P L D 1973 Lahore 240 (PLP)

(ii) By the Board without previous notice if it is satisfied on medical evidence that you are unfit and are likely for a considerable period to continue unfit by reason of ill‑health for the discharge of your duties provided always that the decision of the Board that you are likely to continue unfit shall be conclusive and binding on you. (iii) By the Board or its officers having proper authority without any previous notice if you be guilty of any insub ordination, intemperance or other misconduct or of any breach or of non‑performance of any of the existing practices or of rules pertaining to the breach of the Public Service to which you may belong. (fv) By one calendar month's notice in writing at any time during service either by you to the Board or by the Board or its authorised officers to you without cause assigned. In case you fail to give one month's clear notice in writing, you will have to deposit one month's pay and allowances in lieu thereof. (Sd.) Chairman, Punjab Road Transport Board, Lahore The petitioner was ultimately confirmed on 11‑10‑57 and the order passed In that connection is also reproduced below, as follows "Sanction is hereby accorded to the grant of annual incre ment which fell due to Mr. Gul Muhammad, Assistant Traffic Manager, Special Squad on 19‑1‑57 raising his pay from Rs. 250 to 260 in the time scale of Rs. 250‑10‑

350. He is also confirmed in his appointment. (Sd.) Mushtaq Ahmad, Chairman, Punjab Road Transport Board, Lahore. Dated 11‑10‑

57. Sometime thereafter the P. R. T. B. Rules of 1952 were superseded by the Notification No. T‑3/8‑57 (II) dated 27‑12‑57 published in the Extraordinary Issue of the Gazette of West Pakistan, issued in exercise of powers conferred under sub section (7) of section 43‑A of the Motor Vehicles Act, 1939 and the Governor of West Pakistan was pleased to promulgate, in their stead, the West Pakistan Road Transport Board Rules, 1957. Under Rule 12 thereof, the Board was authorised subject to the provisions of Rule, 7, to frame regulations for determining the qualifications required for the recruitment of officers and servants of the Board and prescribing terms and conditions of their employment" In exercise of powers vesting under rule 12 the Board framed the "West Pakistan Road Transport Board Service Rules, 1959", (hereinafter to be referred to as the 1959‑Service Rules). These rules were designed to define the conditions of the service, recruitment, promotion, discipline, control, appeal, pay and allowance and leave benefits of the employees of the Board. It may be recalled that the services of the petitioner were terminated under Rule 23.4 of the above Rules. The terms in which it is couched are as follows : "23.4. The authority competent to terminate service may terminate service at any time without notice or on a shorter notice without assigning any reason provided that pay is granted for the period by which notice falls short of the required period of notice." To complete the reference to the Rules promulgated from time to time, it should be mentioned that the West Pakistan Road Transport Board Rules, 1957, were superseded by the Road Transport Corporation Rules, 1963, which were published in the Gazette of West Pakistan, Extraordinary on 10‑6‑

64. However, by a Memo. No. 106‑REG‑(FAR)‑64/415 dated 26‑6‑64 the Road Transport Corporation decided to continue to follow the Rules, and Regulations, Standing Orders, Instructions, Delegation of Administrative as well as Financial Powers to various officers followed by the former West Pakistan Road Transport Board till such time rules of the Corporation were framed and approved by the Government. Thus, it is common ground, that the relevant r,)les for determining whether the order of termination passed in the present case is valid or not is to be adjudged with reference to the West Pakistan Road Transport Board Service Rules, 1959.

5. Learned counsel for the respondent submitted that according to rule 4.1 of the Punjab Road Transport Board Service Rules, 1954, the Chairman of the Board was the appointing authority in the case of the petitioner. According to para. 3(iv) of the letter of appointment dated 24‑1‑56 issued to the petitioner, his services were liable to be terminated by one month's notice in writing at any time during service, either by the petitioner to the Board or by the Board or its authorised officers to the petitioner, without cause assigned. The term of the petitioner's appointment continued even after confirmation because no fresh agreement was entered into by the Board with the petitioner. In support of this submission reference was invited to clause (a) of Rule 3 of the West Pakistan Road Transport Board Service Rules, 1959, according to which all existing agreements or contracts were to remain in force, subject to any modification made therein by the said Rules. Counsel then referred to rule 23.1 of the Rules which provided that "the services of a Board employee shall be terminated in accordance with the terms of the agreement under which he has been appointed". It was submitted that the expression "authority competent to terminate his service" used in rule 23.4 is equivalent to the expression "authorised officers of the Board" used in para. 3 (iv) of the letter of appointment and as the Chairman was the competent authority for making appointment to the post of Assistant Traffic Manager he was, therefore, also the competent authority or authorised officer to terminate the services of such an employee under rule 23.4. In short, the submission was that the service agreement had been kept alive by 1959‑Service Rules and the condition relating to termination of service by one month's notice was also saved under the said Rules and because the Chairman of the Corporation was the authorised officer for the purposes of making appointments, under Rule 4.1 of the Service Rules of 1954 and appointments made by him were kept in force under rule 3(a) of the 1959‑Service Rules he had the authority to take action under rule 23.4 of the said Rules. It was further submitted that there was no need for delegation of any powers to him, for the purpose of terminating the services of employees under rule 23.4, because the power to terminate formed part of the Rules itself and there was thus no necessity for any further delegation of powers in this respect to the Chairman. Reliance was also placed on the principle contained in section 16 of the General Clauses Act and in this connection the case of Joseph John v, State of Travancore (1953 T C 130) was referred to. I, however, find that this last mentioned judgment has no relevancy to the question falling for consideration before me and no discussion on this part of the counsel's submission is, therefore, necessary.

