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Petitioner: LATEEF SIDDIQUI VS Respondent: STATE PETROLEUM REFINING AND PETRO CHEMICAL CORPORATION (PVT.) LTD. (PERAC), KARACHI
1997 P L C (C
1997 P L C (C. S.) 1014
[Karachi High Court]
Before Dr. Ghous Muhammad, J
Dr. LATEEF SIDDIQUI
versus
STATE PETROLEUM REFINING AND ,PETRO CHEMICAL CORPORATION (PVT.) LTD. (PERAC), KARACHI and 2 others
Revision Application No. 18 of 1996, decided on 28th November, 1996.
(a) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑Ss. 21 & 42‑‑‑Civil Procedure Code (V of 1908), Ss. 9 & 115‑‑ Principles of natural justice‑‑‑Violation‑‑‑Rule of master and servant‑‑ Application‑‑‑‑Employee of statutory corporation‑‑‑Dismissal from service on basis of inquiry wherein principles of natural justice were allegedly ignored and actions of functionaries were claimed to be mala fide‑‑ Jurisdiction of Civil Court‑‑‑Dismissal of employee being mala fide and such action amounting to fraud on statute, would be without jurisdiction and, thus, illegal‑‑‑Declaration sought by plaintiff in suit was not barred under S.21 or S.42, Specific Relief Act, 1877‑‑‑Plaintiff at the time of institution of suit and thereafter, at, the time of filing of appeal had come up with triable cause of action‑‑‑Suit against dismissal was, thus, competent and principle of master and servant was not applicable in circumstances.‑‑[Master and servant].
Government of N.‑W.F.P. v. I.A. Sherwani PLD 1984 SC 72 and K.D.A. v. Wali Ahmed Khan 1991 SCMR 2434 rel.
Amin Ahmad v. Ministry of Production PLD 1996 Kar: 27; Evacuee ‑ Trust Board v. Muhammad Nawaz. 1983 SCMR 1275; Anisa Rehman v. PIAC 1994 SCMR 2232; K.D.A. v.Wali Ahmed Khan 1991 SCMR 2434; Islamic Republic of Pakistan v. S.A. Rizvi 1992 SCMR 1309; Qari Yar Muhammad v. Anjuman‑e‑Islamia 1987 SCMR 1776; Anwar Hussain v. A.D.B.P. PLD 1984 SC 194; Government of N.‑W.F.P. v. I.A. Sherwani PLD 1984 SC 72; Mst. Amina Begum v. Mehar Ghulam Dastgir PLD 1978 SC 220 and Sarbeswar Mondal v. Faqtr Chand Sarkar PLD 1963 Dacca 462 ref.
(b) Natural justice, principles of‑‑‑
‑‑‑‑Specific Relief Act (1 of 1877), Ss. 21 & 42‑‑‑Civil Procedure Code (V of 1908), S. 9‑‑‑Employee of statutory body‑‑‑Dismissal, from service without conducting enquiry proceedings‑‑‑Remedy‑‑‑Jurisdiction of Civil Court‑‑‑No evidence was led against plaintiff‑‑‑No enquiry report was even presented to Competent Authority‑‑‑Order of dismissal of employee was non- speaking order‑‑‑Employee's explanation to charges leveled against him was not considered at all‑‑‑Identity of Competent Authority was neither revealed nor Competent Authority had heard applicant before passing order it. question,‑‑Dismissal of employee was thus, without jurisdiction and against principles of natural justice where against Civil Court had jurisdiction to entertain, and decide plaintiff's suit‑‑‑Special equities lay in favour of plaintiff warranting High Court to take cognizance of order of dismissal in order to shorten litigation, mould relief and meet ends of justice.
Mst. Amina Begum v. Mehar Ghulam Dastgir, PLD 1978 SC 220; Surbeswar Mondal v. Fakir Chand Sarkar PLD 1963 Dacca 462; Central Insurance v. C.B.R. 1993 SCMR 1232 and Kamran Industries v. Collector of Customs PLD 1996 Kar. 68 rel.
