JUSTICE (RTD) MUNAWAR ALI KHAN (CHAIRMAN).- In this appeal, Rabdino Hingoro has called in question the notification dated 13th December, 1990 of the Labour and Transport Department, Govt.of Sind, whereby the said appellant has been transferred back to his original post of Cess/Taxation Officer (BS-17) from the post of Assistant Commissioner, Mines Labour Welfare Organization Sind, (BS-17).
2. The factual background leading to the issuance of the impugned notification, as has been described in the memo of his appeal, may briefly be summarized as follows. The appellant was holding the post of Superintendent (BS-16) in the Inspectorate of Mines, Sind, when he was promoted as Cess/Taxation Officer (BS-17) initially on ad hoc basis. Following the recommendations of the Departmental Promotion Committee, his promotion was regularized w.e.f.1.7.1986 vide Labour Department's Notification No. Lab(1)1- 3/85, dated 31st July, 1986. Somehow the Chief Inspector of Mines, Sind was not happy over the appellant's said promotion, so much so that he started victimising the appellant in different ways, until he got rid of him by getting him transferred ns Assistant Commissioner, Mines, Labour Welfare Organization Sind, vide the order dated 14.11.1987 of the Minister, Labour read with Labour Department's Notification No. Lab-(1)2-1/89, dated 8th March, 1989. The appellant's claim is that on his representation the latter notification was subsequently amended by the said department's notification dated 31st October, 1989, whereby the words "on deputation" were replaced by the words "by transfer" and the words "deputation allowance 10 per cent of the minimum basic scale" were deleted. In consequence of the above amendments, the appellant took his induction in the post of Assistant Commissioner Mines Labour Welfare as appointment by transfer in the prescribed manner and not as a simple transfer. The appellant claims to have performed the duties of his new assignment to the best of his ability and to the entire Satisfaction of his superiors. Despite that, the Secretary, Labour Department, by his Notification No. Lab(1)2-1/89, dated 13th December, 1990, repatriated the appellant to his original post of Cess/Taxation Officer (BS-17). The appellant challenged the impugned notification in the departmental appeal dated 13.1.1991 filed before the Chief Secretary and after waiting for 90 days period for decision thereon he approached this Tribunal in the present appeal filed on 2.5.1991, seeking the desired relief.
We heard the arguments of the learned counsel for the parties and with their assistance went through all the relevant documents.
The transfer order against which the appellant has grievance is reproduced as under: "With approval of the competent authority, Mr. Rabdino "Rabnawaz"Hingoro, Assistant Commissioner (BS-17), Mines Labour Welfare Organization, Sind, Karachi is transferred and posted as Cess/Taxation Officer (BS-17) in the Inspectorate of Mines, Sind with immediate effect".
The learned counsel for the appellant assailed the above order on various grounds. However, his main contentions were two-fold: firstly that the order was violative of the law and rules and instructions issued from the to the and secondly that it was mala fide. Taking up his first contention we may refer to Section 10 of the Sind Civil Servants Act 1973 (hereinafter referred as the said Act), which reads as under:- authority of competent jurisdiction, it was not open to respondent No.1 to have passed any order in disregard of the restraint imposed upon it. The order dated 14th September, 1990 is, therefore, clearly without any lawful authority.
9. There is also merit in the stand of the petitioner that the order of 14th of September, 1990 has been passed with unholy haste which speaks volumes of the malafide of respondent No.1 Admitted position between the parties is that on an objection raised by the petitioner the enquiry officer originally appointed namely Mr. Aftab Rabani was removed, and in his place another enquiry officer was appointed on 12th of September, 1990. The petitioner was on medical leave on 12th as well as on 13th of September, 1990 while 14th of September, 1990 was Friday. It is thus really strange that after his appointment on 12th of September 1990, the enquiry officer held an enquiry in absence of the petitioner and submitted his report on the next day i.e. 13th of September, 1990 which was a Friday. As already mentioned it is admitted in the written statement that on 12th and 13th of September, 1990 the petitioner was on leave. Obviously, therefore, the enquiry officer could not have proceeded in his absence.
