1990 PLP 546 (MLD)

(c) The Notification of the change (take‑over) served on us, the teachers and other employees duly signed by them. (d) The Agreement relating to the Terms and Conditions of our services and the Rules and Regulations, framed and adopted under the Board of Governors. (e) Most important of all, the application made to the Controlling Authority for the dissolution of the Board of Governors on which the Statutory Body was `dissolved' with sure proof that there was no conspiracy against the Statutory Status of our Employees. He himself wanted it in the best interest of his Institution and his employees (teachers and others). But to our greatest surprise and dismay, the above five (5) basic documents were never provided to us under this, or that plea a pretext (Correct ?) (xvii) It is not the legal obligation on the part of the `Legal Successors' to get his identity and Authority notified at his own, when such a change (Transfer of Power) takes place legally or at least to satisfy his employees when requested for (Please comment). (xviii) Suppose the Board of Governors is not dissolved in law and some usurpation sort of thing has happened against our employers and their/our legal status, what should be; our moral duty as Teachers by Profession and men of conscience? Should we join the usurpation and be a party to it? (Please comment). (xix) Now that I/We have been charge‑sheeted, for my/our approach to `men without Authority and Jurisdiction' (The Government including the C.M.L.A./President of Pakistan) how we can approach you with our reply to our charge‑sheet unless your `Management' (who appointed you the Principal) and also you, on that account, prove his Legal Authority over us and our Institution as being the Legal Successors to the Board of Governors the basic issue; for which obviously the certified copies of above rive listed documents, together with those who claimed to have received from the Education Department of Government of Sindh including the Inquiry Report and the order of the Controlling Authority thereon which you claimed to have based your charge‑sheets, explanation letters and disciplinary action against me/us, upon, may kindly be sent to me per return of post with a point to point answer and comments on the contents of this letter as requested herein. (xx) There was a press report dated 4th May, 1985, appeared in the daily `Jang' and the `Dawn' on Affairs of our School as under:‑ (1) The Board of Governors is not there in Habib Public School since 1981 ‑The news item clearly meant that the Board of Governors was not dissolved by the Controlling Authority, the Government, it has `disappeared' or made to 'disappear'. (2) There is no management in Habib Public School. It meant that this Great National Institution of ours, having the Statutory Status in law; is even without a management, which even an ordinary institution has (Horrible). (3) A few persons are running the administration of the School at their own risk and responsibility. Is it now a very horrible state of affairs of our School? Why did not you contradict the press report to restore the prestige of the School and confidence of the people having their children in the School? You did not contradict, that is, you accepted it as an undeniable fact, if so, is it the loyalty to the Institution to let this horrible state of affairs continue at your own risk and responsibility and even at the cost of the Great Nam of HABIB our employers, the Parent Body, the Managing Body and the Chairman of the Board of Governors. ??????????????????????????????????????????????????????????????????????????????????????????????????????????? ???????? Yours sincerely ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ????????????? Sd/? ??? (ABDUR RAB JAFFERY) ????? ????? ?????????Senior Teacher, ???????? & Officiating appointed ??????? Teachers' Representative ? HABIB PUBLIC SCHOOL, ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ??? Karachi‑1" He also approached the Director of the School Education (Karachi Region) Karachi and sought stay of proceedings against him. On which a letter bearing No.DSE/G‑EXAM/813‑85, dated 4th August, 1985; was issued by the Directorate of Education, directing the respondent No.4 (now respondent No.3) not to take further action without prior approval of the Director. The respondent called upon the petitioner vide letter dated .3rd August, 1985 to appear before the Enquiry Committee on 8th August, 1985 but the petitioner declined to appear before the Committee and raised certain legal objections as mentioned in his explanation dated 31st July, 1985. That the respondent sent anther letter to the petitioner dated 8th August, 1985, whereby he once again directed him to appear before the Enquiry Committee on 13th August. 