' SHAHID ANWAR BAJWA, J.--- With the consent of the learned counsel this constitution petition was finally heard and is being decided at Katcha Peshi stage. The petitioner was working as Executive Director in respondent No,2 Company when he was dismissed from service vide letter dated 1-1- 1998. Allegations against him were that he was allowed 15 days Ex-Pakistan Leave with effect from 14-12-1996 to 28-12-1996 and was supposed to resume duty on 29-12-1996. However, he sent another application dated 24-12-1996 containing request for extension of leave for further 10 days on the ground of obtaining late visa for Saudi Arabia. This application was received on 28-12-1996.
Leave was disallowed. Ultimately the petitioner resumed duty on 12-1-2007. There were allegations of financial irregularities also as are stated in the Statement of Allegations. After disciplinary process he was dismissed from service vide order dated 1-1-1998. Being aggrieved by his dismissal from service he filed Appeal No,1158(K) of 1998 before the Federal Service Tribunal, as that time section 2-A of the Service Tribunals Act ruled the roost. The Federal Service Tribunal accepted the appeal and ordered that the appellant be reinstated in service. However, respondent-Company was allowed to conduct inquiry in terms of Regulations of 1959 within six months. Question of back benefits was left to follow results of such inquiry. This order was passed by the Federal Service Tribunal on 16-10-2003. The Order was accepted by the respondent. No,2. Consequently petitioner was reinstated and after his reinstatement he was issued charge-sheet dated March 11, 2004. On this charge-sheet inquiry was conducted and after codal formalities the petitioner was again dismissed from service vide order dated April 9, 2004. Being aggrieved by his dismissal the petitioner approached the Federal Service Tribunal with his appeal bearing No,313(K) of 2004. This appeal was hit by the dicta laid down by the honourable Supreme Court in the case of Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others, PLD 2006 SC 602.
Consequently the petitioner approached this Court with Constitution Petition No,D-1772 of 2006.
This petition of the petitioner was dismissed by a Division Bench of this Court holding that an abatment order as required by Raja Riaz v. Chairman Pak. Space and Upper Atmosphere Research Commission, Karachi 2008 SCMR 402 had not been passed bay the Federal Service Tribunal.
Consequently petitioner again approached the Federal Service Tribunal and on 24-4-2009 formal abatment order was passed by the Federal Service Tribunal and thereafter on 22-5-2009 this Constitution Petition was filed.
2. Learned counsel for the petitioner made the following submissions:--
(1) It was a case of mere absence of about 15 days and that too for valid reasons and therefore it was not available to the departmental authorities to impose upon him any penalty.
(2) In any case penalty of dismissal from service was a very harsh penalty compared with the allegations against the petitioner. Learned counsel relied upon Allied Bank Ltd. v. Syed Nasir Abbas Naqvi, 2007 SCMR 1143 to contend that harsh penalty cannot be imposed and this Court in Constitutional jurisdiction can always interfere with such exercise of harsh penalty.
3. Learned counsel for the respondent-Corporation submitted that respondent Corporation is a company incorporated under the Companies Ordinance, 1984 and has no statutory rules and therefore this Constitution Petition is not maintainable. He relied upon Pakistan International Airlines Corporation v. Tanweer-ur-Rehman PLD 2010 SC 676 and case of Nasiruddin Ghori v. Federation of Pakistan, 2010 PLC 323. Learned counsel further submitted that jurisdiction of this Court was barred by Article 212 of the Constitution. He also contended that the petitioner was involved in, besides absence without leave, acts of financial irregularities.
4. Ms. Cookie Rawat learned Standing Counsel submitted that as far as maintenance of Constitution Petition is concerned, that matter be decided in accordance with the law. She however supported the impugned order on merits and contended that petitioner has been proved guilty of the serious offences which included misappropriation and absence without leave. Consequently she prayed that the petition be dismissed.
5. We have considered the submissions made by the learned counsel and have also gone through the record.
6. We will take up the question of maintainability first. Admittedly the respondent No,2 Company is entirely owned by the Federal Government therefore, in terms of the dicta laid down by the honourable Supreme Court in the case of Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244 reaffirmed in Muhammad Mubeen-us- Salam's case (supra) and Tanweerur-Rehman's case (supra), the respondent Company is a person within contemplation of Article 199(5) of the Constitution of the Islamic Republic of Pakistan.
7. However, right from case of Principal Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170 reaching up to till the case of Tanweer-ur-Rehman (supra) it has been held by the Supreme Court that for purpose of entitling an employee of an Organization owned and controlled by the government it is essential that there be statutory rules of service. Does respondent Company have statutory rules of service? This question has to be answered first.
