1. 'GHULAM 'MUSTAFA MUGHAL, J.--- Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the vires of Ordinance XV of 2007 promulgated on 25-8- 2007 have been called in question for having been promulgated without legislative competence and in violation of subsection (1), clauses (a), (b) and (c) of section 31 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Petitioner herein, has also challenged the legality and propriety of even dated notifications issued on 30-8-2007, whereby, Chairman, Vice Chairman and Secretary of the Pakistan Red Crescent Society, Branch of AJ&K, have been removed from their respective offices and an Administrator is appointed for performance of the functions of the aforesaid offices. It is alleged that the Ordinance No,XV of 2007 and notifications issued by the President are mala fide and beyond legislative competence because the Azad Jammu and Kashmir Legislative Assembly cannot amend a foreign law namely Pakistan Red Crescent Society Act, 1920.
2. ' The petition has been resisted by the respondents by filing written statements. It is pleaded by them that impugned Ordinance has been promulgated under section 41 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and the same cannot be questioned on the ground of mala fide or legislative incompetence. It is also pleaded that no mala fide can be attributed to the Legislature as well as to the President of AJ&K who is vested with the power to promulgate an Ordinance in case of emergency visualized by section 41 of the Constitution Act, 1974. It is also stated that various complaints were received by the President of AJ&K about the misconduct, misappropriation and mismanagement of the office bearers of the AJ&K Branch of Pakistan Red Crescent Society, therefore, their removal was ordered rightly and competently by the President. It is further claimed that the amendment made in the Act XV of 2001 is neither mala fide nor is in contravention of any provision of the Interim Constitution Act, rather has been effected for bringing the same in line with the various judgments of the Supreme Court of Azad Jammu and Kashmir.
3. ' Mr. Ashfaq Hussain Kiani, the learned Advocate for the petitioner, has traced the historical background of Pakistan Red Crescent Society and argued that this Society was established vide Act, XV of 1920 in India and after the creation of Pakistan the said Act was adopted in Pakistan and Pakistan Red Crescent Society was established in accordance with the provisions of the said Act.
4. The President of Pakistan is the President of the Society and a branch committee for each of the Provinces has been established in accordance with the provisions of the said Act. He argued that for regularizing the functions and working of the Society in Azad Jammu and Kashmir, its functions stood extended by the AJ&K Legislative Assembly vide Act XV of 2001. According to the learned Advocate, the effect of this extension is that Pakistan Red Crescent Society has established its branch in AJ&K. According to him, the President of Azad Jammu and Kashmir has no legislative authority to amend a foreign law. He submitted that the impugned Ordinance is violative of subsection (1) clauses (a), (b) and (c) of section 31 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 because neither the Council nor the Assembly is vested with any power to enact and legislate about the matters covered by these clauses. He maintained that the establishment of Pakistan Red Crescent Society and extension of its functions are fully covered by clauses (a) and (d) of subsection (3) of said section. The learned Advocate further argued that as the promulgation of the Ordinance is ultra vires the Interim Constitution Act of 1974, therefore, removal of the petitioner as well as the appointment of the Administrator by the President of AJ&K is also without lawful authority.
5. ' Raja Gul Majeed Khan, the learned Advocate-General, while controverting the arguments submitted that the petitioner has not challenged Act XV of 2001, whereby jurisdiction, scope and functions of the Pakistan Red Crescent Society have been extended to the Azad Jammu and Kashmir, therefore, he cannot challenge the amendment made in the aforesaid Act by the President of AJ&K in exercise of the powers vested in him, under section 41 of the, Azad Jammu and Kashmir Interim Constitution Act, 1974. He argued that the impugned amendment has been made with bona fide intention, in line with the judgments of the Superior Courts which cannot be challenged on the ground of mala fide etc. He placed reliance on the following cases:--
(1) The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmed Khan and others PLD 1974 SC 151.
(2) Lt.-Gen. (Retd.) Jamshaid Gulzar Chairman F.P.S.C., Islamabad and 4 others v. Federation of Pakistan through Secretary Establishment Division, Govt. Of Pakistan, Pak Secretariat Islamabad and 2 others 2006 YLR 425.
(3) Ch. Muhammad Yusuf v. The State and 4 others 2002 CLC 1130.
