Abdur Razaaq was appointed as Junior Accountant on the 30th of January 1960 by order of the Chief Engineer, Re---Settlement Organisation, WAPDA. On 9-9-64 he was promoted as Accountant by order of the Water and Power Development Authority itself. On 26-4-69 he was dismissed by the order of the Chairman and it is this order which is the subject-matter of the present writ petition.
The reasons which led to his dismissal follow-
2. On 8-9-66 Manzoor Hussain, Junior Accountant com--plained to the Chief Accountant listing a number of charges against the petitioner. The petitioner was asked to submit an explanation which was duly submitted on 23-9-66. On 29-10-1966 the Chief Accountant issued him a charge-sheet to which reply was given on 7-1 t-66. Consequently one Faiz Rasul, Comptroller of Indus Basin Projects was appointed Inquiry Officer. As a result of this inquiry the petitioner received an order from the Authority on 16-3-67 administering a severe warning to him. The order further required that the warning be placed on the Character Roll of the petitioner. Thus the charges that were in--cluded in the charge-sheet were disposed of and the petitioner was suitably punished for that.
On 11-11-67 Mr. Ramiz Ahmad Malik, Project Director, wrote a demi-official letter to the Chief Accountant against the petitioner. He inter alia objected to the issuance of a mere warning to the petitioner. He added some now charge at this stage. On 17-4-(8 the Chief Accountant called upon the petitioner to sub--mit a fresh explanation as, according to the former, the matter required re- examination. On 24-4-68 the petitioner submitted the explanation and on 26-7-68 he was charge- sheeted again under the order of the Authority.
On 16-8-68 the Authority appointed Saeed Ahmad as Inquiry Officer who duly held. An inquiry and submitted a report exonerat--ing the petitioner from the charges except on a very small matter.
His report is attached as Annexure U' to the writ petition.
It was at this stage that the Chairman took upon himself to deal with the mater. A further clarification was asked for from the inquiry officer who complied with the order on 9-1-69.
On 1-3-69 the Chairman issued a show-cause notice to the petitioner on two out of the four charges dealt with by the Inquiry Officer in the report referred to above. On 25-3-69 a reply was submitted by the petitioner. He was also heard personally by the Chairman. On 26-4-69 an order dismissing the petitioner was communicated by the Chairman to him. This is the impugned order.
3. Learned counsel for the petitioner raised the following points before me-
(i) Section 18 of the Water and Power Development Autho--rity Act empowers only tae Authority to take disciplinary action. Therefore, the order of the Chairman suffers from a. Jurisdictional defect.
(ii) There were two sets of rules in the year 1966, namely,
(a) WAPDA Account Service Rules ; and
(b) West Pakistan WAPDA Employees Efficiency and Disci--plinary Rules.
According to the first set of rules only the Authority could take any action while according to the second set only the appointing Authority could take any action. These rules were duly followed in the first inquiry referred to above but in the second inquiry though the Inquiry officer was appointed by the Authority and the charge-sheet was also served by it, the action of dismissal from service was taken by the Chairman , and not from the Authority.
(iii) Disciplinary action had already been taken against the petitioner on the same charges by giving him a warning. He could not be vexed twice for the same cause.
(iv) The show-cause notice was limited to only two of the four charges reported upon by the Enquiry Officer. The order of dismissal however is based upon all the four charges.
(v) The Inquiry Officer who was appointed by the Authority and who held an Inquiry Into the charges framed against the petitioner having exonerated him completely of all the allega--tions against him it was not open to the Chairman to sit in judgment over his report, to set aside a part of it and to dismiss the petitioner quite contrary to the recommendations of the Inquiry Officer.
(vi) The finding of the Chairman ignores the important evidence and misreads the charge.
4. The report dated September 8, 1966 from Manzoor Hussain which appears as Annexure 'D' to the writ petition contains a number of charges-
(i) The petitioner opened an account in July 1965 with the National Bank of Pakistan, Mirpur, without any authority. The interest due on the short terms Deposit Account was directed by the petitioner to he credited to a separate account titled "Project Accountant". This was done without autho--rity by him. The cheques received from the Accountant General, Azad Kashmir drawn in favour of the Project Accountant were converted into a STD Account called New Mirpur Construction Account.
