1943 PLP (C (PLC(CS))

(iii) R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146); (iv) Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan (PLD 1974 SC 393); (v) Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194); (vi) Ghulam Hussain Paryani v. Karachi Port Trust and others (1992 MLD 1128); (vii) Hussain Ali Chandio v. The Secretary, M/O Communications, Islamabad and others (1992 SCMR 32); (viii) Muhammad Gulzar v. Chairman, Karachi Port Trust and others (1988 PLC (C.S.) 137). Mr. Naimur Rehman, learned Standing Counsel appearing for the respondent No. 2 (Federal Government) argued that the Federal Government always follows the recommendations made by the respondent No. 1, as every resolution passed by the Board of Trustees was granted/sanctioned by the Federal Government. The main thrust of learned counsel for the respondent No. I was that the relationship between the petitioner and the respondent No. 1 was regulated by the Law of Master and Servant. In this connection cases relied upon require to be discussed. In the case of Lt.‑Col. Shujauddin Ahmed (1971 SCMR 566) an application for interim injunction was disposed of. In said case the stand taken before the Hon'ble Supreme Court was that the petitioner being employee of Oil and Gas Development Corporation was entitled to the protection given by Article 177 of the Constitution of Pakistan, 1962 because said Corporation was under the executive control of the Government of Pakistan and service in the Corporation was service of Pakistan within the meaning of Article 242 of the Constitution of Pakistan, 1962. In reply to such contention it was held that employees of such statutory Corporations do not acquire the status of Government servants nor are the guarantees given by the Constitution applicable in their case and that no temporary injunction can be granted in a case where contract of service cannot be specifically enforced according to the law of Master and Servant. It was not argued in the cited case if relationship between the petitioner of said case and his employer was governed by statutory rules of service. In the case of Shahid Khalil (1971 SCMR 568), it was held that an employee of Pakistan International Airlines Corporation was not entitled to protection of Article 131 of the Constitution of Pakistan, 1956 and no writ of Mandamus can be issued for restoration to his office. It was not mentioned in the said judgment if services of petitioner of said case were regulated by statutory rules of service. In the case of Husain Ali Chandio (1992 SCMR 32), the points at issue were whether removal of an employee from service of KPT had taken place in public interest as required by the Corporation Employees (Special Powers) Ordinance, 1978 and whether the Review Board constituted under the said Ordinance of 1978 had acted legally and justly in accordance with the mandate entrusted to them. In the case of Muhammad Gulzar (1988 PLC (C.S.) 137) an employee of KPT challenged his retirement from KPT service to be illegal and in contravention of section 23(1) of the Karachi Port Trust Act on the ground that such retirement could be ordered only by the Board of Trustees and not by the Chairman. Such plea was not accepted because the order about compulsory retirement was sanctioned by the Board of Trustees under a resolution and there was no illegality about it. In the case of Ghulam Hassan M. Paryani (1992 MLD 1128), the petitioner was appointed as legal advisor of KPT not by the KPT or by the Federal Ministry having administrative control over the KPT but by the Federal Ministry of Justice. It was held that sub‑rule (1) of Rule 14 of the Rules of Business, 1973 inter alia requires other Divisions of the Pakistan Government to consult the Law Division before appointment of a legal" advisor but does not provide that the Law Division can give a binding direction to any other Division to appoint a legal advisor. It was also held that even section 79‑A of the Karachi Port Trust Act would not help the petitioner. In the case of R.T.H. Janjua (PLD 1974 SC 146), it was held that the Constitutional safeguards available to the generality of civil servants against arbitrary dismissal or removal from service are not available to the servants of a registered company or a statutory corporation where general law of master and servant is applicable and the only remedy available to the aggrieved servant in such cases is to sue for damages for wrongful dismissal and not for a writ of mandamus or certiorari. In the cited case distinction was drawn between a statutory corporation established by a statute and an incorporated company and it was held that a writ petition was not competent by an employee of a statutory corporation unless he could be regarded as a holder of a public office. The case of R.T.H. Janjua (PLD 1974 SC 146) was referred in the case of Syed Akbar Ali Bokhari v. State Bank of Pakistan and others (PLD 1977 Lah. 234) where the view taken was that the theory of master and servant or of pleasure of the master to hire and fire at will, cannot be competently raised when the conditions of the service of an employee are regulated by the terms of the statute and the rules framed thereunder, and that where the statutory fetters existed to the free operation, working or application of that theory or concept, the theory of "master and servant" was inapplicable. Case of R.T.H. Janjua was also considered in the case of the Evacuee Trust Property Board and another v. Muhammad Nawaz (1983 SCMR 1275) where it was observed that in the case of R.T.H. Janjua, the powers of the master to deal with the service matters of his employee were not regulated by the statutory rules, whereas in the Muhammad Nawaz's case the subject was covered and controlled by regular rules on the subject in