1991 PLP (C (PLC(CS))

The aforesaid Regulations relied upon by the appellant have been framed under section 39 of the Pakistan National Shipping Corporation Ordinance, 1979 (Ordinance XX of 1979) (hereinafter referred to as the Ordinance) which reads as under:- "

39. Power to make regulations: -Board may make regulations, not inconsistent with the provisions of this Ordinance and the rules, to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Ordinance." The aforesaid section 39 of the Ordinance came up for consideration before the Division Bench of this Court in the case of Muhammad Mumtaz Javed v. Pakistan (19138 CLC 1965). The learned Judges of the Division Bench after considering several authorities on the proposition reached the conclusion that the aforesaid Regulations do not enjoy the status of statutory instrument. The relevant portion of the judgment reads as under:-- "In the instant cases Regulations of 1984 are applicable to the aforesaid three petitioners as observed hereinabove which have been framed under section 39 of the Ordinance, which provides that the Board may make regulations, not inconsistent with the provisions of this Ordinance and the rules, to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Ordinance. It may also be stated that section 38 contemplates that the Federal Government may, by notification in the Official Gazette, make rules for the purpose of giving effect to the provisions of this Ordinance. If we were to construe the Regulations of 1984 as having the statutory force, it would follow that the infringement thereof would entitle the petitioners to maintain either a writ or a suit as the facts of the case demand but if we were to hold that the regulations in fact have no statutory force and have been issued for the internal use of the PNSC, the petitioners would not be entitled to maintain either a writ petition. Reference may also be made to the case of Muhammad Yousuf Shah v. Pakistan International Air Lines Corporation PLD 1981 SC 224, in which Hon'ble Supreme Court reiterated the above proposition of law and held that P.I.A. Service Code merely contains instructions and not the statutory rules." The above observations are applicable to the facts of the instant case. I, therefore, hold that the service of the appellant is not regulated by any statutory, rules or regulations and that the rule of master and servant is applicable as has been rightly held by the first appellate Court. Secondly the grievance of the appellant with regard to non-observance or contravention of the said regulations would not confer on the Appellant any justiciable right to maintain a suit for declaration and reinstatement in service. Even otherwise there is neither specific provision in the said Regulations making it incumbent upon the respondent to supply the copy of the enquiry report to the appellant or serve him with final show-cause notice. On reading of the said regulations, no such requirement is spelt out, even by implication. The learned counsel for the appellant has urged that the Regulation 25(d) makes the principles and rules of natural justice applicable and the aforesaid omissions on the part of the respondent amount to violation of principles and rules of natural justice. Regulation 25 pertains to disciplinary action against the employees of the Corporation, clause (d) whereof reads as under:- "While holding an enquiry, principles and rules of natural justice shall be followed and observed." The bare reading of the above clause shows that the principles and rules of natural justice are to be observed in the conduct of the enquiry. The said regulation will be well-attracted if the enquiry is conducted behind the back of the accused officer or he has not been heard or allowed to cross-examine witnesses or is deprived of producing his evidence in defence. This regulation has no bearing on the post enquiry proceedings.. It is worthwhile to mention here that the appellant has not expressed any grievance in the conduct of the enquiry by the Board. The question of supplying copies of the enquiry report is an act which is to be done after the conclusion of the enquiry and similarly final show-cause notice is also to be served on the conclusion of the enquiry. Such omissions on the part of the respondent do not amount to violation of the aforesaid clause (d) of Regulation

