This intra court appeal is directed against the order dated 9-6-2014 passed in W.P.No.28672 of 2011 by a learned Single Judge of this Court by virtue of which writ petition was dismissed as not maintainable.
2. The facts giving rise to the present appeal are that appellant was appointed on contract basis as Supervisor, Fat and Protein Extraction Unit on 1-11-2009 in Kasur Tannery Waste Management Agency (KTWMA). Thereafter, his services were regularized vide notification dated 1-2-2010.
Subsequent thereto, he was put under suspension and finally through order dated 8-12-2011 his services were terminated. Against the order of termination, writ petition was filed which was dismissed, therefore, this appeal.
3. Learned counsel for the appellant at the very out set was confronted with the order passed by the learned Single Judge and was asked to explain as to how a writ petition was maintainable in view of the fact that services of the appellant are being governed by non-statutory rules.
4. In reply thereto, learned counsel submits that services of the appellant are being governed under the Kasur Development Authority (Appointment and Conditions of Service) Regulations, 2008 (Regulations). According to him under Regulation No.22 certain rules and regulations of the Government of the Punjab are made applicable to the employees governed by these regulations therefore the writ was maintainable.
5. We have heard the learned counsel for the appellant and have gone through the record.
6. KTWMA was established by the Kasur Development Authority (Authority) under section 4 of the Punjab Development of Cities Act, 1976 (Act) vide Notification No.SO(I&C)HP&EP-7-1/94 dated 31-7- 1994. Subsequent thereto, different notifications were issued by the Authority by virtue of which, offices of the Agency as well as its working was regulated. As a sequel thereto, Regulations were promulgated by the Chairman of the Authority in exercise of section 44 of the Act which govern the terms and conditions of service of the employees of the Authority as well as KTWMA. For convenience section 44 of the Act is reproduced:--- "44. Power to make regulations.--- Subject to the provisions of this Act and the rules framed thereunder, the Authority may make regulations as may be necessary to carry out the purposes of this Act." (Emphasis supplied)
7. It is clear and obvious from the above provision that competence to frame rules and regulations under the Act is vested with the Authority which is defined in section 2(c) of the Act which in the present case would be Kasur Development Authority.
8. The Hon'ble Supreme Court of Pakistan while describing the concept of Statutory Rules in its judgment reported as Pakistan Red Crescent Society and another v. Syed Nazir Gillani (PLD 2005 SC 806) has held that:--- "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 and service of the Corporation's employees under the relevant statue 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 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."
In a subsequent judgment reported as Chairman State Life Insurance Corporation and others v.
Hamayun Irfan and 2 others (2010 SCM R 1495), the Hon'ble Court has held as follows:- "Generally speaking, a statutory regulation means regulations which are legislative (as opposed to executive) made by a rule making authority in exercise of statutory power with the approval of the central government or provincial government. Precisely it is the exercise of the delegated legislative power by the rule making authority. Ordinarily it is necessary also that making and promulgation of a rule should be attended by certain formalities e.g. Publication in government gazette as law laid down by this Court in various pronouncements."
9. From the perusal of the above, it can be deduced that following stipulations are the determining factors for treating certain Rules/ Regulations to be statutory:---
(1) Rules or Regulations should be made under a Statue;
(2) With the previous approval of the government;
(3) By notification in the official gazette;
(4) Should not be inconsistent with the Statue.
10. Testing the Regulations on the touch stone of above parameters, it is more than obvious that the Regulations have been made by the Authority itself under section 44 of the Act, for which neither prior permission of the Government was required nor was sought therefore they do not qualify to be considered as statutory Regulations.
11. In view of the fact that the services of the appellant are not being governed by statutory Regulations, therefore, he cannot approach this Court for enforcement of terms and conditions of his service including reinstatement. In this regard, reliance can be placed on Habib Bank Ltd. v. The State (2013 SCM R 840), Abdul Wahab and others v. HBL and others (2013 SCM R 1383), Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha (2013 SCM R 120), Pakistan Telecommunication Co. Ltd through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132), Pakistan International Airline Corporation and others v. Tanweer-urRehman and others (PLD 2010 SC 676) and Executive Council, Allama lqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi (2010 SCM R 1484).
12. There is no cavil to the proposition that the Hon'ble Supreme Court of Pakistan in judgment reported as Pakistan Defence Officers Housing Authority v. Jawaid Ahmed (2013 SCM R 1707) has opened a window for employees who are governed by non-statutory rules to approach this Court in constitution jurisdiction provided they have been proceeded against under a statute like (E&D Rules, RSO, PEEDA etc). They being not termed as civil servant cannot approach the service tribunal inspite of the fact that an illusionary remedy of appeal before the respective Tribunals under the said laws is available to them therefore in order to obviate the possibility of leaving them remediless, this leeway has been given by the apex Court.
13. It is however clarified that the above mentioned judgment will not come to the rescue of the appellant as he was not proceeded against under a Statue therefore, he cannot approach this Court for redress of his grievance being governed by the principle of master and servant.
14. As regards the argument raised by the learned counsel that by virtue of adoption of certain laws promulgated by the Punjab Government through Regulation 22, needless to say that mere adoption of rules, regulation etc or reference by application would not lend a B cover to the Regulations in question terming them to be statutory in nature. As the basic Regulations (Kasur Development Authority (Appointment and Conditions of Service) Regulations 2008) are non statutory therefore the adoption under Regulation 22 would not provide any help. This question has already been dealt with and decided by the Hon'ble Supreme Court of Pakistan in judgment reported M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others (1994 SCM R 1024) operative part of which is reproduced:--- "Sections 37, 38, 50 and 51 of the C.D.A. Ordinance, 1960 (Ordinance XXIII of 1960) are relevant.
An examination of these provisions shows that the CDA was itself to determine the terms and conditions of its employees and that the Government had no say in the matter. None of its Regulations whether framed by it itself or adopted by reference had a statutory basis in law.
This view is supported by the view taken in Ch. Abdul Rahis v. Capital Development Authority, Islamabad and another (PLD 1979 Lahore 803) and the Principal, Cadet College, -Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170). The adoption of the rules of the Government or their application by reference will not lend a statutory cover or content to these rules, as held in Lahore Central Co-operative Bank Limited v. Saif Ullah Shah (PLD 1959 SC (Pak.)
210) and finally very recently in Chairman, Pakistan Council of Scientific and Industrial Research, Islamabad and 3 others v. Dr. Mrs. Khalida Razi (Civil Appeal No.270 of 1993). There being no statutory rules in the field, a Constitution petition was not at all competent on the subject." (Emphasis supplied).
15. We are of the considered view that the Learned Single Judge has rightly dismissed the writ petition on the ground that relationship of the C appellant with his organization is no more then that of master and servant.
16. As a sequel to what has been discussed above, we find the order passed by learned Single Judge unexceptionable, therefore, the same is upheld and this appeal is therefore dismissed.