' The facts necessary for the disposal of this Constitution petition are that Khalid Pervez, petitioner was appointed as Assistant Manager (Field Operations) in the Punjab Seed Corporation on 26-12- 1978. The petitioner joined the post at Rahimyar Khan on 28-12-1978 and was confirmed on the post with effect from 28-12-1978 vide letter No, 1929, dated 29-9-1980. On 26-12-1980, the petitioner left the station of posting after leaving application for 15 days leave as according to him, he had to leave the station immediately on coming to know of the serious illness of his mother. He then on 1- 1-1981 tendered his resignation by giving one month notice and also applied for extension of leave up to 31-1-1981. In reply, he received the letter dated 19-3-1981 requiring the petitioner to join duty at the headquarters' office before 26-3-1981 and to explain his absence from duty. The petitioner asserts that in pursuant to the aforesaid communication, he joined duty at headquarter office on 25-3-1981. He also tendered his explanation on 6-4-1981. The management, however, appointed a Board of Enquiry on 18-5-1981 but on objection raised to the constitution of the Board, the proceedings were dropped.
2. The petitioner further asserts that despite joining the headquarter office on 25-3-1981, the petitioner was neither assigned any duty nor was posted to any specific post and even his salary was withheld. It is asserted that the petitioner faced with this situation, submitted 13 applications from the period commencing from 28-4-1981 to 30-6-1982 (Annex. `E' to 'N'). Then in July, 1982, the petitioner was posted in the Marketing Division and was allowed to draw his salary from 117-1982.
The petitioner was again served with the charge-sheet dated 19-7-1982. (Annex. '0') calling upon him to explain his wilful absence from duty with effect from 25-3-1981 to 10-7-1982. The charge- sheet itself states that, "this excludes the various dates on which the petitioner attended the office in connection with enquiry against him or putting in various applications." The details of these applications have also been given in the charge-sheet. These are the very applications which have been referred to by the petitioner in para. 4 of the petition and have been attached as Annex's. `E' to 'N' with the writ petition. Before proceeding further, it may be noted that the grievance regarding nonpayment of the salary was agitated before this Court in writ Petition No,314-S of 1982 unsuccessfully. The Intra-Court Appeal (ICA No, 140 of 1982) filed against the order passed in the writ petition was also disposed of by a Division Bench of this Court vide order dated 1-11-1983 with the remarks that the petitioner, if so advised, may approach the Civil Court for enforcing the claim of salary. The petitioner, thereafter, filed a civil suit which is stately still pending.
3. The second charge-sheet resulted in the constitution of a Board of Enquiry consisting of Mr. Samuel Jacob and Mr. Taimoor Ahmad Chughtai. It may be noted at this stage that the statement of allegations served along with the charge-sheet contained allegations to the effect that the petitioner was continuously absent from duty with effect from 27-12-1980 and that he had already been charge-sheeted for absence from 27-12-1980 to 19-3-1981 and that the absence continued beyond 19-3-1981 up to 10-3-1982. The list of witnesses filed by the management contained the name of Mr. Samual Jacob, the Member of the Board of Enquiry as well. The petitioner vide his letter dated 25-9-1982 raised objection to the recording of the statement of Mr. Samuel Jacob, a member of the Enquiry Board as a witness for the prosecution. The petitioner also asserted that the members of the Board of Enquiry were prejudiced against him as they instead of supplying the documents requested for, administered warning to complete the enquiry in such manner as may be considered appropriate by them and treated the said request as an effect to hamper the proceedings.
4 The Board of Enquiry submitted a report against the petitioner to the Managing Director who after providing personal hearing passed the impugned order of dismissal from service. The appeal filed by the petitioner against the order of dismissal was also rejected and the rejection of the appeal was conveyed vide memo. Dated 3-3-1985. These orders of dismissal from service as well as rejection of appeal were then assailed by the petitioner by invoking Constitutional jurisdiction of this Court.
5. Learned counsel for the petitioner contended that the order of dismissal from service as is based on the report submitted by the Board of Enquiry consisting of Mr. Samuel Jacob and Mr. Taimoor Ahmad Chughtai, is not sustainable in law as Mr. Samuel Jacob could not be a member of the Board of Enquiry as well as a witness for the prosecution; that the personal hearing granted by the Managing Director was a mere formality as the petitioner was not provided with the copy of the report submitted by the illegally constituted Board of Enquiry, that the Board of Enquiry as constituted was illegal as the Board of Enquiry is to be composed of two or more Officers who are senior in status to the employee concerned and that the order passed in appeal is also illegal as no reason whatsoever has been given for rejecting the appeal. Learned counsel for the petitioner in elaboration of the pleas taken, submitted that Mr. Samuel Jacob was not an officer senior in status to the petitioner as both the petitioner' as well as Mr. Samuel Jacob belonged to Grade-17 and as such were equal in status. Learned counsel further submitted that as the Board of Enquiry was prejudiced against the petitioner, the proceedings held as well as the report submitted stand vitiated. In this respect reference was made to letter dated 5-9-1982 (Annex. 'T') wherein the petitioner raised objection as to the constitution of the Board as well as to the recording of evidence of Mr. Samuel Jacob as a witness for the prosecution and the warning administered to him.
