' AJMAL MIAN, J.---This is an appeal with the leave of the Court against the judgment dated 17-1- 1989 passed by a learned Single Judge of the High Court of Sindh in Second Civil Appeal No,46 of 1972, filed by the appellants, dismissing the same and maintaining. The judgment and decree of the learned District Judge, Khairpur, dated 9-10-1972 passed by him in respondent's Civil Appeal No,71 of 1969, decreeing his suit for declaration and permanent injunction, which was dismissed by the learned Civil Judge, IInd Class, Khairpur, on 25-4-1969. Leave to appeal was granted to consider the following questions:--
(i) Whether the West Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1966 qualify as statutory rules of service in view of the decisions in Sub. Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194 and Ch. Abdul Rashid v. Capital Development Authority, Islamabad and another PLD 1979 Lah. 803?
(ii) Whether contravention of non-statutory rules of service can afford a ground for maintaining a civil suit concerning the employment?
(iii) Whether on the facts and circumstances of the case no noncompliance with the provisions of West Pakistan WAPDA Employees (Efficiency and Discipline) Rules, had in fact taken place?
2. The facts to be noted are that the respondent joined WAPDA service as a temporary Junior Clerk on 19-104959. He was promoted as a temporary Stenographer with effect from 1-3-1960. On 1-6- 1966 he was transferred to the office of the Manager, Task Force, Khairpur. It seems that the respondent, instead of reporting for duty, proceeded on three months earned leave and joined duty on 9-9-1966. From 10-9-1966 the respondent applied for 3 days casual leave but he availed of up to 14-12-1966 on one or the other pretext. Again on 1642-1966, he proceeded on leave up to 5-1- 1967. The respondent once again applied for three months leave with effect from 1-4-1967 on medical ground but it was refused on 26-3-1967. It appears that on 1-4-1967, the respondent received salary and proceeded on casual leave from 3-4-1967 to 7-4-1967. Again on 7-4-1967, he applied for three months leave on medical ground. Thereupon, he was directed to appear before the Civil Surgeon, Sukkur, but he did not appear and remained absent. On 10-6-1967, he was charge-sheeted and the charge-sheet was sent to him under registered acknowledgment due, but he refused to take delivery of the same although the postal authorities made four attempts to serve him on 12-6-1967, 15-6-1967, 17-6-1967 and 19-6-1967. Consequently, the registered acknowledgment due letter containing the charge-sheet addressed to the respondent, was returned by the postal authorities with the endorsement "refused to take delivery". Thereupon, the respondent's services were terminated with effect from 7-4-1967. After that, the respondent filed on 22-1-1968 Suit No,23 of 1968 for declaration and permanent injunction. The above suit was resisted by the appellants and inter alia it was pleaded that the relationship between the appellants and the respondent was that of master and servant. On the basis of pleadings of the parties, as many as 10 issues were framed. The learned trial Court, after recording the evidence, by its judgment dated 25-4-1969 dismissed the same. Thereupon, the respondent filed Civil Appeal No,71 of 1969, which was allowed by the learned District Judge, Khairpur, through the judgment dated 9-10-1972 and the suit was decreed and the appellants were directed to reinstate the respondent from the date of his wrongful dismissal. Against the above judgment/decree, the appellants filed aforesaid second appeal, which was dismissed by the learned Judge in chambers. After that, the appellants filed a petition for leave to appeal, which was granted to consider the above questions.
3. In support of the above appeal, Mr. Makhdoom Ali Khan learned A.S.C. Appearing for the appellants, has urged that at the relevant time, the West Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1966, hereinafter referred to as the Rules, which were applicable, did not have the status of statutory rules and, therefore, the respondent could not have claimed the relief of re- instatement, and the remedy, if any, of the respondent was to claim damages for the alleged wrongful dismissal as the relationship between the appellants and respondent was that of master and servant.
