2003 PLP (C (PLC(CS))

Surat 9: Al‑Tauba, Verse 111 Surat 2: Ar‑Rad, Verse 20 Surat 16: AI‑Nahl, Verse 91 Surat 17: Bani Israil, Verse 34 Surat 23: Al‑Muminum, Verse 8 and 1 1 Surat 33: Al Ahzab, Verse 15 Surat 33: Al Ahzab, Verse 23 Surat 48: Al‑Fateh, Verse 10 Surat 70: Al‑Maarij, Verse 32, 33 and 35 Learned counsel has also placed reliance on the cases of Commissioner of Income Tax, Peshawar Zone, Peshawar v. Messrs Siemen A.G. (1991 PTD 488), Joseph James Gonsalves v. Messrs Sono Central Trading Limited (1999 PLC 381). Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232). Mr. Munawar Ghani, learned counsel for the defendants. has opposed this application. In reply to "the objection raised that the written statement signed by defendant No.2 or. behalf of defendant No. 1 is not valid in view of restrictions imposed in paras 8, 9 and 10 of the power‑of‑attorney, learned counsel has stated that defendant No. 1 by letter dated April 9, 2001 addressed to defendant No.2 has ratified the signing and execution of the written statement already filed on behalf of defendant No. 1 by defendant No.2 as Managing Director of defendant No. 1 Pakistan Branch, photocopy whereof is produced in Court, as such the objection has no substance. That the judgments cited on behalf of plaintiff are not applicable to the case of the plaintiff. His contentions are that the relationship between the parties is that of a master and servant. The plaintiff as employee of the defendants cannot be thrusted upon the defendants contrary to the wishes of the employers; that the suit involves the claim of damages and as such the question of declaration and injunction as prayed cannot be allowed. The plaintiff is not entitled to grant of interim relief by present application. In support of his contentions, learned counsel has placed reliance on Messrs Malik and Haq and another v. Muhammad Shamsul Islam Choudhary (PLD 1961 SC 531), R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146), Muhammad Yusuf Shah v. Pakistan International Airlines Corporation (PLD 1981 SC 224), Shahnawaz Ltd. v. Khawaja Auto Cars Ltd. (PLD 1979 Karachi 38), Qari Yar Muhammad v. Anjuman‑e‑Islamia (1987 SCMR 1776), Messrs Vokervam (Pakistan) Ltd. and others v. Syed Hamid Hussian (1988 MLD 2067), Ch. Nazir Ahmad and others v. Rana Abdul Hamid and others (1990 CLC 385), Muhammad Raza v. Haji Abdul Ghaffar and 6 others (PLD 1992 Karachi 17), Tabir Mahmood Rana v. The Tourism Development Corporation of Punjab, Lahore and 2 others (1994 CLC 2004), Obaidullah and another v. Habibullah and others (PLD 1997 SC 835), Habib Bank Limited and others v. Syed Zia‑ul‑Hassan Kazmi (1998 SCMR 60) and Ms. Zeba Mumtaz v. First Women Bank Ltd. and others (PLD 1999 SC 1106).