6. ' Mr. M. Tabbassum Aftab Alvi, the learned Advocate for the respondents, while adopting the arguments of the learned Advocate General, submitted that the Legislative Assembly of AJ&K has competently, enacted Act, XV of 2001 and it has been amended through the impugned Ordinance in the manner provided by the Interim Constitution Act, 1974 and the same cannot be called in question on any ground. He argued that no mala fide can be attributed to the legislature or the President. He also argued that Annexures, "RA" to "RD", appended with written statement, can be taken into consideration for judging the bona fide of the action taken by the President. He further argued that the impugned Ordinance is not violative of section 31 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and clauses (a) and (d) of subsection (3) of said section does not cover the stand of the petitioner. In support of his submission, the learned Advocate placed reliance on the following cases.
(1) Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457.
(2) Ch. Muhammad Yousaf v. The State and others 2002 CLC 1130.
(3) Ch. Shabbir Hussain v. Registrar, Lahore High Court, Lahore PLD 2004 SC 191.
(4) Muzaffar Hussain v. The. Superintendent of Police District Sialkot 2002 PLC (C.S.) 442.
(5) Ch. Muhammad Yousuf and others v. Azad Government through Chief Secretary Muzaffarabad and others PLD 2001 HC(AJ&K) 60.
7. ' We have heard the learned Advocates for the parties and perused the record of the case.
8. 'The contention of Mr. Ashfaq Hussain Kiani, the learned Advocate for the petitioner, that neither the Legislature Assembly nor the Council or the President has the power to legislate in order to assume control of the Pakistan Red Crescent Society, AJ&K Branch, because the same stands excluded from their legislative competence in. View of clauses (a) and (d) of subsection (3) of section 31, is devoid of any force. For proper appreciation of the matter, section 31 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, is reproduced as under:-- "31 Legislative Powers:--- (1) Subject o the succeeding provisions of this section, both the Council and the Assembly shall have the power to make laws.
(a) for the territories of Azad Jammu and Kashmir;
(b) for all State subjects wherever they may be; and
(c) for all officers of the Council or as the case may be.
(2) Subject to subsection (3).
(a) the Council shall have exclusive power to make laws with respect to any matter in the Council Legislative List se out in the Third Schedule, hereinafter referred to as the Council Legislative List; and
(b) the Assembly shall, and the Council shall not, have power to make laws with respect to any matter not enumerated in the Council Legislative List.
(3) Neither the Council nor the Assembly shall have the power to make nay law concerning:--
(a) the responsibilities of the Government of Pakistan under the UNCIP Resolutions;
(b) the defence and security of Azad Jammu and Kashmir;
(c) the current coin of the issue of any bills, notes or other paper currency; or
(d) the external affairs of Azad Jammu and Kashmir including foreign trade and foreign aid.
(4) No tax shall be levied for the purpose of the territories of Azad Jammu and Kashmir except by or under the authority of an Act of the Council or the Assembly.
(5) No law shall be repugnant to the teaching and requirements of Islam as set out in the Holy Qur'an and Sunnah and all existing laws shall be brought in conformity with the Holy Qur'an and Sunnah."
9. ' A perusal of the above provisions reveals that both the Council and Assembly are vested with the power to enact law in respect of the matters enumerated in clauses (a), (b) and (c) of subsection
(1) of section 31 of the Interim Constitution Act. Under subsection (2) of the said section, the Council is vested with the exclusive power to enact law with respect to all the matters enumerated in the Council Legislative List, set out in the third Schedule. When Assembly is not in session, law could be enacted through promulgation of an Ordinancc bythe President if he is satisfied that circumstances exist which rend 1 it necessary to take immediate action in that behalf. However, the powers of the Council and the Assembly as well as the President, under section 41 of the Constitution Act, are not unlimited rather are subject to the restrictions embodied in subsection (3) of section 31 of the Constitution Act. Under subsection (3) both the Council and Legislative Assembly cannot legislate for the matter enumerated in clauses. (a) to (d) of subsection (3).
10. Moreover, the Council or Assembly are constitutionally barred from enacting any law repugnant to the teaching and requirements of Islam as set out in the Holy Qur'an and Sunnah, as is commanded under section 31(5) of the Act. In our view, beyond that, no restriction can be placed on the legislative power of the Council or the Assembly to enact in their constitutionally allotted sphere. We are not impressed by the arguments of the learned Advocate for the petitioner that clauses (a) and (d) or any other clause of subsection (3) is attracted in the present case. Clauses
(a) to (d) of subsection (3) of section 31 deal with the responsibilities of Government of Pakistan, assigned to it under UNCIP Resolutions.