8. Pakistan Insurance Corporation Act, 1952 was assented to by the Governor-General on 8th May, 1952 and was published in the Gazette of Pakistan on the same day. Under section 3 of the Pakistan Insurance Corporation Act, 1952 (hereinafter referred to as the Act of 1952) a Corporation under the name of Pakistan Insurance Corporation was established. Section 46 of the Act of 1952 authorized the Board of Management of the Corporation to make regulations with the previous sanction of the Federal Government. The said section is in the following words:-- "46. Power of the Board to make regulations.--- (1) The Board may with the previous sanction of the Central Government, make regulations not inconsistent with the Act to provide for all matters for which provision if necessary or expedient for the purpose of giving effect to the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for-- (m) the terms and conditions of service and duties and conduct of officers, servants and agents of the Corporation;"
9. In exercise of powers conferred by above section 46 on or about October 22, 1959, Pakistan Insurance Corporation (Staff) Service Regulations, 1959 were framed with the approval of the Federal Government and were duly published in the Gazette of Pakistan on November 27, 1959.
Consequently the Rules of 1959 are the statutory rules because they have been framed in exercise of powers granted by a statute and in accordance with the powers so granted.
10. On August 11, 2000 Pakistan Insurance Corporation (Re-Organization) Ordinance, 2000 was promulgated. It defined "Company" as Pakistan Reinsurance Company Ltd. Incorporated under the Companies Ordinance, 1984. Section 3 of the Act provided that as soon as may be after commencement of the Ordinance of 2000 the Federal Government may, by an order, published in the Gazette, direct that from such date as may be specified in the order all properties, rights and liabilities to which the Corporation was entitled or subject before such order, shall, on such terms and conditions as the Federal Government may determine vest in the Company and thereafter shall became property, rights and liabilities of the company. It was further provided in section 7 that immediately after incorporation and registration of Pakistan Reinsurance Company Limited as a public limited company, the Act of 1952 shall stand repealed. On 14-2-2001 S.R.O. No,98(I)/2000 was issued by the Ministry of Commerce, Government of Pakistan and it stated that in exercise of powers conferred by subsection (1) of section 3 of the Ordinance of 2000 the Federal Government was pleased to specify date of February 15, 2001 to be effective date on which properties, rights and liabilities of the Corporation would stand transferred to the Company. It was further stated in the S.R.O. That employees of the Corporation would stand transferred to the Company and that their terms and conditions shall not be adversely altered by the company except in accordance with the laws of Pakistan.
11. What has to be seen now is whether the rules of 1959 still survive as statutory rules or not.
Fortunately this question has been answered by the honourable Supreme Court in Dr. Muhammad Amin v. President Zarai Taraqiati Bank Limited 2010 SCMR 1458. Facts of the case were that Agricultural Development Bank of Pakistan was created by virtue of an Ordinance promulgated in 1961 which Ordinance also provided for framing the rules and rules were framed and published.
Similarly an Ordinance was promulgated in 2002 for repeal of Ordinance of 1961 and setting up of a company by the name of .Zarai Taraqiati Bank Ltd. Supreme Court observed as under:--- "(5) It is an admitted fact that the petitioner had submitted two applications with request for study leave on 26-7-1992 and 5-8-1992 respectively. The applications were allowed as mentioned above by the competent authority vide order dated 22-8-1992. The President had promulgated Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002 under the provisions of Proclamation of Emergency of the fourteenth day of October, 1999 and Provisional Constitution Order No,1 of 1999 read with Provisional Constitution (Amendment) Order No,9 of 1999 and in the exercise of all powers enabling him in that behalf under the constitution (Ordinance No, LX of 2002) on 4-10-2002 the afore said Ordinance was repealed in terms of section 12 of the Ordinance, 2002 from the date after the dissolution of A.D.B.P. With effect from 14-12-2002 vide notification S.R.O. No,823(I)(2002). Under section 9 of the said Ordinance, 2002 the Federal Government may, by the notification in the official Gazette, make rules for conveying out the purpose of this Ordinance. It is pertinent to mention here that Federal Government framed no rules on the subject in terms of the aforesaid provisions of law. Generally amending Ordinance or Act has always saving clause but the Ordinance in hand has no saving clause. The question for determination for us is that earlier regulations framed under section 39(2) are applicable in the case in hand or not. The petitioner has filed applications for securing leave for study in the year, 1992 which were sanctioned in the year, 1992. The petitioner filed an appeal before the Service Tribunal on 20-4-1999 therefore said regulations govern the case of the petitioner in terms of section 6 of the General Clauses Act, 1897. See:--
(i) Sheikh Muhammad Amin's case PLD 1966 Lah. 473, (ii) Abdul Wahid's case PLD 1994 Quetta 89,
(iii) Ziaullah Khan's case 1992 SCMR 602, (iv) Aziz Khan's case PLD 1980 Peshawar 227 (v) Taza Khan's case 1992 SCMR 1371.
It is settled principle of law that the rules under the new Act or the Ordinance has not yet been framed. Till new rules are framed, old rules would deemed to be operative despite their implied repeal. See Kemal Sharif Rana's case PLD 1985 Lah.
135."
' Therefore the first question whether the writ is maintainable or not is 1G answered in the affirmative.
