1. ' ZAFFAR HUSSAIN MIRZA, J.---This appeal is directed against the judgment of a learned Single Judge of the High Court of Sindh at Karachi, dated 26th April, 1981 whereby the Revision Application filed by the respondents herein, was allowed and the judgment and decree of the trial Court as well as of the Appellate Court were set aside.
2. ' The brief facts leading to this appeal are that appellant, Anwar Hussain, was appointed as Junior Officer in Agricultural Development Bank of Pakistan, respondent No,1 (hereinafter to be referred to as the Bank), on the terms and conditions contained in the letter of offer issued to him on 15th May, 1974, which was accepted and he was posted as Manager in the Branch Office of the Bank at Khairpur. In accordance with the terms and conditions, the appellant executed service agreement in the prescribed form and furnished, security in the sum of Rs,2,000. The service agreement and the personal surety furnished by the appellant was stipulated to remain in operation for five years.
3. Thus, the appellant undertook to serve the Bank for a period of five years. It is the case of the appellant that in view of the aforesaid terms and conditions of his service, he was not allowed to resign from the service and that he had agreed that in case he discontinued or abandoned the service on his own accord before the expiry of the aforesaid stipulated period of five years, he was bound to compensate respondent No,1 to the extent of the security.
4. ' In the events that happened, on 18th September, 1976 the appellant proceeded on medical leave for one month. Thereafter according to him due to compelling circumstances, on 6th October, 1976 he served respondent No,1 with notice which reads as under:-- ' The Chairman, ' Agricultural Development Bank of Pakistan, ' Head Office, Islamabad.
5. ' Subject:--Submission of Resignation. Dear Sir, ' I have the honour to submit that I hereby give one month's notice for, tendering the resignation which is essential in case of probationary Manager. The period of this notice will be counted from today and will expire on 6-11-1976. As such my resignation may kindly be accepted from 7-11-1976 for which .1 have been compelled by our organisation to tender by creating following circumstances:--
(1) That I have been personally approaching the worthy Chairman and the E.D. (S) for my transfer from Kandhkot to any other Branch near to Larkana since about last 16 months under some circumstances which were explained by me personally from time to time, but even after the promises by the worthy Chairman and the E.D.(S) I were kept on empty hopes for my transfer since March last.' Finally in September, 1976 situation at Kandhkot became such that my life at Kandhkot was in danger which fact I brought into the knowledge of the E.D.(S) personally at Karachi yesterday the 5th instant. But E.D.(S) clearly refused to give me a hearing which is clear proof that E.D.(S) has ill-motive against me.
(2) That everybody is being given the posting of his choiced place whoever is that sweet person of E.D.(S) and the Joint Director Administration Zonal Office, Karachi. But since I am not paying anything to the above Officers, I am being victimized at every occasion. In this regard I can quote an instance of refusal of allowing me a TA. Bill for my official tour, by the Zonal Office, Karachi.
(3) That the worthy Chairman though has allowed all the Bank employees' and officers to report their grievances direct to him for its removal but these instructions are only placed in the circular files and practically it is not such. I met the worthy Chairman at Islamabad in March last in connection with my transfer problem and the worthy Chairman promised for transferring me from Kandhkot to near place to Larkana. But I am sorry to asking on telephone by the Zonal Office and the Head Office that my proposals for transfer have been lying on the Chairman's table but it were never approved. Frequent transfer orders are being issued by the Zonal Office, Karachi in case of Assistant Manager and other officers but my case of transfer has never been considered. This is a worst instance of favouritism by which corruption is being encouraged in the organisation as corrupt officials are being given facilities only, who pay something to E.D.(S) and Mr. BA. Siddiqui.
(4) That at present I am on leave on medical grounds but my posting is remained at Kandhkot where there has arrived an enmity of local people with me. My life at Kandhkot is in a danger.
6. Whereas the worthy E.D.(S) has refused to consider my transfer from Kandhkot. As such I give preference to save my life rather than save my service. In such a way I have been compelled to resign. Had I been transferred from Kandhkot to Larkana or nearer to Larkana, I could have continued to serve.
