P L D 1968 Lahore 685 (PLP)

SHAMEEM HUSAIN KADRI, J.‑

By an order of the Chairman, That Development Authority, in pursuance of the orders issued ‑by the Government of West Pakistan, Colonies Department, five persons were suspended with immediate effect, on the 27th of 'September 1966, and subsequently, in November 1966, their services were terminated under rule 5 (ii) of the Thal Development Authority Service Rules, 1949. Two writ petitions were filed, one by Siddique Ahmad Chaudhry and three others (W. P. 1799/66) and the other by Mr. A. K. Tarin (W. P. 95/67) by which they challenged the orders of their suspension. During the pendency of these writ petitions, at the time of the hearing of miscellaneous petitions, counsel for the respondents on the 7th of November 1966, stated that the services of the petitioners had been terminated on the 5th of November 1966. The petitioners then put in amended petitions in which they challenged the orders of their removal being wrongful, illegal and mala cede. Both the writ petitions are being disposed of the same order.

2. The suspension of petitioners were ordered by Major General Haq Nawaz, Chairman, Agricultural Development Corporation, West Pakistan, on the 24th of September 1966. `He wrote a letter to the Chairman, Thal Development Authority in which he said that during his visit to Leiah Sub‑Division on the 31st of May 1966, he observed some deficiencies in spare parts and the condition of the machinery was hopeless. He constituted a Court of enquiry consisting of Lt.‑Col. Safdar Ali as President and Messrs Muhammad Akbar Ansari, Executive :Engineer and Inayatullah, Senior Accounts Officer, as its members. The Court of enquiry was constituted in order to enquire into the affairs of the workshop at Leiah. Report of the enquiry was submitted which is as under:‑ (a) Machines have not been kept in self‑start condition, (b) hour of meters or non‑existent in almost all cases, (c) basic record of stock ledgers, log books, measurements books have not been kept in majority of cases and where kept ;it is incomplete and confusing, which has offered open chances of misappropriation, (d) spare parts have been issued in very huge quantity without Jurisdiction, (e) repairs are shown to have been done within a very short period which were impracticable and unbelievable. Unecono mical repairs have been carried out so much so that in some cases the cost of the repairs has exceeded twice the capital costs, (j) issues of consumable like oils and lubricate have been exorbitant and beyond any sense of proportion, (g) development charges have been fixed without any proportion to ,the actual working of the machines on the lands of individual, (h) the organisation is over‑staffed and thus incurring unneces sary expenditure, (i) there has been a complete lack of supervision and no checking, (j) there has been unjustified disposal of machines on very nominal prices, which shows a foul play, and (k) very huge establishments are being maintained without, justification. As a result of this inquiry, the General came to his irresistible. conclusion that these five officials were directly concerned with the aforesaid irregularities. Therefore, he decided that these five officials be suspended, and he further directed the Chairman, That. Development Authority to charge‑sheet them according to law. He also decided to abolish the post of Director and ordered a new set up in the organisation of the Leiah Workshop with effect from the 1st of October 1966.

3. The petitioners in their writ petitions submitted that they were permanent employees of the Thal Development Authority; they had special qualifications to their credit and that originally they were threatened with a charge‑sheet but later on their services were illegally terminated.

4. Sh. Nasim Hassan, learned counsel for the petitioners raised the following contentions:‑ (i) that the Government of West Pakistan Notification No.. SO‑A. D. C: 6‑39/62, dated the 3rd of December 1963, confer ring powers of the Government on the Agricultural Develop ment Corporation under section 25 of the West Pakistan Agricultural Development Corporation Ordinance, 1961, in relation to the Thal Development Authority was ultra vires and in any case amounted to excessive delegation; (ii) that if it did confer any authority, the Chairman of' Agricultural Development Corporation was incompetent to, exercise those powers were conferred on the Corporation;. (iii) that the removal of the petitioners was not according to law and rules, and the Chairman, T. D. A. did not indepen dently consider the question of termination of the services of the petitioners but was influenced by the orders of the Chairman, A. D. C., and (iv) that the order of the Chairman, A. D. C. directing the Chairman, T. D. A. for suspension of the petitioners was, mala fide.

