' NAZAR MUHAMMAD SHAIKH, MEMBER.---The facts of the case are that the Appellants joined respondent-Organization as Deputy Manager on 2-2-1981 and was promoted. As a Manager in January, 1986. Appellant also worked as Special Assistant to the Chairman T.C.P. From April, 1995 to November, 1996 and thereafter as Manager (Training) respondent-Organisation executed three contracts with the Government of Bangladesh on 21-3-1995, 6-4-1995 and 20-4-1995 for supply of 36000 tons of Irri-6 Rice. The contracts were allowed under Transferable Letter of Credit by the buyers i.e. Government of Bangladesh and simultaneously Respondent No.1 also singed three contracts with local supplier namely Messrs Hassan and Company Cotton (Private) Limited for supply of rice. Problems arose in these contracts which resulted in claims of shortages, etc. These problems were attributed to the appellant and he was forced to proceed on leave by respondent No.2's order dated 10-11-1996 which the Appellant challenged and consequently respondent No.2 withdrew the impugned order. Appellant was then issued a charge-sheet by respondent No.1 who had become the new Chairman of the respondent-Organisation. Charge-sheet dated 7-12-1996 contained the following allegations: "1 You as the Dealing Officer removed/failed to place on record papers relating to the amendments in the contract pertaining to export of rice to Bangladesh with mala fide intention, although you were required to do so in routine performance of your duties.
2. You removed the original contract dated 21-3-1995 signed with M/s. Hassan Ali and Co. (Local Suppliers) and inserted contract dated 18-4-1995 in connivance/collusion with the suppliers, thus tampered with official record, to cause huge losses to the TCP.
3. Without obtaining approval from the Directors/Executive Committee, you, in collusion/connivance with the then Chairman caused to be sent a Fax No.TCP/Exp-II/Rice/95 dated 22-3-1995 addressed to High Commissioner of Bangladesh agreeing to the deletion of the word "About" to cause wrongful gains to the buyers. Your said acts of omission and commission resulted in Corporation's incurring heavy liability, for claims/losses amounting to USS 208,267,17.
4. You deliberately made a wrong statement to obtain clearance for the act of insertion of the word "Net" in place of "About" which was unauthorized and in violation of the Operational Item No.2 dated 21-3-1988 of the Delegation of Powers.
5. You, as the Dealing Officer failed to do your duty for protecting the Corporation against loss while dealing with this case.
6. You, wilfully and unauthorisedly signed the contract with the Suppliers Messrs Hassan Ali and Company and in complete violation of Operational Item No.3 dated 21-3-1988 of the "Delegation of Powers" of the TCP."
2. A three-Mamber Enquiry Committee was appointed headed by Mr. Himayatual Islam Khan, General Manager. A detailed enquiry was conducted into the aforesaid charges. Appellant in his reply dated 26-12-1999 denied the allegation in the charge-sheet and assailed the appointment of Enquiry Committee without considering Appellant's reply to the charge-sheet. After detailed enquiry the findings of the Enquiry Report are detailed as under:- "CONCLUSION: ' In view of the above, all the charges from Serial 1-6 of the charge-sheet have been established against the accused officer. It may be pointed out here that the accused officer while submitting his written defence has also taken the plea that he was not shown the record. However, the factual position, contrary to his plea, is that the Enquiry Committee invited him repeatedly to inspect. The record but he himself did not avail of the opportunity in spite of having been offered. Therefore, he cannot justifiable take the plea that he was not able to fully defend himself because of not having been shown the record.
' To supplement the above findings it has been observed from the record that the accused officer instead of following the laid down procedure of TCP for obtaining approved from the proper forum (Executive Committee) circumvented TCP's Executive Instructions and Delegation of Power on the subject by obtaining approval of the Chairman who was not alone competent to accord such approvals."
3. Appellant was then issued a show-cause notice on 2-6-1998 along with Enquiry Committee's Report. Appellant submitted his reply to the show-cause notice on 9-6-1998 denying the allegations. Thereafter Appellant was imposed major penalty of dismissal from service vide respondent's order dated 23-6-1998. Appellant submitted his departmental appeal/Review Application on 20-7-1998 which remained unresponded despite lapse of prescribed statutory period.