19,95, at 2‑00 p.m. failing which the matter would be decided ex parse against him. That the respondent informed the petitioner vide his letter dated 14th September, 1985 that his reply dated 31st July, 1985 in response to the charge‑sheet dated ''4th July, 1985 had been taken into consideration by Enquiry Committee and he was called upon to show cause as to why he should not be dismissed from the service for gross misconduct, in?subordination and repudiation of the authority of his Employers. He was further directed to appear before the respondent and explain his conduct on 16th September, 1985 at 11‑00 a.m. That on receipt of the above letter, he appeared before the respondent as well as addressed a letter dated 16th September, 1985 to him pointing out that so far charges of gross misconduct and in‑subordination were concerned, no specific instances have been quoted and he was not provided with the basic requirement as requested for in his letter dated 31st July, 1985 and thus he was deprived of his natural and legal right of defence. He, therefore, was unable to defend himself against the baseless charges. That the petitioner sent a letter dated 21st September, 1985, to the Director of Education pointing out the above facts to him and fact regarding stay granted by him. The said application was forwarded to the respondent No.3, requesting him to go through the same and offer his comments immediately, for taking further action in the matter. However, the petitioner was served with a letter dated 30th September, 1985. That the petitioner was intimated by letter dated 30th September, 1985, that, `as per direction received from the Board of Trustees he had been removed from service with effect from 30th September, 1985.' That the petitioner requested the respondent to inform him about the particulars of Appellate Authority before whom he could file his appeal but he did not receive any reply thereof. Therefore, the present petition was filed with the following prayers:‑‑ The petitioner, therefore, prays as follows:‑‑ (1) That, this Honourable Court may by an order, hold and declare that the Board of Governors, established in terms of section 4 of the Sindh Private Schools (Management and Control) Act, 1974, by the respondent No.l, to run Habib Public School, Karachi, is alone competent to exercise general supervision and control over the affairs of this school, as laid down in section 8 of the Sindh Private Schools. (Management and Control) Act, 1974, (2) That, this Honourable Court may by an order further, hold and declare that the dissolution of the Board of Governors established by the respondent No.l in terms of section 4 of the Sindh Private Schools (Management and Control) Act, 1974 is without `any lawful authority' and of `no legal effect'. (3) That, this Honourable Court may by an order hold and declare that all orders made, all acts done by persons other than the Board of Governors, established by the Controlling Authority, in terms of section 4 of the Sindh Private Schools (Management and Control) Act, 1974, including the removal of the petitioner from service are without `any lawful authority and of no legal effect'. (4) That this Honourable Curt may by an order direct the respondent No.2 to revive/re‑constitute the Board of Governors to exercise general supervision and control over the affairs of Habib Public School, Karachi, with all such powers, as envisaged in section 8 of the Sindh , Private Schools (Management and Control) Act, 1974. (5) Any other relief or reliefs, as this Honourable Court may deem fit and proper. (6) Costs of the petition:' " On behalf of respondents Nos.3 and 4 (now respondents Nos.2 and 3, as the name of the defendant No.1 Minister of Education has been struck off) counter affidavit has been filed by Asghar Mehdi Naqvi, who is now respondent No.3 in the case and has stated therein that the petition is mis‑conceived and not maintainable in law. That the petition suffers from laches. The petition also suffers from misjoinder of causes of action and of parties. The petitioner cannot resort to Constitutional jurisdiction of this Court for termination of his employment, and no cause of action has accrued to him. The conduct and character of the petitioner was unfit and undesirable for school environment. He was bad debtor and his salary was attached under the order of Civil Court. He was habitually late comer to the school and used to take long leave without any grounds and often told lies. The petitioner was employed as temporary Assistant Master on 24th August, 1968. He was removed from service on ‑10th September, 1989 in accordance with the Rules and Regulations. On 30th December, 1985, his provident fund deposit and employees contribution with interest was remitted to him by cheques which he accepted. That neither the Ministry of Education nor the Government of Sindh is controlling Authority of Habib Public School, the Trustees of Habib Public High School Trust are the Controlling Authority of Habib Public School, and were the employers of the petitioner. The applicability of Sindh Act XXVII of 1974 to the case of the petitioner is denied. The contents of paras. 