1989 PLP 1907 (CLC)

Please refer to your letter No.S/B/890 dated the 17th February, 1979 transcripts of my academic certificates and a few service certificates are being mailed to you. Perhaps it would be of interest for Karachi Port Trust to know my working career in greater detail. The resume of my academic and professional qualifications is given below; (a) Matriculation in 1948 (b) F.Sc. in 1951. (c) I left for England in 1954 and stayed there till 1957 and did a course in Automobile Engineering. (d) BA., in 1970. (e) Post‑graduate diploma in Industrial and Labour Lawsand Administrative Laws and Regulations, 1971. (f) A.M.B.I.M. (London) in 1977. (Associate Member of the British Institute of Management). (g) Associate Member of the Institute of Directors, London1978. (h) Intermediate, Institute of Chartered Secretaries and Administrators. (i) Technical Trainine: Two years, practical and technical training at Crossley Bros Ltd., of Manchester. During my stay in England I did a course in Automobile Engineering and took up a number of jobs. Money working career starts from 1957 when I was taken as a Diesel Engineer in East Pakistan, PIDC, where I worked at various projects. In January, 1959, 1 was sent to England for executive technical training with M/s Crossley Bros, Ltd., of Manchester for a period of two years. Till late 1962 I worked for a British Company which sent me for training to England from East Pakistan. I may point out that I was one of the few Pakistanis in those days who held a covenanted job with a British Company and got a four figures salary. During this period of service I excelled in man management compared to machine management. I took up a job as Assistant Manager (Administration) in Pakistan Machine Tool Factory at Landhi in early 1966. I resigned this job in December, 1968 and joined Brooke Bond Pakistan Ltd. as a Senior Executive, where I worked for 6‑1/2 years. For a brief spell I was Factory Manager for Pakistan Pharmaceutical Products S.I.T.E., where a long‑ outstanding labour dispute was solved by me and I was given a huge remuneration but on principle I left the organisation. For 1‑1/2 years I was Manager Industrial Relations Personnel and Administration in Johnson & Johnson Pakistan Ltd., where I made my contribution towards first year of profit after their project had been running in loss in Pakistan for 10 years. Wherever it has been possible I have attached testimonials to support my claims but you will appreciate that long time has passed and some testimonials and certificates have been misplaced. The Ministry of Production Federal Government of Pakistan advertised the job of General Manager (Administration) in the Press and I competed on the national and international level. You can check the Ministry of Production that in the final run there was a Brigadier who competed with me but the Government selected me on merits. In August, 1978, I was transferred to the Marketing Division as 1 General Manager (Marketing). By the grace of God I have been able to create industrial peace and harmony in this Division. I do not believe in any other consideration but merit. When I stated in my application that I consider myself second to none in the field of Industrial relations in the country, that was definitely not tall‑talk but a matter of assessment of 91 experts in the field. I can think of at least three big organisations where I settled long‑outstanding dispute. I am sending you references from three gentlemen, their names are:‑ 1.Mr. Mohammad Hussain (At present sta Joint Secretary tioned at Karachi (Commerce) Export Promotion Bureau, Sharif Place,3rd , Floor, Outram Road, Haqqani Chowk, Behind Ferozsons ;:,:: . . ‑.': Karachi: 2.Mr. Fazal Qureshi ‑`~ ' Managing Director Pakistan Press International (PPI) Press Centre, Shahrah‑e‑Kamal Attaturk Karachi 3.Brigadier (Retd.) P.B.Gilani Administrator K.M.C. Karachi: Yours sincerely Sd/‑ (Alim Akhtar Shah) Flat No. 14‑B‑1 Thaver Square Khayaban‑e‑Roomi Block‑5 Clifton Karachi." 6.By his letter dated 27th March, 1979 addressed to Mr. Alim Akhtar Shah, the Secretary, K.P.T. communicated him the decision of the Board of Trustees and the Government to appoint him as the General Manager (Administration) an one year's probation in NPS‑21 and required him to report for duty to the Chairman, Karachi Port Trust.

