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Civil Petition for Leave to Appeal No. 771 of 1984, decided on 22nd October, 1984.

(On appeal from the judgment and older of the Lahore High Court dated 7‑5‑1984 in Writ Petition No. 2327 of 1983).

‑‑‑Art. 185(3)‑‑Pakistan Cantonment Servants Rules, 1954, r. 24‑‑Concept of employment‑‑Violation of conditions of service contract‑‑Removal from service‑‑Mala fide‑‑Employee of Cantonment Board accepting part‑time employment with Railways in violation of terms of his employment contract removed from service for misconduct‑‑Allegation of mala fide not established‑‑Finding that employee was guilty of misconduct being unexceptionable, leave to appeal refused.

‑‑‑ Mala fide‑‑Public functionaries‑‑Merely because employee's transfer order passed by Director was set aside by Ministry, held, would not tentamount that thereby Director entertained grudge or malice against employee‑‑Allegation of male fide in respect of orders passed by public functionaries must be based‑on specific facts and proved conclusively‑ Such inference could not be drawn from vague and general allegations.

Syed Pir Altaf Hussain, Advocate Supreme Court assisted by Ch. Mehdi Mehtab, Advocate‑on‑Record for Petitioner.

Ch. Hamiduddin, Senior Advocate Supreme Court instructed by S. Inayat Hussain, Advocate‑on‑Record for Respondents Nos. 2 and 4.

Date of hearing: 22nd October, 1984.

‑‑The petitioner seeks to call in question the judgment dated 7‑5‑1984 passed by a learned Single Judge of the Lahore High Court, whereby the constitutional petition filed by the petitioner challenging the legality of the orders of his removal from service was dismissed.

2. The petitioner was appointed as Medical Officer in the Cantonment General Hospital, Shorkot on 8‑5‑1974 inter alia, on the condition that his services would be governed by the Pakistan Cantonments Servants Rules, 1954 as amended from time to time by the Federal Government. Rule 24 of the said rules reads as under:‑

"No Cantonment Servant shall engage in any trade or undertake any employment other than his public duties except with the previous sanction of the Director."

The Military Lands and Cantonments Department vide its Letter No. 92/85/G/AD(B)/ML & C/64, dated 25‑4‑1975 had granted permission to Medical Officers employed in the Cantonment General Hospitals/ Dispensaries, as a matter of policy, to undertake private practice during their off duty hours provided such private practice does not interfere in the normal performance of their duties. The petitioner, however, applied to the Chief Medical Officer, Pakistan Railways Headquarters, Lahore, for appointment as Assistant Surgeon at Railway Hospital, Shorkot Cantonment vide his application dated 6‑12‑1975. Subsequently the petitioner was appointed by the Railway Department at a fixed pay of Rs. 750 per month on terms and conditions as incorporated in letter dated 3‑2‑1976. One of the conditions of service stipulated in the aforesaid letter reads as under:‑

"That whenever an emergency arises due to an accident or other natural calamities you shall be liable temporarily to go out of your station of posting as may be directed by the Divisional Superintendent/ Chief Medical and Health Officer/ Divisional Medical Officer/ Assistant Medical Officer."

The Director, Military Lands and Cantonments Department having taken a serious view of what was considered an illegal /irregular appointment of the petitioner with the other Department, i.e. Railway Department, in violation of the terms and conditions of his employment, directed the petitioner to discontinue the part time employment, but he (petitioner) did not comply and was accordingly charge‑sheeted for misconduct. The petitioner was suspended on 11‑7‑1981 and after a departmental enquiry was found guilty and was removed from service on 12‑4‑1982. Having failed to get redress by way of revision before the Secretary, Ministry of Defence, the petitioner challenged the orders of his removal from service by means of a constitutional petition, primarily on two grounds, namely, that his part time employment with the Railway was in the nature of private practice which was permissible and was not violative of the rules of his service under the Cantonment Department and secondly, that the action of removal from service was motivated by mala fides, as the Director, Military Lands and Cantonments had a personal animus against the petitioner on account of the reversal of an earlier order for transfer of the petitioner to Quetta through a representation made to the Secretary, Ministry of Defence.

