The facts which form the background are that the petitioner, who is a qualified Mechanical Engineer, was appointed as a Junior Engineer under the Water & Power Development Authority, West Pakistan (hereinafter called the WAPDA) by order dated 29-3-1962, issued under the signatures of the Deputy Chief Engineer/Project Director, Ground Water & Reclamation Division. He completed the probation period satisfactorily and by Office Order No. GWR/PF/3240 dated 13-5- 1963 he was allowed to continue in regular service on the original terms and conditions of his appointment. Condition No. 6 of his terms of employment is relevant and may be reproduced hereunder:- "(6) The appointment is temporary and may be terminated by the Authority at any time, without assigning any reason, on one (1) month's/two/three months' notice to this effect, (or 1 months/two/three months' pay in lieu of notice) given to him by the Authority.
If he is guilty of any insubordination, intemperance or misconduct or continous absence from duty without permission, his services will be liable to termination without notice. No cause for legal or other action shall lie against the Authority for the termination of his services under the clause or under clause (3) above."
2. It is alleged that on 14-11-1968 a report was lodged by one Mr. M. Rauf, Workshop Officer, Shalamar against the peti--tioner and certain other officials alleging that a sum of Rs. 190.00 was misa'3propriated by the Executive Engineer and others, including the petitioner whereupon he was called upon by the Director, Machinery Pool Organization (M. P. O.); WAPDA. Lahore to submit a statement. The petitioner, accordingly submitted a statement in writing, on the same date, that he was called upon to do, namely, the 25th November 1968 (Annex 'B'). It appears that thereafter some private inquiry was conducted into the matter and the Inquiry Officer/Committee submitted a Report to the Director, M. P. O., who in turn submitted a note to the Chief Engineer on January 25,1969 in which serious allegations were made against the Executive Engineer (Mr. Saeed Malik), who was a deputationist, and a recommendation was made for his reversion to his parent Department (namely Irriga--tion & Power Departmental but so far as the present petitioner is concerned the following observations were made:- "There were also a number of complaints against Mr. M. Sadiq, Junior Engineer (Mechanical) while he was posted as Assistant Workshop Officer, Shalamar. He in collusion with Mr. Saeed Malik misappropriated certain parts. This case was also put up to M (W) who had ordered that hi; service should be terminated. . . It is, therefore, requested that Mr. M. Sadiq may kindly be served with a notice o termination of his service under terms and conditions as laic down in his order of appointment."
Accordingly, on 14th February 1969, a notice of termination o service was issued to the petitioner under the signatures o Assistant Director (Estt) II for Chief Engineer A & W, WAPDA Lahore, which is expressed in the following terms:- "Your services are no longer required by the Auth9rlty You are, therefore, hereby served with this Notice of three months, of termination of your services, under Clause 6 o appointment offer issued to you under Deputy Chief Engineer Ground Water & Reclamation Division, WAPDA's letter No GWR/PF-2160, dated 29th March 1962:"
The petitioner has challenged the validity of the above order be this petition, under Article 98 of the Constitution of 1962.
3. The learned counsel for the WAPDA has raised preliminary objection to the maintainability of the writ petition the ground that the petitioner being an employee of WAPDA a statutory body, his relation with the Organization is that of a "master and servant" and he is not eligible to invoke the writ jurisdiction of this Court. It is also submitted that the writ jurisdiction is not the proper remedy for employees of statutory in bodies. In support of these submissions, counsel has placed reliance on Chairman, East Pakistan Industrial Development Corporation v. Rustam Ali (PLD 1966 SC 848).
4. Since this objection goes to the root of the matter it will be proper to attend It in the first instance.
Since the objec--tion is based on Rustam Ali---s case, a brief reverence to the facts of that case is necessary. The facts of that case were that the respondent, Rustam Ali, had entered into service of the PIDC in 1958, one of the conditions of his service was that "his services will be terminable on one month's notice on either side". In 1963 he was charge-sheeted to which be sent an explanation.
There--after an Inquiry Committee found him guilty of realizing fines from workers and of misappropriating the same. After giving him a show-cause notice, he was dismissed from service by Secretary, EPIDC. He filed a petition under Article 98 of the Constitution challenging the legality of the dismissal order on the grounds that:
(a) He was dismissed on a charge, which was not included in the charge-sheet;
(b) He was given one month's notice; and
(c) He was dismissed by a lower authority than the appoint--ing authority he having been appointed by the Operational Director.
