1. FAQIR MUHAMMAD KHOKHAR, J---This Intra-Court Appeal calls in question the validity Of the judgment dated 10-12-1991 passed by the learned Single Judge of this Court in Writ Petition No.3765-S of 1979.
2. 2.Briefly stated the facts of this case are that the appellant was appointed as a Field Officer in Grade-18 on 4-5-1977 and was confirmed as such on 5-10-1977 by order of the Managing Committee of the Pakistan Red Crescent Society which was constituted by the Pakistan Red Crescent Society Act, 1920. The petitioner was served with a charge-sheet dated 15-5-1978 for misconduct under Regulation No. 64(3)(B) and (d) of the Pakistan Red Crescent Society (Staff)
3. Service Regulations, 1974, framed under section 5 of the Act ibid. However, the disciplinary proceedings were dropped against the appellant and his services were terminated by order dated 10-6-1978 passed by the Executive Committee of the Society. The review application of the petitioner was never decided by the competent Authority although the same did not appear to lie under Regulation No.12 at all termination being not a penalty. The appellant filed Writ Petition No.3765-S of 1979 which was dismissed by the impugned judgment dated 10-12-1991 passed by the learned Single Judge of this Court.
4. 3.Dr. A. Basit, Advocate, the learned counsel for the appellant has contended that the Executive Committee was not competent to exercise the powers of termination of the services of the appellant which could be exercised only by the Managing Body of the Society in terms of Appendix-I to Regulation. No.x4 of the aforesaid Regulations. It was further argued that once the disciplinary proceedings had been initiated by the Society, the same were required to take to their logical conclusion and there was no power with the Society to drop the proceedings and to switch over by having recourse to power of termination under Regulation No. 14 of the aforesaid Regulations The impugned orders passed by the Society were also characterized by the appellant as mala fides. He further argued that the learned Single Judge in Chamber did not correctly appreciate the Import of the word "Headquarters as defined in the Staff Service Regulations and the same had to be read in the context of the power of appointment and termination of Grade-18 officers of the society. It was further argued that it was a case of attaching a stigma against the appellant and it was not a case of termination of service simpliciter as held by the learned Single Judge in Chamber.
5. 4.On the other hand, the learned counsel for the respondents has submitted that the Executive Committee was competent to pass the impugned order of termination of service of the appellant at the Headquarters. He further submitted that practically there was no distinction between the Executive Committee and the Managing Body as both the bodies were headed by the same Chairman. He refuted the allegations of mala fides levelled by the appellant against Mir Riffat Mahmood, the General Secretary of the Society. According to him, the law of master and servant was applicable in the absence of any statutory rubs.
6. 5.We have considered the arguments of the learned counsel for both the parties and have also carefully perused the provisions of law and also the impugned judgment. We do not agree with the learned counsel for the appellant that once the disciplinary proceedings are started against a public servant the competent Authority is denuded of its powers to dispense with the services of an employee by way of termination. It is now well-settled that such a course is permissible under the law. Reliance can safely be placed on the cases of Abdul Karim v. The West Pakistan Province (PLD 1956 SC (Pak.) 2981 The Secretary, East Pakistan Industrial Development Corporation, Dacca v. MD.
7. Serajul Haque (1970 SCMR 398), Water and Power Development Authority v. Muhammad Ali (1987 SCMR 261), Agricultural Development Bank of Pakistan and 2 others v. Muhammad Sharif (1988 SCMR 597) and Oil and Natural Gas Commission of India and others v. Dr. Md. S. Iskander Ali (AIR 1980 SC 1242).
