MUHAMMAD ISLAM BHATTI, J. - The case of the petitioner as set up in this writ petition under Art. 199 of the Constitution of Islamic Republic of Pakistan, 1973, briefly stated, is that he was appointed as Bursar in Divisional Public School, Model Town, Lahore (duly registered under the Societies Registration Act, 1860, the affairs of which are regulated by Divisional Public School Bye-laws, Rules and Regulations, 1966), on 15.2.1989 and was posted as Additional Administrative Officer Divisional Public School, Township Branch, Lahore in 1994. He has claimed that while performing the functions and duties assigned to him as Bursar and Addl. Administrative Officer, it was brought to his notice that sweeperesses and Ayas were in the habit of leaving the school before the school timing and on inquiry, it transpired that they used to do so at the instance of a Naib Qasid named Muhammad Zaman. When the matter was looked into, this Naib Qasid not only refused to sign the report but also exchanged hot words with the petitioner and the latter was obliged to report the matter to the Headmaster (Senior Wing) for disciplinary action against the said Naib Qasid on 13.6.1996.
According to the petitioner, Muhammad Zaman, therefore, developed malice and grudge against him and manoeuvred a complaint signed by as many as 38 employees of Class-IV directly working under his supervision, against the petitioner. The prayer made therein was that the Addl.
Admn. Officer be transferred. The Principal asked the petitioner to submit a reply which he accordingly did on 20.7.1996. The Principal then appointed Mr. Ghulam Muhammad Malik, Headmaster Senior Wing (Boys), Divisional Public School, Model Town, Lahore, as Inquiry Officer vide his letter dated 23.9.1996. The petitioner was required to submit a reply of the said application and the charges contained therein which he did on oath on 21.9.1996. During the course of inquiry, however, in spite of verbal and written requests of the petitioner, neither a show-cause notice was issued to him nor was any charge-sheet handed over to him nor was he allegedly allowed to defend himself and the said Inquiry Officer only allowed him to cross-examine the witnesses after already having recorded their statements at his back. The requests made by him verbally as also through written representations, to give him an opportunity of being heard and providing him the statements so recorded, in order to enable him to lead his defence, were not responded to by the Inquiry Officer and resultantly, the respondent/Commissioner, Lahore Division being the President of Board of Governors imposed the penalty of removal from service w.e.f. 29.10.1996 on the petitioner. The petitioner filed a review petition on 24.11.1996 but that was also dismissed on 5.1.1997.
2. The petitioner has thus come to this Court tor a declaration that all the proceedings so carried out against him were illegal, unlawful, having been made without lawful authority and are liable to be set aside for the following among other reasons:-
(i) That the petitioner was never provided an opportunity of being hard and was thus condemned unheard;
(ii) That no show-cause notice was issued to him nor was he handed over any charge-sheet and no action proposed to be taken against him was ever made known to him and the so-called Inquiry Officer had already completed his inquiry before his appointment as Inquiry Officer and his recommendations were never made known to the petitioner and in these circumstances, all the proceedings were against the Efficiency and Disciplinary Rules;
(iii) That the proceedings were started with mala fides at the behest and instance of a person against whom disciplinary action was recommended by the petitioner only three days earlier and he manoeuvred through his subordinates a counter application in the form of a complaint; and
(iv) That the provisions of Bye-laws/Rules and Regulations, applicable in the present case, had also been completely ignored.
3. The respondent was directed to submit his parawise comments and detailed report, which he accordingly did on 27.3.1997. In comments what he said, briefly put, is that the writ petition is not maintainable because answering respondent is only ex-officio President Board of Governors, Divisional Public School, Model Town, Lahore which is an autonomous and independent body and he did not perform functions in connection with the affairs of the Federation, a Province or a local authority and, therefore, Article 199 of the Constitution of Islamic Republic of Pakistan could not be invoked by the writ petitioner to challenge the order passed by the respondent. It is maintained that the relationship between the parties was that of master and servant and, therefore, no relief in the form of declaration could be sought by the petitioner. It is further added inter alia (i) that the petitioner had no locus standi to file this writ petition which had been submitted mala fide with unclean hands (ii) that the petitioner was habitual of making false allegations against his subordinates (iii) that it was absolutely incorrect to assert that the inquiry proceedings were not properly conducted and the fact of the matter was that the petitioner was fully aware of the allegations against him and twice he made lengthly replies in the main inquiry on 20.7.1996 and 21.9.1996 which amounted to replying the show-cause/charge-sheet against him. It was also added that rules/regulations/bye-laws of the Divisional Public School did not provide for issuance of any formal show-cause notice or charge-sheet and the petitioner was afforded ample opportunities to cross-examine the witnesses. It was also denied that statements of the witnesses had been recorded at his back. It was asserted that the Inquiry Officer was already seized of the inquiry against the petitioner in which he had submitted his reply on 21.9.1996 and the Inquiry Officer was assigned additional duty to inquire into the allegations which were subject-matter of a report made by the Headmaster Senior School, D.P.S. Township to which he submitted his reply on 23.9.1996. It was thus prayed that the writ petition which was based on misrepresentation of facts and mis-interpretation of law be dismissed with costs. -To that very effect was the detailed report appended with the parawise comments. A large number of documents/copies of the statements of the witnesses were appended therewith including bye-laws, rules and regulations of D.P.S., inquiry report and the impugned order.
