SAIFULLAH CHEEMA Versus CHAIRMAN BOARD OF GOVERNORS, AITCHISON COLLEGE, LAHORE

JUSTICE (RETD.) RIAZ KAYANI (CHAIRMAN).--- Saifullah Cheema, former Mathematics Teacher, Senior School, Aitchison College, Lahore has brought this appeal assailing the order, dated 10-6-2004 passed by the Principal, Aitchison College, Lahore, the competent authority, under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000. His appeal to the Chairman, Board of Governors, Aitchison College, Lahore having not been attended to within the statutory period, recourse has been made through the instant appeal for the redressal of his grievances.

2. A complaint was brought on 9-10-2002 in writing by Muhammad Ahmad Malhi, a student of Class C2C (Final year of `O' level, equivalent to 10/11th Class) addressed to the Principal, Aitchison College, Lahore that he was beaten by the appellant on the date of complaint, while taking Mathematics class, as well as abused his mother and sister. It was stated that although he regretted for what he did, but the Teacher reacted harshly by slapping and pushing him, in consequence of which he started bleeding. Quick and prompt action was solicited as he felt insulted and hurt in front-of the whole class. It seems that a preliminary inquiry was ordered by the Principal by appointing a committee comprising Mr. G.D. Gillani (Convener) and Major (Retd.) Syed Muhammad Azhar as Member. The committee examined the complainant along with six students of the same class, who were selected at random by the class prefect. A report, dated 17-10-2002 was submitted statedly after a thorough investigation. Since the report shall be commented upon in this judgment in the ensuing paragraphs, it would be worthwhile to reproduce it in extenso:--

(i) Muhammad Ahmad Malhi has been a persistent source of trouble in this class . This is abundantly clear from the statements of his class-mates

(ii) M.A. Malhi has been involved in acts of moral decadence as explained by Mr. Saifullah Cheema in his interview .

(ii) M.A. Malhi has been warned by his teachers on several occasions to bring about a positive change, it is evident that he enjoys teasing his teachers and boasts of this attitude amongst his class-mates .

(iv) On the day of this particular incident, Mr. Saifullah Cheema reacted to the complainant's aggressive, rude and immoral act with outrage and anger. He definitely pulled him out of his seat upon his refusal to leave the class voluntarily. While pushing Maihi out of the class, he hit him on the back .

However, there is no evidence whatsoever to support the claim of the complainant that he was beaten up to the extent of bleeding.

(v) M.A. Malhi in his formal complaint, written statement and during the course of interview did admit causing trouble in the class . Although he expressed his guilt and apologized for his actions, it is very unlikely that this boy would behave any better in future .

(vi) It is noted that Mr. Saifullah Cheema is a very dedicated, capable and upright person who enjoys his work. His past record is unblemished and he commands respect of his pupils.

(vii) The grievous action taken by Mr. Saifullah Cheema has not been transpired by alone episode rather it looks like an action of a person who failed to control his outrage due to persistent teasing and mental torture inflicted by the complainant .

In view of the above, the inquiry committee suggests that a lenient view should be taken regarding Mr. Saifullah Cheema. The committee further suggests that a strong warning should be issued to M.A. Malhi, who has been responsible for spoiling the class discipline and who in our opinion is the main cause of this untoward incident.

The findings and recommendations are being put up for your perusal please."

