P L D 1957 (W (PLP)

QADEERUDDIN, J.

This is a Writ Petition against the Board of the Trustees of the Port of Karachi and the Chairman of the Board of the Trustees of the Port of Karachi on the ground that the services of the petitioner were terminated in violation of section 23 of the Karachi Port Trust Act, 1886, and section 240 of the Government of India Act, 1935. The facts are that the petitioner was employed as a clerk by the Karachi Port Trust on 1st October 1947 and was confirmed in the post on 1st December 1947. It is alleged by the petitioner that the Chairman made a regulation on the 29th of March 1948 by which it was made compulsory for the employees to pass a proficiency examination. A circular was issued in pursuance of the alleged regulation, informing the staff that such an examination was to be held in January 1951. The petitioner did not 'appear in the examination as, according to him, the alleged regulation did not apply to him. The reasons why he thought that the regulation was not applicable to him are contained in his letter dated the 27th November 1953, addressed to "the Chairman and the Trustees of the Board of the Karachi Port Trust". No reply was received by the petitioner to his representation and, instead, a letter was handed over to him, which is dated 28th August 1954 and reads as under: " Chairman's remarks on your case are as under : Please note and return. The revised note of the C. E. is clear. Messrs. Furqan Ali Khan, Abdul Qadar, Zafaruddin Ahmed and S. G. Mohi uddin will sit for the next examination. If they choose to remain absent for any reason, including sickness, they will not be allowed to resume duty. Their case should be put up to me without delay in that case. Mr. Mohiuddin may be offered the alternative of a month's pay in. lieu of notice in accordance with his agree ment or sit for the examination and qualify. Let him choose." The petitioner wrote a detailed reply which is dated the 8th October 1954. Ten months after it, a notice dated 12th August 1955 was received by him. It was as follows- "You are hereby informed that your services have been terminated with immediate effect because of your refusal to sit for the departmental examination. You are further directed to receive the amount of one month's pay in lieu of notice from the Chief Engineer's Office." It has been stated at the Bar that the petitioner did not accept the payment of one month's salary and this fact has not been denied by the learned counsel for the respondents. Following the termination of the petitioner's services, the Karachi Port Trust issued a certificate to him which is as follows "This is to certify that Mr. S. G. Mohiuddin son of Ata Hussain was employed in the Karachi Port Trust from 1st October 1947 to 12th August, 1955, the last appointment held by him was that of an 'A' Grade Clerk. He is well versed in correspondence and other office routine. His abilities were good and his services were terminated due to his refusal to sit in the Departmental examina tion." The petitioner has prayed for a writ of certiorarti quash ing the order dated the 12th August 1955 by which his services were terminated. The defence of the respondents is that the so-called regulation by which the employees were required to appear for the proficiency examination was not a regulation but only a report or recommendation which was placed before the Board of Trustees and was accepted in the form of a resolu tion No. 353 dated 26th September 1951. It is contended that the resolution is binding on the staff. It has been argued that the proficiency examinations are necessary for the employees of the Karachi Port Trust because they need technical knowledge of the procedure, rules and regulations without which the duties relating to import, export, clearance of goods, etc., cannot be performed. It is also contended that section 240 of the. Government of India Act is not applicable to the petitioner and that the petitioner's services have been validly terminated under section 23 of the Karachi Port Trust Act. The Board of the Trustees of the Port of Karachi is a body corporate having perpetual succession and a comm9;; seal and can sue and be sued by the name of "The Trustees of the Port of Karachi". It is a statutory body created by the Karachi Port Trust Act, 1886, and is governed by this statute. Sections 21 to 24 (both inclusive) deal with the creation of posts ; framing of regulations regarding leave, allowances, length of service, pensions, provident fund, etc., appointment, promotion, suspension and dismissal of em ployees for misconduct ; and dispensing of their services ; and the necessity of the sanction of the Central Government to certain orders and regulations. The objection of the petitioner under section 240 of the Government of India Act, 1935 need not detain us. The petitioner is not a member of a Civil Service of the Crown in Pakistan, nor does he hold any civil post under the Crown in Pakistan. The counsel of the petitioner tried to argue that the duties relating to the Karachi Port being of an essential nature for the citizens of Pakistan and the financial and economic welfare of the Government, the petitioner who rendered service for the benefit of the Port should be con sidered as holding a civil post under the Crown in Pakistan. This argument is obviously untenable. The petitioner claims to be an employee of the Board of the Trustees of the Port of Karachi, which is a statutory corporation, and cannot, be regarded as holding a civil post under the Crown in Pakistan. In this. Writ Petition we are concerned with sections 22 and 23 of the Karachi Port Trust Act, 1886. They are as follows "