4. It was after hearing both the parties at a bit length that the writ petition was admitted to regular hearing on. 19.12.1997 in order to see whether the principle of audi alteram partem was adhered to, while imposing major penalty of "removal from service".
5. I have had the privilege of hearing the learned counsel tor the parties at length and both of them have substantiated their contentions with ample case-law. Drawing my attention to Memorandum of Association and Rules & Regulations of the Board of Governors of D.P.S. Lahore (Annex.R/I), the learned counsel for the petitioner has maintained that the very fact that as many as seven members of the Board of Governors are appointed by designation and the funds of the Board also consist of (i) grants in aid made by the Government; (ii) loans obtained from Government or other agencies; and (iii) fees and other sums received by the Board or other agencies goes a long way to show that this school performs functions in connection with the affairs of the State and the provisions of Art. 199 of the Constitution of Islamic Republic of Pakistan, therefore, could be lawfully invoked by the writ petitioner. In support of his contention, he has first relied on Ajay Hasia, etc. Vs\ Khalid Mujib Sehraverdi and others (AIR 1981 S.C. 487) in which it is laid down as under:- "It is immaterial for determining whether a Corporation is an authority whether the Corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The Corporation may be a statutory corporation created by a statute or it may be a Government company or a company formed under the Companies Act or it may be a society registered under the Societies Registration Act or any other similar statute. Whatever be its genetical origin, it would be an "authority" within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessm ent of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression "authority" in Article 12."
He is of the view that keeping all the relevant factors in mind including that all the members of the Board of Governors can be removed except the Commissioner who has to be the ex-officio President, also gives support to his assertion that the school is an agency of the Government and it is immaterial as to how it has been created. He has fortified his conclusion by what has been laid down in AJiab Ahmad Warsi Vi'. Punjab Road Transport Corporation (1991 PLC (C.S) 484) and Karam Hussain Vs. Daily Mashriq and 2 others (PLJ 1992 Lahore 121). In 1991 PLC (C.S) 484, it was urged that the respondent was an autonomous body under the Transport Department, Government of the Punjab which according to the Articles of Association had complete control over its administrative and financial matters and for all practical purposes it was a Government Department in the guise of a Corporation, therefore, amenable to Constitutional jurisdiction. This contention found favour with the Court and it was observed that the respondent was clearly amenable to Constitutional jurisdiction in view of para 5 of Art. 199 which reads as under:- "In this article, unless the context otherwise requires:- 'Person' includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan;............................... "
Resultantly the petition was accepted and it was held that the petitioner would be deemed to be serving with the respondent and. Entitled to all privileges, benefits etc. In accordance with the terms of the deputation. Similarly, in PLJ 1992 Lahore 121, it was held that the respondent (Daily Mashriq) appeared to be an instrument/agency of the Government and Constitutional petition could be maintained against it.
6. After taking me through these judgments, the learned counsel for the petitioner has urged that the employees who had moved a complaint against the petitioner had only requested tor his transfer from the Township School and it was never their prayer that he should be removed from service and the removal was the result of bias which the Inquiry Officer, the Principal and the President Board of Governors siad against him. Placing reliance on Syed Nasir Abbas Vs. Secretary Govt, of Punjab Housing, Physical and Environmental Planning Department and another (1990 PLC (C.S) 835) (Punjab Service Tribunal), he has urged that the respondent has failed to show that fair procedure was adopted and adequate opportunity was given to the accused-petitioner, of presenting his case before the Inquiry Officer.
