. Since there is inconsistency between Rule 16 and Article 8(2) of the K.D.A. Order inasmuch as Rule 16 provides that in case of posts the monthly salary of which does not exceed Rs.500 the Chairman was competent and in respect of the posts, the monthly salary of which exceeds Rs.500 but does not exceed Rs.1,000, the Board subject to the approval of the Central Government was competent, whereas Article 8(2) lays down that in case of posts, the monthly salary of which does not exceed Rs.750, the Director General K.DA. Is the competent authority and in case of posts, the monthly salary of which does not exceed Rs.1.000 the Chairman etc. The above inconsistent provision of Rule 16 has been negatived by Article 8(2) of the K.DA. Order and was not 'saved by Article 120(2)(ii). In this view of the matter, it cannot be urged that ex facie the Director General K.D.A. Had no jurisdiction to issue the impugned charge -sheets/show-cause notice etc."
26. We fully endorse the view taken by the learned Judges of the High Court' that as the provisions of Rule if (b) of the. Karachi Joint Water Board Rules, 1956 arc in conflict with Article 8(2) of the K.DA.
27. Order, the said provisions of their rule were not saved and continued in force. Therefore, the sanction of the government was not necessary in the case of dismissal from service of Wali Ahmad Khan whose case would admittedly fall under category mentioned in Article 8(2)(a) of the Girder.
28. It was finally urged by Mr. Muhammad Ali Sayeed that even if it is held hat the removal of the employee was not made subject to prior approval of the Government and the right to remove him was an unconditional right vesting in the K.D.A., there are some distinguishing features in this case which required to be taken into consideration. In this connection, learned counsel pointed out that the removal order passed against the employee (page 185 of the paper-book, C.A.K-62/1982) clearly shows that the competent authority had passed the same in exercise of powers vested in him under Article 8(2) of the KDA Order, 1957. However, as this action, i.e., the exercise of particular statutory power, has been held by the High Court to have been tainted with mala fides, it was strongly urged that as mala fides vitiates the most solemn transactions, even an unfettered statutory power of removal, would be liable to be struck down in the Constitutional jurisdiction. In the submission of the learned counsel it is only bona fide exercise of unfettered power of statutory body, which will be immune from challenge on the principle of master and servant.
29. This submission of the learned counsel has not been controverted by the I learned counsel for the KDA, nor was any attempt made to challenge the finding recorded by the High Court to the effect that the order of removal from service passed against Wali Ahmad Khan was vitiated on account of mala fides and was therefore without jurisdiction. After giving careful consideration to the last mentioned contention it seems to me that it has great deal of force.
30. The recent trend of authority in this Court seems to be in favour of the proposition that even where untrammelled power of removal from service under a statute has been conferred on a statutory Corporation or body, without as signing any reason the exercise of such power to be immune from judicial scrutiny, must be accompanied by absence of the taint of mala fides. In other words, any statutory power of removal from services of a body constituted under the statute to be free from challenge must be the result of a bona fide exercise of such power, The first case in this connection to be noted is WAPDA Vs. Muhammad Arshad Qureshi (1986 SCMR. 18) in which a number of appeals relating to the employees of the WAPDA were disposed of. Under subsection (1--A) of Section 17 of the Witter and Power Development Authority Act (XXXI of 1958). The Authority was invested, notwithstanding anything contained, inter alia, in the terms and conditions of service of any person employed by the Authority, tile power to remove from its service any such person without assigning any reason after giving him 30 days notice or pay in lieu thereof. The cases disposed of by this judgment were all such cases of removal in the exercise of this power. In this connection this Court observed as under: "The matters required to be examined in scrutinising the exercise of power under subsection (1-A) are (a) the competency of the individual or body taking action under it (b) the amenability of the individual in respect of whom such a power has been exercised (c) the presence of taint of mala fides or bias in exercise of that power, the postulate of legislative authorization to the exercise of public power being that it will be exercised bona fide. It is only after satisfying such tests or requirements that power can be said to have been exercised in a manner to achieve irrevocability or immunity from further scrutiny or substitution."
31. In Agricultural Development Bank of Pakistan v. Muhammad Sharif 1988 SCMR 597 the same postulation was re-asserted, in considering Regulation 13(1) of the Staff Services Regulations framed by the Agricultural Development Bank which gave unqualified discretionary power to the Bank to terminate the services of an employee without assigning any reason, While repelling the contention advanced to the effect that the absolute discretionary power under the said regulation ought not to have been invoked and instead the procedure for punishment for misconduct should have been followed, it was observed as under: "We find that the authoritative decisions of this Court have consistently conceded such a power to the competent authority, of course not so if it is shown to be mala fide either in fact or in law."
