AKHTAR HASSAN, J.--This judgment shall also dispose of Civil Revision No.497-D/1986 as both these arose from the same consolidated judgment/decrees dated 20.2.1986 of the learned Additional District Judge, Lahore, whereby two separate appeals, one filed by the LDA. And the other by some employees like Muhammad Iqbal Baila etc. Against the judgment of the trial Court dated 8.12.1984 were dismissed.
2. Services of the respondent Karim Bakhsh Nasir as an Engineer were terminated by the petitioner L.DA. Vide their order dated 5.8.1982 taking effect retrospectively from 27.3.1980. He was allowed deputation to Saudi Arabia with effect from 15.3.1975 extended from the to the for a total period of 5 years expiring on 27.3.1980. He was given a "final show cause notice" dated 1.5.1982 to explain within fourteen days as to why he should not be dismissed for his wilful absence from duty constituting misconduct. Additionally he was asked to indicate if he desired to be heard in person. In reply he explained that his employer at Saudi Arabia was not willing to relieve him forthwith and that he may be allowed extraordinary leave of absence. His request was not conceded whereupon he finally sent them a telegram that he would be joining on 16.8.1982, but before the said date could come up, his services (lien) were terminated by order dated 5.8.1982 taking effect from a back date, that is 27.3.1980.
3. He preferred a departmental appeal which was still pending when he brought the present civil suit assailing validity thereof on the ground that it offended against the Punjab (Efficiency & Discipline) Rules, 1975,which applied to his case by virtue of Regulation No.22(ii) of the Lahore Development Authority(Appointment & Conditions of Service) Regulations, 1978. He added termination of a lien was no penalty provided either in the E&D Rules or in the LDA's own Regulations; that he was condemned unheard inasmuch as he was denied an opportunity of personal hearing, was punished for no fault of his, in that his foreign employer did not permit him to come back earlier; that under the relevant policy he was denied the right to exercise option either to resign or to face action under the E&D Rules 1975, that the petitioner L.D A. Having initiated action under the E&D Rules in the first instance could not later change horses in the midstream by resorting to lien clause which was neither here nor there; that he was denied promotion qua his juniors making the order to be coram non judice; and lastly, that the order having been made to take effect retrospectively was bad in law.
4. The suit was contested by the petitioner L.DA. Justifying the impugned action. Their stance was that though the E&D Rules applied to him, yet he was their employee at the relevant the and hence instead of dismissing his service, his lien was terminated. They claimed that such action was "very much under the E&D Rules and in accordance with the policy letter dated 27.2.1982". Presumably for this reason they maintained that the was no cause of action to sustain the suit.
5. The trial Court framed the following issues:-
1. Whether the plaintiff has no cause of action to file this suit? O.P.D.2. Whether the order dated 5.8.1982 passed by Managing Director,WASA is illegal, ultra vires and inoperative? O.P.P.3. Relief.It decreed the suit holding mainly that the type of termination of lien was not countenanced by the Statute or the Rules applicable to the respondent plaintiff and that the order was nullity in law. The L.D A's appeal as well as that of the rival officers, both failed and hence the present two revision petitions.
6. The crucial question was whether the petitioner's employees were governed by the principle of master and servant or in contradistinction thereto, by the statutory rules giving them a right of action against any violation thereof. Mr.Shahid Hamid for the petitioner-Authority placed reliance upon section 11 of the Lahore Development Authority Act, 1975, claiming unlimited powers for it to determine terms and conditions for its employees as it may deem fit. The section runs as under:- "11. The Authority may appoint such officers, advisors, experts, consultants and employees, as it considers necessary for the efficient performance of its functions on such terms and conditions as it may deem fit."
According to him, the petitioner-Authority could terminate the respondent's services in exercise of the powers given by the Statute itself and,therefore, there was no question of putting any fetters on it though the medium of either the Rules to be framed by the Provincial Government under section 44, or the Regulations to be made by the Authority itself under section 45 of the Act. In the alternative he maintained that Regulation No.22 of the Lahore Development Authority (Appointment & Conditions of Service) Regulations, 1978, though made the Punjab Civil Servants (Efficiency & Discipline) Rules,1975 applicable to the employees of the petitioner, yet it was framed by the Authority itself and would be deemed to be non statutory so that its violation, if any, would not create a right for the respondent to bring action at law. He sought support in this behalf from Hamid Mukhtar Piracha v. Faisalabad Development Authority, Faisalabad (1984 P.S.C.42),The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (1984 P.S.C.176), Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194), Maqsood Ahmad and 10 others v. Lahore Development Authority and another (1987 S.C. M.R.1086) and Mst.Maryam Yunus v. Director of Education Cantonment, G.H.Q., Rawalpindi and 2 others (PLD 1990 S.C.666). Explaining the facts Of the Hamid Mukhtar Piracha's case he submitted that section 9 of the Punjab Development of Cities Act, 1976, whereunder the Faisalabad Development Authority was constituted, was pari materia with section 11 of the LDA. Act, 1975, so that its ratio would be equally applicable to the present case, he submitted that employees under the Faisalabad Development Authority in that case were held to be governed by domestic rules made by the Authority without approval of the Government and that infraction thereof was not actionable at law. Additionally he invoked section 43 of the LDA Act claiming that the Civil Court had no jurisdiction to call in question legality of anything done thereunder by it. Lastly, he asserted that Fundamental Rule No.18 of the Federal Government authorised termination of services of an employee and that it was not open to the respondent to assail its validity.
