1994 PLP 342 (CLC)

(4) xxxxxxxx (5) xxxxxxxx (6) The Principal shall take such disciplinary action not extending to removal or dismissal as he may deem necessary against any member of the teaching and senior administrative staff. (7) The Principal shall have the power to appoint, suspend or dismiss any member of the Class III or IV Staff. (8) xxxxxxxx VI. Powers and duties of the Sub-Committee. (1) A Sub-Committee shall be appointed that shall consist of the President and two other members appointed annually by the Board. In the event of the President being unable to attend, he shall appoint any other member of the Board to act as its President. (2) The Sub-Committee shall have full powers to remove and appoint all members of the teaching arid administrative staff including the principal, other than a member of Class III or IV Staff, notwithstanding any existing terms and conditions. The petitioner was appointed as Assistant Master on 31-8-1964 and his appointment letter is (Annex "A") which reads as under: "On behalf of the President and the Members of the Sub-Committee I appoint Mr. Mujeeb-ur-Rehman as an. Assistant Master with effect from 31st August, 1964 on a basic salary of Rs.475 per month plus allowances under the College Rules in the grade of Rs.400--25- 800/40--1,000 plus allowances under the College Rules. He will stay out of the campus. (Sd.) Secretary to the Sub-Committee for appointments." The services of the petitioner were terminated on 9th of December, 1969 which is (Annex. B) by the Principal which reads as under:-- "I wish to inform you that from the end of this term the College no longer required your services as a Teacher." The petitioner filed a declaratory suit challenging the termination on the ground that his services were regulated by Statutes framed by Governor of West Pakistan and termination has been made in violation thereof. Mala fide exercise of powers was also pressed into service with an additional ground that the Principal had no authority under the statutes to terminate his services. The following preliminary issues were framed: , (1) Whether the suit is not maintainable in its present form? OPD (2) Whether the suit is incompetent in view of the preliminary objection taken in the written statement.? The respondents/defendants did not lead any evidence in spite of the fact that the onus was on them. At the trial a plea was taken by the respondents defendants that the relationship of master and servant existed between the parties, as such, no declaration could be granted. The Civil Judge through his judgment dated 6-7-1973 decided the preliminary issues against the respondents-defendants and ordered for the process of the suit. The respondents filed a revision petition which was accepted by the District Judge, Lahore holding suit to be barred by law. Hence this Constitutional petition. It is argued by the learned counsel that the petitioner's services were terminated in violation of the rules in a mala fide manner and the District Judge has not appreciated this aspect of the case. It was further argued that the reliance of the District Judge while dismissing the suit on the case reported as R.T.H.Janjua v. National Shipping Corporation (PLD 1974 SC 146) was simply made without appreciating its true import holding that the safeguards provided to civil servants under the Constitution against arbitrary dismissal or removal from service cannot be availed for as a legal right by an employee of statutory corporation as in the latter case the general law of master and servant would be applicable and the only remedy available to the aggrieved servant would be a claim for damages for his wrongful dismissal. It is also argued by the learned counsel for the petitioner that no revision petition was available against the order of the learned trial Judge and the exercise thereof by the District Judge has resulted in grave miscarriage of justice. I have considered the contentions and have noticed that the Aitchison College was being administered by Aitchison College Society registered under Societies Act XXT of 1860. An order was issued on 11th of November 1961 by the Governor of the then West Pakistan dissolving the Society under MLA Zone B's Order 86 and promulgated the Statutes for its efficient administration. The appointment of the petitioner was strictly in accordance with statutes which provided in para 6(2) that the Sub-Committee shall have full powers to remove and appoint all members of the teaching and administrative staff including the Principal, other than a member of Class III or IV Staff, notwithstanding any existing terms and conditions. This is further fortified as is evident from para V(7) that the Principal shall have the power to appoint, suspend or dismiss any member of the Class III or Class IV Staff. The termination in the case in hand was done by that Principal who had no authority under that Statutes of the College to act in that manner. A stance has been taken up in the written statement as well as during the course of arguments that the petitioner's initial appointment was without jurisdiction and without any authority as no Sub-Committee was constituted. This argument of the learned counsel has got no force in the letter of appointment it is clearly mentioned that the appointment was made on behalf of the President and the Members of the Sub-Committee. The argument of the learned counsel that there were certain allegations of corruption against the petitioner cannot be given any weight as no show-cause notice was given to him to clear his position. On the contrary it is not denied by the learned counsel for the respondent that immediately after the petitioner's termination, an advertisement appeared in the Press for the appointment of another Teacher in place of the petitioner which prima facie supports the stance of the petitioner that the termination was effected in a mala fide manner. I do not want to dilate further upon this issue in view of the nature of the order which I am going to pass because this exercise may prejudice the case of either party. The important question in this case would be to see whether the conditions of service of the petitioner are governed by statutes or rules and if so whether those have been disregarded while taking impugned action against him. The terms and conditions - of the petitioner are regulated by statutes of Aitchison College framed by the Governor in the exercise of his powers conferred upon him under Martial Law Administrator Zone-B's Order

86. The Zonal Martial Law Administrator's powers to issue Martial Law Orders have been held to be of legislative nature. Reliance in this respect is placed upon Gulab Din v. Major A.T. Shaukat and others (PLD 1961 (W.P) Lahore 952), Muhammad Afzal v. Commissioner, Lahore Division (PLD 1963 SC 401) and Allah Bakhsh v. District Magistrate Jhang and 2 others (PLD 1978 Lahore 765). Since the statutes of Aitchison College have been framed in the manner stated above under MLO, as such, they are certainly entitled to be given the status of statutory rules violation of which has been agitated by the petitioner. The case of R.T.H. Janjua, on which the District Judge placed reliance while dismissing the suit, came up for consideration before the August Supreme Court in Principal, Cadet College and another v. Muhammad Shoab Oureshi (PLD 1984 SC 170) while considering the case the Judges held as under: "It is noteworthy that the order of this Court in Janjua's case has been the subject-matter of consideration in several subsequent cases, either directly or indirectly and its scope and purport has by now been fully elucidated. In Syed Akbar Ali Bukhari v. State Bank of Pakistan and others PLD 1977 Lah. 2.,34, K.E. Chauhan, J. (as a Judge in the Lahore High Court) in the course of an elaborate and well-considered judgment found that the theory of master and servant or of pleasure of the master to hire and fire at will cannot be competently raised when the conditions of the service of an employee are reg lated by the terms of the statute and the rules framed thereunder; in. other words where statutory fetters existed to the free operation, working or application of that theory or that concept, the 'theory of "master and servant" was inapplicable. The above conclusions were reached by the learned Judge after referring inter alia to the case of Janjua." The aforesaid resume would show that the reliance of the learned District Judge on R.T.H. Janjua's case in the presence of Aitchison College's Statutes, which controls the terms and conditions of the petitioner, was not proper. Civil Courts are Courts of general jurisdiction. Their jurisdiction into the cases of violation of statutory provisions cannot be barred. The learned Judges of the Supreme Court in Mian Muhammad Latif v. Province of West Pakistan (PLD 1970 SC 180) have quoted this aspect of question which was considered by the Privy Council in the case of Secretary to State v. Mask & Company wherein it was held as under: "It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure." For what has been stated above the writ petition is accepted and the judgment dated 2-7-1975 passed by the Distt. Judge, Lahore is said to have been passed without lawful authority and of no legal effect. The judgment of the trial Court is restored and the case is remitted to him for the trial of the declaratory suit. There shall be no order as to costs. H.B.T./M-1172/L Petition accepted.