32. If the absolute discretionary power of removal from service can be subjected to judicial scrutiny and set aside on the ground of mala fides, there is no reason to hold that a power exercised after a departmental enquiry the proceedings of which are tainted with mala fides, can be immune from scrutiny in the Constitutional jurisdiction.
33. In the light of the foregoing discussion it appears that the last contention raised by the learned counsel is on a sound footing. As has been laid down in several decisions of the Superior Courts a mala fide act is a fraud on statute and wholly void. Therefore, if an officer or an authority of a statutory body exercises; power of removal mala fide, obviously such action cannot be deemed to be referable to the statutory body acting as the master terminating the service of the employee. It will be an act wholly alien to the objects and purposes for which such a statutory body has been brought into existence under the relevant legal dispensation. Thus, there will be hardly a question of the breach of the service contract by the master. In such circumstances I feel that if the statutory body is amenable to writ jurisdiction, as in the present case the K.D.A., is as, a local authority, the remedy under Article 199 would be available to challenge the mala fide exercise of statutory authority. Subject, however, to the well recognised rule that if disputed questions of fact relating to mala fides are raised, it will always be open to the Court not to embark upon a factual inquiry and leave the party to the remedy of a suit. In this case, the situation was that on the basis of admitted facts on the record, the Court was able to reach a finding on the question of mala fides. In this view of the matter, the only contention raised on behalf of the KDA. Regarding the maintainability of the Constitutional petition stands repelled. The arguments advanced on behalf of Wali Ahmad Khan in support of his appeal (CA. No.63-K of 1982) have been dealt with hereinabove and no further argument was advanced by the learned counsel in support of that appeal.
34. It may however be recalled that in Wali Ahmad Khan's appeal (CA. No.63-K of 1982) leave was granted to examine the question whether the High Court, having found the action taken against him in removing him from' service vide order, dated 25th August, 1980 on the ground of mala fides, it was open to the High Court to allow Ali Ahmad Khan to be again proceeded with on the bass of the same or similar sets of show-cause notices. No argument was advanced to support of this question at the hearing of the appeal by the learned counsel for Wali Ahmad Khan. However, we have examined the judgment of the High Court and we find that the main reason that prevailed with the learned Judges of the Division Bench to reach a finding of mala fides against the K.D.A. In this respect, was the sequence of events leading to and culminating in the order of removal passed in August 1980. In this connection, it would be pertinent to state that the learned Judges took into consideration in detail certain facts reflected in the proceedings of the Constitutional petition pending which the action was taken, which demonstrated the conduct of the authorities of the K.D.A. Reflecting mala fides. In this connection, reference was made to an order passed by the High Court, dated 27th May, 1977 whereby the first departmental inquiry was allowed to proceed but no adverse order against Wali Ahmad Khan was to be passed. The next fact noted was that an order was passed on 20th June, 1979 placing the said Wali Ahmad Khan under suspension and simultaneously serving him with a show---cause notice for termination of service. As already observed the appellant sought time for submitting a reply on the ground of his serious heart ailment and the pendency of the Constitutional petition by him challenging previous departmental action. In the back drop of these facts, learned Judges noted that Wali Ahmad Khan moved an application on 13th August, 1979 praying that the authorities of the K.DA. Be restrained from giving effect to the suspension order and from proceeding in relation to the aforesaid show-cause notice.
35. Notice was ordered on this application and while pending the hearing of the main petition alongwith the stay application which could not be heard on several hearings because the K.D.A.
36. Obtained adjournments, without waiting for the result of the proceedings, the K.D.A. With indecent haste removed Wali Ahmad Khan from service, which was found by the learned Judges to be with the object to render the Constitutional petition and the stay application infructuous. It is not necessary to mention the other reasons that prevailed with the learned Judges in support of this conclusion However, it is sufficient to state that apparently the learned Judges found the suspension order, dated 20th June, 1979 and the show-cause notice of the samedate as well as the removal order passed in pursuance thereof to have been vitiated, inter alia, on account of being mala fide and therefore without jurisdiction. One of the main reasons that found favour with the learned Judges in upsetting these orders was that serious charges like fabrication of official record were levelled against the employee and yet without affording him an appropriate opportunity of hearing and without holding a formal inquiry, he was removed from service. This conduct was deprecated by the learned Judges and was found to sustain the plea of mala fides. However, if there were certain acts of omission or commission, which are found proved against the employee in a proper departmental proceeding free from mala fides, the learned Judges found it fair to leave it open to proceed against the employee by holding an inquiry instead of removing him summarily.
37. We do not find any reason to interfere with this decision/observations made by the High Court.
38. For the foregoing reasons both the appeals fail and arc accordingly dismissed with costs.
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