1988 PLP 1965 (CLC)

General Manager (Bills) President

2. Mr. Nazar Sajjad Saeed, Superintendent Member 3. ,Mr. S.Iqbal Ahmed,Dy. Manager (Finance) Member The witnesses were examined and cross‑examined. The petitioner was served with a second show‑cause notice dated 30‑9‑1986 adongwith the copy of the Enquiry Committee's ,Report dated 8‑7‑19Bi. After that the petitioner was dismissed by' letter dated 22‑12‑1996. The petitioner has, therefore, filed the above petition.

8. In support of the above two petitions namely, C.P. No. D 678/85 and C.P.No.D‑681 of 1986, Mr. Ahmed Yousuf Ali Rizvi learned counsel for, the petitioners has urged as. follows: (i) That the petitioners' terms and conditions were protected under section 41(2) of the Ordinance and, therefore, they are entitled to maintain constitutional petitions. (11) That there have been serious irregularities in conducting the enquiry inasmuch as that the charges were vague; the witnesses were examined in the absence of the petitioners etc. Mr. Gul Zaman Khan learned counsel for the petitioner ?n C.P. No.D‑338/87 has also maintained that by virtue of section‑41 of the ordinance read with Pakistan National Shipping Corporation (Service) Regulations 1984 (hereinafter referred to as the Regulations 4 1984), the petitioner is entitled to maintain the petition particularly writ of certiorari and that there have been many irregularities in the conduct of the enquiry inasmuch as one of the members namely. Nazar Sajjad attended only one meeting of the Enquiry Committee and that the Enquiry Report was in fact drafted by the office of the P.N.S.C. and not by the members of the Enquiry Committee.

9. The basic question for consideration is, as to whether the ratio decidendi of the famous case of the Hon'ble Supreme Court namely, R.T.H. Janjua v. National Shipping Corporation reported in P L D 1974 Supreme Court 146 is applicable to the present case or not. In the above case the facts were that the petitioner was employed as Regional Officer at Lahore by the National Shipping Corporation which was established as observed hereinabove under the National Shipping Corporation Ordinance 1963. He was served with the charge‑ sheet. Eventually he was dismissed from service with effect from 2‑9‑1972. After his appeal was dismissed by the Chairman, Board of Directors, he filed writ petition which was dismissed in limine by a learned Single Judge of the Lahore High Court, against which a petition for leave in the Hon'ble Supreme Court was filed and leave was sought on the following two questions: "(1) That the petitioner was not afforded reasonable opportunity contemplated by Regulation 59 of the National Shipping Cor poration (Service) Regulations, 1965 framed ‑under section .32 of the 1963 Ordinance, either to meet the charges or to show cause against his removal from service and the proceedings against him were mala fide and farcical; and (ii) that in any case the order of the petitioner's removal from service was bad in law firstly because, at penultimate stage, notice to show. cause against his removal from service was issued by the Secretary to the Corporation and, secondly, Regulation 59, under which the petitioner was proceeded against does not contemplate "removal from service." The Hon'ble Supreme Court declined the petition for leave. While declining leave reference was made to the cases of Abdul Salam Mehta v. Chairman, Water and Power. Development Authority and another (1970 S C M R 40), Shahid Khalil v. Pakistan International Airlines Corporation, Karachi (1971 S C M R 568), The Chairman, East Pakistan Industrial Development of Corporation. and another v. Rustom Ali and another, (P L D 1966 S C 848), Zainul Abidin v. Multan Central Cooperative Bank Ltd. Multan and The Lahore Central Cooperative Bank Ltd. v. Pir Saifullah Shah (,p L D 1959 S C (Pak‑) 210, and it was observed that: "The broad proposition laid down in all these cases was, 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. The precedent cases (with the exception of the case of Pir Saifullah Shah) which was the case‑of a Commercial Manager of a Co‑operative Bank) related to the removal from service of statutory Corporations like, PIAC, WAPDA, and EPIDC, each of which was established by a statute. over which the Government exercised control in varying degree. In all these cases,' the grievance related to alleged arbitrary dismissal frog: service of an employee by an incorporated company or statutory Corporation in which the general law of master and servant was held applicable and it was laid down that the only remedy available to the aggrieved servant in such cases is to sue for damages for wrongful dismissal and not a writ of, mandamus or certiorari." The above case was followed by a Division Bench' of this Court in the case of Muhammad Aslam v. National Shiping Corporation, Karachi, through its Chairman and 2 cthers reported in P L D 1979 Karachi, 246, in which the facts were that the petitiorarls services were terminated after the charge‑sheet. The Division Bench, to which one of us (Ajmal Mian, J.) was a member; after referring to the case law held that constitutional safeguards availble to civil servants against arbitrary,.disTissal or removal'from sevice were not available to servants of a registered company or a statutory Corporation. Such servants would be governed by general law of master and servant and only remedy available to them is to sue for damages for wrongful dismissal and not for writ of mandamus or certiorari. However, learned counsel for the petitioners have invited our attention inter alia to the case of National Bank of Pakistan v. Mansoorul Hassan, which was decided by the Hon'ble Supreme Court on 5‑2‑1982, reported in N L R 1985 Service

