P L D 1966 (W (PLP)

MUHAMMAD GUL, J.-In April 1947, the petitioner joined service as a Fitter in the Lahore Omnibus Service, which was then being run by the former Government of the Province of the Punjab. Therefore, there appears to be no doubt that the petitioner was initially appointed by the Provincial Government and as such had the status of a Government servant.

2. Later, in the year 1952, the Punjab Transport Board was created under section 43-A of the Motor Vehicles Act, 1939, which on the establishment of the Province of West Pakistan in 1956, was replaced by the West Pakistan Road Transport Board. Under the said section 43-A (1) as amended by Act XIX of 1953, the Board so established was to be "a body corporate . . . . . having perpetual succession and common seal", capable of suing and being sued by that name. To determine the status of the erstwhile employees of the Provincial Road Transport Department absorbed by the newly constituted Board, subsection (2) ibid. provided: "(2) Any Road Transport Board established before the commencement of this Act under subsection (1) of section 43-A shall be deemed to have been established under that subsection as substituted by this Act, and all persons at any time employed for the purposes of any such, Road Transport Board shall be deemed during the period of such employment to be public servants within the meaning of section 21 of the Pakistan Penal Code, but shall not be deemed to be servants of any Government on the ground that they are employed by a Road Transport Board established by such Government." Subsequently in 1963 by virtue of Motor Vehicles (West Pakistan Amendment) Ordinance, 1963 (W. P. Ordinance, 1963), the West Pakistan Road Transport Board was replaced by Road Transport Corporation, the respondent. The petitioner, therefore, is at present employed in connection with the affairs of the Corporation. Since his initial employment he has earned promotion and, at present holds the appointment of Works Manager and is posted at D. G. Khan. This completes the service history of the petitioner.

3. On the 17th of December 1965, Road Transport Corporation (West Pakistan) Removal of Undesirable Employees Ordinance, 1965 (W. P. Ordnance VIII of 1965) was promulgated. Section 3 of the Ordinance Provides :- "

3. Termination of Services -If in the opinion of the appropriate authority any employee is undesirable and it is expedient, in the public interest, to terminate his services the appropriate authority may, notwithstanding anything to the contrary contained in any law, rule or instrument having the force of law - (i) after giving such employee a reasonable opportunity to show cause against the action proposed to be taken against him, terminate his services; and . . . . . . . . . . . . . . The expression "appropriate authority" is defined in section 2 (a) ibid to mean- "(i) Government in the case of employees appointed by Government, or persons whose services have been transferred by Government to the Corporation; (ii) Corporation in the case of employees appointed by the Corporation; and (iii) Chairman in the case of employees appointed by an authority or officer subordinate to the Corporation." In pursuance of the above provision of the Ordinance the Corporation issued a notice (Annexure `B') to the petitioner on 18-8-1965, treating hire subject to its disciplinary control. The notice listed a number of allegations against him and required him to show cause in writing within fourteen days of the receipt of notice why his service should not be terminated under section 3 of the Ordinance. The petitioner was also informed that in order to enable him to offer his explanation to the allegations contained in the notice, he might, should he so desire, obtain copies of any documents in support of his explanation. In answer to the allegation contained in the notice, the petitioner submitted a detailed explanation on 31-8-1965, in which he not only repudiated the various allegations against him but also highlighted his meritorious services which earned him promotions and commendatory certificates. No final order has-yet been passed in pursuance of the notice.

4. On 8-9-1965, the petitioner filed this writ petition under Article 98 of the Constitution, in which he claims for himself the status of a Government servant and, therefore, invokes all the Constitutional safeguards provided in Articles 177, 178 and 234 (1) of the present Constitution and the 1956 Constitution and prays that the impugned notice dated 18-8-1965 be declared to be "without lawful authority, contrary to law and of no legal effect and the respondent be directed not to take any action" in pursuance thereof.

5. Dr. Nasim Hasan Shah, learned counsel for the petitioner urged the following points in support of the petition, namely- (i) that the petitioner since his appointment by the Govern ment of the former Province of the Punjab retained throughout the status of a civil servant and, therefore, his service, if at all, is terminable by the Governor and not by the Corporation; (ii) that West Pakistan Ordinance VIII of 1965, in pursuance of which the impugned notice purports to have been issued is ultra vires of Constitution, in that it is repugnant to the guarantees available to civil servants; and (iii) that Ordinance VIII of 1965, invests the appropriate authority with arbitrary and unbridled power to terminate the service of any employee of the Corporation. which offends against the principles of natural justice.

6. It must be conceded that the petitioner's claim to be a Government servant in praesenti goes to the root of the matter for unless he is a Government servant, it will not be open to him to invoke the guarantees in Articles 177, 178 and 234 (1) of the Constitution or the corresponding provisions of the late Constitution. The argument, claiming for him the status of a Government servant, however, completely overlooks the provision of section 43-A(2) of the Act set forth above in extenso. In Rana Muhammad Jamil v. Road Transport Board, Lahore (P L D 1957 Lah. 1) this provision came in for interpretation and it was held by S. A Rehman, C. J. (as he then was) and Changez, J. that by virtue of the above provision, employees of the Transport Board (now the Corporation) are not to be deemed to be servants of the Government. The learned Judges also observed in that case that even if no notice in writing is given to the person who was in the first instance employed by Government in the Provincial Transport Department before the constitution of the Transport Board but who on the constitution of the Board continues to remain in the employment of the Board becomes the employee of the Board and he is presumed to know that he is no more a Government servant but is an employee of the Board. In the instant case, it appears that in the wake of West Pakistan Ordinance VIII of 1965, Circular Notice No. T. D./Estt./Gen. 1957, dated 13-7-1965 (Annexure `A') was issued to all employees of the respondent Corporation to say if any of them claimed to himself the status of a Government servant in contradistinction to his being the servant of the Corporation. The notice provided inter alia. "The services of those persons who claim not to be the servants of R. T. C. and claim to be the servants of any Government or its department in any matter, whatsoever, shall be terminated in R. T. C. and shall be placed at the disposal of such Government or its department referred to above for further necessary action."

