In this petition under Article 98 of the 1962-Constitution the following order passed on 17-6-66 by the Chairman, Road Transport Corporation, Lahore, is impugned: "The services of Mr. Gul Mohammad, Assistant Traffic Manager, Road Transport Corporation, Lahore are hereby terminated with immediate effect under Rule 23.4 of the Road Transport Corporation Service Rules. He is allowed to draw one month's pay in lieu of the notice period."
2. The petitioner was offered a temporary post of an Assistant Traffic Manager on trial for three months with a fixed salary of Rs. 250 by an order of the Chairman, Punjab Road Transport Board, Lahore, dated 24-1-56. The trial period was extended froth the to the and ultimately on 11-10-57 he was confirmed in his appointment and also granted annual increment of Rs. 10 raising his pay from Rs. 250 to Rs. 260 m the the scale of Rs. 250-10-350. Thereafter he continued to serve the respondent-Corporation, though not without mishaps in that once his services were terminated on 23-1-58 but the order was subsequently withdrawn on 31-1-58 and again on 28-12-65 his annual increment was withheld for six months. Finally, his services were terminated, as noted above, on 17- 6-66. The petitioner filed an appeal against the said order of the Chairman but the Corporation in its meeting held on 31-10-66 decided that there was no cogent reason to accept the appeal and confirmed the decision given by the Chairman, Road Transport Corporation. The petitioner thereafter approached this Court by the present writ petition.
3. The following three contentions have, in the main, been advanced on behalf of the petitioner:
(a) that the Chairman of the Road Transport Corporation did not have the authority to germinate the services of the petitioner;
(b) that the assumption of the respondent-Chairman that the petitioner's service could be terminated by one month's notice or one month's pay in lieu of notice is without basis, because the determination of the period of notice is a matter appertaining to the terms and conditions of an employee and since it is the Road Transport Corporation alone which can frame rules regulating the conditions of service of its employee, the Chairman could not by himself have fixed the period of notice ;
(c) that the order dated 31-10-66 passed by the Road Transport Corporation rejecting the appeal of the petitioner is bad because; (a) the order appealed against had been passed by the Chairman, Road Transport Corporation, who also attended the meeting of the Corporation held on 31-10-66 in which the decision on the appeal was taken; and, (b) the petitioner was not heard in support of his appeal and its rejection without hearing him and without giving any reasons is without lawful authority and of no legal effect.
4. To appreciate the soundness or otherwise of the above contentions, It is necessary to narrate some further facts. At the point of the when the petitioner was taken into service the Rules in force were the "Punjab Road Transport Board Service Rules, 1954" framed in exercise of powers conferred by rule 18 of the Punjab Road Transport Board Rules. 1952, herein--after referred to as the 1954- Service Rules and the 1952-P. R. T. B. Rules respectively. Rule 4.1 of the 1952-P. R. T. B. Rules is relevant and the pertinent part of it may be reproduced here--under with advantage "Subject to the provisions of rule 13 of the P. R. T. B. Rules, 1952, appointments to posts in the service shall be made (i)---------------------------------------------------------------------------------
(ii) --------------------------------------------------------------------------------- (i.e)---------------..The Chairman in case of posts of Manager Central Stores, Assistent Traffic Managers, Assistant Works Managers;
(iv) ---------------------------------------------------------------------------------
(v) --------------------------------------------------------------------------------- The petitioner was appointed by a letter of appointment dated 24-1-56, the material part of it is as follows: "No. 1872/OS-55. Dated Lahore the 24th January 1956 Subject: Appointment.
You are hereby offered a temporary post of an Assistant Traffic Manager (Special Squad) on trial for 3 months at a fixed salary of Rs. 250 p.m.
3. Your services may be terminated as follows :-
(i) At the end of or during the first month by either party without notice.
(ii) By the Board without previous notice if it is satisfied on medical evidence that you are unfit and are likely for a considerable period to continue unfit by reason of ill-health for the discharge of your duties provided always that the decision of the Board that you are likely to continue unfit shall be conclusive and binding on you.
(i.e) By the Board or its officers having proper authority without any previous notice if you be guilty of any insub--ordination, intemperence or other misconduct or of any breach or of non- performance of any of the existing practices or of rules pertaining to the breach of the Public Service to which you may belong.
(iv) By one calender month's notice in writing at any the during service either by you to the Board or by the Board or its authorised officers to you without cause assigned. In case you fail to give one month's clear notice in writing, you will have to deposit one month's pay and allowances in lieu thereof.
