PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY vs Mrs. ITRAT SAJJAD

ORDER

SAJJAD ALI SHAH, J.---The appellant-Pakistan Defence Officers Housing Authority, through instant appeal, has impugned the judgment of the Sindh High Court whereby the said Court while declaring the dispensation of respondent's service as of no legal effect directed the appellant to restore the respondent to her original position as on 10.9.2012 leaving it open for the appellant to hold an inquiry against the respondent with regard to her delinquency/misconduct, if any, and to take action in accordance with the Removal from Service (Special Powers) Ordinance, 2000 (hereinafter referred to as 'Ordinance, 2000').

2. Briefly, the respondent on 24.2.1999 was appointed as Lecturer (Pakistan Studies) in BS-17 by the appellant and was posted at Degree College for Women, DHA, Karachi. It appears that the appellant somewhere in the year 2011 had some complaints against the respondent as to her conduct as well as for not maintaining the required discipline whereas the respondent also had some issues with the Principal as well as the administration of the school. The appellant had sought explanations regarding absence of duty, non-observance of school timing and misbehaviour with the Principal whereas the respondent had also very serious complaints against the Principal and the school Administration to the extent of issuing legal notice through her Advocate under section 3(1) of the "Protection Against Harassment of Women at Work Place Act of 2010". In the wake of such strained relations between the school Administration and the respondent, the appellant/Administration vide its letter dated 11th September, 2012 "dispensed" the services of the respondent. The respondent being aggrieved, challenged such dispensation of her service by filing a constitutional petition before the Sindh High Court and the said Court through its impugned judgment while declaring the letter dated 11th September, 2012 as of no legal effect directed her reinstatement with the leverage to the appellant to hold inquiry as to her conduct and to take action, if any, under the Ordinance, 2000.

3. Mr. Nazar Hussain Dhoon learned counsel for the appellant while placing reliance on the judgments of this Court in the cases titled Pakistan Defence Officers Housing Authority v. Lt. Col. Syed Javed Ahmed (2013 SCM R 1707) and Pakistan Telecommunication Co. Ltd., v. Iqbal Nasir and others (2011 PLC (C. S.) 623) contended that though the appellant is a statutory body but the rules governing conditions of service of appellant's employee are not statutory rather have been framed for its internal use, therefore, the violation of such rule, if any, could not be enforced through writ jurisdiction as the relation between such employer and employee is governed by the principle of "Master and Servant". The learned counsel, while referring to Rule 8(B)(1) of appellant's Service Rule for the Employees of the Pakistan Defence Officers Housing Authority Karachi, 2008 which provides dispensation of service of an employee by giving him/her one month's notice or one month's pay in lieu thereof, contended that the action taken by the appellant against the respondent was strictly in accordance with its employment policy and, therefore, the writ even otherwise was incompetent. It was lastly contended that the High Court misled itself by proposing proceedings against the respondent under Removal from Service (Special Powers) Ordinance 2000 without realizing that the Ordinance 2000 stood repealed vide Removal from Service (Special Powers)

(Repeal) Act, 2010 much before the initiation of proceedings against the respondent.

4. On the other hand, the respondent, present in person, contended that since her appointment in February 1999, she was given several letter of appreciations till the year 2010. However, it all started when she was transferred from Defence Authority College for Women to Defence Authority Sheikh Khalifa Bin Zayed College somewhere in April 2012 where she felt harassment and consequently served the appellant with a legal notice through her Advocate complaining harassment of women at work place and demanded the constitution of inquiry Committee under section 3(1) of the 'Protection Against Harassm ent of Women at Work Place Act of 2010". Per respondent though an inquiry Committee was constituted but it comprised of the Members who in fact were causing harassm ent, therefore, the respondent choose not to appear before such inquiry Committee and instead of changing the Members of the Committee, the appellant without assigning any reason, dispensed with the service of the respondent which was not only unlawful but against the principle of natural justice. While citing the instance of harassment, it was disclosed that the male administrator would check the socks of female student and the attitude of the administrator towards teacher was very degrading.

5. We have heard the contentions of respective parties and have perused the record carefully as well as the case law cited at bar.