37. In the above case the facts were that the respondent was working as the Manager, National Bank of Pakistan, Airport Branch, Lahore. In September 1970 disciplinary proceedings were initiated against him on certain charges and after domestic enquiry he was dismissed from service on 16‑3‑1971. The respondent challenged his dismissal from service by means of a suit seeking relief of declaration and consequential relief claiming that the order of his dismissal from service was wrongful, void and bad in law and that he was entitled to continue in service with all rights and privileges attached thereto. The suit was decreed in favour of respondent on 8‑5‑1976. However, upon appeal the decree was set aside by a learned Additional District Judge, Lahore by his judgment dated 31‑3‑1977, in which it was held that the service rights of the respondent were governed by the ordinary law of master and servant and consequently the suit for declaration that his dismissal was wrongful and, therefore, he continued to be in service was not maintainable. Against the above judgment the respondent filed a revision before the Lahore High Court, which was allowed by a learned Single Judge by judgment dated 21‑2‑1982 whereby the judgment and decree passed by the learned Additional District Judge was set aside and the decree .of the trial Court was restored. It was held by the High Court that the service of the respondent was governed by statutory rules of which there was a violation in so far as no second show‑cause notice was given to him after the inquiry report and the second ground which and found favour with the High Court was that the employment of the respondent was subject to the provisions of Pakistan Essential Services (Maintenance) Act, 1952 and, therefore, the case of the respondent was outside the ambit of the ordinary law of Master and Servant. Leave was granted by the Hon'ble Supreme Court to examine, whether the Staff Rules of 1953, framed by the National Bank of Pakistan for its employees could be a statutory instrument. The Hon'ble Supreme Court maintained the judgment of the learned Single Judge of the Lahore High Court after referring to two other cases of the Supreme Court referred to here-in-below: It may be advantageous to reproduce paragraph 4 of the above judgment which deals with the question as to the status of the Staff Service Rules framed by the Central Board of the National Bank with the approval of the Government and which reads as follows:‑ "