This was done with a view to enabling the petitioner to draw money by issuing cheques under his own signatures.
(ii) During the same period series of cheques which found no entry in WAPDA records have been encashed from the Muslim Commercial Bank and it was found that in connivance with the Manager of the Muslim Commercial Bank the petitioner was secretly converting current account balance into STD and pocketing the interest thereon.
(iii) Similar STD account was opened by the petitioner in Habib Bank also.
(iv) The petitioner was also converting part amounts from current accounts into interest bearing deposits for which purposes the current account balance was kept unduly high and that all this interest was being credited to Re-Settlement Organisa--petition A/C/II from which Mr. Malik was drawing money on cheques for personal use as the cheque book was with him.
(v) The petitioner thus misappropriated an estimated amount of Rs. 50,000 on account of interest accrued on STD accounts, either opened by him secretly by converting part amounts from current accounts with MCB or STD account appearing in official books but terms of deposit were not kept on official records.
5. The charge-sheet that was issued to the petitioner on account of this report informed him that he had boon found to be responsible for the following Irregularities- This charge-sheet is Annexure 'H' to the writ petition. The charges are as follows- "(a) Not prescribing the proper accounting system for separate accounting of STD/Fixed Deposits in the Cash/Bank Book.
(b) Not Issuing Instructions to your Assistant Accountants/ Junior Accountants to ensure that the credits for Interest accrued on STD/Fixed Deposits received from the Banks should be checked before the same are posted In the Bank Books.
(e) Issuing verbal instructions to Muslim Commercial Bank for placing funds in STD/Fixed Deposits, thus preventing the Accounts staff to know the exact position of the Deposit Accounts and to watch the credits for interest accrued thereon.
(d) Not obtaining CA(W')s orders as per para. 8 of the Accounting Manual (Cash Section) for opening of Accounts with the Muslim Commercial Bank and the Habib Bank Ltd., on 17-6-1963 and 27-12-65 respectively."
A letter Issued by the Chief Accountant appears as Annexure 'O' to the writ petition which runs as follows: - "Your explanation dated 7-11-66 has been carefully considered and the Authority have passed the following orders:- Mr. Malik should be administered a severe warning and the warning should be placed on his Character Roll.
Please acknowledge the receipt of this letter."
This letter is dated the 15th of August 1967, and the explanation dated 7-11-66 referred to In it which appears as Annexure 'I' to the writ petition related to the charges mentioned above.
7. This matter was, therefore, brought to an end and became a past and closed transaction.
8. On the 1st of March 1968 as has already been indicated above Ramiz Ahead Malik sent a letter to the Chief Accountant stating that Mr. A. R. Malik had temporarily embezzled large amounts to the tune of Rs. 67,000.00 from Account No. II of Resettlement Organisation and he wag of the opinion that the petitioner was unfit for the job of Project Account. The letter referred to the same charges in respect of which a warning had already been administered. Nevertheless on the 17th of April 1969, Muhammad Hayat, Chief Accountant sent a letter to the petitioner requiring him to send his explanation in respect of the following irregularities listed by him--- "(i) Account No. II was opened by you under your single signature without the knowledge of the Project Director;
(ii) Account No. II was operated by you alone. This fact is reported to have been admitted by the Manager. Muslim Commercial Bank in his letter No. MP/732/GEN/66 dated 24-9-66, copy enclosed.
(iii) The Muslim Commercial Bank submitted a Bank state--ment for the month of December 1965 for Account No. II, a copy of which is enclosed. This statement shows that an amount of Re. 2,000 was withdrawn by you from Account No. II, under cheque No. 364210, dated 4-12-65 and No. 364211 dated 27-12-65;
(iv) A statement of interest accrued on the special notice Deposits/Fixed Deposits and credited to Resettlement Organization's Account No. II was supplied by the Bank during September 1966.
According to this statement the interest which should have accrued up to November 1965 amounts Rs.70,200.39 whereas in the Bank Statements for December 1965, referred to in item (!Ii) above the opening balance is shown Re. 15,511.98. This shows that the sum of Re. 64,869.41 (Re. 70,200.39- 15,511.98) was withdrawn by you from the Bank and temporarily misappropriated."