11. ' Through the impugned Ordinance no law has been enacted in respect of the responsibilities of the Government of Pakistan mentioned in clauses (a), (b) and (d) of section 31, subsection (3), referred to hereinabove. In order to determine the constitutionality of amendment under challenge it is necessary to refer here Act XV of 2001 and Ordinance XV of 2007 which are reproduced as under:-- - "Azad Jammu And Kashmir Red Crescent Branch Act, 2001 ' (ACT XV OF 2001) AN ACT ' To extend the jurisdiction, scope and functions of the Pakistan Red Crescent Society.
12. ' Whereas it is expedient to extend the Jurisdictions, Scope and ' Function of the Pakistan Red Crescent Society in Azad Jammu and Kashmir in the manner hereinafter appearing; ' It is hereby enacted as follows:--
(1) Short title, extent and commencement:--- (1). This Act may be called the Azad Jammu and Kashmir Red Crescent Branch (Extension of Jurisdiction, Scope and Functions) Act, 2001.
(2) It extends to the whole of Azad Jammu 2nd Kashmir.
(3) It shall come into force at once.
(2) Extension of Jurisdiction, Scope and Functions of the Pakistan Red Crescent Society.--- The Jurisdiction, Scope and Functions of the Pakistan Red Crescent Society, hereinafter referred to as the said Society, established under the Pakistan Red Crescent Society Act, 1920, (Act XV of 1920) and all the Rules and Regulations made thereunder and the administrative orders issued under either of them shall extend mutatis mutandis with the modifications the word "Province" herever occurring, shall be construed to refer to "territory of Azad Jammu and Kashmir" and the word "Governor" wherever occurring, shall be construed to refer to "President of Azad Jammu and Kashmir" to the whole of Azad Jammu and Kashmir territory and the said Society shall function in the said territory as it functions in Pakistan.
(3) Repeal:--The Azad Jammu and Kashmir, Red Crescent Branch (Extension of Jurisdiction, Scope and Functions) Ordinance, 2001 (Ordinance LXII of 2001) is hereby repealed."
13. ' Azad Government of the State of Jammu and Kashmir Law, Justice, Parliamentary Affairs and Human Rights Department "Muzaffarabad" Date: 25-8-2007 ' No, L.D./Legis/1001-12. The following Ordinance made by the President on the 25th day of August, 2007 is hereby published for general information.
14. (Ordinance XV of 2007)
15. An................................................................
16. Ordinance.................................................................................................
(1) Short title and commencement:---
(1) This Ordinance may be called Azad Jammu and Kashmir Red Crescent Branch (Extension of Jurisdiction, Scope and Functions) (Amendment) Ordinance, 2007.
(2) It shall come into force at once.
(2) Substitution of section 2 (Act XV of 2001).--- In the Azad Jammu and Kashmir Red Crescent Branch (Extension of Jurisdiction, Scope and Functions) Act, 2001 (Act XV of 2001), thereinafter called the said Act, section 2 shall be substituted as under:--
(2) Adaptation and Extension of Jurisdiction, Scope and Functions of the Pakistan Red Crescent Society:--
(1) The Pakistan Red Crescent Society Act, 1920 (Act XV of 1920) and all rules, regulations, notifications and administrative orders made thereunder from time to time are hereby adopted subject to the following modifications:--
(i) The word "Province" wherever occurring, shall be construed to refer to "Azad Jammu and Kashmir" and the word "Governor" wherever occurring, shall be construed to refer to "President of Azad Jammu and Kashmir";
(ii) In section 8, subsections (IA)) to (1E) shall stand substituted by the following subsections (2) and (3):-- "(2) There shall be Azad Jammu and Kashmir Red Crescent Branch Committee consisting of a Chairman, a Vice-Chairman, a Secretary and Members not exceeding eight in number who shall be appointed and removed by the President of Azad Jammu and Kashmir.
(3) The rules, regulations and constitution of the Azad Jammu and Kashmir Red Crescent Branch Committee, shall be framed by Azad Govt. Of the State of Jammu and Kashmir and all existing rules, regulations and constitution shall be deemed to have been repealed.
(iii) In the said Act, section 12 shall be substituted as under:-
12. Power of Branch Committee.--- Subject to section 8 and rules made under section 5, Azad Jammu and Kashmir Branch Committee shall have power to regulate its own procedure to receive gifts and expend all moneys received by it for any of its purposes, either directly or through other societies or bodies: ' Provided that ten per cent of all cash donations received by the Branch Committee for any of the general object set out in the first schedule shall be placed at the disposal of the Managing Body which may utilize the same for the general purposes of the Society.'