7. The learned counsel for the respondent has, on the other hand, argued that employees of a statutory Corporation do not acquire the status of Government Servants nor the guarantees given by the Constitution are applicable in their case and the contract of service of such an employees is governed by law of master and servant and could not be specifically enforced as held in the esteemed judgments of the Supreme Court Re: It. Col. Shujauddin Ahmad Vs. Oil & Gas Development Corporation (1971 SCMR 566), Muhammad Yusuf Shah Vs. Pakistan International Airlines Corporation (PLD 1981 S.C. 224), The Principal Cadet College Kohat and another Vs. Muhammad Shoab Qureshi (PLD 1984 S.C. 170), Mrs. M.N. Arshad and others Vs. Miss Naima Khan and others (PLD 1990 S.C. 612), Sindh Road Transport Corporation through its Chairman Vs. Muhammad Ali G. Khokkar (1990 SCMR 1404) and also in Muhammad Anwar Mengal Vs. Privatisation Commission Ministry of Finance, Islamabad and 2 others (PLD 1993 Quetta 61), S.M.
Rashid Vs. National Investment Trust Ltd. Through Managing Director (1996 PLC (C.S) 706) and an unreported judgment in W.P. No. 61/96. The ratio decidendi of all these judgments is that in cases where the relationship between the parties was governed by the simple theory of master and servant, a suit/writ for declaration of dismissal as illegal and without lawful authority was not maintainable. In PLD 1990 S.C. 612, however, it was also held that an employee of a Corporation can maintain writ petition if there has been a violation of any provision of law or of any statutory rules of service.
8. It may be added that the learned counsel for the parties have both placed reliance on what has been laid down in Mrs. Anisa Rehman Vs. P.I.A.C, and another (1994 SCMR 2232), in which the same principle as stated above was reiterated and it was held as under:- "The effect of the application of the master and servant rule is that an employee of a Corporation in the absence of violation of law or any statutory rule cannot press into service Constitutional jurisdiction or civil jurisdiction for seeking relief or reinstatement in service and his remedy for wrongful dismissal is to claim damages."
The learned counsel for the respondent has relied on this judgment for pressing into service the aforesaid observations and to assert that the relationship between the parties in this case is governed by the rule of master and servant and if the petitioner feels that he has been wrongfully dismissed, he can at the most claim damages. I am afraid he has not kept in view the other findings recorded in the said judgment, after taking into consideration all the relevant case law, on the basis of which it was observed as under:- "In other words, inter alia the ratio decidendi of the above cases seems to be that if there is violation of any statutory rule or law a Constitutional petition is competent against a Corporation/Co- operative Body etc."
"The question, therefore, arises whether violation of the principles of natural justice can be equated with the violation of law in order to warrant issuance of a writ, in exercise of Constitutional jurisdiction under Article 199 of the Constitution."
Reference was then made to Chief Commissioner Karachi Vi. Mrs. Dina Sohrah Katrak (PLD 1959 S.C.
45), University of Dacca Vi. Zakir Ahmad (PLD 1965 S.C. 90), Pakistan and others Vs' Public at Large.
(PLD 1987 S.C./Shariat Appellate Bench 304), Mst. Maryam Younas Vi. Director of Education (PLD 1990 S.C. 666), Olga Tellis and others Vy. Bombay Municipal Corporation and others (AIR 1986 S.C.
180) and many others and it was then held in para 7 of the judgment as under: - "From the above-stated cases, it is evident that there is judicial consensus that the maxim audi alteram partem is applicable to judicial as well as to non-judicial proceedings. The above Maxim will be read into as a part of every statute if the right of tearing has not been expressly provided therein."
Again it was held as under:- "The above violation can be equated with the violation of a provision of law warranting pressing into service Constitutional jurisdiction under Article 199 of the Constitution, which the High Court failed to exercise."
9. Keeping in view all these judgments of the superior Courts I have very minutely considered the facts and circumstances of this case and have come to the conclusion that the Society in the present case is not an "authority" nor is it an instrumentality and agency of the Government.
Although the Board of Governors has 11 members appointed by designation and only 7 by name and the/Commissioner of Lahore Division shall be the ex-officio President of the Board, the petitioner has failed to show that the money raised by the Society as its funds could be done only with the approval of the Government nor has it been shown that the rules to be made by the Society are also required to have the prior approval of the | Government. The facts of the reported judgments as (1991 PLC (C.S) 484) Aftab Ahmad Warsi Vs. Punjab Road Transport Corporation and (PLJ 1992 Lahore 121) Karam Hussain Ky. Daily Mashriq and 2 others, are also clearly distinguishable.
The Board cannot be termed as a Government organization, but encouraged by what has been laid down in Mrs. Anisa Rehman Kv. P.I.A.C, and another (1994 SCMR 2232) and after going through the relevant rules as contained in rules 71 to 83 of the Bye-laws/Rules and Regulations of the Divisional Public School and Intermediate College, available at pages 228 to 241 of the Annexures to the I written statement, I am of the view that full opportunity of participation in the inquiry was not afforded to the writ petitioner. Although in the written statement, the respondent has maintained that the impugned order had been ' passed on the basis of a thorough inquiry made by the Inquiry Officer, after conducting the proceedings in accordance with the provisions of rule 77 of the relevant Rules and that at the end of the inquiry, the petitioner had addressed a letter of thanks to the Inquiry Officer showing his gratitude for conducting inquiry to his satisfaction yet it cannot be said that the petitioner was afforded the opportunity of being heard as required under the law.
