1983 PLP (C (PLC(CS))

(b) ... ... ... ... ... ... (c) ... ... ... ... ... ... The Appendix 'E' lays down the detailed mechanism which is to be followed for determining retention/further extension of the K. P. T. employees after 25 years of service. According to the procedure laid down in the Appendix, a case for retirement will first be scrutinized by the Advisory Committee, then the recommendations made by the committee will be considered by the competent authority who will finally pass the order of retirement. The case of the petitioner was processed by the Advisory Committee on 20‑9‑1982 but as has been explained by Mr. Abdul Rahim Tejani, Secretary K. P. T., vide para. 3 (r) of his counter‑affidavit two of the three members did not recommend the retirement, while the third member recorded his vote of dissent stating that there was no bar to the retirement of the petitioner at the end of 25 years of service. As stated above after the Advisory Committee has made its recommendations, they are to be placed before the competent authority for its consideration. As defined in rule 1 (c) of the Appendix 'E' referred to above, "competent authority" in the case of the petitioner is the "Board with approval of the Government". Reverting to the counter‑affidavit filed by Mr. Tejani, it would appear from para. 3 (a) of his affidavit that the matter came up before the Board on 30‑3‑1982 when four members supported the resolution for retirement whereas five members opposed it. Thus according to the respondent's own admission the Board did not recommend the retirement of the petitioner. Nevertheless, as pre‑para . 3 (t) of Mr. Tejani's counter‑affidavit the resolution of the Board was forwarded on 4‑4‑1982 to the Federal Government with the proposal (admittedly of the Chairman) that the petitioner be retired w.e.f. 23‑9‑1982. Again as mentioned in para. 3 (4) of the aforesaid affidavit the Federal Government conveyed its order dated 21‑6‑1982, ordering the retirement of the petitioner, in modification of the Board's resolution under section 79‑A read with section 24 of the K.P.T, Act. In order to understand the implications of section 24 and section 79‑A of the K. P. T. Act vis‑a‑vis the impugned order, these sections are repro duced as under :‑ "S. 24.‑Every order or regulation made by the Board in respect of Heads of Departments, or in respect of officers holding posts in the scale of which the maximum is not less than eleven hundred rupees shall be subject to the previous approval of the Federal Government. S. 79‑A.‑All acts and proceedings of the Board shall be subject to the control of the Federal Government and the Federal Government may cancel, suspend or modify any such acts or proceedings." As required by section 24, every order made by the Board in respect of the specified class of officers is subject to previous approval of the Federal Government. It is not disputed that petitioner falls within the category of officers referred to in section

24. In other words the authority compe tent to make any order regarding the petitioner is the Board with prior approval of the Federal Government. Thus section 24 is in consonance with rule 40 read with rule 1 (c) of the Appendix 'E' of the aforesaid rules. However, section 79‑A not only empowers the Federal Government to exercise general control over acts and proceedings of the Board but also arms it with discretion to cancel, suspend or modify any such act or proceedings. The question arises if in exercise of its power under section 79‑A the Federal Government can completely undo any act or proceeding of the Board and substitute in its place, own order. In other words if section 24 and section 7S‑A are independent of each other or are interdependent. Although the impugned order is purported to have been made under section 79‑A read with section 24, Mr. Ali Ahmed Fazeel. the learned counsel for the K. P. T. expressed the view the said order has been passed in exercise of vast power vested in the Federal Government under section 79‑A. He also submitted that application of this, section is not dependent on section 24, as both are independent of each other. We are, however, not impressed by this argument. If any order is passed under section 79‑A in total disregard of section 24, then in our opinion the latter section becomes absolutely redundant. According to rules of interpretation no redundancy can be attributed to any enactment. On the other hand the learned counsel for the petitioner argued that section 79‑A is subject to section 24 and the Federal Government has no overriding absolute power so as to step into the shoes of the board and substitute its own order in place of the order of the Board. In support of his argument he placed reliance on Sultan Maujee and 3 others v. Federal of Pakistan Chamber of Gominerce and Industry, Karachi and 3 others (P L D 1982 S C 174) while interpreting section 9 of the Trade Organizations Ordinance, 1961, which is more or less in the same terminology