2014 P L C (C.S.) 1138
[Balochistan High Court]
Before Jamal Khan Mandokhail and Shakeel Ahmed Baloch, JJ
SHAAN SHER TAREEN
Versus
REGISTRAR, ALLAMA IQBAL OPEN UNIVERSITY, ISLAMABAD and 2 others
Constitutional Petition No.715 of 2007, decided on 2nd June, 2014.
(a) Constitution of Pakistan ---
----Art. 199 ---Word 'person' ---Scope ---Word 'person' used in Art.199 of the Constitution is in the
most ordinary contacts, used for a group of people, body, authority etc., thus a person includes a
university, its vice -chancellor and its authorities as well.
(b) Allama lqbal Open University Act (XXXIX of 1974) ---
----S. 31 ---Constitution of Pakistan, Arts.199 & 212 ---Constitutional petition --- Maintainability --
-Petitioner was an employee of Allama l qbal Open University and major penalty of compulsory
retirement was imposed upon him ---Plea raised by authorities was that bar contained in Art.212
of the Constitution was applicable and jurisdiction vested with Service Tribunal ---Validity ---Bar
contained in Art.212 of the Constitution did not apply to service matters of the University ---
Against an order of Appellate Authority, no remedy had been provided by Allama lqbal Open
University Act, 1974, therefore, under Art.199 of the Constitution, "a High Court may if it is
satisfied that no other adequate remedy is proved by law" could entertain Constitutional petition
against order of appellate authority of the University ---Only allegation levelled against petitioner
was that he forwarded vouchers amounting to Rs.38,380 submitted by a part time tutor, who
performed his duty and was entitled for T.A./D.A. ---No amount was drawn on the basis of
vouchers in question, therefore, no loss had been incurred to the University ---Allegation that
petitioner did not verify t he vouchers was not established ---Both Inquiry Committees and Sub -
Committee failed to collect any evidence against petitioner showing an attempt to embezzle
alleged amount, therefore, charge framed against petitioner was disproved ---Imposing of penalty
of compulsory retirement by Executive Council of the University was unjustified, not sustainable
and resultantly set aside ---It was not proved that after compulsory retirement, petitioner was
indulged in any profitable business or service ---Petitioner had bee n facing inquiries and agony of
litigation since 2003 to 2007, respectively, therefore, service of petitioner was ordered to be
restored with all back benefits, with effect from the date his service was discontinued ---Petition
was allowed in circumstances.
Mazhar Ilyas Nagi for Petitioner.
Muhammad Qahir Shah for Respondents.
Date of hearing: 25th February, 2014.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. --- Facts of the case are that the petitioner was
serving, as a Regional Director, in Allama Iqbal Open University, Campus at Quetta ("the
University"). On an allegation of corruption, the Competent Authority of the University initiated
an enquiry against the petitioner, wherein he was held responsible for an attempt to embezzle an
amount of Rs.38,380 (Rupees Thirty Eight Thousand, Three Hundred and Eighty only). The
Inquiry Committee submitted its report on 5th March, 2003, and recommended compulsory
retireme nt of the petitioner, but no order was passed thereon. It is important to mention here that
after almost a year, fresh inquiry was conducted against the petitioner, which submitted its report
on 20th June, 2007 and on the basis of its recommendation, the C ompetent Authority through an
order dated 20th July, 2007, imposed a major penalty of compulsory retirement upon the
petitioner. Feeling aggrieved, the petitioner preferred an appeal on 4th August, 2007, before the
Executive Council of the University under section 10 of the Removal from Service (Special
Powers) Ordinance, 2000 ("the Ordinance"), read with section 31 of the Allama Iqbal Open
University Act, 1974 ("the Act"). The Executive Council constituted a Committee, consisting
upon three members, and as signed power to hear the appeal and referred the same to it, but the
same could not be decided despite a lapse of considerable time, therefore, the petitioner filed this
petition. During pendency of the petition, the Executive Council decided the appeal of the
petitioner on 28th September, 2009 ("the impugned order"), copy whereof has been placed on the
record. At the request of the learned counsel for the petitioner and with consent of the counsel for
the respondent, the petition was amended on 22nd Septem ber, 2011, through which, the
impugned order has been assailed.