While conducting the inquiry, the committee recorded the statements of the students whose names have been mentioned. One of the student namely Ali Imam Sabir stated that Muhammad Ahmad Malhi, the student, suddenly started laughing loudly and tried to be funny. It was further stated that M.A. Malhi is normally one of the mischievous boys in the class and has often teased the teachers and irritated them. Continuing with his statement, the witness stated that Sir Saifullah Cheema was quite aggravated and reacted by beating Maihi and threw him out of the class. In the end, it was added that Sir Saifullah Cheema obviously likes to maintain discipline in the class and honestly speaking, the beating was justified to some extent . Syed Hamza Hussaini, another student stated that Malhi started to disturb the class as he was laughing loudly and Sir Saifullah Cheema ignored him and became angry and hit him. It was stated that the Teacher was one of the best teachers and normally ignored these disturbances and attitudes, whereas Malhi often teases and disturbs the class and after ignoring all this on various occasions, Saifullah Cheema finally hit him. The student elaborated that it was the extent of his patience as he had previously warned Malhi not to indulge in all these bad habits. Muhammad Usman Ijaz, yet another student although stated that Sir Saifullah Cheema was annoyed to the extent that he was compelled to beat the fellow (Muhammad Ahmad Malhi), yet described and blamed Malhi to be an average graded student and is always annoying most of the teachers . The Mathematics Teacher (appellant) always used to ignore him and kept on giving warnings, but that day on the 9th of October, he lost his patience and started to beat him. Praising the teacher, the student acclaimed him as one of the best teachers in Mathematics, who was punctual in his work and was otherwise a friendly man. The competent authority decided to proceed against the appellant and on 18-10-2002, sought an explanation in writing to show cause as to why disciplinary action should not be initiated on account of professional misconduct. On 29-10-2002, a formal show-cause notice under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000 was issued to him containing the following charge:

"You on 9th October, 2002 physically tortured and used filthy language to Ahmad Malhi, a student in your class in the presence of the other students.

Further you expelled him by force from the class. This irresponsible conduct has created a bad reputation of the institution as physical torture is prohibited. In case of any problem from the student, you are bound to inform the Principal of the College. But you handled the student so ruthlessly which conduct is prejudicial to good order and service discipline and is a grave misconduct. You are not the Judge of your own cause while serving the Institution. Thus by giving physical torture has not lowered the prestige of the College, but also has created embarrassment among the students of the College including their parents.

So your remaining on the strength of the College will further deteriorate the good order of the College. As the charge of misconduct is self-evident from the record, the question of inquiry does not arise in the view of the above and you are hereby given show-cause notice of major penalty for removal from service under section 3(1) of the above said Ordinance within seven days or otherwise through ex parte proceedings if no reply is received."

Another step which the competent authority took was to suspend the appellant vide order of even date. He was however, directed during the period of suspension to remain in attendance in the institution . In the reply given by the appellant titled as `Factual plain' the appellant denied to have physically tortured or used filthy language against the student, and stated that Mr. Malhi was a notorious student of the college, who indulged in immoral and unethical activities , unbecoming of a student of any educational institution. Elaborating his explanation, appellant stated that he would like to explain it here as to his (Malhi) nefarious activities, but his pen and conscious does not permit him to bring it in writing . However, the activities of Mr. Malhi shall be narrated to your goodself (competent authority) during the course of personal hearing.

Recounting the event of 9-10-2002, appellant explained that Mr. Malhi again indulged in the same immoral and unethical activity , which the boys of the class exhibited some unrest when he (appellant) was about to turn to the blackboard in order to explain a proposition, when the said body burst into sarcastic laughter and, when he (appellant) ordered him to leave the class, he disobeyed the command of the Teacher with impunity. The boy was again ordered to go and leave the class, but he still remained adamant, with the result that he approached him and pushed him out of the class and this, what all, happened . Appellant emphasized that he believed in strict discipline in the class, as he did in the past, but all his efforts proved abortive, and turning him (Malhi) out of the class was the requirement to bring discipline in the class being the foremost requirement of a teacher. Appellant stressed that the mother of the student also threatened him of dire consequences, which matter he had already reported to the Principal , and to cap it all, regarding his misdemenour, it was stated that Mr. Kashmiri (Headmaster, Senior School) had canned the boy earlier. On the legal plain, a regular inquiry was demanded.

3. Appellant thereafter invoked the constitutional jurisdiction of the Lahore High Court through Writ Petition No.19452 of 2002, which resulted in an order, dated 29-3-2002, in which, on the basis of the supplementary statement of the respondents (Aitchison College, Lahore), a regular inquiry was ordered, and secondly the appellant was directed to make a written representation before the competent authority for the payment of his salary which was statedly withheld. A formal order holding a regular inquiry was passed by the respondents on 13-4-2004 on the same charge, which, for the sake of brevity need not be reproduced. It would be pertinent to point out that Mr. Iftikhar A. Malik, a Bursar was appointed as Inquiry Officer, and the appellant was directed to appear before him on 22-4-2004, at 9-30 a.m., on which date the inquiry was to commence. On 17-4-2004, appellant submitted a written application to the Principal, Aitchison College, Lahore against the Inquiry Officer, stating that due to his liaison with the prosecution in his case in the Court of law, justice was not expected from him as he apprehended partiality. The application was dismissed by the respondent.