3. The learned Judge in the High Court repelled the allegations of mala fides as in his opinion, although the order of transfer of the petitioner to Quetta had been cancelled on *his representation, this fact ipso facto was not sufficient to establish mala fides or animus on the part of the Director as such matters are an ordinary incident of service and hardly sufficient to sustain the allegation of mala fide. The learned Judge further found that the subsequent conduct of the Director in not awarding the extreme penalty of dismissal from service to the petitioner as recommended by the Enquiry Officer and instead awarding him the lesser penalty of removal from service also detracted from the assertion that the latter entertained any malice towards the petitioner. On the question of the interpretation of rule 24 the learned Judge held that there is a distinction between employment by a doctor and undertaking of private practice by him. In this connection the learned Judge observed:‑

"To may mind in the case of usual private practice, without involving any employment, the practitioner remains master of his own time while in an employment, even though it is only part‑time the Doctor places himself under the control of another authority. "

As a result of this reasoning the learned Judge held that the petitioner by accepting service with the Railway Department had violated the terms and conditions of his service with the Cantonment Department and thereby committed misconduct.

The learned counsel for the petitioner in seeking leave to appeal has questioned the correctness of the view taken by the High Court and as urged that enquiry proceedings were vitiated on account of mala fides, as well as that in accepting a part‑time job with the Railway Department the petitioner was within his privilege to undertake private practice in terms of the policy decision in that regard. After hearing the learned counsel at length we are unable to find any force in his arguments.

4. As found by the High Court there appears to be no evidence to sustain the allegation of mala fides against the Director and we are in entire agreement with the learned Judge in the High Court that merely because the petitioner's transfer order passed by the Director was set aside by the Ministry, it cannot be held that thereby the Director. Military Lands and Cantonments entertained grudge or malice against the petitioner. It has been time and again laid down by this Court that an allegation of mala fides in respect of orders passed by public functionaries must be based on specific facts and proved conclusively. Such inference cannot be drawn from vague and general allegations.

5. As regards the prohibition contained in rule 24 of the Cantonments Servants Rules, 1954, it may be stated that the embargo is in clear terms enjoining a Cantonment servant from undertaking, inter alia, "any employment other than his public duties except with the previous sanction of the Director". The term "employment" in the context in which it appears in rule 24 clearly refers to a condition in which a man is kept occupied in executing any work and involves the concept of continuity of an appointment to an office. The concept of "employment" involves three ingredients, namely, (i) employer, (ii) employee, (iii) the contract of employment. It has been held that the employer is one who employs i.e. one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee where under the employee agrees to serve the employer subject to his control and supervision. The last characteristic is important in the context of this case. The obvious rationale underlying the prohibition contained in rule 24 is that an employee of the Cantonment service should remain under the control and supervision of his superiors in the Department and not subject himself to such control and supervision of another employer without the previous sanction of the Director, in which case the employee may subject himself to conflicting loyalties clearly not conducive to service discipline. The other essential ingredient of the concept of employment is continuity of service with another employer. Both these conditions are obviously absent in the case of private practice, which involves the providing of medical service by the Doctor during his off duty hours, and that also with the condition that such private practice does not interfere with the normal performance of his duties.

6. Our attention was invited to the condition of service already referred to whereby the petitioner was liable to go out of his station of posting at the direction of the Divisional Superintendent/ Chief Medical and Health Officer, etc. , in case of an emergency. Condition No. (viii) incorporated in the terms and conditions of the petitioner's service with the Railway Department, further provided as under:‑

"That you will work under supervision and control of the Railway Officer, under whom you may be placed and would obey all lawful command and abide by the Officer Incharge Head of the Department."

The foregoing terms and indeed the other terms of employment of the petitioner clearly make out that he had placed himself under the supervision and control of the Railway Officers, which clearly goes counter to the latter and spirit of rule 24. It is not denied before us that the petitioner had not obtained previous sanction of the Director to take up this appointment and indeed, even after being required to discontinue the same, he had refused to discontinue with the said employment. No fault can, therefore, be found with the finding that the petitioner was guilty of misconduct.

7. For the foregoing reasons there is no merit in this petition which is accordingly dismissed.

M. I. Petition dismissed.

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