JUDGMENT SYED JAMSHED ALI, J.- The petitioner, while working as Junior Clerk in the Computer Section of The Examination Branch of the University of the Punjab, was proceeded against under the Punjab University Employees (Efficiency and Discipline) Statutes, 1975 on the allegations that "you have been found guilty of wrongly tabulating the result and making bogus award lists of Roil No. 22078 and 16017 of B.A. Second Annual Examination, 1995 with the help and connivance of other employees. You forged the result and declared the candidates to have passed the Examination in which they were failing". According to the charge-sheet, the allegations if proved .Would constitute "forgery", "inefficiency" "misconduct and corruption".
2. In reply to the charge-sheet, the petitioner denied the allegation and a request was made to the Authorized Officer to ask Dr. Naveed A. Malik, Incharge, Computer Section, to enlighten the Authorized Officer about the duties assigned to the petitioner. The authorized officer himself conducted the inquiry and according to his finding the forged result cards were issued by the petitioner from the Computer Section on 28.4.1997 based on the information fed by Mr. Shahbaz Ahmed Khan co-accused and delivered to the Examination Branch through Mr. Mumtaz Ahmed Khan, Junior Clerk, Examination Branch. These cards were treated as lost and case was initiated for issuance of duplicate result cards. It was further held that these results were processed by Mr. Shahbaz Ahmed Khan. He had entertained bogus rechecking award lists. As far as the petitioner is concerned, it was held that he issued the duplicate result card (forged) and did not object to the application for not being processed through the Controller of Examination and thus he printed the duplicate result cards without proper legal authority to support the corruption. Accordingly, he recommended termination of the services, inter alia, of the petitioner. The competent authority heard the petitioner. The Deputy Registrar (Admn-II), placed the recommendation of the Authorized Officer before the competent authority i.e. The^ Registrar on which on 17.1.2000, the following order was passed:- "Recommendation of the Authorized Officer on page 113 are approved."
The petitioner filed an appeal before the Vice- Chancellor/Chairman of Syndicate which, was rejected vide order dated 22.1.2001. The petitioner is aggrieved of the aforesaid orders.
3. The learned counsel for the petitioner contends that the Authorized Officer, could not have conducted the inquiry himself. According to the finding of the Inquiry Officer, the charge as brought against the petitioner was not proved and he was punished on the allegation which was not subject- matter of the charge-sheet. Therefore) he was condemned unheard. Another grievance was that the Authorized Officer did not record any evidence in the presence of the petitioner and that he himself cross-examined the petitioner against ALI cannons of justice and fair play. He further submits th$t the competent authority i.e. The Registrar passed a mechanical order without applying his mind, likewise the order of the Appellate Committee is also non-speaking. The entire proceedings were contrary to the aforesaid Efficiency and Discipline Statutes and stand vitiated.
Reliance was placed on Pakistan' International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others (2001 SCMR 934) = (2001 PSCC 1) to contend that deviation from the rules and regulations by the employer violates the principles of natural justice. He further contended that although these Statutes have been framed by the University of the Punjab under Section 31 of the University Act (Punjab Act No. IX), 1973, nevertheless these are statutory. Reliance was placed on Board of Intermediate and Secondary Education, Sargodha, through its Secretary v.
Andur Rehman's (1988 SCMR 1711), according to which the regulations framed by the Board of Intermediate and Secondary Education, Sargodha under Boards of intermediate and Secondary Education Act (No. XIII) 1976 were held to be statutory.
4. On the other hand, the learned counsel for the Punjab University, vehemently relied on University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 SCMR 1093) according to which the regulations framed by the University of Punjab were non-statutory and, therefore, this Constitutional petition was not maintainable. He further submits that since the aforesaid statutes were non-statutory, the principle of master and servant is attracted disentitling the petitioner to the relief claimed in the writ petition. About holding of the inquiry by the Authorized Officer, his contention was that under Statute No. 6(3) of the aforesaid statutes, the Inquiry Officer could himself proceed against the petitioner without appointing an Inquiry Officer.