(Sd.) Chairman, Punjab Road Transport Board, Lahore The petitioner was ultimately confirmed on 11-10-57 and the order passed in that connection is also reproduced below, as follows: "Sanction is hereby accorded to the grant of annual incre--ment which fell due to Mr. Gul Muhammad Assistant Traffic Manager, Special Squad on 19-1-57 raising his pay from Rs. 250 to 260 in the the scale of Re. 250-10-350. He is also confirmed in his appointment.
(Sri.) Mushtaq Ahmed, Chairman, Punjab Road Transport Board, Lahore.
Dated 11-10-57.
Sometime thereafter the P. R. T. B. Rules of 1952 were superseded by the notification No. T-3/8-57 (Il) dated 27-12-57 published in the Extraordinary Issue of the Gazette of West Pakistan, issued in exercise of powers conferred under sub--section (7) of section 43-A of the Motor Vehicles Act, 1939 and the Governor of West Pakistan was pleased to promulgate in their stead, the West Pakistan Road Transport Board Rules, 1957. Under rule 12 thereof, the Board was authorised subject to the provisions of Rule, 7, to frame regulations for determining the qualifications required for the recruitment of officers and servants of the Board and prescribing terms and conditions of their employment". In exercise of powers vexing under rule 12 the Board framed the "West Pakistan Road Transport Bard Service Rules, 1959", (hereinafter to be referred to as the 1959 Service Rules). These rules were designed to define the conditions of the service, recruitment, promotion, discipline, control, appeal, pay and allowance and leave benefits of the employees of the Board. It may be recalled that the services of the petitioner were terminated under Rule 23.4 of the above Rules. The terms in which it is couched are as follows: "23.4. The authority competent ?o terminate service may terminate service at any the without notice or on a shorter notice without assigning any reason provided that pay is granted for the period by which notice falls short of the required period of notice."
To complete the reference to the Rules promulgated from the to the, it should be mentioned that the West Pakistan Road Transport Board Rules, 1957, were superseded by the Road Transport Corporation Rules, 1963, which were published In the Gazette of West Pakistan Extraordinary on 10- 6-64. However, by a Memo No. 106-BEG-(FAR)-64/415 dated 26-6-64 the Road Transport Corporation decided to continue to follow the Rules, and Regulations, Standing Orders, Instructions, Delegation of Administrative as well as Financial Powers to various officers followed by the former West Pakistan Road Transport Board till such the rules of the Corporation were framed and approved by the Government. Thus, it is common ground that the relevant files for determining whether the order of termination passed in the present case is valid or not is to be adjudged with reference to the West Pakistan Road Transport Board Service Rules, 1959.
5. Learned counsel for the respondent submitted that according to rule 4.1 of the Punjab Road Transport Board Service Rules, 1954, the Chairman of the Board was the appointing authority in the case of the petitioner. According to para. 3(iv) of the letter of appointment dated 24-1-56 issued to the petitioner, his services were liable to be terminated by one month's notice in writing at any the during service, either by the petitioner to the Board or by the Board or its authorised officers to tae petitioner, without cause assigned. The term of the petitioner's appointment continued even after confirmation because no fresh agreement was entered into by the Board with the petitioner. In support of this submission reference was invited to clause (a) of Rule 3 of the West Pakistan Road Transport Board Service Rules, 1959, according to which all existing agreements or contracts were to remain in force, subject to any modification made therein by the said Rules. Counsel then referred to rule 23.1 of the Rules which provided that "the services of a Board employee shall be terminated in accordance with the terms of the agreement under which he has been appointed". It was submitted that the expression "authority competent to terminate his service used in rule 23.4 is equivalent to the expression "authorised officers of the Board" used in para. 3 (iv) of the letter of appointment and as the Chairman was the competent authority for making appointment to the post of Assistant Traffic Manager he was, therefore, also the competent authority or authorised officer to terminate the services of such an employee tinder rule 23.4. In short, the submission was that the service agreement had been kept alive by 1959-Service Rules and the condition relating to termination of service' by one month's notice was also saved under the said Rules and because the Chairman of the Corporation was the authorised officer for the purposes of making appointments, under Rule 4.1 of the Service Rules of 1954 and appointments made by him were kept in force under rule 3(a) of the 1959-Service Rules he had the authority to take action under rule 23.4 of the said Rules. It was further submitted that there was no need for delegation of any powers to him, for the purpose of terminating the services of employees under rule 23.4, because the power terminate formed part of the Rules itself and there was thus no necessity for arty further delegation of powers in this respect to the Chairman. Reliance was also placed on the principle contained in section 16 of the General Clauses Act and in this connection the case of Joseph John v. State of Travancore (1953 T C 130) was referred to. I, however, had that this last mentioned judgment has no relevancy to the question falling for consideration before me and no discussion on this part of the counsel's submission is, therefore, necessary.
