' MAULVI ANWAR-UL-HAQ, J.---This I.C.A. Calls in question the judgment dated 4-121991 of a learned Single Judge in Chamber whereby he dismissed Writ Petition No, 849 of 1988.
2. While in service of the Provincial Government in the Department of Livestock and Dairy Development, the appellant pursuant to an advertisement published by the respondent Authority inviting applications for the post of Private Secretary/Staff Officer in BPS-17, applied for the same.
He was selected for appointment to the said post. After seeking necessary sanction, the appellant joined the respondent Authority (hereinafter referred to as MDA) on 21-3-1981 on deputation. On a promise extended by MDA to employ him as a Private Secretary in BPS-17, the appellant sought retirement from his parent Department. The sanction was accorded and the appellant joined the MDA on 1-6-1982. This joining was proceeded by a letter of appointment issued by MDA on 10-5- 1982 (Annexure B to the writ petition). During the course of his service the appellant was transferred and appointed to various posts and was even promoted to the post of Deputy Director Administration w,e,f, 1-10-1985. According to the contents of writ petition, the appellant, in performance of his duties, on discovery of a fraud of a huge amount suggested reference to the Provincial Government of action against those involved. This suggestion earned him the wrath of the powers to be in the MDA and then came after him with several actions including removal from the post of Deputy Director which he was holding; several charge-sheets wherein Officers either' equal in rank or subordinate to him were appointed Inquiry Officers or Authorised Officers. A novel procedure was adopted to remove the objection of the appellant in this regard by reverting him to a post in BPS-16. This latter act of the respondents was challenged by the appellant by filing Writ Petition No, 674 of 1987 in this Court which was allowed on 21-3-1988 and the said order was set aside. This further infuriated the officials concerned who vide an order dated 12-4-1988 restored him to his ports in BPS-18 but was placed under suspension with retrospective effect. He was, however, forced to appear before Inquiry Officer who according to the appellant was not authorized to act in the matter. He then filed Writ Petition No, 533 of 1988 in this Court for redress of grievance. While the writ petition was pending, the appellant was served with a notice dated 30-5- 1988 informing him that his services shall stand terminated after 30 days of the service of the notice in terms of initial letter of appointment. The said writ petition was accordingly disposed of on 5-6-1988. Writ Petition No,849 of 1988 was filed by the appellant questioning the notice of termination dated 30-5-1988, order dated 12-4-1988 placing him under suspension and a notice dated 27-6-1988 (Annexure J to the writ petition) calling upon him to appear before the Authorized Officer for personal hearing. The writ petition was admitted to regular hearing and the respondents filed a written statement. The matter was heard on 4-12-1991. Vide impugned Judgment dated 22- 12-1991 the learned Single Judge in Chamber dismissed the writ petition.
' The petitioner argued his case in person. He contends that the learned Single Judge has erred while holding the appellant to be a contract employee and as such not entitled to the benefit of the service Regulations as also the Provincial Government Rules adopted by MDA governing the service of its employees. He vehemently argues that the impugned order/actions are tainted with malice which are apparent on the face of record and as such the same could not be sustained on the touchstone of the Rule of Master and Servant. Malik Muhammad Ameen Advocate, learned counsel for the respondents, on the other hand, objects that the writ petition itself was not competent.
According to the learned counsel even if it be assumed that the appellant was an employee of MDA and the Service Regulations were applicable, then the said Regulations having no statutory warrant could not be enforced and the only inference would be that the relationship between the parties was governed by the Law of Master and Servant and as such the relief for reinstatement could not be granted to the appellant. The learned counsel supports the impugned order of the learned Single Judge.
3. We have gone through the pleadings of the parties and the documents appended with the writ petition. We find that the learned Sigel Judge was impressed by the terminology of appointment letter dated 18-5-1982. In particular the words "on re-employment and clause IX of the said letter (Annexure B to the writ petition) caught his attention. The said words and the clause IX, taken in isolation do give the impression as the one gained by the learned Single Judge. However, to our mind, the contents of the appointment letter ought to be seen as a whole and in context of the overall circumstances of the case. We have already stated above that the respondents filed a written statement to the contents of the writ petition filed by the appellant. It was not denied in the written statement that the appellant was not only, being posted and transferred hither and thither but also the fact that he was in fact, promoted by the competent Authority to the next higher post.
It was, however, alleged that the promotion was irregular without pointing- out as to what the irregularity was. One can also not lose sight of the fact that MDA is a statutory corporation owned by the Provincial Government and in this context there is no concept of a service contract for an indefinite period. It is a matter of record that till the issuance of the impugned termination notice, the appellant continued in service and find it difficult to accept the proposition that throughout this period he remained in service on contract basis. The phenomena of promotion is also alien to a contract of service. We are, therefore, constrained to disagree with the observations in the impugned ' order to the effect that the appellant's service with MDA was on a contract basis. While so concluding, we also draw support from the fact that the order of reversion of appellant from the post being held by him in Grade-18 to Grade-16 was passed. Apart from the fact that the order was challenged in this Court and while allowing the Writ Petition No,674 of 1987, this Court set aside the said order, we find that the mere act on the part of MDA to revert the appellant from a superior grade to an inferior grade derogates from the idea of appellant's employment being on contract basis. So far as the effect of the words "on re-employment" in the appointment letter dated 10-5- 1982 is concerned, we find that nothing turns on the same. To our mind, there was no question of re-employment. Before 10-5-1982, admittedly, the appellant was serving MDA on deputation under sanction of his parent Department in the Provincial Government. He was employed only on 10-5- 1982 in MDA after he had sought sanction for retirement, to continue his employment with MDA.