5. I have considered the submissions made by the learned counsel for the parties and have perused the record. In this case, the competent authority i.e. The Registrar vide order dated 26.2.1998, appointed Dr. Subhan Ali Bhatti, Assistant Professor, Department of Mathematics University of Punjab as Authorized Officer under Statute No. 5 .Providing for a direction to the Authorized Officer to proceed against a University Employee. After the said direction was received, the Authorized Officer was to decide whether in the facts of the case or the interest of justice an inquiry should be conducted by the Inquiry Officer or Inquiry Committee. In case It was so decided the Inquiry Officer or the Inquiry Committee was to be appointed by the Authorized Officer under Statute No. 6(2). If, however, the Authorized Officer, acting under Statute No. 6(3), decides that it was not necessary to have an inquiry conducted through an Inquiry Officer and Inquiry Committee he shall proceed in the matter by Informing the employee of the action proposed to be taken and the grounds of action and give him reasonable opportunity of showing cause against the proposed action. When an Inquiry Officer or Inquiry Committee is appointed the Authorized Officer, shall frame the charge and communicate it to the accused as required by Statute No. 7 and then the Inquiry Officer or Inquiry Committee has to hold an inquiry. In this case the Authorized Officer framed the charge-sheet which is dated 2.3.1998. It has not been brought on record whether any decision was taken by the Authorized Officer as contemplated by Statute No. 6(2) or 6(3). The framing of charge, according to Statute No. 7, follows only after an Inquiry Officer or Inquiry Committee is appointed. However, in complete ignorance of the aforesaid statutes, after issuing charge-sheet to the petitioner the Authorized Officer himself proceeded to hold an inquiry. The procedure adopted by the Authorized Officer was wholly alien to the aforesaid statutes.
6. The charge as brought against the petitioner, as reproduced above, contained three allegations, i.e. Wrong tabulation of the result, making bogus award lists of Roll Nos. 22078 and 16017 and forging their result. From the inquiry report (of the Authorized Officer) it is clear that the charge as brought against the petitioner was not proved as neither the petitioner had wrongly tabulated the result nor had made bogus award lists, nor had forged the results. The Inquiry Officer found that Mr. Shahbaz Ahmed Khan had entertained bogus rechecking award lists. Thus the allegation for which the petitioner has been punished did not form part of the charge- sheet and, therefore, he had no opportunity to defend himself against the said allegation i.e. That the petitioned issued duplicate result cards without proper and Te^al authority. Thus, the petitioner was condemned unheard besides clear violation of the aforesaid statutes by the Authorized Officer. 1 have also noticed that the competent authority i.e. The Registrar only approved the recommendation of the Authorized Officer with a non-speaking and sketchy order. Likewise the appellate order also does not show that the case of the petitioner was considered fairly and in accordance with the statutes of the University.
7. Reliance of the learned counsel for the petitioner on the judgment in the case of B1SE Sargodha {supra) is in-apt because in the said case the regulations were framed by the Board with the approval of the Govt, while in the present case, it was the University of the Punjab who had framed the regulations. On the question whether regulations framed by a statutory body by virtue of the powers derived from a statute were or were not statutory, 1 was able to lay my hands on a few judgments. In Khalid Pervez v. Punjab Seed Corporation (1989 PLC (CS) 444) the regulations framed by the Seed Corporation under Section 25 of the Punjab Seed Corporation Act, 1976 were under consideration. This Court recorded the following observations:-- "This is not the case here as the Punjab Seed Corporation Act, 1976 does not provide that the Regulations to be framed by the Board are to receive approval of the Govt. The Regulations have been framed by the Board in exercise of powers vesting under Section 25 of the Act. These Regulations so framed have been duly published in the Punjab Gazette. The Regulations being the statutory instrument have the force of law. This being the position the petitioner is entitled to invoice Constitutional jurisdiction of this Court if any action prejudicial to the petitioner-employee in derogation of or violation of any such rule, or regulation is taken. In support of this view, reliance may be placed on Syed Akbar Ali Bokhan v. State Bank of Pakistan and 7 others (PLD 1977 Lah. 234); Muhammad Yousuf Shah v. Pakistan International Airlines Corporation (PLD 1981 SC 224); Evacuee Trust Property Board and another v. Muhammad Nawaz (1983 SGMR 1275)".
