' This order shall also dispose of another Writ Petition No, 748-S-79, as both of them raise common questions of law and are directed against the same order. The grievance of the petitioners arose in the following circumstances.
2. (i) Habibullah petitioner was originally an employee of the Central Government. He was sent on deputation on 1st September, 1955 to the Small Industries Corporation, established under Act XXIX of 1956 of the Central Legislature. Later, he was declared surplus by his parent Department on 30th December, 1959, on account of abolition of his post and was absorbed in the Corporation. Since then he has been with the Corporation and was working as Joint Director (Accounts) in National Pay Scale 19, when the impugned order dated 5th February, 1979, terminating his service was passed.
(ii) Riasat Ali petitioner in the other writ petition was appointed as Senior Industrial Credit Officer in the Small Industries Corporation on 25th April, 1961. He has since carried on and was working as Joint Director (C & D) in National Pay Scale 19, when his services were terminated. Both the petitioners were paid 180 days emoluments in lieu of notice and asked to hand overcharge forthwith.
3. (i) Since its inception in 1956, the Corporation has faced many legal developments and it will be useful to narrate the same before dealing with the dispute. The original Small Industries Corporation was created under Act, XXIX of 1956, PLD 1956 Central Statutes 336 enforced on 18th April, 1956, by the President. Its section 46 (2)(k) read with section 13 provided for framing of regulations for the employees. The regulations were made on 9th October, 1957, and a copy of it has been placed on record. On 4th June, 1962, the above Corporation was dissolved by Ordinance XXXVI of 1962 of the Central Legislature-PLD 1962 Central Statutes 551. Section 3(b) provided that Officers and employees of the dissolved Corporation shall be transferred to and employed by the Provincial Corporations in such manner and on such terms and conditions as may be specified in the order.
(ii) Simultaneously, the Government of West Pakistan was obliged to establish a new body by the name of West Pakistan Industrial Development Corporation under section 3(2) of Ordinance, XXXVIII of 1962. Section 10(1) authorised the new Corporation to appoint Officers to such terms and conditions as it thought fit. Notwithstanding above provisions, section 10(2) obliged the Corporation to appoint, subject to the provisions of subsections (3) and (4), employees and Officers of the dissolved Corporation, as may be transferred to it under Ordinance, XXXVI of 1962. Subsection (3) empowered the Provincial Government to determine the terms and conditions of their employment but till then the previous terms and conditions could apply, if so directed. An order dated 30th June, 1962, was also passed by the Central Government under section 3(b) of Ordinance, XXXVI of 1962 directing that Officers and employees of the Small Industries Corporation were transferred on the same terms and conditions on which they were employed by the Small Industries Corporation.
(iii) On 30th September, 1965, the Governor of West Pakistan promulgated West Pakistan Small Industries Corporation Ordinance, 1965, (XXX of 1965). It was provided in section 40 that as from the coming in force of the Ordinance, the Small Industries Division of the West Pakistan Industrial Development Corporation shall stand transferred to the West Pakistan Small Industries Corporation, created under section 3. Section 40(c) provided that:- "All Officers, advisers, consultants and employees of the Small Industries Division of the West Pakistan Industrial Development Corporation shall stand transferred for service under the Corporation on the terms and conditions as were applicable to them on the 18th day of March, 1965."
(iv) On 30th June, 1972, the President promulgated the West Pakistan Small Industries Corporation (Dissolution) Ordinance, 1972 (XXIV of 1972). The West Pakistan Small. Industries Corporation as established under the above Ordinance was dissolved and its assets, properties etc. Transferred to the relevant Provinces. As for the employees section 5 provided: "Persons who were in the whole time employment of the Corporation immediately before the commencement of this Ordinance shall be transferred to, and appointed by the Provinces in accordance with the rules made by the President in this behalf; Provided that persons so transferred shall be appointed on such terms and conditions as the President may by order determine."
Section 6 took care of any difficulty that might arise. It conferred a power on the President to provide for the removal of difficulties arising out of, or in connection with, the dissolution of the Corporation or for effectively carrying out the purpose of this Ordinance in such manner as he may consider necessary or expedient and without prejudice to the provisions of that Ordinance.
