1. Akhtar Zaman Malghani, J..-By this common judgment we intend to dispose of Constitutional Petition No, 52/2000 filed by Ghulam Hussain, C.P. No, 149/2000 filed by Abdul Ghafoor and 196 of 2000 filed by Ghulam Mustafa as in all the petitions identical question of fact and law is involved.
2. Briefly stated, facts of the case are that on 15.2.1997, result of F.Sc Annual Examination 1996 was declared by the Board of Intermediate and Secondary Education Balochistan Quetta (here-in-after referred to as Board). Thereafter one Abdul Malik submitted and application alleging therein that the marks obtained by Miss Rabia Naeem. Roll No, 31199 were not genuine. Similarly a complaint was received regarding issuance of forged Result Card to. one Zain-ud-Din son of Ain-ud-Din. In order to probe in to the matter two FIRs Nos, 55/97 and 56/97 were lodged in Bijli Road Police Station against Miss Rabia Naeem and Zain-ud-Din respectively. The Board' also constituted a Special Enquiry Committee to un-earth the truth consisting of following members:
(i) Professor Muhammad Usman (Chairman).
(ii) Raja Nisar Ahmed (Member).
(iii) Jorak Lal (Member).
2. During enquiry the Committee found that the marks of Rabia Naeem and Zain-ud-Din were increased by tampering the record and it also came to the knowledge of the Committee that in identical manner marks of Abdul Aziz son of Shah Muhammad stated to be nephew of petitioner Abdul Ghafoor, were tampered and was awarded 707 marks in the result card. After thorough enquiry the Committee reached to the conclusion that the three employees i,e, the petitioners in all the C.Ps. were the persons responsible for these forgeries and issuance of fictitious result cards and certificates to the candidates. Besides, 12 other employees of Board were also found guilty of negligence. After receipt of enquiry the Respondent No, 2 issue Charge sheet to the petitioners and after giving opportunity of personal hearing to all the petitioners, found them guilty of misconduct and compulsory retired them from service vide order dated 30.4.1999. Thereafter petitioners being aggrieved by the order of their compulsory retirement filed appeals as provided under Regulation- 9 of the Balochistan Board of Intermediate and Secondary Education Employees Service Regulation, 1991 (here-in-after referred to as Regulation of 1991), which was also rejected by the competent authority, hence these Constitutional petitions.
3. We have heard the learned counsel of the petitioners as well as Mr. K.N. Kohli Advocate who appeared on behalf of the Board and learned A.G.
4. It is mainly contended by Mr. Muhammad Aslam Chishti Advocate that the Board was constituted under Ordinance X of 1977 and by virtue of Section 21 Board was empowered to make its regulations subject to approval of Provincial Government. In exercise of above-mentioned powers the Board framed service regulations for Board employees with the approval of Provincial Government, called Board of Intermediate and Secondary Education Employees Service Regulations, 1991. According to regulation 11 of the said regulations, the Balochistan Civil Servant (Efficiency and Disciplinary) Rules, 1983 (hereinafter referred to as Rule of 1983) were made applicable Mutatis Mutandis to the employees of the Board, therefore, any enquiry made behind the back of petitioners by the Fact Finding Enquiry Committee was of no legal effect and penalty imposed upon the petitioners on the basis of said enquiry report is illegal and without lawful authority as Board was under obligation to have followed the procedure provided in Rules of 1983.
