P LD 1984 Supreme Court 75 (PLP)

. SHAFIUR RAHMAN, J.- Leave to appeal was granted to the appellant to examine whether he was a person in government service or a person in corporation service on 13th of March, 1972, when he was retired from service, as Manager of the Frontier Co-operative Bank in exercise of power conferred by Martial Law Regulation No. 114, i. e., Removal from Service (Special Provisions) Regulation, 1972. The appellant joined Provincial Government Service as Camp Clerk to Inspector, Co-operative Societies, Nowshera on 9th of July, 1975. He was sent on short deputations which was termed as foreign service w.e.f. 30th June, 1948 to 30th September, 1949 in the Frontier Co-operative Bank. He was on deputation even after 30th September, 1949 when an order was passed by the Registrar, Co-operative Societies, on 2nd of December, 1949 which is reproduced hereunder : "As recommended by the Business Manager the Fronti es Coop ; Marketing Federation Ltd. Peshawar, the services of Mr. Nurul Haq a Sub-Inspector of this Department on deputation to the Frontier Co-operative Bank are permanently transferred to the bank from Ist October, 1949. He will hold no lien in the post of the Sub-Inspector in this Department." This order was given effect to in his service book kept by the Co-operative Department of the Government and it happens to be the last entry therein : "Services a finally transferred to the Frontier Co-operative Marketing Federation with effect from 1-10-1949. Leave salary and pension contribution for and upto 30-9-1949 recovered in full." The same order of the Registrar, Co-operative Societies, was reproduced as follows as the first entry in his service book started in the Frontier Cooperative Bank in November, 1951 : "The employee was a Government servant and resigned his job with effect from 1st October; 1949_ vide Orders No. 10720-22/R-88 P.

7. C. dated 2-12-1949 of the Registrar, Co-operative Societies, N: W. F. P. Peshawar." Thereafter the service book of the bank contains all the entries with regard to his posting, transfers, promotions etc. .and is uptodate. On the 13th of March, 1972, there appeared a notification in the Gazette of Pakistan Extraordinary an order under sub-paragraph (1) of paragraph 3 of Martial Law Regulation No. 114 whereby the President directed the persons specified in the Schedule being a person in Government service or a person in corporation service to -retire from service w.e.f. 13th March, 1972. The Schedule IV (page 339) under the heading Government of N.-W. F. P., Co-operative Department (page 342) contained the following four entries : "

94. Mr. Khia1 Muhammad Khan, Assistant Registrar, Co-operative Societies.

95. Mr. Sultan Muhammad Khan, Assistant Registrar, Co-operative Societies. .

96. Mr. Nurul Haq, Manager; Frontier Co-operative Bank, Peshawar.

97. Mr. Hafizullab, Inspector of Branches, Peshawar". The name of the appellant figured at serial No. 96 and another colleague of his at

97. On the 15th of March, 1972, the appellant submitted a review petition to the President of Pakistan in terms of Martial Law Regulation No.

116. On getting no response whatsoever he filed a constitutional petition the same year under Article 201 of the Interim Constitution in the Peshawar High Court challenging the action taken against him under Martial Law Regulation No.

114. A number of grounds were taken up but the one which was dealt with by the High Court and which is the subject-matter of this appeal is that he was neither a person in government service nor a person in corporation service as defined in Martial Law Regulation No. 114 and was therefore not liable to any action pursuant to Martial Law Regulation No.

114. He impleaded in the constitutional petition as respondents the Islamic Republic of Pakistan through Secretary Establishment and the Province of North-West Frontier Province through Secretary Co-operative Department, Peshawar. At no stage of the proceedings in the High Court, the Province of N.-W: F. P. filed any written statement or a factual reply. to the claim made by the appellant. The Federal Government did file a written statement in the High Court raising a preliminary objection to the competence of the petition on the ground that the Civil Service Tribunal had been established and the petition had in terms of the Constitution (First Amendment) Act, 1974 abated. It was also stated in that reply that till this preliminary objection was decided the answering respondent claimed privilege from disclosure of record and information. It was also explained that it had not been possible to prepare a detailed written statement giving reply to each of the paragraphs in the writ petition because of the very large number of writ petitions and the short time available to the answering respondent. The learned Judges in the High Court after hearing the parties dismissed the constitutional petition mainly on the ground that the. appellant had not filed or shown his letter of appointment to the service of the Frontier Co-operative Bank, though some force was found in his contention that he was not covered by Martial Law Regulation No.