9. He was also required to explain his conduct in respect of the following as well- "(1) Under Chief Accountant's Order Aun Muhammad, Divisional Accountant was posted with the Executive Engineer, Reservoir Division and Malik Mumtaz, Accounts Assistant who was working against this post was posted in Project Accountant's Office. However, Mr. A. R. Malik did not implement these orders. He kept Aun Muhammad, Divisional Accountant, in his office and allowed Malik Mumtaz, Accountant Assistant, to continue to work against the post of Divisional Accountant in Reservoir Division. Mr. Aun Muhammad was marking his presence daily in the office of the Executive Engineer, Reservoir Division and worked in the Project Account's Office similarly. Mr. Mumtaz Malik was marking his presence in the Project Accountant's Office and was working in the Reservoir Division. This irregularity came to my notice when a complaint was received in Chief Accountant's Office and I was asked to give my comments.
(2) The Authority's instructions were received for recovery of Re. 1,200.00 from Ex-Medical Officer, Mr. A. B. M. Ghulam Sarwar for receiving non-practising allowance. The latter obtained a stay order for this recovery from a local civil Court and the Project Accountant came to me with that stay order. I wrote back on the back of the said order that recovery should be held in abeyance and the leave salary and other dues payable to Capt. A. B. M. Ghulam Sarwar should not be released. Capt. A. B.
M. Ghulam Sarwar obtained a copy of exact remarks made by me and applied to the Civil Judge for taking action against the Project Director for contempt of Court. Accordingly I have received a notice from the civil Court to give reasons for withholding payments of Capt. A. B. M. Ghulam Sarwar. My inquiries reveal that at the time of Project Accountant's coming Capt. A. B. M. Ghulam Sarwar was sitting is his office and the Doctor obtained a copy of the remarks from the Project Accountant himself.
(3) Mr. Saif-ul-Islam Office Assistant who is working under the Superintendent Administration got his application forwarded for transfer to Tarbela from the Project Accountant without any reference to Project Director. I was surprised when this matter came to my notice that the Project Accountant should have forwarded the application of a clerk who was not concerned with him in any official capacity."
11. A charge-sheet listing the following charges was then served upon the petitioner under orders of the Chief Accountant on 6th July 1968, a copy of which is Annexure 'S' to the writ petitions- "(i) Account No. II was opened by you under your single signatures without the knowledge of the Project Director
(ii) Account No. II was operated by you alone. This fact is reported to have been admitted by the Manager, Muslim Commercial Bank in his letter No. MP/732/GEM/66, dated 24-9-1966.
(iii) The Muslim Commercial Bank submitted a Bank statement for the month of December 1965 for Account No. II. This statement shows that an amount of Rs. 2,000 was withdrawn by you from Account No. II under Cheques No. 364210 dated 4-12-65 and No. 364211 dated 27-12-1965 ;
(iv) A statement of interest accrued on the special Notice Deposits/Fixed Deposits, and credited to Resettlement Organization's Account No. 11, was supplied by the Bank during September 1966.
According to this statement the Interest which should have accrued up to November 1965, amounts to (Rs. 70,200.39) whereas in the Bank statement for December 1965, referred to item (iii) above, the opening balance is shown as Rs. 15,511.98. This shows that the sum of Rs. 64,869.41 (Rs.
70, 200.39-15,511.98) was withdrawn by you from the Bank and temporarily misappropriated."
12. A comparison would show that charges Nos. I and 2 listed in the charge-sheet Annexure 'S' and charge No. (d) of the first charge-sheet referred to above are absolutely Identical.
13. The show-cause notice issued to the petitioner as result of the second charge-sheet shows that it was only in respect of charges Nos. 1 and 2 referred to above. It is, therefore,) quite clear that he was being sought to be punished for the second time in respect of the same charges having already been administered a severe warning by the authority as a result of the) inquiry.
14. The order of the Authority, could not be overruled bye the Chief Accountant or anybody else for the matter of that and, therefore, on the face of it the second show-cause notice and inquiry was hit by the maxim nemo debet Ili vexarl prouna ei eadem causa i.e., it is a mile of law that a man shall not be twice vexed for one and the same cause. On page 219 of Broom's Legal Maxims it has been stated that- "The question whether a defendant is being vexed again for the same cause of action depends, not upon technical consideration, but upon matter of substance. One test of identity is that the same evidence will support both actions."
