The petitioner was appointed as a Checker by the General Manager of the Punjab Transport Board on 23-9-1957. The case of the petitioner is that the Punjab Transport Board was later on Integrated in the Road Transport Corporation and the services of the petitioner were transferred to the said Corporation. The General Manager, who was' the appointing authority was, according to the petitioner, designated as a Traffic Manager and was senior in rank to a District Manager.
2. The cane of the petitioner is that he was promoted as an Inspector on 2-10-1962 by the Traffic Manager. According to the revert submitted to this Covet the date of his promotion is 2-11-1962, but the learned counsel states that nothing turns on this date, and, therefore, the difference in this respect can be ignored.
3. On 6-8-1965, the District Manager (respondent No. 2) terminated the petitioner's services. A copy of the relevant order is Annex. ---A--- and reads as follows :- "The services of Mr. Gulzar Ahmad Inspector are hereby terminated with immediate effect under Paragraph 4(d) of his service agreement. He will be paid one month's pay in lieu of one months' notice.
The petitioner filed an appeal before the Traffic Manager on 18-8-1965, which was rejected on the ground that so his services had been terminated in accordance with the terms of his service agreement, therefore, the appeal was not competent and was rejected. Annex. "B" contains the grounds of appeal and Annex. 'C' is order of the Traffic Manager, dated 26-1-1966 dismissing the appeal.
4. The petitioner then filed a further appeal (Annex. ---D---), to the Chairman, Road Transport Corporation but without any result, because he says that it was also rejected. The petitioner has not placed on record either the order of rejection of the appeal nor he is in a position to mention the date of the said order. The petitioner has come up in writ petition against the aforesaid proceedings and orders to this Court.
5. The first point argued by the learned counsel for the petitioner was that his client was entitled to the Constitutional safeguards in the matter of removal and dismissal of service which had been violated in the instant case. The contention has no force. The Constitutional safeguards are available to only those persons who hold Civil Posts in connection with the affairs of a Province or Centre. The petitioner was not holding such a post but was in the employment of the Road Transport Board or Corporation (a corporate body) and, therefore, was not a Government servant.
In T Y. Kondala Rao and others v. Andhra Pradesh State Road Transport Corporation and others (AIR 1961 SC 82) it was held that though under the provisions of the Motor Vehicles Act the State Government has some control, but it cannot be said that either legally or factually Road Transport Corporation which is a body corporate having a perpetual succession and common seal is a department of the State Government. The position has been examined by me at some length in Lt.- Col. J. D. Malik v. The Government of Punjab and others W. P. No. 661/5 of 1971 and need not be gone into in any greater detail over again. As a matter of fact, when confronted with the ample case-law on the subject, learned counsel for the petitioner did not press the point any further.
6. The next point argued was that on 4-7-1961, was promulgated the Road Transport Workers Ordinance XXVIII of 1861. Section 2 defined employer as, "the owner of any road transport service in which workers are employed, and where the business of such service is not directly managed by the owner, means the Manager. Agent, or Representative of such owner in the said service, and where the owner is a minor, the guardian of such minor, and in relation to any vehicle which is the subject of hire-purchase agreement, the 'person in possession of the vehicle under that agreement". Section 2(7) defined "road transport service" so as to mean, "a service carrying passengers or goods or both by road in vehicle: for hire or reward." Section 2 (10) defined a "worker", so as to mean, "a person engaged on mobile duty, and includes drivers, cleaner, conductors and checkers employed by or in Road Transport Service. It was conceded before me by the learned counsel for the respondents that the petitioner was a worker within the aforesaid definition.
7. After reading these definitions, learned counsel for the petitioner referred to section 7 of the Ordinance which reads as follows :- "7. Restriction on termination of services etc. (1) The services of a worker shall not be terminated without sufficient cause nor unless and until one month's previous notice or one month's pay in lieu thereof has been given to him and he has been paid his pay for any period of leave admissible to him, of which he did not avail himself while in service.
(2) Nothing in subsection (1) shall apply to the case of a worker whose services are terminated on account of his having been found guilty of misconduct.