10. It is not discernible from the record as to what evidence was recorded and what proceedings were conducted by the enquiry officer but in his report it has been stated that he had recorded the statement of Establishment Officer who had refused the stand of the petitioner that the amount of Rs.13,00,000/- received by him was paid to Nasir Printers. It is also noted in the report that Kar am Hussain petitioner was summoned by him through Mohammad Shaft Naz but reportedly he said that he would not appear before any enquiry officer.
11. The contents of the enquiry report are believed by the fact that the petitioner was admittedly on medical leave on 12th and 13th of September, 1990 which fact has not been denied in the written statement. Additionally while coming to the conclusion that the petitioner had not explained that a sum of Rs.13,00,000/- which was received by him through two cheques under the orders of the then Executive Officer namely Mr. Mumtaz Ahmad, it appears that the enquiry officer did not care to consult the relevant record. From the documents placed as Annexures XVI, XVII, XVIH, it is evident that M/S. Nisar Printers had approached the Ombudsman with the complaint that it was not being paid the balance of its bill. Before the Ombudsman, the stand taken by the National Press Trust, which is the governing body of respondent No.1, was that a sum of Rs.13,00,000/- had been paid to M/S Nasir Printers who had acknowledged the same in its letter dated 15th October, 1990. In face of this clear admission, the amount of Rs.13,00,000/- stood fully accounted for and there was no justification for respondent No.1 to have proceeded to dismiss the petitioner for misappropriation of the aforesaid amount.
12. It is also to be noted that after the receipt of the enquiry report, even according to respondent No.1 himself, the petitioner was never granted any opportunity of being heard. In fact from the circumstances of the present case and the record the conclusion which is inevitable is that respondent No.1, for reasons best known to it, was acting in the case with undue haste. The enquiry officer was appointed on 12th September, 1990. The enquiry report is said to have been msubmitted on 13th September, 1990 and the order of dismissal was passed on 14th September, 1990 notwithstanding the fact that it was a Friday and therefore, a weekly holiday and also that the petitioner was on medical leave.
13. Reverting now to the objection as to the maintainability of this petition raised by the learned counsel for respondent No.1 the question as to whether the services of the petitioner were governed by the principle of Master and Servant may be attended to. It is settled law that if the services of an employee are not governed by either a statute or the statutory rules, the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 cannot be invoked but if there be some statutory provision in the Act or the Rules and the impugned order is shown to have been passed in disregard of the same, it can be challenged under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
14. There is no dispute that the petitioner is an employee of a newspaper establishment namely daily Mashriq. His services are therefore, governed by the provision Newspaper Employees (Conditions of Service) Act LVIII) 1973. According to section 4 of this Act the services of a newspaper employee cannot be terminated by a newspaper establishment without good cause shown through a notice in writing of such termination, 'pie learned counsel for respondent No.1 argued that this provision is applicable only in cases where the services of an employee are being terminated without there being any misconduct on his part and it has no application where an employee was being dismissed from service on account of some fault on his part. The restricted interpretation being placed by the learned counsel on section 4 is not countenanced by its language and there is no reason as to why the expression "shall not be terminated without good cause" to be interpreted in the manner suggested Dy the learned counsel so as to confine the application thereof only to cases of termination or simpliciter.
15. In the present case as already held, there are no good reasons for terminating the service of the petitioner and there has been an obvious violation of section 4 of Newspaper Employees(Conditions of Service) Act, 1973. The impugned- order can be removed through power of judicial review vested in this Court under Article 199 of the Constitution.
16. So far as the contention of the Learned counsel that respondent No.1 being a private limited company is not amenable to the jurisdiction of this Court as it is not a person performing functions in connection with the affairs of the Federation or a Province, it is to be seen that all the shares of respondent No.1 vest in the National Press Trust which in terms is controlled by the Federal Government under the provisions of the National Press Trust Ordinance, 1960. The Chairman of the National Press Trust respondent No.2 is appointed by the President and Head Office pray his pleasure. The Chief Executive of respondent No.1 company is in tum appointed by the Chairman.
The entire share holding also vest in the Government. If these circumstances respondent No.1 appears to be an instrument/agency of the Government and a constitutional petition can be maintained against it. This view find support from the authority of this Court in Javed Iqbal and two others vs. F.IA. And 3 others (PLD 1986 Lahore 424). The "10.Every civil servant shall be liable to serve anywhere within or outside the Province in any post under Government, Federal Government, or any Provincial Government or local authority or corporation or body set-up or establishes by any such Government: Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region: Provided further that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve".