6 and 7 were denied. As regards para. 8 and its each and every part, it has been stated that the nomination of Board of Governors was for a period of three years and thereafter the respondent No.2 made request to the Secretary Education Department that since all expenses were being incurred by the Trustees of Habib Public School and they further intend to expand the school with cost of Rs.12,00,000 and there was never any mismanagement in the affairs of School, the Board of Governors should not be continued. However, the above request was not acceded to and another Notification dated 22nd January, 1979 was issued appointing twelve (12) Members to the Board of Governors. The term of the office of the above Board expired on 18th January, 1981 and thereafter no further notification was issued. The Board of Governors never took interest in the matter and they rarely attended the meetings. The Secretary of Education held a meeting on 9th February, 1981, in which it was decided that there was no need of the Board of Governors for Habib Public School and Agha Khan School, as most of the private schools have no Board of Governors. The said decision was communicated vide letter dated 9th March, 1981 addressed to the Director of School Education, Karachi and copy has been annexed as Annexure

7. The contents of paras. 9,10,11 and 12 were denied being false and incorrect. It was further stated that copy of the letter, written by the petitioner to the President of Pakistan was not supplied to the Management. It was specifically denied that the Trustees have dissolved the Bard of Governors. The action of the petitioner amounted to gross misconduct, defamation and violation of the Service Rules and Regulations tic did not at any time take the Trustees into confidence. No prima facie case was spelled out either in the representations of the petitioner or in the Governors' letter dated 22nd February, 1984 addressed to the Directors of School Education. The rest of the allegations were also denied. We have heard the petitioner in person, Mr.Tasawar Hashmi, learned counsel appearing for the respondents Nos. 2 and 3, Mr. A.A. Mohammadally, learned Add]. A.G. and have gone through the documents produced alongwith the petition. It was contended by the petitioner that he was discharged from service in the year 1985 mala fide and without observing the Rules and Regulations. That Habib Public School being a Private Institution had to be governed by a Board of Governors appointed by the Governors in terms of section 4 of Sindh Private Schools (Management and Control) Act, 1971, but the same was dissolved illegally. That the petitioner was discharged from service mala fide and was victimised. by Administration only because he used to pin point the illegalities committed by them. Mr. Tasawar Hashmi, learned counsel appearing for the respondents No.2 and 3 has contended that by letter dated 9th March, 1981, the Government of Sindh after satisfying itself decided that there is no need of Board of Governors for Habib Public School and Sultan Muhammad Shah Agha Khan School, Karachi. That the petitioner was discharged from service in 1985 and he was paid his provident fund and other dues/amount on 30th December, 1985, and the said amount was withdrawn by him. That looking to the conduct and character of the petitioner he cannot be thrusted on the trustees of the Board. fie has further contended that contract of service was incapable of being specifically enforced and consequently a servant cannot force himself upon his Master. In this connection reliance has been placed on Qari Yar Muhammad v. Anjuman‑e‑Islamia (1987 SCMR 1770). He has also relied upon the case of the Principal Cadet College, Kohat and another v. Muhammad Shoab Oureshi (PLD 198‑1 SC 170); and M/s. Momin Motor Company v. The Regional Transport Authority, Dacca and others (PLD 1962 SC 108). Mr. A.A. Muhammadally learned Addl. A.‑G. has contended that the Government had dissolved the Board of Governors appointed to manage and control Habib Public School anti, therefore, Government was no more interested in the case. We have considered the contentions. The documents produced by the parties show that the petitioner was served with charge‑sheet dated 14th July, 1985 which has been produced as Annexure 'G' and there is also a reply dated 31st July, 1985; from the petitioner which has been produced as Anx.

