1993 PLP (C (PLC(CS))

25‑7‑1984."

7. Mr. Ali Sibtain Fazli, learned counsel for the petitioner, argued that Regulation 13(1) of the Staff Service Regulations, 1961, has wrongly been applied to the case of the petitioner, in that, it has been removed from the statute book by an amendment to the Agricultural Development Bank Ordinance (IV of 1961) on February 6, 1973, by virtue of the Agricultural Development Bank (Amendment) Act (XII of 1973). In this amended Act section 39 of the Ordinance No. IV of 1961 was amended and a proviso was added to the effect that no regulation made with respect to the matters mentioned in clauses (e) and (f) pertaining to amongst other things disciplinary and service matters of the Bank shall take effect until it has been approved by the Federal Government. It was argued that on the basis of the aforesaid amended provision, the Bank made Regulations called the Agricultural Development Bank of Pakistan Officers Service (Efficiency and Discipline) Regulations, 1975 and got the same approved by the Federal Government and, therefore, these regulations alone regulate the service of all the officers of the Bank. As regards Service Regulations of 1961 (supra), it was argued that the Federal Government never accorded any approval to the said regulations and; therefore, the same were non‑existent in the eye of law and the impugned order of termination passed thereunder is of no legal validity.

8. In order to appreciate the aforesaid submissions it would be advantageous to reproduce the provisions of Regulation No. 13 of the Agricultural Development Bank (Staff) Service Regulations, 1961 and the provisions of sections 30 and 39 of the Agricultural Development Bank Ordinance, 1961, Regulation 13 reads as under:‑‑ "

13. Termination of service.‑‑‑(1) The Bank may dispense with the services of an employee other than an employee on probation or a temporary employee, by giving 3 months' previous‑ notice in writing or 3 months of 30 days' substantive pay in lieu thereof, to an employee in Class I or Class II and one month of 30 days' previous notice or 30 days' substantive pay in lieu thereof to an employee in Class III and Class IV. In the case of a temporary employee of any class, such notice or pay in lieu shall be for a period of one month of 30 days. The power to terminate the service of an employee shall be exercised by the competent authority. Such termination of service of any employee is in the absolute discretion of the Bank and it shall not be necessary to assign any reason for the termination and the employee shall not be entitled to any form of compensation for termination of service. (2) The Bank reserves the right of dismissing an employee without any notice if he is found guilty of misconduct, breach of trust or neglect of duty. (3) Nothing in sub‑regulation (1) shall effect the right of the Bank to make an employee retire or to dismiss an employee without giving notice or pay in lieu thereof in accordance with the provisions of sub‑regulation (4) and regulation 95 or its right to determine the service of an employee without notice or pay in lieu thereof on his being certified by the authorised medical attendant to be permanently incapacitated for further continuous service in the bank. But an employee whose service is determined on his being so certified may ask for medical examination by a Board of Doctors constituted by the Chairman and by the General Manager, East Pakistan in case of employees in East Pakistan: Provided that an employee who is made to retire or is dismissed or whose service is terminated under this regulation shall have the right of making an application for review, to the competent authority. (4) An employee in the service of the Bank shall retire from service‑‑ (a) on such date after he has completed twenty‑five years of service as the competent authority may in the interest of the Bank, direct; (b) if he has completed before, or completes within a period of six months from the date of publication of sub‑regulation (4) in the Gazette of Pakistan, the fifty‑fifth year of his age, on such date after such completion, being a date within the said period, as the Competent Authority may direct or in the absence of such direction, on the expiry of the said period or on the completion of the sixtieth year of his age, whichever be earlier; or (c) in any other case, on the completion of the fifty‑fifth year of his age. (5) Notwithstanding anything contained in clause (b) or clause (c) of sub- regulation (4) the competent authority may extend the service of an employee beyond, or re‑employ an employee after, the date of his retirement for such period and on such terms and conditions as it may deem fit: Provided that the service of an employee which has been extended or of an employee who has been rd‑employed, shall to liable to termination at not less than three months' notice on either side or upon payment of three months' salary in lieu thereof; and such termination shall not be deemed to be removal or dismissal. (6) ....................................................................... ................... (7) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...

9. The provisions of sections 30 and 39 of the Ordinance, as amended in 1973, are as follows:‑‑ "

30. Appointment of officers and advisors.‑‑‑The Bank may appoint or employ such persons including advisors as it considers necessary for the efficient performance of its operation on such terms and conditions as may be prescribed by regulations.