6. I observe that neither in the letter of appointment nor in the 1959‑Service Rules has it been laid down that the Chairman is competent to terminate the services of any Board employee. In the letter of appointment, the termination of service can be made by the "Board or its authorised officer" while in rule 23.4 of the 1959‑Service Rules, the services of an employee can be dispensed with by "the authority competent to terminate the service". However, who that authority, is, has not been stated anywhere, neither in the appointment letter nor in the Service Rules. According to the respondent's counsel in so far as the Chairman is the appointing authority of the petitioner, he should also be deemed to be his removing authority. But the learned counsel for the petitioner, submits that the matter is not so simple. The question involved is the career of an employee and the power claimed is the authority to terminate the services of a permanent employee, without issuance of a charge‑sheet or of a show‑cause notice or of any indication of the ground necessitating such drastic action. The question thus is whether the power of ending the career of a permanent employee of the Corporation has indeed been conferred upon the Chairman of the organisation. The plea raised against the above assumption Is that this power can be exercised only by the employer himself, namely, the Road Transport Board or its successor, the Road Transport Corporation and no one else. The Chairman, it is urged, being only an employee of the Board and thus a co‑employee in the Organisation alongwith the petitioner cannot exercise the ultimate power vesting in a master to get rid of ‑his servant without cause assigned or stating the ostensible defect in his conduct, necessitating this course, unless this vast power has been specifically delegated to him. He points out that the Chairman, has indeed been specifically vested with the powers of terminating the services of certain category of employees of the Road Transport Corpora tion, in certain circumstances. In this connection attention is invited to the Road Transport Corporation West Pakistan (Removal of Undesirable Employees) Ordinance (Ordinance VIII of 1965). Under the terms of this Statute the "appropriate authority" has been defined to mean the "Chairman in case of employee appointed by an authority or officers subordinate to the Corporation. Thus, the Chairman is empowered to terminate the services of an employee of the Corporation if he is considered to be "undesirable" by him. Thus, where the Chairman can take action against an employee, the power has been entrusted to him specifically by the terms of the statute itself. However, by the terms of the relevant statute in such a case it is necessary to give the employee a reasonable opportunity to show cause against the action proposed to be taken against him, before terminating his service.

7. Admittedly the action taken against the petitioner has not been taken under the said Ordinance. Thus, it is only if the Chairman could, under the rules referred to in the earlier part of the judgment be held competent to terminate the services of the petitioner can be impugned action be justified. According to the 1954‑Service Rules only the power of appointment has been vested in the Chairman. It has, however not been stated therein that he has the power to terminate the services of the persons in respect of whom he was the A appointing authority. Under the West Pakistan Road Transport Board Rules, 1957, which superseded the Punjab Road Transport Rules, 1952 (under which the 1954‑Service Rules were framed in the duties of the Chairman were set out in rule 3, but these merely provided to the following effect "(i) The Chairman shall‑ (a) attend every meeting of the Board unless prevented by illness or other reasonable cause ; (b) be responsible for the orderly conduct of the business by the Board ; (c) exercise supervision and control over all officers and servants of the Board to the extent delegated by the Board and dispose of all questions relating to their pay, privileges and allowances; and (d) furnish to the Government copy of the minutes of any of the Board's meetings and any returns or other information which the Government may call for. (ii) With the previous approval of the Board in respect of such matters as require the approval of the Board, and where such action is necessary, the Chairman shall‑ (a) institute, defend or withdraw any proceedings and compound any offence ; (b) admit, compromise or withdraw any claim (c) obtain legal advice." Coming to the 1959‑Service Rules It will be seen that the powers of the Chairman are again not specified. Though the expression 'competent authority' has been defined in rule 6.6, thereof, but under it 'in relation to the exercise of any power, the competent authority means "the Government, the Board or any authority to whom powers under these rules have been delegated". Which definition is not helpful in the present context. In the latest Rules, viz. the 1963‑Rules, the duties assigned to the Chairman are similar to those performed by him under rule 3 of 1957‑P. R. T. B. Rules. Reference may, however, be made to rule 11 of these rules which deals with the officers of the Corporation. Sub‑rule (4) thereof is relevant and reads as follows : "Subject to the provisions sub‑rules (1) and (2) the power of appointing, promoting, suspending, fining, reducing, remov ing or dismissing for misconduct or granting leave or passing other orders in respect of officers and servants of the Corporation shall be exercised by the Corporation or officers of the Corporation to whom powers are delegated by the Corporation in this behalf." Rule 16 deals with the delegation of powers by the Corporation to its Chairman etc. The Statement of the Delegation of Powers contained in the official publication of the Road Transport Corporation, in which delegation of powers in respect of financial powers, administrative powers and powers for agreements and contracts have been reproduced, shows that the Chairman has been delegated the powers of removing from service of the Corporation and dismissing from its service, several categories of employees, including Assistant Traffic Manager, vide para. 5, clauses (c) and (d), item B under head 'Administrative Powers'. It thus appears that in the above statement of delegation of powers the power to order termination of service has not been delegated to the Chairman. It Is significant that removal and dismissal from service are both treated as punishments and are dealt with in Chapter 11 of the 1959‑Service Rules, relating to discipline, penalties and appeals (vide Rule 26.1, clauses (c) and (d). Under rule 26.2 of the same Chapter, the above‑noted penalties cannot be imposed on any employee except by an order in writing signed by the 'competent authority' and no such order can be passed without charges being formulated to writing and given to employee involved and his defence obtained and considered. He is also to be provided with a reasonable opportunity to answer them in person and in the latter case his defence shall be recorded and attested by the enquiry officer. The 'competent authority' here would no doubt mean the Chairman, to whom the powers have been delegated; vide the statement relating to Delegation of powers, referred to above but, as already noticed, no such delegation has been made so far as the power to terminate the services of the employees is concerned.