Explanation.-For the purpose of this subsection the following acts and omissions shall be treated as misconduct, namely:--
(a) wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior,
(b) theft, fraud, or dishonesty in connection with the employers' business or property,
(c) wilful damage to; or loss of employers' goods or property,
(d) taking or giving bribes or any illegal gratification,
(e) habitual absence without leave or absence without leave for more than 10 days,
(f) habitual late attendance,
(g) habitual breach of any law applicable to the establishment,
(h) riotous or disorderly behaviour during working hours at the establishment or any sot subversive of discipline,
(i) habitual negligence or neglect of work,
(j) striking work or inciting others to strike work in contravention of the provisions of any law, or rule having the force of law.
(3) If in any case instituted for the contravention of the provisions of subsection (1) the services of a worker are found to have been terminated without sufficient cause the amount payable as compensation under this section shall be in addition to any fine as payable under section 11.
(4) No person who has been awarded compensation under this section shall bring a civil suit in respect of the some claim."
8. Section 11 to which reference has been made in subsection (3) of section 7, reads as follows :- "11. Whoever contravenes any of the provisions of this Ordinance, or any of the rules made thereunder, shall be liable on first conviction to a fine not exceeding fifty rupees for the first offence and to hundred rupees for every subsequent offence: Provided that-
(a) in the case of any contravention of the provisions of section s, the employer shall be liable, on conviction, to a fine not exceeding ton rupees for every day on which the contravention occurs or continues, and
(b) if any employer, with intent to deceive, makes or causes or allows to be made, in any record, register, a notice or other document as provided under section 8 an entry which is to his knowledge false in any material particular, or wilfully omits or causes or allows to be omitted from any such record, register, notice or document an entry required to be made therein shall be liable on conviction to simple imprisonment for a term not exceeding six months or to a fine not exceeding five hundred rupees or both."
9. It was argued that the safeguards provided to the workers were to override the terms of all existing contracts or appointment letters to the contrary and that after the promulgation of the aforesaid Ordinance, any condition in any service agreement or appointment letter providing for termination of service on any periodic notice simpliciter (without stay sufficient cause), became void to that extent, and now the service of a worker could be terminated only In terms of section 7 ibid and not otherwise. The contention seems to have force. In my opinion, the statutory safeguards by Ordinance XXVIII of 1961 would become worker notwithstanding any terms of his employment contrary, That these safeguards have been in the employment of Road Transport Corporation amply demonstrated from decisions of various Labour Courts reported in Sharif-ud-Din v. The District Manager, Government Transport Service and another (1970 PLC 32) and Transport Board Employees Union, Peshawar v. West Pakistan Road Transport Board, Lahore (1963 PLC 809).
10. When confronted with the above situation, learned counsel for the respondents argued that the Road Transport Workers Ordinance XXVIII of 1961 was not applicable to Workers of the Road Transport Corporation or Board, per its own force, because, -according to him, the definition of "employer" as contained therein (and as reproduced above), could not embrace Corporate Bodies (of the kind involved here), but covered only private owners and pliers of transport and buses.
Support for this proposition was also sought from section 11 of the Ordinance (reproduced above) which talked of punishing the employer in certain contingencies. It was argued' that the Corporation may be fined but it could not be imprisoned and from that point of view, It was submitted that the Ordinance applied to physical persons and not juristic persons, Learned counsel for the respondents further sub--mitted that the provisions of the aforesaid Ordinance have no doubt otherwise been adapted by the Road Transport Corporation/Board in its Regulations a copy whereof was placed on record) but per their own force, they had no application. In this way, relying on the principle laid down in Lahore Central Cooperative Bank Ltd. v. Pir Saif-Ullah Shah (PLD 1959 S C (Pak.) 210), Faiz Ahmad v. Registrar, Cooperative Societies (PLD 1962 SC 315) and Zaln-ul-Abidin v. Mukan Central Co-operative Bank Limited (PLD 1966 SC 445) it was submitted that where a corporate body violates certain rules which are not applicable to it per their own force, but were adapted by it (with reference), then their violation cannot be challenged by the process of a writ petition.