39. Regulations.‑‑‑(1) The Board may make regulations not inconsistent with this Ordinance or 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 and the efficient conduct of the affairs of the Bank. (2) Without prejudice to the generality of the provisions of subsection (1), the regulations may provide for:‑‑ (a) ...................................................... (b) ...................................................... (c) ...................................................... (d)...................................................... (e) the recruitment of the employees of the Bank, the terms and conditions of their service, the constitution and management of Group Provident Funds for the employees of the Bank and all other matters connected with any of these things; (f) the duties and conduct of employees and agents; (g) .................................................... (h) ....................................................... Provided that no regulation made with respect to the matters mentioned in clauses (e) and (f) shall take effect until it has been approved by the Federal Government:

10. The effect of insertion of the proviso to subsection (2) of section 39 of Ordinance was considered in the case of Anwar Hussain v. The Agricultural Development Bank of Pakistan and others (1992 SCMR 1112). It was held:‑‑ "Regulations relating to terms and conditions of service of the employees including the termination, were subjected to the approval of the Federal Government. Therefore, if the proviso was attracted the contracting parties were not free in the matter of contract of service and the rule laid down excluding the principle of master and servant, because of the statutory rule placing fetters upon the freedom of parties, would coming into operation:' It was further held: "After coming into force the Amendment Act (XII of 1973) on 6th February, 1973, with the approval of the Federal Government Regulations relating to the Efficiency and Discipline of employees were made which are called the A.D.B.P. Officers (Efficiency and Discipline) Regulations, 1975 which are more or less on the same pattern as the Efficiency and Discipline Rules governing the civil servants. These Regulations repealed Regulation 95 in Chapter VI of the Service Regulations of 1961" (the latter Regulation No. 95 related to Efficiency and Discipline of employees). (The words in the parenthesis are mine). It was further observed:‑‑ "The proviso to subsection (2) of section 39 of the Ordinance as appended by means of amendment of the law in 1973 plainly stipulates that the Regulation made under clauses (e) and (f) of the said subsection can come into force only upon and from the date of the approval accorded by the Federal Government. Therefore, such Regulations will be inoperative or ineffective until the condition laid down, namely, the approval of the Federal Government, is fulfilled."

11. A question was raised whether the amendment made in 1973 by its own force renders the Service Regulations of 1961 which were already in effect and which fell within the purview of clause (e), inoperative from the date when the amendment came into force on 6th February,1973. It was held:‑‑ "It will be difficult to construe the provisions of the proviso to destroy the Regulations which had already come into force prior to the amendment, as obviously that would amount to giving retrospective operation to the provisions of the Amendment Act. It, therefore, follows that the remaining Regulations of 1961, other than the substituted Regulation 95, having come into force prior to the 1973 amendment, when no prior approval of the Federal Government was necessary, shall continue to remain in force and operative notwithstanding the amendment of subsection (2) of section 39."

12. There is no cavil with the proposition that 1961 Regulations were not promulgated with the approval of the Federal Government, in that, at the time of its promulgation no approval of the Federal Government was necessary under section 39 of the Ordinance. The Board was competent to make Regulations of its own to provide for matters, which it thinks necessary or expedient for giving effect to the provisions of the Ordinance and the efficient conduct of the affairs of the Bank. As held in Anwar Hussain (supra) "For all intents and purposes the Service Regulations of 1961 are unalterable without the prior sanction of the Federal Government .."The result is that Regulation 13 of Service Regulations, 1961, has been validly promulgated and still holds the field.