the form of "Efficiency and Discipline Rules" which were adopted by the Evacuee Trust Property Board, as its own rules by means of a resolution passed in a meeting of May, 1969. In the case of Muhammad Nawaz (1983 SCMR 1275) it was further observed that where statutory rules govern the service conditions of an employee, then the pleasure of the master stands surrendered to the extent that the matter is covered by the relevant rules. Case of R.T.H. Janjua (PLD 1974 SC 146) was also referred in the case of Principal, Cadet College, Kohat v. Muhammad Shoab (PLD 1984 SC 170) in which it was held that where the conditions of service of an employee of a statutory body are governed by the statutory rules, any action prejudicial taken against him in derogation or in violation of such rules can be set aside by a writ petition. At the same time it was further held in the same case that where terms and conditions of service of an employee are not governed by statutory rules but only by regulations, instructions or directions, which the institution or body in which he is employed, has issued for its internal use, any violation thereof will not, normally, be enforced through a writ petition. After taking such view, the Supreme Court of Pakistan went further to clarify that holding of a "public office" by an employee was relevant only in cases where a writ in the nature of quo warranto is sought whereby a person holding a public office may be required to show the authority of law under which he claims to hold a public office. It was reiterated that besides the aggrieved employee of a statutory body being holder of a "public office", the more important question would be, whether the conditions of his service were governed by any statute and/or a statutory rule. In this way the view taken in the case of R.T.H. Janjua (PLD 1974 SC 146) has been elucidated and clarified in the case of Principal, Cadet College, Kohat (PLD 1984 SC 170). In the case of Anwar Hussain (PLD 1984 SC 194) it was held that if the relationship of employee and employer is result of a contract freely entered into by the contracting parties then the principle of master and servant will apply, but such principle will not apply if some law or statutory rule intervenes and places fetters upon the freedom of the parties in the matter of the terms of the contract. It was also held that even where the employee is not a civil servant but there are statutory safeguards governing his relationship with the employer and placing restrictions on the freedom of the parties to act, the general law of master and servant will not apply, and in such cases the employer would be bound to follow the procedure provided for in the statute or the statutory rules before terminating the service of the employee. In the absence of conformity to such procedure, the termination of service would not be clothed with validity and the employee will be entitled to an action for his reinstatement, as further held. This authority helps the petitioner rather than the respondent No.

1. Lastly in the case of Muhammad Siddiq Javaid Chaudhry (PLD 1974 SC 393) there was discussion about termination of services of a probationer civil servant. In this context, it was held that a probationer is a person who is taken in service subject to the condition that it will attain a sure footing only if during the period that he is on probation he shows that he is a fit person to be retained in service. It was also held that if the service of a probationer is terminated on the ground of unsatisfactory work, that will not amount to dismissal or removal from service and such termination would be in terms of the contract or the rules made by the Government. But if the service of a probationer is terminated on the ground of misconduct that will amount to removal or dismissal and the probationer would be protected by Article 177 of the Constitution of Pakistan, 1962, as further held. In the instant case the petitioner at no stage claimed that he was entitled to any Constitutional protection. The Constitutional protection provided to the civil servants under the Constitution of 1962 has been done away with and presently it is only Article 212 of the Constitution of Pakistan, which gives some sort of protection to the civil servants. The authorities in respect of Constitutional protection to the civil servants are not applicable to this case where no such protection has been claimed nor can be claimed. Mr. Rashid A. Akhund, learned counsel for the petitioner cited the following cases: (i) Mrs. M.N. Arshad and others v. Miss Naeema Khan and others (PLD 1990 SC 612); (ii) Anwar Hussain v. Agricultural Development Bank of Pakistan and others (1992 SCMR 1112); (iii) Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194); (iv) The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170); (v) Muhammad Salimullah v. Trustees of the Port of Karachi and others (PLD 1975 Kar. 758); (vi) Raziuddin v. Chairman, Pakistan International Airlines Corporation and others (PLD 1992 SC 531). In (i) above history of inception of Corporations has been given and it has been observed that in Pakistan the Corporations are not created by a Royal Charter but they are incorporated either by a statute like the Karachi Port Trust incorporated under the Karachi Port Trust Act or by registration under a statute like companies under the Companies Act or associations under the Societies Act. In said case it was also observed that where relationship between a Corporation and its employees is that of a master and servant no writ petition would be competent against the order of wrongful termination of service or dismissal from the service, except where there has been a violation of any provision of law or of any statutory rules of service, in which case an employee of a