(v) On 9th October, 1972, the Governor of the Punjab created the Punjab Small Industries Corporation vide section 3 of the Punjab Small Industries Corporation Ordinance (XVIII of 1972).
Section 11(1) empowered the Corporation, subject to such general or special order as Government may give to it from time to time, appoint such Officers, employees etc. As it considers necessary for the efficient performance of its functions on such terms and conditions as it may deem fit. Section 11(2) laid down that the Corporation shall appoint such Officers etc. As may be transferred to it by the Government on such terms and conditions as may be determined by the Government. Section 36 provided as under:- "36. Officers and other employees of the defunct West Pakistan Small Industries Corporation to be transferred to the Punjab Province in pursuance of the provisions of section 5 of the West Pakistan Small Industries Corporation (Dissolution) Ordinance, 1972, may be appointed for service under the Corporation on such terms and conditions as may be determined by Government."
' Later Act, XV of 1973, was also passed by the Provincial Legislature on 13th August, 1973, enacting the same provisions as referred to above.
4. A careful perusal of the legal developments referred to above would show that though the various Corporations were created or dissolved under various enactments from 1956 to 1965, the employees of the dissolved one were transferred, on the force of statutes, to the new creation. Their terms and conditions were left to be determined not by the new Corporation but the Government.
Ordinance XXIV of 1972, however, transferred the employees not to any Corporation but the Provinces. The petitioners were thus absorbed in the Punjab Provincial Establishment with effect from 30th June, 1972. Their terms and conditions were to be determined by the President. It was more than three months after the petitioners were transferred to be appointed by the Provinces that Ordinance XVIII of 1972 was enforced with section 36 reproduced above. Section 36 states that the employees of the defunct Corporation to be transferred to the Punjab Province . . . . May be appointed on such terms and conditions as may be determined by the Government. This provision is apparently in conflict with section 5 of Ordinance, XXIV of 1972, and must be reconciled or struck down.
5. The factual position leading to the impugned order, as it appears on the record produced by the respondents, is that on 17th October, 1978, the Secretary to the Government of Punjab (Industries Department) sent a copy of a secret letter to the Secretary, Services, General Administration and Information Department (hereinafter referred to as S. G. A. & I. D.), asking the Managing Director of the respondent Corporation to initiate action to implement the Government orders, after observing the prescribed formalities, in accordance with rules/contract governing the appointment of the petitioners. The letter of the S. G. A. & I. D. Stated that it had been decided to terminate services of the petitioners after observing prescribed formalities and payment of salary in lieu of notices. The Managing Director initiated action by putting up a note dated 18th October, 1978. He noted that the petitioners were placed in National Pay Scale 19 and the P. S. I. C. Board was authorised to remove them from service. He, therefore, thought it desirable to get approval of the Board before issuing notices to them. He further noted that as the meeting of the Board was not likely to be held in the near future, the file be circulated to the members.
6. On coming to know of the above action Habib Ullah petitioner filed Writ Petition No, 5077-S-78, on 24th October, 1978, on which an order to maintain status quo was passed by this Court on 25th October, 1978. The other petitioner followed suit. On 3rd February, 1979, Mr. Tanvir Ahmed Khan, Assistant Advocate-General appeared and stated on behalf of the respondents that they would take no action except in accordance with law. The writ petition was accordingly disposed of.
7. It may be mentioned here that after the note of the Managing Director dated 18th October, 1978, referred to in para. 5 above, the file went back to the Secretary Industries who signed it on 25th October, 1978, with the remark 'seen'. The Secretary Finance also signed it on 26th October, 1978, without any observation. The Chairman Planning and Development Board, however, noted on 26th October, 1978: "I would like to see, if possible, the papers leading to the decision of termination."
8. The case was sent back to the Secretary Industries who observed on 28th October, that no previous papers pertaining to that case were available in the Industries Department. According to him the case had been processed by the S. G. A. & I. D. Who conveyed the orders on 17th October, 1978. The S.
0. S. IV stated on 4th November, 1978, that the matter was sub judice. On 19th November, 1978, the Secretary Industries again requested to send the relevant papers leading to the orders of termination, to the Chairman P & D. The Secretary Industries on 4th December, sent the papers to the Chairman P & D and further observed that he may call Secretary, Finance and himself for discussion. Tt appears from note 30 that a summary submitted to the Governor/M. L. A. By the S. G.
