Javed Iqbal, J.--This appeal with leave of the Court is directed against the judgment dated 19.3.1997 passed by learned Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby the Intra- Court Appeal preferred on behalf of Syed Nazir Gillani (respondent) has been accepted and judgment dated 10.12.1991 passed by the learned Single Judge dismissing the writ petition of the respondent has been set aside.
2. Leave to appeal was granted by this Court vide order dated 30.6.1998 which is reproduced herein below to appreciate the legal and factual aspects of the controversy: "The respondent challenged termination of his services by the Petitioner No, 1 before the Lahore High Court. Contention raised on behalf of the respondent was that under the Pakistan Red Crescent National Headquarters (Staff) Service Regulations 1974, the Executive Committee of the petitioner was not empowered to terminate the respondent's services. An objection was raised on behalf of the petitioners that the said regulations had no statutory character nevertheless, the petition was allowed by the High Court and the respondent was ordered to be reinstated in service.
Maulvi Anwar-ul-Haq, learned counsel for the petitioners has argued that firstly, even assuming that the said Regulations were framed under the rule making power vesting in the Managing Body of the petitioners under Section 5 of the Pakistan Red Crescent Society Act No, XV of 1920 nevertheless, the said regulations are not statutory in character as no condition has been prescribed in Rule 5 reserving the power of supervision to the Government or any other body but the power to frame regulations has been left to the discretion of the said Society with no protection under the statute itself. Therefore, the relationship between the parties is purely governed by the principle of master and servant. Secondly, the contention was that the respondent was purely governed by a contract of service under which the petitioners had reserved for themselves the right to terminate his services which was within their own discretion. Reliance in this regard has been placed on the Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi (PLD 1975 SC 678), Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194), Chairman WAPDA v. Syed Jamil Ahmed (1993 SCMR 346), Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. (1995 SCMR, 453) and Habib Bank Limited v. Syed Zia-ul-Hassan Kazmi (1998 SCMR 60).
Mr. M. Akram Shaikh, learned counsel for the respondent on the other hand, had argued that no condition providing for such protection to the regulations has been made in Rule 5 of the said Act and power to frame rules has been left entirely to the discretion of the Managing Body of the society therefore, the said regulations which have strictly been framed within the power conferred upon the Managing Body under the said section have the same force as statutory rules. Reliance has been placed by the learned counsel on the cases of Mrs. Anisa Rehman v. P.I.AC. (1994 SCMR 2232) and Muhammad Salimullah v. Trustees of the Port of Karachi (PLD 1975 Kar. 758).
In our view, the question riased on behalf of the petitioners requires consideration. Leave is, therefore, granted."
3. Khawaja Muhammad Farooq, learned Sr. ASC entered appearance on behalf of appellants and argued with vehemence that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice as the learned Lahore High Court has ignored that the services of the respondent were not governed by any statutory rules. It is contended emphatically that the Pakistan Red Crescent Society Act, 1920 (hereinafter referred to as the Act") does not confer upon the Federal Government or its departments any power to make rules or regulations qua the service of employees of the Pakistan Red Crescent Society. Khawaja Muhammad Farooq, learned Sr. ASC while elaborating the said contention argued that Section 5 of the Act requires the Managing Body of the appellants to make rules for the management, control and procedure of the Society. No approval of the Federal Government is required for such purposes. It is also argued that it is well-entrenched legal proposition that where the Government, while setting up the Corporation, does not reserve to itself the power to regulate the terms of the services of the Corporation employees under the relevant statute and does not prescribe any condition but leaves it to the discretion of the Corporation by empowering it to frame Rules or Regulations in respect thereof without the intervention of the Government then the Corporation will be the sole arbiter in the matter of prescribing the terms and conditions of its employees and will be competent to deal with them in accordance with the terms and conditions prescribed by it. It is pointed out that in the writ petition there was no allegation that the order of termination of service has not been issued by the Competent Authority. It is further argued that the learned Division Bench has erred while holding that the order of termination was passed by some incompetent authority because order dated 10.6.1978 was issued by the Secretary General informing the respondent under directions of the Chairman of the Managing Body of the Society regarding termination of his services after one month's notice in accordance with the terms and conditions of his services duly incorporated in his appointment letter. It is urged emphatically that the learned High Court has ignored that under the relevant rules the Chairman of the Managing Body is also the Chairman of the Executive Body. Khawaja Muhammad Farooq, learned Sr. ASC has