Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: DR. NAEEM-UL-ZAMAN VS Respondent: PAKISTAN ATOMIC ENERGY COMMISSION
1990 P L C (C
1990 P L C (C.S.) 25
[Lahore High Court]
Before Munir A. Sheikh, J
Dr. NAEEM‑UL‑ZAMAN
versus
PAKISTAN ATOMIC ENERGY COMMISSION and 3 others
Writ Petition No. 3197 of 1988, decided on 12th September, 1989.
(a) Pakistan Atomic Energy Commission Ordinance (XXVII of 1965)‑‑
‑‑‑S. 3(2)‑‑‑Constitution of Pakistan (1973), Arts. 97 & 199‑‑‑Employee of Atomic Energy Commission‑‑Removal from service‑‑‑Atomic Energy Commission functions being eo‑related to various affairs of State, same would be deemed to be a person performing functions in connection with the affairs of Federation within the contemplation of Art. 199 of the Constitution‑‑‑Remedy by Constitutional jurisdiction, is competent‑‑‑Relationship between Atomic Energy Commission and its employee is not governed by the principle of Master and Servant but by the provisions of Government Servants (Efficiency and Discipline) Rules, 1973.
The Pakistan Atomic Energy Commission has been created under the Pakistan Atomic Energy Commission Ordinance, 1965 (Ordinance No. XXVII of 1965). Section 3(2) of this Ordinance provides that the Commission shall be a body corporate by the name of the Pakistan Atomic Energy Commission having perpetual succession and a common seal with powers, subject to the provisions of Ordinance, to acquire and hold property, both movable and irremovable and shall by the said name sue and be sued. From this provision it is manifestly clear and no doubt can be entertained that the commission has been constituted as a legal/juristic person having a regular name, common seal and capable of suing or being sued in its own name. It is thus a `body corporate' and an artificial person established for preserving in perpetual succession certain rights. The next question is as to whether the Commission is a person within the contemplation of clause (v) of Article 199 of the Constitution performing functions in connection with the affairs of the federation within the meaning of sub‑clauses (i) and (ii) of clause (a) of Sub‑Article (1) thereof and from that point of view this Court could give declaration about its order or proceedings or issue any kind of directions to it. In order to determine this reference to the relevant provisions of the Constitution shall have to be made. Under Article 97 of the Constitution the Executive Authority of the Federation extends in the matters with respect to which Majlis‑e‑Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan. The Majlis‑e‑Shoora (Parliament) has exclusive authority to make laws in respect of matters enumerated in Part I and Part (I of Legislative lists given in 4th Schedule.
Item 2 of Part II of this list relates to mineral oil and natural gas; liquids and substances declared by Federal law to be dangerously inflammable. These two items in the Legislative list if read with Article 97 of the Constitution leaves no room for doubt that the executive authority of the Federation extends to all these matters and the matters connected therewith and as such they are primarily the functions of the Federation. Section 6 of Ordinance 1965 prescribes the functions of the Commission which are, to do all acts and things, including the research work necessary for the promotion of the peaceful uses of Atomic Energy in the fields of agricultural medicines and industry and for the execution of Development project nuclear power station and the generation of electric powers thereat. According to subsection (2) of this section the Commission is to perform such other functions with the approval of the Federal Government relating to the peaceful use of Atomic Energy. Under subsection (2) (a) of this section it has been provided that the powers of the Federal Government under Regulation of Mines and Oil Fields and mineral development (Government Control) Act of 1948 in relation to mines of nuclear substances and development of substations shall be exercisable by the Commission. If the functions performed by the Commission are studied with reference to various items of the Federal lists, it is explainably clear that the functions of the Commission are co‑related to various affairs of State indicated in numerous items of Federal list mentioned above and as such no room is left to entertain any doubt that Commission can safely be held to be a person performing functions in connection with the affairs of Federation. The objection of want of jurisdiction on the ground that Commission was not a person performing functions in connection with affairs of the Federation within the contemplation of Article 199 of the Constitution has thus no merit.