5. By virtue of the notification, powers of superintendence vesting in the Government were delegated to the Agricultural Development Corporation in pursuance of section 25 of the West Pakistan Agricultural Development Corporation Ordinance, 1961. Learned counsel for the petitioners submitted that the executive authority of the Province vests in the Governor of the Province and has to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution, the law and the direction of the President. It is the Governor of the Province who has to specify the manner in which orders and other instruments are to be made as are required in pursuance of any authority or powers vested in him. He has to regulate the allocation and transaction of the business of the Government and he has also to establish departments of the Government, in accordance with Articles 80 and 81 of the Constitution of the Islamic Republic of Pakistan, 1962. This authority is usually exercised by the Secretaries to the Government. He also referred to West Pakistan Rules of Business, 1962, in this behalf. Learned counsel then cited Ahad Shah v. Emperor (19 Cr. L J 486) and Emperor v. Karam Chand Gobind Ram (45 Cr. L J 64), and vehemently argued that the Agricultural Development Corporation cannot thus be delegated with the powers of the Governor because the Corporation cannot be treated as an officer. We do not consider it necessary to give a finding on this contention because our decision may affect the working of the similar authorities which are not before us, and also because we find substance in the second and third contentions mentioned above.

6. The question of excessive delegation is to be examined in the light of the preambles of the two legislations, i.e. of the West Pakistan Agricultural Development Ordinance, 1961, and the Thal Development Act, 1949, both of which are reproduced as under:‑-- "Preamble of Agricultural Development Ordinance.‑Whereas, it is expedient to establish an Agricultural Development Corporation for the purpose of increasing agricultural pro duction." "Preamble of Thal Development Act, 1949.‑An Act to provide for the speedy development of the area brought under irriga tion by the execution of the Thal Project, and for the resettle ment thereon of refugees and others and for the levy of Development Fee." The object of the West Pakistan Agricultural Development Ordinance as given in the preamble is to increase agricultural production in the Province, while the Thal Development Act, 1949, provides for the development of the area, its irrigation and the re‑settlement of the refugees and other persons on that land. Surely, the objects of the Thal Development Act are wider and different from that of the West Pakistan Agricultural Development Ordinance, 1961; however, the increase in agri cultural production can be treated as an alleged object of the Thal Development Act, 1949. The Government control of the Thal Development Authority created under the Act is envisaged by section 20‑A of the said Act of 1949. The functions of the Government were entrusted the Corporation under section 25 of the Agricultural Development Ordinance, 1961, which is reproduced as under:‑ S. 25.‑"The Government may, by notification in the official Gazette, delegate or entrust any such powers and functions to the Corporation or any officer as may be exercised or performed by Government, or any authority subordi nate to it, under any other law for the time being in force." The section is very widely worded, indeed, and it can be inferred that the Government can entrust any of its powers to the Corpo ration regarding any authority subordinate to it under any other law, even though those powers and functions may not have the remotest connection with the objects for which the Agricultural Development Corporation was created. Under this section the Government could, for instance, delegate to the Agricultural Development Corporation its powers of appointing Health Officers, Teachers, Magistrates, etc. But obviously it could not have been the intention of the Legislature to confer upon the Corporation any such or similar powers in pursuance of the above section of the Ordinance. Therefore, to our mind, the control of any other authority vested in the Agricultural Development Corporation can be only limited to such functions for which the Corporation was created and no more. We are, therefore, of the opinion that the submission of the learned counsel has considerable force that section 25 would amount to excessive delegation, and to that extent be ultra vires of the Legislature, if functions and powers, not connected with the objects of the Agricultural Development Corporation, are entrusted to it. However, this is not so with regard to the Government powers relating to the Thal Deve lopment Authority as the latter can be regarded as being an allied agency.

