1971 PLP 454 (SCMR)

WAHIDUDDIN AHMAD, J.‑This appeal by special leave arises out of an order of the West Pakistan High Court, Lahore, in Writ Petition No. 2073 of 1965 dated the 2nd February 1966, by which the petition was dismissed in limine. The appellant was appointed in December 1951, by the Punjab Government in consultation with the Punjab Service Commission as a temporary Traffic Manager in the Provincial Transport Service vide Memo No. 8504/51/599‑E.N.T. dated the 18th December 1951. His services were liable to be terminated as follows :‑-- (a) by giving three months' notice without cause assigned ; (b) without notice if he is found medically unfit or under the Government Servants (Conduct and Disciplinary) Rules in force for such service.‑ The appellant has been continuously serving in the said Transport Service. There have been organizational changes in the set‑up inasmuch as the Transport came to be run and administered with effect from the 15th April 1952 by the exclusively Government‑financed and controlled Punjab Road Transport Board. On integration, like other Departments of the Government, West Pakistan Road Transport Board replaced the three Transport Boards of N.‑W. F. P., Punjab and Sind. In May 1963, the West Pakistan Road Transport Board was replaced by the Road Transport Corporation, West Pakistan. These changes were brought about by legislative measures, namely:‑ (i) Motor Vehicles (Amendment) Act, 1951. (ii) Motor Vehicles (Amendment) Act, 1953. (iii) Motor Vehicles (West Pakistan Amendment) Act, 1957, also known as Pakistan Act III of 1957. (iv) Motor Vehicles (West Pakistan Amendment) Ordinance, 1963. (v) Motor Vehicles Ordinance No. XI. (vi) Motor Vehicles (West Pakistan) Ordinance of 1963, and (vii) West Pakistan Motor Vehicles Ordinance, 1965. On the 17th, 1965, an Ordinance known as Road Transport Corporation (West Pakistan) Removal of Undesirable Employees Ordinance 1965, was promulgated making provision for termina tion of service of any employee of Road Transport Corporation who may be considered undesirable, if it was expedient in the public interest to do so. ‑ The appellant joined the post of Traffic Manager on the 9th January 1952 and was confirmed therein in 1954. In 1956, he was promoted as District Manager and was confirmed in the said post with effect from the 21st November 1958. On the promulgation of Motor Vehicles (Amendment) Act, 1951, the Provincial Government created Road Transport Board which assumed charge of the operation of Government Transport Service with effect from the 15th April 1952. The case of the appellant is that although the service of the appellant stood transferred to the Board, no change in his status as a Government servant thereby took place. His further case is that on the promulgation of the Constitution of 1956, his terms and conditions were guaranteed under Article 232 of the Constitution. The Constitution of 1962 also guaranteed the service conditions that were enjoyed by the appellant before its promulgation. As pointed out earlier by Ordinance No. XI of 1963 Motor Vehicles (West Pakistan Amendment) Ordinance XI of 1963, the Road Transport Board was replaced by the West Pakistan Road Transport Corporation and in exercise of powers conferred by subsection (7) of section 43‑A of the Motor Vehicles Act, the Road Transport Corporation Rules, 1963, were framed. The appellant continued to serve in the Corporation but neither the amending Act nor the Rules framed thereunder brought about any change in his status as a Government servant. The allegation of the appellant is that he incurred the ill‑will of Mr. Abdul Qayyum, C. S. P., when in 1964, he took over as Chairman of R. T. C. respondent No. 1, on the coming into force of the Road Transport Corporation (West Pakistan) Removal of Undesirable Employees Ordinance of 1965 (Act VIII of 1965), issued a notice to the appellant under section 3 of the said Ordinance directing him to show cause why his services should not be terminated. According to the appellant, the allegation in the said notice are wholly baseless, entirely misconceived and totally incorrect. The proceedings against him are actuated by extreme malice and he is being hounded and victimised for extraneous considerations. His contention is that he is not the servant of the Road Transport Corporation but is the servant of the Government and the above‑mentioned Ordinance does not apply to him. In spite of his protest, respondent No. 1 persisted to hold an inquiry against the appellant. He, therefore, challenged the validity of the notice issued to him in Writ Petition No. 2073 of 1965 and further challenged the vires of the Ordinance known as Road Transport Corporation (West Pakistan) Removal of Undersirable Employees Ordinance, 1965. A Division Bench of the West Pakistan High Court, Lahore, called para‑wise comments on the above writ petition. The writ petition was resisted on behalf of the respondent‑Government. It was alleged on behalf of the Government that the appellant was never confirmed by the Government. He was confirmed from the 19th January 1954 as Traffic Manager by the West Pakistan Road Transport Board vide its decision dated the 1st March 1958. He was promoted as District Manager in the year 1956 