6. The appellant admittedly is a statutory body established under the Pakistan Defence Officers Housing Authority Order, 1980 and a five Member Bench of this Court in the case of Pakistan Defence Officers' Housing Authority v. Lt. Col. Syed Jawaid Ahmed (2013 SCM R 1707) after examining the statute through which the appellant and other statutory bodies were established and functioning, in para 27 of its judgment held them to be statutory bodies performing some of the functions of the Federation/State and, therefore, "person" within the meaning of Article 199(1)(a)(ii) read with Article 199 (5) of the Constitution and if their actions or orders are violative of the statute creating those bodies or of rules/regulations framed under a statute, the same could be interfered with by the High Court under Article 199 of the Constitution. Para 27 of the referred judgment reads as follows:-

27. Keeping in view the Statutes which established and the functions of the appellants' authorities, and having considered in the light of 'function test', we hold and declare that these are statutory bodies, performing some of the functions which are functions of the Federation/ State and through the exercise of public power, these bodies create public employments. These bodies are therefore 'persons' within the meanings of Article 199(1) (a) (ii) read with Article 199(5) of the Constitution. If their actions or orders passed are violative of the Statute creating those bodies or of Rules/Regulations framed under the Statute, the same could be interfered with by the High Court under Article 199 of the Constitution".

7. Once the status of the appellant and its amenability to writ jurisdiction of the High Court is determined, the next point for our consideration is as to whether the service rule of the appellant Authority as pleaded are not statutory and if so its effect?

8. The test to gauge as to whether the service rules are statutory or not was laid down by this Court as far back as in the year 1984 in the case of the Principal Cadet College, Kohat and another v.

Mohammad Shoab Qureshi (PLD 1984 SC 170) by holding that unless rules of service of a statutory body are made or approved by the Government, such rules could not be regarded as statutory but mere instructions for guidance. However, in the case of Shafique Ahmed Khan v. NESCOM through Chairman, Islamabad (PLD 2016 SC 377) as well as in the case of Muhammad Zaman and others v.

Government of Pakistan (2017 SCM R 571), this Court while widening the scope of such criterion held that "the test of whether rules/regulations are statutory or otherwise is not solely whether their framing requires approval of the Federal Government or not, rather it is the nature and area of efficacy which determine their status. Rules dealing with instructions for internal control or management are treated as non-statutory while those, whose area of efficacy is broader and/or complementary to the parent statute in the matter of crucial importance, are statutory.

9. In this perspective scrutiny of President's Order No. VII of 1980 through which the appellant Authority was created as well as its service rules of 2008 would reveal that the Management of the Authority vest in the governing body of the Authority comprising of Secretary, Ministry of Defence, Government of Pakistan as its Chairman and as many Members as detailed in section 5 of the Order, 1980. For its day to day working, the Authority has an executive board comprising of a President who is the Corp Commander posted at Karachi and other Members as detailed in section 5(2) of the Order, 1980. The Executive Board of the Authority has the power to acquire land under the law, undertake any work in pursuance of any scheme or project; no master plan, planning or development scheme can be prepared by any local body or agency for the specified area without prior consultation with, and approval of the Executive Board. The Authority through the Executive Board has the power to raise funds for the purpose of its working, capital in a manner the Board may think proper, through loans or levy of any charges which may be prescribed by it under the Rules. The Administrator functions in accordance with the policy laid down by the Governing Body. All schemes/projects/works carried out by the Authority are deemed under the law to be schemes for public purposes. The Authority in terms of section 13 of Ordinance, 1980 may appoint such officers, functionaries, employees, experts, consultants and advisors as it may consider necessary for the performance of its functions under the Order and in such manner and on such terms and conditions as may be prescribed by the Rules. The employees of the Authority are deemed to be public servants within the meaning of section 21 of the Pakistan Penal Code. The Governing Body, as provided under section 22 of the Order, 1980 may, by notification in official gazette, make rules for carrying out the purpose of the Order, 1980 whereas the executive board has the power to make regulations not inconsistent with the provisions of the Order and the Rules as it may consider necessary or expedient for the administration and management of the affairs of the Authority. It appears that in exercise of the power as conferred under section 22, service rules for the employees of the Pakistan Defence Officers Housing Authority in term of section 13 were framed in the year 2008 which though were duly approved by the governing body of the Authority but have not been notified in the official gazette. The service rules of the appellant lay down the terms and conditions of service of their employees such as policy of appointment, leave, entitlement and discipline. The rules though are made under the statutory power conferred on the Governing Body by section 22 read with section 13 of the Presidential Order of 1980 which do not require the approval of the Government. In the circumstances, it is to be seen as to whether the rules framed by the appellant-Authority while exercising statutory powers under section 22 of the Presidential Order of 1980 which do not require the approval of the Federal Government could be termed statutory. This question was raised in the case of Syed Nazir Gillani v. Pakistan Red Crescent Society (2014 SCM R 982) by arguing that "the service rules framed by the Pakistan Red Crescent Society are statutory as they were framed under section 5 of the Red Crescent Act" and this Court while rejecting such argument held that such rules were non-statutory. Lastly, the area of efficacy of such service rules also is neither broader nor complementary to the parent statute in the matter of crucial importance and, therefore, the service rules of the appellant on such count also could not be termed as statutory.