8. 6.The next contention of the learned counsel for the appellant regarding mala fides of the respondents is also without any force for the reason that such an inquiry cannot normally be undertaken during these proceedings. In any case, there is a presumption against mala fides of a public functionary. Even otherwise, it is very easy to allege mala fide but very difficult to prove it and in the absence of any mala fides having been particularized, no such conclusion can be drawn merely by circumstantial evidence. See the case of Saeed Ahmad Khan v. Federation of Pakistan (PLD 1974 SC 151). The anchor-sheet of the arguments of the learned counsel for the appellant is the incompetence of the Executive Committee of the Society to terminate the services of th;, appellant. Under Regulation No.10 of the Pakistan Red Crescent National Headquarters (Staff)
9. Service Regulations, 1974 framed under section 5 of the Act, the appointment of an officer of Grade-18 is made by the Managing Body. Under Regulation No.14, the Headquarters may dispense with services of an employee with one month's notice or one month's pay in lieu of notice. The "Headquarters" has been defined by clause (h) of section 4 to mean the Headquarters of Pakistan Red Crescent Society National Headquarters. The "competent Authority" has also been defined in clause (d) to mean the Authority as specified in Appendix 1. The Managing Body of the Society has been delegated the powers to terminate the services of an officer in terms of Regulation No. 14(l)
10. (2)(4) of the Staff Service Regulations. No such power has been reserved to be exercised by the Executive Committee of the Society in the case of an officer. Normally, the power to appointment includes the power to terminate. Merely, that both the Executive Committee and the Managing Body is headed by the same person does not lead to the inference as if the Managing Body and the Executive Committee are inter-changeable institutions. In the case of Nasir Said v. WAPDA through its Chairman and another (PLD 1987 SC 421), it has been held that where an order of retirement of WAPDA employee was passed not by the Authority but by the Chairman, WAPDA, the same suffered from legal jurisdictional taint and was declared to be without lawful authority and of no legal effect. Similarly, in the case of Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092), it was held that where a power was delegated to the Member, Corporate Lam Authority (Corporate Law Wing) under the Security and Exchange Ordinance, 1969, it could be exercised by such Member only and not by the Government, the Chairman or the Corporate Law Authority. In a recent case of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. And another (PLD 1995 SC 66), the Hon'ble Supreme court of Pakistan has held that in the case of disqualification of a Member it was only the Chief Election Commissioner alone who was competent to hear reference and decide and that power was not exercisable by the Election Commission although headed by the Chief Election Commissioner. We have no hesitation in taking the view that the Executive Committee and the Managing Body are to distinct institutions of the Pakistan Red Crescent Society and their powers and functions are also not over-lapping with each other but are assigned to cope with different situations. The impugned orders of termination of services of the appellant having not been passed by the competent Authority, i.e., the Managing Body but by the Executive Committee are, therefore, void, without lawful authority and of no legal effect. It is not necessary to examine the merits of the impugned order when the proceedings of termination are coram non judice. See the case of Ejaz Ahmed v. Board of Revenue, Punjab through Member (Colonies), Lahore and 3 others (PLD 1976 Lahore 563).
11. 7.As to the objection of the learned counsel for the respondents to the applicability of the principle of master and servant, suffice it to say that the respondent is a statutory body and the impugned orders have not emanated from the authority competent to pass the same. The question as to whether the parties are governed by the rule of master and servant pales into in significance where the order itself is found to be coram non judice and nullity in the eye of law having been passed by an incompetent authority. Reliance is placed on the case of Muhammad Salimullah v.
12. Trustees of the Port of Karachi through Chairman, Karachi Port Trust, Karachi and 2 others (PLD 1975 Karachi 758). In that case, an employee was reinstated in service despite the relationship of master and servant when the impugned order had not been passed with the approval of the Federal Government which was the competent Authority in respect of senior officers of the Karachi Port Trust.
13. 8.We, therefore, accept this appeal as well as Writ Petition No.3765-S of 1979, reverse the impugned judgment dated 10-12-1991 passed by the learned Single Judge in the aforesaid writ petition and declare the impugned order dated 10-6-1978 passed by the respondent as without lawful authority and of no legal effect. Consequently, the appellant shall be deemed to have continued in service and shall also be entitled to back benefits. The appellant has also placed on record his affidavit, which is not controverted by the other side, that he worked gainfully only for the period from January, 1985 to December, 1987 and from January, 1990 to April, 1992 and accordingly he shall not be entitled to the salary and other emoluments for this period. No order as to costs.