4. Appellant in his written arguments assailed the impugned order of his dismissal on ground that the Respondent No.2 was neither formally appointed as Chairman nor as an acting Chairman but he was just authorised to look after the work of the Chairman and, as such, he could not exercise full powers of the Chairman, T.C.P. He has further alleged that sine& there was no formally appointed Chairman there could be no Board of Directors nor any action could be taken by Respondent No.2 and ,the working of the Board of Directors was illegal. He has further argued that the Respondent No.2 acted as Authorised Officer and as the Chairman of the Board he acted as'
Appellate Authority and, as such, the impugned' orders were totally unlawful and illegal and were liable to be set aside. He has further contended that according to T.C.P. Employees (Efficiency and Disciplines) Rules of 1975 the Authorised Officer had to be nominated by the Chairman but Respondent No.2 appointed himself as Autnorised Officer through the. Executive Committee with a view to victimizing the Appellant. He further argued that the documents which were alleged to have been removed by the Appellant were subsequently found and traced from the papers of the then Chairman as admitted by Respondents Nos.1 and 2 in their comments. He has also pointed out that word "about" in the contract was replaced with the word "net" by-then Chairman under his own signature. He has also placed reliance on Sindh Service Tribunal's decision reported in 1989 PLC (C.S) 307 where it was held that no person could be judge in his own cause i.e. Complainant and the Judge cannot act in dual capacity. Appellant has also cited ruling reported in 1989 PLC (C.S.) 310, 1993 PLC 153, 1989 PLC (C.S) 61, 1994 PLC (C.S.) 477 and 1994 PLC (C.S.) 480. Appellant in support of his contention relied on the ruling of the Federal Service Tribunal reported in 2000 PLC (C.S.) 1246 which deals with the current charge appointment and looking after the post-concept.
He has also relied on the F.S.T's. Ruling reported in 2000 (C.S.) 1252 which relates to the conduct of E&D proceedings against an accused Civil Servant.
5. Respondents have also submitted written arguments and they have raised preliminary objections that the Appellant's case being of major penalty i.e. Dismissal from service falls under sub-clause (a) subsection 2 of section 4 of Service Tribunals Act of 1973 and was therefore, required to be heard by the Tribunal consisting of at least three members including the Chairman.
In this regard they have cited rulings reported in 1981 SCMR 402 and PLD 1999 Lahore 76 (Full Bench). Further respondents have stated that respondent-Organisation being Private Limited Company under Companies Act, 1913 read with Companies Ordinance of 1994 and was neither creation of any Statute nor Service Regulations were statutory and as such, the remedy available to the Appellant was only for compensation, and not for reinstatement as he was governed in terms of principles of Master Servant relationship. In their support the respondents relied on rulings of the Hon'ble Supreme Court in the case of UBL v. Shamin Ahmed Khan reported in PLD 1999 Supreme Court 990. PLD 1981 SC 224 and in the case of Ahsan Akhtar v. UBL reported in 1988 SCMR 68.
6. Other objections raised by the respondent that the Appeal is time-barred as the Appellant has filed his Review Petition against his dismissal on 20-7-1998 i.e. After 27 days and his appeal before the Tribunal was also time-barred and in this regard respondents have relied on the ruling of the Hon'ble Supreme Court reported in 1982 SCMR 582, PLD 1990 SC 692 and 1994 SCMR 227.
Respondents have also stated that no application for condonation of delay has been filed by the Appellant and, as such the Appeal could not be accepted and in support of their contentions they have relied on rulings reported in 1995 CLC 461, 1974 SCMR 223, 1983 CLC 1763, 1988 SCMR 1354, PLD 1995 SC 396 .And 2001 SCMR 1227, PLD 1990 SC 692 and 1990 SCMR 1471.