12. In the charge-sheet issued to the petitioner, besides absence, certain allegations of financial irregularities were also made. It may be noted that these allegations pertained to 1995 and 1997 and were not included in the earlier round when the charge-sheet was issued to the petitioner in December 1997 inconsequence of which he was dismissed from service which dismissal, as narrated above, was set aside by the Federal Service Tribunal and an option was given to the employer "to conduct an inquiry". It may be noted that the Federal Service Tribunal did not grant the option to the employer to initiate fresh proceedings but only to conduct inquiry. Obvious implication being that such inquiry should be limited to the allegations in the first charge-sheet.
Could the departmental authorities have initiated fresh proceedings by giving a charge-sheet adding in it new allegations is a question which we need not decide in the present petitions.
13. The Inquiry Officer delivered the following findings:--- "19. Findings. (a) Mr. Zia applied for leave on 2nd December, 1996 with a specific purpose to perform Umrah.
(b) No objection 'certificate (NOC) was given by Ministry of Commerce on 12th December, 1996 and on the same day Mr. Zia was sanctioned 15 days ex- Pakistan leave from 14th December, 1996 to 28th December, 1996 for performing Umrah.
(c) Before the expiry of sanctioned leave Mr. Zia applied for extension of leave for 10 days on 24th December, 1996 due to delay in issuance of visa. The original application for extension for leave could not be found in the files.
(d) According to his statement he definitely informed Mr. Nadir Ali Markhiani, Secretary, PIC personally about his extension of leave but he could not meet Chairman. Although he is sure that he informed the Chairman also.
(e) The leave application was handed over to Mr. Zahir Shah, Naib Qasid at home in the evening which he delivered it to Mr. Adam Saeed, Stenotypist (in the chairman secretariat) on 26th December, 1996 since 25th December, 1996 was a holiday.
(f) Mr. Adam Saeed put up this application to the Chairman on 28th December,. 1996 because 26th December, 1996 was the optional holiday and 27th December, 1996 was Friday which was holiday (close of office).
(g) Mr. Humayun Zia left for Umrah after applying for extension of leave on the same day without getting formal approval.
(h) According to Mr. Zia's statement, due to flight problems he could not return to Pakistan on 7th January, 1997. This could not be confirmed on account of non submission of original old passport.
He resumed his duty on 12th January, 1997.
(i) He requested for one day casual leave on 13th January, .1997 due to his indisposition. The departmental representative could not prove that Mr. Zia had left Karachi for Islamabad on that day.
(j) It was established that Mr. Zia applied for extension leave for 10 days on 24th December, 1996 and proceeded for Umrah without getting formal approval and was therefore guilty of misconduct and breach of regulation.
(k) Dismissal order was issued after a year on 1st January, 1998 for misconduct and violation of Rule No,24 of PIC Staff Service Regulations, 1959.
(1) It is for competent authority to decide whether it was a major misconduct to warrant extreme punishment of dismissal from service or minor misconduct over looking the codal formalities.
(m) As far as observations of the Tribunal and para No,6 is concerned, the same is not within the scope of my purview. It is for the competent authority to take such appropriate action as deemed fit."
14. When the matter came up before the competent authority, the following was recorded:- "(f) It is established that Mr. Zia proceeded abroad without bothering to get the approval of extension in leave knowing that it is a clear violation of rules, and a misconduct and breach of regulations.
(4) The Executive Committee noted that the charges of misconduct conveyed to Mr. Zia were established in the departmental enquiry and Mr. Zia was found guilty of misconduct under regulation 24 read with Regulation 27 of Pakistan Reinsurance Company Staff Service Regulation 1959. The violation of the P.R.C. Staff Service Regulation, 1959 is punishable act and any penalty including dismissal from service had been described under Regulation 28."
15. It is thus clear that the punishment has been imposed upon the petitioner merely on the ground that he remained absent without leave for a period of 15 or so days. Thus allegation against the petitioner on which he was dismissed from service is absence of 15 days. Explanation of the petitioner was that he had gone to Saudi Arabia and due to delay in getting visa he was late in returning and therefore requested for extension. Be that, as it may, he was absent only for 15 days.
As has been held by the Supreme Court in Syed Nasir Abbas Naqvi's case (supra) there must be correspondence between seriousness of the allegations and, severity of punishment. A range of punishments is provided in Rule 28 of the Rules of 1959. In our opinion for such a conduct on part of the employee punishment of censure would have met the ends of justice. Therefore, the order of dismissal dated 9-4-2004 cannot be sustained.
16. Result of the above discussion is that letter of dismissal dated 1-1-1998 is set aside and the petitioner is ordered to be reinstated in service within a period of 15 days. However if there are allegations regarding financial irregularities it shall be available to the employer to initiate fresh disciplinary action. Such proceedings if initiated must be concluded within a period of 4 months from the date of this judgment. Back-benefits shall depend upon result of such fresh proceedings if any. If no such proceedings are initiated or if initiated are not concluded within four months, the petitioner shall be entitled to all back-benefits. This Constitution Petition is disposed of in the above terms.