4. The Inquiry Officer commenced the inquiry, and in the presence of the appellant, took the statement of Syed Muhammad Azhar, Teacher of Senior School and one of the members of the inquiry committee, who conducted the preliminary inquiry. In his statement, the witness stated that they submitted their verdict to the Principal in the preliminary inquiry report, and that Saifullah Cheema (appellant) was a reasonable and dedicated teacher, and if what happened, it was the result of some provocation, and because of its nature , the act committed by the appellant should be condoned, and the Teacher be exonerated. The witness submitted a statement with a request to the Principal, Aitchison College, signed by the students to pardon the Teacher. Appellant was given a chance to cross-examine the witness, which he declined. The statement of Muhammad Ahmad Malhi was also recorded, who stated that the appellant beat him in the class whilst he was teaching, as he was laughing loudly, and when he came home, he told his mother, who wrote an application and dropped it in the box placed outside the room of the Headmaster. Thereafter, his mother came to the Principal and asked for some action to be taken against the appellant for what happened on 9-10-2002. He was put questions by the inquiry committee, who conducted the preliminary inquiry, and in response, the whole incident was explained. In reply to the cross-examination conducted by the appellant,. the student stated that he was laughing loudly. To another question put by the appellant whether (student) was told to leave the class, the answer was in the negative. To yet another question as to what did the appellant ask the student to do, the reply by Malhi was that he was beaten and while he was, sitting, Sir pulled him up, pushed him and hit him on the chest. To the last question, the student stated that in his opinion, the case should be finished as soon as possible because he felt repentant and that he was under a lot of stress because he felt guilty in front of the whole school, as a result of the suspension of the teacher. Appellant was asked to depose, but before doing that, he made a request to engage a counsel, which was declined by the authority. He also placed on record a written request made by about 29 students stating that the boy (complainant Malhi) committed an unfortunate incident by behaving in an intolerable way and that they believed that the act of the Teacher was morally correct. They prayed that taking strict action was unjustified, rather the boy should be punished who was taking pride in what he had done . The second request made by the appellant in writing on 30-4-2004 was that since the complainant has moved the application for withdrawal of the complaint/inquiry, the same be dropped and the case be closed. This request was declined by the competent authority. Appellant named his defence witnesses as Rizwan Hussain and Abuzar Moazam, both students, whom he could not produce, resultantly the defence was closed. The Inquiry . Officer on 15-5-2004 submitted his report to the competent authority. In his report, the Inquiry Officer admitted that there was evidence that the boy was misbehaving in the class and that the action of the Teacher (appellant) alleged to have beaten the boy was the misconduct, which was being investigated, and further there was no complaint by Saifullah Cheema (appellant) to the Principal either on the day of the incident or earlier about the body's misbehaviour. The Inquiry Officer in Para 25 of his report decided not to give chance to the appellant to cross-examine the six boys who gave their statement in the preliminary inquiry leading upto the report, dated 7-10-2002 as there was no point to cross-examine them, they having failed to appear in the regular inquiry , and that their statements in the preliminary inquiry was to be ignored. As regards the application moved by 29 boys seeking pardon on behalf of the appellant, the Inquiry Officer observed as under:--

"The boys (29 in number) application (undated) (Annexure-C) to the Principal produced by Saifullah Cheema indicate that the said Saifullah Cheema is an extremely good and competent teacher and in their view 'the boy due to whom this unfortunate incident took place was behaving in an intolerable way'. Whilst this may be so as far as the conduct and reputation of the teacher, he or she working as a teacher in the College has td show and display above per conduct, be very patient with boys and be tolerant and understanding to earn their everlasting respect and teach them with honour, self-respect, compassion, fairness and enthusiasm which is expected of a teacher in the College. In case of any unruly boy the correct way would be to report him to the higher authorities and not take any action personally .