Section 13 of the Pakistan Atomic Energy Commission Ordinance, empowers the Commission to appoint such officers advisors and employees as it considers necessary for efficient performance of its functions on such terms and conditions as it may deem fit subject to such general or special orders as the Federal Government may give from time to time. II is thus clear that contrary to the provisions of the Capital Development Authority Ordinance, 1960 the Federal Government has been fully empowered under section 13 to control the power of the Commission in respect of appointment of its officers and employees which may include their terms and conditions and the Commission is bound to carry out such general or special orders which may be issued by the Federal Government in this respect, therefore, in the case of employees of Commission the Commission has not been made the sole arbiter regarding appointment, terms and conditions of its officers and employees. Under section 20, the Commission has been given the power to frame regulations with the previous sanction of the Federal Government not inconsistent with the provision of the Ordinance or the rules made there under. Whereas section 19 confers powers on the Federal Government to frame rules. by Notification in the official Gazette. From the perusal of regulation making power of the Commission under section 20 of the Ordinance it is also plainly clear that the same is controlled by the Federal Government, as it requires prior approval of Federal Government. The principle of law decided in Capital Development Authority's case (supra) is therefore not attracted to the present case, in view of substantial difference in the provisions of Capital Development Authority Ordinance and Pakistan Atomic Energy Commission, Ordinance, 1965.
In the present case the. Commission has framed regulations with the previous approval of the Federal Government named as the P.A.E.C. Employees (Service) Regulations, 1974. Regulation 3 of this Regulation is very significant and has material bearing upon the determination of the question whether the relationship of the employees with the Commission was governed by the principle of Master and Servant. This regulation provides that the Federal Government shall be the final authority for interpretation of these regulations and supplementary instructions issued in connection with these retulations and under this regulation even the authority of the Federal Government to apply these Regulations in respect of employees referred to in clause (b) or subsection (1) of section 23 of the Ordinance to their prejudice which may be derogatory to the terms and conditions of the service applicable to such employees before coming into force of the Ordinance has been prohibited. In these regulations detailed provisions have been made regarding employees and officials of the Commission prescribing procedure for their initial appointments upto the stage of retirement, regarding probationary period, pay, pay scales, allowances, travelling allowances; retirement, pension, promotions and disciplinary actions. Under Regulation No.26, it has been provided that employees shall for the purpose of conduct and discipline be governed by the Government Servants (Conduct) Rules, 1964 and the Government Servants (Efficiency and Discipline) Rules, 1973. The Federal Government being the exclusive authority to interpret these regulations which can safely be construed to be general direction of the Federal Government under section 13 of the Ordinance that terms and conditions of the employees and the officers of the Commission be regulated accordingly and not in any other manner therefore, it is possible to hold that the Commission has been left with no power, authority or discretion regarding the terms and conditions of its employees or officers who are to be dealt with as provided in these regulations. The plea of applicability of principle of Master and Servant has no force in the peculiar facts and circumstances of this case as discussed above. One of the essential principles for the concept of relationship of Master and Servant is that there should be freedom of contract both for Master as well as Servant so as to act freely that is to say unfettered by any legal disability and where Master's pleasure to terminate service of his employees is curtailed or controlled by another authority by virtue of some law or otherwise then the case is no longer of a contract of service simpliciter and Master and Servant concept. The Regulations having been promulgated with the prior approval of the Federal Government and Federal Government under Regulation No. 3 has the exclusive authority to interpret the said Regulations and under section 13 of the same have the force of directions issued to the Commission regarding appointment and other service conditions of employees, no discretion has been left with the Commission to terminate the service of the employees at its convenience as such the rule of Master and Servant is not attracted to this case. It may be pointed out here that under section 3‑A of the Pakistan Atomic Energy Commission Ordinance, 1965, it has been provided that every employment under the Commission shall for the purpose of Pakistan Essential Services (Maintenance) Act, 1952 be deemed to be employment under the Federal Government and the said Act has been made applicable accordingly.
Ch. Abdul Rashid v. Capital Development Authority, Islamabad and another P L D 1979 Lah. 803 ref.
The Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 S C M R 1275 ref.