6. I observe that neither in the letter of appointment nor In the 1959-Service Rules has it been laid down that the Chairman is competent to terminate the services of any Board employee. In the letter of appointment, the termination of service can be made by the "Board or its authorised officer" while in rule 23.4 of the 1959-Service Rules, the services of an employee can be dispensed with by "the authority competent to, terminate the service". However, who that authority is, has not been stated anywhere, neither in the appointment letter nor in the Service Rules. According to the respondent's counsel in so far as the Chairman is the appointing authority of the petitioner, he should also be deemed to be his removing authority. But the learned counsel for the petitioner, submits that the matter is not so simple. The question involved is the career of an employee and the power claimed is the authority to terminate the services of a permanent employee, without issuance of a charge-sheet or of a show-cause notice or of any indication of the ground necessitating such drastic action. The question thus is whether the power of ending the career of a permanent employee of the Corporation has indeed been conferred upon the Chairman of the organisation. The plea raised against the above assumption is that this power can be exercised only by the employer himself, namely, the Road Transport Board or its successor, the Road Transport Corporation and no one else. The Chairman, it is urged, being only an employee of the Board and thus a co-employee in the Organisation alongwith the petitioner cannot exercise the ultimate power vesting in a master to get rid of his servant without cause assigned or stating the ostensible defect in his conduct, necessitating this course, unless this vast power has been specifically delegated to him. He points out that the Chairman, has indeed been specifically vested with the powers of terminating the services of certain category of employees of the Road Transport Corpora--tion, in certain circumstances. 1n this connection attention is invited to the Road Transport Corporation West Pakistan (Removal of Undesirable Employees) Ordinance (Ordinance VIII of 1965). Under the terms of this Statute the "appropriate authority" has been defined to mean the "Chairman in case of employee appointed by an authority or officers subordinate to the Corporation. Thus, the Chairman is empowered to terminate the services of an employee of the Corporation if he is considered to be "undesirable" by him. Thus, where the Chairman can take action against an employee, the power has been entrusted to him specifically by the terms of the statute itself. However, by the terms of the relevant statute in such a case it is necessary to give the employee a reasonable opportunity to show cause against the action proposed to be taken against him, before terminating his service.
7. Admittedly the action taken against the petitioner has not been taken under the said Ordinance.
Thus, it is only if the Chairman could, under the rules referred to in the earlier part of the judgment be held competent to terminate the services of the petitioner can be impugned action be justified.
According to the 1954-Service Rules only the power or appointment has been vested in the Chairman. It has, however not been stated therein that he has the power to terminate the services of the persons in respect of whom he was the appointing authority. Under the West Pakistan Road Transport Board Rules, 1957, which superseded the Punjab Road Transport Rules, 1952 (under which the 1954-Services Rules were framed)) the duties of the Chairman were set out in rule 3, but these merely provided to the following effect: "(i) The Chairman shall-
(a) attend every meeting of the Board unless prevented by illness or outer reasonable cause ;
(b) be responsible for the orderly conduct of the business by the Board ;
(c) exercise supervision and control over all officers and servants of the Board to the extent delegated by the Board and dispose of all questions relating -to their pay, privileges and allowances; and
(d) furnish to the Government copy of the minutes of any of the Board's meetings and any returns or other information which the Government may call for.
(ii) With the previous approval of the Board in respect of such matters as require the approval of the Board, and where such action is necessary, the Chairman shall-
(a) institute, defend or withdraw any proceedings and compound any offence ;
(b) admit, compromise or withdraw any claim :
(c) obtain legal advice".
Coming to the 1959-Service Rules it will be seen that the powers of the Chairman are again not specified. Though the expression 'competent authority' has been defined in rule 6.6. Thereof, but under it 'in relation to the exercise of any power, the competent authority means "the Government, the Board or any authority to whom powers under these rules have been delegated". Which definition is not helpful in the present context. In the latest Rules, viz. The 1963-Rules, the duties assigned to the Chairman are similar to those performed by him under rule 3 of 1957-P. R. T. B.
Rules. Reference may, however, be made to rule 11 of these rules which deals with the officers of the Corporation. Sub-rule (4) thereof is relevant and reads as follows :-- "Subject to the provisions sub-rules (1) and (2) the power Subject promoting, suspending, fining, reducing remov--ing or dismissing for misconduct or granting leave or passing other orders in respect of officers and servants of the Corporation shall be exercised by the Corporation or officers of the Corporation to whom powers are delegated by the Corporation in this behalf."
