P L D 1966 Supreme Court 848 (PLP)

FAZLE‑AKBAR, J.‑This certificated appeal by Chairman and the Secretary of the East Pakistan Industrial Development Corporation, Dacca is brought before this Court to challenge the order of a Division Bench of the High Court of East Pakistan setting aside an order of dismissal from service of the respondent Rustom Ali who was employed by the said Corporation as Diesel‑in‑Charge in its Sugar Mill at Jaipurhat. Rustam Ali entered into service of the Pakistan Industrial Development Corporation on 11th August 1958, as Diesel‑in charge in the Sugar Mill at Mahimaganj, Rangpur. The terms under which he undertook to serve the Corporation were embodied in his latter of appointment. One of the conditions was that "after the successful completion of the probation your services will be terminated on one month's notice on either side. Subsequently he was transferred to Jaipurhat Sugar Mill. On 16th July 1963, he was served with a notice to show cause with respect to three charges mentioned therein. As his explanation was not found satisfactory, the Manager of the Mill passed an order on 17th July 1963 suspending him from service. Thereafter an Enquiry Committee finding him guilty of imposing and realizing without any authority whatsoever, fines from workers serving under him and appropriating the same, reported accordingly to the Manager of the Mill. On 30th July 1963 Rustom Ali was served with a charge‑sheet to show cause why he should not be removed from service for misconduct. He submitted a written explanation. The Secretary. East Pakistan Industrial Development Corporation after fully considering the report and his explanation was satisfied that he was guilty of misconduct. He accordingly passed an order on 13th September 1963, dismissing him from service. Rustom Ali then filed a writ petition under Article 98 of the Constitution in the High Court challenging the legality of the order of dismissal on the following grounds: (i) that he was dismissed on a charge which was not included in the formal charge‑sheet drawn against him and as such his dismissal was bad in law; (ii) that the Secretary did not give him one month's notice as provided in the letter of his appointment, and (iii) that he was appointed by Mr. S. Zahur Hussain Operative Director who was higher in rank to the Secretary and as such the Secretary was not competent to dismiss him from service. The Assistant Secretary of the Corporation in his affidavit in opposition denied the aforesaid allegations. He stated in paragraph 12 of his affidavit: "that an Enquiry Committee consisting of three responsible officers of the Mill, namely the Senior Electrical Engineer as Chairman, the Accountant‑in‑charge and the Mechanical Engineer as members, held enquiry regarding the allegations made against the petitioner that he was illegally realizing money from the workers and drivers. The Enquiry Committee examined as many as 13 witnesses and also the petitioner, and recorded their statements. The petitioner was present throughout the entire proceeding of the Enquiry Committee and witnesses were examined and cross‑examined. The Enquiry Committee after fully discussing and considering the statements found the petitioner along with others guilty of imposing and realising without any authority whatever, fines from workers serving under him and appropriating the same and further found the petitioner guilty of committing some other irregularities." He filed the report of the said Enquiry Committee. He also denied that S. Zahur Hussain was the Operative Director of P. I. D. C. or that the Operative Director was superior to the Secretary in rank. He pointed out that the post of Operative Director was abolished in 1961 and the Secretary was therefore, fully competent to dismiss Rustom Ali and that as Rustom Ali had been dismissed for misconduct, he was not entitled to any notice. The High Court overruled the first two contentions. The learned Judges found (i) that Rustom Ali "was dismissed from service by way of punishment as a result of an Enquiry against him. The condition as regards the service of notice was not at all attracted to this case", and (11) "that the dismissal was based on the 4th charge and not on any extraneous ground." They however, upheld the contention that the Secretary was not competent to dismiss Rustom Ali. They, therefore, held that his dismissal was without lawful authority and of no legal effect. In order to appreciate the arguments advanced before us it will be convenient to set out certain facts. The Pakistan Industrial Development Corporation, herein after referred to as `P. I. D. C.' was set up under Central Act XLV of 1950. On 4th June 1962, it was dissolved and bifurcated in accordance with the provisions of Industrial Corporations (Dissolution) Ordinance 1962 (Central Ordinance XXXVI of 1962). On the same day the President promulgated Provincial Industrial Development Corporation (East Pakistan) Ordinance, 1962 (Central Ordinance XXXVII of 1962), empowering the Government of East Pakistan to set up East Pakistan Industrial Development Corporation, hereinafter referred to as `E. P. I. D. C.' Similarly the Government of West Pakistan established West Pakistan Industrial Development Corporation. In exercise of the power under section 3(b) of the Ordinance XXXVI of 1962 the Central Government passed the following order on 28th June 1962: "The Pakistan Industrial Development Corporation shall trans fer, not later than 1st July 1962, such of its officers, advisers and employees as it thinks fit to the East Pakistan Industrial Development Corporation and the West Pakistan Industrial Development Corporation and the latter Corporations shall appoint, not later than the 1st July 1962, the officers, advisers and employees so transferred, on the same terms and conditions on which such officers, advisers and employees were employed by the Pakistan Industrial Development Corporation, until their terms and conditions of employment under Provincial Industrial Development Corporations are determined. In accordance with the said order some of the officers and employees including Rustom Ali were transferred from P. I. D. C. to E. P. I. D. C. On 1st July 1962 E. P. I. D. C. approved their appointments on the existing terms and conditions. In exercise of the power conferred on the Board under section 14 of Ordinance XXXVII of 1962 the Chairman of the Board of Directors, E. P. I. D. C. executed a general power on 9th July 1962, in favour of the