8. In the case of Indian Institute of Technology v. Mangat Singh (1973 (2) SLR 46), the Delhi High Court made the following observations:- "The word "statutory" has always been used to include not only Parliamentary legislation but also subordinate legislation such as rules and regulations.
The procedure of disciplinary action, basing the . Order on evidence and the giving of reasons for orders are not matters governed by the contract of employment. In fact, they are not relevant in a contractual relationship at all. If these regulations , are, therefore, to have any effect, they must be regarded as law. Otherwise, they would be merely pious homilies. The contravention of the regulations Is, therefore, a contravention of a statutory obligation and not of a contract."
9. In Sukh Dev Singh and others v. Baghatram Sardar Singh Raghwamshi and another (AIR 1975 SC 1331). The Indian Supreme Court expressed the following view:- "33. There is no substantial difference between a rule and a regulation inasmuch as both are subordinate legislation under powers conferred by the statute. A regulation framed under a statute applies uniform treatment to every one or to ail members of same group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Industrial Finance Corporation are ail required by the statute to frame regulations, inter alia, for the purpose of the duties and conduct and conditions of service of officers and other employees. These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service.
Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory status and impose restriction on the employer and the employee with no option to vary the conditions. An ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such contractual relationship of master and servant is damages because personal service is not capable of enforcement, In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies, In this case of statutory bodies it has been said that the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by-statutory bodies is enforced by Courts by declaring dismissal in violation of rules and regulations to be void. This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute."
10. Reference may also be made to Multiline Associates v. Ardeshir Cowasgee (1995 SCMR 362) in which the Honorables Supreme Court was considering the Karachi Building Town Planning Regulations, 1979 framed by the Karachi Development Authority under the provisions of the Sindh Building Control Ordinance, 1979 and the following observations were made:- " Rules and Regulations are subordinate and delegated legislation deriving authority and legal cover from the provisions of the Ordinance."
From the perusal of the above judgment it appear that if the source of subordinate legislation is found in the statute, such rules or Regulations are statutory.
11. In Lal Din v. Vice Chancellor and others (1994 PLC CS (880)), while interfering against an order directing compulsory retirement of an employee of the Punjab University, this Court made the following observations:- "Learned counsel for the respondents submitted that the writ petition is not maintainable because relationship between the petitioner and respondents/University is that of Master and Servant. This argument in the facts and circumstances of this case is not tenable. Admittedly the petitioner's service was governed and regulated by the Rules and Regulations framed by the University under the statute to which University owes its croon. According to these rules an employee is to continue in service unless removed in accordance with the disciplinary proceedings retire on attaining the age of superannuation which is 60 years. One of the criteria for determining whether relationship between the employer and the employee is that of Master and Servant, is whether the Master was vested with absolute and uncontrolled power to relieve the employee from his duties at his whim which is not the case here. Since petitioner's service was governed by the rules and regulations, therefore, he was entitled to continue in service till the alumment of age of superannuation i. e.
1.7.1993, his date of birth being 1.7.1933 as such the argument has no force."
