ARSHAD JAMAL vs N.-W.F.P. FOREST DEVELOPMENT CORPORATION and others

' MUNIR A. SHEIKH, J.---This appeal by leave of the Court is directed against the judgment dated 25- 11-1997 whereby Constitutional petition filed by the appellant has been dismissed by a Division Bench of the Peshawar High Court, Peshawar.

2. Facts of the case are that on 5-6-1996 appellant was appointed as Assistant Manager (Administration) in BPS-17 against a vacant post on contract basis for a period of six months. In a meeting of Board of Directors held on 18-4-1996 the services of the appellant were regularized. On 2-2-1997 the appellant was served with the following order:-- "Office Order ' On perusal of the relevant record the appointment of Mr. Arshad Jamal, Assistant Manager (Admn.) BS-17 has been found illegal, ab initio void and against the prescribed rules. His services are, therefore, hereby dispensed with, with immediate effect.

(Sd.)

(Sardar Wazir Muhammad), Managing Director."

3. Feeling aggrieved the appellant filed a Constitutional petition before the High Court which has been dismissed through impugned judgment on the ground that the appellant's services were not regulated or governed by statutory rules, therefore, the Constitutional petition was not maintainable.

4. The respondent Corporation was created under North-West Frontier Province Forest Development Corporation Act (Act X1 of 1977 thereinafter referred to as 'the Act 1977'1 which apart from other mattersalso provided rules for appointment of officers in the Corporation in different grades. Section 25 conferred power on Provincial Government of N.-W.F.P. To frame rules and particularly in the matters mentioned thereunder. Under section 26 of the Act, the Corporation can frame Regulations relating to terms and conditions of the employees but subject to the prior approval of the Provincial Government. We have gonethrough the relevant rules framed by the departmentbut when questioned, learned counsel for respondent frankly conceded that they were not notified through official Gazette. Learned counsel for the respondent placed before us a photostate copy of the. Regulations framed under section 26 of the Act, 1977 but there is no provision contemplating app6:ntment, dismissal or removal of an employee of the Corporation as they only deal with the pay and allowances admissible to the employees of the Corporation.

5. The order of removal of the appellant from service shows that same had been passed by the concerned Authority after having applied its mind to the contents of the record and findings recorded that appointment of the appellant was illegal as such ab initio void and against the prescribed rules.

6. The question arises whether the appellant can maintain Constitutional petition even if no statutory rules had been framed by the Provincial Government if the above said rules are deemed to have not been framed properly as they had not been notified through official Gazette. It has been held in Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCM R 934 and Abdul Hafeez Abbasi and others v. Managing Director Pakistan International Airlines Corporation and others 2002 SCM R 1034 that where a removal order of such an employee of corporation even in the absence of statutory rules is made on particular grounds which are in the nature of charges, the employed' has a vested right of hearing before any order adverse to his interest was passed by virtue of principle of audi alteram partem which was the least requirement.

7. It may be seen here that since the Authority passed an order influenced mainly by the fact that the appointment of the appellant was illegal, ab initio, void and against the rules it was necessary that before passing order, of termination or removal, appellant should have been issued show cause notice and an opportunity of hearing granted and thereafter well-considered order should have been passed.

8. For the foregoing reasons, this appeal is accepted, order of the removal from service of appellant dated 2-2-1997 passed by respondent Corporation is hereby declared to be illegal and without legal authority as such set aside.

9. Learned counsel for respondents admits that by virtue of interim order passed by this Court, appellant is still in service, therefore, he is already drawing the benefits of the post, as such no order is required to be passed regarding back-benefits. It will be open to the respondent Corporation if it so likes to proceed afresh against the appellant in accordance with law as observed hereinabove. No order as to costs.