2. The learned counsel for the petitioner stated that since the University is a statutory body,
therefore, under Article 199 of the Constitution, this Court can issue a writ against the
respondents, as prayed for. The learned counsel contended that the impugned order is without
jurisdiction, as it was passed by a Committee, instead of the Executive Council, which is
empowered by section 31 of the Act. He further stated that even otherwise, it is a mandatory
requirement that the appellant should be provided an opportunity of hearing while deciding the
appeal, but in the present case, the appellant has not been provided an opportunity, which is
contrary to the provision of Article 10 -A of the Co nstitution of the Islamic Republic of Pakistan,
1973 ("the Constitution"), and the Act. He lastly argued that from the inquiry report, there is no
evidence to prove the allegation against the petitioner, therefore, the order impugned is illegal.
3. The l earned counsel for the respondents raised an objection that the petition is not
maintainable against the University, as it is a body corporate and there is a relationship of master
and servant between the petitioner and the University. He added that the fi nal order was passed
by the Executive Council and the report, submitted by the Committee, does not amount to a
decision. According to him, the petitioner was provided proper opportunity of hearing and
thereafter, the Executive Council passed the impugned o rder on the basis of the report of the
Inquiry Committee, which is just and proper, and no illegality or irregularity has been pointed in
the same.
4. We have heard the learned counsel for the parties and have gone through the record.
Before dilating upo n merits of the case, we would like to decide the objection so raised by the
learned counsel for the respondents with regard to maintainability of the Constitutional Petition.
It is the responsibility of the Government to provide education to the people of Pakistan, as
provided by sub -clause (d) of the Article 38 of the Constitution, therefore, in the year 1974, an
Act was promulgated by the Parliament, called as the People's Open University Act, 1974.
Pursuant to section 3 of the Act, a People's Open Unive rsity was established, which was
subsequently renamed as Allama Iqbal Open University. President of the Islamic Republic of
Pakistan is its Chancellor, who is the appointing authority of a Vice -Chancellor of the
University. To run the internal affairs of t he University, the following Authorities have been
described by section 17 of the Act, which is reproduced as under: ---
"(i) the Executive Council;
(ii) the Academic Council;
(iii) the Faculties;
(iv) the Committees of Courses;
(v) the Selection Board;
(vi) the Committee for Research and Educational Technology;
(vii) the Finance Committee;
(viii) the Academic Planning and Development Committee; and
(ix) such other authorities as may be prescribed by Statutes."
The Executive Council consists of different members, including a Secretary, Ministry of
Education, Government of Pakistan, who participates in the affairs of the University on behalf of
the Federal Government, whereas a Member of the National Assembly, to be nominated by its
Speaker, represents the Federation, as members of the Executive Council. The University Grants
Commission ("UGC"), which is being established by the Federal Government, affiliates,
supervises and provides funds to the universities in th e Country. So, undoubtedly, the University,
being creation of an Act of the Parliament, as such, is a statutory body. The University, by
providing education to the people of Pakistan, is performing its function, in connection with
affairs of the Federation .
5. Article 199 of the Constitution prescribes the jurisdiction of the High Court, which is
reproduced herein -below: ---
"199. Jurisdiction of High Court. --- (1) Subject to the Constitution, a High Court may, if it is
satisfied that no other adequate r emedy is provided by law, ---
(a) on the application of any aggrieved party, make an order ---
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in
connection with the affairs of the Federation, a Province or a local authority, to refrain from
doing anything he is not permitted by law to do, or to do anything he is required be law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the
Court by a person perfor ming functions in connection with the affairs of the Federation, a
Province or a local authority has been done or taken without lawful authority and is of no legal
effect; or
(b) on the application of any person, make an order ---
(i) directing that a p erson in custody within the territorial jurisdiction of the Court be
brought before it so that the Court may satisfy itself that he is not being held in custody without
lawful authority or in an lawful manner; or
(ii) requiring a person within the territ orial jurisdiction of the Court holding or purporting to
hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any
person or auth ority, including any Government exercising any power or performing any function
in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for
the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II."
The word 'person' used in the above -referred Article, is in the most ordinary contacts,
used for a group of people, body, authority etc., thus, a person includes a University, its Vice -
Chancellor and its Authorities as well. Since the Universi ty performs its functions, in connection
with the affairs of the Federation, therefore, a High Court, under Article 199 of the Constitution,
can exercise a power of a judicial review, pertaining to matters of the University, hence a
Constitutional Petition lies against it.
6. Now considering the service structure of the ministerial staff, academic staff and other
employees, admittedly they are in the employment of a statutory body, therefore, are not the
members of All -Pakistan Service ("APS"), nor of a Civil Service of the Federation or a Province
Service. The University has its own Act, pursuant to which, a person is employed and
his/her/their services are being governed by its own Efficiency and Discipline Rules. Any
disciplinary action taken or order passed against an officer, academic staff or other employee of
the University, is appealable before the Executive Council under section 31 of the Act. The bar
contained in Article 212 of the Constitution, does not apply to the service matters of the
Univer sity. It is a fact that against an order of the appellate authority, no remedy has been
provided by the Act, therefore, under Article 199 of the Constitution "a High Court may if it is
satisfied that no other adequate remedy is provided by law", can entert ain a Constitutional
Petition against an order of the appellate authority of the University, consequently the objection
so raised by the learned counsel for the respondents is overruled.