(5) That as per agreement I have been made to serve for the minimum period of 5 years. In other case I have to pay Rs,2,000. But since I am not resigning from the post voluntarily but I have been compelled to resign by creating above-mentioned circumstances, hence I will not be liable to pay Rs,2,000 as per agreement. And if my this plea is acceptable, my resignation may kindly be accepted from 7-11-1976."
7. ' As observed in the aforesaid notice, the appellant had requested that his resignation may be accepted with effect from 7th November, 1976, but before that date the appellant proceeded on medical leave and on 1st November, 1976 sent a telegram to the Chairman of the Bank withdrawing his resignation and requesting for consideration of his transfer case. On 3rd November, 1976, the appellant received a telegram from the Bank which reads as follows:-- "No Admn.1/14(499) reference your letter of October, Sixth(.) Your resignation has been accepted on usual terms(.) Deposit Rupees two thousand as cost of training in Karachi immediately(.) You will stand relieved from Bank service from November seventh forenoon-Agrifin."
8. ' Thereafter the appellant submitted representation to the Bank protesting against the acceptance of his resignation which was conditional and had been withdrawn before the effective date of acceptance of the resignation. As the representation submitted by the appellant remained unheeded and on the contrary he was served with letter from the Regional Manager, Larkana, informing him that he had been relieved from service with effect from 7th November, 1976, he instituted a suit for declaration and permanent injunction (Suit No,93 of 1976) in the Court of CiAl Judge, Larkana, challenging the acceptance of his resignation and the termination of his service.
9. ' Besides the Bank the other three officers of the Bank were impleaded as defendants who are respondents Nos. 2 to 4 herein. The respondents contested the suit. The main plea taken by the respondents in their written statements was their denial of the allegation by the appellant that he had withdrawn his resignation on 1st November, 1976 by means of a telegram. It was asserted that even the copy of the telegram allegedly despatched by the appellant was not received. It was further averred that even if the telegram sent by the appellant had been received in due course, it would have been of no avail to him, inasmuch as, his resignation stood accepted on 30th October, 1976 which was duly communicated to him on 2nd November, 1976. The rest of the facts were admitted and are immaterial for the present purposes. The respondents also vehemently contested the plea of the appellant that his resignation was conditional and could, therefore, only be accepted if the Bank was prepared to forego the recovery of Rs,2,000. On the legal plane the respondents challenged the maintainability of the suit. As the question of the forum and maintainability of the suit assumed importance in the present appeal, it may be observed that the contention of the respondents was that the suit for declaration and permanent injunction under section 42, Specific Relief Act was not competent and that the appellant could at best file a suit for damages. However, the trial Court rejected the legal objection raised and held that the suit was maintainable. On the merits, the trial. Court came to the conclusion in favour of the appellant by holding as under:-- "On 6-10-1976 the tendered conditional resignation by way of offer to the defendant No,1. The condition attached with the offer of resignation was that if the A.D.B.P. Foregoes amount of Rs,2,000 then his resignation may be accepted, otherwise not. On 1-11-1976, the plaintiff by telegram withdrew his offer of resignation. On the same day he submitted the copy of his telegram to defendant No,1 through P.IA. Cargo Karachi. His telegram dated 1-11-1976 was received by the defendant No,1 on 2-11-1976 between 7-00 a.m. And 11-00. a.m. He has deposed that the copy of the telegram was also received by the defendant No,1 on 2-11-1976 at 11-30 a.m. The resignation letter is Exh.44.
10. ' The relevant paras of this letter Exh.44 is opening para and para. No,5 which are reproduced below:-- "I have the honour to submit that I hereby give one month's notice for tendering the resignation which is essential in case of probationary Manager. The period of this Notice will be counted from today and will expire on 6-11-1976. As such my resignation may kindly be accepted from 7-11-1976 for which I have been compelled by our organisation to tender by creating following circumstances:-.-
(5) That as per agreement I have been made to serve for the minimum period of 5 years in other case I have to pay Rs,2,000. But since I am not resigning from the post voluntarily but I have been compelled to resign by creating above-mentioned circumstances, hence I will not be liable to pay Rs,2,000 as per agreement. And if my this plea is acceptable, my resignation may kindly be accepted from 7-11-1976."