7. It has also been contended that the Appellant was involved in a case of gross misconduct and did not appear before the Enquiry Committee winch proceedings he boycotted. It has also been alleged that the Appellant was acting in collusion with Chairman and got himself assigned the duty/responsibility of export of rice and cotton in violation of rules. It has further been argued that the Appellant in connivance with the Chairman got assigned all duties in relation to business transaction in violation of Articles 114 and 115 of Memorandum of Articles of Association of the respondent-Organisation which vests all such powers in the Board of Directors. Appellant started signing the contracts on behalf of Respondent No.1 which were contrary to clause 5 of Operational Manual of the Delegation of Powers of the Corporation whereby only the Executive Committee had authority to approve the export contracts. Respondents have also denied the Appellant's contention that the Respondent No.2 got himself nominated by the Executive Committee of Respondent No.1 as Authorised Officer and that he was duly nominated strictly in accordance with the Efficiency and Discipline Rules of the Organisation. Respondents denied the allegation of victimization mala fide personal vendetta of the respondents against Appellant. It was also alleged by the respondent's learned Counsel that the Board of Directors was the sole competent Authority to create any post in the T.C.P. And the post of Special Assistant to Chairman was sanctioned by the Chairman without the formal approval of the Board of Directors. It has been further stated that this post was competently abolished by the Executive Committee after approval of the then Chairman. Respondents have also denied that the case-laws cited by the Appellant were applicable to the Appellant's appeal as they were distinguishable. Respondents have also cited the rulings reported in 1985 SCMR 1649, 1988 SCMR 1247, 2000 SCMR 753 and PLD 2000 SC 13 in support of their contentions.
8. We have given due consideration to the arguments from both sides and perusal the record and also citations submitted by the counsel. First we will address the objections of the learned counsel for the respondents regarding the constitution of the Bench. Respondents have contended that the Appellant's case being that of major penalty falls under clause (a) and (b) of subsection 2 of the section 4 of Service Tribunals Act of 1973. The said provision of the Service Tribunal Act reads as under:-- "(a) In the case of penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time-scale or to a lower stage in a time scale, to a Tribunal referred to in subsection (3) of section 3; and
(b) in any other case, to a Tribunal referred to in subsection (7) of that section."
' The reference to clause (a) of subsection 2 of section 4 of the Service Tribunals Act, 1973 relates to the constitution of the Tribunal and it does not pertain to the constitution of the Bench. Subsection 7 of section 3 of the Service Tribunals Act, 1973 relates to a Tribunal established to exercise jurisdiction in respect of any specified class or classes of cases. Respondents have lost sight of the section 3-A of the Service Tribunal Act which reads as under:-- "3-A. Benches of the Tribunal.---(1) The powers and functions of a Tribunal may be exercised or performed by Benches consisting of not less than two members of Tribunal including the Chairman, constituted by the Chairman."
' This section clearly stipulates that all types of cases shall be heard by a Bench comprising at least two members which may include the Chairman. It is now established and accepted at the Hon'ble Supreme Court's level that a Bench of at least two members of the Tribunal can hear all types of cases as no other Tribunal has been established under subsection 7 of section 3-A of the Service Tribunals Act of 1973. As such, the contention of the respondents that since the Appellant's case involves question of major penalty i.e. Dismissal from service it was required to be heard by a Bench of the Tribunal consisting of Chairman and two members is not correct. Rulings cited in this regard by the Learned Counsel for the respondents have not been correctly appreciated by the respondents. Hon'ble Supreme Court in one of the rulings (1981 SCMR 402) cited by the respondents also refers to section 3-A of the Service Tribunals Act 1973.
9. The other contention raised by the respondents is that the Respondent-Organisation being a Private Limited Company is governed under the Companies Act of 1913 read with Companies Ordinance, 1989, and as such, the Appellant was governed by the principle of master and servant.
This contention is also untenable as with the insertion of section 2A in the Service Tribunals Act of 1973 all employees of the Corporation, autonomous bodies where Government holds majority share or controls the Organisation shall be deemed to be Civil Servants for the purpose of their service matters and F.S.T. Has now exclusive jurisdiction under the provisions of Service Tribunals Act of 1973 read with Article 212 of the 1973 Constitution to deal with service matters of such employees. For facility of reference, section 2A of the Service Tribunals Act, 1973 is reproduced as under:-- "2A. Service under certain corporation, etc, to service of Pakistan.---Service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal has controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act."
' That being so, the fact that the respondent-Organisation is a Limited under Companies Act of 1913 does not confer on its functionaries unfettered powers over its employees and govern them on the principle of master and servant relationship. This concept of such relation does not enjoy and Constitutional backing or any other law including Islamic tenets. Hon'ble Supreme Court in its various rulings have ruled against the efficacy of this principle. In this regard, we place reliance on the case of Muhammad Ashraf v. Director General Multan Development Authority in 2000 PLC (C.S)
796 wherein their Lordships have held as under:-- "We also find that the concept of law of Master and Servant does not emanate from any Constitutional provision of statute or Holy Quran and Sunnah by the Holy Prophet (p.b.u.h)."
