P L D 1967 Lahore 796 (PLP)

and it was after a "very minute examination" of such documents as were sent by the authority, that the petitioner's appeal was accepted (Paragraph 16). But as pointed out already that was not to be the end of the petitioner's difficulties, for the Authority refused to give effect to appellate order in his favour and turned round to question, the competency of the petitioner's appeal to the Government. At the Authority's behest the matter was examined in the Provincial Government more than once and each time, the Authority was advised that the petitioner's appeal to the Government was competent.

6. In its written statement, dated the 26th May 1966, filed after the decision taken by the Council of Ministers, the Govern ment though not controverting the statement of facts in its earlier report, maintained the validity of order dated the 24th March 1966 "in the interest of good administration" and further that the petitioner "has no vested right as claimed by him".

7. The Authority, on the other hand, disputed the competency of the petitioner's appeal to the Provincial Govern ment and, therefore, questioned the vires of the Provincial Government's order of the 26th August 1963. It also defended the impugned order "in the interest of good administration".

8. The difference of opinion between the two respondents concerning the competency of the petitioner's appeal to the Provincial Government remained un-reconciled even during the course of arguments in the writ petition. For a satisfactory solution of this controversy, it appears necessary to determine, in the first instance, the precise nature of the petitioner's service under the Authority, that is to say, whether he retained the status of a civil servant and, therefore, remained on deputation with the Authority, as it were, or whether he was transferred for service under the Authority lock, stock and barrel with the result that he ceased to be a civil servant? A finding on the above aspect of the question is also necessary to determine the precise relief to which the petitioner would be entitled if his writ petition succeeds.

9. Learned counsel for the petitioner argued that the petitioner retained the status of a civil servant, notwithstanding his transfer for service under the Authority for an indefinite period apparently till he reached the age of superannuation. On behalf of the two respondents this position was not controverted. And, indeed, the same conclusion becomes obvious from the examina tion of the relevant provisions of the statute. Section 17 in Chapter 1V of the West Pakistan Water and Power Development Authority Act, 1958, bears on the point. For the material purpose it reads: "Section 17 (1). The Authority may from time to time employ such officers and servants, . . . as it may consider necessary . . . on such terms and conditions as it may deem fit: Provided that all persons serving in connection with the affairs of the Province in the Electricity and Irrigation Depart ments shall be liable to serve under the Authority, if required to do so by the Government on such terms and conditions as the Government may in consultation with the Authority determine but shall not be entitled to any deputation allowance: Provided further that the Government may, in relation to any such person as aforesaid delegate such administrative and disciplinary and financial powers to the Authority as the Government may deem fit: Provided also that the terms and conditions of service of any such person as aforesaid shall not been varied by the Authority to his disadvantage." A plain reading of the above provision leaves no manner of doubt that the Government remains the ultimate employer of the petitioner and others similarly placed with him. The section speeks of liability of the employees of the Electricity Department to serve under the Authority only on being so required by the Government as distinguished from automatic transfer from the, Government to the Authority under the force of the statute itself. An express provision to negative the claim for deputation allowance is also a pointer to the same conclusion and this provision would have been inapt if the petitioner and others similarly placed had severed all connection with Government. Then, the second proviso speaks of delegation of administrative control. The concept delegation involves the existence of principal who transfers his authority or part thereof to be exercised by his delegate without divesting himself absolutely of such authority. Therefore, the Government still remains the; ultimate employer of the petitioner and others similarly placed. If the intention had been to divest the employees of the former Electricity Department of the Provincial Government of the status of civil servant, then there should have been express provision in that behalf similar to section 43‑A (2) of the Motor Vehicles Act, 1939 (since repealed). That section expressly provided: " . . . . . all persons at any time employed for the purposes of any such Road Transport Board . . . . . shall not be deemed to be servants of any Government on the ground that they are employed . . . . . by such Government."

10. The Provincial Government retained the ultimate administrative control over the petitioner and other employees of the Irrigation and Power Department transferred to the Authority is made further clear by the Provincial Government's Notification No. ADSEC/IOW‑28‑3/59, dated the 28th March 1959, issued under section 17 of the 1958 Act. This notification inter alia directed that all persons serving in whatever capacity in the Electricity Department shall stand transferred for service under the Authority with effect on and from the 1st April 1959, subject to the terms and conditions laid down therein. Paragraphs 5 and 6 of this notification are significant which, in our opinion, clearly make the Authority's stand as to the in-competency of the petitioner's appeal to the Provincial Govern ment against his dismissal wholly untenable. These paragraphs read‑ "

5. The Authority shall exercise all administrative, disciplinary and financial powers in respect of persons transfer red to it, as were exercisable . . . . . by the Government or any lower Authority except that the Authority shall not be competent to dismiss, remove from service or reduce in rank such persons in whose case appointing authority was Government . . . . ." "

6. Where any person transferred to the Authority‑ has, in disciplinary matters, a right of appeal to the Government, he shall, while employed under the Authority, be entitled to the exercise of that right," It appears that the petitioner held a junior post and, therefore, was appointed by an authority lesser than the Government and, therefore, initially the Authority was competent under para graph 5 to order his dismissal. It is not, however, controverted that if during his employment under the Government, the petitioner had been dismissed from service, he would have had right of appeal to the Government. That being so, it is not easily understandable how that right can be denied to the petitioner, particularly when that right is expressly preserved by the statute and the notification issued there under. Therefore the objection against the competency of the petitioner's appeal to the Government against his dismissal by the Authority was wholly misconceived and only betrayed ignorance of clear provisions of the statute and notification issued there under. And a fortiori, the Provincial Government's order, dated the 26th August 1963, by which the petitioner's dismissal was set aside and was substituted by a strong censure is clearly a valid and binding order.