Similarly on page 223 we find- "It is the foundation of the special pleas of autrefois acquit and autrefois convict. When a criminal charge has been once adjudicated upon by Court of competent jurisdiction that adjudication is final, whether it takes the form of an acquittal or a conviction, and it may be pleaded in bar of a subsequent prosecution for the same offence, -whether charged with or without matters of mere aggravation, and whether such matters relate to the intent with which the offence was committed or the consequences of the offence."
It is, therefore, clear that this principle is equally applicable to civil as well as to criminal proceedings. In whichever category a disciplinary inquiry against a civil servant may, therefore, be classed, the result of it would be that once an employee has been punished by competent authority the matter cannot be reopened to his detriment. The second charge-sheet, therefore, could not form the basis of the punishment meted out to the petitioner as he bad been already punished for it.
15. In para. 1 of the reply to the second charge-sheet (copy Annexure 'Y') the petitioner made it absolutely clear that he had already been punished by the Authority itself after a departmental inquiry in respect of these two charges by the administration of a severe warning and a fresh inquiry was, therefore, not competent.
16. Another interesting factor is that the order issued by the Chairman dismissing the petitioner with immediate effect on 26-4-1969 (copy Annexure 'Z') shows that all the four charges were taken into consideration although two of them had not formed the subject-matter of the charge-sheet at all.
In respect of the other two charges, therefore, the petitioner was punished without having been given an opportunity to show-cause which Is a mandatory requirement of rule 5 of the Efficiency and Discipline Rules.
17. Section 18 of the Water and Power Development Authority Act, 1958, provides that the Authority shall prescribe the procedure for appointment and terms and conditions of service of its officers and servants and shall be competent to take disciplinary action against its officers and servants.
18. Learned counsel for the Authority relied upon Resolution No. 43 of the Authority (copy Annexure 'RI') to show that in respect of making of appointments, power had been delegated by the Authority to the Chairman or a Member. Even if it be accepted for the sake of argument that this was possible d under the law, this did not confer upon the Chairman or the Member the power to dismiss a person in the employ of the Authority because Resolution No. 43 does not delegate any such poser to them.
19. It was submitted by learned counsel for the petitioner that since the Enquiry Officer had been appointed by the Authority and he had exonerated the petitioner the Chairman could not disagree with him. It is difficult for me to see eye to eye with learned counsel for the petitioner on this point because the report of the Enquiry Officer cannot be considered to be p binding and is only for consideration by the Appointing Authority with a view to making -up it mind as to whether it will or will not take action. Ordinarily speaking there i9 no reason why the appointing Authority will not agree with the report of the Enquiry Officer appointed by it but if for reasons it finds that it cannot, there is nothing to stop it from doing so.
20. 1 may also refer to rule 4(2) of the Efficiency ands Discipline Rules of 1966 which are applicable to WAPDA employees which lays down that no Authority subordinate to that by which an employee was appointed shall be competent o to impose a penalty on him. We have already seen that the petitioner was promoted as Accountant on 9-9-64 by order of the Authority itself. His Appointing Authority was, therefore, WAPDA and that was the only body competent to take disciplinary action against him.
21. A Private Corporation, so I am told, cannot be directed to continue the engagement of an employee it dislikes. The judg--ment of the Supreme Court in Rustam A.I v. E.P.I.D.C. (PLD 1966 SC 848) has been cited, as usual. There is an observation at page 803 of this report that:- "He was an employee of a statutory corporation. The true character of an officer and employee of such a statutory Corporation has beers pointed out by this Court in the case of The Lahore Central Co-operative Bank Limited v. Pir Saifullah Shah PLD 1959 SC (Pak.) 210. One of the questions in the above case was whether the concerned Manager of the Bank was entitled to a writ for alleged wrongful dismissal from service. The learned Chief Justice after quoting a passage from Hals-- bury. Paragraph 162 in the monograph on 'Crown Proceedings' observed, The Superior Courts in England have not found it possible to extend the scope of mandamus to restoration to office in private corporations. All the offices mentioned in the list contained in the quotation above appear to be of a public nature and to have a quality which is entirely foreign to that belonging to the post of Commercial Manager in a Co-operative Bank. That post was clearly of a contractual nature falling within the category of employment and having nothing of true character of a statutory or corporate office'.