13. In Anwar Hussain's case (supra), it was further observed:‑‑ "Regulation 13 (of 1961 Service Regulations) (the words in the parenthesis are mine) vests in the Bank a power to dispense with the service of any employee with prior notice of the prescribed period or pay in lieu thereof and it has been categorically declared in this Regulation as under:‑ Such terminating of service of an employee is in the absolute discretion of the Bank and it shall not be necessary to assign any reason for the termination and the employee shall not be entitled to any form of compensation for termination of service'." It would, therefore, be seen that Regulation 13 of Service Regulations of 1961 deals with termination of service, while Regulation 95 of 1975 Regulations with efficiency and discipline. These are two distinct powers available to the competent authority and it is for it to decide whether in a given case action should be taken against Regulation 13 or Regulation 95 of 1975 Regulations. The same view was taken in the case of Agricultural Development Bank of Pakistan and 2 others v. Muhammad Sharif (1988 SCMR 597). The relevant passage at pages 600 and 601 of the precedent case reads thus:‑‑ "It is clear from these two distinct provisions of Staff Service Regulations applicable to the respondent that two distinct powers were available to the competent authority and there was no bar expressed or implied to the competent authority invoking either or any one in particular. In the case of Abdul Karim v. West Pakistan Province (PLD 1956 SC 298) which none of the Courts has noticed, it was held by this Court that an employee whose services could be terminated on one month's notice could on the basis of a notice be removed though charge‑sheet had been served with regard to his misconduct and an enquiry was in the offing. It was held that it is open to the dismissing authority not to have recourse to the power of dismissal which is a drastic step and which affects subsequent employability of this public servant, but to terminate service on one month's notice in accordance with the conditions of his employment. Again in the case of Water and Power Development Authority v. Muhammad Ali (1987 SCMR 261), it was held that if the law provides the appellate authority with two different modes for terminating the services of its employees the mere fact that it has, to begin with, elected to act under one mode would not in the absence of a bar in the law preclude it from adopting the second mode at a later stage'."

14. When faced with this, learned counsel for the petitioner vehemently argued that the impugned order of termination was mala fide and was, therefore, liable to be quashed. He also placed reliance on the observations in the case of Anwar Hussain (supra):‑‑ "unless something by way of a guarantee of tenure of service is provided by the Statute or the Regulations framed thereunder or mala fides is alleged, no employee can maintain a suit for reinstatement in service without showing the violation of such Statute or Regulations.

15. Raja Muhammad Akram, learned counsel for the respondents, denied the allegations of mala fides. He took the plea that the petitioner himself admitted in his letter dated 17‑4‑1984 that "the shirt of Mr. Atta Muhammad was put off and there were no signs of majority in his armpits and "the armpits and place between legs of Mr. Atta Muhammad were found hairless giving no signs of majority". The plea taken in the parawise comments by the respondents was that the charge of demanding bribe from the applicants for loan was not proved against the petitioner, but there was no justification for his uncivilised and unwarranted act in taking off the clothes of Mr. Atta Muhammad for ascertaining his having attained the age of majority.

16. Raja Muhammad Akram strongly advocated that the power of the Bank to terminate the services of its employees without assigning reason and prior notice of the prescribed period or pay in lieu thereof emanates from Regulation 13 of 1961 Regulations. The Chairman exercised this power and terminated the services of the petitioner under the aforesaid Regulation, which is not open to scrutiny in these proceedings as held in the case of Muhammad Sharif (supra).

17. Mr. Aftab Iqbal Chaudhry, the learned Deputy Attorney‑General, also supported Raja Muhammad Akram. I have heard the learned counsel for the parties at some length, perused the available material and the departmental files with their assistance.

19. As to alleged mala fides, the precise submission was that the Bank under the cloak of Regulation 13(1) punished the petitioner for alleged misconduct which could be done only if he had been found guilty in the proceedings after holding a due enquiry in accordance with the provisions of ADBP Officers Service (Efficiency and Discipline) Regulations, 1975.

20. The Superior Courts of this country have consistently taken the view that if the law provides the competent authority with two different modes for terminating the services of the employees, there is no bar to the competent authority invoking either or any one in particular, unless the impugned order is shown to be mala fide either in fact or in law and where absolute discretionary power of removal from service had been conferred on a statutory corporation or body, without assigning any reason, exercise of such power to be immune from judicial scrutiny, must be accompanied by absence of taint of mala fide, or guarantee of tenure of service available under the statute or the regulations framed thereunder having the force of statute. The same view was reiterated by the Honourable Supreme Court in the case of Karachi Development Authority and another v. Wali Muhammad Khan and others (1991 SCMR 2434), after an elaborate discussion of the previous case‑law on the subject as contained in Dr. Abdul Hafeez v. Chairman, Municipal Corporation, Lahore and others (PLD 1967 Lah. 1251); Muhammad Salimullah v. Trustees of the Port of Karachi (PLD 1975 Kar. 758). R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146); The Lahore Central Cooperative Bank Ltd. v. Pir Saifullah Shah (PLD 1959 SC (Pak.) 210); Salahuddin v. Frontier Sugar Mills and Distillary (PLD 1975 SC 244); Chairman, East Pakistan Development Corporation v. Rustam Ali (PLD 1966 SC 848); Shahid Khalil v. Pakistan International Airlines Corporation. Karachi (1971 SCMR 568); Muhammad Aslam v. National Shipping Corporation (PLD 1979 Kar. 246); Evacuee Trust Property Board v. Muhammad Nawaz (1983 SCMR 1275); Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi (PLD 1984 SC 170); Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194); WAPDA v. Muhammad Arshad Qureshi (1986 SCMR 18) and Agricultural Development Bank of Pakistan v. Muhammad Sharif (1988 SCMR 597). Also see Anwar Hussain v. Agricultural Development Bank of Pakistan (1992 SCMR 1112) discussed above.