It has been brought on record that 29 boys submitted an application to the Principal to pardon Saifullah Cheema and there is no reason why the undersigned should gather them and their statements. Their statement is accepted but even the joint applications of the 29 boys does say Malhi's behaviour resulted in `this unfortunate incident' took place."

In para 31 of the report by the Inquiry Officer titled as `Findings and Recommendations, the conclusion drawn was that the appellant had been rough and brutal with Malhi who was physically pushed and expelled by the appellant, by using force, out of the class and also hit him in the process, which constituted misconduct. It was further added that the act of the appellant lowered the prestige of the college and caused embarrassment amongst the students of the college and their parents. Stating further, the Inquiry Officer held that any problem from the student should have been complained to the Principal, but manhandling the student is the conduct prejudicial to good order and service discipline. Appellant was recommended to be removed from service as contemplated in section 3 of the Punjab Removal from Service (Special Powers) Ordinance, 2000. The competent authority after hearing the appellant imposed the penalty now impugned.

5. Learned counsel for the appellant raised some preliminary objections in that the respondent No.3, i.e, the Principal Aitchison College, the Mall, Lahore, not being the competent authority under the provisions of the Punjab Removal from Service (Special Powers) Ordinance, 2000 could not inflict the penalty of removal from service through the order now impugned. The second preliminary objection raised was that the Principal Aitchison College, Lahore passed the impugned order of removal from service, dated 10-6-2004 without extending the appellant an opportunity of hearing, thereby not only violating the proviso to Rule 8 of the Ordinance, but also, trampling with impunity, the principles of natural justice enshrined in every proceeding affecting all forms of rights which are likely to cause detriment and injury in case any action is proposed to be taken.

6. On factual plinth, learned counsel for the appellant contended that the proceedings were commenced against the appellant as a result of malice and grudge entertained by the Principal of the College due to litigation initiated by him, which was mainly to protect his rights, and that his act only amounted to a fatherly admonishment to an erring student for the maintenance of discipline in the class. Therefore, the impugned order has resulted in a grave miscarriage of justice. It was next contended that the student, who appeared in the preliminary inquiry were deliberately not allowed to depose in the regular inquiry as they had supported the appellant and there was fear that the malice entertained by the respondent would not be executable against the appellant in case the depositions come on record. The order of the respondent refusing to change the Inquiry Officer on the request of the appellant was also lambasted reiterating therein that the Inquiry Officer was grossly biased and prejudiced in his approach towards the appellant, which hampered him from doing justice to the case of the appellant. Lastly, it was pleaded that the penalty imposed was extremely harsh taking to consideration the offence and consequent provocation given by the complainant whose act eroded the discipline not only of the class, but of the institution. Learned counsel for the respondents supported the impugned order, submitting that corporal punishment was condemned world over and the perception, with passage of time, has trickled to the Provinces of Sindh and Punjab. He laced his arguments with press clippings and news items gathered from the Internet. However, the learned District Attorney addressed the Tribunal on the harshness of the penalty and emphasized that the same was grossly disproportionate even if the acts committed by the appellant are admitted, which were proved to be the result of provocation given by the complainant, by his rowdy behaviour coupled with some immoral act as suggested in the preliminary inquiry report.