A. & I. D. Was also sent to the Chairman P & D in answer to his querry. He observed on 19th Jannary, 1979, whether, in view of writ petition filed by Habibullah, against the termination order, served on him by the Managing Director, it was still in order to issue termination order, through the Board of P.
S. I. C.
9. On 3rd February, when the writ petition was disposed of, the Secretary, Industries noted; "In view of these decisions of the High Court order of the Governor terminating their services can now be implemented."
' The observations of the Secretary Industries, appear to have been approved by the Chairman P & D who merely put his signatures on 5th February, 1979. A third signature without remark seems to be that of the Managing Director. The Secretary P. S. I. C. Then put up a note stating that it had been decided by the members of the P. S. I. C. On 3rd February, and 5th February, 1979, to terminate the services of the two petitioners on payment of six months' salary in lieu of notice in accordance with clause 6(iii) of their appointment letters. This note had been sent to the Managing Director who approved it on the same day and the termination orders were served on the petitioners forthwith.
Subsequently, on 12th February, 1979, this decision was ratified and confirmed in a meeting of the Board having the necessary quorum.
10. The above facts on record and the legal position thus clearly prove the following:- (0 Both the petitioners were originally governed by the above-mentioned 1957, Service Regulations as they became employees of the Corpora. Tion in 1959 and 1961;
(ii) they stood transferred to be appointed by the Province in accordance with the rules made by the President in that behalf;
(iii) the petitioners could be appointed for service under the Corporation on such terms and conditions as may be determined by the Provincial Government (Admittedly no such order has been passed);
(iv) the entire exercise undertaken by the respondents was to perfunctorily execute the order of the Government/Governor;
(v) no member of the Board thought even for a moment, that the Government/Governor's order pre-required observance of the prescribed formalities before passing termination orders;
(vi) neither did the Managing Director state in his note dated 18th October, 1978, if any rules or contracts were applicable to the petitioners nor was it considered by any one of the members before putting their signatures on the file;
(vii) none of the members informed himself or the other members that the decision could be taken only in a valid meeting of the members of the Board with the necessary quorum of four, under section 16, after objectively considering the whole case. Rather they appear to have acted as subordinates to the Government and not members of the P. S. I. C. Board;
(viii) notes 38 and 39 of the relevant file relied upon by the Secretary of the Corporation, while issuing the termination orders, had signatures of only three members i. e. Secretary Industries, Chairman P & D and the Managing Director and the two notes were meant to implement the order of the Governor. There is no indication that they had to decide the case of the petitioners in accordance with any rules of service or the terms of the alleged contracts;
(ix) the Secretary of the respondent Corporation appears to have acted on his own or on the letter dated 7th October, 1978, of the S. G. A. & I. D. To terminate the petitioners' services by paying 180 days' pay in lieu, of notice. There is no decision of that sort by the members of the Board.
' The above inferences do point out conclusively that the impugned orders were passed perfunctorily and mechanically without application of slightest mind to any aspect of the case. The Supreme Court in the case of Mian Jamal Shah (1), laid down the following rule covering such a situation:- "There may be error apparent op the face of the record which may be due to an oversight; or the tribunal may not have properly applied its mind to an aspect of the matter before it. There is a duty cast on every judicial tribunal to properly apply its mind to questions of fact and of law. If there be any failure in the proper application of the mind the High Court can always quash the order and direct that the case be decided afresh in accordance with law . ."
' In fact this is now a very firmly established rule. Reference be made to Ghulam Mohi-ud-Din v.
Chief Settlement Commissioner (2), Muhammad Farooq Imam v. Claims Commissioner (3) and Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner (4). These petitions, therefore, must succeed on that basis alone.
11. The learned counsel for the respondents objected to the maintainability of these petitions on the ground that the relationship between
(1) PLD 1%6 SC I (2) P D 1964 SC 829
(3) PLD 1964 SC 585 (4) PLD 1964 SC 260 the petitioners and the respondents being of master and servant, no interference by this Court was warranted, in view of the law laid down by the Supreme Court in R. T. H. Janjua v. National Shipping Corporation (1). The rule laid down in that case was that only an incumbent holding public office can ask for the constitutional relief. The definition of 'public Office' borrowed from Extraordinary Legal Remedies, by Ferris at page 166, was approved. It is as under:- "A public office is the right, authority and duty created and conferred by law by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure, duration, emolument and duties."
