2003 PLP (C (PLC(CS))

6. The charge as brought against the petitioner, as reproduced above, contained three allegations, i.e. wrong tabulation of the result making bogus award lists of Roll No.22078 and 16017 and forging their result. From the inquiry report (of, the Authorized Officer) it is clear that the charge as brought against the petitioner was not proved as neither the petitioner had wrongly tabulated the result nor had made bogus award list, nor had forged the results. The Inquiry Officer found that Mr. Shahbaz Ahmed Khan had entertained bogus re‑checking award lists. Thus, the allegation for which the petitioner has been punished did not form part of the charge‑sheet and, therefore, he had no opportunity to defend himself against the said allegation i.e. that the petitioner issued duplicate result cards without proper and legal authority. Thus, the petitioner was condemned unheard besides clear violation of the aforesaid statutes by the Authorized Officer. I have also noticed that the competent authority i.e the Registrar only approved the recommendation of the Authorized Officer with a non‑speaking and sketchy order. Likewise the appellate order also does not show that the case of the petitioner was considered fairly and in accordance with the statutes of the University.

7. Reliance of the learned counsel for the petitioner on the judgment in the case of BISE Sargodha (supra) is inapt because in the said case the regulations were framed by the Board with the approval of the Government while in the present case, it was the University of the Punjab who had framed the regulations. On the question whether regulations framed by a statutory body by virtue of the powers derived from a statute were or were not statutory, I was able to lay my hands on a few judgments. In Khalid Pervez v. Punjab Seed Corporation (1989 PLC (CS) 444) the regulations framed by the Seed Corporation under section 25 of the Punjab Saeed Corporation Act, 1976 were under consideration. This Court recorded the following observations:‑‑ "This is not the case here as the Punjab Seed Corporation Act, 1976 does not provide that the Regulations to be framed by the Board are to receive approval of the Government. The Regulations have been framed by the Board in exercise of powers vesting under section 25 of the Act. These Regulations so framed have been duly published in the Punjab Gazette. The Regulations being the statutory instrument have the force of law. This being the position the petitioner is entitled to invoke Constitutional jurisdiction of this Court if any action prejudicial to the petitioner‑employee in derogation of or violation of any such rule or regulation is taken. In support of this view, reliance may be placed on Syed Akbar Ali Bokhari v. State Bank of Pakistan and 7 others PLD 1977 Lah. 234; Muhammad Yousuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275".

8. In the case of Indian Institute of Technology v. Managat Singh (1973 (2) SLR 46), the Delhi High Court made the following observations: "The word, "statutory" has always been used to include not only Parliamentary legislation but also subordinate legislation such as rules and regulations. The procedure of disciplinary action, basing the order on evidence and the giving of reasons for orders are not matters governed by the contract of employment. In fact, they are not relevant in a contractual relationship at all. If these regulations are, therefore, to have any effect, they must be regarded as law. Otherwise, they would be merely pious homilies. The contravention of the regulations is, therefore, a contravention of a statutory obligation and not of a contract."

9. In Sukh Dev Singh and others v. Beghatram Sardar Singh Raghwamshi and another (AIR 1975 SC 1331), the Indian Supreme Court expressed the following view:‑‑ . "

33. There is no substantial difference between a rule and a inasmuch as both are subordinate legislation under powers conferred by the statute. A regulation framed under a statute applies uniform treatment to every one or to all members of same group or class.. The' Oil and Natural Gas Commission, the Life Insurance Corporation and Industrial Finance corporation are all required by the statute to frame regulations, inter alia, for the purpose of the duties and conduct and conditions of service of officers and other employees. These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The regulations in the cases under consideration give the employees a statutory status and impose restriction on the employer and the employee with no option. to vary the conditions. An ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such contractual .relationship of master and servant is damages because personal service is not capable of enforcement. In cases of statutory bodies, there is no personal element whatsoever because of the impersonal character of statutory bodies. In the case of statutory bodies it has been' said that the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by statutory bodies is enforced by Courts by declaring dismissal in violation of rules and regulations to be valid. This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute. "

10. Reference may also be made to Multiline Associate v. Ardeshir Cowasjee (1995 SCMR 362) in which the Hon'ble Supreme Court was considering the Karachi Building Town Planning Regulations, 1979 framed by the Karachi Development Authority under the provisions of the Sindh Buildings Control Ordinance, 1979 and the following observations were made:‑‑ "Rules and Regulations are subordinate and delegated legislation deriving authority and legal cover from the provisions of the Ordinance." From the perusal of the above judgment it appears that if the source of subordinate legislation is found in the Statute, such rules or regulations are statutory.