It is, therefore, clear that a writ is not a proper remedy in a case of this type in our jurisdiction."
The quotation from Pir Saijullah Shah's case leaves no manner of doubt that their Lordships concerned themselves with the scope of mandamus. What I am required to do in the present case is to just grant a declaration that the impugned order i9 without lawful authority and of no legal effect, and not issue a mandamus.
I am therefore, not to be guided by the considerations applicable to the latter. It will, however, be interesting to note the trend of thinking to the Supreme Court even on the question of mandamus.
The following is a sampling from a number of cases disposed of by the superior Courts in this country on this point.
"In the absence of proof that any statutory duty was Involved or that any legal right was being enforced or that the perfor--mance of a public duty was being claimed, it is clear that a mandamus or an order of mandamus could not have issued, consistently with the relevant practice and precedent."
It follows, therefore, that if it can be shown that a statutory duty is involved or that any legal right is being enforced or that the performance of a public duty is claimed mandamus can issue.
This observation was adverted to in The Lahore Central Co-operative Bank Ltd. v. Pir Saif Ullah Shah reported in the same volume at page 210.
"Even upon the basis of the narrow requirements that there should be either a statutory duty involved, or a legal right to be enforced or the performance of a public duty which was attracted by the circumstances. It is easily possible to regard the admission of a duly qualified Director to the Board of Directors of a public company such as the West Punjab Steel Corporation Limited, as being within the scope of a writ. No statutory duty is involved, but it is undeniable that a duly qualified Director has a legal right to sit on the Board of Directors and that this is a right which is of the greatest importance to the public interest, in the field of the operation of public joint stock companies under Company Law." ------..'Therefore, it is conceivable as a public duty bearing upon the conduct of the members of a Board of Directors that they shall admit to their number every person who is qualified to be a Director of the Company'."
PLD 1963 SC 179) the Court reiterated its decision in Pir Saif Ullah Shah's case quoted above.
PLD 1966 SC 445) it was reiterated that- "The position in regard to future applications for writs, therefore, is that they lie only on the ground that any one or more of the laws mentioned in Article 4 or any other right reserved by the Laws (Continuance in Force) Order has been contravened. In the present case the Co-operative Societies Act was one of the Laws so continued in force, but under it there was neither any statutory duty cast on a registered Co-operative Society nor was any statutory right conferred upon any one to secure compliance with appellate orders of Government under the Act or the rules framed thereunder."
The passages already quoted above from the case of Pir Saif Ullah Shah and Mehrajuddin were again referred to with approval in this case also.
PLD 1967 Lah. 408) the Lahore High Court held that- " 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 Saifullah Shah and Faiz Ahmad. Indeed the cases of Maqbool Elahi v. Abdur Rehman Khan, 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."
PLD 1967 Lah. 1251). At page 1281 the learned Judge who decided the case held that- "To sum up the discussion, in this country on the language of Article 98 of the Constitution, as a matter of construction only a High Court of a Province may, provided the other conditions are fulfilled, make an order directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by, law to do; or declaring that any act done or proceeding taken to the Province by such a person or local authority has been done ate taken without lawful authority and is of no legal effect. The powers thus conferred on the High Court are very wide indeed; in case the functionaries under this Article have acted or are likely to act in excess of the law or failed to act as required by the law, the High Court may intervene on the application of an aggrieved party. But the discretion thus conferred on the High Court cannot be exercised almost as a matter of course. The High Court acts in aid of the law and not to hamper the smooth working of the agencies established by law or to set up any hegemony in itself. It is to promote the rule of law of the land and check serious inroads into it by those in authority. The superior Courts have always exercised this jurisdiction with restraint and used the discretion vested in them in consonance with the well-known and well-understood principles recognised under the Common Law of England in issuing the appropriate writs. Those are the guidelines to be borne in mind in issuing appropriate orders or writs under Article 98 of the Constitution. The writ of mandamus is issued by a superior Court to compel the performance of a statutory duty imposed on a public functionary. It is to direct a person to do something pertaining to his office which is in the nature of a public duty. It does not lie to compel the restoration of a person to any and every office or position but to an office or franchise of a legal or public nature unless the party has another more appropriate remedy. To distinguish them from private corporations created for purely private gains, the Supreme Court and this Court issued the writs in suitable cases to uphold the admission of a duly qualified director to the Board of Directors of the West Pakistan Steel Corporation Limited, a public company formed under the Companies Law and to restore Secretary of the Model Town Society, Lahore (a private society registered under the Societies Act), exercising administrative functions in a considerable township, to the statutory office held by him . . . . .