3. The above section clearly shows that the appellant being a civil servant was liable to be transferred anywhere including the post under Federal Government or any other Provincial Government or even a local authority, body or corporation, unless he was recruited to serve in particular area or region. The only protection provided to the transferee by the above section is that in case he was required to serve outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled, if he had not been so transferred. Admittedly by virtue of the impugned order the appellant has not been transferred outside the area or region for which he was recruited. On the contrary both the institutions one in which his shifting took place are functioning under the administrative control of the same department namely Labour Department of the Provincial Government of Sind. He has also no complaint with regard to payment of his salary at the new place of posting. Moreover in consequence of his impugned transfer, the appellant has reverted to his original post to which he was substantively appointed by promotion on regular basis. In this connection reference may be made to Labour Department's notification dated 31st July, 1986 which reads as under:- "No. Lab(I) 1-385.- On the recommendation of the Departmental Promotion Committee for Inspectorate of Mines, Sind and with the approval of the competent authority the ad hoc promotion of Mr. Rabdino "Rabnawaz" Hingoro from the post of Superintendent (BS-16) to the post of Cess Office Taxation Officer (BS-17) in the Inspectorate of Mines, Sind is hereby regularized w.e.f. 1.7.1986 ."
However the appellant's learned counsel contended that the appellant had served his connections with the post of Cess/Taxation Officer for good and was permanently absorbed in the post of Assistant Commissioner, Mines Labour Welfare Organization by way of "appointment by transfer" and as such he could not be repatriated to his original post. In support of his argument he placed reliance on Rule 9 (I) of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules 1974 (hereinafter referred as 1974-rules). The said rule reads as under: "9(1) Appointment by transfer shall be made from amongst the persons-holding appointment on regular basis in the same grade in which the post to be filled exists"
It is true that as required by the above rule, the appellant was holding the post of Cess/Taxation Officer (BS-17) on regular basis when he was transferred and posted as Assistant Commissioner, Mines, Labour Welfare (BS-17). But the question arises if the appellants posting as Assistant Commissioner was merely a transfer simpliciter or it amounted to his permanent absorption in the said post. For examining this question, we should first take note of the appellant's own case as stated in his memo of appeal, while complaining against the Chief Inspector's prejudice against his promotion to the post of Cess/Taxation Officer in paras 2 & 3 of his memo of appeal, the appellant has raised the following plea in para 3 of the said memo of appeal: "In the month of February, 1987 the said Chief Inspector of Mines resorting to political manoeuvres got issued the orders by the then Minister, Labour, Sind, whereby, inter alia, the appellant was transferred from the post of Cess/T axation Officer to the post of Assistant Commissioner. Mines Labour Welfare Organization, Sindh".
The appellant's above assertion is clearly indicative of two things: first, his transfer as Assistant Commissioner was without his consent, second, his said transfer was as if in the nature of punishment. Thus keeping the appellant's own plea in view, it cannot be held that he was permanently absorbed in the post of Assistant Commissioner. The additional reason for this finding would be that permanent absorption cannot be made without the consent of the person concerned,
4. Apart from above, let us have a look at the notification whereby he claims to have been appointed by transfer to the post of Assistant Commissioner, Mines Labour Welfare. It is dated 8th March, 1989 and reads as under:- "No. Lab(I)2-(1)89.- The Government of Sind are pleased to appoint Mr. Rabnawaz Hingoro, Cess/Taxation Officer(BS-17), Inspectorate of Mines, Sind, Karachi on deputation to the post of Assistant Commissioner(BS-17), Mines Labour Welfare Organization, Sind, Karachi relieving Mr. Khawaja Samiul Hasan of the charge of the post. The deputation of Mr. Rabnawaz Hingoro will be initially for a period of one year w.e.f, the date he takes over, on the following terms and conditions:-
1. Pay As admissible in the parent Department from the to time
2. Deputation Allowance.
10% of the minimum of his Basic Pay Scale.
3. Travelling Allowance.
As per Government of Sind Rules.
4. Conveyance. --do--
5. Residential Facilities. --do--
6. Medical Facilities. --do--
7. Leave Salary and pension contribution.
To be borne by the Governement of Sindh.