11. Having determined the petitioner's status and the nature of his employment under the Authority and the competency of his appeal to the Provincial Government, the vires of the impugned order of the Provincial Government, dated the 24th March 1965, made in pursuance of the decision taken by the Council of Ministers need not detain us long. It was argued on behalf of the respondents, that the Government was fully competent under C. S. R. 14.17 to review its earlier order, dated the 24th February 1962, accepting the petitioner's appeal. The argument, in our opinion, is as misconceived as was the objection to the petitioner's appeal to the Government. C. S. R. 14.17 reads an under:‑ "After an appeal or the second appeal provided in rule 14.16 has been rejected a person may apply for revision to such superior authority as may be prescribed by the Government: "Provided that the power of revision shall be exercised only‑ (a) if the appellate authority is one other than Government, and (b) on the ground of material irregularity in the proceedings of the enquiring of appellate authority or on the discovery of new and important matter or evidence which after the exercise of diligence was not within the knowledge of the petitioner or could not be produced by him when the orders were made against him or on account of some mistake or error apparent on the face of the record: "Provided further that the Government may at any time revise any order passed by it in exercise of its appellate powers under these rules," It is manifest from a plain reading of the rule, that it concerns revision of orders of a lower authority, by the Government, and not to a review of its own order made earlier. Any doubt on the point should be set at rest by proviso (a) to the rule.

12. In the instant case, the impugned order of the Govern ment, dated the 24th March 1965, purported to recall an earlier order, which had been duly communicated to the parties for being implemented. It held the field for about two years, though owing to reasons already referred to, it remained unexecuted despite the best efforts of the Government to require the Authority to execute it. In our opinion, the order accepting the petitioner's appeal attained finality and merely because it remained unimple mented owing to the contumacious attitude of the Authority would not rob the order of the quality of finality. Accordingly, there was no locus poenitentiae available to the Government, for the decisive step bad already been taken. To accept the plea that the Government having accepted the petitioner's appeal, two years later could revise its decision without any ado would reduce the solemn guarantee provided by section 17 of the 1958 Act to a mockery.

13. The impugned order is open to yet another even more formidable objection. As pointed out already, it was made without any notice to the petitioner although it purported to dismiss his appeal which had hitherto been accepted. In our opinion, the principle enunciated by their Lordships of the Supreme Court in Abdus Saboor v. Karachi University (P L D 1966 S C 536), 19 University of Dacca v. Zakir Ahmad (P L D 1965 S C 90), Chief Commissioner, Karachi v. Mrs. Dina Sohrob Katrak (P L D 1959 S C (Pak.) 45) and Faridsons Ltd. v. Pakistan (P L D 1961 S C 537) is fully attracted to this case, and it is not possible to maintain the validity of the impugned order for want of proper notice to the petitioner. The impugned order violated all rules of natural justice making the whole affair look farcical.

14. Learned counsel appearing for the two respondents lastly argued that even if it may not be possible to maintain the validity of the impugned order, dated the 24th March 1965, the petitioner should not be granted any redress for he seeks what, after all, is discretionary relief. Learned counsel emphasised that the charge ultimately found proved against the petitioner was serious and in the larger interest of purity of public services and for the maintenance of discipline, we may not exercise our discretion and grant him any relief, the invalidity of the impugned order notwithstanding. In support of this argument a recent judgment of the Supreme Court in the Chairman, E. P. I. D. C. v. Rustam All (P L D 1946 S C 844) was cited. That was a case of an employee of the E. P. I. D. C., who was employed as Diesel‑in‑charge and was found guilty of imposing and realising fines without any authority, whatsoever, from the workers serving under him and misappropriating the same. He was accordingly dismissed by the Secretary of the Corporation. The High Court, East Pakistan set aside the order ,of dismissal because of some procedural defects in the enquiry. A perusal of the judgment of their Lordships of the Supreme Court shows, however, that the main ground on which the High Court's judgment was set aside was the principle that the Constitutional safeguards which generally avail to civet servants could not be availed of as of legal right by an employee of a statutory Corporation as E.P.I.D.C. In support of this view, The Lahore Co‑operative Bank v. Pir Saifullah Shah (P L D 1959 S C (Pak.) 219), was also referred. It is true that their Lordships went on to observe that the circumstances of the case were such that the High Court ought to have taken note of them in the exercise of its discretion and should not have issued a writ in favour of the petitioner in that case. It was in these circumstances that the writ issued by the High Court was recalled and it was observed that it could not be sustained either in law or in discretion. In the above circumstances, we consider that the ratio decidendi of the case was the principle, that Constitutional safeguards do not avail as of right to the employees of statutory Corporations and that they are governed by general law of Master and Servant.