Errington v. Minister of Health (1935) 1 KB 249; Kanda v. Government of Malaya (1962) AC 322; Chief Constable of North Wales Police v. Evans (1982) 1 WLR 1155; 1968 Cr.LJ 476 as per Vol. 3, MU, p, 99 (1992 Edn.). Nand Kishore Prasad v. State of Bihar AIR 1978 SC 1277; 63 CWN 702 as per Vol. 3, page 99 (1992 Edn.); Union of India v. H.C Goel AIR 1964 SC 364; 1969 Labour IC 896 quoted in Volume 3 MU page 100 (1992 Edn.) AIR 1964 Cal. 503 also quoted in Vol. 3, MU page 103 (1992 Edn.); Mst. Anisa Rehman v. P.I.A.C. 1994 SCMR 2232; Chairman, Pakistan Broadcasting Corporation v. Nasir Ahmed 1995 SCMR 1593; Ittehad Chemicals v. Mushtaq Ahmed ICA No. 217 of 1994 and Hazir v. P.I.A.C. 1993 MLD 1308 ref.
(c) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1, 2, O.VII, R. 11 & S. 115‑‑‑Natural justice, principles of‑‑‑Jurisdiction of Civil Court against dismissal of employee of statutory body‑‑‑Courts below while refusing to grant stay order against dismissal, rejected plaintiff's plaint on the ground that matter was governed by principle of master and servant and Court had no jurisdiction‑‑‑High Court found that order of dismissal was mala fide and against principles of natural justice‑‑‑High Court while restoring suit granted status quo ante with regard to payment of salary and benefits and perks attached thereto‑‑‑Status quo so granted, however, would not stand in the way of parties to reach settlement or compromise.
Government of Pakistan v. M. I. Cheema 1992 SCMR 1852 ref.
(d) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑ Entitlement to grant of temporary injunction‑‑‑Prima facie case was made out by plaintiff that departmental proceedings against him were mala fide and in violation of principles of natural justice‑‑‑Plaintiff had thus, established case of breach and violation of law‑‑‑Plaintiff had also proved requisites of irreparable loss and balance of convenience‑‑‑Plaintiff was, thus, entitled to relief of interim injunction.
(e) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1, 2, Ss. 115 & 151‑‑‑Actions taken against plaintiff by Departmental Authority proved to be completely ultra vires and without jurisdiction‑‑‑Where case did not strictly fall within parameters of O. XXXIX, C.P.C. Court could grant relief under S. 151, C. P. C. to do complete justice between the parties.
Balagamwala Oil Mills (Pvt.) Ltd. v. Shahkarachi Trading A.G. PLD 1990 Kar. 1 and Muhammad Usman Khan v. Mairajudin PLD 1978 Lah. 790 rel.
Jamil Ahmed v. Provincial Government off West Pakistan PLD 1982 Lah. 49 ref.
Muhammad Farogh Nasim for Appellant.
Arif Khan for Respondents.
Date of hearing: 5th May, 1996.
JUDGMENT
This Revision Application under section 115, C.P.C. is directed against the judgment and decree dated 22‑10‑1995 and 8‑11‑1995 respectively passed by the learned VIth Additional District Judge, Karachi South (hereinafter referred to as the "A.D.J.") in Civil Appeal No.92 of 1995 dismissing the applicants appeal against order of learned IIIrd Senior Civil Judge, Karachi South (hereinafter referred to as the" Senior Civil Judge") dated 28th August, 1995 in Suit No.520 of 1995, whereby not only the listed injunction application under Order 39, Rules 1 and 2, C.P.C. was dismissed but also the learned Senior Civil Judge exercised suo motu powers to reject the plaint under Order 7, Rule 11., C.P.C.