5. According to learned counsel there is lot of difference between the Fact Finding Committee and regular enquiry committee and no decision effecting the terms and conditions of the service of employees can be made without holding a regular enquiry under the relevant provisions of Rules, 1983 which were made applicable to the employees of Board. The learned counsel in this respect relied upon the case law reported in AIR 1977 S.0 2148. Regarding maintainability of petition in view of principle of Master and Servant the learned counsel contended that the said principle is not applicable in the present case because the employees of the Board were governed by the statutory regulations made by the Board with the approval of Government under the powers conferred upon the Board by Section 21 of the Ordinance X of 1997 and as Rules of 1983 were made applicable to the employees with all amendments made or occur from time to time, therefore, as the employees were subject to statutory rules, as such; principle of Master and Servant was not applicable to the facts of present petitions. In this regard the learned counsel relied upon un- reported judgment of this Court passed in C.P. No, 495/98 in case Dr. Haji. Muhammad Soomro vs. Balochistan Residential College. The learned counsel for the petitioners in C.P. No, 52/2000 and 196/2000 supplementing the arguments of the learned counsel Mr. Muhammad Aslam Chishti, Advocate further argued that the petitioners were condemned un-heard before imposing a major penalty. It is further stated that by adopting procedure contained in Efficiency and Disciplinary Rules, 1992 (here-in-after referred to Rules of 1992), the Board is estopped to challenge the validity of Rules of 1992 on the ground that the same were not made applicable to the employees of the Board after repeal of Rules of 1983 as incorporated in regulation-11 of Regulations 1991. According to learned counsel the Rules of 1983 were made applicable to the employee of the Board and according to regulations 11 amendments brought from time to time in the said Rules, were also applicable, therefore, after repeal of the Rules of 1983, the rules framed in 1992 were also applicable to the employees of the Board as amendment includes repeal and re-enactment etc. On the other hand, Mr. K.N. Kohli learned counsel for the Respondent No, 2 at the very outset objected to the maintainability of the petitions on the ground that principle of Master and Servant was applicable in the present petitions because there were no statutory rules governing the terms and conditions of the employee of Board but Rules of 1983 applicable to the Government Servants were adopted by virtue of Regulation-11 of the Regulations, 1991. It is further contended by the learned, counsel that even otherwise Rules of 1983 were repealed by the Rules of 1992 and were no more in field and the rules framed in 1992 were not made applicable to the employees of the Board by any regulation with the approval of Government, therefore, no statutory rules were in field at the time of enquiry and passing of impugned orders, as such, the relationship between the parties was one of Master and Servant and the impugned orders cannot be questioned in Constitutional jurisdiction. At the most the petitioners can claim damages.
6. On merits the learned counsel contended that during the enquiry before the Special Committee, petitioners were given opportunity of hearing as well as they were also personally heard by the Respondent No, 2 after issuance of Charge sheet and before passing of the impugned orders, as such; the petitioners could not compliant to have been retired from service without hearing. The learned counsel further urged that the Board was competent in adopting summary procedure in the matter instead of holding a regular enquiry. The learned counsel relied upon the case law reported in PSC 1994 page 42, 2000 PLC (Civil Service) 1068 and PLD 1990 Quetta page-8.
7. Learned A.G. adopted the arguments of the learned counsel for Respondent No, 2.
8. We have anxiously considered the respective contentions put forth buy the learned counsel for the parties in the light of relevant law and regulations and documents relied by the parties.
9. It would be expedient to firstly determine the question as to whether the petitioners were governed by statutory rules or otherwise at the time of enquiry and passing of impugned orders.
10. The Board was set up under Balochistan Ordinance-X of 1997. According to Section 3 of the said Ordinance Board is a body corporate and by virtue of Section 11 is empowered to appoint such officers and staff, as it may consider necessary. Similarly under Section 12 of the Ordinance Government of Balochistan is controlling authority of the Board and under Section 20 Board has been empowered to make regulations subject to the approval of the Government of Balochistan. In the year 1991, the Board under the power conferred upon it by virtue of Section 20 framed with the approval of Government Regulations called Board of Intermediate and Secondary Education Employees Service Regulations, 1991. Under Regulation-11 Service laws applicable to Government Servant were made applicable to the employees of the Board. For the sake of convenience the said Regulation is reproduced herein below: "11. Subject to the provisions of the Ordinance and Regulations of the Board, the following rules as amended from time to time shall apply mutatis mutandis to the employee of the Board:
(i) The Balochistan Civil Servant (Efficiency and Discipline) Rules, 1983.
(iii) The Balochistan Government Servants (Conduct) Rules, 1979.
(v) Balochistan Civil Servants (Appeal) Rules, 1983.
(a) Any reference to a Government Servant Civil Servants shall be construed to be a reference to the employee of the Board.
(b) Any reference to the Head of Department shall be construed to be a reference to the Chairman of the Board.
(c) Any reference to Secretary of the Government shall be construed to be a reference to the Board.
(d) A reference to the Government shall' be construed to be a reference to the Controlling Authority.
(e) The Controlling Authority, the Board and the Chairman may by general or special order delegate to any officer or official of the Board, any of these powers under these rules, where necessary to such conditions as may be specified."