4. On perusal of the record and the contentions of the learned counsel based on the admitted documents, photocopies whereof are available on record, the question for consideration and: necessary for the decision of this application in the light of the arguments advanced by Advocate for the plaintiff, is whether the law of Master and Servant is applieable to the case in view of section 4(b) of the Shariah Act, 1991 which reads as follows:‑ (4) Laws to be interpreted in the light of Shariah‑‑For the purpose of this Act‑‑ (a) while interpreting the statute‑law, if more than one interpretation is possible, the one consistent with the Islamic principles and jurisprudence shall be adopted by the Court; and (b) where two or more interpretation are equally possible , the interpretation which advances the Principles of Policy and Islamic provisions in the Constitution shall be adopted by the Court." The question of safeguard of services of employees and the rights of employees was considered in detail by the Hon'ble Federal Shariat Court in the case of Muhammad Ramzan Qureshi v. Federal Government and others PLD 1986 F.S.C. 200). The distinction between civil service and contractual service together with the application of the law of master and servant. It was held:‑ (48) The Qur'an and the Sunnah as such do not directly provide for such protection for the employees nor the judgment of this Court on section 13(i) and (ii) of the Civil Servants Act, 1973 was based upon such direct protection. The reasoning in support of the direction issued under that Act was entirely different. It shall be considered in details in another context in this judgment. It was for this reason that in the case of M. Daryab Yousuf Qureshi v. Chairman, WAPDA (1), it was held while considering the vires of section 17 of West Pakistan Water and Power Development Authority Act (XXXI of 1958) that Shariah has given much flexibility to the relationship of employer and employee which is a contractual relationship and in that relationship the main guarantees given by Shariah to an employee are:‑ (i) The immediate payment of his wages. (ii) Strict adherence to the terms of contract. (iii) Abstinence from making his work hard and unbearable. (49) Section 17 was not therefore, held to be repugnant to the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.). (50) One of the grounds of safeguard of civil servants rights is that the Government is under a duty to provide employment to people Consequently, it cannot throw out its servant except for cause: As will be seen later there is ample justification in Shariah for this. (51) This principle cannot apply to private servants or servants other than civil servants unless any law is made for safeguard of their interest or service tenure." (Underlining is mine). In the instant case neither any statutory law nor any statutory rules governing the services of the plaintiff are involved and the question of interpretation of law to this extent does not arise.

5. The case of Commissioner Income Tax (supra) pertains to interpretation of statute when the agree terms of both the parties to the agreement providing for payment of fixed dividend on shares was not adhered to by the Income‑tax Officer. In view of the terms of the agreement the Hon'ble Supreme Court held that the discretion could not be exercised in manner contrary to the intention of the contracting parties bound to fulfil their contracts and the third party viz. The Income‑tax Officer erred in exercise of his jurisdiction by declining to give effect to the same of the purpose of assessment of tax. These facts are entirety distinguished from the facts of the present case as no breach of contract was involved.

6. The case of Joseph James Gonsalves (supra) is already under appeal. Learned counsel for the defendant has fled statement that High Court Appeal No.5 of 1998 was admitted to regular hearing suspending the operation followed by compromise between the parties before the matter attained finality.

7. The case of Mrs. Anisa Rehman (supra) pertains to the reduction in lower grade of an employee of PIA. The Hon'ble Supreme Court while allowing the appeal has held that the statutory law of master and servant is applicable to the employment of PIA as the service rules of PIA were not statutory rules of service and observed that 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 rule cannot press into service constitutional jurisdiction or civil jurisdiction for seeking relief of instatement in service, his remedy for wrongful dismissal is to claim images.

8. The question of specific performance of contract in case of an employee, the criteria for termination and grant of injunction in the absence any statutory provision protecting the servant, it is not possible in law to ant him a decree against an unwilling master that he instill his servant. A servant cannot be forced upon his master. The master is always entitled to y that he is prepared to pay damages for breach of contract of service but ill not accept the services of the servant. A contract for personal service as ill appear from section 21(b) of the Specific Relief Act cannot be specifically enforced. But it is not even necessary to invoke section 21(b) for such a contract is un‑enforceable on account of section 21(a) wherein it is provided that a contract, for the non‑performance of which compensation in money is adequate relief cannot be specifically enforced. In a case where there is a contract between a master and a servant the master agreeing to pay the salary and the servant agreeing to render personal service it is obvious chat money compensation is full relief, for all that the servant was entitled to under the contract was his salary. A breach of contract can give rise to only, two reliefs; damage or specific performance. If specific performance be barred the only relief available is damages. When a master, in breach of his contract, refused to employ the servant the only right that survives to the servant is the right to damages and a decree for damages is the only decree rat can be granted to him. It has further been held that in a plaintiff is entitled to money from the defendant he cannot claim a declaration as to his ping so entitled. He must sue for money. In any case, the only right that survived to respondent No.1 on account of breach of contract was the right sue, for damages. For purpose of termination it has been observed that it is quite sufficient that tire master when he files the written statement or appears in Court takes up the position that the servant is no longer his servant and that his services have been terminated by him. Assuming that before suit there was no valid termination of services there is a breach of contract when the master appears and the relationship of master and servant necessarily ends. What is to be considered is that the master is a defendant to the suit. He is contesting the suit. He contends that plaintiff.