7. After his appointment Mr. Alim Akhtar Shah for the first time by his letter dated 24th September, 1979 addressed to the Joint Secretary and Director General, Ports and Shipping, Government of Pakistan (Ports and Shipping Wing), Karachi, disclosed that due to typographical mistake in his Bio‑data attached with his original application for his appointment as the General Manager (Administration), Karachi Port Trust on account of an error by his Secretary (Stenographer) M.B.A., California, U.S.A., was mentioned therein, which was not correct. He further stressed that his other qualifications shown in the Bio‑data were superior to a degree of M.B.A. The letter is reproduced hereinbelow:‑ "The Joint Secretary and Director General of Ports & Shipping Government of Pakistan (Ports & Shipping Wing) Karachi: September 24, 1979. Sir, There was a typographical error in my Bio‑data which was attached with my original application for the position of General Manager (Admn), Karachi Port Trust. The Secretary (Steno) typed M.B.A. California, U.S.A., which is not correct. I am A.M.B.I.M. (London) which is better than an M.B.A. Attested copies of two letters from British Council, who are an authority on British qualifications in the region, are attached, which support my contention. Necessary correction may kindly be made and I may be informed. Your obedient servant, Sd/‑‑ (Alim Akhtar Shah) General Manager (Admn)." It appears that the Government of Pakistan did not approve his request to accept the revised Bio‑data and the Government by their letter No.D/PCDP‑A)/9/75 Vol.11 dated 8th July, 1982 decided to ask the Chairman, Karachi Port Trust to obtain his resignation. Mr. Alim Akhtar Shah apprehending termination of his service as stated above, swiftly moved and filed a suit for declaration an injunction in the Court of XIIIth Senior Civil Judge, Karachi (Suit No.3586 of 1982) and obtained an injunction against the Trustees of the Karachi Port Trust restraining them from terminating his services in any manner except in accordance with law. Ultimately, the Government of Pakistan by their letter No.D(P&A)/9/75 dated 17th July, 1984 decided to withdraw their previous letter, whereby the Chairman, Karachi Port Trust was required to obtain his resignation. The letter is reproduced as under: "Government of Pakistan Ministry of Communications (Ports & Shipping Wing) No.D(P&A)/9/75 Karachi the 17th July, 1984. Office Memorandum Subject: REVISED BIO‑DATA OF MR.ALIM AKHTAR SHAH CIVIL SUITt N0.3586 OF 1982 COURT XIII SENIOR CIVIL JUDGE KARACHI. The undersigned is directed to state that thecompetent authority has been pleased to decide to withdraw the Government letter No.D(P&A) /9/75 dated 8th July 1982 asking the Chairman, Karachi Port Trust to obtain resignation from MrAlim Akhtar Shah, General Manager (Admn) in the K.P.T. and to approve the recommendations of the K.P.T. Board about his revised bio‑data as contained in Board Resolution No. 801 dated 11th February, 1981:

2. Necessary orders in this regard have been issued to the Chairman, KPT. Accordingly the cause of grievance, which led Mr.Shah to resort to litigation has been redressed and the Government no longer wishes to pursue the matter. (M.Naeem Beg. S.Bt) Commodore, P.N. Joint Secretary & Director General."

8. It appears that the petitioners became aware of the fact that respondent Alim Akhar Shah had produced a forged M.B.A. degree as he by his letter dated 24th September, 1979 had sought correction of his Bio‑data as mentioned hereinabove. The petitioner immediately on being aware of this fact, filed the present petition.

9. The present petition was originally filed by Abdul Haque Kausar, an employee of the Karachi Port Trust and Secretary of the Organisation of K.P.T. Workers, the Collective Bargaining Agent of the said establishment. Later on Mughair Ahmad Samdani, who had succeeded the original petitioner as the General Secretary of the organisation of K.P.T. Workers (the C.B.A.) was impleadcd as the second petitioner.