7. I have heard the respective counsel at length and perused the record.

8. I intend to deal with the preliminary objections in the first instance. Learned counsel for the appellant went on to contend while collaborating his arguments regarding the lack of jurisdiction on the part of respondent No.3 to pass the impugned order, alluding to the statutes of Aitchison College, Lahore in particular to sub-clause (b) of Clause-I, that the terms and conditions of service of Principal and other Members of the staff of the institution are determined by the Board, which comprises the Governor of the province of Punjab as President and such members as may be appointed by the Governor from time to time. Coming to Clause `d', it was stated that the Board has to set up an executive committee, sub committee and other standing committees as may be required for carrying out the purposes of the statutes . Similarly, sub-clause (e) relates to the delegation of powers to the President, the executive committee, the sub-committee , the standing committee, the Principal, the staff of the institution and other officers and servants of the Board. Finally sub-clause (f) authorizes the Board to frame, subject to the approval of the Government , regulations for the conduct of business of the Board. Learned counsel also referred to sub-clause (1) of Clause-VI which deals with the powers and duties of the sub committee to state that the sub-committee shall be appointed and shall consist of the President and two other members appointed annually by the Board and in the event of the President being unable to attend, he shall appoint any other member of the Board to act as its President. Sub-rule (2) was referred to point out 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. As regards the powers of the Principal to impose penalties, reference was made to Sub-Clause '(6)' of the main Clause-V, which states that 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. Thereafter, a reference was made to sub-clause '(7)', which deals with the power of the Principal to appoint, suspend or dismiss any member of Class-III or Class-IV. Summing up his arguments on this issue, it was stated that the Principal having no powers to remove or dismiss the appellant from service, his action, as reflected in the impugned order suffers from lack of jurisdiction. In reply to this argument, learned counsel for respondent No.3 banked upon the Service Regulations of the Aitchison College admittedly framed under sub-clause (f) of Clause-III of the statutes in particular to Regulation No.9, which stated that the Principal shall be competent to make appointments of Masters and all other permanent posts within the sanctioned establishment other than those mentioned in para 8. Learned counsel further drew the attention of the Tribunal to Regulation No.16, which empowered the appointing authority to terminate the services of any employee at any time having been found after proper inquiry to be guilty of professional misconduct, moral turpitude, indiscipline, gross insubordination or if he is convicted by a Court of law in a criminal charge. It was stated with emphasis that Regulation 9 read with Regulation 16 vested the Principal, Principal Aitchison College, Lahore with powers to terminate the services of an employee whom he has appointed, therefore action of removal from service taken against the appellant being in accord with the Service Regulations, as such, no exception could be taken.

9. Regulation No.16 of the Aitchison College, Lahore speaks about the termination of an employee by the appointing authority. This power given to the respondent No.3 has to be in conjunction with the statutes of Aitchison College, Lahore promulgated by the Governor of West Pakistan on 22-1-1962, and according to the sub-clause (6) of Clause-V, power of the Principal, Aitchison College, Lahore to take disciplinary action does not extent to removal of any member of the teaching and C senior administrative staff. Further Sub-Rule (7) of Rule-V, the power of the Principal to appoint, suspend or dismiss only extends to any member of Class-III of Class-IV staff. There is, therefore, no transgression or intrusion made by the language of item No.16 of the Regulations with sub-rule (20 of Rule-VI of the statutes of Aitchison College, Lahore, which is the prerogative of the Sub-committee only. As regards item No.9 of the Service Regulations of the Aitchison College, Lahore, which deals with the competence of the Principal to appoint masters, it may be observed at the very outset that these service regulations were framed under sub-clause (0 of Clause-III of the statutes of Aitchison College, Lahore, the principal law, and as such anything repugnant in any rule, bye-law, notification, regulation or delegation has to be subservient to the provisions of the statute. Powers to appoint Master, which connotes member so the teaching staff, is specifically conferred upon the sub committee, as observed, under sub-rule (2) of Clause-Vl. Learned counsel for the appellant, has agitated this ground in para. 19(g) of the memorandum of appeal, and in reply to the said ground as well as during arguments, learned counsel for the respondents stated firstly that the appointing authority of the appellant was the Principal, Aitchison College, Lahore, and secondly this power was delegated by the Board of Governors to the Principal under Article-III(e) of the statutes of Aitchison College, Lahore, dated 22-1-1962. Further the Governor of the province of Punjab vide order, dated 3-6-2002 in exercise of the powers conferred upon him by section 2(aa) of the Punjab Removal from Service (Special Powers) Ordinance, 2000, as amended in 2001 authorized the appointing authority designated in the statutes of Aitchison College, Lahore notified on 22-1-1962 to exercise the powers of the competent authority under section 3 of the said Ordinance. Therefore, reading all the provisions in juxtaposition, the Principal, Aitchison College, Lahore being the appointing authority of the appellant after having been declared as competent authority could proceed against him and there is no legal flaw in the impugned order.