The respondent No. 4 is exercising powers and discharging Municipal functions over considerable area within the limits of Lahore Municipal Corporation. In these circumstances this appears to us to be a fit case to grant the declaration to the petitioner that the order dated the 29th July 1964, for the compulsory retirement of the petitioner is against law and Ineffective."
I, however, found myself on firm ground in assuming jurisdiction in the present case on a stronger basis i.e., the case before me is more akin to a petition for certiorari rather than a mandamus. By reason of the doctrine of ultra vires applicable to all statutory persons, the Courts may declare illegal any executive act of a corporation which is not expressly or by necessary implication within its statutory powers:- "In a proper case the Court will issue an injunction to prevent one or the other party from breaking the contract of employment. The conclusion drawn by David Springfield in his book "The Company Executive and the Law, p. 145."
22. A question which has been often raised before this Court has been pressed vehemently before me also. In cases in which civil servants of the State are not involved, it has become reasonable to assert that the law of master and servant would Invariably apply and no servant can be foisted on as unwilling master.
23. Let us now see what is the law of master and servant and to what extent the petitioner is governed by it.
"The relationship of master and servant is expressed by a Contract of service, express or implied, between the master and servant. A contract of service is one In which a person under--takes to serve another and to obey his reasonable orders within the scope of the duty undertaken. Whether or not a particular contract is a contract of service is a question of fact depending upon the terms of the engagement, the method of remuneration and the power of controlling and dismissing the worker, although none of these factors is by itself conclusive." (Halsbury's Laws of England, Vol. XXV, page 448, para. 872).
Firstly, therefore, the relationship has to be the result of a contract. Secondly the mere fact that it is the result of a contract would not necessarily mean that the relationship of master and servant exists between the employer and the employee. A rough and ready test for finding out the correct position has been given with remarkable clarity in the quotation from Halsbury above.
24. In the present case the power of controlling and dismissing the worker, is governed by statutory rules and not by any so-called contract. The rules are known as the West Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1566 and have been framed by the authority under power conferred upon it by section 18 of the West Pakistan Water and Power Development Authority Act, 1958. It defines misconduct in section 2(4). Rule 3 lays down the grounds on which a penalty can be enforced while rule describes the penalty itself, Rule 5 lays down the procedure for enquiry and is as under t "5. Inquiry procedure.-(I) Before one or more penalty is imposed on an employee, the competent authority shall frame a charge, communicate it, and call upon the employee to render a written explanation within a specified time, which shall not be less than seven days nor more than fourteen days from the date the charge is communicated to him, as to why disciplinary action should not be taken against him.
(2) The competent authority may either inquire into the case or appoint an officer, senior in rank to the person proceeded against, and direct him to conduct the proceedings and submit his findings and the grounds thereof within a specified time.
(3) The competent authority shall then consider the matter and pass such orders as it deems necessary.
(4) The competent authority shall convey its orders in writing to the employee concerned.
Rule 8 provides for suspension and compulsory leave. Role 9 entitles an employee upon whom a penalty has been imposed to file an appeal and lays down the procedure which the Authority shall have to follow in disposing of the appeal. Rule 10 provides for a review of such order.
25. There is no dispute that the petitioner is governed by these rules. The power of the master, therefore, to fire the employee at his sweet will is not available in the present case. And even if it is deemed to be a contract of service, the terms of engagement and the powers of controlling and dismissing the worker are so provided by statutory Rules that they should knock the bottom out of the applicability of the ordinary or general law of master and servant.
26. That this is not abnormal has been taken note of in paragraph 886 at page 457 of the same volume of Halabury where it has been observed that- "The freedom of contract between master and servant has, in many respects, been affected by statute."