21. Let me now examine whether the impugned order is mala fide and it tantamounts to taking away the guaranteed tenure of service of the petitioner without any reason. There is no cavil with the proposition that where allegations about an employee's misconduct existed in the office noting, but the orders terminating his service do not contain any charge or stigma against him it does not ipso facto lead to the conclusion that his services were terminated by way of penalty or it was tainted with mala fides. The question of mala fides is to be decided with reference to facts and circumstances of each case and in the light of the test laid down by the Superior Courts in, among others, the teases reported as The Secretary, East Pakistan Industrial Development (Corporation, Dacca v. M.D. Sirajul Haque (1970 SCMR 398); Abdul Karim v. West Pakistan Province (PLD 1956 SC (Pak.) 298), Noorul Hassan and others v. The Federation of Pakistan (PLD 1956 SC (Pak.) 331) and Water and Power Development Authority v. Muhammad Ali (1987 SCMR 261).

22. Here it is established on record that on receipt of the orders from the learned Ombudsman, the respondent No. 2 made a note that suitable action be taken against the petitioner and in this connection he ordered an enquiry by the Director Vigilance E, Jhang, who after holding an enquiry, although came to the conclusion that the place between the legs of Atta Muhammad had not been checked by the petitioner, yet for reasons recorded in his report, recommended that the petitioner be proceeded against under ADP Officers Service (Efficiency and Discipline) Regulations, 1975. It was stated by the Executive Director that disciplinary action was being initiated for misconduct and other irregularities pointed out by the Director Vigilance. On his report the Chairman has remarked very strongly feel that it is necessary now to make some cases as examples so that the staff may take the message that the management can act forcefully in the cases of corruption and/or highhandedness and rudeness with clients. I would, therefore, like to terminate the services of this officer under section 13(1)." The record also shows that the Bank contemplated to terminate the services of the petitioner but the note of the Chairman stated that his services should be terminated under section 13(1) of the ADBP Staff Service Regulations of 1961. The impugned order of termination is based on the view of the Chairman, without assigning any reason, although reasons were there on the file.

23. The Bank record produced before the Court clearly establishes that the impugned order was passed on the basis of the findings recorded by the learned Ombudsman and the enquiry report prepared by the Director Vigilance to which the petitioner was not a party and he was never associated with those proceedings at any stage. The Ombudsman's Secretariat, at whose instance the impugned action was taken, recommended to the Chairman of the Bank to reconsider the decision of termination of the petitioner as the same was considered to be harsh, having regard to the circumstances of the case respondent No. 2 never bothered to reconsider it and merely consigned the letter to record with the remarks "Seen. No action required This was wholly unwarranted, in that, if respondent No. 2 did not agree with the direction issued by the learned Ombudsman, the appropriate course was to make a further reference to him explaining reasons for not acting on his recommendation or to file a representation before the President of Pakistan under Article 32 of President's Order No. 1 of 1983, Establishment of the 'Office of Wafaqi Mohtasib (Ombudsman) Order, 1983. This was never done and, therefore, it cannot be said that respondent No. 2 passed the impugned order bona ride.

24. It was held in Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151), Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), Abdul Baqi Baluch v. Government of Pakistan (PLD 1968 SC 323); Lt.‑Col. Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98), that in order to establish a case of mala fides some specific allegation is necessary and it must be supported by some prima facie proof to justify the Court, to call upon the other side to produce evidence in its possession, in that, there is, to start with, a presumption of regularity with regard to all official acts, and unless that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. Here the allegations of mala fides have been pleaded with particularity in the writ petition. It is supported by an affidavit but no counter‑affidavit has been filed by the respondents to rebut the allegations made therein. The respondents have not even cared to file the written statement. However, their parawise report states "It is wholly incorrect that the action has been taken against Mr. Akhtar Hussain for the reasons produced in the petition. Further allegation of mala fides is vehemently rebutted". The allegations levelled in the writ petition coupled with the documents placed on record made out a prima facie case of mala fides and on that basis, the respondents were called upon to justify the impugned action, but they failed.

