' Through this Constitutional petition the petitioner seeks setting aside an order of his removal, dated 9-8-1997 passed by respondent No, 1.
2. The facts as given in the petition are that the petitioner was appointed as Sub-Engineer in BPS.11 w,e,f, 4-8-1998 and since then he was. Performing his duties; that a show-cause notice was issued by the Managing Director/Respondent No,2 to the petitioner with a direction that he should improve his efficiency and to make immediate steps to give relief to the residents of the affected areas and the petitioner filed the reply and explained the whole position and also pointed out that over-flowing of sewer lines in the mentioned areas was not at all due to fault of the petitioner rather main obstacle was lack of funds and non-availability of necessary equipments for the clearance of silt and opening of chocked swereage lines and it was also pointed out that necessary funds were not available with the WASA and the staff, therefore, observed strike for the payment of their wages and this fact was also admitted by the WASA vide a letter, dated 16-11-1995 and 19-12-1995 to address to the District Magistrate and the petitioner also wrote letters about the same facts to his high ups; that the respondent No,2 being Authority vide order, dated 6-3-1997 decided to proceed against the petitioner under Punjab Civil Servants (E&D) Rules, 1975 and appointed the Director, Finance and Administration WASA Multan/Respondent No,3 as Authorised Officer to proceed in accordance with Rules 6 and 7-A of the said Rules and the Authorised Officer issued show-cause notice No,512, dated 63-1997 to the petitioner to which he submitted his reply in detail but the Authorised Officer neither held any inquiry as required by law nor he conveyed about his decision to the petitioner, however, the petitioner received a letter from the respondent No,2 for personal hearing at Chungi No,9 Disposal Station, Multan on 9-8-1997 at 9-30 p.m.; that the respondent No,1/Director-General, M.D.A. Visited the office situated at Chungi No,9 on 8-8-1997 at 11-00 p.m. And remained there for two hours as Chief Minister was coming on the next day and he without hearing the petitioner vide his order, dated 9-8-1997 imposed the major penalty of removal from service with immediate effect and according to the petitioner respondent No,1 was not competent to pass this order as respondent No,2/Managing Director was only the competent Authority to pass this order even after hearing the petitioner and that against the said order the petitioner filed an appeal before the respondent No,1 who vide letter, dated 20-12-1997 returned to the petitioner on the ground that he himself passed the earlier order so he cannot hear that appeal and that the petitioner after coming to know about the letter received the appeal back on 3-1-1998 and sent the appeal to the Chairman.
3. The respondents on the other hands have taken stand that the petitioner is a Civil servant and the matter relates to the terms and conditions of service. As such this Court has got no jurisdiction and that alternate efficacious remedy has been availed by the petitioner by preferring an appeal to the appellate authority according to the. Efficiency and Disciplinary Rules adopted by the Multan Development Authority,
4. Arguments have been heard at length. So far as the question of the status of the petitioner is concerned the record has been seen with the able assistance of both the learned counsel for the parties and the admitted position is that the petitioner is a Sub-Engineer of WASA working under the Multan Development Authority and that all the Service Regulations of the M.D.A. Amended from time to time, also apply to WASA (M.D.A.) Officials as approved by the Governing body of the M.D.A.
In its 29th meeting held on 14-7-1992 under the Chairmanship of Nazir Ahmad, Minister for Housing, Physical and Environmental Planning Department, Chairman, M.D.A. It is also a fact that the Multan Development Authority was established under subsection (1) of section 3 of the Punjab Development of Cities Ordinance, 1976 (XI of 1976) w,e,f, 22-10-1976. The said Ordinance was later on repealed by the enactment of the Punjab Development of Cities Act, 1976 (XIX of 1976), but the proviso to section 4 of the said Act, maintained that establishment. Section 4 is reproduced for ready reference:- "Section 4. Application of this Act and establishment of an Authority.--(1) The Government may establish an Authority for the cities to which this Act has been applied:- ' Provided that in the case of the Cities of Multan and Lyallpur declared as such under subsection
(1) of section 3 of the Punjab Development of Cities Ordinance, 1976 (XI of 1976), the Multan Development Authority and Lyallpur Development Authority shall be deemed to have been validly established with effect from the 22nd October, 1976.