11. ' It is out of dispute that according to service agreement plaintiff was bound to serve the Bank for the period of five years and in case he resigned he will have to re-imburse the Bank the sum of Rs,2,000. Office memorandum dated 18/19-11-1976 produced by the plaintiff Exh.60 shows that plaintiff's' resignation was accepted and at the same time he was informed that the amount of Rs,2,000 would be recovered from him. Therefore, the resignation of the plaintiff was accepted without accepting the condition attached with the resignation.
12. ' The trial Court further held that there was documentary evidence to prove that the appellant did withdraw his resignation by telegram, and that the alleged acceptance of the resignation on 30th October, 1976 before the date of the withdrawal' of the resignation, was not substantiated by any cogent evidence. In view of these conclusions and findings, the trial Court decreed the suit of the appellant by judgment and decree, dated 20th June, 1978.
13. ' The appeal filed by the respondents was dismissed and the decree passed by the trial Court in favour of the appellant was affirmed by the learned District Judge, Larkana, by judgment dated 14th December, 1978.
14. ' Ultimately, the respondents challenged the judgments and decrees . Passed by the trial Court and the Appellate Court, in a Revision Application in the High Court of Sindh, Karachi which was allowed by the learned Single Judge by the impugned judgment, dated 26th April, 1981 and the decree passed in favour of the appellant was set aside, on the ground that the suit was not maintainable in the form in which it was brought, in that, the matter was governed by the principle of master and servant, for which the only remedy for the appellant was to bring a suit for damages for wrongful dismissal from service.
15. ' The appellant sought to challenge the aforesaid judgment by means of a petition for leave to appeal before this Court, which was dismissed by judgment dated 14th December, 1981. It was held that the general law of master and servant did govern the present case, in view of the provisions of the Agricultural Development Bank of Pakistan Ordinance (IV of 1961) (hereinafter to be referred to as the Ordinance) as the matter of appointment and terms and conditions of service of the employees were left to be regulated by the Bank under section 30 of the Ordinance which conferred the power of, appointment of officers and advisors upon the Bank on such terms and conditions as may be prescribed by the Regulations framed under Section 39 of the Ordinance. The provisions of sections 30 and 39 of the Ordinance were reproduced and the Court made the following observations:-- "It is clear from the above that the Bank has complete control over its employees, their appointment and dismissal and their terms and conditions of service and that this control is not fettered by any statutory provision. The rule of master and servant will, therefore, apply to the case of the servants of the Bank."
16. ' However, it so happened that it was found by the appellant subsequently that the Ordinance was amended by the Amendment Act XII o 1973, whereby a proviso was added to subsection (2) of Section 39 of the main Ordinance. The effect of the amendment was that Regulations framed by the Board of the Bank in respect of matters mentioned in clauses (e) and (f) o subsection (2) of the section 39 were not to take effect until such Regulations A were accorded approval by the Federal Government. This provision by way o amendment was apparently not taken into consideration while disposing of the petition for leave to appeal filed by the appellant. Accordingly a Revie petition was submitted, which was allowed after hearing the parties by judgment of this Court dated 19th December, 1990 and the petition for leave to appeal was converted into an appeal.
17. ' Now, it may at once be stated that the judgment of this Court dated 14th December, 1981, whereby the petition for leave to appeal filed by the appellant was dismissed in the first instance as reported in Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194, laid down the law as under:-- "It follows that if the relationship is the result of contract freely entered into by the contracting parties then the principle of master and servant will apply. The principle, however, will not apply if some law or statutory rule intervenes and places fetters upon the freedom of the parties in the matter of the terms of the contract. It is on this principle that a civil servant for whom there are constitutional safeguards, is not governed by the principle of master and servant, for he is possessed of a legal character for the enforcement of which he can bring an action. Even where the employee is not a civil servant but there are statutory safeguards governing his relationship with the employer and placing restrictions on the freedom of the parties to act, the general law of master and servant will not apply. In such cases the employer would be bound to follow the procedure provided for in the statute or the statutory rules before terminating the service of the employee and in the absence of conformity to such procedure, the termination of service would not be clothed with validity and the employee will be entitled to an action for his reinstatement."