4. It has been contended on behalf of the appellant that the Staff Service Rules not having been framed by virtue of the delegated rule making power vesting in the Central Board under section 32 of the Ordinance, these rules do not have effect as statutory rules but are only instructions for the guidance of the officers of the Bank in regard _ to the internal management of the Bank administration. There is no doubt that as previoulsy observed, the National Bank of Pakistan (Staff) Service Rules purport to be rules made by the Central Board under Bye‑Law 18 of the National Bank of Pakistan Bye‑Laws. However, in our view this fact makes no material difference as to the effect of these rules. The vires of the legal effect of the rules cannot be judged by the mere form in which the rules are framed or the title by Which they are called. In substance and in legal effect the said Service Rules for all intents and purposes are Bye‑Laws framed under section 32 of the Ordinance. The legal requirements for giving effect to the subordinate legislation contemplated under section 32 have been complied with in framing the Service Rules, inasmuch as, the rules have been framed by the Central Board and it is not denied that the prior approval of the Central Government was accorded." In the above judgment the Hon'ble Supreme Court also reiterated the following observations which were made by it in the case of the Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (P L D 1984 S C 170): "It is, therefore, evident that where the conditions of service of an employee of a statutory body are governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules can be set aside by a writ petition. However, whee his terms and conditions are not governed by statutory rules but only by regulations, instruc tions 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." We may also refer to the above case of the Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (P L D 1984 Supreme Court 170) more in detail. In the above case the facts were that two appeals were filed by the Principal Cadet College and the Board of Governors against the judgments of the High Court setting aside the orders passed by the Principal and the Board of Governors of the Cadet College Kohat in relation to a member of the office staff and a member of the teaching staff respectively, which orders were challenged before the Peshawar High Court through petitions and which were allowed and the orders were set aside. The Hon'ble Supreme Court granted leave to appeal mainly to consider, whether in view of the law declared by it in RTH Janjua v. National Shipping Corporation (P L D 1974 S C 146) referred to hereinabove, the High Court was competent to entertain the writ petition filed by the employees of an institution like the Cadet College Kohat and issue writs for restoring them to their offices. The Hon'ble Supreme Court while allowing the appeals against the judgments inter alia observed that has been quoted and reproduced in the above case of the Supreme Court of National Bank of Pakistan. The appeals were allowed for the reason that there were no statutory rules governing the terms and conditions of the non‑teaching and teaching staff of the Cadet College. It! that context the following observations were made: "It is common ground that neither any rules, as contemplated by section 17 of the Ordinance nor any Regulations under section 18 thereof were framed. The Board of Governors did frame some 'rules' for 'governing the appointment, promotion, retirement, termination of service, and dismissal of staff employed by the Board of Governors of the College' in its meeting held on 29th September, 1964, but these not having been made by the Government, could not be regarded as 'rules' under section 17, nor having been approved by the Government, be treated as Regulations under section 18 thereof. These 'rules' thereof could only be regarded to be in the nature of mere instructions issued for the guidance of the Board of Governors and the Principal of the Cadet College Kohat." We may now refer to the case of Anwar Hussain v. Agricultural Development Bank of Pakistan reported in P L D 1984 Supreme Court 194, in which the facts were that the petitioner was an employee of the Agricultural Development Bank of Pakistan. He was employed through a letter dated 15‑5‑1974, according to which he was to undergo training whereafter he was required to serve for a minimum period of five years during which period he was not to resign and in case of leaving service he was to pay a sum of Rs.2,

000. He resigned on 6‑10‑1976. In the resignation he stated that he was compelled to resign and he would not be able to pay Rs.2,