Rule 16 deals with the delegation of powers by the Corporation to its Chairman etc. The Statement of the Delegation of Powers contained in the official publication of the Road Transport Corporation, in which delegation of powers in respect of financial powers, administrative powers and powers for agreements and contracts have been reproduced, shows that the Chairman has been delegated the powers of removing from service of the Corporation and dismissing from its service, several categories of employees, including Assistant Traffic Manager, vide para. 5, clauses (c) and (d), item B under head 'Administrative Powers'. It thus appears that in the above statement of delegation of powers the power to order termination of service has not been delegated to the Chairman. It is significant that removal and dismissal from service are both treated as punishments and are dealt with in Chapter 11 of of the 1959-Service Rules, relating to discipline, penalties and appeals (vide Rule 26.1, clause (c) and (d). Under rule 26.2 of the same Chapter, the above-noted penalties cannot be imposed on any employee except by an order in writing signed by the 'competent authority' and no such order can be passed without charges being formulated In writing and given to employee involved and his defence obtained and considered. He is also to be provided with a reasonable opportunity to answer them in person and in the latter case his defence shall be recorded and attested by the enquiry officer. The 'competent authority' here would no doubt mean the Chairman, to whom the powers have been delegated, vide the statement relating to Delegation of powers, referred to above but, as already noticed, no such delegation has been made so far as the power terminate the services of the employees is concerned.
8. As a result of the above discussion, my conclusion is that the contention raised on behalf of the petitioner that the overriding power to terminate the services of an employ has been retained by the Road Transport Corporation Itself has substance and the plea that it has not been considered appropriate 99 confer such a vast power on the Chairman Chairman alone would not be competent to pass an order of termination of service of any employee. The intention underlying this appears to be that the Chairman would be the competent authority for terminating the service of any employee, if he is established to be 'undesirable" and may 'also 'remove' or 'dismiss' him, if he is proved to be guilty of some misconduct. But in all the above eventualities he can get rid of employee only after taking proper proceedings against him. If he is an 'undesirable' employee the procedure laid down in Ordinance VIII of 1965 will have to be observed. If he wishes to 'dismiss' or to 'remove' him, he must cause an enquiry to be held and give him a reasonable opportunity why he should not be 'dismissed' or 'removed'. But where the services of the employee are to be terminated summarily, without assigning cause or allowing him any opportunity to represent against his severance from service, the only protection that appears to have been conceived is that such an order should be passed by the master himself, namely the Road Transport Corporation; and not any subordinate authority. I, therefore, uphold the first contention raised on behalf of the petitioner.
9. There is also force in the second contention of the petitioner. In the impugned order of termination passed by the respondent pay in lieu of one month's notice period has been granted.
The above period of one month has been fixed by the Chairman of the respondent-Corporation.
However, it is the Road Transport Corporation which is statutorily competent to frame rules and prescribe conditions of service of servants of the Road Transport Corporation. There is no doubt that fixing a particular period of notice to be given for the purposes of terminating the service of servants of the Corporation is a function which belongs to the realm of rule-making and can only be prescribed by that authority. The Chairman was not, therefore, competent to prescribe the period of notice on the expiry of which his services could be terminated. There is, moreover, no delegation of the said power by the Corporation to the Chairman to terminate the services of its employees on one month's notice or pay in lieu of notice. As the letter of appointment is subject to the Service Rules, therefore the period of notice could be fixed by the competent rule-making authority alone. In rule 23.2 of 1959-Service Rules reference to Model Agreements in regard to temporary or officiating and permanent substantive appointments is made which are also, reproduced in Appendix V of the said rules. In the case of permanent employee the terms of para. 6(c) of the Model Agreement are relevant. This shows that the services of such an employee may be D terminated by the Board of by the competent authority "without cause assigned on . . . . . . . .
Months notice". The period of notice is left blank in the Model Agreement, which has to be prescribed by the competent authority. The Chairman himself cannot fix the notice period because this matter relates to the terms and conditions of the service of the employee and can be fixed only by the Board of the Corporation. Hence the assumption that the petitioner service could be terminated on one month's notice is also without any legal basis.
10. The third contention to has force. The petitioner's appeal was disposed of in the meeting of Corporation wherein the Chairman, who bad passed the order of termination, was also present.
Since the order appealed against was passed by the Chairman, Road Transport Corporation and the appellate order was passed in the meeting wherein he not only partici--pated but in fact presided, the said order cannot be deemed to be a valid order. I hold that the appellate order dated 31-10-1966 cannot be regarded as a legal disposal of the petitioner's appeal. See Muhammad Abdullah v, Road Transport Corporation (PLD 1964 Lah. 743).
11. The over-all conclusion is that this writ petition must succeed. The order of termination dated 17- 6-1966 passed against the petitioner is held to be without lawful authority and also to be of no legal effect. Similarly the order dated 31-10-1966 passed, on appeal is also of no legal consequence. The result is that the petitioner shall be deemed to be still in the service of the Road Transport service. He shall also have the costs of this petition.