The High Court of East Pakistan overruled the first two condi--tions but accepted the third condition and issued the writ prayed for. On appeal to the Supreme Court it was held that the finding recorded by the East Pakistan High Court that EPIDC is "a person" within the meaning of clause (2) of Article 98 of the Constitution was correct but the Court was unable to uphold the writ issued by the High Court because of the following considerations:-
(a) The safeguards provided for public servants under the Constitution could not be availed of as a legal right by the respondent, Rustam Ali.
(b) Rustam Ali being an employee of statutory Corporation the relationship between the parties was governed by the ordinary law of 'master and servant' and a servant if guilty of misconduct his master is entitled as of right to terminate his service without notice and, therefore, "a writ Is not a proper, remedy in a case of this type in our jurisdiction".
(c) The Secretary of the Corporation can dismiss those employees who had been transferred to the EPIDC from the PIDC.
On these grounds their Lordships came to the conclusion that the writ issued by the East Pakistan High Court could not be supported either in law or in discretion.
5. The learned counsel for the petitioner, in reply, has urged that the case of Rustam All is not applicable in the present case and that the Supreme Court has not decided the point that fails for consideration here, namely, as to whether an employee of -Statutory Corporation, whose conditions of service are governed by the statutory rules, is not entitled to invoke the provisions of Article 98 of the Constitution against infringement of a statutory provision, committed by the said statutory Corporation. It is submitted that this was not the question decided by the Supreme Court 1n the precedent case. Counsel urges that in the said case the Supreme Court relied on its earlier decision in the case of Lahore Central Co-operative Bank Ltd. v. Pir Saifullah Shah (PLD 1959 SC (Pak.) 210) wherein the Manager of the said Bank was not held entitled to issuance of a writ for allegedly wrongful termination from service. It is pointed out that Saifullah Shah's conditions of service were not governed by any statutory rule. It is further pointed out that reference was also made therein to the provisions of para. 162, Halsbury's Monograph on "Crown Proceedings" which dealt with the scope of Mandamus to restoration of offices in private corporations. It is thus submitted that the decision in Rustam All's case is not relevant in the facts and circumstances of the present case.
6. The petitioner's learned counsel has further submitted that the recruitment and conditions of service of officers and servants of WAPDA are regulated by rules framed under section 18 of the West Pakistan water & Power Development Authority Act XXXI of 1958 and Y the petitioner can establish that the order of termination of services passed in his case has been passed in violation of the provisions of the statutory rules, this Court would be quite competent to Interfere by an appropriate order under Article 98 of 1962 Constitution.
7. I am inclined to agree with the submission that an employee of a Statutory Corporation can competently invoke the writ jurisdiction of this Court in case he can establish the violation of any term of his service, which is guaranteed by a statutory provision or a statutory rule. In fact there is abundant authority in support of this view. The following two passages occurring in Abdul Ghafur v.
The Thal Development Authority, Jauharabad (PLD 1958 Lab. 169) of the Report may usefully be reproduced hereunder:- "As regards the first contention, I am inclined to think that the language in the provisions of the Act makes it abundantly clear that the servants of the T. D. A. cannot be considered as members of a civil Service of the Crown or holding any civil post under the Crown within the meaning of section 240 of the Government of India Act. Bat neither of the two lower Courts applied any provision of that Act to this case. The appellant's dismissal was held to be wrongful because of the provisions of sections 16 and 17 of the Act and the rules framed by the Provincial Government under the Act.
There is no provision in the Thal Development Authority Act that the servants of the T. D. A. held their offices during the pleasure of the Authority. The rights and liabilities of those servants are governed by the provisions of the Act and the statutory rules made thereunder. Ordinarily the relationship between an employer and an employee is governed by the law relating to 'master and servant'; but where the relationship has been regulated by a Statute or statutory rule, the latter must govern it, and the law Courts are bound to grant redresswhere the rights of either party have been adversely affected in contravention of their provisions."