10. Out of the various averments made in the petition allegations made in paras 6 and 7 are important and are reproduced as under:‑ "

6. That it appears in consideration of the qualifications mentioned in the application and the experience stated therein the Board had approved the appointment of respondent No.l and had sought sanction from the Government. However, as late as February, 1981 it came to light that the respondent No.l did not possess the requisite qualifications to hold that office. It also transpired that he had himself in about April, 1980 had written to the Secretary, Karachi Port Trust that he was not MBA from the Pepper dine University and that his bio‑data was incorrectly typed by his Secretary and that it may be brought to the notice of the Chairman and the Board. . (7)It is submitted by the petitioner that it was not a case of incorrect typing of Bio‑data by the Secretary. It was a clear case of obtaining appointment to a public office knowing fully well that the qualifications required to hold that office were not possessed by the applicant, Respondent No.l. It is submitted that the Bio‑data and the application was duly supported by the necessary documents including the alleged degree of MBA awarded to the respondent No.l by the "Pepperdine University". The petitioner feels that the respondent No.l is not qualified to hold public office and that without any lawful authority he is holding the office though he knows that he is not qualified therefore, the qualification mentioned in his application was fabrication and was mentioned deliberately to occupy the public office."

11. A counter‑affidavit was filed by one Abdul Rahim, the Secretary, K.P.T., on behalf of the Karachi Port Trust Paras 4 and 6 of the counter‑affidavit are important and arc reproduced as under:‑ "

4. That with reference to para 4 of the petition, it is submitted that alongwith his application the respondent No.l had submitted his Bio data separately,, wherein his qualification is mentioned as M.B.A. (Pcpperdine University) California, U.S.A. The copies of his application and Bio‑data are submitted as Annexures `A' & `B' respectively. A copy of the said alleged degree of M.B.A. filed by the respondent No.l is also annexed herewith and marked `C' "

6. That with reference to para.6 of the petition, it is not denied that in consideration of the qualifications and experience, as represented by the respondent No.l his appointment as K.P.T., General Manager, was sanctioned by the answering respondent, which was subsequently also got approved by the Government. It is further submitted that the respondents Nos.2 & 3 did so in good faith, because readily they did not have any reason and ground to suspect the bona fides and genuineness of the statement of qualifications and the supporting duly attested certificates; testimonials/Degree submitted by the respondent No.l. At a later stage, concealing the submission of his forged Degree of M.B.A., when the respondent No.l submitted a revised Bio‑data, his case was considered in good faith and his qualifications and experience, as mentioned therein, were taken to be at par with M.B.A., and consequently the answering respondent's recommendations to the confirmation of respondent No.l to post of General Manager were maintained in order. However, under the circumstances by holding him eligible for the post, neither the respondent No.2 rectified his fraudulent act of deceiving the Government by submitting his forged Degree of M.B.A or meant to do so as such, nor they were competent to do so. After coming into light his said act of misrepresentation and commission of fraud, the respondents Nos.2 & 3 found him to be unfit for the post:"

12. The counter‑affidavit referred to hereinabove was filed on behalf of the respondent No.2 i.e. the Trustees of the Karachi Port Trust on 3‑11‑1982. Long after this counter‑affidavit was filed by Alim Akhtar Shah, the respondent No.l filed his affidavit on 9‑2‑1989. Though his affidavit contained the heading of counter‑affidavit, in fact by his affidavit be merely offered his comments to the counter‑affidavit filed by Abdul Rahim, the Secretary of Karachi Port Trust mentioned hereinabove. The only allegation relevant to the main petition contained in his affidavit is mentioned in sub‑para (h) of para 4, which is reproduced hereinbelow:‑‑ "(h) Not only that the present petition was filed against me out of ill‑will and malice on the part of Mr. Abdul Haq Kausar and his successors but they and others in league with them in the Administration of the K.P.T., manipulated issuance of a direction from the Federal Government for obtaining my resignation, on the knowledge whereof I riled Suit No.3586 of 1982 m the Court of XIII Senior Civil Judge, Karachi for declaration and injunction (which suit has been re‑numbered as Suit No.1229 of 1988 and transferred to the Court of III Senior Civil Judge, West, Karachi, in which a temporary injunction was issued on 19‑9‑1982, a copy whereof is annexed hereto and marked `P'.