8. As a result of the above discussion, my conclusion is that the contention raised on behalf of the petitioner that the ever riding power to terminate the services of an employee has been retained by the Road Transport Corporation itself has substance and the plea that it has not been considered appropriate to confer such a vast power on the Chairman is correct. Hence the Chairman alone would not be competent to pass an order of termination of service of any employee. The intention underlying this appears to be that the Chairman would be the competent authority for terminating the services of any employee, if he is established to be 'undesirable' and may also 'remove' or 'dismiss' him, if he is proved to be guilty of some misconduct. But in all the above eventualities he can get rid of employee only after taking proper proceedings against him. If he is an 'undesirable' employee the procedure laid down in Ordinance VIII of 1965 will have to be observed. If he wishes to 'dismiss' or to 'remove' him, he must cause an enquiry to be held and give him a reasonable opportunity to show cause why he should not be 'dismissed' or 'removed'. But where the services of the employee are to be terminated summarily, without assigning cause or allowing him any opportunity to represent against his severence from service, the only protection that appears to have been conceived is that such an order should be passed by the master himself, namely the Road Transport Corporation, and not any subordinate authority. I, therefore, uphold the first contention raised on behalf of the petitioner.

9. There is also force in the second contention of the petitioner. In the impugned order of termination passed by the respondent pay in lieu of one month's notice period has been granted. The above period of one month has been fixed by the Chairman of the respondent‑Corporation. However, it is the Road Transport Corporation which is statutorily competent to frame rules and prescribe conditions of service of servants of the Road Transport Corporation. There is no doubt that fixing a particular period of notice to be given for the purposes of terminating the service of servants of the Corporation is a function which belongs to the realm of rule‑making and can only be prescribed by that authority. The Chairman was not, therefore, competent to prescribe the period of notice on the expiry of which his services could be terminated. There is, moreover, no delegation of the said power by the Corporation to the Chairman to terminate the services of its employees on one month's notice or pay in lieu of notice. As the letter of appointment is subject to the Service Rules, therefore the period of notice could be fixed by the competent rule‑making authority alone. In rule 23.2 of the 1959‑Service Rules reference to Model Agreements in regard to temporary or officiating and permanent substantive appointments is made which are also reproduced in Appendix V of the said rules. In the case of permanent employee the terms of para. 6(c) of the Model Agreement are relevant. This shows that the services of such an employee may be terminated by the Board or by the competent authority "without cause assigned on . . . . . . . . months notice". The period of notice is left blank In the Model Agreement, which has to be prescribed by the competent authority. The Chairman himself cannot fix the notice period because this matter relates to the terms and conditions of the service of the employee and can be fixed only by the Board of the Corporation. Hence the assumption that the petitioner's services could be terminated on one month's notice is also without any legal basis.

10. The third contention too has force. The petitioner's appeal was dispose of in the meeting of Corporation wherein the Chairman, who had passed the order of termination was also present. Since the order appealed against was passed by the Chairman, Road Transport Corporation and the appellate order was passed in the meeting wherein he not only partici pated but in fact presided, the said order cannot be deemed to be a valid order. I hold that the appellate order dated 31‑10‑1966 cannot be regarded as a legal disposal of the petitioner's appeal. See Muhammad Abdullah v. Road Transport Corpora tion (P L D 1964 Lah. 743).

11. The over‑all conclusion is that this writ petition must succeed. The order of termination dated 17‑6‑1966 passed against the petitioner is held to be without lawful authority and also to be of no legal effect. Similarly the order dated 31‑10‑1966 passed on appeal is also of no legal consequence. The result is that the petitioner shall be deemed to be still in the service of the Road Transport Service. He shall also have the costs of this petition. K. B. A. Petition accepted.