12. Since, however, I am bound by the dictum of the Honorables Supreme Court in the case of the University of Punjab {supra), 1 am of the view that even when the services of an employee of a statutory Corporation are not governed by the statutory rules, an employer, amenable to Constitutional jurisdiction, is under a duty to act justly and fairly in accordance with the mandate of Article 4 of the Constitution. Even if the tenure of employees of statutory Corporation has been left at the total discretion of the employer, even then no exemption from-application of the principles of natural justice could be claimed. And, in case of breach of the rules of natural justice corrective judicial process could be applied. Further, I am of the view that a statutory corporation cannot be heard to say that it will be at liberty to violate its on rules and then fall back on the plea that the rules being non-statutory, the Courts should, shut their eyes even if their action is arbitrary, contrary to their on regulations, unjust and unfair.
13. The Master-Servant thereby only professes that the "King can do no wrong". To plead the said theory without regard to the particular facts of a case in respect of employment in the statutory bodies will amount to conceding absolute and totally unregulated discretion in the employer and may, therefore, bring about miscarriage of justice, In Olga Tellis v. Bombay Municipal Corporation (AIR 1986 S.C. 180) right to livelihood has been considered as necessary attribute of life and was, therefore, recognized as a fundamental right. Therefore, an employee of a statutory Corporation cannot be removed under the cover of total and absolute discretion in violation of principles of natural justice. 1 may and that absolute discretion in a ruthless master and is wholly incompatible with the rule of law and the protection provided by Article 4 of the Constitution. That protection will become illusory if the Master-Servant, theory was to be indiscriminately applied in all cases of employment in statutory corporations. There was a time in distant past when the public servants were to hold office during the pleasure of the President or the Governor and even the salary of a public servant was the bounty of the Crown, It will not be out of place to mention here the following observations of Mr. M.R. Kayani, ). (as he then was) in Atta-ur-Rehman's v. The Province of West Pakistan (PLD 1958 (W.P.) Lah. 185):- "I and this note with a view to laying greater emphasis on the futility of the phrase "during pleasure" occurring in Article 180. I had occasion to say in an Introduction to a Commentary (1) that members of the public services were said to hold office during the pleasure of the President or the Governor, as though anyone could be dismissed by either of them at his pleasure. This, I said, was a vicious phrase and a vestige of royal prerogative, for that there is no one so superior in a democracy that his pleasure can cause such havoc, and the Constitution should not have been encumbered with a misleading expression. Even in the home of royal prerogative, the Crown Proceedings Act, 1947 has made it possible for a Government servant to sue the Crown in tort. The old decisions like I.M. Lall's applied in the context of sovereignty, and sovereignty now belongs to "Allah Almighty alone," says the Preamble to the Constitution, Even if the Preamble had been less pious, the King-can-do-no- wrong theory was by its very nature inapplicable to a democratic State."
14. In Muhammad Ashraf v. D.G. Multan Development Authority (2000 PLC (CS) 796), a Division Bench of this Court interfered in the case of an employee of the Multan Development Authority and the plea based on the Master and Servant theory was repelled. It was observed that the concept of Master and Servant does not. Emanate from any Constitutional provision or even a statute or some injunction of Holy Quran and Sunnah of Holy Prophet (peace be upon him), on the other hand, it was a common law notion and following observations of the Honorables Supreme Court in Muhammad Akram v. Ferman Bi (PLD 1990 SC 28) was relied upon:- "The resort to a rule of common law of England in preference to the one of Pakistan Law or a rule of Islamic or jurisprudence; or for that matter, the Islamic Common Law, is not now possible under the Pakistan Constitutional and legal set-up."
15. In Dr. Ghulam Mustafa Chaudhry v. Dr. Muhammad Ashiq Khan Durahi (2000 PLC (CS) 385), this Court interfered in an order of compulsory retirement of ah employee of Bahauddinr Zakariya University. The plea that the rule of the said University were not statutory, was raised but was repelled on the ground that the Vice-Chancellor, who had passed the order, was not the authority competent to pass the impugned order. The judgment in the case of University of Punjab (supra) was notice in the said case and was distinguished.