13. Mr. Obaidur Rehman, Advocate for the petitioners has argued that respondent No.l (Alim Akhtar Shah) in view of the facts stated hereinabove had obtained his appointment on the basis of misrepresentation and fraud as he never possessed the minimum qualifications required for the post. Since his appointment was ab initio void, he cannot continue to hold the office in question. In support of his above contentions, reliance has been placed by him on the cases reported in PLD 1986 Lah. 770 and PLD 1968 Lah.

30. He further contended that respondent No.l is holder of a "public office" as his appointment is made and regulated by Statute and, therefore, amenable to the jurisdiction of this Court. on this point, reliance has been placed by him on the case reported in PLD 1964 I,ah. 125.

14. Mr. Muhammad Ali Sayeed, the learned Advocate appearing for respondent Alim Akhtar Shah mainly urged the following grounds:‑ (a) That this Court can only issue writs in nature of writs of "quo warranto" if relates to holding of a `public office'. According to him, the post of General Manager (Administration), Karachi Port Trust in not a `public office." (b) That since the qualifications required for the post of General Manager, Karachi Port Trust were not prescribed by any law or rule, it cannot be enforced by this Court. (c) That the petition has been filed due to mala fide reasons as explained by Alim Akhtar Shah in his affidavit. (d) That Alim Akhtar Shah before he was actually appointed had intimated the authorities that he did not possessee the M.B.A. degree from USA as mentioned in his Bio‑data due to an error indicates his bona fides. (e) That only the relationship of a master and servant exists between Alim Akhtar Shah and Karachi Port Trust, the present petition is not competent. In support of his above contentions, he has relied upon the cases reported in PLD 1963 SC 203, PLD 1966 Kar. 1, PLD 1971 Lah. 748, PLD 1974 SC 228, PLD 1974 SC 146, PLD 1981 SC 224 and AIR 1962 Madhya Pradesh 31.

15. In order to appreciate the first contention of Mr. Muhammad Ali Sayeed, Advocate, it is necessary to recount the changes brought about in o0r Constitutions, concerning the powers of a High Court in our country to grant certain remedies under the Constitutional jurisdiction. For the first time section 223‑A was inserted in the Government of India Act, 1935 by the Government of India (Amendment) Act, 1954. By this section every High Court in Pakistan was empowered throughout territories in relation to which High Court exercise jurisdiction to issue to any person or authority including in appropriate cases ally Government within those territories writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them. The scope and extent of authority of issuing such writs was, however, not defined by that provisions. Consequently, High Courts in our country were obliged to follow the form and precedents established by the Courts in England. After the enactment of the Constitution of 1956 the position under‑went a slight change when by its Article 1970, a High Court was empowered to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the fundamental right conferred by that Constitutional or for any other purpose. The power of the High Court by such a change was in fact not restricted or limited to the form of writs in the strict English sense but also extended to the issuing of directions and orders for enforcement of fundamental rights or for any other purpose. This provisions thus extended the jurisdiction of a High Court. The Constitution of the Islamic Republic of Pakistan, 1962 while making a similar provision in Article 98 did not make any reference to any writs as was being done previously. Under this Te drafted Article the High Courts in Pakistan were conferred still a wider jurisdiction as they were no more required to restrict their powers of issuing only such writs as were being issued by Kings Bench Division in England. The Article 98(i) of the Constitution of the Republic of Pakistan, 1962 is reproduce hereinbelow:‑ "98.(1) A High Court shall have such jurisdiction as is conferred on it b! this Constitution or by law. (2) Subject to this Constitution, a High Court of Province may, if it satisf iee that no other adequate remedy is provided by law‑ (a) on the application of any aggrieved party, make an order‑ (i) directing a person performing in the Province functions in connecrlol with the affairs of the Centre the Province or a local authority to reftaii from doing that which he is not permitted by law to do, or to do tha which he is required by law to do; or (ii) declaring that any act done or proceeding taken in the Province by person performing functions in connection with the affairs of the Centre the Province or a local authority has been done or taken without laVfi authority, and is of no legal effect; or (b) on the application of any person, make an order‑‑ (i) directing that a person in the Province be brought before the High Coin so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner or (ii) requiring a person in the Province holding or purporting to hold a public office to show under what authority of law he claims to hold that office:' Similar provision was repeated in Article 201 of the interim Constitution of the Islamic Republic of Pakistan, 1972 and Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. It is true as pointed out by Mr. Muhammad Ali Sayeed, Advocate that a High Court under Article 199(1)(b) of the Constitution of the Islamic Republic of 11 Pakistan on an application of any person can make an order as expressly provided thereby only when it relates to holding of a "public office". The term `public office' was for the first time defined by Article 242 of the Constitution of 1962 as under:‑ "Public office includes any office in the service of Pakistan and membership of an assembly." This definition was reproduced in Article 290 of the Interim Constitution of the Islamic Republic of Pakistan, 1972 but was dropped in the Constitution of the Islamic Republic of Pakistan, 1973.