(b) Government Servants (Efficiency and Discipline) Rules, 1973‑‑
‑‑‑Rr. 5 & 6‑‑‑Constitution of Pakistan (1973), Arts. 199 & 97‑‑‑Disciplinary proceedings‑‑‑Authorised Officer taking positive decision to proceed against employee in accordance with provisions of R. 5(i)(ii) of the Efficiency and Discipline Rules, 1973 as such provisions of R. 6 of the Rules were to regulate all subsequent disciplinary proceedings and they were to be complied with‑?Procedure as described in R. 6, having not been followed, the disciplinary proceedings taken as also consequential order of dismissal of employee from service were not taken and passed in accordance with law‑‑Proceedings taken against employee were thus set aside by the High Court in exercise of its Constitutional jurisdiction. [pp. 36, 37, 38, 39) C, D, E & G
(c) Pakistan Atomic Energy Commission Employees (Service) Regulations, 1974‑‑
‑‑‑Regln.26‑‑Government Servants (Efficiency and Discipline) Rules, 1973, R.10‑?Civil Servants (Appeal) Rules, 1977‑‑Constitution of Pakistan (1973), Art. 199‑?Constitutional jurisdiction, exercise of‑‑Objection, that Constitutional petition having been filed without availing of departmental appeal which was efficacious and adequate remedy within the contemplation of Art. 199 of the Constitution, same should be dismissed; repelled‑‑Held: Atomic Energy Regulation does not itself provide for application of adoption of Civil Servants (Appeal) Rules, 1977 to employees of the Atomic Energy Commission‑‑Such Rules do not automatically become applicable‑‑Even if it be assumed that Civil Servants (Appeal) Rules, 1977 were applicable, the same provide that the appeal shall be riled before the next higher authority‑‑Chairman, Atomic Energy Commission having passed the order of removal from service, no higher authority in that hierarchy having been named for disposal of departmental appeals, Constitutional petition was competent.
Abdul Sattar Goraya for Petitioner.
Asad Ullah Siddiqui for Respondents.
Dates of hearing: 21st, 25th, 26th, 28th June and 3rd July, 1989.
JUDGMENT
In this Constitutional petition, Dr. Naeem‑ul‑Zaman, the petitioner prays that the impugned order dated 3‑1‑1988 passed by respondent No. 1 for his removal from service of Pakistan Atomic Energy Commission as also the proceedings for suspending him from service taken under the Efficiency and Discipline Rules be declared to have been passed and taken without jurisdiction, without lawful authority and of no legal effect and as a consequence thereof the petitioner be directed to be reinstated in service with full back benefits.
2. The facts relevant for the disposal of this writ petition in brief arc that according to photo copies of various orders/letters placed on file by learned counsel of respondent No.1 on the direction of the Court, the petitioner in March, 1965 joined service in the Pakistan Atomic Energy Commission as Assistant Scientific Officer at a pay of Rs.455 p.m. in the scale of Rs.350‑35‑525?EB‑40‑925 plus usual allowances as per office memorandum dated 9‑3‑1965. The petitioner was a probationer and according to office memorandum dated 16‑4‑1966 his probation period as Assistant Scientific Officer was terminated w.e.f. 10‑3‑1966. Subsequently vide office order No.349/66 dated 25‑8‑1966 the petitioner alongwith others was appointed as Assistant Scientific Officer Class‑I Scale from the date of his joining the Commission i.e. 11‑3‑1965. The petitioner was promoted as Senior Scientific Officer in the year 1970 at which post he was made permanent vide office memorandum of the Commission dated 8‑11‑1976. In the year 1977 he was promoted as Principal Scientific Officer in G.P‑10(NSP No.19) PABC Group‑10 and was posted at Dera Ghazi Khan as Manager.