' On the other hand, Mr. Manzoor Ali Khan, learned A.S.C. Appearing for the respondent, has contended, firstly, that before the first appellate Court the appellants had not pressed the issue as to the maintainability of the suit on the ground that the relationship between the appellants and respondent was that of master and servant, and secondly, since the Rules were framed under section 18 of the West Pakistan Water and Power Development Authority Act, 1958, hereinafter referred to as the Act, they were statutory rules.
4. Before touching upon the status of the Rules, we may deal with the first submission of Mr. Manzoor Ali Khan, in furtherance whereof he has invited our attention to the following portion of the judgment of the first appellate Court:- "A number of issues were framed in the lower Court but the counsel for the parties have agreed to argue only on the following issue:-- ' Whether the appellant has been wrongfully dismissed in violation of WAPDA Rules?"
' On the basis of the above-quoted portion of the judgment of the first appellate Court, it has been urged by Mr. Manzoor Ali Khan that it is not open to the appellants to urge that the suit was not maintainable as framed, as the relationship between the appellants and respondent was that of master and servant.
5. The above contention seems to be untenable as at page 32 of the paper book, the question in issue has been touched upon in the judgment of the first Appellate Court, which reads as follows:-- "This means that the statutory body employees if dismissed can seek redress from a Civil Court.
Ordinarily the relationship between the statutory body and its employees is governed by the law relating to master and servant and the Constitutional guarantees are not available to such an employee because he is not a public servant, but where the relationship has been regulated by a statute or statutory rules the latter must govern it and the law Courts are bound to grant redress where the rights of either party have been adversely affected in contravention of the provisions."
' The High Court has also referred to the above question in the judgment under appeal and, therefore, it is not correct to urge that the above point was not pressed by the appellants.
6. Adverting to the above second submission of the learned counsel for the parties, it may be pertinent to observe that the Rules have been framed under section 18 of the Act as stated hereinabove. It may be advantageous to reproduce above section 18 of the Act, which reads as follows:-- "18. The Authority shall prescribe the procedure for appointment and terms and conditions of service of its officers and servants, and shall be competent to take disciplinary action against its officers and servants."
7. A perusal of the above section indicates that it provides that the Authority shall prescribe procedure for appointment and terms and conditions of service of its officers and servants, and it shall be competent to take disciplinary action against its officers and servants. The above section does not contemplate framing of any statutory rules nor it contemplates that the prescribed procedure for the matters referred to therein is to be framed with the approval of the Government.
However, Mr. Manzoor All Khan has referred to section 29 of the Act, which reads as follows:-- "29. For the purpose of carrying into effect the provisions of this Act, the Authority may, with the approval of the Government, frame such Regulations as it may consider necessary or expedient."
' A plain reading of the above section indicates that it has provided that the Authority may with the approval of the Government, for the purpose of carrying into effect the provisions of the Act, frame such Regulations as it may consider necessary or expedient. The above section, in our view, cannot be pressed into service as admittedly the Rules have not been framed under the above section, nor any approval has been obtained for the Rules. In this view of the matter, the question arises, what is the status of the Rules?
8. Mr. Makhdoom Ali Khan has referred to the following cases:--
(i) Muhammad Yousuf Shah v. Pakistan International Airlines Corporation (PLD 1981 SC 224); ' in which this Court, while dismissing an appeal filed by an employee of P.IA., held that the Service Code published by the Corporation were mere instructions for guidance of its officers for their internal use and were directory and not immutable.
(ii) The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi (PLD 1984 SC 170); In the above case, the Board of Governors of the Cadet College, Kohat, instead of having rules or regulations framed under sections 17 and 18 of the West Pakistan Government Educational and Training Institutions Ordinance, 1960 (Ordinance XI of 1960), framed some rules themselves for governing the appointment, promotion, retirement, termination and dismissal of the staff. It may be observed that section 17 empowered the Government to frame the rules, whereas section 18 empowered the Board to frame regulations with the approval of the Government. It was held that the above rules framed by the Board had no statutory force and, therefore, the respondents were not entitled to maintain Constitutional petition for the relief of re-instatement.