18. ' As observed earlier the case of the appellant was held to fall within the rule of master and servant, because the amendment made in section 39 of the Ordinance by Act XII of 1973 was not brought to the notice of the Court, with the result that view was taken that there was no fetter placed by the statute on the power of the Bank to regulate the terms and conditions of the service of its employees in regard to appointment and dismissal. However, in view of the amendment the matter took an entirely different character, because by the amendment of 1973, in effect the Regulations relating to .Terms and conditions of service of the employees including the termination, were subjected to the approval of the Federal Government. Therefore, if the proviso was attracted the contracting parties were not free in the matter of contract of service and the rule laid down excluding the principle of master and servant, because of the statutory rule placing fetters upon the freedom of parties, would 4 come into operation.
19. ' It may further be stated that in exercise of powers conferred by clause (e) of subsection (2) of section 39 of the Ordinance, the Board of Directors of the Bank had framed the Agricultural Development Bank (Staff) Service Regulations, 1961, which shall hereinafter be referred to as the 'Service Regulations'.
20. ' After coming into force of the Amendment Act (XII of 1973) on 6th February, 1973, with the approval of the Federal Government Regulations relating to the Efficiency and Discipline of employees were made which are called the A.D.B.P. Officers (Efficiency and Discipline) Regulations, 1975 which are more or less on the same pattern as the Efficiency and Discipline Rules governing the civil servants.
21. These Regulations repealed Regulation 95 in Chapter VI of the Service Regulations of 1961.
22. ' It will now be advantageous to reproduce sections 30 and 39 of the Ordinance as amended in 1973: "30. Appointment of officers and advisors.---The Bank may appoint or employ such persons including advisors as it considers necessary for the efficient performance of its operation on such terms and conditions as may be prescribed by regulations."
39. Regulations.-- - (1) The Board may make regulations not inconsistent with this Ordinance or the rules to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Ordinance and the efficient conduct of the affairs of the Bank.
(2) Without prejudice to the generality of the provisions of subsection (1), the regulations may provide for:--
(a) ...................................................
(b) ...................................................
(c) ...................................................
(d) .........................................
(e) the recruitment of the employees of the Bank, the terms and conditions of their service, the constitution and management of Provident Funds for the employees of the Bank and all other matters connected with any of these things;
(I) the duties and conduct of employees and agents; (g)
23. (h)
24. ' Provided that no regulation made with respect to the matters mentioned in clauses (e) and (f) shall take effect until it has been approved by the Federal Government."
25. ' Mr. Fakhruddin G.Ebrahim, learned counsel for the appellant submitted that there is a concurrent finding by the trial Court and the Appellate Court that the appellant had withdrawn his resignation telegraphically on 1st November, 1976 and that there was no evidence to substantiate the plea of the respondents that his resignation was accepted before the said withdrawal on 30th October, 1976, as no original order was produced to that effect.
26. ' The learned Judge in the High Court, on the other hand, did not particularly go into the question of fact whether the resignation tendered by the appellant was conditional and was withdrawn before its acceptance. He held that on the terms of the service agreement executed by the appellant, he was bound to serve the Bank at least for five years and therefore; he was not entitled to resign before the expiry of the said period. He also referred to paragraph 3.22 of the Manual of Administrative Instructions issued by the Bank whereunder the Chairman of the Bank was competent to accept the resignation and under paragraph 3.23 of the said Manual once notice of resignation had been accepted, it would not normally be permissible to the employee to withdraw the resignation. On the strength of these instructions the learned Judge took the view that it was unnecessary to go into the question because the plea of the Bank was that the resignation was accepted in accordance with the said provisions of the Manual. As already observed, the Revision Application of the respondents was accepted on the legal plea advanced on their behalf that the suit as framed was not maintainable.
27. ' The aforesaid position is correct and therefore, the learned counsel have mainly addressed arguments on the question of maintainability of the suit., Mr. Fakhruddin G. Ebrahim submitted that Regulations 13 and 14 of the Service Regulations respectively relate to termination of service and resignation, whereas Regulation 95 related to dismissal from service, which as already stated has now been repealed and replaced by the Efficiency and Discipline Regulations with the prior approval of the Federal Government. It was submitted on behalf of the appellant that his case was that he had withdrawn his resignation before its acceptance, whereas the contention of the Bank was that the appellant's resignation was accepted before its withdrawal. The Courts below had, on the other hand, held in favour of the appellant that the resignation tendered by him was indeed withdrawn before it was accepted and therefore, the net effect of this finding of fact was that the appellant continued to remain in service. Learned counsel pointed out that this finding is not being questioned by the Bank. This being so, the refusal on the part of the Bank to accept and continue the appellant in its service, amounts to his removal from service which is one of the major penalties contemplated by clause (4) of Regulation 95, which could not be imposed without holding proper disciplinary proceedings provided therein. On these grounds learned counsel for the appellant urged that the suit was maintainable as the action of the Bank in treating the service of the appellant as having terminated by resignation, amounts to removal from service in violation of statutory Regulation 95 or the substituted Efficiency and Discipline Regulations, 1975, the position under which is substantially the same as the repealed Regulation.