2. Before adverting to the order, judgment and decree passed by the two subordinate Courts it would be beneficial to first highlight the facts.
3. According to the applicant he joined National Petro Carbon Limited, a unit of State Petro Chemical Corporation (Pvt.) Limited (hereinafter: "PERAC"), the respondent No. 1, as General Manager, in 1978. Thereafter the applicant was promoted as Managing Director of M/s. Pak Hy‑Oil (Pvt.) Limited (hereafter, "PHOL"), one of the units controlled by the respondent No. 1. At material times the applicant received a letter dated 7‑11‑1994 from the Federal Anti‑Corruption Committee, Islamabad, (hereafter: "FACC" the respondent No.3, stating therein that a complaint had been received in relation to corruption/mal‑administration in "PHOL". A detailed report alongwith copies of balance‑sheet and audit reports were requisitioned. The identity of the alleged complainant was however not revealed. The applicant replied vide letter dated the 13th November, 1994 repelling the allegations while answering the queries. Respondent No. 3 vide letter dated 15th November, 1994 acknowledged the applicant's reply dated 13th November, 1994, however, found the same to be unsatisfactory and asked for more information. The applicant vide letter dated Nil attached as (Annexure "F") further complied and supplied information, while also requesting for a personal hearing. The applicant also through letter dated 21st December, 1994 requested the Ministry of Industries and Production, the respondent No. 2, to institute a departmental enquiry, while challenging the charges to be mala fide, baseless, irrelevant and without substance. The applicant in the meantime received another letter dated 20th December, 1994 from the respondent No. 3 complaining about the applicants "detached attitude towards providing replies". More information was sought. The applicant vide letter dated the 28th December, 1994 repelled the stance of respondent No. 3 by clarifying that prompt replies have always been sent. Furthermore, the applicant submitted a point‑wise reply.
4. At the same time the respondent No. 1 under directions from the respondent No.2, through letter dated the 20th December, 1994 directed the applicant to hand over the charge of Managing Director "PHOL", to Mr. Qazi Wajeehuddin and report to the respondent No.l. Thereafter the respondent No. 1 through letter dated the 22nd January, 1995 retrospectively suspended the applicant, without any show‑cause notice, with effect from 7th January 1995. Through the same letter disciplinary action was also sanctioned to be initiated.
5. On 18th February, 1995, the applicant received a show‑cause notice from the respondent No. 1 levelling a number of charges. The applicant controverted the allegations through letter dated 20th February, 1995. The respondent No. 1 through letter dated 16th March, 1995 issued a charge‑sheet on the same allegations on the pretext that the reply of the applicant dated 20th February, 1995 was not found to be satisfactory, without spelling out the reasons for the conclusion. Additionally the respondent No. 1 through another letter also dated 16th March, 1995 intimated holding of an enquiry on the same pretext that the applicant's reply to the show‑cause notice was found to be unsatisfactory. In the meanwhile the respondent No.3 vide letter dated 14th March, 1995 intimated the applicant to meet the Chairman F.A.C.C. on 16th March. 1995 at 11‑00 a.m at Cabinet Block, Islamabad by way of personal hearing. At the notified time and date the applicant went from Karachi to Islamabad but no personal hearing was accorded and the Chairman did not meet the applicant. This factual position has been averred at paragraph 9 of the Revision Application, which has not been denied in the corresponding part of the only counter‑affidavit filed by the respondent No. 1 while no counter‑affidavit filed by the respondent No. 1 has been filed by any oilier respondents.
6. The enquiry at Karachi commenced which was attended by the applicant. The ,Enquiry Committee first met on 26th March. 1995 on which (late the proceedings were adjourned to 30th March, 1995, as no witness or evidence had been presented by the respondent No. 1. On 30th March, 1995 the enquiry proceedings were adjourned sine die for the same reasons as existed on 26th March, 1995. Thereafter no further proceedings in pursuance of the enquiry were conducted. This fact also is not controverted in the counter‑affidavit filed by the respondent No. 1.