6. Learned counsel for the respondent Corporation, in opposition, submitted that the petitioner is not entitled to maintain Constitution petition as law of Master and Servant applies; that when the servant is guilty of misconduct, the master is entitled as a matter of right to terminate his services and interference in Constitutional jurisdiction is not warranted. Reliance is placed on the Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustom Ali and another PLD 1966 SC 848 and R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146. Learned counsel for the petitioner, in reply submitted that the precedents relied upon are distinguishable as the terms and conditions of the officer of the respondent-Corporation have been regulated by the Regulations framed under the Punjab Seed Corporation Act, 1976.
7. Having considered the respective submissions I have reached the conclusion that the objection as to non-maintainability of the Constitution petition has no merit. The Punjab Seed Corporation was established under Punjab Seed Corporation Act, 1976 (Act X of 1976). Section 8 of the Act which provides for the appointment of officers of the Corporation, reads as under:- "The Board ma'., subject to such general or special orders, as Government may give to it from time to time, appoint such officers, advisors and servants as it deems necessary for the efficient performance A of its functions on terms and conditions as may be prescribed: ' Provided that the Board shall have the power to make appointment on contract basis on such terms and conditions as it may deem fit."
' The word "prescribed" used in section 8 of the Act as defined in section 2(i), means prescribed by rules or regulations. Section 23 confers power on the Government to frame rules while section 24 confers power on the Board constituted under section 4 of the Act to make regulations subject to the provisions of the Act and rules for carrying out the purpose of the Act. The Board framed Regulations in exercise of the powers vesting in it under section 24 and these Regulations were notified in the Punjab Gazette Extraordinary dated 16-51977. Regulation No, 20 deals with discipline, misconduct or breach of discipline, Regulation No, 21 deals with the punishment for misconduct and indiscipline and Regulation No, 22 provides remedy of appeals and revision against the order passed. It will, therefore, be seen that these Regulations so framed and notified in the Gazette have the status of a statutory instrument. These are not mere instructions issued for internal guidance of the Corporation. In the case of Principal Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170, the regulations framed by the Board were not accorded the status of statutory instrument as those regulations were not framed in accordance with the powers conferred by the statute as the approval of the Government was not obtained. The learned Judges of the Supreme Court in the above noted precedent observed: "It is common ground that neither any rules, as contemplated by section 17 of the Ordinance nor any Regulations under section 18 thereof were framed. The Board of Governors did frame some "rules" for "governing the appointment, promotion, retirement, termination of service, and dismissal of staff employed by the Board of Governors. Of the College" in its meeting held on 29th September, 1964, but these not having been made by the Government, could not be regarded as "rules" under section 17 nor having been approved by the Government, be treated as Regulations under section 18 thereof. These "rules" therefore could only be regarded to be in the nature of mere instructions issued for the guidance of the Board of Governors and the Principal of the Cadet College, Kohat."
' This is not the case here as the Punjab Seed Corporation Act, 1976 does not provide that the Regulations to be framed by the Board are to receive approval of the Government. The Regulations have been framed by the Board in exercise of powers vesting under section 25 of the Act. These Regulations so framed have been duly published in the Punjab Gazette. The Regulations being the statutory instrument have the force of law. This being the position the petitioner is entitled to invoke Constitutional jurisdiction of this Court if any action prejudicial to the petitioner-employee in derogation of or violation of any such rule or regulation is taken. In support of this view, reliance may be placed on Syed Akbar Ali Bokhari v. State Bank of Pakistan and 7 others PLD 1977 Lah. 234; Muhammad Yousuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275.
8. The stage is now set to consider the grievance of the petitioner on merits. First tarring to be noted is, that in the parawise comments submitted by the respondent, the assertions made in the various paras. Of the writ petition were not specifically denied. The fact that Mr. Samuel Jacob a member of the Enquiry Board, also appeared as a witness to support the case of the management, has also not been denied. A person who is a witness for the prosecution, cannot be made a judge to determine the guilt of the accused person. A person cannot be an adjudicator as well as a witness in the same case. The Board of Enquiry to be constituted under Regulation No, 20 to enquire into the default or the misconduct of the delinquent employee, has to consist of the persons who do not suffer from any inherent disqualification and are in a position to apply mind independently, fairly and without any bias whatsoever. These qualifications are inherent as otherwise the very purpose of constituting a Board of Enquiry to hold enquiry will stand frustrated. The report submitted and the dismissal order passed on the basis of the report of a biased Board of Enquiry cannot be sustained in law. The whole edifice created on non-existing ground is bound to collapse. In this respect reliance may be placed on Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104. This factor alone provides sufficient reason for declaring the impugned order void and without lawful authority.
9. For the reasons given above the order of dismissal from service dated 2-1-1984 and the order rejecting the appeal conveyed vide memo dated 3-3-1985 are hereby declared to have been passed without lawful authority and hence of no legal effect. The petition thus succeeds and is accepted with costs.