16. In England originally writ of quo warranto could only be issued in cases where usurpation of office, franchise or liberty as against the Crown was directly alleged. In the case of Darley v. The Queen 12 Clarke & Finley s Reports, House of Lords 52 it was held that "source of the office, tenure and duties determine the applicability of proceedings in the nature of "quo‑warranto". Following the test so laid down the High Court of Dacca in the case reported in PLD 1957 Dacca 209 S.M. Wali Ahmad Choudhry v. Mahfuzul Haq Choudhry held that "if the office is created by Charter or Statute, the duties are of a public nature and the tenure is sufficiently secure, then it comes within class of cases in respect of which such proceedings lie." Similarly an office created by a Statute was held to be an office of public nature in the case of Muhammed Osman v. Province of East Pakistan reported in PLD 1957 Dacca

424. The Supreme Court of Pakistan in cases reported in PLD 1963 SC 203 Masudul Hassan v. Khadim Hussain and another and PLD 1974 SC 228 M.UA. Khan v. Rao M. Sultam and another held that a `public office' is an office created by the State, by charter or by Statute, when the duties attached to the office are of a public nature. Both these cases for the purpose of interpretation of the term `public office' have been relied upon by the learned Advocate for respondent No.l.

17. The Karachi Port Trust is constituted under the Karachi Port Trust Act, 1886 whereby Port of Karachi was vested in a Trust created under that Act to provide for the management of the affairs of the said Port by the Trustee. The Trustees of Port of Karachi constitute the Board which according to section 4 of the said Act is body corporate having perpetual succession and a common seal, I can sue and be sued in its name. The Board so constituted is required by section 21 of the said Act to prepare and sanction a Schedule of the staff, officers and servants required for the proper maintenance of the purposes of the Act. The Office of the General Manager (Administration) Karachi Port Trust is included in the Schedule of staff prepared under this section, and forms part of the Statute. The post of General Manager (Administration) Karachi Port Trust is thus a post created by a Statute. As stated hereinabove, the Board of the Karachi Port Trust constituted under the Karachi Port Trust Act, 1886 is required to perform public functions of managing affairs of the Port of Karachi and the officers mentioned in the Schedule prepared under section 21 of the said Act are required to perform duties of public nature. Applying the test mentioned in the cases referred to hereinabove, we have no hesitation to hold that post of General Maneger (Administration) Karachi Port Trust is as `public office' within the meaning of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

18. The second contention raised by Mr. Muhammad Ali Sayeed, learned counsel for respondent No.1 has no force as all administrative powers for the purpose of appointing, promoting and punishing the officers and servants of Karachi Port Trust have been conferred on its Board as provided in sections 21, 22 and 23 of the Karachi Port Trust Act. By its rule‑making power under the Act the Board of the Karachi Port Trust by a resolution prescribed the minimum qualifications required for filling the post in question. It cannot, therefore, be said that the prescribed qualifications were not under any rule. The Board of the Karachi Port Trust can always by Resolution vary the conditions of employment by passing a Resolution to this effect but such variation will be operative prospectively and cannot in any manner take effect retrospectively. It will, therefore, be seen that the Board of the Karachi Port Trust could not have possibly taken a decision to rectify a past illegality.