7. In paragraph 7 of his petition, the petitioner admits having received this notice but alleges that he notified to the respondent in writing that he was still a Government servant and not an employee of the Corporation. However, no copy of such intimation is placed on the file, and it is improbable that the petitioner should not have filed a copy of his claim of being a Government servant with the petition, if he had in fact made any such claim. In its report, the Corporation has denied the receipt of any such claim by the petitioner. Therefore, it can safely be presumed that the petitioner at the relevant time acquiesced in his status of being an employee of the Corporation else his service would have been immediately terminated by the Corporation in pursuance of the directive in the circular notice.

8. That, apart, we have no doubt in our mind that section 43-A (2) of the Act, on its plain reading takes effect in its own force independent of any option by the civil servant. Needless to say that the status of a civil servant is entirely a creation of Constitution and the law, to which apart from the Constitution and the law, he has no inherent claim e.g. status by birth, etc. Articles 178 and 234(1) of the Constitution, upon which the petitioner's learned counsel relied so strongly for the preservation of the Constitutional safeguards for the petitioner being with the limiting words- "Subject to the Constitution and law" and section 43-A (2) of the Act is such law which has been preserved in force by Article 225 (1) of the Constitution. Article 182 of the late Constitution which provided for the recruitment of Civil Services or appointment to Civil posts and regulated the conditions of service of appointees to such services or posts is also made subject, inter alia, to "an Act of the appropriate Legislature". Provisions of Article 177 also relied upon by the learned counsel are also unavailing to the petitioner, for he is not a member of "an All-Pakistan Service, or of a Civil Service, or . . . . . holds civil post . . . . . . . in connection with the affairs of . . . . . . . . a Province." He is employed in connection with the affairs of the respondent-Corporation, which it is wrong both in fact and in law to identify with the Provincial Government. It is common knowledge that the Central Govern ment also is a shareholder in the capital of the Corporation.

9. Referring to the provisions of section 43-A (2) of the Motor Vehicles Act, 1939, which inter alia declares the employees of the Road Transport Board (now the Road Transport Corpora tion) "to be public servants within the meanings of section 21 of the Penal Code", learned counsel for the petitioner urged with some emphasis that the intention was to place the employees of the Corporation at a par with the generality of the civil servants. It was argued that this necessarily confers upon the employees of the Corporation all the privileges and the guarantees provided in Constitution. In our opinion, the subsection does not lead tar any such result. The plain intention underlying the above: provision appears to be to declare the employees of the Corporation to be "public servants" for the purpose of Penal Code only; that is to say, that the employees of the Corporation while performing their duties in connection with the affairs of the Corporation will have all the privileges and advantages of "public servants" and conversely will be liable under the provisions of the, Penal Code as "public servants". For instance, if an employee: of the Corporation while on duty were to be assaulted, then the: offences committed would fall under section 189, 332 or 353 as the case may be and not under section 323 or 352, P. P. C, Likewise, the employees of the Corporation will be subject to the provisions of Chapter IX of the Pakistan Penal Code, which would not have been the case if they were to be treated as employees of a private business undertaking. Therefore, in our opinion, the employees of the Corporation are to be deemed to be "public servants" only for the purpose of offences created under the Penal Code and the provisions have no efficacy beyond that.

10. We are not impressed by the, last contention raised by the learned counsel for the petitioner either, namely that Ordinance VIII of 1965 is ultra vires because it invests the appropriate authority with arbitrary or unbridled power to terminate the service of an undesirable employee, particularly when there is no definition of "undesirable employee". The notice issued to the petitioner gives in detail the allegations on the basis of which it is proposed to terminate his service and the fact that he has been able to furnish a detailed explanation in his defence and no final order has yet been made despite the notice having been issued to him in the month of August 1965, militates against any suggestion of arbitrary action. Similarly, nothing turns on the absence of the definition of "undesirable person". It becomes necessary to define an expression in a statutory instrument only when it is intended to impart an artificial meaning to it. In the absence of such definition, Courts will interpret the expression in its ordinary grammatical meaning. Further, as pointed out by their Lordships of the Supreme Court in East and West Steamship Co. v. Pakistan (P L D 1958 S C (Pak.) 41), conferment of vast power or discretion on an officer or an authority may be wise or unwise legislation, but the question before the Courts .with regard to the validity of the conferment of such power always is whether the provision granting such power is contrary to any provision of the Constitution. Learned counsel has failed to point out any provision of the Constitution which forbids the conferment of vast power or discretion on the appropriate authority in this cast in the relevant behalf.

11. For the aforesaid reasons, we dismiss the writ petition in limine. K. B. A. Petition dismissed.