by the West Pakistan Road Transport Board and not by Govern ment. His probationary period was extended by the Board as District Manager from time to time due to his bad record, ‑ and was extended up to the 25th August 1961, when he was confirmed as District Manager by the West Pakistan Road Transport Board. It was contended on behalf of the respondent‑Government that the temporary post which existed under the Government before the Punjab Road Transport Board came into being, ceased to exist as such and the Board took over the employees as Board's employees. According to them, this was further clarified by the Motor Vehicles Amendment Act of 1953, according to which the employees of the Transport Board were not deemed to be the servants of the Government. The Board took up the plea that the status of the appellant was altogether altered under the Constitution of the Board and it was for this reason that the Board took the action of confirming him and promoting him to a higher post. Their contention is that the appellant as Government servant could not be confirmed on promoted by arty Board. The Government also contended that the constitutional guarantees did not extend to the appellant as he had ceased to be a Government servant long before the promulgation of the Constitution of 1956. They further alleged that the services of the appellant were inherited by the Road Transport Corporation as employee of its predecessor as West Pakistan Road Transport Board and not as Government servant. The allegation of the appellant that the proceedings against him were actuated by extreme malice and he was hounded and victimised for extraneous considerations was denied. The writ petition filed by the appellant came up for hearing before a Division Bench of the West Pakistan High Court, Lahore which by order dated the 2nd February 1966, dismissed the petition in limine as it felt that no interference was called for against the impugned action of the Road Transport Corporation. Thereupon, the appellant filed petition for special leave to appeal and leave was granted to the appellant to consider the question whether a person serving in Road Transport Corpora tion, who was originally a Government servant, continues to enjoy protection of the guarantees regarding service, ensured to Government servants by the Constitution, or whether he ceases to be, for all purposes, a Government servant. Mr. Manzoor Qadir, learned counsel for the appellant, has contended that the appellant was formerly employed by the Government and has never been transferred to tile Corporation. He argued that the appellant is still a Government servant and enjoys all the protections to which a Government servant is entitled under Article 17" of the Constitution of 1962. He further contended that even if it be assumed that he was an employee of the Road Transport Corporation, the Corporation is a local authority within the meaning of Article 98 of the Constitution and the writ petition lies against the respondents under Article 98 of the Constitution. He further contended that Ordinance VIII of 1965 is bad for arbitrariness. Vast powers of dismissing servants in public employ have been conferred on the vague concept of undesirableness. The vires of the legislation was also challenged by him on the ground that :‑ (i) It draws an unjustified distinction between ordinary Government servants and Government servants who are serving the Corporation. (ii) It lays down a procedure different from that applicable to other Government servants. (iii) It provides different grounds for the removal of Government servants who are in the employment of the Corporation. He further contended that the impugned legislation cannot be considered to be a valid law because it has no reasonable basis. Notice was, therefore, issued to the learned Attorney‑General for assisting this Court on the above mentioned points. It is, however, unnecessary to decide the various points raised by Mr. Manzoor Qadir in this case as we are of the opinion that the appellant is a Government servant and he is protected by Article 177 of the Constitution. We have also come to the conclusion that Ordinance VIII of 1965 known as Road Transport Corporation (West Pakistan) Removal of Undesirable Employees) Ordinance, 1965, has no application to the case of the appellant and the action taken against him under this Ordinance is without lawful authority. It is not disputed on behalf of the Government that the appellant was appointed by the Government as a temporary Traffic Manager on the 18th December 1951 against a temporary post subject to the conditions mentioned above. Mr. Dilawar Mahmood, learned Additional Advocate‑General frankly admitted that there was no order transferring the appellant from Govern ment service to the Punjab Road Transport Board when it came into existence on the 15th April 1952. The learned Additional Advocate‑General, however, relied on the amendment made in section 43‑A of Act IV of 1939 by Motor Vehicles (Amendment) Act of 1953 (Act XIX of 1953). The amendment reads as under :‑ "(1) Where a Provincial Government decides so to do, it may establish a Road Transport Board for the purpose of operating road transport services, and every Board so established shall be