(2) The Authority shall be known by the name as may be specified by the Government.
(3) The Authority shall be a body corporate, having perpetual succession and a common seal with powers, subject to the provisions of this Act, to acquire, hold and transfer property both movable and immovable, and may, by its name sue or be sued.
' Sections 9, 44 and 7 of the Punjab Government of Cities Act, 1976 are relevant to understand the powers of the Authority in respect of appointment of its employees, making of regulations, and establishment of an agency. The relevant provisions of the said sections are reproduced as under:- "Section 9. Appointment of Officers and employees.---The Authority may appoint such Officers, advisors, experts, consultants and employees, as it considers necessary for the efficient performance of its function on such terms and conditions as it may deem fit."
' Section 44. Power to make regulations.---Subject to the provisions of this Act and the rules framed thereunder, the Authority may make regulations as may be necessary to carry out the purposes of this Act.
' Section 7.Powers and functions of Authority.---(1) Subject to the provisions of this Act and any rules framed thereunder, the Authority may exercise such powers and take such measures as may be necessary for carrying out the purposes of this Act.
(2) Without prejudice to the generality of the provisions of the foregoing subsection, the Authority may--
(i) to (xv)...
(xvi) establish an agency/agencies and entrust to it such powers and functions as it may deem fit with the approval of the Government."
5. The Multan Development Authority in exercise of the power. Conferred by section 44 of the Punjab Development of Cities Act, 1976 (XIX of 1976) made the Multan Development Authority (Appointment and Conditions of Service) Regulations, 1980, vide Notification No,DA/R&R/8300/A, dated 18-12-1980. Later on, in exercise of powers conferred by clause (xvi) of subsection (2) of section 7 of the Punjab Development of Cities Act, 1976 (XIX of 1976) it established an Agency to be known as the Multan Water and Sanitation Agency vide Notification No,SO(P/4-12/86), dated 26-3- 1992 under the signature of the Secretary Government of the Punjab, Housing and Physical Environmental Planning Department, Lahore.
6. In this view of the matter the petitioner is an employee of the M.D.A. Which is a statutory Authority. Now the question is as to whether after the insertion of section 2-A in the Service Tribunals Act, 1973 (LXX of 1973) by the Service Tribunals (Amendment) Act, 1997 (XII of 1997), the petitioner has become a civil servant? The answer is in the negative. The reason is that the insertion of section 2-A in the Service Tribunals Act, 1973, has brought a change in the Federal Statute. The said section is reproduced for ready reference:-- "(2-A). Service under certain corporations. Etc. To be service of Pakistan.----Service under any authority, corporation body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has controlling share or interest is hereby declared to be service or Pakistan and every person holding a post under such authority, corporation body or organization shall be deemed to be a civil servant for the purposes of this Act."
7. The learned counsel for the respondent next contended that the regulations framed by the MLD are not statutory rules. He has relied upon PLD 1983 Lahore 206. In the said case of Muhammad Saeed Ahmad Khan and 2 others v. Secretary to Government of the Punjab, Housing and Physical Planning Department and 3 others (PLD 1983 Lah. 206), where the Lahore Development Authority (Appointment and Conditions of Service) Regulation, 1978, made in exercise of the powers conferred by section 45 of the Lahore Development Authority, Act 1975, had come in discussion and it was observed by His Lordship as under:-- "...The case of the petitioners, is much different, for they are Officers of a statutory body constituted under the WASA and Lahore Development Authority Act. Their terms and conditions are regualted not strictly by the Punjab Civil Servants Act. Rather section 11 of the Lahore Development Act empowers the Authority to appoint its Officers etc. On such terms and conditions as it may deem fit. There is no provision in law that these terms and conditions should be prescribed by rules and Regulations. The. Authority, therefore, could, in its discretion avoid any inquiries at all and provide for termination of the services of its employees without assigning any reason and on a simple notice. But if does provide for inquiries it cannot avoid or oust the provisions of general law of the land. This the mere framing of the Regulations by the authority would not confer any statutory force on them. I may, however, clarify here, for the fear of being misunderstood, that the Authority itself is bound by those valid regulations as long as they are there, but such parts of the Regulations as are invalid or illegal will not bind the third parties even though they might have agreed to be governed by them."