In a more recent case, namely, Muhammad Din v. The Corporation of the City of Lahore (PLD 1960 Lab. 242) wherein after reproducing rule 3 of the Lahore Corporation Service (Punishment and Appeal) Rules It was observed by their Lordships that, "The rule further supports the argument that services of a permanent municipal employee are not to be terminated without a reasonable opportunity of showing cause. We have referred to this rule only in support of the argument, but we can even rely on the rule itself. The rule has the force of law on account of section 401 of the City of Lahore Corporation Act."
In the case of The Managing Committee of Co-operative Model Town Society Ltd. v. Kh. Muhamm2d Iqbal (PLD 1963 SC 179) the following passages occurring at pages 183 and 184 are relevant and are reproduced as follows:- "It may also be noted that the case cited in the appellants Society's Concise Statement, viz. The Lahore Central Co-opera--tive Bank v. Saifullah Shah as "fully covering" the present case, relates to a Commercial Manager, who did not hold a statutory office, within the Co-operative Societies Act.
That makes a point of distinction from the present case, which relates to a statutory office, viz., that of Secretary, to a Co--operative Society, and difference may also be found in the circumstances that the Society in this case exercises administra--tive functions in a considerable township, viz. Model Town. --------- that at the time of his dismissal, Khawaja Muhammad Iqbal was no longer on probation and that the dismissal of big appeal on the ground that being on probation, he had no right of appeal, was erroneous."
(The underlining* is mine).
In the case of Dr. Abdul Hafiz v. Chairman, Municipal Corpora--tion, Lahore (PLD 1967 Lah. 1251) some observations occurring at page 1283 are also relevant and may be reproduced here, as folio Hs '' . . . As discussed in the earlier portion of this judgment, the impugned order for his compulsory retirement on 29th of July 1964 was not passed in accordance with the rules. 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 29th July 1964, for the compulsory retirement of the petitioner is against law and Ineffective."
Mention may also be made of the case of Siddiq Ahmad v. Chairman, West Pakistan Agricultural Development Corporation (PLD 1968 Lah. 685). The Court at page 693 after noticing the argument of the peti--tioners, that they enjoyed the Constitutional guarantees as laid down in Article 17 J of the Constitution, went on to observe that It was unnecessary to examine this aspect of the matter, in the circumstances of the case, as we have otherwise held that the petitioners are entitled to the relief which they have prayed for, on the basis of violation of the Act and the Rules"
(The underlining* is mine).
Similarly In the case of M. S. Faruki v. The Province of West Pakistan (PLD 1970 Lab. 195) at page 226 wherein it is observed that, "In the present case, the Municipal Committee has no free hand either in the appointment, dismissal, removal or transfer of its employees. All these matters are regulated by a Statute and Statutory Rules. The concept of Master and Servant, therefore, is not quite apt.
(The underlining* is mine).
Moreover, import of the rule laid down by the Supreme Court in Rustam Ali's case was explained in a recent judgment of this Court, in A. George v. P.
1. A. Corporation (PLD 1971 Lab. 748), in these words t "The ratio in the Chairman, East Pakistan Industrial Development Corporation, Dacca ant another v. Rustam Ali and another is fully applicable to the facts in this case before us. The East Pakistan Industrial Development Corporation, established under the law, did not have any statutory rules for the protection of the (its) employees and in that case the Supreme Court observed that the safeguard provided for public servants in the constitution could not be availed of as a 1egal right by an employee of a Statutory Corporation, like the East Pakistan Industrial Development corporation: " In fact the above interpretation is indirectly supported by a judgment of the Supreme Court its. If, in the case of Secretary, East Pakistan Industrial Development Corpora--tion v. Mohd.
Sirajul Haq (1970 SCMR 398). The observations relevant in the present context are at page 401, which are as follows:- "Moreover, the terms and conditions of employees of the respondents were not regulated by any statutory rules but were learned by their contracts of their employment. That being so the ordinary law of master and servant was applicable to the present case."
(Underlining* is mine.)
8. The upshot of the above discussion is that in case the petitioner can show that the impugned notice of termination violated some statutory rule, he would be able to successfully invoke this Court's jurisdiction under Article 98 of the constitution.
