1999 PLP (C (PLC(CS))

QAZI MUHAMMAD FAROOQ, J.‑‑This judgment shall dispose of Writ Petitions No. 1242 of 1997, 1307 of 1997, 1311 of 1997, 1312 of 1997, 1313 of 1997, 1314 of 1997, 1316 of 1997, 1317 of 1997, 1322 of 1997, 1323 of 1997, 1370 of 1997, 1372 of 1997, and 1645 of 1997 as a common question of law is involved therein.

2. The petitioners are ex‑employees of the N.W.F.P. Small Industries Development Board. Some of them were retired having achieved full pension able service i.e. 25 years and some were laid off on payment of one month's salary in lieu of notice period alongwith other benefits, if any, admissible under the rules in the process of downsizing and restructuring of the Organization pursuant to 0doption of the G.T.Z. Report/Economy Measures. Feeling aggrieved they have challenged the legality of the orders passed in respect thereof by the Managing Director N.‑W.F.P. Small Industries Development Board and prayed that the same be declared as without lawful authority and of no legal effect.

3. There is no need to state the facts of the cases in detail as the fate of these petitions hinges on the determination of the question of maintainability arising from non‑existence of statutory rules with regard to terms and conditions of service of employees of a statutory body.

4. The main grievances highlighted in these petitions are to the effect that the impugned orders offended against the cardinal principle of natural justice audi alteram partem which is to be read into every statute, the retirement of petitioners on completion of 25 years service was not only made in violation of the principle 'last to come first to go' but also in utter disregard of the law laid down in Pakistan and others v. Public‑at‑Large and others (PLD 1987 SC 304) and in any case there was open discrimination in the matter of retirement inasmuch as at least seven other officers who had rendered 25 years service had been retained.

5. The grievances appear to be well‑founded as there is nothing on the record to suggest that before the termination of their services the petitioners were given any notice and there is enough material to augment the allegations of violation of the Principle of 'last to come first to go and discrimination traceable to adoption of the policy of pick and choose. However, the matter does not end here because the grievances of the petitioners cannot be redressed unless the writ petitions are held to be maintainable.

6. Having heard the learned counsel for the parties and acquired guidance from their instructive judgments of the august Supreme Court reported as R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146), The Principal, Cadet College Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170), Evacuee Trust Property Board v. Muhammad Nawaz (1983 SCMR 1275) and Chairman WAPDA and 2 others v. Syed Jamil Ahmad (1993 SCMR 346) we feel no hesitation in holding that the writ petitions are not maintainable as the N.‑W.F.P. Small Industries Development Board is a statutory body and in the absence of statutory rules regulating the terms and conditions of service of its employees the principle of master and servant is fully attracted.

7. The Small Industries Development Board is a statutory body having been created by the North‑West Frontier Province Small Industries Development Board Act, 1972 (N.‑W.F.P. Act No.II of 1973), hereinafter referred to as the Act. According to section 12(1) of the Act read with section 2(a) and (h) the Board of Directors is empowered, subject to such general or special order as the Government may give from time to time, to appoint such officers, advisers and employee as it considers necessary for the efficient performance of its functions on such terms and conditions as may be prescribed by rules or regulations. The power to make rules in regard to the recruitment of officer advisers and employees of the Board and the terms and conditions of their service vest in the Government as envisaged by section 37(2)(b)(c) of the Act while under section 38(1) of the Act the Board, with the previous approval of Government, is empowered to make regulations to provide for all matters not provided for in the rules. Section 39(c) of the Act further provides that all officers and servants of the West Pakistan Small Industries Corporation, dissolved under the West Pakistan Small Industries Corporation (dissolution) Ordinance, 1972 transferred to the North‑West Frontier Province by or under the West Pakistan Small Industries Corporation (Dissolution) Ordinance, 1972 shall stand transferred to and be appointed by, Government or the Board, as the case may be, in such manner as the Government may be order determine provided such persons shall be appointed on such terms and conditions as may be determined by order under the said Ordinance. Admittedly, neither any rules under section 37 of the Act have been framed so far nor the Board has made any regulation under section 38 (ibid). Similarly, there exists no order of the President determining the terms and conditions of service of the employees of the West Pakistan Small Industries Corporation transferred to the Provinces as contemplated by section 5 of the West Pakistan Small Industries Corporation (Dissolution) Ordinance, 1972.

8. It was contended by the learned counsel for the petitioners with vehemence that notwithstanding the absence of statutory rules and existence of relationship of Master and Servant the respondent Board was obliged to issue show cause notices to the petitioners in view of the observations made in Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232). The contention cannot prevail in the face of the interpretation and elucidation of the said observations made in Habib Bank Limited and others v. Syed Zia‑ul Hassan Kazmi (1998 SCMR 60) and United Bank Limited and others v. Ahsan Akhtar and others (1998 SCMR 68). In the former judgment it was observed that an employee of a Corporation in the absence of violation of law any statutory rules cannot press into service Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service and his remedy for wrongful dismissal is to claim damages. The case of Mrs. Anisa Rehman was distinguished with the following observations: ‑‑ "The ratio of the judgment in the case of Mrs. Anisa Reman (supra) is that a Corporation cannot demote its employee to a lower grade without hearing him/her before passing demotion order. It has not dealt with the question of termination of services or suspension order. " The above observations were reiterated in the latter judgment wherein it was further observed that the judgment in the case of Mrs. Anisa Rehman did not lay down that the principle of master and servant consistently enunciated by the Supreme Court in various cases was no longer the correct law. There is no force in the contention that the aforementioned observations having been made in leave granting orders were tentative in nature. The observations have a binding effect because, firstly, the operation of the interlocutory orders of the High Court was suspended on the strength, thereof, and secondly, judgments an all the three cases were rendered by his Lordship Justice Ajmal Mian. Reference in this context may also be made to the observations made in Wazir Ali Khoja v. Muslim Commercial Bank Ltd. (1998 SCMR 1452) that the question relating to non‑maintainability of Con3titution Petition to cases of privatized de-nationalized institution has now been finally decided by the Supreme Court in cases reported as 1998 SCMR 60 and 1998 SCMR

68. For the foregoing reasons all the, writ petitions are dismissed with no order as to costs. Q.M.H./312/P Petition dismissed.