(iii) Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194); ' in which the question before this Court in a petition for leave to appeal was, whether the relationship between the Agricultural Developmant Bank of Pakistan and its employees was that of master and servant or was subject to the statutory rules. After referring to the relevant provisions, the following view was taken:-- "7. The Agricultural Development Bank of Pakistan Ordinance (IV of 1961) whereby the respondent Bank was created has left the question of appointment and terms of its employees to the Bank itself. The relevant provisions are contained in section 30 and section 39 which read as follows:-- ' Section 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 operations on such terms and conditions as may be prescribed by regulations.
' Section 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 provision of subsection (1) the regulations may provide for--
(a) to (d) .............
(e) The recruitment of the employees of the Bank, the terms and conditions of their service, the constitutions and management of Provident Funds for the employees of the Bank and all other matters connected with any of these things;
(f) The duties and conduct of employees and agents;
(g) and (h) ............
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."
' It may also the instructive to reproduce the relevant observation from para.4 of the judgment which has direct bearing on the question in issue. And which reads as follows:-- "Where a corporation is set up by a statute but the Government does not reserve to itself power to regulate the conditions of service of the employees under the corporation and the statute itself also does not prescribe any condition but leaves the matter entirely in the discretion of the corporation. Who is given the power to frame rules and regulations in that regard so that the employee is left with no protection under the statute itself, then the corporation must be held to be the sole arbiter in the matter of prescribing the terms and conditions of its employees and competent to deal with them in accordance with the terms and conditions so prescribed by it. In such situation the employee cannot claim to be a person possessed of any legal character within the meaning of section 42 of the Specific Relief Act and in case of his wrongful dismissal from or termination of service, the principle of master and servant will fully apply and he can only claim damages but not reinstatement to his post."
(iv) National Bank of Pakistan v. Sindh Labour Appellate Tribunal, etc. (1990 PLC 197); In the above case, a Division Bench of the Sindh High Court to which one of us (Ajmal Mian, J.) was a member, while construing National Bank of Pakistan (Staff) Service Rules, 1973, held that since they were framed by the Board of Governors of the Bank without the approval of the Government, the same could at the most be construed as departmental instructions.
' On the other hand, Mr. Manzoor Ali Khan has referred to the following cases:--
(i) National Bank of Pakistan v. Manzoorul Hassan (1989 SCMR 842); in which he has relied upon para. 4, which reads as follows:-- "4. It has been contended on behalf of the appellant that the Staff Service Rules not having been framed by virtue of the delegated rule making power vesting in the Central Board under section 32 of the Ordinance, these rules do not have effect as statutory rules but are only instructions for the guidance of the Officers of the Bank in regard to the internal management of the Bank administration. There is no doubt that as previously observed, the National Bank of Pakistan (Staff)
Service Rules purport to be rules made by the Central Board under Bye-Law 18 of the National Bank of Pakistan Bye-Laws.
' However, in our view this fact makes no material difference as to the effect of these rules. The vires or the legal effect of the rules cannot be judged by the mere form in which the rules are framed or the title by which they arc called. In substance and in legal effect the said Service Rules for all intents and purposes are Bye-Laws framed under section 32 of the Ordinance. The legal requirements for giving effect to the subordinate legislation contemplated under section 32 have been complied with in framing the Service Rules, inasmuch as, the rules have been framed by the Central Board and it is not denied that the prior approval of the Central Government was accorded."
(ii) Muhammad Mumtaz Javed v. Pakistan through Secretary, Ministry of Communication, Government of Pakistan and 2 others (1988 PLC (C.S.) 705); ' in which, a Division Bench of the Sindh High Court to which one of us (Ajmal Mian, J.) was a member, has dilated upon the point in issue as follows:-- "The present position obtaining in view of the above-referred cases seems to be that where the conditions of service for an employee of a statutory body are governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules can be set aside either by a suit or by a writ petition, depending on the facts of the case, but where these terms and conditions are not governed by statutory rules but only by regulations, instructions or directions which the institution or body in which he is employed has issued for internal use, any violation whereof will not normally be enforceable through a writ or a suit. Similarly, if the employer has complete control over its employees, their appointment, dismissal and their terms and conditions for service and the control is not fettered by any statutory provision, the rules of master and servant will apply to the case."
