1990 PLP 1404 (SCMR)

(3) ................. (4) ................. (5) ................. (6) ................. (7) ................. (8) ................. (9) Government may make rules not inconsistent with the provisions of this Ordinance, prescribing the powers and functions of the Corporation." Rule 139 of the Motor Vehicles Rules, 1969, prescribes as hereunder:‑‑-- "

139. Corporation to frame Regulations.‑‑Subject to the provisions of rules made under the Ordinance, the Corporation may frame regulations:‑‑ (a) for determining the qualifications required for the recruitment of officers and the servants of the Corporation and prescribing the terms and conditions of their employment; (b) ........... (c) ........... (d) ........... (e) ........... (f) ........... (g) ...........

5. It was in exercise of the powers possessed under Rule 139 of West Pakistan Motor Vehicles Rules, 1969 that rules were framed and these were adopted in 1971 by the Sindh Road Transport Corporation and, the introductory portion of it reads as hereunder:‑‑ INTRODUCTION In exercise of the powers vesting in them under Rule 139 of the West Pakistan Motor Vehicles Rules, 1969, .the Sindh Road Transport Corporation are pleased to adopt the service rules formerly known as the West Pakistan Road Transport Board Services Rules, 1959. These rules are intended to define conditions of service, recruitment, promotion, discipline, control, appeal, pay and allowance (including travelling and other allowances) and leave benefits."

6. Competent authority' has been defined in Rule 6.6 as hereunder:‑‑ "in relation to the exercise of any power, the competent authority means the Government, the Corporation or any authority to whom powers under these rules have been delegated:" Rule 23.4 reads as hereunder:‑‑ "The authority competent to terminate service may terminate service at any time without notice or on a shorter notice without assigning any reasons provided that pay is granted for the period by which notice falls short of the required period of notice."

7. It is clear from the scheme of the law and the Motor Vehicles Rules that what has been termed as Sindh Road Transport Corporation Service Rules, 1971 are in fact Regulations framed under Motor Vehicles Rules [Rule 139(a)]. The approval of the Government is not required for their framing, for their efficacy or for their validity. The Rules are, therefore, non‑statutory in character. Craies on Statutes Law has classified the delegated legislation as hereunder:‑‑

"Delegated legislation falls under two main heads: (a) Statutory instruments: (b) By‑laws or regulations made‑‑ (i) by authorities concerned with local Government: (ii) by public corporations or societies clothed with statutory or common law powers."

8. In the case of Subedar Muhammad Asghar v. Safia Begum P L D 1976 SC 435, it was held that the hallmark of a statutory rule is its legislative character and is made by a rule making authority in the exercise of its delegated legislative power. This question came to be examined in greater depth in the case of Principal, Cadet College Kohat PLD 1984 SC

170. The test of delegation of the rule making power or the approval of the regulation by the delegate being absent in that case it was held that the rules so‑called could only be regarded to be in the nature of mere instructions issued for the guidance by the Board of Governors and the Principal of the Cadet College, Kohat. In the case of Anwar Hussain v. Agricultural Development Bank of Pakistan and others P L D 1984 SC 194 the law on the subject was explained in the following words at page 198:‑‑

"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 discretion 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:"

9. There being no statutory rules in the field the respondent could not invoke the Constitutional jurisdiction and the High Court could not have issued a writ declaring the order of termination of his service as without lawful authority and of no legal effect.

10. The High Court has not examined at all the jurisdictional aspects of the case but concerned itself entirely with the merits. In holding that the expression termination of service used in Rule 23.4 had to be given the restricted meaning, the High Court has reads words of limitation which are not there. The expression `authority competent to terminate service' is wide enough to include within its connotation the authorities which can put to an end the employment either by ordering dismissal, or by ordering removal or by terminating probation or terminating the service by notice or without notice. By restricting the meaning of this expression, the High Court has read the words `by notice or without notice' after the words `terminate the service'. There was no justification for doing so because the generality of the words could not be inhabited or controlled when a there was nothing in the context to require it. On the contrary, the context required that a wider meaning should be attributed to the expression `authority competent to terminate service' by reading it as `by any means whatsoever'. Where the termination of service is without any accusation, without any inquiry and without any stigma, the power exercised is lesser in degree and content than the power of dismissal on finding of misconduct. The power of dismissal and removal having been delegated to the Chairman, it could not be held that he did not qualify or satisfy the requirement of `authority competent ,to terminate service'. As he was the competent authority/person to do so and the termination of service was without any stigma or accusation, the same could not be challenged as violative of the contract of employment governed by Rule 23.4.

11. For the reasons given, this appeal is accepted, the writ issued by the High Court is recalled and the Constitution petition filed by the respondent stands dismissed with no order as to costs. AA./S‑565/S Appeal accepted.