22. The Board shall from time to time frame regula tions- (1) for regulating the grant of leave to the officers and servants of the Board. (2) for authorising the payment of allowances to the said officers and servants, or to the certain of them, whilst absent on leave. (3) for determining the remuneration to be paid to the persons appointed to act for any such officers or servants during their absence on leave. (4) for regulating the period of service of all such officers and servants. (5) for determining whether any of the said officers and servants and, if so, which of them, shall on retirement receive pensions, gratuities or compassionate allowances, and the conditions under which such pension, gratuities or compassionate allowances shall be payable and the amount of the same. (6) for authorising the payment of contributions at certain prescribed rates and subject to certain prescribed conditions to any provident fund which may be established by the Board for the benefit of its officers (including such officer as may be appointed by the Central Government to act as Chairman) and servants of which with Board's approval, may be established by its officers and servants themselves. (7) for determining the conditions under which pensions, gratuities, or compassionate allowances may be paid to any of such officers and servants injured or to the surviving relatives of any such officers and servants killed in the execution of their duty. Provided that no regulations framed by the Board under Clause (5) (or clause (7) shall have validity unless or until the same has been sanctioned by Government. "

23. Subject to the provisions of the said regulations and of the schedule for the time being in force framed by the Board under section 21, the power of appointing, promoting, suspending, dismissing for misconduct, finding, reducing, or granting leave to the officers and servants of the Board shall be exercised by the Chairman, in the case of officers and servants, whose monthly salary does not exceed one hundred rupees, and in every other case, by the Board. An appointment so made by the Board shall not be held to be a contract or agreement within the meaning of section

18. The power of dispensing with the services of any officer or servant of the Board, otherwise than by reason of such officer's or servant's own misconduct, or of permitting any such officer or servant to retire on a pension, gratuity or compassionate allowance shall, subject to the aforesaid provisions, be exercised by the Board alone". Mr. Tikamdas has contended that the services of the petitioner have been terminated firstly in terms of his contract of service and secondly in exercise of the power conferred on the Board by the third paragraph of section

23. The alleged contract of service has not been produced and is said to be missing from the records of the respondents. The petitioner's counsel has denied that there was any written contract as alleged. From our point of view the alleged written contract would be immaterial even if it contained, as alleged on behalf of the respondents, a clause authorising the employer to terminate services by giving one month's notice or one month's salary in lieu of notice, because, as explained hereafter, the petitioner's services were not terminated but he was dismissed for infringing the Board's resolution. The third paragraph of section 23 gives power to the Board of dispensing with the services of any officer or servant "subject to the aforesaid provisions". "The aforesaid provisions" are apparently the provisions referred to in the beginning of the first paragraph of section

23. They are the provisions of the said regulations and of the schedule for the time being in force framed by the Board under section 21." The schedule prepared under section 21 would refer to "the staff' of officers and servants" whom the Board would deem "necessary and proper to maintain" and we are not concerned with it for the purposes of this petition. The expression "the said regulations" refers to the regulations framed under section

22. This means that "the power of the Board for dispensing with the services of any officer or servant" conferred by the third paragraph of section 223 is to be exercised subject to the regulations made under section

22. We wanted to see those regulations in order to ascertain whether the services of the petitioner were terminated in accordance with them or not, and were informed by Mr. Tikamdas the counsel for the respondents that no regulations have been framed regulating the dismissal of employees for misconduct or the termination of the services for reasons other than misconduct. His argument is that such regulations are not required to be framed by section 22, because it consists of seven clauses nones of which relates to the dismissal for misconduct or termination of services otherwise than by reason of misconduct. The only possible clause under which regulations of this nature could be framed is clause (4). It is as follows: "The Board shall from time to time frame regulations - (4) for regulating the period of service of all such officers and servants." Mr. Tikamdas, the learned counsel for the respondents has contended that "regulation of the period of service" does not include the regulation of dismissal or termination of services. He has not given reasons for this contention, nor has he given any reply to the argument advanced on behalf of the petitioner that the "regulation of the period of service" includes regulation of dismissal for misconduct as well as termination of services, because the period of service is curtailed in either event. Moreover, the words "the provisions of the said regula tions" in the first paragraph of section' 23 and the words "the aforesaid provisions" in the third paragraph of the section appear clearly to suggest that the power of "dismissal for misconduct" and of "dispensing with the services" for reasons other than misconduct is to be governed by regula tions made under section