Secretary of E. P. I. D. C. constituting him the Attorney and Agent of the said Corporation to do various acts and things on behalf of the Corporation. Paragraph 3 of the said power is in these terms: "To make appointments of officers, staff, workmen or other employees of the Corporation, to terminate their appointments or services to dismiss or remove them, to transfer them from one place to another or from one appointment to another, to change their designations, to increase or decrease their pays or emoluments, to make other changes in regard to them as may be necessary, proper or convenient and to take disciplinary or every other suitable action for, against or in regard to them. The learned Judges interpreted the above paragraph to mean that "the Secretary, East Pakistan Industrial Development Corporation has been delegated the power to dismiss or remove only such officers, staff, workmen and other employees as are appointed by him; but this delegated power, in our opinion, does not include the power to dismiss or remove the officers, advisers and employees who were transferred to the E. P. I. D. C. by the P. I. D. C." The learned Judges while repelling the contention of the Corporation that this case was governed by the principles of law of contract and the law of master and servant, observed: "An element of contract is involved in all appointments on certain terms and conditions, whether such appointments are made by the Government, a Corporation, statutory body or any one else. But that does not necessarily mean that the principles of the law of contract and the law of master and servant will govern each of such cases. Having regard to the terms and conditions contained in the petitioner's letter of appointment dated 11‑8‑58 issued by the P. I. D. C., it may be said that an element of contract is also involved in his appointment. But the transfer of his service from the P. I. D. C. to the E. P. I. D. C. and the approval of his appointment by the E. P. I. D. C. on such transfer having been made in pursuance of the statutory provisions and further terms and conditions of his employment having been recognised and maintained by the provisions of law, namely, the Order of the Central Government under section 3(b) of Ordinance XXXVI, of 1962, and section 10(3) of Ordi nance XXXVII of 1962, the law of contract and the law of master and servant will not govern the relationship of the petitioner and his employer." They therefore, held that "the order of dismissal of the petitioner (Rustom Ali) having been made by the Secretary without being duly authorised, in that behalf under the said section 14, the provisions of Article 98 of the Constitution are attracted here, although an element of contract is involved in the appointment of the petitioner. The learned Judges were also unable to uphold the contention of the Corporation that Article 98 of the Constitution was not attracted to the case because E. P. I. D. C. was not `a person' within the meaning of the said Article. They found that E. P. I. D. C. is `a person' within the meaning of Article 98(2) of the Constitution. At the outset we may observe that the finding the E. P.

1. D. C. is `a person' within the meaning of clause (2) Article 98 finds support from the decision of this Court in The University of Dacca and another v. Zakir Ahmad (P L D 1965 S C 90). Now the question is: Whether in the facts and circumstances of the case the High Court rightly acted in exercising its discretion in favour of the respondent Rustom Ali. Mr. Asrarul Hassan, the learned counsel for the appellants has contended that the service of the respondent was of a contractual nature and hence the Corporation was entitled to dismiss him for misconduct without giving any notice. It has not been and could not be contended that the safeguards provided for public servants under the Constitution could not be availed of as o legal right by the respondent Rustom Ali. He was an employee of a statutory Corporation. The true character of an officer a din employee of such a statutory Corporation has been pointed out by this Court in the case of The Lahore Central Co‑operative Bank Limited v. Pir Saifullah Shah (P L D 1959 S C (Pak.) 210). One of the questions in the above case was whether the concerned Manager of the Bank was entitled to a writ for alleged wrongful dismissal from service. The learned Chief Justice after quoting a passage from Halsbury Paragraph 162 in the monograph on `Crown Proceedings' observed: "The Superior Courts in England have not found it possible to extend the scope of mandamus to restoration to office in private corporations. All the offices mentioned in the list contained in the quotation above appear to be of a public nature and to have a quality which is entirely foreign to that belonging to the post of Commercial Manager in a Co operative Bank. That post was clearly of a contractual nature, falling within the category of employment and having nothing of the true character of a statutory or corporate office." 1t is, therefore, clear that a writ is not a proper remedy in a case of this type in our jurisdiction. There is another strong reason why a direction of the kind in question should not have been issued by the High Court in this case. The report of the Enquiry Committee was amply sufficient to establish that Rustom Ali had been guilty of misconduct in the discharge of his duty. The High Court should, therefore, have taken notice of this fact in considering whether in exercise of the discretion they should have issued a writ in this case. As pointed out in the case of The Lahore Central Co‑opera tive Bank Limited". "By the ordinary law of master and servant, when a servant is guilty of misconduct, the master is entitled as of right to terminate his service without notice." Hence there can be no doubt that under the general law of master and servant, the action taken by the Secretary on behalf of the Corporation was a proper one. For these reasons we are unable to agree with the learned Judges of the High Court that under the general power the Secretary of the Corporation could not dismiss those who had been transferred to the East Pakistan Industrial Development Corporation from the Pakistan Industrial Develop ment Corporation. We are, therefore, of opinion that the writ issued by the High Court cannot be sustained either in law or in discretion. We accordingly allow this appeal, and recall the writ issued by the High Court. There will be no order as to costs. A. H. Appeal allowed.