THE SECRETARY, EAST PAKISTAN INDUSTRIAL DEVELOPMENT CORPORATION, DACCA THE SECRETARY, EAST PAKISTAN INDUSTRIAL DEVELOPMENT CORPORATION, DACCA vs MD. SERAJUL HAQUE MD. SEKANDAR MIA

1. M. R. KHAN, J.-These two appeals by special leave, at the instance of the Secretary, East Pakistan Industrial Development Corporation, are from the judgment and order of a Division Bench of the High Court of. East Pakistan by which the two writ petitions of the respondents were accepted and the orders terminating their services were declared to have been made without lawful authority.

2. Md. Serajul Haque, the respondent in Civil Appeal No. 88-D of 1968 was appointed as an attendant in the Pakistan Industrial Development Corporation on the 21st June 1961 on a purely temporary basis. Md. Sekandar Mia, the respondent in Civil Appeal No. 89-D of 1968 was appointed as a peon by the said Corporation on the 3rd November 1960 on probation for a period of 2 years. Upon the bifurcation of the Pakistan Industrial Development Corporation in June 1962, the services of the said two respondents were transferred to the East Pakistan Develop--ment Corporation (hereinafter called the Corporation) and their appointments were duly approved by the Corporation on the pre-existing terms and conditions. Both the respondents were subsequently confirmed in their respective posts. By two separate orders, dated the 2nd April 1964, the Secretary of the Corporation terminated the services of both the respondents with immediate effect on the ground that their services were no longer required. They were, however, offered one month's pay in lieu of notice for terminating their services. The respondents, by two separate writ petitions under Article 98 of the 1962--Constitution, challenged the validity of the orders terminating their services. These orders were challenged on the following grounds, namely :----- (i)that the orders were passed by an officer who was not empowered in that behalf,

(ii) that the respondents were entitled to protection guaranteed by Article 177 of the 1962- Constitution, and (i.e) that, in any event, even if Article 177 did not apply, the principles of natural justice required that they should have been given an opportunity to show cause before their services were terminated.

3. The learned Judges of the High Court rejected the first two grounds as untenable, but found the third ground to be of substance. According to them, the services of the respondents were terminated by the Corporation by way of penalty and, in that view of the matter, found the respondents to be entitled, on the principles of natural justice, to an opportunity to show cause against the proposed orders of their services. As, however, no such opportunity was given to them, the learned Judges held the impugned orders to be illegal and made a declaration accordingly.

4. The respondents were in the employment of the Corporation but were not persons in the "service of Pakistan". Moreover, the terms and conditions of service of the respondents, it is admitted, were not governed by any statutory rules. The learned Judges were, therefore, right in holding that the guarantee under Article 177 of the Constitution of 1962 was not available to the respondents. Mr. S. M. Abbas, learned Advocate- on-Record, representing the respondents does not also contend that the provisions of the said Article were attracted in their cases. The only question, therefore, that calls for determination in these appeals is whether the respondents were entitled to an opportunity to show cause against the proposed termination of their services on the principles of natural justice. The order, dated the 2nd April 1964, terminating the services of the respondent Md. Serajul Haque was as follows "The services of Md. Serajul Haque, Attendant, Accounts Department, E. P. I. D. C., Dacca is no longer required by the Corporation. His services, therefore, stand terminated with immediate effect. He is directed to collect his dues together with one month's pay in lieu of notice from the Accounts Department after depositing his liveries and other articles, if any, to the Store and obtaining clearance certificates from the Store-Keeper."

5. The order terminating the service of the other respondent, Md. Sekandar Mia was exactly on the same terms. These orders do not at all contain any charge or stigma against the respondents. By these orders, their services were simply terminated with an offer of one month's pay in lieu of notice on the sole ground that their services were no longer required by the Corporation. These orders can not, therefore, be regarded as orders terminating the services of the respondents by way of penalty. Relying on an office note of the Executive Officer of the Corporation, the learned Judges of the High Court, however, took the view that the respondents' services were terminated by way of penalty. In his office note, the Executive Officer stated that some employees of the Corporation including, the two respondents had certain general deficiencies and it was accordingly proposed in that note to terminate their services by offering them one month's pay. It is true that an allegation about the efficiency of the respondents was there in the said office note, but the orders terminating their services, as they are, were not founded on the said allegation. When the impugned orders themselves do not contain any charge or stigma against the respondents, it cannot be said that their services were terminated by way of penalty merely because an allegation about their efficiency was made in the office note. This view is in with this Court's earlier view taken in the cases of Abdul Karim v. The West Pakistan Province (PLD 1956 SC (Pak.) 298) and Noorul Hassan v. The Federation of Pakistan (PLD 1956 SC (Pak.) 331). In the former case, a temporary employee of the Public Works Department of the Province of West Pakistan, whose services could- be terminated on one month's notice, was served with a list of charges of misconduct and was asked to show cause why he should not be dismissed. He answered the charges, but his services were terminated by notice instead of taking any action on the basis of those charges. The aggrieved employee brought an action challenging the order terminating his services for not affording him any opportunity to show cause before his services were terminated.

6. The matter ultimately came to the High Court of Judicature at Lahore in a second appeal. The High Court dismissed the appeal whereupon the aggrieved employee sought for special leave to appeal to the Supreme Court. Leave in that case was refused by this Court on the ground that it was open to the competent authority not to have recourse to disciplinary action but to terminate the services of the employee by notice in accordance with the conditions of his employment. In the latter case it was observed: "But if that course is adopted, it will be necessary for that authority to take formal disciplinary proceedings and to give to the servant concerned a reasonable opportunity not only to defend himself but also to show cause against dismissal. If, therefore, the authority does not wish to take disciplinary proceedings against the offending Government servant but adopts the alternative course of not giving him any extension on the expiry of the stipulated period, it cannot be urged that the real reason for the termination of his services being misconduct, formal proceedings should be taken against him before his services are dispensed with. The termination there is strictly in accordance with the contract of service and whatever may be the reason for such termination, it cannot be questioned in a Court of law on the ground that the procedure of subsection (3) of section 240 was not followed. As long as the action to dispense with the services of an employee is in accordance with the terms on which he was employed, it is wholly immaterial whether the reason for the termination was miss-behavior or some other reason."

7. The present case is rather worse than the cited ones inasmuch as the employees in the cited cases being public servants were entitled to the constitutional protection, but the respondents here being servants of the Corporation were not entitled to that protection. Moreover, the terms and conditions of employment of the respondents were not regulated by any statutory rules but were governed by their contracts of employment. That being so, the ordinary law of master and servant was applicable to the present case, and under that law the Corporation was entitled to terminate the services of the respondents without giving them any opportunity of showing cause against the proposed termination, particularly when the impugned orders themselves do not show that their services were terminated by way of penalty. We do not, therefore, think that the learned Judges of the High Court were right in holding that the orders terminating the services of the respondents were bad in law for not giving them any opportunity of showing cause before terminating their services.