95. Additionally, the learned counsel referred to the fact that the impugned order purporting to accept the resignation of the appellant called upon him to pay Rs,2,000 which amounts to imposing of penalty by way of punishment under the Efficiency and Discipline Rules. Thus, it was strongly urged that the rule of master and servant was not attracted in the present case.
28. ' On the other hand, it was contended by Mr. Makhdoom Ali Khan, learned counsel for the respondents that even if it is assumed that the findings of the two Courts below regarding the acceptance of the resignation are correct and that the High Court could not have interfered with them in the exercise of reversional jurisdiction, then the suit of the appellant for declaration and injunction cannot be decreed, unless he can demonstrate:--
(a) the terms and conditions of his service are governed by Regulations;
(b) these regulations are statutory in nature and place a clog on the power of the employer to dispense with the service of the employee; and
(c) that in fact such violation has taken place.
29. ' Learned counsel argued that in the absence of the foregoing conditions the general law of master and servant, which disentitles a servant to seek a declaration and injunction for re-instatement in service of an unwilling master, would be applicable.
30. ' Referring to the relevant provisions of the statute applicable to the present case it was. Pointed out by the learned counsel that the Regulations made with the prior approval of the Federal Government relating to efficiency and discipline of the employees, contain no provision relating to resignation. These Regulations replaced Regulation 95 of the Service Regulations of 1961, and the rest of the Regulations remained untouched. In other words after the 1973 Amendment, according to the learned counsel, the remaining Regulations which were not accorded approval to or replaced by fresh Regulations with the prior approval of the Federal Government, did not have the effect of statutory rules or Regulations, but could only be regarded in the nature of mere instructions issued for the guidance of the Board of Governors and officers of the Bank for their internal guidance; and as held in the case of Anwar Hussain PLD 1984 SC 194 the violation of such instructions cannot furnish an employee dismissed from service the right to claim a declaration under section 42, Specific Relief Act, 1877, because the principle of master and servant being applicable, his only remedy would lie in filing a suit for damages.
31. ' Alternatively, learned counsel forcefully contended that even if the aforesaid Service Regulations of 1961 are regarded as statutory regulations, in order to succeed to the relief claimed, the appellant must show violation of a specific regulation. It was submitted that the appellant has failed to show that any statutory regulation was violated. Learned counsel submitted that at best the appellant had showed a violation of paras.
32. 3.22 and 3.23 of the Manual of Instructions which may for the sake of convenience be reproduced as follows:- "3.22 Accepting of resignations.--- Before accepting resignation of an employee, all relevant facts specially service agreements, surety bonds, etc., should be carefully examined and taken into account.
33. 3.23 Withdrawal of resignations.-- - Once a notice of resignation has been accepted, it will not normally be permitted to be withdrawn. The employees should, therefore, give the notice of resignation after considering fully its consequences."
34. ' With reference so the above instructions it was submitted that this Manual does not fall within the definition of Regulations under section 39 of the Ordinance, since it was neither made by the Board of Governors nor approved by the Federal Government. Therefore, the submission of the counsel was, the violation of Instructions.
35. ' As regards the contention that penalty was imposed on the appellant, Mr. Makhdoom Ali Khan submitted that the demand for the payment of the amount of Rs,2,000 was not in the nature of penalty or by way of punishment but it was in substance only a refund of the amount spent on his training, which was refundable on account of stipulations, contained in the letter of appointment, the service agreement and the security bond. In other words, the amount was claimed by way of enforcement of contractual provisions and not by way of a punishment under the disciplinary procedure.