16. As observed above, this is a case in which the petitioner has been punished on the allegation which did not form part of the charge-sheet and, therefore, apart from the violation of the Efficiency and Discipline Statutes, the petitioner was condemned unheard, the Authorized Officer was himself the prosecutor (author of the charge-sheet) and himself held the inquiry, no evidence was examined in presence of the petitioner, and the petitioner was cross- examined by him. And, even if the relationship of the petitioner with his employer was not statutory, the principles of natural justice were still attracted as held in Mrs. Aneesa Rehman's v. Pakistan International Airlines Corporation and another (1994 SCMR 2232). In the said case an order of reversion, of an employee of a Statutory Corporation was interfered with on the ground of Violation of the ' audi alteram parten.
17. In Asif Peter v. D.G.M.D.A. Multan, etc. (PLJ 2000 Lah. 143O), this Court interfered on the ground that the authority had not heard the petitioner before directing removal from service of the Multan Development Authority. In that' case the services of employee were not governed by the Statutory Rules, In U.P. Warehousing Corpr. v. Vijay Narayan (AIR 1980 SC 840) while explaining requirements of proceedings against an employee of a statutory corporation, the Indian Supreme Court made the following observations:- "Even if at the time of the dismissal, the Statutory Regulations had not been framed or had not come into force, then also, the employment of the respondent was public employment and the statutory body, the employer could not terminate the services of its employee without due enquiry in accordance with the statutory Regulations, if any in force, or in the absence of such Regulations, in accordance with the rules of natural justice. Such an enquiry into the conduct of a public employee is of a was/-judicial character. The respondent was employed by the appellant Corporation in exercise of the powers conferred on it by the statute which created it. The appellants' power to dismiss the respondent from service was also derived from the statute. The Court would therefore, presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice, and to act in accordance with the spirit of Regulation 16, which was then on the anvil and came Into force shortly after the impugned dismissal. The rules of natural justice in the circumstances of the case, required that the respondent should be given a reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which means and includes an opportunity to cross-examine the witnesses relied upon by the appellant Corporation and an opportunity to lead evidence in defence of the charge as also a show-cause notice for die proposed punishment. Such an opportunity was denied to the respondent In the Instant case. Admittedly, the respondent was not allowed to lead evidence In defence. Further, he was not allowed to cross-examine certain persons whose statements were not recorded by the Enquiry Officer (opposite party No. 1) in the presence of the respondent. There was controversy on this point. But it was clear to the High Court for the report of enquiry by the Opposite Party No. 1 that he relied upon the reports of some persons and the statements of some other persons who were not examined by him. A regular departmental enquiry takes place only after the charge-sheet Is drawn-up and served upon the delinquent and the latter's explanation is obtained. In the present case, no such enquiry was held and the order of dismissal was passed summarily after perusing the respondent's explanation. The rules of natural justice in this case were honoured in total breach. The impugned order of dismissal was thus bad in law and had been rightly set aside by the High Court."
18. The Honorables Supreme Court in Pakistan International Airlines Corporation (supra) reiterated the rule laid down in the case of Mrs. Aneesa Rehman's (supra) and the following observations were made:- "However, the employer who itself has framed rules as well the regulations for its domestic purposes' is bound to strictly follows/adhere them because deviation therefrom is bound to violate settled principle of justice including the one enshrined in the maximum audi alteram parten /.. No one is to be condemned unheard."
19. I may respectfully and that the authority who has framed regulations is bound to follow the said regulations and a departure therefrom will amount to exercise of the power in an arbitrary and unregulated manner defeating the very purpose for which regulations are framed.
20. The question which, however, attracted my attention was as to the relief which could be granted to the petitioner in the facts and circumstances of the case, I am of the view that it will be just and appropriate if the appellate authority reconsiders the case of the petitioner. Accordingly, this writ petition is partly allowed, the impugned appellate order is declared as without lawful authority with the result that the appeal of the petitioner shall be deemed to be pending before the appellate authority to be decided afresh in accordance with law with a speaking order. No order as to costs.