000. However, he sent a telegram on 1‑11‑1976 withdrawing his resignation' but in the meanwhile his resignation was accepted by the authority on 30r'10‑1976. He, thereafter, filed a suit for declaration that he remained in service and for an injunction: The Bank challenged the maintainability of the suit, which objection was overruled and a decree was passed. The High Court after discussing the case law and particularly after relying upon the case of Muhammad Afzal v. H.B.F.C. (P L D 1976 Kar.1121) held "that the matter was governed by the principle of master and servant and that as the question arising relates to the terms and conditions of service as incorporated in the contract of service, the suit for declaration under section 42 of the Specific Relief act was not competent. The petitioner filed a petition for leave against the above judgment of the High Court, which was declined. Inter alia the above case of R T H Janjua ‑v. National Shipping Corporation and the cases of Abdul Razaq Malik v. WAPDA through its Chairman, (P L D 1973 Lah.188), Muhammad Ashraf Parvaiz v. Agricultural Development Bank of Pakistan (P L D 1.973 Lah.425), Ch. Abdul Rashid v. Capital Development Authority, Islamabad (P L D 1979 Lah.8031) and the case of Muhammad Afzal v. H.B.F.C. (P L D 1976 Kar.1121) were referred to for concluding that the relationship between the petitioner and the respondent was that of master and servant; whereas the cases of Mst. Manni v. Karachi Cantonment Board (PLD 1969 Kar.304), Muhammad Salimullah v. Trustees of the Port of Karachi P L D 1975 Kar.758 and the case of Evacuee Trust Property Board Lahore v. Muhammad Nawaz (P L D 1979 Lah.903) were distinguished on the ground that they related to conditions of employment regulated either by statute or by statutory rules. While concluding the above judgment the following observations were made: "The Agricultural Development Bank of Pakistan Ordinance (IV of 1961) whereby the respondent Bank was created has left the question of appointment and terms of its employees to the Bank itself.‑ The relevant provisions are contained in section 30 anal section 39 thereof which read as follows: Section 30: Appointment of officers and advisers.‑The Bank may appoint or employ such persons including advisors as it considers necessary for the efficient performance of its operations on such terms and conditions as may be prescribed by regulations. Section 39: Regulations.‑(1) The Board may make regulations not inconsistent with this Ordinance or the rules to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Ordinance and the efficient conduct of the affairs of the Bank. (2) Without prejudice to the generality of the provision of subsection (1) the regulations may provide for‑ , (a) to (d) (e) The recruitment of the employees of the Bank, the terms, and conditions of their service, the construction and management of Provident Funds for the employees of the Bank and all other matters connected with any of these things:,; , , , ,. , (f) The duties and conduct of employees ‑and agents (g) and (h) It is clear from the above that the Bank has complete control over its employees, their appointment and dismissal and their terms arid conditions of service and that this control is not fettered by any. statutory provision. The rule of Master-and Servant will,, therefore, apply to the case 'of the servants of the Bank . The present . position obtaining in view of the above referred cases seems to be that where the conditions of service for .an employee of a. statutory body ,are governed by statutory rules, any action pre judicial taken against, him in derogation or in, violation of the said rules can be set aside either by a suit or by a wit petition,, depending on the facts of the case, but where these terms and conditions 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 internal use, . any violation whereof, will not normally be enforceable through a writ or a suit. Similarly, if the employer has complete control over its employees, their appointment, dismissal and their terms and conditions for service, and the control is not fettered by any statutory provision, the rules of Master and Servant will apply to the case. In the instant cases Regulations of 1984 are applicable to the aforesaid three, petitioners as observed hereinabove which have been framed under section 39 of the ordinance, which provides that the Board may make regulations‑, not inconsistent with the provisions of this Ordinance and the rules, to provide for all matters for which provision is necessary or expedient for the purpose of. giving effect to the provisions of this Ordinance. It may also be stated that section 38. contemplates that the Federal Government may, by notification in the Official Gazette, make rules for the, purpose of giving effect to the provisions of this Ordinance, . If we were to construe the Regulations of 1984 as having the statutory force, it would follow that the infringement thereof would entitle the petitioners to maintain either a writ or a suit as the facts of the case demand but if we were to hold that the regulations in fact have no statutory force and have been issued for the internal use of the PNSC, the petitioners would not be entitled to maintain either a writ petition or a suit for a relief for reinstatement. Reference may also be made to the case of Muhammad Yousuf Shah v. Pakistan International Air Lines Corporation (P. L . D 1981 S C 224), in which Hon'ble Supreme Court reiterated the above. proposition of law and held that P. I . A . Service Code merely contains instructions and not the statutory rules.

11. We are inclined to hold that the above case of National Bank of Pakistan is distinguishable from the instant cases and that Regulations of 1984 cannot be equated with the statutory rules inter alla for the following reasons:‑ (i) That in the above case of National Bank of Pakistan, the Hon'ble Supreme Court has held that in substance and in legal effect the National Bank of Pakistan (Staff) Service Rules for all intents and purposes are Bye‑Laws‑framed under section 32 of the Ordinance as the same were framed with the prior approval of the Central Government, whereas Regulations of 1984 have been framed by the Board of Directors of PNSC without approval of the Central Government. (ii) That in the above case of Anwar Hussain v. ADBP, the Hobble Supreme Court inter alia, while construing section 39 of the Agricultural Development Bank of Pakistan Ordinance, 1961, of which subsection (1) is couched in the same language as section 39 of the Ordinance, held that the Bank has complete control over the employees as to their appointment, dismissal and their terms and conditions of service and this control is not fettered by statutory provisions and, therefore, the rules of master and servant will apply to the case. (iii) That in the above case of RTH Janjua v. National Shipping Corporation (P L D 1974 S C 146), the Hon'ble Supreme. Court while construing Regulation 59 of the National Shipping Corporation (Service) Regulations, 1965, framed under section 32 of the 1963 Ordinance, which generally correspond to Regulations of 1984, held that the remedy of the petitioner, if any, was to file suit for recovery of damages and not a writ petition. The above case of the Supreme Court though has been referred to in all subsequent cases of the Supreme Court, but has not been dissented from.

12. We are, therefore, inclined also to hold that the above petitions are not competent for the reliefs prayed for, the petitioners' remedy, if any, is to file suit for recovery of damages for alleged wrongful dismissal from service.

13. The upshot of the above discussion is that the above petitions have no merits and, therefore, they are dismissed but there will be no order as to costs. A.A. /M‑5ZZ/K. Petitions dismissed.