ZAFFAR HUSSAIN MIRZA, J.-- Petitioner Nisar Ahmed was offered appointment by the Chiltan Ghee Mills, respondent No. l herein, as a Trainee in Production Department on a consolidated salary of Rs.800 per month, vide letter dated 25th September, 1982, which incorporated the following conditions: "On satisfactory performance the position will be reviewed and your services confirmed subject to vacancy. It may be noted that your services can be terminated at any time without notice of assigning any reason thereof."
The petitioner was asked to sign the duplicate copy of the aforesaid appointment letter in token of his acceptance of the terms and conditions incorporated therein. It seems that the petitioner accepted the aforesaid appointment with these terms and conditions mentioned above and was accordingly appointed. Subsequently on satisfactory completion of initial training period he was placed as Assistant Manager-I Grade with basic salary of Rs.1,200 per month and usual allowances with effect from 25th December, 1982. However, vide letter dated 3rd December, 1985, respondent No.1 terminated the services of the petitioner with three months salary in lieu of notice period.
2. Being aggrieved, the petitioner challenged the order of termination of his service in a constitutional petition before the High Court of Baluchistan, Quetta. By judgment dated 29th June, 1986 a Division Bench of the High Court dismissed the constitutional petition of the petitioner on the rule laid down by this Court in Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194, by holding that as it was not shown by the petitioner that his service was governed by some law or statutory rules which placed fetters upon the freedom of the parties in the matter of terms of the contract of service between them, the case was governed by the principles of master and servant for which the only remedy was a suit for damages and not a constitutional petition. After making an unsuccessful attempt to obtain review of judgment by the High Court, the petitioner has come up with this petition of leave to appeal from the main judgment of the High Court as well as the order dated 4th August, 1986, whereby the review petition was dismissed.
3. The main contention of the learned counsel for the petitioner is that the High Court has erred in holding that the constitutional petition filed by the petitioner was not competent and in this behalf he has placed reliance on the Principal, Cadet College, Kohat v. Muhammad Shoaib Qureshi PLD 1984 SC 170. The submission was that the terms and conditions of the petitioner's service were governed by the statutory rules framed under the provisions of the Hydrogenated Vegetable Oil Industries (Control and Development) Act, 1973 (hereinafter referred to as the Act) and consequently the corporation who was the employer of the petitioner did not have unfettered authority to deal with the petitioner in regard to his service rights. Learned counsel invited our attention to a set of rules copy of which has been filed on the record, known as Ghee Corporation of Pakistan Limited Service Rules, purporting to have been framed in pursuance of the provisions of the Act. According to the learned counsel the Chiltan Ghee Mills are a unit of the Ghee Corporation of Pakistan Limited and the petitioner's service conditions were expressly to be those as are applicable to the employees of the Ghee Corporation of Pakistan Limited.
4. Learned counsel argued that rule 8-A provides for a domestic inquiry before an employee's service can be terminated or he is removed from service or dismissed etc. In other words the argument was that by virtue of the said statutory rule there was a protection given to the employees from arbitrary termination of service or removal. On this line of argument, learned counsel maintained that inasmuch as the petitioner was removed from service without affording him an opportunity of being heard and without proper proceedings under the said rules, the termination of his service amounted to wrongful dismissal from service in violation of the statutory protection and as such the matter was amenable to constitutional jurisdiction of the High Court.
We find that the set of rules relied upon by the learned counsel make no mention of any section of the Act under the authority of which the rules have been framed although it is stated that the Board of Directors of the Corporation had framed the same. Learned counsel when asked to clarify the position referred to section 32 of the Act which gives the Federal Government the power to make rule for carrying out the purposes of the Act. He also referred to section -13(1) under which the Federal Government may delegate its powers under the Act to be exercised also by a Board.