11. Here we may mention that according to above said regulation Balochistan Civil Servant (Efficiency and Discipline) Rules, 1983 were made applicable to the employees of the Board mutatis mutandis as amended from time to time but the said rules were repealed under Rule 16 of the Rules of 1992 thus at the time of action taken against the petitioners the rules incorporated in Regulation 1991 were no more in field. The question arises whether the new Rules framed in 1992 by the Government for Government servants would be applicable to the employees of the Board in place of Rules of 1983 incorporated in the Service Regulations, 1991. It is important to note that after repeal of Rules of 1983 the new rules made in 1992 were not adopted or incorporated in the Regulations, 1991 by the Board nor any approval of the Government was obtained in this behalf as provided by Section 20 of the Ordinance X of 1977. We are conscious of the fact that under Section 8 of the General Clauses Act when any Act or Regulation is repealed and re-enacted the reference of any provision of the former enactment in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provision so re-enacted but we may observe here that the Rules of 1992 were neither enacted/promulgated by the Provincial or National Assembly nor it can be termed as any Regulation made by President or the Governor under the powers conferred upon them by virtue of the Constitution of the Islamic Republic of Pakistan, as such; Section 8 is not applicable to the rules framed nor it can be construed that the Rules of 1992 have become applicable to the employees of the Board in place of Rules of 1983 by reference. In reaching to this conclusion we are fortified by the observation made in the case reported in PLD 1974 Baghdad-ul-Jadid page 20. The relevant observations are reproduced here under: "For this purpose, reliance was placed upon Section 8 of the General Clauses Act, 1897 and its corresponding Section 7 in the West Pakistan General Clauses Act, 1956. Section 8, sub-section (1) of the General Clauses Act is reproduced below: "Where this Act, or any Central Act or regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted."
12. This section cannot apply as it is applicable when a Central Act or Regulation is repealed and re- enacted. Similarly Section 7. of the West Pakistan General Clauses Act which lays down the same principle regarding West Pakistan Acts is also applicable only to cases where a Provincial Act is repealed and re-enacted. The term "Central Act" according to Section 3(8aa) of the General.
13. Clauses Act, means an Act of Central Legislature while the term "Regulation" has been defined in Section 3(46) of the same Act as meaning "a regulation made by the Central Government under the Government of India Act, 1870, or the Government of India Act, 1915, or .the Government of India Act, or under Section 95 or Section 96 of the Government of India Act, 1935, or by the Governor under Article 104 of the Constitution of 1956 or by the President or by the Governor under Article 223 of the Constitution of 1962. All these enactments were provisions for legislation in particular areas in which the acts of Parliament or Provincial Assembly do not apply.
14. In the present case the repeal and re-enactment is not of any Central or Provincial Act or regulation. This is a case of repeal of rules by newly framed set of rules. Section 8 of the General Clauses Act or Section 7 of the West Pakistan General Clauses Act cannot, therefore, apply to Rule 14.18 of the Civil Services Rules.
15. The next question is whether there is any principle of law which may justify the substitution canvassed by the learned counsel for the respondent. The principle of law in regard to repeal as summed up in Maxwell's Interpretation of Statutes (12th Edition) is as follows: "The common law rule was that if an Act was expired or was repealed it was regarded in the absence of provisions to the contrary as having never existed, except as to matters and transaction past and closed."
16. "This principle of law underwent a change by the introduction of the Interpretation Act, 1889 particularly by its Section 38. Section 38(1) provides that where the Interpretation Act or any Act passed after the commencement of this Act repeals and re-enacts, with or without modification, any provision of a former Act, references in any other Act to the provisions so repealed shall unless the contrary intention appears, be construed as references to the provisions so re-enacted. This provision has been incorporated in Section 8 of the General Clauses Act of 1897 and Section 7 of the West Pakistan General Clauses Act, 1956. Sub-section (2) of Section 38 of the Interpretation Act provides the effects of repeal as given in Section 6 of the General Clauses Act, 1897. It is, therefore, clear that if the provisions of Sections 6 and 8 are not applicable in terms to a particular repeal the principles that the repealed provisions will be regarded as having never existed except as to matters and, transactions past and closed, will apply."