referred the provisions as contained in Rule 18(f) of the Act whereby the Executive Body is empowered to perform any duty laid on the Managing Body subject to the condition that any action taken by it shall be informed to the Managing Body during the next meeting. It is pointed out that the decision regarding the termination of respondent's service was taken in the meeting of the Executive Committee dated 8.6.1978 and it was reported to the Managing Body during its meeting held on 21.9.1978 which was subsequently confirmed on 16.12.1978 and accordingly the order was passed in accordance with the rules and regulations. It is contended that for the sake of argument if it is admitted that some irregularities were committed and the regulations in question were not followed in letter and spirit even then it would have no substantial bearing on the merits of the case because all such regulations are not statutory and are directory in nature enacted to run the business of the Society in a befitting manner. Khawaja Muhammad Farooq, learned Sr. ASC on behalf of appellants contended that the dictum laid down in case of Muhammad Saleemullah v. Trustees of the Port of Karachi and others (PLD 1975 Kar. 358) has been misconstrued and misinterpreted which cannot be made applicable to the case of respondent as the regulations framed by the Board of Karachi Port Trust were statutory in nature ,which aspect of the matter has been ignored by the learned. High Court without any rhyme and reason. It is argued that neither the writ petition was maintainable or the civil suit could have been filed by the respondent for reinstatement and the only remedy available in such like cases is that where wrongful dismissal is alleged, the suit for damages could have been filed by invoking the principle of Master and Servant which escaped from the notice of the High Court causing serious prejudice to the appellant.
4. Mr. Muhammad Akram Sheikh, learned Sr. ASC entered appearance on behalf of respondent and has strenuously controverted the view point as canvassed at bar on behalf of appellants by supporting the judgment impugned for the reasons enumerated therein with further submission that the rule of Master and Servant does not apply in cases where the terms and conditions of service are regulated by rules irrespective of the fact whether the same are statutory or otherwise.
It is pointed out that in case of violation of statutory Jules the remedy of an aggrieved person is invocation of Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan as well as a civil suit and in case of non-statutory rules the remedy of Service Tribunal was held to be available. In this regard reliance has been placed on the following cases: Mrs. M.N. Arshad v. Mrs. Naeema Khan (PLD 1990 SC 612), Walayat Ali Mir v. P.LA.C. (1995 SCMR 650), Dr. Anwar All Sahto v. Federation of Pakistan (PLD 2002 SC 101), Managing Director, SSGC Ltd. v.
Ghulam Abbas (PLD 2003 SC 724).
5. It is also argued that the concept of Master and Servant is no more available as with the passage of time various drastic changes have been made in it and now it has been universally accepted that the right of an individual could not hang to the fancies of individuals yielding State power which is a serious matter to be left to their arbitrary or capricious whims. When the discretion is structured, then adherence to such structured exercise of authority is insisted by all Courts upholding to the principle of rule of law and supremacy of Constitution. In this regard reference has been made to the dictum laid down in case of Walayat Ali Mir v. Pakistan International Airlines Corporation (1995 SCMR 650). Mr. Muhammad Akram Sheikh, learned Sr. ASC by elaborating the said argument further contended that the employees in public undertaking have a fundamental right enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan and such right is not only enforceable horizontally but also vertically. In this regard reference has been made to the case of LA Sharwani v. Government of Pakistan (1991 SCMR 1041) and Dr. Naveeda Tufail v. Government of the Punjab (2003 SCMR 291). It is argued with vehemence that the Pakistan Red Crescent Society is not an independent entity and a vital part of its functions have been assigned to the Government hence by no stretch of imagination it can be inferred that the rules and regulations of the Society can be enacted or framed by the Society itself without any interference from the Government. Mr. Muhammad Akram Sheikh, learned Sr. ASC on behalf of respondent specifically mentioned Section 3(i), (ii) (iii) of the Act whereby President of Pakistan is authority to appoint thirty members of the first Managing Body being President of the Society. It is pointed out that pursuant to Section 8(1-A) of the Act, it is the President who appoints the Chairman of the Branch Committee of the Capital of Federation and the Property pertained to the Society vests in the Branch Committee of each province in the manner and to such extent as may be determined by the President of Pakistan. It is pointed out that Vice-President of the Society shall be the Minister Incharge of Health as ex-officio and besides the general meetings are required to be presided over by the President of Pakistan and such meetings are also convened by the President who is also authorized to call extra-ordinary general meeting of the Society whenever so consider. It is pointed out that the President of Pakistan also nominates the Chairman of the Managing Body and also appoints three officers of the Federal Government on the Managing Body.