(iv) After the existing section 12 of the said Act, the following shall be added as sections 13 and 14:- `13. Appointment of administrator.--- (1) Where the President is satisfied, upon an information or otherwise, that the Branch Committee is being mismanaged by the Chairman, the Vice-Chairman or Secretary, or any one or all of them are accused of misconduct or corruption or other illegal activities, the President of Azad Jammu and Kashmir shall be competent to suspend anyone or all of them and appoint an administrator to regulate the affairs of the Branch Committee.
(2) The administrator appointed under subsection (1) shall conduct inquiry and submit report as may be directed by the President of Azad Jammu and Kashmir in this behalf.
(3) Till appointment of a new Chairman, Vice-Chairman, Secretary or Members, the administrator shall manage and control all affairs of the Branch Committee.
14. President to be the appointing authority.--- Notwithstanding anything contained to the contrary in any other law, rules, regulations, notifications etc., for the time being in force, President of Azad Jammu and Kashmir shall be the appointing authority of Chairman, Secretary and Members of the Branch Committee.
(2) The jurisdiction, scope and functions of Pakistan Red Crescent Society shall stand extended to Azad Jammu and Kashmir subject to modifications, if any, made by the President in this behalf."
17. ' A comparison of Act XV of 2001 and Ordinance No,XV of 2007 leads to the irresistible conclusion that amendment is not ultra vires the Constitution rather it was necessary, because while extending the jurisdiction, scope and functions of the Pakistan Red Crescent Society, through Act XV of 2001 reproduced hereinabove, the functionaries, functioning in Pakistan were also allowed to function in Azad Jammu and Kashmir which was not permissible under the Constitution Act. In Jabeer Hotel's case 2001 PLC (C.S.) 11, section 31(1) of the Azad Jammu and Kashmir interim constitution Act, 1974 received the attention of the apex Court of Azad Jammu and Kashmir. Facts of the case were that Employees Old-Age Benefits (Extension of Functions to AJ&K) Act, 1980 was adopted by the Azad Jammu and Kashmir Council along with its functionaries. The said Act was declared an-constitutional by the apex Court of Azad Jammu and Kashmir on the ground that the AJ&K Council and Assembly are not empowered to legislate in respect of officers of any institution working out side the Azad Jammu and Kashmir. It was further observed that law cannot be changed so as to give powers to functionaries working in Pakistan. Relevant observation is recorded in para. No,23 which is as under:--- "23. According to the Constitution of Pakistan of 1973 and Azad Jammu and Kashmir Interim Constitution Act, 1974, Azad Jammu and Kashmir is not a part of Pakistan and laws of Pakistan are not applicable to the liberated territory of Jammu and Kashmir. Thus, the functionaries appointed under a particular law which is in force in Pakistan do not have the jurisdiction to function in Azad Jammu and Kashmir. It is provided in subsection (4) that the Federal Government shall establish an institution called the Employees Old-Age Benefit Institution which shall be a body corporate. The Employees Old-Age Benefit Act, 1976 contains a provision in subsection (2) of section (1) that the said Act was to extend to the whole of Pakistan. The Act does not visualize that it will perform functions in Azad Jammu and Kashmir. Section 7 lays down that there will be a number of trustees appointed by the Government and the four members shall be those who have been nominated by the Provincial Governments. There is no mention that it will also have a member from Azad Jammu and Kashmir. It is thus clear that the EOB Institution is performing functions in connection with the Federation. It is set up by the Federal Government and is under its control. The functions which it performs are entrusted to it by the federal legislature and the Federation Government. Clearly it is not a functionary subordinate to the Azad Jammu and Kashmir Council. It follows that Azad Jammu and Kashmir Council could not delegate its functions to the said institution.
18. ' Again in para. 26, it was observed as under:-- "It follows that the Azad Jammu and Kashmir Employees Old-Age Benefits (Extension of Functions to Azad Jammu and Kashmir) Act, 1980 (Act X of 1980) was not competently enacted by the Azad Jammu and Kashmir Council and was therefore void from its inception. The Azad Jammu and Kashmir Council (Validation of Laws) Act, 1995 also suffered from the same illegality so far as it purported to validate Act X of 1980. Consequently, Act X of 1980 as well as the provisions in the aforesaid Validation Act relating to Act X of 1980 are struck down for want of legislative competence. The result is that all actions taken and orders passed by the EOB Institution in respect of Jabeer Hotel and steps/actions taken by the functionaries in Azad Jammu and Kashmir under direction of the EOB Institution were also without lawful authority and of no legal effect."