7. Opposing the above points Ch. Riyasat Ali, counsel for the respondent drew attention to the notice at page 151 maintaining that since the Efficiency & Discipline Rules, 1975 were invoked to initiate proceedings against him, it was not open to the Authority now to state that they had taken up the proceedings purely under Regulation No.22. He added that even if it were accepted that Regulation No.22 was a domestic rule, its application had to be bona fide and that exercising power thereunder in a malafide manner would not be upheld. He relied upon the respondent's statement as witness wherein he gave some detail how he was discriminated vis-a-vis some other officials of the petitioner LDA. Whose period of deputation abroad had far exceeded the duration of 5 years and yet their services were not terminated. Additionally, he claimed that there was no question of applying Fundamental Rule 18 inasmuch as it dealt with only "continuous absence from duty" rather than deputation, length of its period to be fixed essentially with the consent of borrowing as also lending departments,lien of a servant to hold a permanent post, and its termination etc. He tried to distinguish the Mst. Maryam Yunus's case where the lady had not been sent officially on deputation and was trying to prolong her stay abroad on one pretext or the other.
He emphasized that going abroad officially on deputation was entirely different from going privately on leave and then trying to get it extended again and again. He referred to F.R.9(3), F.R.14.F.R.14-A and F.R.51-A in support of his contention that the above expressions were not mere terms of at, but had legal implications which could not be brushed aside by merely styling the respondent's stay abroad as "continuous absence from duty". As for claiming protection on the ground of domestic rule, he cited Rana Muhammad Sarwar v. Govt, of Punjab through Services, General Administration and Information Department and another (1990 S.C. M.R.999), Government of Punjab through Secretary Health, Lahore and 2 others v. Zahid Beg (1990 S.C,M.R. 1970) and the K.D A's case, where the plea of master and servant was spurned away and the action was struck down.
8. Since the K.D A's case appears to be the latest on the point, it will be worth its while to consider its implications in some detail. Its relevant portion reads:- " The recent trend of authority in this Court seems to be in favour of the proposition that even where untrammeled power of removal from service under a statute has been conferred on a statutory Corporation or body, without assigning any reason the exercise of such power to be immune from judicial scrutiny, must be accompanied by absence of the taint of malafides. In other words, any statutory power of removal from services of a body constitutes) under the statute to be free from challenge must be the result of a bona fide exercise of such power...."
It also took into account the case of Agricultural Development Bank of Pakistan and 2 others v.
Muhammad Sharif (1988 S.C.M.R. 597) wherefrom the following quotation was borrowed.
" We find that the authorities decisions of this Court have consistently conceded such a power to the competent authority, of course, not as if it is shown to be malafide either in fact or in law.", The K.D A's case having been decided in favour of the employee, reaffirmed the rule that the untrammeled power of removing from service without assigning reason conferred upon statutory bodies could be assailed in constitutional jurisdiction. In other words, no immunity or protection could be claimed for it on the ground of relationship of the master and servant.
