P L D 1972 Karachi 477 (PLP)

they govern the terms and conditions of the service of the petitioner. We have considered the arguments advanced by the learned counsel for the petitioner and we find ourselves unable to agree with him. Service Code is not regulations as stated by him under section 30 of Act. Section 10 of the Act has clearly provided for a power vesting in the respondent to fix the terms and conditions of service of its employees. The Government admittedly has framed rules under section 29 of t1te Act which have not been challenged. These rules, as stated above in rules 22 (e) and 22(1), provide for a power to be given to the respondent to frame rules regarding the terms and con ditions of its employees. The respondent has consequently framed rules and they are authorised rules under rule 22(1), of the Rules` framed under section 29 of the Act. They are by no means regulations under section 30 of the Act. We are therefore clear in our mind in so far as the Service Code is concerned that it contains rules which prescribe the terms and conditions of service of the employees of the respondent.

5. This being the position the next question that will arise for consideration will be whether the order terminating the services of the petitioner was passed in accordance with these rules. Rule 40.1 of Service Code reads as under:‑ "40.1. The Corporation reserves the right to dismiss without any notice any employee who, in the opinion of the competent authority is guilty of misconduct." Rules 41.1 and 41.2 do talk of punishments that are to be given in case a misconduct is proved against an employee. These rules also lay down some of the reasons for imposing those punishments. The argument of the learned counsel is that none of the grounds available to the respondents under rule 41.2 was available to it for passing the order terminating the services of the petitioner. The learned counsel has lost sight of rule 40.2 (viii) which reads as under:‑ "40.2. Without prejudice to the generality of the term "mis conduct" it shall be deemed to include the following: (viii) Drunkenness, fighting, riotous or disorderly or indecent behaviour." This rule has to be read in conjunction with rule 41.2 and as such the grounds on which the services of the petitioner have been terminated seems to have been clearly postulated to be one of the grounds on which his services could be terminated. The learned counsel has also argued that despite what is contained in rule 40.1 giving unfettered power to the respondent to termi nate the services of the petitioner without notice, the respondent was not absolved from holding an inquiry into the allegations of misconduct against the petitioner. Non‑holding of the inquiry, accotiding to him, would violate the principle of natural justice and would not be permissible under the law. We see no force in this argument also as the order, Annexure 'B' by which an offer of the post of the Secretary to the petitioner was made mentioned that the petitioner would abide by the rules framed by the respondent which prescribed the terms and conditions of his service. The petitioner having entered into a contract with the respondent and having accepted the rules would not be permitted to go back on the terms of his contract and plead that the rules would have no application in his case. The rules have given unfettered power, as we have already stated, under rule 40.1 to the respon dent to terminate the services of the petitioner without notice. I there is any rule in the Service Code which contemplates an inquiry in respect of misdonduct of an employee the option to hold an inquiry or terminate the services of an employee i3 with the respondent and the respondent is the sole judge to decide as to whether an inquiry about any misconduct of an employee should be held or his services should be terminated without notice.