8. Joining time pay and on transfer.
Payable by the Organization.
It would be obvious that by the above notification the appellant was appointed as Assistant Commissioner, Mines, Labour Welfare on deputation for a limited period of one year. No doubt the above notification was subsequently amended by Labour Department's Notification dated 31st October, 1989. As per amendments made in the latter notification, the appellant's appointment in the post of Assistant Commissioner came to be treated as appointment by transfer instead of appointment on deputation and the benefit of payment of deputation allowance was disallowed.
Basing his arguments on the above amendments, the appellant's learned counsel was vociferous in emphasising that the said amendments clearly pointed to the appellant's permanent absorption in the said post.
5. We regret our inability to agree with the above line of reasoning. We have come across the observations memo dated 25-28/5/89 of the Accounts Officer of Accountant General's office which shows that while returning the appellant's salary bill for his new assignment unpassed, it was remarked that"the officer (appellant) has been transferred from one office to another office of the same Department and same Govt. Deputation allowance was, therefore, not admissible to him". It would appear that above amendments which the appellant's learned counsel have exploited to the appellant's advantage were actually made in the wake of the objections raised by the Accountant General's office. The said office was right in pointing out that the appellant's transfer as Assistant Commissioner was a simple transfer from one office to another. As such the question of his fresh appointment in the new post did not arise. Even otherwise, as has already been pointed out, for permanent absorption in the new post, the consent of the appellant was essential. He could not be absorbed on permanent basis in the new post without obtaining his prior consent. But the same was conspicuously missing. According to appellant's own case, the Chief Inspector Mines had maneuvered to get his order of appointment as Assistant Commissioner issued. Thus it was issued without his consent and knowledge. Not only that but he took his transfer as a sort of punishment emanating from prejudice and bias of the Chief Inspector. Moreover as provided in rule 7(2) of the 1974-rules appointment by promotion or transfer to post in grade-17 is made on recommendations of the relevant Departmental Promotion Committee. It is not the appellant's case that he was ever cleared by any such committee for his appointment to the post of Assistant Commissioner. Further more if the intention was to permanently absorb the appellant in the Assistant Commissioner post, the appointment should not have been limited to one year as was mentioned in the notification of the appointment. For these reasons we are of the view that the appellant's appointment as Assistant Commissioner, Mines Labour Welfare was a transfer simpliciter and not his permanent absorption in the said post.
Assuming for the sake of arguments that the appellant's appointment as the said Assistant Commissioner, was intended to absorb him in the said post on permanent basis, yet his appointment was neither regularized with approval of the relevant Departments Promotion Committee nor was he confirmed in the new post. In such circumstances, the appellant could always be repatriated to his original parent post. Consequently the impugned order of his repatriation was perfectly legal and no exception could be taken from it. The Chief Minister's ban on postings and transfers relied upon by the appellant's learned counsel would also not help the appellant. It would appear from the Chief Minister's order dated 8th January, 1991 that the bank was neither total nor absolute. There was obviously scope in the order for making transfers in certain circumstances. Moreover the order of the ban was indirect. Therefore the said orders could not be held to bar the appellant's repatriation to his original post.
6. The next objection raised by the appellant's learned counsel, in course of his arguments, was that the impugned order was mala fide. There was hardly any evidence on record to establish such contention. As pointed out above even the appellant himself has been inconsistent on the question of mala fide. On one hand he tried to show that Chief Inspector was so prejudiced against him that he got him transferred from the post of Cess/Taxation Officer to that of / distant Commissioner, Mines, Labour Welfare as if against his wishes. It is rather surprising that he has attributed even his repatriation to the original post to the animosity of the said Chief Inspector. If he was really displeased with the appellant, he should have been satisfied with his efforts by which he successfully got rid of him by getting him shifted from the post of Cess/Taxation Officer to that of Assistant Commissioner, Mines Labour Welfare. How could it be believed that the same Chief Inspector had hand even in the appellant's repatriation to his original post. That is to say that he once against invited trouble for himself by bringing the appellant back to his original post.
Accordingly the arguments with regard to mala fide were patently without any force.
In view of above discussion, the appeal is dismissed with no order as to costs.
Given under our hands and the seal of this Tribunal on this 19th day of December, 1991 at Karachi.