Learned counsel was unable to produce any notification of delegation of the rule-making power under the Act to the Board of Directors of the Ghee Corporation of Pakistan Limited. In the Anwar Hussain's case this Court has laid down the test to determine even where statutory rules regulate the service conditions of employees under a corporation whether the remedy by way of constitutional petition would be available to the employees of such a corporation: "Where a corporation is set up by a statute but the Government does not reserve to itself the power to regulate the conditions of service of the employees under the corporation and the statute itself also does not prescribe any condition but leaves the matter entirely in the discretion of the corporation who is given the power to frame rules and regulations in that regard so that the employee is left with no protection under the statute itself, then the corporation must be held to be the sole arbiter in the matter of prescribing the terms and conditions of its employees and competent to deal with them in accordance with the terms and conditions so prescribed by it. In such situation the employee cannot claim to be a person possessed of any legal character within the meaning of section 42 of the Specific Relief Act and in case of his wrongful dismissal from or termination of service, the principle of master and servant will fully apply and he can only claim damages but not reinstatement to his post."
We are not satisfied on the material placed before us by the petitioner that the Government has reserved to itself the power to regulate the conditions of service of the employees under the corporation, nor has any provision been quoted to that effect in the Act, so far as the employees of the corporation to whom taken-over managements are transferred under the Act. Reference was also made to section 12 which deals with the power of the Board of Management set up under section 7 of the Act. In our opinion the rules relied upon did not purport to have been framed by the Board of Management but the Board of Directors of the Ghee Corporation of Pakistan Limited which are two distinct and separate bodies. Therefore, the rules are not appropriately to section 12 of the Act. As a result of this analysis we feel that the case of the petitioner falls within the dictum laid down in Anwar Hussain's case as quoted above and the High Court rightly declined interference.
5. The case of Principal, Cadet College, Kohat, on which reliance has been placed also does not advance the case of the petitioner, as we have not been shown that the rules of which infraction has been alleged, are statutory rules. In that case also, this Court held that the constitutional petition filed by the aggrieved employee was not competent for the reason that no statutory rules were framed with the approval of the Government as provided by the relevant statute, but the employee was relying upon certain instructions issued by the institution for the internal use, which furnished no basis for maintaining a writ petition.
6. Be that as it may even assuming for the sake of argument, that the rules relied upon had effect as statutory rules, the petitioner could succeed in assailing the order of his dismissal upon showing that there has been violation of any of the rules. As already observed the petitioner relied upon rule 8-A which deals with the inquiry procedure. The opening words of this rule read as follows:- "The officer responsible for the efficient and proper conduct of the person committing misconduct shall submit summary of the case On a plain reading of this rule it is clear that rule would be attracted when an employee is proposed to be punished for misconduct. As against that relevant part of rule 9 (iv) provides as follows:- "The services of the empolyee/employees in Assistant Manager's grade and above in regular service may be terminated without assigning any reason by giving 3 months' notice on either side or in lieu thereof by paying a sum equal to the salary for that period------"
Therefore, it appears to us that the rules contemplate and authorise the managements to terminate the service of an employee in the Assistant Manager's Grade and above in regular service, without assigning any reason by giving three months' notice. These being accepted conditions of service of the petitioner, the respondent No.1, was fully competent to terminate the service by notice as has been done. Learned counsel sought to urge that petitioner's removal from service is not a termination simpliciter but a removal on charges which exposed him to a stigma.
On carefully considering the letter of termination dated 3rd December, 1985, we are unable to agree that the contents thereof disclosed any charge of misconduct. The letter only gives a reason for the decision to the effect that petitioner was found medically unfit for performance of his duties and his retention in service was not useful. By no stretch can such reason be construed as misconduct, so as to attract rule 8-A. We therefore, do not agree with the observations of the High Court that the petitioner was removed by way of punishment, requiring an inquiry to be held against him.
It is significant that no allegation of mala fide or ulterior motive was made against the respondents by the petitioner.
7. After having considered the arguments of the learned counsel we find no merit in this petition which is accordingly dismissed.