10. Learned counsel of the respondents did not produce any notification of the Board delegating the powers of appointment of Masters to the Principal, Aitchison College, Lahore. Secondly, even if we assume that such powers were delegated to the Principal by the Board of Governors of the Aitchison College, such delegation shall be termed as under by the mandatory provisions of Article-V(6) & (7) of the Statutes of Aitchison College, Lahore unless the latter provisions are suitably amended. The Punjab Removal from Service (Special Powers) Ordinance, 2000 being a general law has to bow before special law governing the business and functions of Aitchison College, Lahore under its statute promulgated on 22-1-1962. Even otherwise, the counsel of the appellant articulated forcefully that Article-II1(f) empowering the Board of Governors to frame regulations for the conduct of business. of the Board requires prior approval of the Government, and the service rules and regulations for the staff of Aitchison College, Lahore brought into force with effect from 1-1-1980 does not have the blessing of the. Government. This argument certainly has considerable force. Neither the Aitchison College, Lahore, Service Regulations state anywhere that the same have been framed after seeking approval of the Government nor learned counsel lay any notification before the Tribunal indicating that permission was ever granted by the Government to the Board of Governors, Aitchison College, Lahore to frame the Regulations. The arguments of the learned counsel for the respondents that the Principal, Aitchison College is the appointing authority of the appellant under Regulation 9 of the, Aitchison College, is based on notion not supported by law or rules for reasons discussed. This being the situation, notification, dated 3-6-2002 declaring the Principal, Aitchison College as competent authority also falls to the ground.

11. Now taking up the second preliminary objection raised by the learned counsel for the appellant that he was not heard by the Principal, Aitchison College, who passed the impugned order, thereby violating the mandatory provision of the proviso to section 8 of the Punjab Removal from Service (Special Powers) Ordinance, 2000, has considerable force. The provision of law referred to itself makes it mandatory upon the authority to hear the appellant before passing any order by the use of the word `Shall' either himself or through an officer senior in rank to the accused (appellant). Dilating upon the facts to discern whether such hearing was provided to the appellant, we, first of all revert to the notice sent to the appellant by respondent No.3 titled as `Second Show-Cause Notice and the relevant portion, for facility of reference is reproduced:---

"In the light of the Report and circumstances, you are hereby served with this notice to show cause as to why you should not be removed from service. If no reply is received from you within a period of 7 days hereof, it shall be presumed you have nothing further to add and further proceedings shall be taken accordingly. You may also appear before the undersigned in person to explain you position or point of view in the matter ."

The quoted portion directs the appellant to submit the reply which admittedly he did much before the expiry of a period of seven days given to him. As far as the personal hearing is concerned, the respondent No.3 left the matter in an utterly vague state which could take anyone in the realm of confusion and guess-work, particularly the appellant, who by earlier events was totally cowed down by restricting his movements, as well as the time limit he was supposed to remain on the premises, therefore the arguments of the learned counsel for the respondents in response to this objection that the Principal, Aitchison College, Lahore kept the matter open for the appellant to appear in person any time and explain his position does not carry any weight whatsoever. It may be not out of place to mention at this very juncture by quoting few lines from the impugned order passed by the respondent to the following effect:

"You were given seven days from the date of the letter to respond and were also given an opportunity to appear in person to explain your position or point of view to the undersigned. I not only waited for given period of seven days, but waited for a couple of days more and then decided to dispose of your case ."