9. It is not his servant. No decree for a declaration that the servant holds a post can be passed against the master as held by the Hon'ble Supreme Court in Messrs Malik and Haq's case (supra).

10. In the case of R.T.H. Janjua (supra) the Hon'ble Supreme Court after examining the case of arbitrary dismissal of an employee of PNSC while refusing to grant leave for appeal observed that in all these cases, the grievance related to alleged arbitrary dismissal from service of an employee by an incorporated company or statutory corporation in which the general law of master and servant was held applicable. It has been laid down that the only remedy available to the aggrieved servant in such cases is to sue for damages for, wrongful dismissal and not a writ of mandamus or certiorari.

11. In Messrs Volkeram's case (supra) the Hon'ble Supreme Court has held that the relief for injunction sought was of a consequential nature. Even otherwise, a contract of personal service could not be specifically enforced as "or breach thereof generally damages could be obtained, and therefore, no junction could be granted under the provisions of section 56 of the Specific relief Act.

12. In Obaidullah's case (supra) the Hon'ble Supreme Court was pleased to observe that in the absence of any Constitutional or other statutory guarantee of continuity of employment, the contract is revocable. Injunction cannot be granted as .it is hit by section 21(b) of the Specific Relief Act and compensation in money is an adequate relief in case of non performance of the contract.

13. In the case of Habib Bank Limited and others (supra) the Hon'ble Supreme Court setting aside the operation of the interlocutory orders of the High Court suspending the effect of the letter of termination was pleased to rely on an earlier decision (1997 SCMR 1508) wherein it was observed: ‑ "(12) In the present case as stated hereinabove, pursuant to the notification of termination of service of the respondents, ,the respondents handed over the charge of their offices though, according to them, under protest. Admittedly, they were not in office for several months when they filed their aforementioned writ petitions and therefore, the learned Judge in Chambers could not have created a new situation by suspending the termination orders. In other words, he could not have re‑inducted the respondents into service before the disposal of their writ petitions. We are, therefore, inclined to hold that the impugned interlocutory orders are not sustainable in law. (13) The above petitions are converted into appeals; the aforementioned interlucatory orders and the orders conflicting the same are set aside. However, since the period of three years will expire or. 7‑7‑1997 and 11‑7‑1997, the High Court may dispose of the main writ petition before 7‑7‑1997, as purely a point of law is involved in them. The above appeals stand disposed of in the above terms, with no order as to costs." The same principle was upheld in Zeba Mumtaz's case (supra) and by upholding the action of termination of service the Hon'ble Supreme Court observed that respondent‑bank may have had certain grievances against the petitioner but then a decision was taken to terminate the services of the petitioner under the said Rule 11 of the Staff Service Rules of the Bank and three months' pay was also received by the petitioner from the respondent Bank in lieu of three months' notice under the said rule. The finding of the Tribunal that in the circumstances, the order terminating the services of the petitioner was a termination simpliciter does not call for interference.

14. It is also settled law that while granting interlocutory relief the Court maintain the situation‑ as prevailing at the time of institution of proceedings‑ and does not create a new situation. Allowing the present application would amount to creating a new situation by grant of interlocutory relief as held by this Court in the case of Shahnawaz Limited (supra). In view of the above discussion this application is dismissed. S.A.K./S‑232/K Application dismissed.