7. As far as, merits of the case are concerned, it is a fact that t he petitioner filed an appeal
against the order of his compulsory retirement, passed by a competent authority, before the
Executive Council, which in its 86th Meeting, held on 22nd September, 2007, constituted a Sub -
Committee to consider the appeals of the university employees, including the petitioner, against
penalties imposed upon them, on various charges. The Committee consists upon a Chairman, two
members and a Secretary. Section 31 of the Act, provides a forum of appeal, which is reproduced
herein -below:---
"31. Appeal to and review by the Executive Council. --- (1) Where an order is passed
punishing any officer (other than the Vice -Chancellor), teacher or other employee of the
University or altering or interpreting to his disadvantage the prescribed terms and conditions of
his service, he shall, where the order is passed by the Vice -Chancellor or any other officer or
teacher of the University, have the right to appeal to the Executive Council against the order, and
where the, order is made by the Exec utive Council, have the right to apply to that Authority for
review of that order of appeal to the Pro -Chancellor.
(2) The appeal or application for review shall be submitted to the Vice -Chancellor who shall
lay it before the Executive Council, as the ca se may be, the Pro -Chancellor with his comments.
31(3) "No order on an appeal or application for review shall be passed without affording to the
appellant or applicant, as the case may be, an opportunity of being heard"."
The Executive council is perf orming its duties in two capacities, i.e. to exercise powers,
as provided by section 19 of the Act, and to be an appellate Authority in accordance with section
31 of the Act. It can delegate any of its powers prescribed by section 19 of the Act, to an
Auth ority, an Officer, a Committee, or a Sub -Committee, but the power to hear an appeal by it
under section 31 of the Act, cannot be delegated to anybody. Under such circumstances, none,
except the Executive Council can hear and decide an appeal of any officer , teaching staff or any
other employee of the University. In the present case, though, the Executive Council in its
meeting, held on 22nd September, 2007, constituted a Sub -Committee to look into the appeals of
the employees, including the appeal of the pe titioner, regarding their disciplinary matters, but
admittedly, no appeal was decided by the said Committee. It acted just as an Inquiry Committee
and submitted its recommendations to the Executive Council, which finally dismissed the appeal
of the petitio ner. Thus, it cannot be said that the appeal was decided by the Committee, rather it
was decided by Executive Council, consequently the impugned order, passed by it, was within its
jurisdiction. Moreover, subsection (3) of section 31 of the Act, provides t hat "No order on an
appeal or application for review shall be passed without affording to the appellant or applicant,
as the case may be, an opportunity of being heard", but admittedly, the Executive Council,
without considering the evidence and the materi al available on the record and without providing
an opportunity of hearing to the petitioner, simply relied upon the recommendation of the
Committee and decided the appeal, which is a violation of the law.
8. Besides, perusal of the first inquiry report dated 5th March, 2003, the second report by
another Committee dated 20th June, 2007, and the recommendation of the Sub -Committee,
constituted by the Executive Council, does not reveal any mens rea on the part of the petitioner.
The only allegation levelled against him was that he forwarded the vouchers, amounting to
Rs.38,380, submitted by a part time tutor, who performed his duty and was entitled for the
T.A/D.A. It is a fact that no amount was drawn on the basis of the said vouchers, therefore, no
loss ha s been incurred to the University. Even, the only allegation that the petitioner did not
verify the vouchers, has not been established. Both the Inquiry Committees and the Sub -
Committee have failed to collect an evidence against the petitioner showing an a ttempt to
embezzle the alleged amount, therefore, the charge framed against him stands disproved. Under
such circumstances, imposing a penalty of compulsory retirement by the Executive Council was
unjustified, consequently the impugned order is not sustain able.
Thus, in view of what has been stated and discussed hereinabove, the petition is allowed.
The impugned order dated 28th September, 2009, passed by the Executive Council of the
University, is set aside. It is not proved that after the impugned orde r, the petitioner was indulged
in any profitable business or service. He has faced the inquiries and agony of the litigation since
2003 and 2007 respectively, therefore, the service of the petitioner is ordered to be restored with
all back -benefits, with e ffect from the date, his service was discontinued.
MH/48/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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