At the time of passing of the suspension order on 29-10-2002, appellant was directed by respondent No.3 to remain in attendance in the institution during suspension. On 22-4-2004 at 11.15 A.M., while the appellant was sitting with his colleagues in the Cafeteria after meeting the Bursar in connection with the inquiry, he was accosted by Mr. Aslam, the Security Guard and according to the appellant, the Security Officer rudely inquired whether the appellant had the gate pass or not, and when the Security officer was told that the appellant does not need a gate pass to enter the college being a bona fide employee, he was told that as instructed by the college authorities, the appellant needs a gate pass to enter the college. It is stated that the Security Officer further harassed the appellant by interrogating him as to the gate from where he entered the college , and that's why he entered the college without a gate pass. A complaint was made to the Principal, Aitchison College on 23-4-2004 by the appellant in writing requesting him to look into the matter, which was serious in nature and action be taken against the security officer for behaving insolently in the presence of the colleagues of the appellant. The Principal, Aitchison College while replying to this complaint of the appellant on 29-4-2004 in writing told him that he should have no objection to persons detailed on college duties, and that his complaint was frivolous and did not deserve any merit. Appellant was further informed that he was under suspension from service/duty, and is directed to report and record his attendance, further he was not required to stay on the campus thereafter unless directed by the college authorities . Now these directions delivered on 29-4-2004 creates a huge dichotomy in the intent of the Principal, Aitchison College, Lahore. On one hand the Principal directs the appellant to come to the college, record his attendance, and then not to stay on the campus unless directed. On the other hand, in the impugned order, an expression was used to convey that within seven days, appellant had to appear before the Principal to explain his case, and that the Principal not only waited for the given seven days, but waited for a couple of days more. Seven days, before we forget, was the time given to submit the reply, the period has no nexus for the appellant's appearance before the Principal. This is clear by the wording of the second show-cause notice, dated 1-6-2004. No doubt the last sentence of the aforesaid notice states that the appellant may appear before the Principal, Aitchison College in person to explain his position. But this is hardly a substitute, in the circumstances narrated, for a particular date and time, which was the necessity of law to have been specifically incorporated, either in the same notice or through another notice, after the perusal of the reply submitted by the appellant. Even otherwise, if we divert to the suspension order, dated 29-10-2002, the second para of the order directed the appellant to remain in attendance in the institution during suspension. The dichotomy certainly becomes manifestly conspicuous by comparison of orders, dated 29-10-2002 and 29-4-2004. The explanation given by the learned counsel for the respondents that hearing was provided to the appellant, and he was at liberty to come at anytime to the office of the Principal to explain his position in person is not at all accepted. The mandatory provision of law having been violated, the appellant was condemned unheard and no order which requires specifically the hearing of the appellant by providing him opportunity under the rules can be maintained when violated.

12. Having decided the two preliminary objections in favour of the appellant, which knocks the bottom of the disciplinary proceedings launched against the appellant, I am not called upon to discuss the merits of the case, however, I would be divorcing myself from my duty, considering the peculiar facts of the case, if I fail to observe certain aspects presented during the hearing of the appeal. The main thrust of learned counsel for the respondents was the corporal punishment inflicted by the appellant upon the complainant (Ahmad Malhi), a student of the class. Learned counsel for the respondents produced press clippings, notification of Education Department of Government of Sindh, special reports from the News International taken from the Internet, condemning such punishments, meted out by the teachers to the students. Whether the act of the appellant so far as it has surfaced during the two inquiries, amounts to misconduct of the magnitude calling for extreme penalty of removal from service, I have, for reasons given, restrained myself from further adjudication. However, on my query to the learned counsel for the respondents as to what action was taken against the student, learned counsel after consulting the record stated, categorically, that no action was ever contemplated till the student passed his `O' Levels and applied for further studies in higher Senior Cambridge. On his application, the Principal remarked that Mr. Ahmad Malhi was a troublesome child, however, later on the supplications of the mother of the student, the Principal admitted him to the course of `A' level. I have only to add that a student, who has been dubbed by all and sundry, to be a persistent mischief maker, teasing the teachers and taking pride to flout the college discipline, has been allowed to go scot-free and flourish, thereby bringing into existence an extremely hazardous precedent in a prestigious institution, standing aloft, not only in India Pakistan but in the whole of Asia. The Registrar of this Tribunal shall send a copy of this judgment to the Governor, province of Punjab, who is also President of the Board of Governors of Aitchison College, Lahore for his perusal.

13. The up shot of the discussion in the precedent paragraphs of this judgment is that order, dated 10-6-2004 passed by the Principal, Aitchison College, Lahore is set aside and quashed. The appellant shall be reinstated in service and all benefits due to him under the law shall be allowed from the date of removal from service till the date of reinstatement. If it is decided to re-open the matter, it shall be done strictly in accordance which law, which has been dealt in length in the judgment. There shall be no order as to costs.

H.B.T./56/PST Appeal allowed.