3. The respondents decided to take disciplinary action against the petitioner and as an initial step through order dated 20‑10‑1986 Muhammad Aslam Project Manager intimated the petitioner advising him with the approval of the competent authority, to proceed on leave w.e.f. 19‑10‑1986. The petitioner was advised not to leave the Station without his prior approval and make himself available for an inquiry which was likely to be initiated shortly. It was stated in this order that the inquiry was being conducted to look into the reported misuse of his powers. The Chairman of the P.A.E.C. who was then the Authorised Officer qua the petitioner, it appears, passed an order for establishment of an inquiry committee comprising Director (DTP) as Inquiry Officer and Director (Finance) as Member which is evident from the note written by S.N. Burney, Member (Power) dated 5‑11‑1986 a photo copy of which has been placed on record by learned counsel for the respondents in pursuance to directions given by the Court during the hearing of the writ petition. Through order dated 11‑5‑1987 the petitioner was suspended from P.A.E.C. service w.e.f. and un;il further orders, with the direction to him to remain present at the station of duty. On 5‑7‑1987 directly a show‑cause notice was issued to the petitioner by the Chairman of the Commission as Authorised Officer accusing him to have committed acts of misconduct mentioned in the said notice and called upon him to show cause within 14 days of the receipt of the said notice as to why disciplinary action should not be taken against him under the Efficiency and Discipline Rules, 1973 as applicable to the employees of P.A,E.C, by virtue of Regulation 26 of P.A.E.C. Employees (Service) Regulations, 1974 and why a major penalty should not be imposed upon him. To determine the question of legality of this notice, it would be beneficial to reproduce the alleged acts of misconduct mentioned in this notice which are as follows:‑
(1)??????? That Dr. Naeem‑ul‑Zaman, Pr. Scientific Officer, Manager Plant, BC‑1 Project had been abusing the inside information leading to the award of contracts worth Rs.40 lacs for fabrication of items to M/s. Paramount Engg. Company partly owned by his brother having hardly any experience and workshop facilities to undertake the fabrication of the sophisticated items.
(2)??????? That emergency powers were given only to Manager Plant to meet emergent requirements for day to day operation of the Mill but Dr. Naeem‑ul‑Zaman widely misused his powers for building up stocks in store and due to his intentional slackness the following irregularities were committed during such emergency purchases:‑
(i)???????? That no set procedure was followed by him for the emergency purchases but instead it was made an appeasement package for the employees and the local suppliers to gain undue advantage.
(ii)??????? That verbal orders were given by him to selected and known firms mostly owned by certain relatives of the employees of BC‑1 without enquiring and settling rates in advance.
(iii)?????? That more than one orders were given for the same items on the same day mainly to keep their procurement within the emergency powers of Rs.3,000.
(iv)?????? That no method for determining the reasonableness of prices was followed but instead it was made an established practice to allow 10‑15% more than the prevailing market prices which caused the loss and misuse of public funds.
(v)??????? That the emergency powers were limited upto RS. 3,000 but in certain cases the suppliers though supplied material for lesser amount but charged the said amount of Rs. 3,000 and sometimes the suppliers had been reducing the price to Rs. 3,000 to avoid reference to next higher authorities.
(vi)?????? That the procurement procedure and other formalities for such supply orders were used to be completed after supply of the material in to:al disregard of the rules on the subject.
(vii)????? That purchases under emergency powers were made in some cases from fictitious firms.
(viii)????? That most of the supply orders under emergency powers were placed for items which were already available in the stores in large quantities and there was not any emergency for such items."
The petitioner contested this notice by filing elaborate and detailed‑ reply dated 22‑7‑1987 in which he also claimed the personal hearing. It may be mentioned here that in the meantime, the Chairman of the P.A.E.C. who issued show‑cause notice as authorised officer was designated as the authority whereas Member (Admn.) as trig authorised officer. The petitioner was informed through Office Order No.8/88 under Establishment No.21(1258) 86 dated 3‑1‑1988 that consequent upon disciplinary action taken against him as aforementioned and having found him guilty of the charges of misconduct mentioned in the show?-cause notice dated 5‑7‑1987, the competent authority was pleased to impose upon him the major penalty of removal from service w.e.f. 31‑12‑1987 in terms of rule 4(1)(b)(iii) of the Government Servants (Efficiency and Discipline) Rules, 1973. The petitioner was allowed compassionate allowance equivalent to two‑third of the pension which would have been admissible to him had he been invalidated from service on the date of his removal, under the provisions of Section 19(3) of the Civil Servants Act, 1973, which has been challenged in this writ petition.