4. The result would be that the appellant was an employee of MDA on the date, the impugned termination notice was served on him.
5. Having reached the said conclusion, we have to deal with the objection of Malik Muhammad Ameen, Advocate regarding the very maintainability of the writ-petition filed by the appellant and we may state that the objection has considerable force. The learned counsel relies on the case of "Munir Latif Raja v: The Multan Development Authority and others" (1995 PLC (C.S) 898) wherein a Division Bench while dealing with the case of an employee of MDA concluded that such an employee cannot invoke writ jurisdiction for enforcement of terms and conditions of his service as the relationship would be governed by the law of Master and Servant. The learned Division Bench after examining the various aspects of the matter as to the powers of the MDA to frame the Regulations and also absence of any Rules on the subject by the Provincial Government, reached the said conclusion relying upon the case of "Chairman WAPDA and others v: Syed Jameel Ahmad"
(1993 SCMR 346). We find ourselves in respectful agreement with the said conclusion of their lordships in the case of Munir Latif Raja, (supra) and we do find that the Service Regulations and even the adoption of the Punjab Civil Service (Efficiency & Discipline) Rules, 1975 by MDA would not constitute the said Regulations or Rules to have a statutory warrant. Having found that Rules or Regulations applicable to appellant's service being non-statutory, we have to see as to whether an employee subject to such Rules can be rendered bereft of a remedy in all cases particularly cases of mala fides and coram non judice. To our mind, this is not the intention either of Law or of the illustrious Judgments referred to above. In our Constitutional history, the superior Judiciary has been on several occasions confronted with jurisdictional bars enacted in several legislative measures and even in the Constitution of the country. On almost every such occasion, it has been held that such bars and fetters, if within the legislative and constitutional bounds may take effect but the following three exceptions have always been made:
(i) an action which is mala fide:
(ii) an action which is without jurisdiction and;
(iii) an action which is coram non judice.
' This has been the consistent view of the Supreme Court of Pakistan. We refer here to the case of "Farooq Ahmad Khan Leghari v. Federation of Pakistan" (PLD 1999 SC 57) where Chief Justice Ajmal Mian (as his lordship then was) also came to the same conclusion after having recapitulated almost the entire case law on the subject. We also find that the concept of the Law of Master and Servant does not emanate from any C Constitutional provision or even a statute or some injunctions of Holy Qur'an or Sunnah of the Holy Prophet (p.b.u.h.). On the other hand, it is but a notion of English Common Law. We doubt Whether in the presence of dispensations in vogue in the present day particularly Article 2A of the Constitution of Pakistan, resort can be had to notions of English Common Law. We tend to draw support for our said view from the following observations of Mr. Justice Muhammad Afzal Zullah (as his lordship then was) made in the case of "Muhammad Akram v. Mst. Farman Bi" (PLD 1990 Supreme Court 28) which appear on page 39 of the report:--- "The resort to a rule of common law of England in perference to the one of Pakistan Law or a rule of Islamic Law or jurisprudence; or for that matter, the Islamic Common Law, is not now possible under the Pakistan Constitutional and legal set-up."
' Although the said observations of his lordship do provide some ground to the doubts expressed by us on the subject, we do not intend to delve further in the matter as we find that even if the relationship between the parties are governed by the rule of Master and Servant in the absence of statutory Rules, still an action adverse to the appellant falling within the three exceptions noted above, would not be exempted from scrutiny of this Court. We rely on the case of "Karachi Development Authority and another v. Wali Alin ad Khan and others" (1991 SCMR 2434) for the said view. A perusal of the writ petition and its reply would show that the appellant made specific allegations constituting mala fides in paras. 4 and 5 of writ petition. However, what to speak of an explanation or traversed to the allegations made therein, we do not find even a specific denial of the same within the meaning of Order VIII, rule 3, C.P.C. In the written statement of the respondents.
Instead in reply to para. 4 of the writ petition, they have come out with a spate of counter allegations against the appellant almost painting him blue. This is what the case of appellant is that instead of giving him a fair chance to defend himself against the said allegations which according to him are reckless, the respondents have proceeded to summarily remove him from service. In fact, we find that the contents of the written statement by themselves go to support the case of the appellant as to the mala fide nature of the orders passed against him by the respondents. In reply to almost every para. Of the writ petition, he has been described as a corrupt officer and reference has been made to the several inquiries pending against him. The appellant at least on the face of the record present before us never shirked to face the inquiry. All he has been pointing out is that the inquiries which have been ordered under the Rules should be conducted in accordance with those Rules. The allegation of the appellant that the respondents were infuriated by his success in earlier Writ Petition No,674 of 1987 can also not be simply thrown out of hand. Here we may refer to the following observations of Mr. Justice Zafar Hussain Mirza (as his lordship then was) in the case of Karachi Development Authority, (supra) appearing at page 2448 of the report:- -- "As has been laid down in several decisions of the Superior Courts a mala fide act is a fraud on Statutes 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 preferable 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."
Although mala fide basically is a question of fact yet in the state of pleadings, present on record, we do not find it difficult at all to record the .Finding that the act of summary termination of service of the appellant on the part of respondents was motivated by mala fides and as such is coram- non-judice.
6. As a result of above discussion, we allow this I.-C.A. And consequently Writ Petition No,849 of 1988, the result would be that the order/action dated 30-5-1988 terminating the service of the appellant with MDA is declared to be void and without lawful authority. However, we want to clarify here that there will be no fetter on the respondent/MDA to proceed in accordance with Law and the Rules with the pending inquiries against the appellant. Parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.