' The contention, however, has no force.
12. The import of the above judgment was explained and expounded in the case of Akbar All Bokhari (2), holding that an Assistant Treasurer of State Bank of Pakistan, was a Public Officer. Again the judgment of the Supreme Court that holds the field now is Salahuddin v. Frontier Sugar Mills (3), in which practically the entire case-law was discussed and a criterion has been laid down to show as to who is performing functions in connection with the affairs of the Federation or Provinces. The relevant portion of the judgment is as under:- "It will be seen that the power conferred on the High Court under sub-clauses (a)(i) and (AO of clause (2) of Article 201 of the Interim Constitution can be exercised only in respect of a person performing, without the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority. If the person whose acts, actions or proceedings are challenged before the High Court, does not fall within any of the specified categories, then he would clearly not be amenable to this extraordinary jurisdiction.
' Now, what is meant by the phrase 'performing functions in connection with the affairs of the Federation or a Province'. It is clear that the reference is to governmental or state functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State i. e. By the Federal Government or a Provincial Government.
' Examples of such statutory corporations are the National Bank of Pakistan, the West Pakistan Water and. Power Development Authority; the National Shipping Corporation, the Agricultural Development Bank of Pakistan, and the large number of Universities functioning under, their respective statutes. On account of their common attributes, as mentioned in the preceding paragraph, they have all been regarded as persons performing functions in connection with the affairs of the Federation or a Province . . . "
' The respondent is one of such Corporations and the functions it is entitled to perform in sections 18 and 27 of Act XV of 1973, do constitute it as a person performing functions in connection with the affairs of a Province. These petitions are, therefore, maintainable on this short score alone.
13. It is to be noted that the question involved is not whether the petitioners as servants of the respondent-Corporation can get a relief but that the respondent being a person performing functions in connection with the affairs of a Province, was obliged to act in accordance with law, even if it was the employer and wanted to dispense with the petitioners' services. The distinction as referred to above was made by the Supreme Court in the case of Anjuman-e-Ahmadiya (1), as is clear from the following portion of the judgment:- "It is, therefore, clear from the provisions contained in the statute and the conditions in the deed of conveyance that if there has been a valid grant then it cannot be cancelled in the manner in which the authorities have purported to do in the present case. The case was thus clearly one in which the appellant was complaining of a non-performance of a public duty and asking for a direction that the authorities concerned should perform their public duty in accordance with law."
' In view of the above it is quite clear that these petitions asking for performance of action in accordance with law or calling in question the action of a person performing functions in connection with the affairs of the province, are maintainable. These would have been maintainable even otherwise as the respondent-Corporation is a local authority in view of section 30 of Act XV of 1973.
14. On merit the petitioners' contention is that they having been employed under the Corporation before the coming into force of Ordinance XXXVI of 1962, and after Act XXIX of 1956, both of them became subject to the service regulations of 1957 framed under section 46 (2) (k). Regulations 9 and 10 provide for confirmation of an employee after completion of six months or other extended probationary period. The services of a permanent employee could be terminated on abolition of a post preceded by three months' notice or three months' pay in lieu thereof, under Regulation 11. The other two modes provided in Regulations 12 and 13 are by resignation and retirement. As regards disciplinary matters the Government Servants Conduct Rules were made applicable.
15. On the dissolution of the Corporation in view of Ordinance XXXVI of 1962, the employees of the Corporation were to be employed as specified in the order. The order dated 30th June, 1962, allowed them the previous terms and conditions. Section 10(3) of Ordinance XXXVIII of 1962
(1) PLD 1966 SC 639 empowered the Provincial Government to determine the fresh terms and conditions of employment. No action was taken under this provision. The net result was that in the absence of new terms and conditions 1957 Regulations continued to operate.