15. Even otherwise, in our opinion, the facts of the instant case are materially different so as not to justify refusal of relief to the petitioner in writ jurisdiction. In the first place, it is not possible for us to say with that certainty as was in the case of Rustam Ali, that the petitioner is guilty of serious misconduct as to make his retention in service against the interests of main tenance of discipline and efficiency in public services. As pointed out in an earlier part of this judgment, the petitioner characterised the case against him as fabrication to which high officers were also parties. Then, surprisingly enough, the Authority simply refused to send the file at the appellate stage, relating to the restoration of electric connection to Lahore Zari Factory, upon which the petitioner's defence was primarily based. Repeated requisitions by the Provincial Government over a period of about two years for the despatch of the file were just ignored. This extraordinary attitude of the Authority cannot be explained upon any hypothesis other than this, that it wanted to suppress certain damaging facts relevant to the disposal of the petitioner's appeal.

16. Then, there is the astonishing fact, that the petitioner's appeal having succeeded, the Authority refused to give effect to the appellate order despite numerous earnest requests and directions by the Government. This was despite the solemn assurance given to the staff transferred from the Electricity Depart ment of the Government, to serve the Authority. It was in these circumstances that Government was obliged to make the impugned order recalling its earlier order of about two years ago accepting the petitioner's appeal. This was, as it were, to make a virtue of necessity, because the Authority was not prepared to accept the petitioner back into service despite the acceptance of his appeal and it is difficult to avoid the impression that the Government thought it more practicable or expedient to yield to the Authority's obduracy and to reverse its own earlier decision accepting the petitioner's appeal rather than to force its imple mentation. It is difficult to understand, how in the face of these facts, the Government and Authority can with equanimity canvass refusal of any relief to the petitioner, because the relief sought by him is discretionary. In our opinion, if the case is to be decided purely on equitable considerations, even then the scales should incline heavily in favour of the petitioner.

17. This brings us to an equally difficult part of the case, namely, the appropriate relief to be granted to the petitioner. We have already held the impugned order of the Government, dated the 24th March 1965, whereby the earlier order accepting the petitioner's appeal was recalled to be without lawful authority and we declare it accordingly. The result, therefore, is that the Government's earlier order, dated the 26th August 1963 (Annexure `J') is restored and the petitioner still continues to be in service as if the Authority's order, dated the 24th February 1962 (Annexure 'H') purporting to dismiss him from service was never passed and we also grant him a declaration to that effect.

18. The petitioner, however, also prayed for a writ in the nature of mandamus requiring the Authority to restore him to the post he held prior to his dismissal and also to pay him arrears of salary since the date of his purported dismissal. We regret we cannot possibly grant him that relief for more than one reason. As pointed out already, the petitioner continues to be a civil servant and, therefore, holds office "at pleasure." By his transfer along with other employees of the former Electricity Department of the Provincial Government from the 1st April 1959, his service was merely lent to the Authority, the ultimate administrative control still vesting in the Government. As held in Pakistan v. Nasim Ahmad (P L D 1961 S C 445) mandamus cannot issue to require a Government to restore a civil servant holding office "at pleasure" to his post for that would impunge on the pleasure oil the State. There are even greater reasons to refuse mandamus against the Authority with whom the petitioner was essentially on deputation, though probably to continue in that capacity till he attained the age of superannuation. Then, on the principle laid down in Rustam Ali's case referred to already, the petitioner is not entitled to mandamus against the Authority, it being a statutory Corporation. As between him and the Authority the general principle of law of Master and Servant will, however, apply; and in a properly constituted suit, he may claim from the Authority damages for his wrongful dismissal but he cannot be granted mandamus either for restoration of his service under the Authority or for arrears of pay. We are, therefore, constrained to refuse that part of the relief. In doing so, we would, however, wish to point out that by virtue of the declaration granted to him, the petitioner continues to be in the employment of the Government, as it were, on deputation with the Authority with all the advantages and disadvantages that such employment entails. One distinct disadvantage would be that he cannot seek employment elsewhere. His case is hard one and it would be sad indeed if the advantages that accrue to him in consequence of the declaration made hereunder are withheld from him merely because mandamus was not issued to the Authority and position is allowed to degenerate to that which followed the acceptance of his appeal by the Government in August 1963. This might drive the petitioner to resort to further litigation which even though ruinous to him would certainly do no credit to Government and the Authority which incidentally also functions under the aegis of the Government. And then it ill‑behoves the Government and the Authority to defend their impugned actions, on the plea of maintenance of discipline or better administration, if they are so reluctant to grant their employees what is their due under the Constitution and the law and rules framed there under. We need hardly emphasise that a just and equitable treatment of services is the best way to maintain discipline in them.

19. In the circumstances of the case, we also allow the petitioner his costs against both the respondents. K. B. A. Petition partly accepted.