9. In this context it may also be mentioned in passing that' the question, whether the employees of WAPDA are entitled c to be considered as reasons serving in connection with the affairs of the Province and, therefore, entitled to the safeguards laid down in Article 177 of the Constitution of 1962 is a question which has not been free from controversy. In Wali Muhammad v. General Manager, WAPDA. Lahore (PLD 1964 Pesh. 167). It was held that WAPDA was a "person" performing functions in connection with the affairs of the province and amenable to writ jurisdiction, and the cases of the petitioners in that ruling were judged from the point of view whether the action impugned by them tantamounted to a violation of the guarantees specified in Article 177 of the Constitution. On the factual plane, the petitioners, in that case, had in the first Instance been appointed by Government and their services stood transferred to WAPDA on its creation. It has been explained in subsequent cases that the employees of Government Departments whose services were transferred to WAPDA would retain the status of civil servants, notwithstanding their transfer to serve in WAPDA for an indefinite period and be entitled to the safeguards as laid down in Articles 177 and 178 of the 1962- Constitution. But the position of persons serving WAPDA as direct recruits i.e. persons recruited directly by WAPDA itself would be governed by and be subject to the terms and conditions on which they were employed. In other words, they would not be entitled to the safeguards granted to civil servants under the constitution. (See Ahmad Husain Qureshi v. Chairman. WAPDA (PLD 1967 Lah. 796), Sajjad Harder v. Government of West Pakistan (PLD 1967 Lah. 938) and Abdus Salam v.
Chairman, Water & Power Development Authority (1970 SCMR 40).
10. Coming to the merits of the case learned counsel for the petitioner argues that the "notice of termination of service" has been used as a cloak to get rid of the petitioner for male fide reasons and in actual fact the petitioner had been "removed from service" on suspicion of being involved, inter alia, in embezzlement cases and on allegations of misconduct. As such the impugned action should have been taken under the "WAPDA Employees (Efficiency and Descipline) Rules, 1966. It is submitted that if a proper inquiry had been held under the said Rules the petitioner could have established that he was innocent and would have demonstrated that the action that was being taken against him was being taken at the behest of persons inimically disposed towards him. In support of the above submission counsel has relied upon the judgment of this Court in Mohd. Afzal Khan v. Federation of Pakistan (PLD 1957 Lah. 17) wherein it was held that if notice of termination of service is not issued in good faith, and a clause in the contract is being used as a pretext for getting rid of a person, who has made himself undesirable for some reason, then the object is to remove him from service" and the case falls under Article 181 (of the Constitution, of 1956). This decision is of no assistance to the petitioner because the petitioner is not a civil servant but a person directly recruited by WAPDA and is not entitled to invoke the safeguards conferred upon Government Servants by the Constitution. Hence he cannot call in aid the protection of Article 177 of the present Constitution (vide Abdus Salam v. Chairman, WAPDA. Counsel also relied upon a judgment of this Court, already referred to WAPDA In another context, namely, Saddique Ahmad v.
Chairman, West Pakistan Agricultural Development Corporation and drew attention to the following passage occurring at page 692 of the Report:- "In the first place, the authority did not comply with the provisions of rule 2 discussed above although the petitioners were suspended with serious allegations against them and were threatened with charge-sheet. According to the learned counsel for the petitioners this leaves a blot on the career of the petitioners, and, they will be handicapped in getting any employment."
(Underlining* is mine).
A perusal of the above passage shows that herein the contention raised on behalf of the petitioners has merely been reproduced. The Court, however, does not appear to have decided the matter on the basis of the above submission because the perusal of that case shows that it was decided in favour of the petitioners therein, the conclusion that the action taken against them was the provisions of the relevant statute and the rules. Hence, this judgment too, is of no avail to the petitioner.
12. On the other hand, there is good authority for the view that even if the underlying reason of the employer for terminating the services of an employee may be the belief that the latter has been guilty of, misconduct, the recourse to the notice clause for terminating his services, is not necessarily mala fide (See Abdul Karim v. west Pakistan Province (PLD 1956 SC (Pack.) 298) net can such termination be treated as a penalty vide Secretary, East Pakistan Industrial Development Corporation y. Sirajul Haq. The position steins to be that to the case of persons who are not entitled to the protection of the Constitutional safeguard, there is so illegality in dropping proceeding started under a charge-sheet and adopting the alternative mode of dispensing with their services in accordance with the conditions of their service (Pakistan v. Muhammad Hidayatullah (PLD 1961 Dacca 29)).