7. We think, however, that there is force in the next con tention raised by the learned counsel for the petitioners, vie that even if the notification did confer an outhority, that was conferred on the Agricultural Development Corporation and it could not be exercise by the Chairman alone. There is no doubt in our mind that the notification dated the 3rd of December 1966, conferred powers of the Government On the Agricultural Development Corporation, therefore, all powers and functions in relation to the Thal Development Act, 1949, which were previously exercisable by the Government of West Pakistan Colonies Department, were vested in the Agricultural Development Corporation. The Corporation exercises its powers through a Board of Directors according to section 4 of the said Ordinance. The Board of Directors can delegate its powers under section 12 of the Ordinance to the Chairman or any Director or officer. We specifically asked this question from the learned counsel appearing on behalf of the Agricultural Development Corporation as to whether the Board had delegated the powers of the Government conferred on the Corporation to the Chairman, but he was not in a position to show any such authority. Assuming for the sake of argument' even if such powers were delegated by the Board to the Chairman, that would be without jurisdiction as laid down in M. R. Rafiaddin and others v. Chief Settlement We and Rehabilitation Commissioner, Pakistan and others (P L D 1964 Lah. 539) and University of the Punjab, Lahore v. Syed Mohsan Tirrnizey (P L D 1958 Lah. 943) S. University are, therefore, of the view that the Chairman, Agricultural Development Corporation had no authority to order the sus pension of the petitioner which was given effect to by the Chairman, Thal Development Authority at his command.

8. So far as the suspension of the petitioners is concerned, we have already discussed above that the Chairman, Thal Develop ment Authority vide his order dated the 27th of September 1966, suspended the petitioners in pursuance of the directions of the Chairman, Agricultural Development Corporation issued by him on the 24th of September 1966. The Authority in its meeting held on the 29th of September 1966, approved and confirmed the orders of the Chairman, That Development Authority dated the 27th of September 1966, read with the communication dated the 24th of September 1966, from the West Pakistan Agri cultural Development Corporation (with powers of Government of West Pakistan Colonies Department).

9. Learned counsel for the petitioners with vehemence contended that the powers to suspend or remove officers of the petitioners' categories vested in the Thal Development Authority or its Chairman) under section 17 of the Thal Development Act, and the Agricultural Development Corporation (or its Chairman) exercising the Government's powers of Superintendence under section 20‑A of the Thal Development Act could not interfere in this behalf. He submitted that the Authority did not apply its mind independently to the question of the suspension of the petitioners, and the Chairman, T. D. A. and its members merely acted in obedience to the orders of the Chairman. West Pakistan Agricultural Development Corporation. It seems to us that the legal position canvassed by the learned counsel is correct as section 20‑A .of the Thal Development Act does not envisage interference in individual cases of the employees of the authority. The Thal Development Authority was more or less being dictated to by the Chairman, Agricultural Development Corporation. This is further reflected from the act of the termination of the services of the petitioners by the Thal Development Authority. The petitioners were threatened with a charge‑sheet, but no such charge‑sheet was ever handed over to them, and instead the services were terminated by the That Development Authority .under Rule 5 (ii) of the Thal Development Authority Services ,Rules, 1949, in November 1966.

10. We will now examine the That Development Authority Act, 1919, and the rules framed thereunder. According to ,section 16 of the said Act, the Authority is competent to employ such servants as it deems necessary, provided that where the maximum of the grade fixed for a post exceeds one thousand rupees, the previous approval of the Provincial Government: shall be necessary. Section 17 of the Act deals with the powers of promotion, leave, reduction in rank, suspension and termination: of services of the servants of the Authority. In respect of persons whose salary does not exceed three hundred rupees such an autho rity vests in the Chairman, and in other cases in the Authority. Section 18 deals with the powers of supervision and control by Chairman over all the officers and the servants of the Authority.