It is also mentioned that the President of Pakistan through Provincial Governors and the President of Azad Kashmir appoints five Chairmen of Branch Committees and one Chairman of Azad Kashmir Branch of the Managing Body. It is next argued that the Society plays a significant role in the affairs of the Federation specially during suffering or distress caused by the operation of war in Pakistan or any other country in which expeditionary forces from Pakistan, may, from time to time, be employed and for purposes cognate to that object and in maintaining Red Crescent Depots for military purposes. Mr. Muhammad Akram Sheikh, learned Sr. ASC after relying upon the various provisions of the Act, as mentioned herein above, concluded that Pakistan Red Crescent Society is not an independent entity having no exclusive domain or function but requires to play a significant role in the affairs. of Federation which cannot be done by keeping the Pakistan Red Crescent Society aloof or in isolation. It is next argued that any action of the Pakistan Red Crescent Society is justificiable and subject to judicial review. In this regard reference has been made to the case of Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) and Karachi Development Authority v. Wall Ahmed Khan (1991 SCMR 2434). It is argued that a private body, while performing certain functions, could be subject to the judicial review. In this regard reference has been made to the book titled "Judicial Review of Administrative Action" by de Smith, Woolf & Jowell. It is contended that learned High Court was fully competent to dilate upon the controversy and decide the same pursuant to Article 199 of the Constitution of Islamic Republic of Pakistan whereby such controversy could be examined and decided. In this regard reliance has been placed to the case of Anwar Aziz v. Federation of Pakistan (PLD 2001 SC 549), Tahira Almas v.
Islamic Republic of Pakistan (PLD 2002 SC 830). It is argued with vehemence that the functionaries of State, statutory bodies and statutory corporations including statutory Universities were required to act strictly within the defined spheres of their authority conferred by law. Any transgression, abuse of power or colourful exercise thereof by such functionaries was open to judicial review by the High Court in its Constitutional jurisdiction. Reference in this regard has been made to Muhammad Nazir Khan v. Mubashar Hasan (PLD 1974 Lah. 49) and Muhammad Baran v. Member [Settlement & Rehabilitation] (PLD 1991 SC 691). While concluding the said point it is argued that the High Court in exercise of its extra-ordinary Constitutional jurisdiction under Article 199 of the Constitution enjoys very wide and immense powers to correct error, issue any order or direction in the interest of justice and to safeguard the fundamental rights of the citizens guaranteed by the Constitution. Lastly it is argued that the Pakistan Red Crescent Society being a statutory entity cannot violate its own regulations having the sanctity of law and all such actions can be declared null and void.
6. We have carefully examined the respective contentions as agitated on behalf of the parties and perused the judgment passed by learned Single Bench of the Lahore High Court, Lahore, in writ petition as well as the judgment impugned whereby Intra-Court Appeal was disposed of. After having gone through the relevant record we are of the view that the entire controversy revolves around the legal character of Pakistan Red Crescent Society, which requires determination to set the controversy at naught. There is no cavil to the proposition that the precise and prime object of the Society is to provide relief and other aid to the sick and wounded and other purposes of a like nature. It is to be noted that the nature and character of the Pakistan Red Crescent Society was examined in Ziaullah Khan Niazi v. Chairman Pakistan Red Crescent Society (2004 SCMR 189) and it was observed as follows: "5. We have heard the learned counsel for the parties at length. We find that the respondent- Society was constituted by the provisions of Section 2 of the Pakistan Red Crescent Society Act (XV of 1920) (hereinafter referred to as the Act). Its operational area covers the whole of Pakistan. The President of Islamic Republic of Pakistan is the President of the Society as provided by Section 3 of the Act, By Section 4 of the Act it is a body corporate. having perpetual succession and a common seal with power to hold and acquire property, movable and immovable and may sue or be sued by 'the name of the Society. As enumerated in the General Principles of Society, its object and principal aims include the prevention and alleviation of the suffering with complete impartiality both at national and international level and to render voluntary aid to the sick and wounded of the armed forces in times of war in accordance with spirit and conditions of the Geneva Conference and the Treaties of Red Cross to which Pakistan has given its adhesion. The Act, being an existing law was amended by the Central Legislature/ Parliament from time to time The Society cannot be treated as a person performing functions in connection with the affairs of the province. Therefore, the employees of the Society cannot be treated, as civil servants of the Province of Punjab, by any stretch of imagination. They cannot invoke the jurisdiction of the Punjab Service Tribunal merely on the ground that they are employed in the provincial branch of the Society. The impugned judgment of the Tribunal suffers from defect of jurisdiction."