25. The case of Osman Ghani v. Federal Service Tribunal (1986 SCMR 1875) is fully attracted to the facts of the present case. The precedent case was of an Executive Engineer (Stores) of the Water and Power Development Authority (WAPDA). The employee was served with a charge‑sheet alleging that the fire took place in the premises of the Authority was a result of his acts of omissions and commissions. The charge‑sheet was issued under the West Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1971. The employee was called upon to submit his explanation, which he did. An enquiry was held but no action was taken in consequence thereof. Subsequently, he was intimated that the Authority has decided to remove him from service on payment of 30 days' pay in lieu of 30 days' notice in exercise of the powers conferred on it under section 17 (1‑A) of the West Pakistan WAPDA Act, 1958. The employee approached the Service Tribunal for redress on the ground that the WAPDA had started action under the Efficiency and Discipline Rules, but finding that the allegations against the petitioner therein could not be proved full back on the provisions of section 17(1‑A) for removing him. The Tribunal repelled the contention. On appeal, the Supreme Court, after noting its earlier decision in WAPDA v. Muhammad Arshad Qureshi (1986 SCMR 18) accepted the appeal on grounds of mala fide in law with the following observations‑‑ "Thus, if while passing the order of removal the Authority is found to have exercised its power not bona fide, but for some extraneous consideration, such an order would stand vitiated. We are of the opinion that the impugned order, dated 9‑10‑1976 passed by the Authority was mala fide in law and must be set aside. The judgment of the Service Tribunal, which affirmed the same, cannot also, therefore, be sustained."

26. It is true that in case of termination simpliciter of an employee in accordance with the terms and conditions of his service, the legality of the termination would not turn on whether the employer heard the employee before dismissing him. It is well‑established that where an office is held during pleasure and not governed by any statutory rules regulating his employment of service, the person having the power of removal need not have anything against the employee. So, he need not give any reasons.

27. In the case in hand, the impugned order of termination is not shown to have been passed by the competent authority by application of his independent mind, but its sole basis was the learned Ombudsman's order. The petitioner being an Officer Grade‑11, the Executive Director (Admn.), was the competent authority at the relevant time to initiate disciplinary action or to impose major or minor penalties vide Circular No. 21/81, dated 29‑3‑1981, issued by the Chairman. It, therefore, cannot be said that the termination of the petitioner under the orders of the Chairman, who was the appellate authority, could be treated as bona fide. Thus visualised, before any penalty was inflicted upon him by removal from service in the garb of termination, he was entitled to know what was alleged against him and to submit his explanation. Failure to do so has resulted in grave miscarriage of justice. Clause (a) of Regulation 5 of ADBP Officers Service (Efficiency and Discipline) Regulations, 1975, also makes it incumbent upon the Enquiry Officer or Enquiry Committee to inform the action proposed to be taken against an employee and the grounds of the action and also to give him reasonable opportunity to show cause against that action. Admittedly this procedure was not followed and, therefore, the impugned action cannot be treated as bona fide. The ratio laid down in the case of Osman Ghani (supra) is fully attracted to the facts of this case.

28. There is also great force in the submission of the learned counsel for the petitioner that Regulation 13(4) of 1961 Regulations guarantees tenure of service up to the age of superannuation. Regulation 14 of the Agricultural Development Bank Employees (Pension and Gratuity) Regulations, 1981 also guarantees superannuation pension to an employee on his attaining the age of superannuation and, therefore, the impugned order has the effect of deprivation of right to continue up to the age of superannuation, and claim of superannuation pensionary benefits without notice or fair right of hearing. See Pakistan and others v. Public‑at‑large and others (PLD 1987 SC 304), wherein it was held:‑‑ "It is common principle which governs the administration of justice in Islam that in case of liability with penal or quasi‑penal consequences and/or deprivation of basic rights a notice as well as an opportunity of hearing, are of absolute necessity. This by itself has to be recognised as a basic right The denial of these safeguards for doing justice would amount to Zulm and Ziaditi against oneself as also the victim." For the reasons stated above, the impugned order is hereby declared as without lawful authority and of no legal effect. The result is that the petitioner shall be deemed to be in service as if his services were never terminated. The writ petition is accepted, but there shall be no order as to costs. A.A./A‑416/L Petition accepted.