A number of examples follow. In our own country such effect is visible from the provisions of laws pertaining to employment of Industrial Workers which have made it practically impossible for the master to terminate the services of a servant. To similar effect are provisions made in the statutes, and the rules made thereunder, by which many statutory public corporations have from time to time, been brought into being in this country. These corporations do not have the uninhibited power to relieve the employees of their employment as and when they like and WAPDA, the ADC, the State Bank of Pakistan and a large number of other public corporations performing functions in connection with the affairs of the Centre or the province are subject to similar controls.
The mere fact, therefore that a person is not a civil servant of the State and is not entitled to Constitutional guarantees does not always lead to the result that he is governed by the ordinary and general law of master and servant. Wherever there are statutes or statutory rules governing the relationship between an employer and an employee, and there are restrictions placed in such provisions which are contrary to the concept of the ordinary law of master and servant it is those statutory provisions and rules, which shall apply and not the so-called general law of roaster and servant. In such cases the employer would have the power to terminate the employment only in the circumstances in which the statute or the rules clothe it with authority to do so.
The next question is as to whether in such circumstances the remedy of the wronged employee is only by way of a suit by way of damages or can he ask for more. I may, in this connection, advert to Vino v. National Duck Labour Board ((1956) 3 All E R 939) where the House of Lords was concerned with a case where a registered Dock worker employees in the reserve pool was given seven days' notice in writ--ing terminating his employment and the Board's decision was up--held in appeal The petitioner inter alia claimed a declaration that his purported dismissal was illegal, ultra vires and invalid. Tae petitioner was in the High Court but the Court of appeal refused to grant him the declaration. He consequently appealed to the House of Lords. 'Their Lordships came to the conclusion that-- "First it follows from the fact that the plaintiff's dismissal was invalid that his name was never validly removed from the register, and he continued in the employ of the National Board. This is an entirely different situation from the ordinary master and servant case. There, if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract. Here the removal of the plaintiff's name from the register being in law, a nullity, he continues to have the right to be treated as a registered dock worker with all the benefits which, by statute, that statue conferred on him. It is therefore, right that, with the background of this scheme the Court should declare his rights."
Their Lordships were not prepared to agree that damages would be an adequate remedy.
It was also observed on page 949: -"If the actions here complained of were a nullity, Mr. Vine (hereinafter called "the plaintiff"), in my opinion, has a clear right to have that fact declared by the Court". Similarly the Court of appeal in Bernard and others v. National Dock Labour and others (1853) 2 Q B 18, dealing with a case in which the Port Manager suspend--ed the plaintiff from service under the purported exercise of the delegated functions of the port held- "that the local board had no power, express or implied, to delegate its quasi- judicial disciplinary functions to the Port Manager or to ratify his purported exercise of those functions, and the original notices of suspension were therefore a nullity, and the decisions of the appeal tribunal based on them were equally a nullity, that in proper case where persons would otherwise be without a remedy for an injustice, the Court had a discretionary power to intervene by way of declaration and injunction in the decisions of statutory tribunals."
Their Lordships also referred to Andrews v. Mitchell (1905 A C 78), Leeson v. General Medical Council ((1890) 43 Ch. D 366), Allinson v. General Medical Council ((1894)1 Q B 750) and Lee v. Showmen's Guild of Great Britain ((1952) 2 Q B 329) to support their assertion that the Court had power to interfere in such cases.
Lord Hewart in his book "The New Despotism" observed at page 80 that- "Save that their validity can In many cases be judicially questioned, statutory rules, regulations, and orders are as much part of the law, and as effective, as acts of Parliament; and, in the matter of quantity, this kind of delegated legislation has in recent years enoromously exceeded the amount of direct legisla--petition by statute."
Dealing with certain service rules pertaining to seniority the Supreme Court held in Muhammad Naseem Ahmad and others v. Miss Azra Feroz Bakht and others (PLD 1968 SC 37) at page 49 that- "The rule was, therefore, as effective as any other statutory provisions governing the conditions of service of persons employed having been made by a competent authority and having all the characteristics of a statutory rules. The High Court was, as much, clearly wrong in trying to find justification for defeating the rule or for holding it to be inapplicable."