36. It may be observed that the proviso to subsection (2) of section 39 of the Ordinance as appended by means of amendment of the law in 1973 plainly stipulates that the Regulations made under clauses (e) and (f) of the said subsection can come into force only upon and from the date of the approval accorded by the Federal Government. Therefore, such Regulations will be inoperative or ineffective until the condition laid down, namely, the approval of the Federal Government is fulfilled.
37. The question in the present case, however, is whether this amendment made in 1973 by its own force rendered the service Regulations of 1961 which were already in effect and which fell within the purview of clause (e) inoperative from the date when the amendment came into force, namely, 6th February, 1973. A reference to subsection (2) of section 1 of the Agricultural Development Bank (Amendment) Act (XII of 1973), plainly shows that this Act came into force on the date of its promulgation and not retrospectively. A reasonable interpretation of the provisions of this Act, particularly the proviso appended to subsection (2) of section 39, would therefore, be that the proviso would be applicable prospectively to any Regulations made which fall under clauses (e) and (f) in the future. In other words, if any Regulations on these subjects are framed after the date of the coming into force of the Amendment Act, prior approval of the Federal Government would be essential for bringing such Regulations in effect. But, it will be difficult to construe the provisions of the proviso to destroy the Regulations which had already come into force prior to the amendment, as obviously that would amount to giving retrospective operation to the provisions of the Amendment Act. It therefore, follows that the remaining Regulation of 1961, other than the substituted Regulation 95, having come into force prior to the 1973 amendment, when no prior approval of the Federal Government was necessary, shall continue to remain in force and operative notwithstanding the amendment of subsection (2) of section 39.
38. The next question is that in the legal position thus emerging, whether', the test laid down in the case of Anwar Hussain would still be satisfied regard to matters governed by such Regulations which had already come into force before the amendment and have continued in force without the approval of the Federal Government. The simple answer to this question is that the Regulations that were in force at the time of the amendment and have continued to remain in operation, cannot be modified, replaced or repealed, by the Board of Directors of the Bank hereinafter without the prior approval of the Federal Government as contemplated by the proviso to subsection (2) of section 39. This is so because, firstly, any such action would obviously fall within the purview of the proviso; and secondly, because by virtue of section 21 of the General Clauses Act, 1897, the power to frame. Regulations in respect of clauses (e) and (f) of subsection (2) of section 39 vesting in the Board would include a power, exercisable in.The like manner and subject to like sanction and conditions, to add to, amend, vary or rescind any previously made regulations. In final analysis, therefor, for all intents and purposes, the Service Regulations of 1961 are unalterable without the prior sanction of the Federal Government and therefore, there is statutory intervention and fetters placed upon the freedom of the parties in the matter of the terms and conditions 'of service, which is the test laid down for excluding the ordinary rule of master and servant in such cases.
39. The next question that falls for determination is whether in the present case any violation of any of the statutory Regulations has taken place depriving the appellant of his service rights, so as to enable him to maintain a suit for declaration and injunction. As already observed learned counsel for the appellant has not referred us to any specific regulation on the subject of resignation. There are only instructions in the Manual of Instructions, relevant part of which has been reproduced hereinabove, touching the matter of resignation. But learned counsel for the respondents rightly contended that a breach of these instructions cannot take out the case of the appellant from the ambit of the master and servant rule, because it is only in the case the conditions of service of an employee are regulated by terms of the statute and the rules framed thereunder, that it can be held that there are statutory fetters, whereby the master's pleasure is deemed to have been surrendered to the extent that the matter is covered by the relevant rules (Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275) and the theory of master and servant would be inapplicable. See Principal Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170.
40. ' Regulation No,14 of the Service Regulations of 1961 deals with resignation and its relevant part reads as follows:- "14. Resignation. A permanent employee in Class I or Class II post shall not resign from the service of the Bank without giving 3 months' previous notice to the Chairman in writing (one month will be considered of 30 days). A permanent employee in Class III or Class IV shall not resign without giving previous notice of one month of 30 days to the appointing authority. Failure to give such notice shall make. The employee in Class I and Class II liable to pay for 3 months and an employee in Class III or Class IV to a sum equal to his substantive pay for 30 days. An employee other than permanent employee shall be required to give one calendar month's notice to resign his appointment or to pay to the Bank a sum equal to one month's pay. The condition of recovery of pay in lieu of notice can be waived by the Chairman in all cases: ' It will be at the discretion of the appointing authority to accept pay in lieu of notice or not. In the latter case the employee concerned shall continue to serve the Bank during the period of notice."