Corporation can maintain a writ petition. In (ii) above it was held that it is only in case the conditions of service of an employee are regulated by terms of the statute and the rules framed thereunder, that it can be held that there are statutory fetters, whereby master's pleasure is deemed to have been surrendered to the extent that master is covered by relevant statutory rules. In the same case it was also held that violation of certain paragraphs of ADBP Manual of Instructions could not be made a foundation for a suit for declaration because breach of ADBP Manual of Instructions did not furnish a statutory guarantee, to exclude concept of Master and Servant. In (iii) above cited by respondent No.l also and partially discussed, it was observed that where a corporation is set up by a statute without the Government reserving to itself the power to regulate the conditions of service of the employees under the corporation and without the statute prescribing any condition but leaving the matter entirely in the discretion of the corporation, with power to frame rules and regulations in that regard then the corporation must be held to be the sole arbiter in the matter of prescribing the terms and conditions of its employees. In such a case the employee cannot claim any legal character within the meaning of section 42 of the Specific Relief Act and the principle of master and servant will fully apply to his relationship with the corporation, as further held. This was also case of A.D.B.P. The case of Principal, Cadet College, Kohat (PLD 1984 SC 170) at (iv) above has already been discussed. Note is to be made of the observations made in the said case that apart from the question whether the aggrieved employee of a statutory body was a holder of a "public office" the more important question will be, whether the conditions of his service were governed by any statute or statutory rules and if so whether the statute or any statutory rule was disregarded while the impugned action was taken. In the case of Muhammad Salimullah (PLD 1975 Kar. 758), a KPT employee claimed that his compulsory retirement was in breach of mandatory provisions of law and relevant rules. After detailed discussion it was held that since KPT was not competent to retire its officers without Central Government's approval, the rights of the parties in such circumstances, could not be said to be governed exclusively by the law of master and servant and that remedy of writ was available to responsible officers of local authority managing great harbour collecting rates, tools and framing bye‑laws. For taking such view, a bench of this Court took note of the fact that the law of master and servant is based on the principle of freedom of contract, which was not available to the KPT as employer, because for removing or retiring any employee they had to seek approval of the Central. Government under section 24 of the KPT Act. In (vi) above, it was held that the relationship between a Corporation and its employees is that of master and servant and in case of wrongful dismissal of an employee, the remedy is to claim damages and not the remedy of reinstatement but this rule is subject to a qualification namely if the relationship between a Corporation and its employees is regulated by statutory provisions and if there is any breach of such provisions, an employee of such a Corporation may maintain an action for reinstatement. This appears to be the latest authority on the point. Reference may also be made to the case of Ghulam Mustafa and others v. Ulfat Hussain Qureshi and others (1979 PLC 446) where it was observed as below: "The mere fact that a person is not a civil servant of the State and it not entitled to constitutional guarantees would not always lead to the result that he is governed by .the ordinary and general law of 'Master and Servant.' Wherever there are statutes or statutory rules governing the relationship between an employer and employee and there are restrictions placed in such provisions, which are contrary to the concept of the ordinary law of `Master and Servant', it is those statutory provisions and rules which would apply and not the so‑called general law of `Master and Servant'. In such a case the employer would have the power to terminate the employment and initiate other proceedings only in the manner and in the circumstances in which the statute or the rules clothe it with authority to do so." In the case of Evacuee Trust Property Board v. Muhammad Nawaz (1989 PLC (C.S.) 897) it was observed that the principle that the disputes between a statutory Corporation and its employees are governed by the law of Master and Servant, does not apply to a case, where the relations between the employer and the employees are governed by the statutory rules. It was also observed in the said case that where removal of an employee of a Corporation is ordered in violation of provisions of statutory rules a civil suit by such employee would be competent, since rules of service governing such employee are statutory rules. The case of Muhammad Nawaz went to the Supreme Court of Pakistan by way of a civil petition for leave to appeal, filed by the Evacuee Trust Property Board. While dismissing said petition, the Supreme Court of Pakistan under the judgment reported in 1983 SCMR 1275 observed that where statutory rules govern the service conditions of an employee, then the pleasure of the master stands surrendered to the extent the matter is covered by the relevant rules. Differentiating the case of R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146) from the case of Muhammad Nawaz, it was pointed out that in former case the powers of the master to deal with the service matters of his employee were not regulated by statutory rules, as against the latter case where