' In the case of Muhammad Arkam v. Mst. Farman Bi (PLD 1990 SC 28) their Lordships on the point of "Master and Servant" observed as under:-- "The resort to a rule of common law of English in preference to the one of Pakistan Law or a rule of Islamic law or jurisprudence; or for that matter, the Islamic Common Law, is not now possible under the Pakistan Constitution and legal setup.
' Similar ruling was also given by the apex Court in its decision reported in PLD 1994 SC 72 as under:- - "(b) Islamic jurisprudence--- ----Master and servant---Control following unilateral and arbitrary reduction of salary without any fault having been proved against the 'employee is itself repugnant to Injunctions of Islam--- Unbridled power in the hands of the employer to convert the salary into a "subsistence grant" amounts to exploitation which is termed Gharar. [p. 76]"
' In the latest ruling of the Hon'ble Supreme Court in the Sui Gas Employees' case reported in 2003 PLC (C.S.) 796, this principle of "Master and Servant" has also been repelled. After the observations by the Hon'ble Supreme Court in the above rulings we do not consider the concept of "Master and Servant" relationship any more valid as there is no tenable ground on the basis of which it can be sustained in this country. This practice originates from the English Law and after very express Constitutional provisions. Civil Servants Act of 1973, principle of natural justice so emphatically enunciated by the apex Courts in numerous judgments and Injunctions of Islam we consider the principle of "Master and Servant" relationship absolutely below human dignity and therefore, do not find it sustainable.
10. Adverting to the merits of the case the respondents have detailed the facts as to how the Appellant has bypassed the Executive Committee and acted in connivance with the then Chairman and dealt with matters exclusively which fell under the ambit of the Executive Committee. Appellant's signing of the contracts in disregard of the delegation of powers is also evident of the Appellant's acting in violation of the rules. There is, however, no doubt that the Appellant while working as Special Assistant to the Chairman TCP did not properly assist the Chairman in conducting business of the Corporation in accordance with rules. Due to the illegal actions of the Appellant and tampering with the contracts, the Appellant has, in collusion with the then Chairman, landed the respondent-Organisation in a situation where they have been encumbered with heavy claims. It may be pointed out that the Enquiry Committee went into the details of the allegations and held the Appellant guilty of the allegations. Appellant's boycott of the inquiry proceedings does not lend credence to his pleas of innocence. The findings of the Enquiry Committee are already reproduced in this judgment. As' regards Appellant's objection that Respondent No.1 could not act Authorised Officer and also the appellate authority. In principle, this objection of the Appellant has some weight but in the present case no appellate order was passed and, as such, Appellant's case has not been prejudiced. We do not agree with the Appellant that the Respondent No. l's actions were illegal as he had not been notified formally as the Chairman of the respondent-Organisation and that he was only .Asked to look after the charge of the T.C.P. It is far-fetched to believe that any official assigned to look after a post cannot exercise full authority as without such powers 'duty could not be performed effectively. The ruling cited by the Appellant is distinguishable from the present case insofar as in that case the "looking after" was on gratis basis.
11. We do not accept the respondent's contention that the Appellant's post was created by the Chairman without the approval of the Board of Directors. If the post was illegally created by the then Chairman its blame cannot be put on the Appellant.
12. The other objection raised by the respondent is that the Appellant's appeal is hit by limitation and in this regard he has stated that Appellant contested the order of dismissal from service passed on 23-6-1998 through his Review Petition i.e. After 27 days. Thereafter Appellant filed this appeal on 15-11-1998 which respondents alleged that it could be filed within 120 days from the date of original order i.e. Upto 20-10-1998. Thus the Appellant's appeal is delayed by 25 days. The respondents' contention in this regard is valid. Appellant has also not F filed any application for condonation of delay and thus the Appellant's appeal is hit by limitation.
13. In view of the above discussion, we do not find any merit in this appeal -which is also dismissed on ground of limitation.
14. No order as to costs. Parties be advised accordingly.