11. Under section 50 (1) (iii) of the Thal Development Act,. 1949 vide Notification No. 310‑Th, dated the 7th of February 1953, Thal Development Authority Services Rules were framed= by the Government. The petitioners were threatened with a charge‑sheet. According to Rule 10 (ii) of the said Rules, no member of the service could be subjected to the penalty, such as withholding of increments or promotion, reduction to lower post, recovery from pay of the whole or part of any pecuniary loss caused to Authority by negligence, suspension, removal from the service of the Authority, and dismissal from the service of the Authority, except by formulating charge or charges in writing and given to the said member of the service allowing him reasonable opportunity to answer them in writing or in person, as he prefers, an no order reducing, dismissing or otherwise dispensing with the service of a member whose monthly salary is three hundred rupees or more shall take effect without its being confirmed by the Authority. The Authority did not comply with: this rule although serious allegations were made against the petitioners but decided to take action under Rule 5 (ii) of the Rules in terminating their services. Rule 5(ii) lays down:‑ R. 5 (ii)‑"In the event of a member of the service being called upon to resign the service after the expiry of his period of probation it shall be incumbent on the Authority to give him notice or pay compensation in the same way as member of the service has to give or pay under clause (f) of this. rule in the event of his barring or discontinuing the service." The Authority decided to pay compensation to the petitioners for the period which fell short of the period prescribed in this rule. In the first place, the authority did not comply with the provisions of Rule to discussed above although the petitioners were suspended with serious allegations against them and were threatened with charge sheet. According to the learned counsel for the petitioners this leaves a blot on the career of the petitioners, and they will be handicapped in getting any employment. Secondly, the action taken under Rule 5(ii) could not be taken by the Authority against the petitioners because the rule envisages such an action where a member of the service is called upon to resign from service after the expiry of the period of probation. As all the petitioners were permanent servants of the Authority, and there is nothing on the record to show that they were called upon to resign from service, the action regarding the termination of the services of the petitioners could not be taken under this rule. We enquired from the learned counsel appearing on behalf of the Thal Development Authority whether the petitioners were ever called upon to resign, but be expressed his inability to show us any such communication by the Authority with the petitioners. We are, therefore, left with no other option but to hold that the suspension as well as the subsequent termination of services of the petitioners was not according to law. The order suspending the petitioners was nothing else but the compliance of the orders of the Chairman, Agricultural Development Corporation and by no stretch of imagination it can be considered to be an independent act of the Thal Development Authority under the Act. Similarly, the termination of the services of the petitioners by the said Authority as obviously an act without lawful authority.

12. Learned counsel for the petitioners half‑heartedly con tended that the petitioners enjoyed the constitutional guarantees as laid down in Article 177 of the Constitution since they were persons holding civil posts in connection with the affairs of the province and were appointed by persons authorized by the Gov ernor of the Province as provided in Article 178 of the Constitu tion, and in any case since previous approval of the Provincial Government was necessary in case appointment of the servants of the Authority whose grade exceeded one thousand rupees, therefore, they should be considered as persons entitled to protection of the Constitutional guarantees. A contrary view was expressed by a Division Bench of this Court in Irshad Muhammad Mirza v. Road Transport Corporation, West Pakistan (P L D 1966 Lah. 632). It is also unnecessary to further examine this proposition of law in the circumstances of this case as we hay otherwise held that the petitioners are entitled to the relief which they have prayed for, on the basis of violation of the Act and the, Rules.

13. The petitioners lastly alleged that on the suggestion of Lt.‑Col. Safdar Ali, Project Director, Soan Valley, the Chairman, Agricultural Development Corporation desired that ten Russian bulldozers should be handed over to the Thal Development Authority. The refusal of the petitioners created unpleasantness, and as the Chairman, Agricultural Development Corporation, and Lt.‑Col. Safdar Ali were directly responsible for the purchase of these wasteful machines which were lying idle, they became vindictive against the petitioners. We do not think that there could be any mala fide involved in such a case. If the petitioners had told the Chairman, Agricultural Development Corporation that such machines were not useful in the area under the operation of the Thal Development Authority, it cannot be said that the Chairman had developed any malice against them. We do not find any force in this allegation made by the petitioners.

14. For the foregoing reasons, we accept these petitions and declare that the orders of suspension and termination of services of the petitioners are without lawful authority and of no legal effect. It is up to the Authority to conduct any enquiry against the conduct of petitioners if it so desires. We do not propose to make any order as to costs. A.H. Petitions accepted.