11. In Lal Din v. Vice‑Chancellor and others (1994 PLC CS 880), while interfering against an. order directing compulsory retirement of an employee of the Punjab University, this Court made the following observations:‑‑ "Learned counsel for the respondents submitted that the writ petition is not maintainable because relationship between the petitioner and respondents/University is that of Master and Servant. This argument in the facts and circumstances of this case is not tenable. Admittedly the petitioner's service was governed and regulated by the Rules and Regulations framed by the University under the statute to which University owes its creation. According to these rules an employee is to continue in service unless removed in accordance with the disciplinary proceedings retire on attaining the age of super annuation which is 60 years. One of the criteria for determining whether relationship between the employer and the employee is that of Master and Servant, is whether the Master was , vested with absolute and uncontrolled power to relieve the employee from his duties at his whim which is not the case here. Since petitioner s service was governed by the rules and regulations, therefore, he was entitled to continue in service till the attainment of age of super annuation i.e. 1‑7‑1993, his date of birth being 1‑7‑1933 as such the argument has no force."

12. Since, however, I am bound by the dictum of the Hon'ble Supreme Court in the case of the University of Punjab (supra), I am of the view that even when the services of an employee of a statutory corporation are not governed by the statutory rules, an employer, amenable to Constitutional jurisdiction, is under a duty to act justly and fairly in accordance with the mandate of Article 4 of the Constitution. Even if the tenure of employees of statutory Corporation had been left at the total discretion of the employer, even then no exemption from application of the principles of natural justice could be claimed. And, in case of breach of the rules of natural justice corrective judicial process could be applied. Further, I am of the view that a statutory Corporation cannot be heard to say that it will be at liberty to violate its own rules and then fall back on the plea that the rules being non statutory, the Courts should shut their eves even if their action is arbitrary, .contrary to their own regulations, unjust and unfair.

13. The Master servant thereby only professes test the "King can do no wrong". To plead the said theory without regard to the particular facts of a case in respect of employment in the statutory bodies will amount to conceding absolute and totally unregulated discretion to the employer and may Therefore bring about miscarriage of justice. In Olga Tellis v. Bombay Municipal Corporation (AIR 1986 SC 180) right to livelihood has been considered as necessary attribute of life and was, therefore, recognized as a fundamental right. Therefore, an employee of a statutory Corporation cannot be removed under the cover of total and absolute discretion in violation of principles of natural justice. I may add that absolute discretion in a ruthless master and is wholly incompatible with the rule of law and the protection provided by Article 4 of the Constitution. That protection will become illusory if the Master‑Servant theory was to be indiscriminately applied in all cases of employment in statutory Corporations. There was a time in distant past when the public servants were to hold office during the pleasure of the President or the Governor and even the salary of a public servant was the bounty of the Crown. It will not be out of place to mention here the following observations of Mr. M. R. Kayni, J. (as he then was) in Atta‑ur -Rehman v. The Province of West Pakistan (PLD 1968 (WP) Lahore 185): "I add this note with a view to laying greater emphasis on the futility of the phrase "during pleasure" occurring, in Article 180, I had occasion to say in an Introduction to a Commentary (1) that members of the public services were said to hold office during the pleasure of the President or the Governor, as though any one could be dismissed by either of them al his pleasure. This, I said, was vicious phrase and a vestige of royal prerogative, for that there is no one so superior in a democracy that his pleasure can cause such havoc, and the Constitution should not have been encumbered with a misleading expression. Even in the home of royal prerogative, the Crown Proceedings Act, 1947 has made it possible for a Government servant to sue the Crown in tort. The old decisions like I.M. Lall's applied in the context of sovereignty, and sovereignty now belongs to "Allah Almighty alone," says the Preamble to the Constitution. Even if the Preamble had been less pious, the King- can‑do‑wrong theory was, by its very nature inapplicable to a democratic State."

14. In Muhammad Ashraf v. D.G. Multan Development Authority, (2000 PLC CS 796), a Division Bench of this Court interfered in the case of an employee of the Multan Development Authority and the plea based on the Master and Servant theory was replied. It was observed that the concept of Master and Servant does not emanate from any Constitutional provision or even a statute or some Injunction of Holy Quran and Sunah of Holy Prophet (PBUH), on the other hand, it was a common law notion and following observations of the Hon'ble Supreme Court in Muhammad Akram v. Ferman Bi (PLD 1990 SC 28) was relied upon:‑‑ "The resort to a rule of common law of England to preference to the one of Pakistan Law or a rule of Islamic or jurisprudence; or for that matter, the Islamic Common Law, is not now possible under the Pakistan Constitutional and legal set up. "

15. In Dr. Ghulam Mustafa Chaudhry v. Dr. Muhammad Ashiq Khan Durani (2000 PLC (CS) 385), this Court interfered in an order of compulsory retirement of an employee of Bahauddin Zakariya University. The plea that the rules of the said University were not statutory, was raised but was repelled on the ground that the Vice‑Chancellor, who had passed the order, was not the authority competent to pass the impugned order. The judgment in the case of University of Punjab (supra) was noted in the said case and was distinguished.