16. Ordinance XXX of 1965 separated the Small Industries Division from the West Pakistan Industrial Development Corporation and laid down in section 40(c) that the employees of the Small Industries Division shall stand transferred to the Corporation on the terms and conditions as were applicable to them on 18th May, 1965. The case of the respondents is that in the meanwhile the two petitioners entered into an agreement with the Corporation accepting termination of their services on 180 days' notice on either side or payment of 180 days' pay in lieu of notice vide clause 6(iii). It is admitted that the Corporation had extended the offers on 28th January, 1965, and 2nd September 1964, respectively to the two petitioners who accepted it on 2nd March, 1965 and 30th September, 1964 respectively. The contention of the petitioners is that the agreements were void and ineffective. The significance of this objection of the respondents is that if the agreements held the field at the relevant time, the same stood validated and made operative by section 40(c) of Ordinance XXX of.
1965.
17. The learned counsel for the respondent heavily relied on a decision of a learned Single Judge of this Court, in Muhammad Nazir Chaudhry v. W. P. S. I. C. Writ Petition No, 1985-S-1978 in respect of an employee of the same Corporation and arising within the same legal framework, to say that in the absence of any terms and conditions having been determined by the Government or rules made by the President, the parties were governed by the contract. It is, however, to be noticed that it was not brought to his Lordship's notice that the so-called contract had no binding force as it had been entered into without any consideration. The question whether the parties could validly enter into a contract, when the previous terms and conditions framed under statutory provisions were still subsisting, was also not agitated or considered. In this view of the matter, I am constrained to say, with the greatest respect, at my command, that the above view cannot be followed in the presence of other dicta that is being referred to hereinbelow.
18. In West Pakistan Province v. Jamshed Miran (1) the Court was called upon to consider and decide the effect of an agreed condition, introduced during the continuance of the service of an employee. The views expressed by a Division Bench of this Court in that case are as under :- "There is another aspect of the case. The respondent was taken in service before Independence of 1947. He was a temporary employee but without a condition that his services would be terminated by one month's notice. He, therefore, under the provisions of sections 240 and 241, had more protection and security of service than such a temporary employee. It was laid down in section 3 of the Punjab Partition (Civil Services) Order, 1947, that any person, who immediately before the appointed day was serving the Punjab Province as an official, shall, with effect from the appointed day (i,e, the 14th day of August 1947), be entitled to receive from the Government of new Provinces the same conditions of services as regards rights and disciplinary matters or as the case may be in respect of the tenure of his
(1) PLD 1965 Lah. 729 office, or rights as similar thereto as changed circumstances may permit, as that person was entitled to immediately before the appointed day. That being the case, the respondent could not be subjected to a condition that his services could be terminated on one month's notice. The declaration obtained from him, therefore, tantamounts to violating the safeguards provided to him in the Punjab Partition (Civil Services) Order, 1947. I am, therefore, of the opinion that the condition imposed on the respondent was not valid in law and the same is without lawful authority and of no legal effect."
' Thus the petitioners who had similar protection under Ordinances XXXVI and XXXVIII of 1962, could not be asked to agree to or sign such a declaration. The so-called contracts are, therefore, not valid and operative.
19. Even otherwise, the Ordinance XXX of 1965, having been superseded by Ordinance XXIV of 1972, the future terms and conditions stood regulated not by the previous contracts but under its section 5 by which the petitioners were transferred to and appointed by the Province in accordance with the rules made by the President. The stipulation in section 40(c) of Ordinance XXX of 1965 was not continued further. It, therefore, lost whatever effect it did have and could not control the situation arising in 1979.
20. The field was thus covered by section 5 of Ordinance XXIV of 1972 promulgated by the President and section 36 of Ordinance XVIII of 1972 (Also Act XV of 1973) enforced by the Governor. A somewhat similar situation came up for consideration before a Division Bench of erstwhile High Court of West Pakistan in the case of Faizullah Khan v. Government of West Pakistan (1). The observations of their Lordships may be reproduced with advantage :- ig One should not forget that the Municipal Administration Ordinance, 1960, was promulgated by the President of Pakistan and under the law only he could amend any of the provisions of the Ordinance, but one finds that with regard to the post of Secretary in a Municipal Committee the provisions of the Ordinance have been changed by a Secretary to the Provincial Government. It cannot be doubted,' therefore, that the instructions contained in communications which issued from the Provincial Secretariat could not adversely affect the rights of any person, if those rights were conferred or preserved by the Ordinance."
21. The question whether such an agreement can be made during the existence of a legal or constitutional provision was considered by the Supreme Court in the case of Ghulam Sarwar v.