13. The conclusion is that WAPDA was not obliged to take action against the petitioner after holding an enquiry under g the WAPDA (Employees Efficiency and Descipline) Rules, 1966. go his services could be terminated under the notice cause, in accordance with the terms of his service.
14. It was next contended that the petitioner was appointed by the Authority and, therefore, his services could not be terminated by any authority subordinate to the Authority itself --in this connection counsel submitted that as the petitioner's services were terminated by the Assistant Director (Estt. 11) for Chief Engineer (A & W), WAPDA, his services cannot be deemed to have been terminated validly.
15. In reply counsel for the respondents submitted, in the first place, that at the point of time when the petitioner was appointed, namely, in 1962, no Rules bad yet been framed under section 18 of the WAPDA Act, regulating the terms and condi--tions of service of WAPDA employees and his appointment was made in exercise of the power vested in the Authority to employ such officers and servants as it may consider necessary on such terms and conditions as it may deem, fit (vide section 17 of the Act). Hence, the petitioner could not invoke any statutory rule in aid of his contention that his services could not be terminated except by his appointing authority, and on this premises he had no remedy against the notice of termination of his service, under this Court's jurisdiction under Article 98 of the Constitution. In the second place, it was submitted, that the letter of appoint--ment issued to the petitioner was signed by the Deputy Chief Engineer, Project Director, Ground Water & Reclamation Division, whereas the notice of termination has been issued on behalf of Chief Engineer (A & W), WAPDA, who is an authority higher in rank to the Deputy Chief Engineer, who appointed the petitioner. Hence the plea of the petitioner that his services have been terminated by an authority subordinate to that by which he was appointed is factually incorrect.
16. The learned counsel for the petitioner, at this stage, referred to the West Pakistan WAPDA (Water Wing, Service of Engineers Mules, 1968 framed under section 18 of the WAPDA Act, 1958 and invited my attention to Rules 8 and 12 thereof, which to the extent relevant ma be reproduced hereunder with advantage:-
8. Appointing Authority.-Except as otherwise decided by the Authority at any time by general or special order, the Appointing Authorities in respect of the various posts included in the service shall be as indicated in Column 3 of the table hereunder: Table missed of pg.296 Name of the postAppointing authorityConstitution of the Selection Board.
Junior Engineer.Chief Engineer concerned on the advice of the Selection Board in column 4.(i) Chief Engineer Administration
(ii) Other Chief Engineers of divisions in Water Wing.Senior most Chief Engineer will be the Chairman of the Board.
12. Termination of service and resignation.-(1) The services of a member of the Service may be terminated by the appointing authority, without assigning any reason, on giving him three months' previous notice in writing to that effect or three months' Day in lieu of such notice.
It may also be pointed out that the terms "appointing authority" is defined in Rule 3(2) as follows:- "3. Definitions.-(2) "Appointing authority" means the authority competent to make appointment to a post in the Service by initial recruitment or by promotion as prescribed in rule 8 of these tries or as may be prescribed by the Authority from time to time by general or special order in each case for the purpose of all or any of these Rules."
17. In this case the appointment of the petitioner was made by the Deputy Chief Engineer, while his termination was ordered by the Chief Engineer. Hence, even if rule 8(3) of the above Rules was held to be applicable to the case of the petitioner, his case is not advanced to any extent. The reason is that the notice of termination of services of the petitioner has been issued by the Chief Engineer i.e., the authority designated as appointing authority under rule 12. The termination of his services must, therefore, be held to have been ordered by the competent authority, on a combined reading of rule 8(3) and rule 12 of the Water Wing Rules. In fact, the original record produced in Court showed that the Chief Engineer had brought the case of the petitioner even to the notice of the Member (Water), who agreed with the Chief Engineer, that the petitioner's services should be terminated in accordance with the term of his appointment g-trace ran infringement of the 1968-Rules has been established before me and consequently no fault can tie found with the impugned notice of termination on this score as well.
13. The overall conclusion is that this writ petition must fail. It is accordingly dismissed, but with no order as to costs.