7. In this background the applicant filed Civil Suit No.520/1995 alongwith an application under Order 39; Rules 1 and 2 C.P.C. on 25th April, 1995 before the Senior Civil Judge, Karachi (South). On 27th April, 1995 the learned Senior Civil Judge passed an ad‑interim order directing the respondents to maintain a status quo till 4th May, 1995, the next date of hearing. The ad‑interim stay was communicated to the respondent through Court as also through counsel's letter dated the 27th April, 1995 (Annexure "S").
8. While the ad‑interim injunction was in operation, a news item appeared in the daily Dawn' dated 10th May, 1995 (which was also incidentally the Eid day), captioned "F.A.C.C. finds another case of malpractice" containing allegations which were the subject‑matter of tile suit. On this the applicant moved an application for Contempt of Court under section 3 of the Contempt of Courts Act on grounds that the very item was procured in the news paper on Eid day with a mala‑ fide intent by the respondents in violation of the said order ad‑interim and also when th e subject‑matter was pending in the Court. Also during pendency of the suit, the respondent No. 1 who, before filing thereof had reduced the applicant's salary by 50% totally discontinued the salary and all benefits of the applicant, It was in view of this the applicant moved yet another interlocutory application under Order 39, Rule 2(3) of the Civil Procedure Code.
9. In this background the learned Senior Civil Judge heard the injunction application and through order dated 281h August, 1995 came to the conclusion that plaint did not disclose any cause of action and that the matter essentially pertained to that of master and servant. The learned Senior Civil Judge accordingly sup motu invoked the provisions of Order 7, Rule 11, C.P.C. and rejected the plaint while also dismissing the application under Order 39, rules 1 and 2, C.P.C. No orders were passed on application under Order 39, Rule 2(3), C.P.C.
10. The applicant in response, preferred an Appeal No. 92 of 1995 before the A.D.J who by order dated 24th September, 1995 granted a status quo against any adverse action, however, allowing the enquiry t<> continue. A subsequent enquiry commenced and whatever transpired during the enquiry proceedings shall be adverted to later on. The A.D.J. in the meantime heard the matter and through judgment dated 22nd October, 1995 dismissed the applicant's appeal on grounds, inter alia, that the relief sought by the applicant was beyond the jurisdiction of the subordinate Courts After rejection of the appeal, the respondents also terminated the applicant through order/communication dated 26‑11‑1995 and 27‑11‑1995.
11. In this background the applicant preferred the instant revision application praying as under:
"It is therefore prayed in the interest of justice that this Hon'ble Court may kindly be pleased to accept this revision and call for record and tiles of Civil Appeal No. 92 of 1995 from the Court of Vlth A.D.J., Karachi South, and after kind perusal and hearing be, further pleased to:
(a) suspend the operation of the impugned judgment/decree while setting aside the same;
(b) restrain the respondents from taking away action in consequences of art in pursuance to the impugned judgment/decree;
(c) the orders including that of dismissal and charge‑sheets issued by the respondents as impugned be cancelled and struck down as illegal, void ab initio and of no legal effect;
(d) permanently restrain the respondents from taking action to enforce the said orders and charge‑sheet or take any action mala fide in a manner and with a view to illegally harass the applicant;
(e) pending disposal of this revision suspend the operation of all impugned actions, charge‑sheets and orders including the impugned judgment/decree of the Additional District Judge;.
(f) grant any other relief which this Hon'ble Court may deem fit and proper;
(g) award costs;
(h) pending disposal of the main suit before the Civil Judge grant a status quo ante‑order before 7‑1‑1995 including payment of salary, perks and benefits and other utilities including the car and bills of the applicant or pass a just order also allow amendment of the main suit, if necessary."
