BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, SARGODHA Versus ABDUR REHMAN

1. SHAFIUR RAHMAN, J .‑‑Leave to appeal was granted to examine whether a fair opportunity of defending himself had been afforded to: the respondent before terminating his services, and whether the standard for it has to be different in the case of employment in an educational institution as compared to employment in Government

2. The respondent was temporarily employed as Senior Clerk and was on probation when the following order was passed on 24th of July, 1971 terminating his services from a date a month after the date of the notice:‑‑

3. "The Chairman has terminated the services of Mr.Abdul Rehman Bajwa, Temporary Senior Clerk, Academic Branch w.e.f. 22‑8‑1971 A.N. due to unsatisfactory work and conduct. He has been given prior notice of one month w.e.f. 24‑7‑1971 F.N."

4. A complaint was received against the respondent of having received Rs.450 as illegal gratification. A preliminary inquiry was held. A show‑cause notice dated 17‑4‑1971 was issued. The following was the substance of the allegation conveyed to him by notice‑.‑

5. "As a result of preliminary enquiry the above charge has been proved against him. Further his work and conduct in the office has been most unsatisfactory. In less than two years' service he has been administered severe warning on three different occasions. Moreover he does not enjoy a good reputation in the office. He is therefore directed to show cause as to why his services should not be terminated.

6. His reply to the show‑cause notice should reach the Establishment section within 7 days of its receipt otherwise it will be presumed that he has nothing to say in his defence and his services would be terminated without any further notice. " ,

7. He submitted a reply which was taken into consideration and thereafter the order dated 24th of July, 1971 was passed. The respondent appealed against it to the Chairman but was unsuccessful. He thereupon instituted the Civil Suit challenging the termination of his services. The suit was contested and the following issues were framed on the pleadings of the parties:‑‑ ,

8. "(1) Whether the civil Court lacks jurisdiction to try this suit? OPD

(2) Whether suit is not maintainable in its present form? OPD

(3) Whether the plaintiff lacks locus standi to bring this suit? OPD

(4) Whether the orders dated 24‑7‑71 and 28‑9‑71 are illegal, without jurisdiction, mala fide, unjust, void and are, therefore, inoperative against the rights of the plaintiff? OPP

(5) Relief."

9. The trial Court held that the civil Court had the jurisdiction, that the plaintiff had no locus standi to institute the suit keeping in view the relationship of master and servant existing between the parties and the only claim that he could lay was for damages. On merits it was held that the respondent had been afforded opportunity and the orders dated 24‑7‑1971 and 28‑9‑1971 were held to be mala fide, illegal and without jurisdiction. However, on the finding that the respondent had no locus standi to file the suit and it was not main tainable, the trial Court dismissed the suit with costs.

10. On First Appeal, the finding on the locus standi to file the suit and maintainability of the suit of the respondent was set aside but on merits the appellate authority held as follows:‑‑

11. "No mala fides has been pointed out by the learned counsel for the appellant. All the proceedings conducted by the Board against the appellant are proved from the documents Ex. D.I to D.16. With this 1 hold that the regular inquiry was held against the appellant and he joined the same. He was issued a show‑cause notice. He replied the same and finally after covering various phases he was dismissed and he appealed against the said order. All these facts prove that the rules and regulations for terminating the services of the appellant were adopted by a the Board. The Board of Intermediate and Secondary Education, being the statutory body, has its own rules which have been fully adopted. Thus I hold that the findings of the learned lower Court on issue No. 4 are not based on correct appreciation of the facts and law. So I set aside the same. This answers the cross‑objection also, so far as this issue is concerned."

12. A Revision was taken to the High Court which succeeded on the ground that Regulation No.1l with regard to a reasonable opportunity to defend himself was not afforded to the respondent and in view of the decisions of this Court in Muhammad Ibrahim v. Government of Pakistan P L D 1972 S C 332 and Muhammad Siddiq Javid Chaudhry v Government of West Pakistan P L D 1975 S C 1 the order was defective in law and hence without lawful authority. Restoration in office was directed.

13. Ch. Muhammad Farooq, Advocate, the learned counsel for the appellant has pressed before us the doctrine of 'master and servant', the bar of jurisdiction of the Civil Courts in the matter and has contended that the principles and law applicable to educational institutions should also be extended to the employees thereof.

14. Mr. A.K. Dogar, Advocate, the learned counsel for the respondent, on the other hand has drawn our attention to the statutory provisions providing a locus standi to the respondent and also decisions of this Court relied upon by the learned High Court for sustaining the case of the respondent.

15. As regards the contention of the learned counsel for the appellant that a relationship of master and servant exists, that the respondent has no locus standi and that the jurisdiction of the Civil Court is barred, it is sufficient to refer to section 20 of the Punjab Boards of Intermediate and Secondary Education Act, 1976, as amended by ordinance No. XXXIII of 1985. The relevant portions of section 20 of this Act are in the following words:‑‑

16. "20. Power of a Board to make regulations. ‑(1) A Board may, subject to the approval of the Government, frame regulations, not inconsistent with the provisions of this Act, to carry out the purposes of this Act provided that:

17. (i)......

(ii) ........

(iii) A Board shall not have the power to make any regulation or adopt any rules or regulations concerning efficiency and discipline of the officers /officials and other employees which is not in conformity with rules made by the Government.