11. In my opinion, the objections raised by the learned counsel for the respondents are not attracted to the present case. A careful study of Ordinance XXVIII of 1961 would show that Road Transport Board/Corporation was not outside its scope. The preamble of the Ordinance states that it was, "'an Ordinance to regulate the hours of work and other conditions of employment of Road Transport Workers in Pakistan, "The preamble is very comprehensive. It applies to Transport Workers in Pakistan and does not say, "other than workers in Road Transport Cor--porations or Boards:". The definition of "employer" is also very significant and states that it means the owner of any Road Trans--port Service in which workers are employed. A Corporate Body (like a Road Transport Corporation or a Road Transport Board) is a legal person. The effect of incorporation is that it creates a legal personality or capacity equivalent to that of a private individual. It is not the appointment of its members that constitutes a Corporation. Its constitution is created by the Act and the Notifications. See K. S. Venkatararna Iyer v. Hamid Sultan Maracayar Sahib Bahadur and others (AIR 1923 Mad. 360.). The person thus created is vested with certain rights, privileges, powers and duties. It can hold property, make contracts, commit Torts. Do various acts and sue and be sued. Such a person is not physical person, it is a persona dicta, a person which does no exist physically, but which is nevertheless recognised as a person in the eye of law. A corporation thus, according to me can also own transport service and there can be no inherent hurdle in its way in that respect. Again the definition of word "employer" takes stock of a situation where, for an example, the owner may not be directly managing the transport service, but may be managing it through its Manager, Agent or Representative. Road Transport Corporation or Board can thus very well fall within the scope of this definition and no case is made out to exclude it from the same. As regards the liability of being punished, (as contemplated in section 11), needless to say, that fine can be imposed on a Corporation, and so far as the question of imprisonments is concerned, that can be ordered against its manager, Agent or Representative according to the facts of each case.
The objection of the learned counsel, therefore, that Ordinance XXVILI of 1961, does not per its own force, apply to workers in the Road Transport Corporation Board, cannot be accepted and is hereby repelled. The preface to the Regulations, a copy of which has boon placed on record reads as follows:- "RULES GOVERNING WORKERS/WORKMEN PREFACE Subject to the provision contained in Road Transport Workers Ordinance, 1961 and Industrial and Commercial Employment (Standing Orders) Ordinance, 1960, and in exercise of the powers vested in this behalf, under rule 15 of the Road Transport Rules, 1963, the Corporation is pleased to frame the Workmen/Workers Service Regulations as here--in after given in the following pages. These Regulations are intended to define conditions of service recruitment, promotion, discipline control, appeal, pay and allowances (including travelling and other allowances) leave benefits etc., to the workers and workmen, governed by the Industrial and Commercial Employment (Standing Orders)
Ordinance, 1960, and Road Transport Workers Ordinance, 1961."
This Preface in a way itself concedes that the Ordinance in question in its own turn was applicable to workers in the employ--ment of the Road Transport Corporation or Board and any argument of the learned counsel for the respondents is even against the apparent tenor of the Preface of the Regulation---which are subject to the Ordinance and not derogatory thereto. Moreover, there is nothing in the Regulations to sow that they were adopting the Ordinance by reference. Rather the Preface to and the Schedule annexed with the Regulations concede that the Ordinance did apply to the workers of the kind involved herein per its own force.
12. The next point argued by the learned counsel for the respondents was that the relationship between the parties in this case being of master and servant, no order should be passed by Court which has the effect of thrusting a servant on an unwilling master and that the remedy of the petitioner in the circumstances of the present case is that of claiming damages if any in a Court of competent jurisdiction. The contention has 0o force. The above principle is applicable only in such case where the relationship is governed purely by a contract and not by any statute or statutory rules on the subject. This was pointed out by a Division Bench of this Court in Ijlas Ahmad Siddiqi v.
The Municipal Committee, Multan (PLD 1967 Lah. 408) Sajjad Ahmad Jan and Muhammad Gul, JJ.), where at page 418 in Paragraph 17, they expressed as follows :- "17. Before we part with this case, we would like to enter a caveat. We should not be understood as saying that a Municipality or another corporate body is absolutely immune from the writ jurisdiction in the matter of grant of redress to an aggrieved employee even if the impugned order suffers from an inherent vice and is for that reason void ab initio. Such a case would be an exception to the general rule laid down in the cases of Zainul Abidin, Pir Saifullan Shah and Faiz Ahmad. Indeed the case of Maqbool Elahi v. Abdur Rahman Khan PLD 1960 SC 266 noticed already furnishes a remarkable example of both the general rule and the exception. In that case the Supreme Court issued a direction in the nature of mandamus restoring three directors (Who were appellants before their Lordships) for their rightful place in the Board of a Company, in place of the three co-opted new Directors whose co-option was held to be illegal. The three newly --co-opted Directors, however, in the purported exercise of their authority as the Directors suspended the Secretary of the Company (who was a ministerial officer, of the Company) from service. Their Lordships while reiterating the general principle earlier laid down in the case of Pir Saifullah Shah, held that the suspension from service of the Secretary, by the three newly-co-opted Directors was illegal and, therefore, set it aside. In that case, the order suspending the Secretary from service plainly suffered from inherent vice having been made by Directors who assumed their office illegally and, were therefore, Incompetent to make the order. In the instant case, there is no allegation that the Chairman of the Municipality or the Commissioner were not competent to order the petitioner's dismissal or to decide his appeal as the case may be. There may be other exceptions to the general rule, but indeed the instant case is not one of them."