Mr. M. Farogh Nasim, learned counsel for the applicant, has assailed the impugned orders of the two Courts below, as also the enquiry proceedings and order of dismissal. He has raised the following objections and arguments:
(a) the order of suspension dated 22nd January, 1995 has been passed without a show‑cause notice. Also the service rules of respondent No. 1 do not provide for any suspension pending enquiry;
(b) upon suspension the applicant's salary and perks were reduced by 50 % and thereafter completely discontinued during the pendency of the suit. No reduction of salary and perks was provided for by the service rules and in any event the said action is void and against the injunctions of Islam mitigating against Article 2‑A of the Constitution;
(c) the entire proceedings were farcical, fanciful, premeditated and mala fide, proper opportunity has not been given while the entire exercise has been conducted without any evidence or date which has not been furnished to the applicant despite repeated requests;
(d) the applicant had formulated a reply to the final charge‑sheet. However, the respondent passed the order of dismissal without a speaking order and without at all giving any explanation as to why the applicant's reply was not considered satisfactory. The dismissal is also completely without complying with the requirements of natural justice;
12. On the other hand Mr. Arif Khan, the learned counsel for the respondent No.l has maintained that the revision application has to be dismissed in view of the following:‑
(a) The relief sought is beyond the ambit of the revision as after the judgment of the learned A.D.J. and before institution of the revision application, the applicant had been dismissed from service. Revision is accordingly not maintainable since it also aims to call into question the dismissal order which was not the subject matter of the suit before the learned Civil Judge or even the appeal before learned A. D. J.
(b) The applicant was himself not serious about the revision application since he had himself filed C.M.A. No.90/1996 under Order 23 read with section 151, C.P.C. praying for withdrawal of the main revision application with permission to file a fresh Constitution petition or civil suit. Although the applicant had withdrawn the said C.M.A. as not pressed, he stood estopped from maintaining the instant revision application as he himself conceded that he was not entitled to any relief;
(c) No relief can be accorded to the applicant as PHOL has stood privatized and the matter thus pertains to a relationship of master and servant, and at best the applicant could maintain a civil suit of damages for wrongful dismissal, Also the relief sought for declaration is barred under the Specific Relief Act, hence the suit is not maintainable.
Both the learned Advocates for the parties cited a number of authorities and decisions which shall be considered hereinafter.
13. After having gone through the record and the case‑law cited at the Bar, I think the foremost question in the instant case is to examine the objection advanced by the respondent that since M/s. PHOL stands privatised, no suit or legal proceedings seeking a declaration for reinstatement are maintainable and the matter only concerns a relationship of master and servant. In this respect, Mr. Arif Khan has relied upon Amin Ahmad v. Ministry of Production PLD 1996 Karachi 27, where a Division Bench of this Court has observed that where persons are employed by private companies and wish to sue their employers the only remedy available is a suit for damages. Mr. Muhammad Farogh Nasim on the other hand has contended that at all material times the applicant was employed by respondent No. 1, which was wholly controlled by the respondent No. 2, the Ministry of Production. Also at the time of filing of suit respondent No. 1 through a letter dated 20‑12‑1994 had transferred the applicant from PHOL with direction to report to the respondent No. 1. The learned counsel for the applicant has further pointed out that at page 3 of the counter‑affidavit filed by the respondent No. 1, there is an admission to the effect that all actions taken against the applicant have been taken upon the recommendation of respondent No. 3, the F.A.C.C and upon directions of respondent No. 2, the controlling Ministry in respect of respondent No. 1 and its projects. The contention of Mr. Muhammad Arif Khan that the applicant is employed by a privately owned corporation is thus against the record. This brings me to the objection of Mr. Arif Khan that the matter between the applicant and respondent No. 1 is essentially based on a contractual relationship governed by the principle of master and servant, which implies that the only remedy against an illegal termination is a suit for damages and not for declaration. Review of the case‑law on the subject reveals that where the employer is a completely private person having no nexus with the Government the aforesaid rule applies without any exception. However, where the employer is an entity controlled by the Government the rule of master and servant does not apply:‑
(a) where the rules of service are gazetted or statutory in nature (e.g. See Evacuee Trust Board v. Muhammad Nawaz 1983 SCMR 1275);
(b) where an action is taken against the employee in violation of principle of natural justice as the rules of natural justice have been equated with, law which would imply that a breach of the rules of natural justice amount to breach of law (See Anisa Rehman v. PIAC 1994 SCMR 2232);
(c) where the action complained of by the employee is mala fide, since a mala fide action is reckoned to be fraud on the statute and completely without jurisdiction (See K.D.A. v. Wali Ahmed Khan 1991 SCMR 2434; Islamic Republic of Pakistan v. S.A. Rizvi, 1992 SCMR 1309).
