P L D 1964 Dacca 721 (PLP)

The rule is opposed by the respondents 1 and 2 who are respectively the Chairman and the Secretary of the East Pakistan Industrial Development Corporation. They contend that as the result of an enquiry the petitioner was found guilty of miscon duct for which he was duly dismissed by the respondent No. 2, the competent authority. Before proceeding to examine the petition on merits, it is necessary to state certain undisputed facts which are material for the purpose of this case : The Pakistan Industrial Development Corporation (hereinafter called the P. I. D. C.) set up under the Central Act XLV of 1950, of which the petitioner was an employee was bifurcated and dissolved in accordance with the provisions of the Industrial Corporations (Dissolution) Ordi nance, 1962 (Central Ordinance No. XXXVI of 1962), which came into force on the 4th June 1962. On the same date, the President Promulgated another Ordinance namely, the Provincial Industrial Development Corporation (East Pakistan) Ordinance, 1962 (Central Ordinance No. XXXVII of 1962), whereunder the Government of East Pakistan set up the East Pakistan Industrial Development Corporation (hereinafter called the E. P. I. D. C.). Similarly, the Government of West Pakistan is said to have established the West Pakistan Industrial Development Corpora tion. Section 3 (b) of Ordinance No. XXXVI of 1962, empowered the Central Government to transfer the officers, advisers, and employees of the P. I. D. C. to the Provincial Corporations. In pursuance of the said section 3 (b), the Central Government made the following order: "The Pakistan Industrial Development Corporation shall transfer, not later than the 1st July 1962, such of its officers, advisers and employees as it thinks fit to the East Pakistan Industrial Development Corporation, and the West Pakistan industrial Development Corporation, and the latter shall appoint, not later than the 1st July 1962, the officers, advisers and employees so transferred, on the same terms and condi tions on which such officers, advisers and employees were employed by the Pakistan Industrial Development Corporation, until their terms and conditions of employment under Provincial Industrial Development Corporations are deter mined." Certain officers, advisers and employees of the P. I. D. C. includ ing the petitioner were, in terms of the said order, transferred to the E. P. I. D. C. The E. P. I. D. C. in its turn, by its resolution, dated the 1st July 1962, approved the appointment of all officers, advisers and employees transferred to it by the P. I. D. C. on their existing terms and conditions of service. It was in this manner that the petitioner became an employee under the E. P. I. D. C. on the same terms and conditions as were incorporated in the letter of his initial appointment issued by the P. I. D. C. on the 11th August 1958. Coming now to the merits of the case, the learned Advocate for the petitioner submits that the order of dismissal of the petitioner is illegal inasmuch as he was not served with any notice of termination of service as required under the letter of appointment. This contention is without any substance. The letter of appointment‑Annexure `A', no doubt, provides that the petitioner's services will be terminable on one month's notice on either side. But the petitioner having been dismissed from service by way of punishment as the result of an enquiry against him, the condition as regards service of notice was not at all' attracted in this case. The next contention of the learned Advocate is that the peti tioner was dismissed on a charge which was not included in the formal charges drawn against him and, as such, the order of dismissal is bad in law. It appears from the show‑cause notice- Annexure `D' that charges on five counts were levelled against the petitioner. Of these, the fourth charge runs thus: "Misusing of the powers in dealing with the workers working under you and realising money from them on point of threat of drastic punishment." Now, the impugned order shows that the petitioner was dismissed from service as he was found guilty of collecting money in an illegal manner from the garage staff without knowledge and authority of the management. Thus, the order of dismissal was based on the fourth charge and not on any extraneous ground. This contention also, therefore, falls through. The last contention which was seriously pressed on behalf the petitioner is that the Secretary of the E. P. I. D. C. (respondent No. 2) was not competent to dismiss the petitioner and as such, the order of dismissal passed by him is illegal and without jurisdiction. This contention is resisted by the learned Advocate for the respondents. He submits that in pursuance of the power of delegation conferred by section 14 of Ordi nance No. XXXVII of 1962, the E. P. I. D. C. by a general power of‑attorney, delegated to the Secretary, E. P. I. D. C. various powers and functions including the power to appoint emplo yees and to dismiss or remove them. It appears from the general power‑of‑attorney appended to the affidavit‑in‑opposi tion that the E. P. I. D. C. delegated to the Secretary the powers and functions mentioned therein. This was done in pursuance of the power of delegation conferred by section 14 of Ordinance No. XXXVII of 1962, and a resolution of the E. P. I. D. C. made on the 1st July 1962, in that behalf. The relevant paragraph 3 of the general power‑of‑attorney runs thus: "To make appointments of officers, staff, workmen or other employees of the Corporation, to terminate their appointments or service, to dismiss or remove them, to transfer them from one place to another or from one appointment to another, to change their designations, to increase or decrease their pays of emoluments, to make other changes in regard to them as may be necessary, proper 'or convenient, and to take disciplinary or every other suitable action for, against or in regard to them." According to the plain meaning of the said paragraph, the Secretary, E. P. I. D. C. has been delegated the power to dismiss or remove only such officers, staff, workmen and other employees as are appointed by him ; but this delegated power, in our opinion, does not include the power to dismiss or remove the officers, advisers and employees who were transferred to the E. P. I. D. C. by the P. I. D. C. in pursuance of the order of the Central Government made under section 3 (b) of Ordinances No. XXXVI of 1962, and whose appointments were approved by the E. P. I. D. C. itself by its resolution of the 1st July 1962. In this view of the matter, the Secretary was not empowered to dismiss the petitioner from service as he was one of the emplo yees received by the E. P. I. D. C. on transfer from the P. I. D. C. Accordingly, the impugned order dismissing the petitioner from service is illegal and without jurisdiction. It is submitted on behalf of the respondents that the relation ship of the petitioner and his employer, the E. P. I. D. C. being a contractual one, this case is governed by the principles of the law of contract and the law of master and servant, but does not fall under the purview of Article 98 of the Constitution. An element of contract is involved in all appointments on certain terms and conditions, whether such appointments are made by the Government, a corporation, statutory body or any one else. But that does not necessarily mean that the principles of the law of contract and the law of master and servant will govern each of such cases. Having regard to the terms and conditions contained in the petitioner's letter of appointment, dated 11‑8‑58, issued by the P. I. D. C. it may be said that an element of contract is also involved in his appointment. But the transfer of his service from the P. I. D. C. to the E. P. I. D. C. and the approval of his appointment by the E. P. I. D. C. on such transfer having been made in pursuance of the statutory provi sions, and further the terms and conditions of his employment having recognised and maintained by the provisions of law, namely, the order of the Central Government under section 3(b) of Ordinance No. XXXV1 of 1962, and section 10(3) of Ordinance No. XXXVII of 1962, the law of contract and the law of master and servant will not govern the relationship of the petitioner and his employer. The learned Advocate for the respondents admits that the disciplinary rules have yet been made under section 23 of Ordinance No. XXXVII of 1962. In the absence of such rules the power to dismiss the petitioner vests in his appointing authority, namely, the E. P. I. D. C. As appointing authority, the E. P. I. D. C. itself or its delegate duly authorised under section 14 of Ordinance No. XXXVII of 1962, may dismiss the petitioner from service. In the present case, however, the order of dismis sal of the petitioner having been made by the Secretary with out being duly authorised in that behalf under the said section 14, the provisions of Article 98 of the Constitution are attracted here, although an element of contract is involved in the appoint ment of the petitioner. The learned Advocate for the respondents lastly contends that the present petition under Article 98 of the Constitution is not maintainable inasmuch as the E. P. I. D. C. is not a "local authority" within the meaning of that Article. The expression "local authority" has not been defined in the Constitution The definition of the said expression as given in the General Clauses Act, 1897, is not available, for, the said Act is not applicable for the interpretation of the Constitution Act. The expression "local authority" generally means any body of persons for the time being invested by law with the control and admi nistration of any specified matters within a local area. The E. P. I. D. C. has been established under the Central Ordinance No. XXXVII of 1962, for the purpose of promoting the economic and industrial development of East Pakistan and for matters ancillary thereto. It is a body corporate having perpetual succession and a common seal with power to acquire and hold property. The general direction and administration of the E. P. I. D. C. and its affairs vest in a Board consisting of not less than three and not more than five Directors, all of whom are appointed by the Government. The Chairman of the Board is also appointed by the Government. In discharging its functions under the Ordinance, the Board is guided by such directions as the Government may give it from time to time. The exercise of certain functions of the Board is subject to the previous sanction of the Government. Thus the E. P. I. D. C. performs functions in the province in connection with the economic and industrial development of the province under the provisions of a statute and subject to the control and direction of the Govern ment. Therefore, the E. P. I. D. C. is, in our opinion, a "local authority" within the meaning of Article 98 of the Constitution. The term "person" as defined in clause (5) of Article 98, includes any body politic or corporate, any authority of or under the control of the Central Government or of a Provincial Government etc. The E. P. I. D. C. being a body corporate under the authority and control of the Government is a "person" within the meaning of Article 98 (2). As such "person," the E. P. I. D. C., at any rate, performs functions in connection with the affairs of the Province, namely, the economic and industrial development of the Province. That being so, an application under Article 98 (2), is maintainable against the E. P. I. D. C. in any view of the matter. This disposes of all the points raised in this case. The result, therefore, is that we make the rule absolute and, declare that the order, dated 13‑9‑63, dismissing the petitioner from service is without lawful authority and of no legal effect. In the circumstances of the case, we do not make any order as to costs. The learned Advocate for the respondents applies for a certificate under Article 58 (2) (a) of the Constitution for leave to appeal to the Supreme Court. We think that this case involves a substantial question of law as to the interpretation of the Con stitution. We accordingly grant a certificate for leave to appeal to the Supreme Court under Article 58 (2) (a) of the Constitution. K. M. HASAN, J.‑I agree. K. B. A. Rule made absolute.