10. 't may be noted with concern that in his letter dated 1.8.1996 to the President Board of Governors (copy available at page 219), the Principal had suggested that it would be in the interest of the Institution that Mr. Pervaiz be sent on compulsory leave and the matter be investigated by an Inquiry Officer. The Inquiry Officer, no doubt, took real pains to conduct the inquiry proceedings but 1 am surprised that the statements of all the witnesses (examination-in-chief) were recorded at the back of the petitioner and that he was only allowed to cross-examine the witnesses. In para 9 of his writ petition, the petitioner has alleged that in spite of many verbal requests and written applications made by him to the Inquiry Officer, requesting that he be allowed an opportunity of hearing and that copies of the statements recorded by the Inquiry Officer be handed over to him, in order to enable him to lead his defence, the Inquiry Officer did not pay any heed and recorded the statements of the witnesses at his hack and only allowed him to cross-examine them. No detailed reply to this para has been given and the respondent has contended himself to saying "the contents of this para are incorrect". I am inclined to agree with the learned counsel tor the petitioner that this reply smacks of the mala fides of the respondent.
11. Letter dated 19.9.1996 (copy available at page 243 of the documents appended with the written statement) has been relied on by the learned counsel for the respondent tor contending that the petitioner was fully satisfied with the conduct of the inquiry proceedings and he was not only thankful to the Inquiry Officer for his co-operation and kindness but also to Mirza Azhar Iqbal Baig and Fazal Abbas Abidi, who had helped the Inquiry Officer in conducting and completing the inquiry, but in my opinion that in no way dis-entitled him to false the objections that statements of the witnesses had been recorded at his back and that he was- not allowed an opportunity of being heard or of producing his defence. I also do not find much force in the contention of the learned counsel for the respondent that the petitioner being governed by the rule of master and servant was not entitled to claim any rights or to assert that the principle of audi alteram partem was not adhered to. When the rules provided for an inquiry through an Inquiry Officer or Inquiry Committee, the principle of natural justice should have also been kept in view while imposing the major penalty. It is interesting to note that the request made by the petitioner for supply of copies of the statements made by the witnesses against him was turned down by Ghulam Muhammad Malik by means of his letter dated 21.9.1996 (copy available at page 221) the relevant portion of which reads as under:- "Instead of submitting your statements to the undersigned, an application was received from you stating that you will-only give the statement if copies of all the statements/cross- examinations of all the witnesses are provided to you. In this connection please note that you have already been provided foil and complete opportunity of cross-examining of each witness and recording of their replies in your presence and to your foil satisfaction. As such there is no requirement or justification of this sudden demand of providing you copies of all these statements/cross-examinations. This will simply delay the proceedings."
12. There is nothing on record that the President of the Board had given the petitioner an opportunity of being heard or had served him with any show-cause notice before imposing major penalty upon him of removal from service. When once the procedure laid down for holding of an inquiry had been adopted and the inquiry proceedings in fact carried out, I have no doubt in my mind that the petitioner should have been afforded an opportunity of tendering his explanation against the proposed recommendation. In 1994 SCMR 2232, referred to above, leave to appeal was granted to consider whether principle of natural justice could be pressed into service^ by an 'employee on the ratio of Supreme Court judgment reported in PLD 1987 S.C. 304 and it was held that Maxim audi alteram partem would be applicable to the judicial as well as non-judicial proceedings and it would be read into as a part of every statute eyen if the right of hearing had not been expressly provided therein and the violation of the Maxim would be equated with the violation of a provision of law warranting pressing into service Constitutional jurisdiction. While I am in agreement with the proposition that the remedy of , an employee of a Corporation or a Society in the absence of statutory rules tor wrongful dismissal would be to claim damages I am constrained to hold that the principle of natural justice would not he allowed to be ignored and every case has to be considered im its on merits.
13. Since there Was clear violation of the Maxim audi alteram partem, I cannot but accept this writ petition and the same is accepted and the impugned order having been passed without lawful authority and being of no legal effect, is set aside. The respondent may, however, carry out the exercise of holding an inquiry in accordance with law afresh, if the circumstances so warrant for imposing penalty, as it is deemed fit. Parties are, however, left to bear their on costs regard being had to the intricate nature of the circumstances and the law point involved therein.