8. I am in respectful disagreement with the above observation and am of the considered opinion that the regulations framed by the Multan Development Authority in exercise of the powers conferred by the Punjab Development of Cities Act, 1976 are a statutory instruments. The words Statutory Rules" have not been defined anywhere and I have to go back to the English Law to find out its connotation. The legislation is of two kinds:--
(i) made by legislation itself.
(ii) delegated legislation.
' The delegated legislation further falls under two main heads:--
(a) Statutory instruments
(b) By-laws or regulations made---
(i) by authorities concerned with local Government;
(ii) by public Corporations or societies clothed with statutory or common law powers.
' Craies a state to law 7th Edition by SGG Edger at page 302 writes:-- " 'Rule-making authority' includes every authority authorised to make any statutory rules: Rules Publication Act, 1893, section 4. The same section defined 'statutory rules' as 'rules', regulations, or by-laws made under any Act of Parliament which (a) relate to any Court in the United Kingdom, or to the procedure, practice, costs, or fees therein, or to any fees or matters applying generally through out England, Scotland..; or (b) or made by Her Majesty in Council, the Judicial Committee, the Treasury, the Lord Chancellor of Great Britain, .. Or a Secretary of State, the Admiralty, the Board of Trade, the Local Government Board for England..., or any other Government Department. 'Orders' were deliberately excluded from the statutory definition on the suggestion of the Local Government Board as being administrative: but when the regulations under the 1893 Act were drawn up, orders and others documents were. Included by the adoption of the phrase 'Every exercise of a statutory power by a rule-making authority' ."
9. Even on the touchstone of the provisions of sections 2, 19, 20 and 22 of the West Pakistan General Clauses, Act, 1956, the Regulations made by the Multan Development Authority are statutory rules.
The said provisions are as under:-- "(2) Definitions.---In this Act, and all West Pakistan Acts, unless there is anything repugnant in the subject for context;
(1) to (54) ....
(55) 'rules' shall mean a rule made in exercise of a power conferred by any enactment and shall include a regulation made as a rule under any enactment;
(56) to (70) ...
(19) Construction of Orders to issue under enactments.---Where, by any West Pakistan Act, a power to issue any notification, order, scheme, rule, form, or by-law is conferred, then, expressions used in the bye-laws shall unless there is anything repugnant in the subject or context, have the same respective meanings as in the Act conferring the power.
(20) Power to make to include power to add to, amend, vary or rescind orders, rules or bye-laws.-- -Where, by any West Pakistan Act, a power to issue notification, orders, rules, scheme, form or bye- laws is conferred than that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind, any notification, orders, rules, scheme, form, bye-laws so issued.
(22) Provisions a applicable to making of rules or b e-laws after previous publication.---Where, by any West Pakistan Act, a power to make rules or bye-laws being made after previous publication, then unless such Act otherwise provides, the following provisions shall apply, nemely:--
(1) The authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby;
(2) the publication shall be made in such manner as that authority deems to be sufficient, or if the condition with respect to previous publication so requires in such manner as the Provincial Government prescribe;
(3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration;
(4) the authority having power to make the rules or bye-laws are to be made within the sanction, approval or concurrence of another authority, that authority, also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified;
(5) the publication in the Officials Gazette of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made."