The fact that the dismissal of the servant is otherwise than in accordance with procedure laid down in his contract of service, does not, however, in a case where the rights of the parties are regulated by contract and are unaffected by statute, normally prevent the dismissal from being effective to terminate the contract. (Para. 991, page 519, Halsbury, para. 25). And, there--fore, where the rights of the parties were regulated by a claim made under statutory powers a purported dismissal of an em--ployee otherwise than in accordance with the scheme was held to be nullity and damages were an inadequate remedy, a declaration that purported dismissal was illegal, ultra vires, and invalid was held to have been properly granted. "the appellant's employment had not been validly terminated by the Board because it was terminable only as provided in the September conditions, which were exhaustive in that respect, and accordingly a power to terminate her employ--ment by reasonable notice would not be implied."
Me Clolland had been employed on the condition that- "Subject to a probationary period, appointments will be permanent and pensionable. Salaries and wages will be subject to deductions under a superannuation scheme," and where a scheme had been formulated which provided that- "Dismissal and reduction in rank, and termination of employment: Otherwise: The board may dismiss any officer for gross misconduct and may dismiss any officer who is proved to their satisfaction to be inefficient and unfit to merit continued employment. Except where an officer has been guilty of gross misconduct, the board shall give at least one month's notice of their intention to exercise their powers of dismissal under this rule. As an alternative to dismissal, the board may order the reduction in rank of an officer who is found by them to be unfit to discharge the duties of the grade in which he has been employed. One month's notice in writing shall be given by all permanent officers who wish to terminate their employment with the board." that "the appellant's employment had not been validly terminated by the Board because it was terminable only as provided in the September conditions. Which were exhaustive in that respect, and, accordingly, a power to terminate her employ--ment by reasonable notice would not be Implied."
"The clauses I have set out all contain express powers of termination and, in my opinion, there is no ground for suggesting that it is necessary to imply a further power to terminate the contract in order to give the contract the efficacy which the parties must have intended it to have. With the greatest respect to the Court of Appeal in Northern Ireland and those of your Lordships who take a different view I think, on the contrary, that to offer an officer a permanent and pensionable post on such terms and then to claim the right to give him notice which will deprive him of all the pension and other rights offered by the express terms of the contract not only is not a right which the parties must have intended the master to have but one which no reasonable person could have contemplated he would claim."
Similarly Lord Goddard observed that - "Remembering the terms of the advertisement in conjunction with the provisions of clause 12, I think the fair conclusion is that the board offered and the appellant accepted employ--ment on terms as secure as is in fact, enjoyed by civil servants. Although a civil servant as is well known, is employed at the pleasure of the Crown and can be dismissed at any moment, in fact once he has qualified by examination or probation and is taken on the establishment he is secure in his employment till he reaches the retiring age; apart of course from misconduct or complete inefficiency."
It can hardly be denied that the West Pakistan WAPDA is not a statutory public corporation performing functions in connection with the affairs of the province as welt as the Centre. It has been created by the West Pakistan WAPDA Act, 1958, (b) all its functions are related to the provisions of a public utility service, (c) the members of the Authority M are appointed and removed exclusively by the Government and, (d) the capital employed by the authority is provided either from Government funds or from aid received through the Government of Pakistan from Foreign countries. It can, therefore, not be urged with any amount of success that it is a private corporation or that it is not performing functions of the Government.
To sum up-
(1) this is not a case where Constitutional guarantees available to a civil servant have been invoked and the decisions of the superior Courts dealing with such cases are not attracted,
(2) an employee of a statutory public corporation is not per se subject to general law of master and servant,
(3) in case there are conditions contained in statute or statutory rules with regard to the engagement, terms of employment, removal from service or control of such employee, the general law of master and servant shall give way to these conditions and the service of the persons concerned shall be governed by the latter and not by the former,
(4) where the conditions of service of a servant of a statutory public corporation are so governed, relief under Article 98 (21 (b) of the abrogated Constitution or Article 201 (2) (a) (ii) of the Interim Constitution shall be available to such servant if the other conditions for its grant are present,
(5) that the employees of WAPDA, whose terms and con--ditions of service are governed by the statute or by the rules made thereunder, are persons to whom such relief is available.
This petition is, therefore, accepted with costs and the declara--petition prayed for is granted.
S. A. H.