4. Before entering upon the adjudication on merits, it would be appropriate to dispose of the preliminary objections raised by the learned counsel for the respondents to the jurisdiction of the Court and also the maintainability of the writ petition. It was maintained by learned counsel for the respondents that the RA.E.C. being an Autonomous Body as such was not a person performing functions in relation to affairs of Federation, Province or Local Authority within the contemplation of Article 199 of the Constitution therefore, was not amenable to the jurisdiction of this Court in respect of performance of its functions and that the relationship between the Commission and its employees in the matters of service was governed by the principle of Master and Servant as such the petitioner could not invoke the constitutional jurisdiction under Article 199 and if his grievance was that he was wrongfully removed from service, the only remedy available to him was to maintain a suit for damages.
5. I have given anxious consideration to the argument. The Pakistan Atomic Energy Commission, has been created under the Pakistan Atomic Energy Commission Ordinance 1965 (Ordinance No. XXVII of 1965). Section 3(2) of this Ordinance provides that the Commission shall be a body corporate by the name of the Pakistan Atomic Energy Commission having perpetual succession and a common seal with powers, subject to the provisions of Ordinance, to acquire and hold property, both movable and immovable and shall by the said name sue and be sued. From this provision it is manifestly clear and no doubt can be entertained that the Commission has been constituted as a legal/juristic person having a regular name, common seal and capable of suing or being sued in its own name. It is thus a `body corporate' and an artificial person established for preserving in perpetual succession certain rights. The next question which remains to be decided is as to whether the Commission is a person within the contemplation of clause (v) of Article 199 of the Constitution performing functions in connection with the affairs of the Federation within the meaning of sub‑clauses (i) and (ii) of clause (a) of sub‑Article (1) thereof and from that point of view this Court could give declaration about its order or proceedings or issue any kind of directions to it. In order to determine this, reference to the relevant provisions of the Constitution shall have to be made. Under Article 97 of the Constitution the executive authority of the Federation extends in the matters with respect to which Majlis‑e‑Shoora (Parliament) has power to make laws, Hacluding exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan. The Majlis‑e‑Shoora (Parliament) has exclusive authority to make laws in respect of matters enumerated in Part I and Part 11 of Legislative lists given in 4th Schedule. Item 18 of Part I of this list is as under:‑
"18. Nuclear energy, including,
(a)??????? mineral resources necessary for the generation of nuclear energy;
(b)??????? the production of nuclear fuels and the generation and use of nuclear energy; and
(c)??????? Ionizing radiations.
Item 2 of Part II of this list relates to mineral oil and natural gas; liquids and substances declared by Federal law to be dangerously inflammable. These two' items in the Legislative list if read with Article 97 of the Constitution leaves 0, doubt that the executive authority of the Federation extends to all these matters and the matters connected therewith and as such they are primarily the functions of the Federation. Section 6 of Ordinance 1965 prescribes the functions of the Commission which are, to do all acts and things, including the research work necessary for the promotion of the peaceful uses of Atomic Energy in the fields of agricultural medicines and industry and for the execution of Development Project nuclear power station and the generation of electric powers thereat. According to subsection (2) of this section the Commission is to perform such other functions with the approval of the Federal Government relating to the peaceful use of Atomic Energy. Under subsection (2) (a) of this section it .has been provided that the powers of‑the Federal Government under Regulation of Mines and Oil Fields and Mineral Development (Government Control) Act of 1948 in relation to mines of nuclear substances and development of sub‑stations shall be exercise-able by the Commission. If the functions performed by the Commission are studied with reference to various items of the Federal lists, it is explain-ably clear that the functions of the Commission are co‑related to various affairs of State indicated in numerous items of Federal list mentioned above and as such no room is left to entertain any doubt that Commission can safely be held to be a person performing functions in connection with the affairs of the Federation. The objection of want of jurisdiction raised by the learned counsel for the respondents on the ground that Commission was not a person performing functions in connection with affairs of the Federation within the contemplation of Article 199 of the Constitution has thus no merit and the same is hereby repelled.
6. Adverting to the second limb of the argument viz. that the relationship between the petitioner and the Commission in respect of his employment is governed by principle of Master and Servant, it may be stated that…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.