a body corporate by the name `Road Transport Board' preceded by the name of the province in which it is established having perpetual succession and a common seal, and shall by that name sue and be sued. (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." The learned Additional Advocate‑General contended that as the appellant was employed for the purposes of the Road Transport Board, he was not to be deemed to be the servant of any Government on the ground that he is employed by a Road Transport Board established by such Government. In support of B his contention, the learned Additional Advocate General relied on a decision of a Division Bench of the West Pakistan High Court, Lahore, in the case of Rana Muhammad Jamil v. The Punjab Road Transport Board, Lahore and others (P L D 1957 Lah. 1). In than case it was held that according to section 43‑A, employees of the Transport Board were not to be deemed to be servants of the Government. Even if no notice in writing was given to a person who was, in the first instance, employed by the Government in the Provincial Transport Department, before the Transport Board had been constituted, but who, on the constitution of the Board, was employed for the purposes of the Board, in view of this provision of law, he shall be presumed to more a Government servant but presumed to know that he was no more a Government servant but was an employee of the Transport Board. Such a person is amenable to the jurisdiction of the Road Transport Board. This decision has received our anxious consideration but we are of the opinion that the interpretation given in it to sub- clause (2) of the amendment of section 43‑A is not in keeping with its own language. It will be noticed that the amendment made in the above provision of law can be divided into two portions. First of all, it lays down that all persons at any time employed for the purpose 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. It further lays down that they 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 Govern ment. Admittedly, in the present case, the appellant was not employed by a Road Transport Board. He was employed by the Government as a temporary Traffic Manager on the 18th December 1951, much before the Board came into existence. This amend ment, therefore, cannot be said to have changed the status of the appellant from Government servant to that of an employee of the Punjab Road Transport Board. There have been several organizational changes brought about by various legislations but none of them has provided that a person who was employed by the Government in the Provincial Transport Service was to be considered as an employee of Road Transport Board or Road Transport Corporation. In these circumstances, it is quite clear that the status of the appellant continued to be as that of an employee of a Government service and he is entitled to the constitutional protection guaranteed in the Constitution of 1962. The next question for consideration is whether the appellant's case falls within the definition of the Road Transport Corpora tion (West Pakistan) Removal of Undesirable Employees Ordinance of 1965. The relevant provisions which apply to the present case are as under "2. (a) `appropriate authority' means‑ (i) Government in the case of employees appointed by Government, or persons whose services have been transferred by Government to the Corporation. (b) `Employee' means any person serving in connection with the affairs of the Corporation, including a person whose services have been transferred to the Corporation, but does not include a person on deputation from a Government Department ; and

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." The most important definition which requires consideration is that of the employee in section 2(b) of the above‑mentioned Ordinance. Under it, any person who is serving in connection with the affairs of the Corporation including a person whose services have been transferred to the Corporation is the employee of the Corporation but it does not include a person on deputation from a Government Department. It may be that the appellant is serving in the Road Transport Corporation but he is serving in his capacity as a Government servant. There is no evidence to show that the appellant has been transferred by the Government to the Corporation. Although, there is no specific order sending him on deputation from the Government Department to the Road Transport Board or to the Road Transport Corporation but in its absence it appears to us that the nature of his service in the respondent‑Corporation is that of a person on deputation from a Government Department. It is, therefore, quite clear that the appellant is not one of those employees whose case is governed by the above mentioned definition. In these circumstances the action taken against the appellant under section 3 of the above mentioned Ordinance is not warranted by law and cannot be said to be with lawful authority We would, therefore, hold that the show‑cause notice issued against the appellant is without lawful authority and cannot be sustained. A writ to this effect will be issued to the respondents. In the result, the appeal is allowed with no order as to costs. Appeal accepted.