7. A careful perusal of the above-mentioned observations would reveal that it has been decided in a categoric manner that the Pakistan Red Crescent Society cannot be treated as a person performing function in connection with the affairs of the Federation or Province. We are conscious of the fact that the President of Pakistan is the President of the Pakistan Red Crescent Society and Minister Health, Government of Pakistan, is the ex-officio Vice-President but it would have no substantial bearing on the legal character of the Society because no budget allocation has been made by the Federal Government and no share capital is involved. The Pakistan Red Crescent Society generates its income from the donation made by public and allocation from International Agencies having a charitable character. Occasionally the Pakistan Red Crescent Society may get some "grant" and "aid" from Government but it cannot be equated to that of "regular budget allocation" and thus its independent entity remains unaffected. Besides that the Managing Body patrons and required to contribute Rs, 10,000/-, Life time Members Rs, 500/- and the Annual Members and Associate Members contribute Rs, 12/- and Rs, 2/- per annum respectively. The Society may request for foreign assistance and donation usually made by various Governments at the time of emergency. Besides that to raise funds, the Society holds Red Cross weeks, raffles Meena Bazar and general appeals soliciting public donations. It is pertinent to point out that under Section 5 of the Act the management and control of the affairs of the Society exclusively vests in the Managing Body. Basically the Society has its genesis in, Geneva Convention which was initially held on October 26,,1863 which was followed by Hague Convention and it was universally agreed that Red Cross/Red Crescent Societies are going to be absolutely non-political and they would have access to take care of the sick and wounded without any hindrance. In the light of what has been mentioned hereinabove, the only inescapable conclusion would be that Federal or Provincial Governments have nothing to do with the affairs of the'Society and vice-versa.
8. The other important question would be whether the services of respondent were governed by any statutory rules or otherwise? It transpired from the scrutiny of record that the disciplinary proceedings were initiated against the respondent under the Pakistan Red Crescent Society (Staff)
Service Regulation, 1974 (hereinafter referred to as the 'Regulation'). First of all we have to examine the nature of the Regulation to see as to whether it is statutory or non-statutory. The Regulation was framed pursuant to powers as conferred upon the Managing Body of the Pakistan Red Crescent Society under Section 5 of the Act, which is reproduced herein below for ready reference: "5. Power to make Rules.--The Managing Body shall within 6 months of its Constitution make Rules for the management, control and procedure of the Society. The Rules may provide among other matters for the following namely--
(a) the conditions of membership of the Society;
(b) the appointment and term of office of members of the Managing Body;
(c) the choice of representatives of international and other Committees;
(d) representation on the Managing Body of Provincial and State Branch Committees and affiliated societies and bodies;
(e) the Constitution of Finance, Medical and other Committees and the delegation of powers to them; and
(f) the regulation of the procedure generally of the Society and Managing Body."
9. A careful perusal of the said rule would indicate that the "Managing Body" is competent to frame rules for the management control and procedure of the Society. The rule-making powers has been conferred upon the Managing Body in an unambiguous manner and from whatever angle it is interpreted no role for framing of rules has been assigned to the Government and more so no such role has been reserved by the Government for itself. It is worth mentioning that no sanction or approval from any quarter including the Government is required for framing of such rules which shall be framed by the Managing Body alone. It can thus safely be inferred that the powers qua rule-making exclusively fall within the jurisdictional domain of Managing Body and the ultimate conclusion would be that the rules or regulations framed by the Managing Body are non-statutory.
It is well settled by now that "where the Government while setting up a Corporation does not reserve to itself the power to regulate the terms of service of the Corporation's employees under the relevant statute and does not prescribe any condition, but leaves it to the discretion of the Corporation by empowering it to frame rules or regulations in respect thereof without the Government's intervention, then the Corporation will be the sole arbiter in the matter of prescribing the terms and conditions of its employees and will be competent to deal with them in accordance with the terms and conditions prescribed by it. In such a case neither a suit nor a writ petition for the relief of reinstatement will be competent and the remedy of an employee, for wrongful dismissal from or of termination of service will be a suit for damages as the principle of master and servant will be applicable. However, where the terms and conditions of service of an employee of a statutory Corporation is regulated by a statute or statutory rules, any action prejudicial taken against him in derogation or in violation of the statute and/or the statutory rules will give him a cause of action to file a suit or a writ petition for the relief of reinstatement, as the power of the Corporation will be fettered with the statutory provisions and the principle of master and servant will not be applicable. For the purpose of deciding the factum, whether the rules or the regulations of a Corporation have the statutory force, the determining factor will not be their form or name, but the source under which they have been framed." (Emphasis provided) (Chairman WAPDA v. Jamil Ahmed (1993 SCMR 346), Muhammad Yusuf Shah v. Pakistan International Airlines Corporation (PLD 1981 SC 224).