1. Thereafter there is letter dated 8th August, 1985, produced as Annxseure 'K' which shows that the petitioner was asked to appear before the Enquiry Committee on 8th August, 1985 at 3‑00 p.m. but he did not turn up. There is show‑cause notice dated 14th September, 1985 and reply thereto dated 16th September, 1985 submitted by the petitioner. The show‑cause notice dated 14th September, 1985 reads as under:‑ "To Mr. Abdul Rab Jafri, G‑42/5, Malir Extestion Colony, Karachi. Your reply dated 31st July, 1985 in response to the charge‑sheet, your letter dated 3rd August, 1985 addressed to the Director School Education and your letter dated 7th August, 1985 in reply to the Principal's letter dated 3rd August, 1985 besides all relevant record and evidence have been taken into consideration by the Enquiry Committee whose recommendation is under consideration of the Trustees. Under the instruction of the Trustees, I do hereby communicate to you this show‑cause notice as to why you should not be dismissed from service for gross misconduct, insubordination and repudiation of the authority of your employer and libel. You may appear personally before the undersignd and explain your conduct and produce evidence in your defence at the school premises on Monday the 16th September, 1985 at 11‑00 a.m. for Trustees of Habib Public School Sd/‑ PRINCIPAL." Thereafter the last letter dated 30th September, 1985 sent to the petitioner reads as under:‑‑ "Mr. Abdur Rub Jafri, G‑42/5, Malir Extension, Karachi. REMOVAL FROM SERVICE. I am directed by the Board of Trustees to communicate to you that you have been removed from School Service w.e.f. 30th September, 1985 (afternoon). ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Sd/- PRINCIPAL." It is an admitted position that the Board of Governors for Habib Public School was dissolved by the Government of Sindh vide letter dated 9th March, 1981 which reads as under:‑‑ "No. SO(G‑II) 5‑13/74 The Director School Education, Karachi. Subject: CONTINUANCE OF BOARD OF GOVERNORS FOR HABIB PUBLIC SCHOOL KARACHI AND SULTAN MUHAMMAD SHAH AGRA KHAN SCHOOL KARIMABAD, KARACHI. I am directed to refer to the subject noted above to say that in most of the Privately managed schools, no Board of Governors has been constituted. The school has to be registered with the Directorate of School Education as per terms and conditions laid down for the Opening Private Schools and also registered and affiliated with the Board of Secondary Education for academic requirements and conduct of examination. As discussed by you with the Education Secretary in the meeting held on 9th February, 1981 of this Department, it has now been decided that there is no need of Board of Governors for Habib Public School and Sultan Muhammad Shah Agha Khan School, Karimabad, Karachi. The Director should only ensure proper academic control and also see that there is no commercialization beyond accepted limits in these schools. In case of any incident which may affect the proper functioning of the school adversely, the matter may be brought to the notice of this department for appropriate action." It is also an admitted position that Habib Public School is a private education institution and is being run by the trustees. Rule 4 of the Efficiency and Discipline Rules framed by the Board of Governors Habib Public School Karachi, by virtue of section 8 of the Sindh Private Schools (Management and Control) Act, 1974 defines "misconduct" means conduct prejudicial to good order of service discipline or unbecoming of a teacher and a gentleman and includes any act on the part of an employee to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Board or the Principal in respect of any matter relating to the appointment, promotion, transfer, punishment, removal from service or dismissal from service or other conditions of service of an employee and in addition the following acts and omissions shall be treated as misconduct. (a). ........... (b). ........... (c) making false or misleading statements; (d) ............ (e) ............ (f) wilful in subordination or disobedience, whether alone or in combination with others to any lawful and reasonable order of a superior; (g) ............ (h) ............. (i) ............ (j) habitual absence without leave or absence without ]cave for more than ten days; (k) habitual late attendance; (1) ............. (m) ............ (n) frequent repetition of any act or omission referred to in clauses (a), (b), (c), (d). The penalties provided for any of the acts or omissions include removal from service and dismissal from service. From the above narration of facts, it is clear that Habib Public School is a private educational institution and is being run by its Trustees. The Provincial Government after taking into consideration the facts and circumstances has dissolved the Board of Governors as there are other private schools also which arc running without the Board of Governors appointed by the Government and, therefore, the petitioner cannot insist that there should be a Board of Governors for running and controlling the affairs of the Habib Public School, Karachi. As far as the termination of service were concerned, the documentary evidence goes a long way to show that formalities of law were complied with inasmuch as he was charge‑sheeted and after receipt of reply he was given an opportunity to appear before the Enquiry Committee but he failed to appear. However, he