Pakistan (2) to observe as under :- "The most important question that arises in this appeal is whether the clause in the agreement of the appellant providing for termination of service on one month's notice is consistent with section 240 of the Government of India Act, 1935. If section 240 of the Government of India Act grants to the civil servant security of service to any extent whatsoever then an agreement of this kind made with a permanent Government employee would obviously be inconsistent with that section because if we hold that such an agreement is permissible with a permanent employee the Government may enter into such an agreement with all its permanent employees and the result would be that there
(1) PLD 1962 Lab. 840 (2) PLD 1962 SC 142 would be no security of service at all. Although this agreement provides for notice of one month, the logical conclusion of a finding in favour of its consistency with section 240 would be that even an agreement for notice of one day or for termination of service without notice would have to be upheld. The crux of the matter is this : was section 240 intended to leave it open to the Government to employ only such servants whose services are liable to termination at its will or on notice for a period or was it a necessary implication of the section that servants of the kind whose services can be terminated only after an opportunity to show cause must be employed? If it be held that the section contained a guarantee to civil servant against arbitrary termination of service we must hold that the impugned clause is inconsistent with section 240, for a guarantee against arbitrary termination of service necessarily implies the employment of persons to whom the guarantee is applicable and any attempt to avoid that guarantee by employing only such persons as are not entitled to this guarantee will be an attempt to defeat the law.
22. The view of another learned Judge in the above case at page 171 is as under :- ........... The effect of the construction contended for by the Railway Administration and adopted by the majority Judges of the High Court would involve the great injustice of limiting the constitutional guarantee only in cases of punishments. Whereas the construction which has found favour with us is free from such injustice and is quite consistent with the fair object of the Act which is to give statutory protection to the public servant against arbitrary acts of the Government. I, therefore, venture to think that the provisions of subsection (3) of section 240 cannot be evaded by saying that the action taken under the notice clause of the service agreement is not a punishment. In conclusion I must say that in this case the Railway Administration did not handle the case with scrupulous regard to their statutory duties and to the rights of the appellant."
23. The learned counsel for the respondents took a plea that there could be an employment of contract and that an action on the agreed terms would be unexceptionable. There is no quarrel with the proposition as it has been advanced. However, in order to rely on such a plea the employment must start on the basis of an agreement and it should not be intervened by some statutory provisions. Change of terms and conditions of service to the disadvantage of employees, of Government or statutory Corporations, already c in employment cannot be permitted through a mutual agreement, as it would be against public policy. The employer being placed in a position of authority and strength can always coerce employees to waive legal protection and accept contractual terms at the pain of losing his job. Further, such an agreement is against public policy and is hit by the rule laid down in E. A. Evans v. Muhammad Ashraf (1). There is thus no question of waiver or acquiescence as pleaded by the respondents.
24. Further, such an agreement is without consideration and hence void. The petitioners were already in service. They were being given nothing in lieu of the agreements. The observations of the Supreme Court on this point in Evans' case are as under :- "It lastly remains to consider as to whether even assuming that contracting (1) PLD 1964 SC 536 out was possible the contract set up in the present case could at all be enforced as a valid contract? It will be observed that a tenant under section 30 was entitled as of right to stay in the premises for a period of three years (now six years) on payment of the rent which he was paying immediately before the transfer. The occupation of the premises for this period, therefore, could not form the consideration for any contract, for, this was a right already assured to the tenant by law upon the condition of his paying rent at a particular rate. By allowing the tenant to continue to occupy the premises for this period the landlord or transferee was not giving him anything new or beyond what the law already gave him. The view of the High Court that the consideration for the agreement to pay higher rent was the right to occupy the premises even during this period of three years could not be correct. In order to create a valid and binding agreement there should have been some other consideration moving from the landlord for which the tenant would pay as double the rate at which he was entitled under the law to retain the premises."
25. The last employment of the petitioners came about in view of section 36 of Punjab Ordinance XVIII of 1972 enforced on 9th October, 1972. It provided that the petitioners be appointed for service under the Corporation on such terms and conditions as may be determined by the Provincial Government. Earlier, on 30th June 1972, they were ordered to be transferred to be appointed by the Province in accordance with the rules made by the President of Pakistan, vide section 5 of Ordinance XXIV of 1972. Thus if we take that the petitioners were meant to be appointed in a Corporation they would not simultaneously be governed by two sets of terms and conditions ; one framed by the President and the other by the Governor. On the other hand if the petitioners had been transferred to the Province as Provincial Government employees, then the Governor could further 'transfer them for service'; i. e. On deputation with the Corporation. Thus this .Is the only way to reconcile this apparent conflict.