16. As observed above, this is a case in which the petitioner has been punished on the allegation which did not form part of the charge‑sheet and, therefore, apart from the violation of the Efficiency and Discipline Statutes, the petitioner was condemned unheard, the Authorized Officer was himself the prosecutor (author of the charge‑sheet) and himself held the inquiry, no evidence was examined in presence of the petitioner, and the petitioner was cross examined by him. And, even if the relationship of the petitioner with his employer was not statutory, the principles of natural justice were still attracted as held in Mrs. Aneesa Rehman v. Pakistan International Airlines Corporation and another (1994 SCMR 2232). In the said case an order of reversion of an employee of a statutory Corporation was interfered with on the ground of violation of the Audi Alterm Partem.

17. In Asif Peter v. D.G.M.D.A. Multan and others 2000 PLC (C.S.) 1360), this Court interfered on the ground that the authority had not heard the petitioner before directing removal from services of the Multan Development Authority. In that case the service of employee were not governed by the statutory rules. In U.P. Warehousing Corporation v. Vijay Narayan (AIR 1980 SC 840) while explaining requirements of proceedings against an employee of a statutory Corporation, the Indian Supreme Court made the following observations:‑‑ "Even if at the time of the dismissal, the statutory regulations had not been framed or had not come into force, then also, the employment of the respondent was public employment and the statutory body, the employer could not terminate the services of its employee without due enquiry in accordance with the statutory Regulations, if any in force, or in the absence of such Regulations, in accordance with rules of natural justice. Such an enquiry into the conduct of a public employee is of a quasi judicial character. The respondent was employed by the appellant corporation in exercise of the powers conferred on it by the statute which created it. The appellants' power to dismiss the respondent from service was also derived from the statute. The Court would therefore, presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice, and to act in accordance with the spirit of Regulation 16, which was then on the anvil and come into force shortly after the impugned dismissal. The rules of natural justice in the circumstances of the case, required that the respondent should be given a reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which means and includes an opportunity to cross examine the witnesses relied upon by the appellant‑corporation and an opportunity to lead evidence in defence of the charge as also a show‑cause notice for the proposed punishment. Such an opportunity was denied to the respondent in the instant case. Admittedly, the respondent was not allowed to lead evidence in defence. Further, he was not allowed to cross‑examine certain persons whose statements were not recorded by the Enquiry Officer (Opposite‑Party No. 1) in the presence of the respondent. There was controversy on this point. But it was clear to the High Court from the report of enquiry by the Opposite Party No. 1 that he relied upon the reports of some persons and the statements of some other persons who were not examined by him. A regular departmental enquiry takes place only after the charge‑sheet is drawn up and served upon the delinquent and the latter's explanation is obtained. In the present case, no such enquiry was held and the order of dismissal was passed summarily after perusing the respondent's explanation. The rules of natural justice in this case were honoured in total breach. The impugned order of dismissal was thus bad in law and had been rightly set aside by the High Court."

18. The Hon'ble Supreme Court in Pakistan International Airlines Corporation (supra) reiterated the rule laid down in the case of Mrs. Aneesa Rehman (supra) and the following observations were made:‑‑ "However, the employer who itself has framed rules as well the regulations for its domestic purposes is bound to strictly follows/adhere them because deviation therefrom is bound to violate settled principle of justice including the one enshirned in the maxim audi alterm partem i.e. no one is to be condemned unheard."

19. I may respectfully add that the authority who has framed regulations is bound to follow the said regulations and a departure therefrom will amount to exercise of the power in an arbitrary and unregulated manner defeating the very purpose for which regulations are framed.

20. The question which, however, attracted my attention was as to the relief which could be granted to the petitioner in the facts and circumstances of the case, I am of the view that it will be just and appropriate if the Appellate Authority reconsiders the case of the petitioner. Accordingly, this writ petition is partly allowed, the impugned appellate order is declared as without lawful authority with the result that the appeal of the petitioner shall be deemed to be pending, before the Appellate Authority to be decided afresh I in accordance with law with a speaking order. No order as to costs. H.B.T./R‑229/L Petition partly allowed.