' It was held in the above case that since the Regulations of 1984 framed by the Pakistan National Shipping Corporation did not have statutory force, violation of the same would not attract the Constitutional jurisdiction of the High Court.
9. The legal position obtaining in respect of employees of the statutory corporations seems to be that where the Government while setting up a corporation does not reserve to itself the power to regulate the terms of service of the corporation's employees under the relevant statute and does not prescribe any condition, but leaves it to the discretion of the corporation by empowering it to frame rules or regulations in respect thereof without the Government's intervention, then the corporation will be the sole arbiter in the matter of prescribing the terms and conditions of its employees and will be competent to deal with them in accordance with the terms and conditions prescribed by it. In such a case neither a suit nor a writ petition for the relief of re-instatement will be competent and the remedy of an employee, for wrongful dismissal from or of termination of service will be a suit for damages as the principle of master and servant will be applicable.
However, where the terms and conditions of service of an employee of a statutory corporation is regulated by a statute or statutory rules, any action prejudicial taken against him in derogation or in violation of the statute and/or the statutory rules will give him a cause of action to file a suit or a writ petition for the relief of re-instatement, was the power of the corporation will be fettered with the statutory provisions and the principle of master and servant will not be applicable. For the purpose of deciding the factum, whether the rules or the regulations of a corporation have the statutory force, the determining factor will not be their form or name, but the source under which they have been framed.
10. Since we have held that the Rules framed under section 18 of the Act do not have the statutory force, the violation of the same would not have entitled the respondent to claim the relief of re- instatement. The remedy, if any, was to claim damages for the breach of the contract as the relationship between the appellants and respondent was that of master and servant as under section 18 of the Act, it has been left to the sole arbiter in the matter of prescribing the procedure in respect of the matters referred to therein. Hence the ratio decidendi of the cases relied upon by Mr. Makhdoom Ali Khan particularly Anwar Hussain's case (supra), is applicable to the case in hand.
The cases referred to by Mr. Manzoor Ali Khan do not in fact advance the case of the respondent.
On the contrary, they are in line with the cases relied upon by Mr. Makhdoom Ali Khan as is evident from the above-quoted relevant portions of the judgments.
11. Reference may also be made to a recent judgment of this Court in the case of Mrs. M. N. Arshad and others v. Miss Naeema Khan and others (PLD 1990 SC 612), wherein the principle of law enunciated in the above-cited cases has been reiterated as follows:-- "In this regard reference may be made to the case of (i) Messrs Malik and Haq and another v.
Muhammad Shamsul Islam Chowdhry and 2 others PLD 1961 SC 531; (ii) Zainul Abidin v. Multan Central Cooperative Bank Limited, Multan PLD 1966 SC 445; (iii) The Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustom Ali and another PLD 1966 SC 848; (iv) Abdul Salam Mehta v. Chairman, Water and Power Development Authority and another 1970 SCMR 40; (v) Lt.-Col. Shujauddin Ahmad v. Oil and Gas Development Corporation 1971 SCMR 566 and (vi) R.TA. Janjua v. National Shipping Corporation PLD 1974 SC 146. In the above cases, this Court has held that relationship between a corporation and its employees is that of a master and servant and that no writ petition would be competent against the order of wrongful termination of service or dismissal from the service. However, in the case of the Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170 and the case of Anwar Hussain v.
Agricultural Development Bank of Pakistan and another PLD 1984 SC 194, this Court has taken the view that even an employee of a corporation can maintain a writ petition if there has been a violation of any provision of law or of any statutory rules of service. But, we may observe that the above question is not germane to the point in issue."
12. The upshot of the above discussion is that the relationship between the appellants and respondent was that of master and servant and, therefore, a suit for the relief of re-instatement was not competent and hence, the appeal is allowed. The judgment/decree of the first and second appellate Courts are set aside, and the judgment and decree of the trial Court is restored. However, there will be no order as to costs.