(2) In particular and without prejudice to the generality of the foregoing powers, such regulations may provide for:‑‑

(a) the terms and conditions of service of the employees of a Board including matters relating to grant of leave to, and retirement of such employees;

18. Explanation.‑‑The terms and conditions should be in conformity with rules applicable to Government servants carrying equivalent pay scales and other benefits;"

19. The relevant provisions of Service Regulations, for the purposes of this appeal, are Regulations 2, 11, 12 and 18, the relevant portions of which are reproduced hereunder:‑‑‑

20. "2. Regulation applicable to permanent whole‑time employees.‑‑. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21. 'The Regulation in this Chapter shall apply to all permanent whole‑time employees of the Board and to such other employees as the Chairman may determine from time to time. Except where express provision to the contrary has been made in these Regulations, the Punjab Civil Service Rules as applicable to Punjab Government Servants and amended from time to time shall apply mutatis mutandis to the employees of the Board."

22. "11.Office field at Board's pleasure.‑‑

23. Except as expressly provided in these Regulations, every person who is an employee of the Board, holds office during the pleasure of the Board.

24. No such person as aforesaid shall be dismissed from service until he has been given a reasonable opportunity to defend himself."

25. "12. Period of probation.‑‑(1) Employees appointed against permanent vacancies shall, on appointment to any post, remain on probation which shall be two years in the case of persons recruited direct and one year in the case of persons promoted from within the office. The period spent on leave other than casual leave may be excluded for reckoning the period of probation.

26. Provided that officiating service in a corresponding higher post may be reckoned as the period spent on probation in the post to which he was appointed.

(2) On or before the conclusion of the period of probation of any employee, the Appointing Authority may either confirm such employee with effect from the date of appointment or if his work or conduct has, in its opinion, not been satisfactory, it may dispense with his service, if he has been recruited by direct appointment or may revert him to his former post, if he has been recruited otherwise; or, it may extend the period of probation;

27. ............................. " and

28. "18. Period of notice of discharge. ‑‑In the case of a temporary employee, or a permanent employee whose post is retrenched, or if an employee wishes to leave the service of the Board, the Board or the employee, as the case may be, shall give reasonable notice to the other party. The following shall be considered as the minimum period for this purpose:

(1) for an incumbent with 5 years or more service; 90 days' notice.

(2) for an incumbent with one year's or more but less than five years' service; 30 days' notice."

29. It is clear from the statutory provisions and the Regulations that notwithstanding the use of the expression at pleasure, the relationship is statutory, the protections afforded are under the statute or statutory rules and violation or breach of such rules can afford a cause of action and locus standi to the respondent to seek the declaration which he sought. The ouster clause contained in section 29 relates to order made or proceedings taken by a Board in pursuance of the provisions of the Act. It is only when the action complained of is covered by the Act or its provisions that the ouster of jurisdiction takes place and not otherwise.

30. What we find from the record is that the order impugned by the respondent in the Civil Suit was a composite order in the sense that it dealt with him as a probationer, it dealt with him as a temporary employee and it dealt with him under the rules of discipline and efficiency in service. If it had been a straight order under Efficiency and Disciplinary Rules there would have been no occasion for finding him guilty of misconduct and yet giving him a month's notice and it would not have been termination simpliciter but an order of dismissal. In view of such an order one has to see whether the requirements of providing reasonable opportunity to defend himself had been afforded or not. A preliminary inquiry was held in which he was associated. He gave a written reply which was considered. Thereafter a show‑cause notice was given to him; his reply to it was considered. He did not in his reply refer to or point out any particular defence that he wanted to lead. What he said was that he could produce every type of defence. When he had not specified the defence which he wanted to produce nor named the witnesses nor mentioned the documents, it cannot be said that by taking into consideration his reply alone, he was prejudiced in showing cause against the action proposed to be taken against him. He was told in the show‑cause notice that appear from the incident of receipt of illegal gratification his work and conduce in the office has been most unsatisfactory. Keeping in view the fact that the order that came to be passed was a simple order of termination of service with notice of 30 days and it was expressed to be for unsatisfactory work and conduct and did not involve any allegation of corruption nor was expressed to be an order of dismissal, it cannot be said to be violative of the terms and conditions on which the respondent was employed and which have been referred. He had in fact received sufficient opportunity of defending himself against the action taken.

31. After the preliminary inquiry the Chairman had on 2‑4‑1971 approved the proposal of issuing a show‑cause notice for the termination of the service. After receipt of the reply from him and considering it the Chairman approved that his services may be terminated after giving him due notice for the period prescribed under the rules. It was in this context that as a probationer his work and conduct was described as unsatisfactory and being a temporary employee he was given thirty days notice for the termination.

32. The learned counsel for the appellant is incorrect in contending that the inquiry against an employee has to be as informal and summary as it is required to be against the student. In the case of the student of an educational institution by and large principles of natural justice are followed. In the case of employee, the principles of natural justice are incorporated usually, as in this case, in the statutory rules governing them. Therefore, it is necessary in the case of employee, as of the Government also, to examine the compliance with the statutory rules.

33. In the case before us we find that the respondent had, unlike the decisions relied upon received adequate opportunity of fully knowing the complaints/ grievances against him and of explaining his conduct, and rebutting them. The action taken against him satisfies the requirements of law. This appeal is allowed with costs. The order impugned is set aside resulting in dismissal of the suit filed by the respondent.

34. M.B.A./B‑63/S Appeal allowed.