10. The next question for our consideration would be the maintainability of a writ filed by an employee of Authority a statutory corporation having non statutory rules of service seeking enforcement of the terms and conditions of his service rules. Again this question was taken up and decided by a six-member Bench of this Court in the case of Abdul Wahab and others v. HBL and others (2013 SCM R 1383) by holding that where a service grievance is agitated by a person/employee who is not governed by the statutory rules of service, before the High Court(s), in terms of Article 199 of the Constitution such petition shall not be maintainable. Relevant portion of para 7 of the cited judgment is ID reproduced as follows:- "... It is settled law that, where a service grievance is agitated by a person/employee who is not governed by the statutory rules of service, before the High Court(s), in terms of Article 199 of the Constitution such petition shall not be maintainable; reference in this behalf can be made to PLD 2010 SC 676 (Pakistan International Airline Corporation v. Tanweer-urRehman) and PLD 2011 SC 332 (Pakistan Telecommunication Co. Limited v. Iqbal Nasir) (note: the question however if that is possible in terms of Article 199(1) (c), we have deferred). But the plea that such law shall not prevent this Court while exercising its jurisdiction under Article 184(3); suffice it to say that while exercising the jurisdiction this Court is bound by the conditions of Article 184(3); and moreover by such rules which are laid by this Court for regulating its jurisdiction, keeping in view the principles of restraints. We find that in the cases of contractual service, where the grievance agitated is against a private person, there is no reason that such restraint should not be resorted to by this Court and any exception should be taken to the law laid down in Tanweer ur Rehman case supra (note: even if it pertains to the writ jurisdiction of High Courts).

11. As to the principles of law laid down by this Court in para. 50 of its judgment in the case of Pakistan Defence Officers' Housing Authority (supra), narrating the circumstances under which a writ could be maintained in respect of service grievance by an employee of a statutory body, specially provided in clauses (i) and (iv) of the said para, which reads as under:-

(i) Violation of Service Rules or Regulations framed by the Statutory bodies under the powers derived from Statutes in absence of any adequate or efficacious remedy can be enforced through writ jurisdiction.

(ii).....................

(iii)........................

(iv) Where the action of a statutory authority in a service matter is in disregard of the procedural requirements and is violative of the principles of natural justice, it can be interfered with in writ jurisdiction.

(v)...................

12.Again the maintainability/competency of a writ before the High Court in terms of para 50(i) and (iv) was claimed in the case of Pakistan Red Crescent Society (supra) and the Hon'ble Member of the Bench who authored the judgment in the case of Pakistan Defence Officers' Housing Authority (supra), rejected the plea by referring to para 50(ii) which reads as follows:-

(ii) Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal uses, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of 'Master and Servant'.

13.It was held that the Rules framed by the Pakistan Red Crescent Society are non-statutory and their violation cannot normally be enforced through writ jurisdiction and on that count the writ petition was found as not maintainable.