Same was the view laid down in M./s. Malik & Haq and another v. Muhammad Shamsul Islam and another (PLD 1961 SC 531) where it was held that in the absence of Rules, no writ can be granted in such cases merely on violation of contract or contractual obligations. Which means that if in any case any Statute or Statutory rule is violated the result may be different. In S. Ghulam Mohiuddin v.
Board of Trustees of the Karachi Trust Board and others (PLD 1957 Kar.. 482), again writ was issued where there was violation of statutory rules.
13. The next point urged by the learned counsel for the respondents was that enforcement of the provisions of the Road Transport Workers Ordinance XXVIII of 1961, could not be claimed through civil Courts and for such cases the remedy way only to go to Industrial Courts or Labour Courts, in the manner provided therein. Reliance for this proposition was placed on, M. Rashid Ahmad v.
National & Grindlay Bank Limited and another (PLD 1957 Lah. 123). The contention has no force. The case cited was a civil suit in a civil Court and not of a writ petition in the High Court and it never purports to lay down that a High Court in an appropriate case cannot base its decision on the provisions of Ordinance XXVIII of 1961 while exercising its jurisdiction under Article 98 of the Constitution. Rather in Para. 16 of the case hereinbefore cited, there occurs the following passage : "Therefore, It is no doubt open to the Industrial Court and the tribunal to administer the law under the Industrial and Commercial Employment (Standing Orders) Ordinance III of 1960 and to grant specific relief, in suitable cases, by ordering the re-instatement of an ordinary worker wrongfully dismissed by his employer."
This shows that there is no bar in ordering re-instatement of a wrongfully dismissed workman in appropriate cases and if that can be done by a labour and Industrial Court obviously, High Court can equally do It under Article 98 of the Constitution if a proper case on merits is made out.
Another thing to be pointed out is that an individual has no right to take his matter to the Industrial Labour Court. According to the law on the subject, it is only a Registered Trade Union, which in "Labour Dispute" can take the matter of an individual to a Labour Court but not the individual himself. The bar sought to be created in the matter of issuing an appropriate writ in the instant case, therefore, has no validity in any respect.
14. Coming to the merits of the case, in the written-state--ment filed by the respondents, they have not disclosed any "sufficient cause" for putting an end to the petitioner's services. To most of the paragraphs of the writ petition, the reply was "no comments," and sole reliance in support of their action was the agreement of service of the petitioner which he had entered into when he was employed as a checker. Leaving the question open as to whether the terms of the said agreement remained operative even after the petitioner was appointed or promoted as an Inspector-a proposition taken note of in certain contingencies in Zia-ud-Din Ahmad v. The Government or Islamic Republic of Pakistan and another (PLD 1971 Lah. 598) and Mohsin Abbas v. The Islamic Republic of Pakistan (PLD 1958 Kar.. 263) the said agreement as I have already held was no longer solely operative and for the matters involved herein, the Road Transport Workers Ordinance XXVIII of 1961, laid down the basis which was to be followed in such cases. There is nothing on the record before me to show that the condition precedent regarding existence of a "sufficient cause" was fulfilled here. In these circumstances since no "sufficient cause" was either mentioned in the order of termination of service conveyed to the petitioner nor has it otherwise been pleaded in the written-statement and nor shown to me in any manner and nor was the file containing the original order of termination of service produced in Court I have in these circumstances no option, but to declare the impugned orders to be without lawful authority and of no legal effect against the petitioner. He can approach the respondent for restoring him to his office in accordance with law.
The writ petition is accepted in the terms hereinbefore indicated and the impugned orders are quashed. The petitioner shall get his costs from the respondents.