41. ' No argument was addressed by the learned counsel for the appellant on the basis of this rule to show that there has been a statutory violation in regard to the acceptance of resignation tendered by the appellant. Regulation No,14 is apparently an enabling provision entitling various classes of permanent employees to resign from service of the Bank subject to service of notice of varying periods in the case of different categories of officers. Therefore, this provision is of no help to the appellant's case. On the contrary it authorizes one of the modes whereby an employee can cease to be in the service of the Bank. So far as the Paragraphs 3.22 and 3.23 are concerned, we have already held that any violation of these instructions cannot be made a foundation for a suit for declaration, because the breach of such instructions which are for the internal use of the Bank organization, does not furnish a statutory guarantee, to exclude the concept of master and servant.
42. Nonetheless paragraph 3.23 provides that notice of resignation once served by an employee will not normally be permitted to be withdrawn. This clearly implies that the Bank has reserved to itself the power to refuse withdrawal of notice of resignation. Therefore, it logically follows that, notwithstanding a request for withdrawal of such notice, before even the acceptance of the resignation, it will be within the discretion of the Bank to allow such withdrawal or not. An employee cannot on the basis of these Instructions, challenge the authority of the bank to act upon the notice of resignation and refuse to permit withdrawal of such notice. Clearly, the power with the Bank in the matter. Therefore, the instructions also cannot sustain a plea that the rule of master and servant will be excluded or that in this case there has been even a breach of the instructions.
43. ' Learned counsel for the appellant, however, contended that upon withdrawal of the resignation the Bank had no authority to treat the appellant to have ceased to be in the service of the Bank. It is difficult to accept this contention.
44. ' Regulation No,13 vests in the Bank a power to dispense with the services of any employee with prior notice of the prescribed period or pay in lieu thereof and it has been categorically declared in this Regulation as under:-- "Such terminating of service of an employee is :n the absolute discretion of the Bank and it shall not be necessary to assign any reason for the termination and the employee shall not be entitled to any form of compensation for termination of service.
45. Learned counsel for the appellant submitted that it is not the case of the Bank that it has exercised this power and terminated the service of the appellant, but their case is that the resignation of the appellant was accepted. We see hardly any material difference upon the case of the appellant of the proposition submitted by the learned counsel.
46. ' Apparently, subject to what has, been already discussed above with regard to the discretionary powers of the Bank to refuse withdrawal of resignation, even if the resignation had been accepted against the provisions of the Instructions, the denial of the Bank to take the appellant in its service amounts to the termination of his service, which power is clearly vested in the Bank (see Agricultural Development Bank of Pakistan and 2 others v. Muhammad Sharif 1988 SCMR 597).
47. Therefore, unless something by way of a guarantee of tenure of service is provided by the statute or the Regulations framed thereunder or mala fides is alleged, no employee can maintain a suit for reinstatement in service without showing the violation of such statute or Regulations.
48. We agree with the submission of the learned counsel for the respondent that the demand for the payment of Rs,2,000 was not by way of penalty, nor can the, refusal on the part of the Bank to continue the appellant in service amount to removal or dismissal from service governed by the A.D.B.P. Officers (Efficiency and Discipline) Regulations, 1975.
49. ' In somewhat similar circumstances this Court while considering the power of the WAPDA of removal from service of its employees without assigning reasons by giving notice under section 17(1-A) of the WAPDA Act in the case of WAPDA and another v. Muhammad Arshad Qureshi 1986 SCM R 18 observed:-- "The matters required to be examined in scrutinising the exercise of power under subsection (1-A) are (a) the competency of the individual or body taking action under it, (b) the amenability of the individual in respect of whom such a power has been exercised, (c) the presence of taint of mala fide or bias in exercise of that power, the postulate of legislative authorization to the exercise of public power being that it will be exercised bona fide. It is only after satisfying such tests or requirements that power can be said to have been exercised in a manner to achieve irrevocability or immunity from further scrutiny or substitution."
50. Our conclusion therefore, is that in the present case the suit filed by the appellant was not competent and has been rightly held so by the High Court. In result, this appeal fails and is accordingly dismissed with no order as to costs.