10.We have also examined the Regulation in the light of criterion as mentioned herein above and we are of the considered opinion that the Regulation having been framed under Section 5 of the Act did not have the statutory force and therefore, the respondent would not be legally entitled for the invocation of Constitutional jurisdiction for seeking his reinstatement. In this regard reference can be made to the following authorities: "Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; National Bank of Pakistan v.
Sindh Labour Appellate Tribunal and others 1990 PLC 197; National Bank of Pakistan v. Manzoorul Hassan 1989 SCMR 832; Muhammad Mumtaz Javed v. Pakistan through Secretary, Ministry of Communication, Government of Pakistan and 2 others 1988 PLC (C.S.) 705 and Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612.
11. We have also adverted to the question as to whether the respondent could have invoked the Constitutional jurisdiction for the redressal of his grievances or otherwise? It is settled law that an employee of a corporation in the absence of violation of law or any statutory rule could not press into service the Constitution jurisdiction or civil jurisdiction for seeking relief of reinstatement in service. His remedy against wrongful dismissal or termination is to claim damages. In this regard we are fortified by the dictum laid down in he following authorities: Mrs. M.N. Arshad v. Mrs. Naeema Khan PLD 1990 SC 612, Messrs Malik and Haq and another v.
Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531; Zainul Abidin v. Multan Central Cooperative Bank Limited, Multan PLD 1966 SC 445; The Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustom Ali and another PLD 1966 SC 848; Abdul Salam Mehta v. Chairman, Water and Power Development Authority and another 1970 SCMR 40; Lt. Col. Shujauddin Ahmad v. Oil & Gas Development Corporation 1971 SCMR 566; R.T.A Janjua v.
National Shipping Corporation PLD 1974 SC 146; The Principal, Cadet College, Kohat and another v.
Muhammad Shoab Qureshi PLD 1984 SC 170, Anwar Hussain v. Agricultural Development Bank of Pakistan and another PLD 1984 SC 194, Syed Akbar Ali Bokhari v. State Bank of Pakistan and others PLD 1977 Lah. 234; Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224, the Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275.
12. It may not be out of place to mention here that, this Court has consistently held that in the case of an employee of a corporation where protection cannot be sought under any statutory instrument or enactment the relationship between the employer and employee is that of a Master and Servant as enunciated in various judicial pronouncements which still hold the field are as under:--
(i) Chairman of East Pakistan Development Corporation v. Rustam Ali (PLD 1966 SC 848);
(ii) Lahore Central Cooperative Bank Limited v. Fir Shaifullah Shah (PLD 1959 SC (Pak) 210);
(iii) Shahid Khalil v. P.I.A C. Karachi (1971 SCMR 568);
(iv) A George v. Pakistan International Airlines Corporation (PLD 1971 Lah. 748); (v)Muhammad Umar Malik v. The Muslim Commercial, Bank Ltd. through its President, Karachi and 2 others (1995 SCMR 453); OD Habib Bank Limited v. Ziaul Hassan Kazmi (1998 SCMR 60); (vii) Raziuddin v. Chairman, PIAC (PLD 1992 SC 531);
(viii) Nisar Ahmed v. The Director, Jhiltan Ghee Mill (1987 SCMR 1836);
(ix) Sindh Road Transport Corporation u. Muhammad Ali G. Khokhar (1990 SCMR 1404);
(x) Agricultural Development Bank v. Muhammad Sharif (1988 SCMR 597);
(xi) Zeba Mumtaz v. First Women Bank Ltd. (PLD 1999 SC 1106).
13.We have also examined the case law as referred to by Mr. Muhammad Akram Sheikh, learned Sr. ASC which is not applicable being distinguishable.
14. The upshot of the above-mentioned discussion is that the appeal is accepted and judgment impugned is set aside. The Constitutional jurisdiction as conferred upon the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan could not have been invoked by the respondent. The respondent may approach the forum concerned for redressal of his grievance, if so desired.