17. The un-reported judgment of this Court relied by the learned counsel for the petitioners is not applicable to the facts and circumstances of the present case as in that case there were statutory regulations known as the "Model Residential Public School Regulation 1988 were applicable to the employees of the Balochistan Residential College Loralai set up under the Ordinance and the Hon'ble Judges keeping in view -the applications of the statutory rules came to the conclusion that the principle of Master and Servant was not applicable to the employees of the said College. The relevant observations made in the above un-reported judgment are reproduced as under: "Learned Counsel for petitioner frankly conceded that as under the Ordinance of 1983 competent authority have framed service conduct regulations known as The Model Residential Public School Regulation, 1988, therefore principles of master and servant shall not be applicable on the instant case, as such; in view of admission of the petitioner's counsel we are inclined to accept that as there are statutory service and conduct regulations to govern the service affairs of the employees of Balochistan Residential College therefore, principal enunciated by Hon'ble Supreme Court in the judgment of Principle Cadet College Kohat and another us. Muhammad Shab Qureshi, would not be applicable.
18. Facts of the present case are different from the facts of above-mentioned. judgment as in the present case at the time of action against the petitioners no statutory rules governing terms and conditions of the service of employees were in field. The Rules of 1983 made applicable by virtue of Regulation 11 were already repealed and the new rules framed for Government employees in the year 1992 were not made expressly applicable by adopting procedure prescribed in Section 20 of the Ordinance X of 1977. The Board while taking action has adopted procedure laid down in the Rules of 1992 for its convenience but it does not means that the same have binding effect as that of statutory rules made under the provisions of any statute. We are also not inclined to agree with the contention of learned counsel that the amendment includes repeal and re-enactment etc., as such; the rules framed in the year 1992 will be presumed to have been made applicable in place of repealed Rules of 1983.
19. In Black's Law Dictionary the word "Amendment" has been defined as under: "AMENDMENT. To change or modify for the better. To alter by modification, deletion, or addition.
20. Similarly the word "repeal" has been defined as follows: "REPEAL. The abrogation or annulling of a previously existing law by the enactment of a subsequent statute which declares that the former law shall be revoked and abrogated (which is called "express" repeal), or which contains provisions so contrary to or irreconcilable with those of the earlier law that only, one of the two statutes can stand in force (called "implied" repeal). To revoke, to rescind or abrogate by authority, Colconda Lead Mines u. Neill, 82 Idaho 96, 350 p. 2d 221, 223.
21. While distinguishing amendment from repeal it has been noted as under in Black's Law Dictionary 5th Edition: "Amendment distinguished. "Repeal" of a law means its complete abrogation by the enactment of a subsequent statute, whereas the "amendment" of a statute means an alteration in the law already existing, leaving some part of the original still standing."
22. Thus from the above definition it is crystal clear that the term amendment does not include "repeal" and "re-enactment", therefore, it cannot be presumed that after reframing of rules in the year 1992, the same will automatically be applicable in place of Rules of 1983 by virtue of Regulation 11 of the Regulation 1991. From the above discussion, we are of the considered view that at the time of action of passing of impugned order by Respondent No, 2 no statutory rules governing the terms and conditions of the employees of Board were in existence, as such; the relation between the parties was one of Master and Servant. Moreover; even otherwise by mere adoption or incorporation of statutory rules the relationship of the employees with employer does not became statutory; In this behalf it would be advantageous to reproduce the relevant observation made in judgment reported in 1984 PSC 42: 'Punjab Civil Servants Act was made applicable to employees of WASA--There being no statutory control over the terms and conditions on which an employee could be engaged--Employee on termination of service sought the protection of S. 10 of Punjab Civil Servants Act--Held: By mere application incorporation of Civil Servants Act or Statutory Rules the relationship of master and Servant employee, does not transfer into employees statutory relationship and, could not claim any legal character as such; Civil Court had no jurisdiction to intervene by a declaratory relief. Similarly in a case reported in 2000 PLC (CS) page 1068 wherein Punjab Civil Servant (E&D) Rules, 1975 were made applicable to the employees of Board of Intermediate and Secondary Education Punjab, it was held that by adopting Punjab Civil Servant (E&D) Rules by the Board, the relationship of the employees with the Board will not become statutory.
23. After coming to the conclusion that the relationship between the parties was that of Master and servant we deem it not necessary to go into the merit of the case because the petitions are not maintainable keeping in view the principles and dictum laid down by the Hon'ble Supreme Court in the following judgments:
(i) PLD 1984 SC 194.
(ii) 1992 SCM R 1112.
(iii) 1993 SCM R 346.
(iv) 1998 SCM R 68.
24. For the foregoing reasons the petitions being not maintainable, are dismissed. The parties are left to bear their own costs.