19. Mr. Muhammad Ali Sayeed, Advocate has contended that the petitioners are motivated by mala fide intentions to initiate these proceedings and are, therefore, not entitled to grant of the relief prayed for. The allegations of mala fide are so vague and general in nature that they can hardly support this contention. In the present case the petitioners have merely related certain information regarding holding of a public office illegally by the respondent N0.1 leaving it to this Court to examine it and decide its consequences. Allegation of mala fides is also not substantiated by the respondent No.l.

20. In support of his fourth contention Mr. Muhammad Ali Sayeed, Advocate has referred to the letter dated 24th February, 1979 addressed to the Secretary, Karachi Port Trust reproduced hereinabove to show that he had before his appointment intimated the authorities that he had in fact not obtained MBA degree. This letter was addressed by him in reply to the query made by. the Secretary requiring him to produce the copies of certificates. Alim Akhtar Shah had alongwith his application submitted a copy of his MBA degree from University of USA but did not enclose the copies of the certificates evidencing his qualifications mentioned by him under the heading of `Professional Qualifications'. It was, therefore, that he was asked to rile the relevant certificates and testimonials. Nowhere in this letter he has stated that mention of MBA degree having been obtained by him was due to typographical error. Instead he merely omitted to mention the degree, apparently to misguide the concerned authorities by such a devise. It was long after his appointment that he for the first time by his letter dated 24th September, 1979 also reproduced hereinabove sought correction of his Bio‑data. In view of these facts it cannot be said that Alim Akhtar Shah the respondent No.l before his appointment acted prompt for correction of his Bio‑data.

21. Lastly the post of General Manager (Administration) Karachi Port Trust as held by us hereinabove is a public office created by the Statute. Only such appointments which are the result of contracts freely entered into between employees and .employers will be governed by the principles of Master and Servant. But in cases where appointments are made and controlled by some law or statutory rules creating fetters upon freedom of parties in matters of terms of contract principles of Master and Servant will not be applicable. We are fortified by such views by the case reported as Anwar Hussain v. The Agricultural Development Bank of Pakistan PLD 1984 SC 194,

22. From the facts brought on record it clearly transpires that Alim Akhtar Shah, the respondent No.l herein did not possess the prescribed qualifications that could even maize him eligible for the appointment for the post of General Manager (Administration) Karachi Port Trust, a post which he was able to secure only by misrepresentation and his continuation in the said post will amount to perpetuating an illegality. The first decision of the Federal Government requiring the Chairman of the Karachi Port Trust to obtain his resignation was correct. Subsequently, it appears that certain hidden handy clandestinely had extended a helping hand and persuaded some authority and order was recalled on the pretext of pendency of litigation little realising that for such an appointment previous sanction of the Federal Government is necessary under section 24 of the Act and post facto approval could be of no avail as it is by now well‑established that when law requires a particular thing to be done in a particular manner it can only be done m that manner and in no other. It is also not known if the competent authority was at all shown the file as the second order according post facto sanction merely indicates that the order was passed by a "competent authority" without disclosing the authority that actually passed that order.

23. In view of the above we hold that Alim Akhtar Shah the respondent No.l due to lack of prescribed qualifications for the post of General Manager (Administration) Karachi Port Trust was not qualified to hold the post and is illegally continuing to hold that office. We declare that the post of General Manager (Administration) Karachi Port Trust Karachi is lying vacant and issue an injunction restraining the respondent No.l from holding that office or in any manner acting therein.

24. This petition is, therefore, accepted as stated hereinabove and we direct that entire costs herein shall be borne by the respondent No.l. A.A./A‑595/K Petition accepted.