19. ' The above view was again confirmed in review petition filed for review of the same judgment 2001 YLR 1687. In view of the above, it is concluded that the Legislative Assembly and the Azad Jammu and Kashmir Council cannot delegate their powers or functions to the functionaries of the Pakistan Red Crescent Society, functioning in E Pakistan. There was a lacuna in Act XV of 2001 and the same stood cured by promulgation of Ordinance XV of 2007, because the Pakistan Red Crescent Society Act, 1920, was not adopted earlier and the same has been adopted by substitution of section 2 of Act XV of 2001. Through this amendment, the Pakistan Red Crescent Society Act, 1920, and all the Rules, Regulations, Notifications and administrative orders made thereunder from time to time have been adopted with some modifications mentioned in the Ordinance. Through the Ordinance subsections (1-A) to (1-E) of Pakistan Red Crescent Society Act, 1920 have been substituted by subsections (2) and (3). Section 12 has also been substituted. Under subsection (2), the AJ&K Red Crescent Society Branch Committee has been constituted and subsection (3) postulates that rules and regulations for carrying out the purposes of the Act shall be made by the AJ&K Government.
20. Sections 13 and 14 have been added, whereby, in case of any mismanagement in the working of the Society by its office bearers, they can be removed and an Administrator could be appointed.
21. The powers of appointment and removal etc. Have been given to the President who is the Chief Executive of Pakistan Red Crescent Society. AJ&K Branch. In our considered view, the promulgation of Ordinance XV of 2007 is not in any manner, ultra vires of the Interim Constitution Act, 1974 or Pakistan Red Crescent Society Act, 1920. The contention of the learned Advocate for the petitioner that the Ordinance has been promulgated with mala fide intention, is also devoid of any force. By now, law is well-settled that mala fide cannot be attributed to the Legislature and that too, in absence of any strong proof. In a case titled Ch. Muhammad Yousaf v. The State and 4 others 2002 CLC 1130 the question of mala fide was examined by the apex Court at length and at page 398 of the report, the apex Court observed as under:--- "28. We fully endorse the view expressed in, the above referred cases that malice cannot be attributed to the legislature without any strong proof. Under the scheme of the Constitution Act law can be enacted either by the Assembly or by the President in exercise of the powers available to him under section 41 of the Constitution Act. The Ordinance, promulgated by the President, therefore, has got the same force and effect as that of the Act of the Assembly. The presumption that law is made with bona fide reasons shall, therefore, apply also to such law which is enforced by the President through an Ordinance. The argument of the learned counsel for the appellants that the impugned Ordinance has been enacted with mala fide intention cannot be entertained in the absence of any evidence in support of such allegation."
22. ' Besides, the above dictum of the apex Court, judgments referred to and relied upon by the learned Advocate General as well as Mr. M. Tabbassum Aftab Alvi, also approve the afore-stated view.
23. ' This brings us to the question of removal of the petitioner. It may be stated that the Pakistan Red Crescent Society, State Branch, AJ&K has framed Rules known as "Pakistan Red Crescent Society, AJ&K State Branch Staff Service Rules, 2002". A perusal of these Rules reveals that the Managing Body of the AJ&K Rules State Branch of the Pakistan Red Crescent Society has made these Rules which have no statutory backing. Petitioner herein, has been appointed by the Managing Body, therefore, in our considered view, his service is not protected by statutory Rules, rather is governed by the law of master and servant thus, he cannot invoke the extraordinary jurisdiction of this Court for quashment of his termination. This proposition examined by the apex Court of Pakistan, in a case titled Pakistan Red Crescent Society and another v. Syed Nazir Gillani 2005 PLC (C.S.) 1264, wherein, it was observed that Pakistan Red Crescent Society (Staff Service Regulations) 1974, being non-statutory, employees of the Society cannot be legally entitled to invoke the constitutional jurisdiction. In para.9 of the report, the observation of their Lordships has been recorded, which is as under:--- "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 moreso 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". (Emphasise provided) Chairman WAPDA v. Jamil Ahmed 1993 SCMR 346. Muhammad Yousuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224.
24. ' The view taken in Nazir Gillani's case was reiterated in Zia Ullah Khan Niazi's case 2004 PLC (C.S.)
180. The petitioner in this case, was serving as Assistant Secretary (B-17) in Pakistan Red Crescent Society and was removed from service. He filed an appeal before the Service Tribunal, which was accepted. On appeal before the apex Court, it was argued that the Service Tribunal has no jurisdiction in the matter because the Society cannot be treated as a person performing the functions in connection with the affairs of the Province nor its employees can be treated as Civil Servants. The apex Court accepted the appeal and the order of the Service Tribunal was set aside.
25. 'The upshot of the above discussion is that this petition has no substance, therefore, the same is hereby dismissed.