14.Likewise in the case of Muhammad Zaman and others v. Government of Pakistan (2017 SCM R 571), this Court has reiterated principle regarding in-competency of a writ by an employee of a body having non-statutory rule as non-statutory rules could not be enforced through a writ. The relevant portion of the cited judgment reads as under:- "Thus the conclusion of the above discussion is that the Regulations are basically instructions for the internal control or management of SBP and are therefore non statutory. Hence the appellants could not invoke the constitutional jurisdiction of the learned High Court which was correct in dismissing their writ petition".

15.No doubt the employees of statutory corporations in absence of violation of law or any statutory rules of service cannot press into service constitutional jurisdiction of the High Court and after we have come to the conclusion that the service rules framed by the appellant were not statutory but for their internal guidance and, therefore, their enforcement through writ jurisdiction does not appear to be in consonance with the law settled by this Court. The directions imparted through the impugned judgment by the High Court to initiate proceedings against the respondent in terms of Removal from Service (Special Powers) Ordinance, 2000 after its repeal in the year 2010 vide Removal from Service (Special Powers) (Repeal) Act, 2010 also appear to be result of poor assistance. However, the question which escaped the attention of the High Court and needs our consideration is as to whether Rule 8(b)(1) of the Service Rules framed by the appellant in 2008 for their employees which authorizes the Administrator to dispense with the services of an employee by giving him one month's notice or a month's pay in lieu thereof without assigning any reason or providing an opportunity of hearing is violative of the principle of natural justice, which always has been treated as violation of law. The said rule further appears to be against the principles of public policy which requires the public functionaries to maintain transparency and to exercise their powers in good faith in the public interest and not on the basis of personal likes or dislikes or on the basis of whims and fancies and, therefore, it needs to be examined as to whether such rule could be allowed to be retained in the service rules (though non-statutory) of the appellant a statutory body. Rule 8 of the Service Rules 2008 of the appellant is reproduced below for the sake of convenience:- "8. Termination/Resignation/Dismissal from Service a. Term ination / Dism issal

(1) Term ination. Termination of service of an employee under the clause of 'Misconduct' as per DHA Rules Chapter IV. An employee terminated due to absence from duty under this clause will be entitled for gratuity and other emoluments under normal rules.

(2) Dism issal. In case an employee commits an offence of a serious nature as determined by the competent authority, he/she will be dismissed under relevant DHA Rules. Such an employee will not be eligible for gratuity and other benefits except provident fund (his/her share only). b. Rules for Governing Term ination/Dism issal / Resignation

(1) The Administrator may dispense with the services of an employee by giving him one month's notice or one month's pay in lieu thereof Similarly, an employee may resign from service by giving one month's notice or by paying one month's pay in lieu thereof.

(2) Withdrawal of an Employee's Resignation

(a) Before acceptance by the Administrator - the resignation shall be deemed to have been withdrawn.

(b) After its acceptance, but before the employee is relieved - the Administrator may allow/disallow withdrawal based on the merits of the case.

(3) An un-confirmed/temporary, daily wager, trainee, part time employee and visiting faculty shall not be entitled to any notice or salary in lieu thereof on termination of service. Similarly, such employee may resign without any advance notice.

(4) A regular employee shall not be removed or dismissed from service on disciplinary grounds without a prior 'show cause' notice.

(5) An employee who absents himself/herself without leave or overstays leave, he/she will be served with three notices each after every ten days to rejoin duty. In case of failure to report for duty, his/her services will be dispensed with under 'Misconduct'.

(6) In case of retrenchment/closure of a Section/Department/ Project/work area, services of an employee can be dispensed with being surplus/no longer required".

16. In the instant case, the respondent who in terms of section 16 of the Ordinance, 1980 is a public servant, was appointed in the year 1999, and after successfully completing her probationary period of one year has served the appellant as regular employee for almost two decades. Her services were dispensed with without assigning any reason or providing an opportunity of hearing. The contention of the ASC for the appellant that the respondent was a contract employee and as per her appointment letter her services could be terminated on one month's notice as recorded in the leave granting order is against the record/appointment letter of the respondent. The respondent of course was a regular employee as the only condition in her letter of appointment was of successful completion of probationary period of one year which was completed by her in the year 2000.