22. The powers conferred by section 23 are not unlimited and unregulated powers, and cannot be exercised without the regulations to be made under section 22 which section makes the framing of such regulations mandatory. If the words "regulating the period of service" occurring in clause (4) of section 22 do not include regula tions for dismissal for misconduct and dispensing with the services, the references to "the provisions of the said regula tions" and "the aforesaid provisions" in section 23 would be meaningless and the power of dismissing for misconduct and of dispensing with the services would become, unregulated and contrary to the intendment of section

23. We find, therefore, that it was compulsory on the Board to frame regulations under clause (4) of section 22 for regulating the dismissal of officers and servants of the Board for misconduct and dispensing with their services otherwise than by reason of their misconduct. The effect of the absence of such regulations is that the Board could not exercise an unregulated power of dispensing with the services and has contravened the provisions of section 23 by transgressing their limits. Mr. Tikamdas has produced a copy of the Chairman's Standing Order No. 79 which seeks to frame "rules for officers investigating complaints against Karachi Port Trust Employees", and has contended that this Standing Order was issued on the ground that no regulations were required to be framed for punishing the employees under any provision of the Port Trust Act including clause (4) of section

22. For the reasons stated above, we do not agree with this contention of Mr. Tikamdas and feel that the Chairman of the Board of the Trustees of the Port of Karachi was not correctly advised in this respect. It may, however, be noted that the first few lines of the Chairman's Standing Order are as follows: "The following rules shall be observed by officers investiga ting complaints against Karachi Port Trust employees :- In all cases where a Karachi Port Trust employee is being charged with an offence, which if proved, is likely to lead to his dismissal, removal or reduction, the following procedure shall be followed in conducting a departmental inquiry. Neglect in the due observance of the correct procedure is liable to vitiate the whole proceedings and the ultimate order passed thereon." These rules, therefore, not only apply to the 'dismissal' or 'reduction' of employees but also to their 'removal' from service. Removal from service need not always tantamount to 'dismissal' and may sometimes include dispensing with the services otherwise than for misconduct, and if this was true in the present case, then the rules contained in the said Standing Order ought to have been applied to the so-called 'termination' of the services of the petitioner and a preliminary inquiry, investigation and ultimate order should have been made in accordance with them. Mr. Tikamdas has, however, argued that the word "removal" in the context does not mean 'termination' of the services", but is equal to the word "dismissal", and as there was no offence alleged against the petitioner he could not be said to have been charged with an offence and 'removal' from service, and that as such these rules could not apply to him. It is true that the rules are meant to be applied when an "employee is being charged with an offence", but it cannot be said that there has teen ne charge against the petitioner. It is stated in the certificate granted to him that "his abilities were good, and his services' were terminated due to his refusal to sit in the Departmental Examination." He was required to sit in the departmental examination on the strength of a resolution of the Board of Trustees of the Port of Karachi, and that resolution is stated to be binding on the staff. If the resolution was considered as binding on the staff and the petitioner had infringed it by not carrying out its terms, then obviously there was a charge of its violation or of disobedience against him and it is immaterial whether one month's pay was offered and whether the word "indiscipline" or 'misconduct' was used against him or not. The consequence of not carrying out the terms of the resolution has been that he has been awarded the punishment of being pushed out of service before the expiration of the normal period of the post held by him. We, are satisfied that the action taken against the petitioner has not been a case of the dispensing of the service otherwise than by reason of the servant's misconduct. In our view he was dismissed for the presumed offence of disobeying the resolu tion of the Board. We do not accept the contention of Mr. Tikamdas that the rules framed by the Chairman's Standing Order No. 79 if valid, were not to be observed in the case of the petitioner. The consequence, in the language of the Standing Order itself, would be that "neglect in the due observance of the correct procedure would vitiate the whole procedure and the ultimate order passed therein." It is necessary to comment on the Chairman's Standing Order No. 79 as the action taken against the petitioner is vitiated even according to it. We have tried to explain that regulations for dismissal and termination of services ought to have been framed under section 22 and the action taken against the petitioner ought to have been controlled by them. The action taken against the petitioner was outside the powers conferred by section 23 and therefore invalid . We accept the Writ Petition and quash the order com municated to the petitioner by the Mechanical Engineer, Karachi Port Trust by Memo No. E-6 (C-7)/13/6888 dated 12th August 1955. The petitioner is entitled to get the cost of this petition from "The Trustees of the Port of Karachi". A. H. Petition accepted.