2025 PLP (C (PLC(CS))

MUHAMMAD KARIM KHAN AGHA, J.

The first question to be addressed in this Constitutional Petition is whether it is maintainable as it concerns the termination of service of the petitioner, Mst. Rubina Tufail, by the Pakistan Defence Officer Housing Authority (PDOHA) vide termination letter dated 05.06.2023 under Defence Housing Authority Service Rules, 2008.

2. According to learned counsel for the petitioner, this petition is fully maintainable as the service rules of Defence Housing Authority (DHA) are statutory and the petitioner is to be provided with Show-Cause Notice and usual procedure as per rules of DHA regarding disciplinary matters. On the other hand, learned counsel for the respondent/DHA as well as learned DAG state that the Service Rules of DHA are non-statutory in nature in this respect reliance is placed on the case of Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others (2017 SCMR 2010) in particular paragraphs 10 and

15. Even otherwise the termination has been made on the basis of Section 8(b)(4) of the DHA Service Rules, 2008, as such this petition is not maintainable.

3. We have heard the parties and considered the record. In the case of Pakistan Defence Officers Housing Authority (Supra) at paragraphs 10 and 15 it was held as under- "

10. The next question for our consideration would be the maintainability of a writ filed by an employee of Authority a statutory corporation having non statutory rules of service seeking enforcement of the terms and conditions of his service rules. Again this question was taken up and decided by a six-member Bench of this Court in the case of Abdul Wahab and others v. IBL, and others (2013 SCMR 1383) by holding that where a service grievance is agitated by a person/employee who is not governed by the statutory rules of service, before the High Court(s), in terms of Article 199 of the Constitution such petition shall not be maintainable. Relevant portion of para 7 of the cited judgment is reproduced as follows:- "... It is settled law that, where a service grievance is agitated by a person/employee who is not governed by the statutory rules of service, before the High Court(s), in terms of Article 199 of the Constitution such petition shall not be maintainable, reference in this behalf can be made to PLD 2010 SC 676 (Pakistan International Airline Corporation v. Tanweer-ur-Rehman) and PLD 2011 SC 332 (Pakistan Telecommunication Co. Limited v. Iqbal Nasir) (note: the question however if that is possible in terms of Article 199(1)(c), we have deferred). But the plea that such law shall not prevent this Court while exercising its jurisdiction under Article 184(3); suffice it to say that while exercising the jurisdiction this Court is bound by the conditions of Article 184(3); and moreover by such rules which are laid by this Court for regulating its jurisdiction, keeping in view the principles of restraints. We find that in the cases of contractual service, where the grievance agitated is against a private person, there is no reason that such restmint should not be resorted to by this Court and any exception should be taken to the law laid down in Tanweer ur Rehman case supra (note: even if it pertains to the writ jurisdiction of High Courts).

15. No doubt the employees of statutory corporations in absence of violation of law or any statutory rules of service cannot press into service constitutional jurisdiction of the High Court and after we have come to the conclusion that the service rules framed by the appellant were not statutory but for their internal guidance and, therefore, their enforcement through writ jurisdiction does not appear to be in consonance with the law settled by this Court. The directions imparted through the impugned judgment by the High Court to initiate proceedings against the respondent in terms of Removal from Service (Special Powers) Ordinance, 2000 after its repeal in the year 2010 vide Removal from Service (Special Powers) (Repeal) Act, 2010 also appear to be result of poor assistance. However, the question which escaped the attention of the High Court and needs our consideration is as to whether Rule 8(b)(1) of the Service Rules framed by the appellant in 2008 for their employees which authorizes the Administrator to dispense with the services of an employee by giving him one month's notice or a month's pay in lieu thereof without assigning any reason or providing an opportunity of hearing is violative of the principle of natural justice, which always has been treated as violation of law. The said rule further appears to be against the principles of public policy which requires the public functionaries to maintain transparency and to exercise their powers in good faith in the public interest and not on the basis of personal likes or dislikes or on the basis of whims and fancies and, therefore, it needs to be examined as to whether such rule could be allowed to be retained in the service rules (though non-statutory) of the appellant a statutory body. Rule 8 of the Service Rules, 2008 of the appellant is reproduced below for the sake of convenience:- "

8. Termination/Resignation/Dismissal from Service a. Termination/Dismissal (1) Termination. Termination of service of an employee under the clause of 'Misconduct' as per DHA Rules Chapter IV. An employee terminated due to absence from duty under this clause will be entitled for gratuity and other emoluments under normal rules. (2) Dismissal. In case an employee commits an offence of a serious nature as determined by the competent authority, he/she will be dismissed under relevant DHA Rules. Such an employee will not be eligible for gratuity and other benefits except provident fund (his/her share only). b. Rules for Governing Termination/Dismissal/Resignation (1) The Administrator may dispense with the services of an employee by giving him one month's notice or one month's pay in lieu thereof. Similarly, an employee may resign from service by giving one month's notice or by paying one month's pay in lieu thereof. (2) Withdrawal of an Employee's Resignation (a) Before acceptance by the Administrator-the resignation shall be deemed to have been withdrawn. (b) After its acceptance, but before the employee is relieved -the Administrator may allow/disallow withdrawal based on the merits of the case. (3) An un-confirmed/temporary, daily wager, trainee, part time employee and visiting faculty shall not be entitled to any notice or salary in lieu thereof on termination of service. Similarly, such employee may resign without any advance notice. (4) A regular employee shall not be removed or dismissed from service on disciplinary grounds without a prior 'show-cause' notice. (5) An employee who absents himself/herself without leave or overstays leave, he/she will be served with three notices each after every ten days to rejoin duty. In case of failure to report for duty, his/her services will be dispensed with under 'Misconduct'. (6) In case of retrenchment/closure of a Section/Department / Project/work area, services of an employee can be dispensed with being surplus/no longer required".

4. As such we find that since the PDOHA has non-statutory Rules this petition is not maintainable. Even otherwise, in view of the comments filed on behalf of the respondent/DHA, Infact the petitioner was given a Show-Cause Notice, which she then replied to and then the order of termination followed as per Section 8(b)(4) of the DHA Service Rules, 2008. As such it cannot even be argued that the petitioner's case was not considered within the parameters of the Pakistan Defence Officers Housing Authority Service Rules, 2008, which have been fully complied with in the petitioner's case. As such the petition is dismissed for the reasons discussed above. SA/R-6/Sindh Petition dismissed.