25. The learned counsel for the appellant in support of his above contention relied on 1989 MLD 999 (M/s. Capital Sports Corporation Sialkot v. Government of Pakistan). In the above-cited case the question under consideration was the determination of the valuation of the imported goods by the Custom Authorities behind the back of the importer under section 25 of Customs Act, 1969, wherein it was held that the importer cannot be condemned on the basis of enquiry made behind his back and without his knowledge and without giving him an opportunity of even looking at it or rebutting it. The said principle is not attracted under the facts and circumstances of this case because it is not the case of the Appellant that the enquiry was conducted by the Board behind his back or that he was not given any opportunity of rebuttal. The learned counsel has also relied on PLD 1981 SC 176 (Syed Mir Muhammad v. N.-W.F.P. Government). In the aforesaid authority the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973 were under consideration. It was on interpretation and construction of Rules 5 arid 6 of the said Rules, that their Lordships reached the conclusion that where the formal enquiry is completed and the authorised officer, in the light of the inquiry report, has tentatively decided upon the action he proposes to recommend to the Authority, he has to give an opportunity to the accused officer to offer his explanation against the proposed action, in the light of the finding of the Enquiry Officer or Committee before sending his recommendations to the Authority and then concluded "this would, of course, necessitate that a copy of the inquiry report be furnished to the accused officer at this stage, and he should be apprised of the action proposed against him". There are no provisions in the said Regulations akin to Rules 5 and 6 of the Rules that were under consideration in the above-cited case. Regulation 25 of the said Regulations relates to disciplinary action against the employees of Corporation and reads as under:-- "25(a). An Established Officer guilty of misconduct may be: (i) warned or censured; or (ii) permanently reduced in seniority by a specified period not exceeding 9 months; or (iii) reverted to the next lower rank for a specified period; or (iv) deprived of his annual increment for a specified period not exceeding two years but which may be restored by the Managing Director; or (v) suspended from service for a period not exceeding three months; or (vi) removed from service with or without notice; or (vii) dismissed from service without notice. (b) No action under (ii), (iii), (iv), (v), (vi) or (vii) above shall be taken unless the Established Officer concerned has been given a charge-sheet setting out therein the charges against him, and unless he has been given an opportunity to tender his explanation and an enquiry has been held in respect thereof. (c) In all cases under sub-regulation (b above, the Established Officer concerned shall be issued a charge-sheet within the shortest possible period of the incident or conduct of the officer in respect of which disciplinary action is proposed to be taken and the entire process of charge-sheeting and enquiry shall be completed as early as possible: Provided that the Established Officer concerned shall be given reasonable time, which shall not be less than forty- eight hours to tender his explanation of the charges set out in the charge-sheet. (d) .. (e) In awarding punishment, the Managing Director shall take into account the gravity of misconduct, the previous record of the officer and other relevant circumstances. The said Regulation neither prescribes any procedure to be followed by the Board, nor for any intermediary like authorised officer with powers to recommend to the authority the penalty to be imposed, as is provided in Rule 5(4,) of the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973. The procedure to be adopted and followed by the Board of Enquiry has been left at its discretion. The grievance of the appellant that the enquiry report was not furnished to him has been controverted by the respondent by stating that the appellant after making application for the copy thereof kept quiet and deliberately avoided to collect the same. In any event the learned counsel for the,, appellant has failed to point out as to in what manner the mere act of non-supply' of copy of the enquiry report has caused prejudice to him or amounts to violation of principles and rules of natural justice. For the above reasons, I hold that the non-supply of enquiry report and absence of final show-cause notice, do not in any manner violate the said Regulations. The learned counsel for the appellant finally urged that sections 11(1)(2), 43 and 43-A of the Merchant Shipping Act, 1923 (Act XXI of 1923) govern the services of the appellant with the respondent Corporation. Section 11 of the aforesaid Act provides the kind of certificates of competency to be held by officer of foreign going and home-trade ships and foreign passenger ships, in absence whereof the concerned officer cannot be employed on board the ship. Section 43 pertains to issuance of certificate of discharge and return of certificate of competency to such officer on his discharge from ship. Section 43-A pertains to issuance of certificate by the Master of ship as to the quality of the work of seaman on board the ship. Neither the said sections have any bearing whatsoever on the service of the Appellant under the respondent Corporation, nor any other provisions of such nature in the said Act have been pointed out by the learned counsel for the appellant. A word need be added about the maintainability of the suit and remedy available to the appellant. In the case of Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194 their Lordships have observed as under:-- "Where a Corporation is set up by a statute but the Government does not reserve to itself the power to regulate the conditions of service of the employees under the Corporation and the statute itself also does not prescribe any condition but leaves the matter entirely in the descretion of the Corporation who is given the power to frame rules and regulations in that regard so that the employee is left with no protection under the statute itself, then the Corporation must be held to be the sole arbiter in the matter of prescribing the terms and conditions of its employees and competent to deal with them in accordance with the terms and conditions so prescribed by it. In such situation the employee cannot claim to be a person possessed of any legal character within the meaning of section 42 of the Specific Relief Act and in case of his wrongful dismissal from or termination of service, the principle of master and servant will fully apply and he can only claim damages but not reinstatement to his post." The question with regard to maintainability of the suit filed for declaration under the similar circumstances by an employee of the respondent also came up for consideration before my brother Mamoon Kazi, J., in the case of Pakistan National Shipping Corporation v. Muhammad Moosa Soomro 1989 MLD 3747 wherein relying on the aforesaid case of Anwar Hussain and also other cases namely M/s. Walkirn Pakistan Ltd. 1982 PLC 762 and MA. Nasir v. Chairman, Pakistan Eastern Railway PLD 1965 SC 83 and Alvi Sons Ltd. v. Government of East Pakistan and others PLD 1968 Kar. 223 it was held that the suit for a declaration by the employees of the respondent Corporation is not maintainable. I respectfully agree with the said view and hold that the suit filed by the respondent is not maintainable and only remedy available to him is for damages, if wrongful dismissal from service can be established. The above are the reasons for the short order passed on 28-11-1990 whereby the above appeal of appellant was dismissed with no order as to costs. A.A./M-1323/K Appeal dismissed.