10. Where any Act confers power to make rules or regulations, if it is made after the commencement of that Act it is called a statutory rule or regulation. The regulations made by Multan Development Authority are statutory regulations and the Act did not lay the condition that those should be published in the official gazette nor there was any condition that the c Authority had to obtain any sanction from the Government. These regulations are, therefore, statutory regulations and in view of section 2(55) of the West Pakistan General Clauses Act, 1956 these are included in the definition of rules under an enactment. The petition is, therefore,' maintainable as there is a specified allegation of the violation of statutory rules under which the petitioner has been given the right to be heard before imposing on him the major penalty of removal from service.
11. In the case of the Principal Cadet College, Kohat and another v. Muhammad Shoaib Qureshi (PLD 1984 SC 170) the Hon'ble Supreme Court of Pakistan observed:-- "It is, therefore, evident that where the conditions of service of 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 by a writ petition. However, where his 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 its internal use, any violation there of will not normally, be enforced through a writ petition."
12. In the case of Mst. Anisa Rehman v. P.I.A.C. And another (1994 SCMR 2232) where no show-cause notice was issued to the appellant nor she was heard before her reversion and the rules of P.I.A.C.
Were not statutory rules, the Hon'ble Supreme Court held that there has been violation of the principle of natural justice and such violation can be equated with the. Violation of a provision of law warranting pressing into service Constitutional jurisdiction under Article 199 of the Constitution of Pakistan. It was observed as under:-- "The fact that there are no statutory service rules in respondent No,1 Corporation and its relationship with its employees is of that Master and Servant will not negate the application of the above Maxim, 'Audi Alteram partem' . The above view, which we are inclined to take is in consonance with the Islamic Injunctions as highlighted in the case of Pakistan and others v. Public at large (PLD 1987 SC (Shariat Appellate Bench) 304), wherein it has been held that before an order of retirement-in respect of a civil servant or an employee of a statutory Corporation can be passed, he is entitled to be heard.
' The effect of the application of the Master and Servant rule is that an employee of a Corporation.
In the absence of violation of law or any statutory rules cannot press into service Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service, his remedy for wrongful dismissal is to claim damages."
13. In the present case, the record shows that Managing Director WASA (MDA) Multan had received the enquiry report adverse to the petitioner from the Authorised Officer on 28-7-1997. The Managing Director gave the notice of personal hearing to the petitioner in accordance with the statutory rules' (i,e, E&D Rules) in the following terms-- ' WATER AND SANITATION AGENCY, MDA, MULTAN ' No, 1 .Camp/WASA Dated 7-8-1998 ' To, ' Mr. Asif Peter, ' Sub-Engineer O&M-1 Divn. Multan.
' Subject: PERSONAL HEARING ' On consideration of enclosed enquiry report received from Authorised Officer on 28-7-1997 in your case, you are hereby advised, in your own interest, to appear before the undersigned at Chungi No,9 Disposal Station Multan on 9-8-1997 at 9.30 p.m. For personal hearing to offer your additional defence, if any.
(Sd.)
Managing Director, WASA (MDA) Multan."
14. The record shows that there are two orders. One order is in Urdu it is, dated 8-8-1997. The other order is in English it is, dated 9-8-1997. It was neither just nor proper nor legal to give the date as 9- 8-1997 at 9-30 p.m. And pass an order on 8-8-1997. Even if it was taken for granted that it was midnight of 8 and 9 of August still the time given to the petitioner for personal hearing was 9.30 p.m. And not earlier than that. Thus, the petitioner has been condemned unheard and there is clear violation of not only the statutory rules governing the petitioner but also the principle of natural justice i,e, Audi Alteram Partem. As such both on facts and law as enunciated by the Hon'ble Supreme Court of Pakistan discussed above the writ petition merits to be allowed and the same is hereby allowed declaring the impugned order, dated 8-8-1997/9-8-1997 (Urdu and English) as illegal and without lawful authority and of no legal effect.
15. It will be open for respondent No,2 to take fresh action after giving fresh notice to the petitioner and affording full opportunity of hearing in accordance with law.