was given another opportunity and thereafter the Trustees after taking into consideration the entire material available against the petitioner terminated his service. He was sent a cheque towards his dues including G.P. Fund and the same was encashed by the petitioner. The relationship between Habib Public School and the petitioner was that of master and servant and, therefore, looking to the facts and circumstances of the case he could not be thrusted upon the Habib Public School against the wishes of its Trustees. In this connection reliance is placed on (1) R.T.H.Janjua v. National Shipping Corporation (PLD 1974 SC 14(); wherein an employee of the National Shipping Corporation was removed from service on number of charges, and he filed a writ petition before the High Court which was dismissed. The petition for Special Leave to Appeal was filed before the Honourable Supreme Court and their Lordships were pleased to observe that‑‑‑‑ "The "The Constitutional safeguards available to the generality of civil servants against arbitrary dismissal or removal from service are not available to the servants of registered company or a statutory Corporation. The general law of master and servant is applicable and the only remedy available to the aggrieved servant in such cases is to sue for damages for wrongful dismissal and not a writ of mandamus or certiorari." (2) In the case of Principal, Cadet College, Kohat v. Mohammad Shoib Qureshi (PLD 1984 SC 170); it was observed that:‑‑ In order to succeed in constitutional jurisdiction apart from the question whether the aggrieved employee to statutory body was a holder of a `public office.' More important question will be whether the conditions of service were governed by any statute and/or a statutory rule, if so whether the statute or statutory rule was disregarded while taking the action which is impugned by him." In the above case, their Lordships themselves perused the documents placed on record and the papers of the case and went through the personal file of the petitioner and other relevant documents and came to the conclusion that:‑‑‑ "Since the petitioner was given full opportunity to contest the charges against him but that his conduct was highly undesirable and unbecoming of a teacher of a responsible and disciplined teaching institution, the petition was dismissed." (3) In the case of M/s. Momin Motor Company v. The Regional Transport Authority, Dacca and others (PLD 1962 SC 108); wherein by a resolution three stage‑‑carrige permits of the appellant were taken away and allotted to the other respondent. It was contended that the appellant had a contractual right because he had been made to spend a lot of money on making route bus worthy and the understanding was that no other permit would be introduced on this route, the contention was repelled by their Lordships and it was observed that:‑‑ "The short answer of this contention is that contractual rights, if any, are not enforceable by recourse to writ jurisdiction." (4) 1n the case of Qari Yar Muhammad v. Anjuman‑e‑Islamia (1987 SCMR 1776); the petitioner who was serving in lslamia High School Ouetta, which was being run by a private institution known as Anjuman‑e‑Islamia challenged the order of his dismissal from service by a suit. The respondent, Anjuman‑e‑Islamia resisted the suit and it was contended that the suit was not maintainable but the suit was decreed. The respondent riled appeal which was dismissed by the learned Additional District .fudge and the objection regarding maintainability of the suit was repelled on the ground that the school was receiving aid from the' Government. The respondent filed revision before the High Court which was allowed and the learned Single Judge was of the view that suit tiled by the petitioner for declaration that the order of his dismissal was illegal and for consequential relief of reinstatement in service was not maintainable. The petitioner filed petition for leave to appeal before the Supreme Court and their Lordships were pleased to dismiss the above petition after taking note of Janjua's case (PLD 1974 SC 116) and section 21(b) of the Specific Relief Act, referred to by learned Single Judge of the High Court and the fact that the learned counsel for Educational Institution/respondent had already made concession in favour of the petitioner that he was entitled to three months 'pay, it was observed that:‑‑‑ "Mere fact that the Educational Institution was receiving grant in aid from Government could not convert such a institution into a public institution or attract statutory rules applicable to civil servants and the concession made by the learned counsel for three months' salary in lieu of three months' notice was sufficient to hold that the suit for declaration and consequential relief was not maintainable." In view of the above factual as well as legal position we are of the considered view that the petitioner was given ample opportunity by the respondents Nos.2 and 3 to defend his case and that there is material on record which justifies the order regarding termination of his service. Moreover, the petition itself is not maintainable in law and, therefore, the same is accordingly dismissed. We had decided the above petition by a short order dated 05th October, 1989 and these arc the reasons for the same. M.B.A./A‑723/K ??????????????????????????????????????????????????????????????????????????????? Petition dismissed.