Since the applicant in this case has complained against actions falling under the later two exceptions i.e. breach of natural justice and mala fide, the objection that the matter pertains to a contractual relationship governed by the principle of master and servant ex facie is not sustainable (for further elaboration on the point see paragraphs 13, 14, 17, and 18 below). As regards the objection of Mr. Arif Khan that the applicant lacks a legal character and hence no relief under section 42 of the Specific Relief Act can be accorded the same is also not sustainable. Mr. Arif Khan in this respect has placed reliance on Qari Yar Muhammad v. Anjuman‑e‑Islamia, 1987 SCMR 1776. In the said case the employer was a school run by a private institution and accordingly the suit was found to be hit by sections 21 and 42 of the Specific Relief Act. In the present circumstances the employer is respondent No. 1 which admittedly in respect of the employment of the applicant and otherwise is wholly controlled by the respondent No. 2, the Ministry of Production, the Government of Pakistan. In Anwar Hussain v. ADBP PLD 1984 SC 194 there is a suggestion that in matters of service where the employee possesses certain statutory or legal safeguards i.e. where statutory rules govern his relationship with his employer, the employee would possess a legal character for the enforcement of such safeguards and would not be merely governed by the principles of master and servant. The' safeguards embedded in the principle of natural justice and in the presumption that all actions taken by the Government and its functionaries should not be mala fide, are on such a higher plane that they stand equated with legal and statutory safeguards. The reason for this being that our, Supreme Court in Anisa Rehtnan has equated breach of natural justice with breach of law, while in K.D.A. v. Wali Ahmed and Republic of Pakistan v. S.A. Rizvi the statement of law that all mala fide actions are frauds on the statute and without jurisdiction and thus illegal has been reiterated with precision in service matters as well. Accordingly, in the present case there can be no cavil that the suit filed by the applicant; and the declaration sought therein was not barred under sections 21 or 42 of the Specific Relief Act as the applicant possessed the legal character in seeking to enforce the aforestated safeguards.
14. The next contention that warrants consideration is whether at the time of filing of this suit the applicant had any cause of action. The learned counsel for the applicant pointed out that the entire series of actions were mala fide, without proper opportunity of hearing and without any merit. He further contended that suspension was not only made without a show‑cause notice, the same is also not provided for in the service rules. The entire enquiry proceedings were premeditated, a smoke screen, sham, and a colourable device to dismiss the applicant. Furthermore at the time of filing of the suit the applicant's salary and perks were reduced by 50 per cent which by itself had given a cause of action. Also during the pendency of the suit the applicant had moved an interlocutory application under Order 39; Rule 2(3) of the C.P.C. bringing to the Court's knowledge that in defiance of the ad‑interim order the salary/perks were completely discontinued. In Government of N.‑W.F.P. v. I.A. Sherwani PLD 1984 SC 72, a Full Bench of the Shariat Appellate Court had been pleased to observe that any unilateral and arbitrary reduction of salary without any fault having been proved against the employee is itself repugnant to the injunctions of Islam. In the present context the charges, if any, had first to be established…
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