9. Mr.Shahid Hamid, counsel for the petitioner L.DA. In reply maintained that the plea of malafides was not taken up in the plaint, nor was any issue thereabout framed and that introducing it at such a late stage was taking them by surprise. Assuming this were so, the respondent's attorney specifically pointed out in his testimony as P.W.l (P.191 to 197 better copy) that he was removed malafide; no objection was raised at the relevant the to introducing this aspect in his deposition, nor was he cross examined on the point, meaning thereby that his assertion virtually stood admitted. Mst. Nazeer Begum and others Vs. Abdul Sattar (PLD 1963 (W.P) Karachi 465) and Qasim and others Vs. The State (PLD 1967 Karachi 233) were authorities permitting to draw such a conclusion against the party failing to raise such objections. It will have been seen that the order could be assailed on the basis of malafides either in fact or in law. This was clearly stated in Malik Ghulam Mustafa Khan etc. v. Pakistan etc. (PLD 1988 Lahore 49). While malafide in fact may be a question of fact, malafide in law as construed in the above mentioned authority means to arrogate power by a public authority not conferred upon it by law. Here the plaint clearly stated that the petitioner L.D A. Wrongly invoked power to remove the respondent from service by the so-called termination of his lien. There was considerable substance in stating that the ground of malafide in law was pleaded against the termination of the respondent's service. F.R.18 invoked by the petitioner had no application inasmuch as it did not deal with deputation, nor lien, nor consent of the two departments concerned with the arrangement. Admittedly the respondent had gone abroad officially on deputation^ could not be termed as absence from duty. Conversely it was a foreign service as defined in F.R.9(7) subject to the respondent's lien as contemplated by F.R.9(13) and was extendable till the the the respondent could resume duty in Pakistan. F.R.51-A applied, A Note thereunder dealing with deputation may be reproduced with advantage:- "Audit Instructions.
The period of the deputation runs from the date on which the Government servant makes over charge of his office in Pakistan to the date on which he resumes it;.."
It was not denied that herein Pakistan, the respondent was a permanent employee. Obviously he had a lien (right) to retain one permanent post unless his lien thereabout was suspended under F.Rs.13 and 14 or terminated under F.R.14- A-the last mentioned Rule was most stringent than others inasmuch as it did not permit termination of a Government servant's lien "even with his consent if the result will be to leave him without a lien or a suspended lien upon a permanent post". What is noticeable is that even a servant's consent was not permitted when things came to terminating his lien leaving him- with no post. There was no indication if the respondent's lien was formally suspended or his right to retain a permanent post in Pakistan on return was safeguarded.
Obviously, if the result of the impugned termination of lien was to leave him without such a right to a permanent post, action will be repugnant to F.R.14-A and bad in law.
10. The second limb of the concept of deputation, lien and termination thereof, involved consent of the lending and borrowing departments. Notes recorded under F.R.13 dealt with this subject, they read as under:- Convention in regard to the terms and conditions of service of Government servants on deputation.The lending Government, accordingly, have a right to determine in consultation with the borrowing Government the terms of his employment under the latter, and these terms should not be varied by the borrowing Government without consulting the lending Government".
The respondent admittedly was sent on deputation abroad through the Ministry of Foreign Affairs.
The borrowing Government, namely Saudi Arabia had to be consulted before terminating his period of deputation. There was no concept of fixing this period to 5 years as mentioned in F.R.18 or styling the same to be absence from duty. I should say the argument was misconceived if not preposterous. The respondent had been crying hoarse that the Ministry of Defence of Saudi Arabia with which he was attached, was not permitting him to come back. Even a letter from that Ministry was placed upon the record whereby extension of his stay in Saudi Arabia was sought, but the petitioner L.DA. In its bearcoratic way did not think proper even to consult the borrowing Department or to take into confidence the Ministry of Foreign Affairs through whose aegis the respondent was sent abroad on terms settled with the Saudian Government. Convention quoted above,made such consultation compulsory. It does not perceive one sided action at the instance of the lending Department. The petitioner L.DA.Obviously violated the Convention while calling back the respondent arbitrarily as if he was guilty of "continuous absence from duty." Deputation continues till the Government servant resumes duty in his parent Department.In the note recorded under F.R.51-A it is nowhere in these Rules that an officer sitting abroad performing foreign service as defined in F.R.9(7) could be removed from his job without allowing him to resume his duty against his post in the borrowing Department. Looking at the action from this angle, I have no hesitation to hold that it was incomplete travesty of the fundamental Rules, if at all. Those could have been chosen by the petitioner to invoke against the respondent. Reliance upon the Maryam Younus's case was totally inapt as she had not been sent officially on deputation. She was availing leave of absence obviously after expiry whereof she had to be dubbed as a servant continuously absent from duty. Her case was no parity with the present one.
11. Last but not the least was the fact that the administrative at of terminating services of the respondent was given a retrospective effect. The order was passed on 5.8.11982, but it was given effect to from 27.3.1980. It cannot be sustained in law. The order was penal in nature and could have been passed only prospectively. This was a patent illegality going to the root of the order.
Reliance in this behalf was rightly placed upon Mian Munawar-ud-Din v. Federation of Pakistan through the Secretary Federal Ministry of Communication, Islamabad (PLD 1979 Lahore 699) which struck down the executive at when it tended to take affect from a back date.
12. For the foregoing reasons, there is no merit in the revision petitions and the both are dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.