6. The learned counsel for the petitioner has also contended that the services of the petitioner could not be terminated by virtue of what is contained in Articl: 131 of the late Constitution. Article 181 reads as under:‑ "181.‑(1) No person who is a member of a civil service of the Federation or of a Province, or of an All‑Pakistan service, or holds a civil post in connection with the affairs of the Federation, or of a Province, shall be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed from service, or reduced in rank, until he has been given a reasonable opportunity of shoving cause against the action proposed to be taken in regard to him: Provided that this clause shall not apply‑ (a) where a person is dismissed or removed from service or reduced in rank on the ground of conddct which has led to his conviction on a criminal charge; or (b) where an authority empowered to dismiss or remove from service a person, or to reduce him in rank, is satisfied that for some reason, to be recorded by that authority, it is not reasonably practicable to give that person an opportunity of showing cause; or (c) where the President or the Governor, as the case may be, is satisfied, for reasons to be recorded by him, that in the interest of the s‑eurity of Pakistan or any part thereof, it is not expedient to give to that person such an opportunity." A bare reading of this Article would indicate that it applies to a person who is a member of a civil service of the Federation or of a Province, or of an Ail‑Pakistan Service, or holds a civi post in connection with the affairs of the Federation, or of a Province. By no stretch of imagination can the petitioner be held to have fallen within any of the categories mentioned above. The contention of the learned counsel for the Fetitioner that he is holding a civil post in connection with the affairs of the Federation is not tenable. We are fortified in our view by a decision of the Division Bench of this Court in Pakistan International Airlines Corporation v. Mrs. Nur Jehan Arfin (First Civil Appeal No. 116 of 1960). The view taken by their Lordships in this case is reproduced bereundert‑ "In this appeal before us, the main question which falls for determination is whether the plaintiff/respondent had the protection of Article 181 of the Constitution which was con tinued in force by Article 6 of the Laws (Continuation in Force) Order, 1958. It has rightly been conceded by the learned counsel for the plaintiff/respondent that she did not have the protection of Article 181 of the late Constitution. She was neither a member of the service of the Federation or of a Province or of an All‑Pakistan Service, nor held a civil post in connection with the affairs of the Province or the Federa tion, and consequently her tenure was not covered by Article 181 of the late Constitution. She was a servant of a statutory corporation and is governed by its rules. Rules 7‑12 of the Service Code provides as follows: 'Notwithstanding what has been stated in these rules, the services of an employee in permanent services of the Corpo ration, are terminable at 30 days' notice on either side, or pay fn lieu. The service of an employee on probation may be terminated by the Corporation without notice.' Though the plaintiff was a permanent employee, her services could be terminated under this rule. The power to terminate services is not restricted by any conditions or limitations. The rule is not shown to be illegal on any recognised principle of law or construction." Under these circumstances, it is not possible to bring the case of the petitioner within Article 181 of the late Con stitution and hold that the services of the petitioner could not be terminated without any inquiry or without a notice.

7. It was also contended that the order terminating the services of the petitioner was not passed by a competent authority. The order, Annexure I, by which the services of the petitioner were terminated was signed by the Operations Director who, according to the learned counsel for the petitioner, was not the competent authority to pass that order. It is conceded by the other side that the Operations Director was not the com petent authority to terminate the services of the petitioner but it was urged that the order terminating the services of the petitioner was passed by the Managing Director who was the competent authority. We consequently called for the original file to examine it. On examination of it It was noticed that the order of termination of the services of the petitioner had been passed after having been approved by the Managing Director who admittedly was the competent authority. Even the learned counsel for the petitioner after having examined the file himself and having shown it to the petitioner was satisfied that the order was passed by a competent authority. He consequently gave up this point.

8. The learned counsel for the petitioner has also contended that the order, Annexure I, by which the services of the petitioner were terminated, inter alia, mentions that the order was passed on the letter written by the President, Services Club, and the inquiry held into the matter. His contention is that In the event of inquiry having been held no order of termination of services could be passed without holding the inquiry in the manner prescribed under the rules. We are afraid we cannot accept the contention of the learned counsel. The power as we have already stated, vested unquestionably in the respondent to terminate the services of the petitioner without notice. The inquiry, if any, held regarding the allegations made by the President, Services Club, was as a measure of abundant caution and was not necessary for the purpose of passing an order terminating the services of the petitioner under rule 40.1 of the Service Code. Apart from that the explanation of the petitioner was called for in regard to the allegations made against him and this explanation could well have been considered along with the letter written by the President, Services Club, containing the allegations against the petitioner and an order terminating his services pa3sed. In order to exercise the power vesting in the respondent under rule 40.1 for the purpose of terminating the services of the petitioner no mode of inquiry or procedure could be laid down. In fact no such mode has been pres cribed in the rules themselves. We consequently see no force in this argument of the learned counsel for the petitioner.

9. In view of what we have stated above, we are clear in our mind that the order terminating the services of the petitioner was in accordance with law and that the petitioner is not entitled to the reliefs he has claimed in the writ petition. We con. sequenly dismiss the writ petition filed by the petitioner with costs. Petition dismissed.