as section 79‑A above, it was observed :‑ "Since it is conceded that the power under consideration is a supervisory power, it is inherent in its charges to confine itself to over seeing the functioning of the regulated bodies and not to directly administer them, for in that case what was intended to be super visory power would be converted into a power to take over the functioning of the regulated bodies. Such could not be the intention of this statute, Viewed in this context, it is not difficult to see that the intention must be to primarily allow the Registered Trade Organization to function in terms of their Constitution embodied in the memorandum and articles of their association. The Legislature must have conferred the regulatory power, with the intention that it should be used, to promote the policy and objects of the Ordinance, which must be determined by construing the Ordinance as a whole. It is needless to emphasise that, in construing a provision of a statute by which such powers are vested, in a statutory functionary, the powers are vested to be exercised in public interest and it cannot be argued that such powers are to be exercised in the discretion of the donee of such powers, without reference to the context of the policy and objects of the legislation. It is by now well‑established that the legislature does not confer plenary power of such wide amplitude, as is contended for, as that may fall within the mischief of the doctrine of excessive delegation of legislative power to the Executive Branch the Government, except perhaps in the case of emergency legislation. Such wide statutory discretion, in order to avoid the charge of abuse of excess of authority, must not be used, to seek promotion of purposes alien to the letter or spirit of the legislation that gives power to act." Having given best consideration to the arguments addressed at the bar with regard to effect and interpretation of section 24 and section 79‑A, we are of the view that may be the view point expressed on behalf of the respondents that section 79‑A is independent of section 24 and gives vast power to the Federal Government is correct, the arguments of the other side in this regard which are equally weighty and are supported by the Supreme Court authority referred to above cannot be easily ignored pend ing the final adjudication on this point, we are inclined to feel that the petitioner has an arguable case in his favour. Apart from above, the arguments that the impugned order of retire ment is incompetent because of the earlier order of retirement which has not so far been cancelled or withdrawn does not appear to be without force. In reply the learned counsel for the respondents submitted that the earlier order having remained unimplemented and its operation having been suspended by order of the court, there was nothing wrong to retire the petitioner on totally different grounds. Thus the point that the two orders totally inconsistent with each other can co‑exist or that the subsequent order of retirement can take effect without first cancelling or withdrawing the earlier order, has got to be thrashed out at the time of final hearing. For the time being, suffice it to say that the arguments submitted for the petitioner are equal forceful. The learned counsel for the respondents has authorities in support of argument that the Corporation employees with their employer Corporation is of servant and master and therefore they are not entitled to any relief under the Consti tution. Since the petition has already been admitted this point can be taken up at the time of regular hearing, we therefore need not examine the said authorities at this stage. As for balance of convenience we are of the view that it is in favour of the petitioner. He is still in service holding a responsible position. It would be more convenient to continue the present state of things rather than upset them. As to whether the petitioner would suffer irreparable loss if the opera tion of the impugned order is not stayed, the learned counsel for the respondent expressed the view that the retirement on completion of 25 years of service not being a punishment, the petitioner's honour and reputation will not suffer. We cannot readily accept this argument. It is yet to be determined if the retirement of this kind is penal in nature. Moreover the fact that the petitioner will or will not suffer irreparable loss has become of secondary importance in view the aversions that the retirement is prima facie illegal, having been ordered by the authority not competent to do so. For above reasons we allow the application restraining the respondents from implementing the impugned order pending the disposal of the main petition. While making this order, we have taken note of the respondent's anxiety for quick disposal of the petition. We will therefore order that this petition be fixed for regular hearing on a date convenient to both parties in the second week of October next. Appeal allowed.