114. The High Court held that the initial presumption of validity attaching to the impugned order of the Chief Martial Law Administrator under section 114 of the Evidence Act was not dislodged by any of the contentions of the appellant and concluded as follows :- "We are of the view that had he produced the letter of his appointment, it would have gone against him. And to this extent we would be justified to presume that the said letter would have rather supported the impugned action taken by Chief Martial Law Administrator. This, petition, therefore, fails and is dismissed. But under the circumstances, parties would bear their own costs." The learned counsel for the appellant contended before us that under the order passed by the Registrar, Co-operative Societies on the 2nd of December, 1949 which was duly implemented at both the ends, the appellant had ceased to be a government servant and had become thereafter an ,employee of the Fronter Co-operative Bank which was a society registered under section 9 of the Co-operative Societies Act of 1912 (Act lI of 1912). As a registered cooperative society the Frontier Co-operative Bank could not be treated as a corporation set up or established by law. The control exercised by the Government or its functionaries on all Co-operative Societies registered under the Act was. statutory but it did not alter the basic legal character. of the Society itself. .It was a voluntary organization coming into existence by subscribing to, the share capital and conforming to the bye-laws and the regulations framed for its formation and functioning under the Co-operative Societies Act. He has reinforced this submission of his by pointing out that another colleague of the appellant whose name appeared at Serial No. 97 also filed a constitutional petition challenging his removal on the same ground. This writ petition was disposed of when the Government rescinded the order of his removal. In the letter a copy of which has been filed by the learned counsel for the appellant it is mentioned that there was a legal defect in the order of retirement of Hafeezullah which resulted in the rescission of that order. This defect, according to the learned counsel, was the same as is sought to be made a ground by the appellant namely that they both were employees of a co-operative society and as such were outside the jurisdiction of Martial Law Regulation No.

114. The learned Deputy Attorney-General and the learned Assistant Advocate-General appeared at the hearing for the respondent but pleaded that on facts they had no instructions from the department so far. However, it was conceded that from the record it appeared that the appellant was not a Government employee after 1st of October, 1949 but he certainly was an employee of the Frontier Co-operative Bank which could qualify as a corporation as defined in Martial Law Regulation No. 114 and for that reason action under that law could be taken against him. We are satisfied from the documents produced and in the absence of any rebuttal from the other side that the appellant had ceased to be a provincial Government employee from 1-I0-1949. His severance from the Government service was total and complete. His services stood permanently transferred to g the Frontier Co-operative Bank. He retained no lien and had no place thereafter in the Co-operative Department of the Government of N.-W. F. P. The question still requiring determination would be whether service in the Frontier Co-operative Bank was a service in a corporation as defined by Martial Law Regulation No.

114. Under Martial Law Regulation 114 only a person in Government Service or a ,person in Corporation Service could be proceeded against. Both these expressions are defined as follows in the same Regulation : "(c) `Person in corporation service' means every person in the employ. yon anent of a corporation or other institution set up or established by the Central Government or a Provincial Government or by any law for the time being in force and includes the Chairman and the Managing "' Director of; and the holder of any other office, in such corporation or ' institution ; (d). Person in Government service- includes' every person who is a member of an All Pakistan Service or of a Civil Service of the Centre or who holds a civil post in connection with the affairs of the Centre and every person who is a member of a Civil Service of a Province or who holds a civil post in connection with the affairs of a Province, but does not include a Judge of the Supreme Court or of a High Court." As has already been held the appellant had ceased to hold a civil post in connection with the affairs of the Province as from 1-10-1949. Section 72 of the Co-operative Societies Act, 1925 which was extended and applied throughout West Pakistan in 1965 by the Sind Co-operative Societies West Pakistan Amendment Ordinance, 1965 provides that every society now existing which has been registered under the Co-operative Credit Societies Act, 1904 or in the Co-operative Societies Act, 1912 shall be deemed to be registered under this Act and its bye-laws shall so far as the same are not inconsistent with the express provisions of this Act continue in fqrce till altered or rescinded. Section 72-A provides that reference to the Co-operative Societies Act, 1912, in enactments shall be construed as reference to Co-operative Societies Act of 1925. The bye-la%vs of the Frontier Co-operative Bank Ltd. show that it was registered under section 9 of Act II of 1912. The corresponding section is section 10 of the Co-operative Societies Act of 1925 which provides that if the Registrar is satisfied that a society has complied with the provisions of this Act and the rules framed thereunder and its bye-laws are not contrary to this Act or the rules he may register the society and its bye-laws. Section 23 of the Act provides that the registration of a society shall render it a body corporate by the name under which it is registered with perpetual succession and a common seal and with power to hold property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all things necessary for the purpose of its construction. Another provision which is relevant in the context is section

68. I provides that the provisions of the Companies Act of 1913 shall not apply to societies registered under this Act. It follows from these provisions that a Co-operative Society is not a corporation set up or established by any law for the time being in force. It is also not an institution set up or established by the Central Government or a Provincial Government or by any law. It becomes a body corporate unde section 23 . of the Co-operative Societies Act on being registered unde section 10 of that Act. The word Corporation as used in Martial Law Regulation 114 refers to corporations formed by and under special statutes, Central or Provincial, Government department undertakings, government companies under the Companies Act with Special Articles and Memorandum. Establishments, institutions, companies and corporations not falling under the above categories but under some sort of statutory control of the Government or - of its functionaries fall outside the definition of Corporation as given in Martial Law Regulation

114. Thus the appellant as an employee or servant of the Frontier Co-operative Bank was not a person in the service of Corporation and hence not amenable to action under Martial Law Regulation No.

114. It has already been held by this Court in Federation of Pakistan v. E Saeed Ahmed (1) that even under Martial Law Regulation 114 actions taken or order made without jurisdiction, mala fide or coram non judice would not be saved in spite of the various validating provisions of the Constitution. The result is that the appeal is allowed with costs, the judgment of the High Court is set aside and the removal of the appellant from service is declared to be without lawful authority and of no legal effect. M. Z. M. Appeal allowed. (1) P L D 1974 S C 151