the subject was covered and controlled by regular rules on the subject in the form of Efficiency and Discipline Rules, adopted by the Evacuee Trust Property Board, as its own rules by means of a proper resolution. In the cited case of Muhammad Nawaz the Supreme Court of Pakistan declined to interfere with judgment of Lahore High Court affirming decreeing of Muhammad Nawaz's suit for declaration that his removal from service of the said Board was illegal in absence of any show cause notice and without following the rules mentioned above. In the instant case, learned counsel for the parties did not make any effort to address us on the point, whether statutory rules existed governing employment of employees of KPT. However a photocopy of KPT Officers and Servants (Efficiency‑and Discipline) Rules, 1973 has been filed in the‑case. Said rules appear to have been framed in pursuance of section 22 of Karachi Port Trust Act, 1886 and approved under Board's Resolution dated 16‑5‑19$1 and under Government dl Pakistan, Ministry of Communications' letters dated 8‑12‑1982 and 3‑5‑1983. It has been mentioned inter alia in the said rules that they shall come into force from the date of Government sanction under section 22(8) of the Karachi Port Trust Act. Said rules having been prepared by the Board of Trustees' and having been sanctioned under a statutory provision of law, appear to be statutory rules. Moreover, we have before us a D.B. judgment in the case of Muhammad Salimullah (PLD 1975 Kar. 758) where it was held that the law of Master and Servant is based on the principle of freedom of contract, but that freedom of contract is not available between the Karachi Port Trust and its employees. That the rights of the KPT employees and the KPT are not governed exclusively by the law of Master and Servant. This observation was made by a learned D.B. of this Court while deciding a writ petition filed against Karachi Port Trust by one of its employees challenging his compulsory retirement. We cannot take a view different from the one taken in said case. Admittedly the Federal Government gave its approval under section 24 of KPT Act to the various resolutions of the Board of Trutees of KPT, by which the petitioner was appointed as Deputy Chief Electrical Engineer in BPS‑19, firstly on ad hoc basis, then on regular basis and was given six advance increments. After having approved Resolution No. 821 about appointment of the petitioner on REGULAR basis under a letter dated 14‑3 1990, the Federal Government after eight months issued another letter dated 10‑11‑1990 desiring the petitioner to be treated as PROBATIONER for one year from the date of regular appointment. It is open to question if a person can be placed on probation after his appointment on regular basis. Moreover, having once approved the Resolution No. 821 on 14‑3‑1990, the Federal Government could not have taken a different stand on 10‑11‑1990. Section 24 of the KPT Act empowers the Federal Government to approve or disapprove a resolution passed by the Board of Trustees of KPT. It is open to question if the Federal Government instead of approving or disapproving a resolution could direct an employee of KPT whose appointment was regularised, to be treated on probation. Under the normal service laws governing civil servants, the appointment on probation is always on initial appointment. Learned counsel for the respondent No. 1 did not point out any provision of law or service rule, by which the Federal Government can convert nature of employment of an employee of KPT from ad hoc or temporary or regular to probationary. As held in the case of Muhammad Siddiq Javaid Chaudhry (PLD 1974 SC 393) a probationer is a person who is taken in service subject to the condition that it will attain a sure footing only if during the period he is on probation he shows that he is a fit person to be retained in service. In the instant case the petitioner was not taken in service on 10‑11‑1990 when he was ordered to be treated as probationer. It is open to question if a person appointed on 30‑6‑1989, made regular on 7‑3‑1990 and made confirmed on s17‑6‑1990 could be placed on probation on 10‑11‑1990. There is force in the contention that before termination of service of the petitioner, proper procedure should have been followed as laid down under KPT Officers and Servants (Efficiency and Discipline) Rules, 1973. An order passed without observance of the provisions contained in said rules, cannot be sustained in law. The by‑passing of said rules cannot be justified on the ground that the petitioner was placed on probation when the act of placing the petitioner on probation was itself illegal. In this case the point at issue is about legality of the order terminating service of the petitioner. Legality of appointment of the petitioner through Placement Bureau established in office of the then Prime Minister could be examined if any of the respondents or an interested party had come to the Court against such appointment. In terminating service of the petitioner, the respondent No. 1 does not appear to have followed the KPT Officers and Servants (E&D) Rules, 1973. Consequently the impugned order cannot be sustained in law. For the aforegoing reasons we accept this Constitution petition and declare the impugned orders about termination of services of the petitioner to have been passed without lawful authority and to be of no legal effect. Consequently the petitioner be reinstated in service of the respondent No.

1. This does not stop, the respondent No. 1 from taking any action against the petitioner on the ground of alleged unsatisfactory service record but such action can be taken only in accordance with the law and the rules applicable to KPT employees. No order as to costs. A.A./A‑1374/K Petition accepted.