Additionally this ground was not raised before us by the ASC for the appellant and admitted her to be regular employee whose services were dispensed with under Rule 8(b)(1). The admitted fact on record reflected that both the appellant as well as the respondent had grievances against each other and the appellant instead of exercising powers as provided under Rule 8(b)(4) which requires that "a regular employee shall not be removed or dismissed from service on disciplinary grounds without a prior show cause notice" resorted to the provision of Rule 8(b)(1) which provides that "the Administrator may dispense with the services of an employee by giving him one month's notice or one month's pay in lieu thereof Similarly, an employee, may resign from service by giving one month's notice or by paying one month's pay in lieu thereof". There is nothing on record to show nor the learned counsel for the appellant was able to disclose that in view of a specific provision available in the service rules for initiating disciplinary proceedings against the regular employee in the shape of Rule 8(b)(4) why the Administrator had to resort to the provision of Rule 8(b)(1) if there was no bias of personal likes or dislikes or that such decision was not based on whims and fancies or carried no mala fide. The provisions of Rule 8(b)(1) which empower a statutory corporation/public functionary to terminate the services of its employees without cause, of course, clearly violates the principle of natural justice/law and, therefore, its retention in the service rules of the appellant cannot be allowed being ultra vires the Constitution and the law.

17. The power to terminate the services of an employee without cause was also questioned and considered by this Court in the case of Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCM R 1159) and this Court after taking into consideration all the pros and cons declared the provision in the non-statutory service rules of the SECP providing termination without cause as ultra vires the Constitution while observing as follows:- "It must be stated that in a civilized dispensation which is rule based and is aimed at good governance, such whimsicality cannot be countenanced. Such autocratic practices may be in consonance with the legacy of our colonial past wherein the prevalent monarchical disposition subjected senior state functionaries, even judges, to holding office at the monarch's pleasure. But, as we noted in Muhammad Yasin's case, our law has come a long way from those days. It does not allow for dismissal of "public servants" in such an imperious and arbitrary manner. There is another important reason why this cannot be done. We have repeatedly held that all functionaries of the state, be they Civil Servants or senior echelons of corporate/statutory bodies such as SECP are above all, fiduciaries of the people. As such they can only exercise their powers in good faith in the public interest and not on the basis of personal likes or dislikes or on the basis of whims and fancies. Thus, the power to terminate implies within it that it is not the power of a despot, tyrant, seth or wadera, but the power of a trustee and fiduciary in the service of the people. A seth, in the unbridled laissez faire world of private business could perhaps terminate the services of an employee on the ground that the employee is too honest, upright and law-abiding for the success of the business or that he does not defer to the seth's opinion. Such attitude and thinking have no place in a statutory public body such as SECP, which only exercises delegated authority under section 8 ibid when it "from time to time employ(s) persons to be' employees of the [SECPJ". It is essential that officials taking decisions in the SECP or enforcing rules, regulations and policies are not left at the whims of a capricious and unreasoned SECP. It is also important to bear in mind that the powers vested in the Commissioners/Chairman SECP are institutional and not personal.

These powers whether express or implied can only be exercised in furtherance of the objects for which SECP has been established.

To sum up the discussion in this part, when we read the Act in the light of principles elaborated repeatedly in our precedents, it becomes clear that the SECP cannot simply be terminating the services of its employees at its whims and pleasure, without having recourse to valid reasons. It can only terminate an employment when it has reasons to do so which are fair and just and advance the purposes of the Act. Both law and public policy require this. This is why, in our short order, we declared Clause 3(1) of Chapter 11 of the SECP Service Rules (HR Handbook), which allows for termination simpliciter (without cause) of employees of SECP, as ultra vires the Constitution and inter alia, the Act."

18. In view of what has been discussed above and the fact that we have declared the provision of Rule 8(b)(1) as ultra vires the Constitution, therefore, declare the letter dated 11th September, 2012 whereby the services of the respondent were dispensed with, as illegal and without lawful authority.

The respondent would be deemed to be in service and entitled to all consequential benefits.

However, the appellant would be at liberty to initiate proceedings, if deemed fit, against the respondent in terms of Rule 8(b)(4) or any other provision but strictly in accordance with law. The appeal in above terms, stands decided.