26. There is another similar provision in section 11(2) whereby the Corporation is obliged to appoint such officers as are transferred to it by the Government on such terms and conditions as may be determinad by the Government. However, while section 11(2) is general, section 36 deals particularly with the employees of the defunct Corporation. Be that as it may, it is quite clear even without disentangling and reconciling this confused situation that the terms and conditions in the three cases i,e, section 5 of Central Ordinance XXIV of 1972, section 36 of the Punjab Ordinance XVIII of 1972 and section 36 of Act XV of 1973, were never left to be determined by the Corporation. It was only obliged to appoint the petitioners for service. Thus the Corporation was neither an appointing authority nor could it determine their terms and conditions. Any order passed by the Corporation is, therefore, without lawful authority.
27. It is also clear from the conclusions derived from record in para. 10 that only three members contributed each time to the notes dated 18th October of the Managing Director and dated 3rd February of the Secretary Industries. The quorum laid down in section 16 is four. The impugned orders are, therefore, bad in law even on that ground. Notwithstanding the above, the only way Board can transact its business is at its meetings under section 16(2). Section 16(3) lays down the voting procedure. According t section 4 the Management of the Corporation vests in the Board.
Thus the Board with a quorum is an indivisible whole and, therefore, must decide an #TBS (1 AIR 1936 P C 253 (2) PLD 1976 SC 258 #TBE matter entrusted to it by law as a body. This requirement can be departed from only if the law expressly permits. Wherever in other laws a decision by circulation is permitted it is specifically laid down. In the case in hand, no mode other than decision by the Board in a meeting is provided. It is now firmly established that when law provides doing of a particular thing in a particular way, all other modes of doing it are prohibited. Reference be made to the case of Nazir Ahmad (1).
28. As stated above, the Board ratified its previous decision taken by circulation amongst three members, in a meeting held on 12th February 1979. It will be useful to produce the resolution to fully understand its import: "The Managing Director informed the Board that in pursuance of the decision of the Government of the Punjab as also the P. S. I. C. Board of Members, the services of M/s. Habib Ullah, Joint Director (Accounts). And Riasat Ali Khan BajWa, Joint Director (C & D) have been terminated by paying them 180 days emoluments in lieu of notice and have been relieved of their duties w. e. f. 5-2-1979 (A. N.). The action was noted and ratified by the Board."
' The resolution again makes it clear that it was passed in pursuance of the decision of the Government. It has been discussed in para. 10 above, that the direction of the Government as contained in the said order was not complied with and the whole thing was done in a perfunctory manner. In any case the previous decision was void not only because it had been taken by three members by circulation of file but that there was no application of mind and support of any law. It is a well established rule of law that void orders cannot be ratified. Reference be made to Chairman, District Screening Committee v. Sharif Ahmad Hashmi (2). Thus the impugned orders remained ineffective and inoperative since their inception despite post facto ratification.
28. Before parting with this case it is necessary to mention that while representing the Government in the previous petitions filed by the petitioners, against the order of the Government, requiring termination of their services. Mr. Tanvir Ahmad Khan, Assistant Advocate-General had undertaken that the petitioners shall be dealt with in accordance with law. However, this undertaking which was also recorded in the order of this Court, was not reported or noted by the Secretary Industries, when he moved the file again "to implement the order of the Government." Conseqently, the other two members signed their names without saying a word, thinking probably they were just implementing the order of the Government. None of them paused to consider if they were required to appreciate any facts or law. The three officers were not only oblivious of the undertaking given to this Court but appear to be so indifferent as if they were deciding a very insignificant, trivial and routine matter. Orders passed with such a lack of interest do not inspire any confidence and cannot be condoned.
' For the reasons given above, there is no option but to accept these petitions. The impugned orders terminating the petitioners' services are declared to be without lawful authority and of no legal effect. The respondents shall also pay costs of the petitioners.