1986 PLP 909 (PLC)

The considerations which prevailed with the learned trial Court in repelling the objections raised by the defendant about the maintainability of the suit are that the "plaintiff has rendered a long service from 1955 to 1979 in such circumstances, I do not see it a proper objection that the plaintiff has no vested right. The other objection (b) also is not convincing to me because being aggrieved by the action of the defendant after hearing of appeal proceeding the plaintiff has approached this Court against defendant's action. The issue No. 1 was decided in the negative. The trial Court decreed the suit with the following observations:‑ "This is a service matter. The plaintiff was appointed as Qari in 1955 and his service have been terminated without any enquiry and show‑cause notice and there is no allegation of misconduct or gross misconduct against him. Similarly, the perusal of the pleadings reveals that the plaintiff's service has been terminated only because he has participated in the election of the Local Body and he has been elected as a member of the Cantonment Board. From the evidence it is not established by the defendant that these elections purely political and the participation of the plaintiff in the election is against the policies of the Institution. The plea of defendant is that Anjuman‑e‑Islamia is non‑political Institution and the school is managed by the defendant, is also non‑political Institution, in case of employee of the Institution participates in election the work of the Institution will suffer. The dispute is not whether the Institution i.e. Islamia School is recognized or not the dispute is termination of the plaintiff from the service and on what ground allegations he had been terminated from service. The defendant has relied on page 9 of Dastoor‑e- Assasi wherein it is provided that the officers of Anjuman can appoint, terminate, promote, dismiss any of the employee of Anjuman getting Rs.520 per month. The perusal of this Dastoor‑e‑Assasi will reveal that there is no procedure for appointment, termination, promotion and dismissal of the employees. The natural justice requires that the person against whom action is taken he should be given full opportunity of hearing and explaining his case so that he should be able to plead his case. The Dastoor‑e‑Assasi of Anjuman‑e‑Islamia of Baluchistan is small document consisting 6 papers and it is not so much a detailed document. I think that the Members of the Anjuman have taken it into mind that the employee of the Anjuman has participated in election and he has been succeeded and become a member of local body but the plaintiff's case is that he was granted permission in 1964 to participate in B. D. Election. I think that the Cantonment Board is not a Political 'Body; and the election now‑a‑days are being held under the Martial Law Regime purely on non-political basis. These facts lead me to the conclusion that the plaintiff's service has been terminated unlawfully and in arbitrary manner," and it was declared that the plaintiff was unlawfully dismissed from service on 12‑11‑1979 and the same order was set aside, directing the defendants to re‑instate the plaintiff from the date of dismissal with cost. Against the judgment and decree, dated 9‑12‑1983 the petitioner filed appeal but was unsuccessful hence this revision. The grounds urged on behalf of the defendant that the plaintiff had no legal character was disposed of by the appellate Court in these words:‑ "that such a long period to create a vested right and when a vested right is infringed then a suit of present nature is held to be competent on the score within the provisions of Specific Relief Act." The objection of the petitioner that since the respondent had voluntarily withdrawn his appeal filed before the Majlis‑e‑Muntazima, the suit was not maintainable and the plaintiff was estopped in law was repelled. Though the finding recorded by the trial Court on issue No.3 was against the plaintiff and was not challenged as no cross‑objection was filed by the plaintiff before the appellate Court. In spite thereof the learned Appellate Court has expressed his opinion that Education Code governed the terms and condition of the service of the plaintiff, and it was held by the appellate Court that since "the institution has been receiving aid from the Government the Code of Education was only applicable to the institution and that under the Code of education no appeal was to be preferred by the plaintiff‑respondent". According to the appellate Court the plaintiff could only be "removed of the advise of the Superintendent or so. (2) In the absence of any snow cause (As presumed by the appellate Court) and without affording an opportunity of defence the 'turning out of plainti8' was not sustainable was an arbitrary act".

8. Mr. Shakeel Ahmed, the learned counsel for the petitioner has complained that both the Courts below have not appreciated the points involved for proper determination of the case and raised the following contentions before me:‑ (a) That the plaintiff ‑had voluntarily withdrawn the appeal filed before the Majlis‑e‑Muntazima, he was therefore, estopped to challenge the termination of his service through the suit. (b) That the Courts below have misread the evidence on the points involved and there is no evidence to justify the orders. (c) The education Code relied upon by the appellate Court is not applicable to the respondent. At any rate it does not advance the case of the plaintiff. (d) In the case of the plaintiff, the law of Master and Servant was applicable? (e) A suit for declaration was not competent under section 42 of the Specific Relief Act, read with section 21 of the same Act, and no injunction could be granted and the Court should not have ordered the re‑instatement of the plaintiff as such a relief could not be granted in law? (f) Mere fact that the plaintiff was once granted permission in the year 1964 to contest the D.B. election. This previous wrong does not confer a right for agitating the same wrong. (g) That process of election is itself a political activity because the law pertaining to cantonment election operates as a disqualification for remaining in service.

9. The stand of the plaintiff in his statement recorded in Court was that Ch. Sultan had called him in his office and had said that the plaintiff should withdraw the appeal and he would then be re‑instated. During the cross‑examination, it was suggested to the defendants witnesses that the plaintiff had withdrawn his appeal because plaintiff wanted not to embarrass the Majlis, and one Syed Iqbal Shah was a witness to that. But Ch. Sultan not Iqbal Shah were produced in Court with the result that the allegation and suggestion made by the plaintiff remained un-established. On the other hand all the Members of the Majlis have categorically said that the appeal was withdrawn unconditionally and no threat nor coercion was applied. The appeal was withdrawn voluntarily. Nothing has been suggested in the, cross‑examination of these witnesses which may impeach their character. l Even before me during the course of arguments Mr. Basharatullah could not say as to why these witnesses, the elite of the town, be not believed. I In these circumstances, the irresistible conclusion about the assessment of the evidence is that the learned trial Court has been led away by considerations which are certainly extaneous to the case and is based on opinion resting on speculation and the findings recorded are not supported by the evidence on record the allegations of the plaintiff are, therefore, negatived as having no force or substance.

10. Mr. Basharatullah, the learned counsel for the plaintiff respondents has made an attempt before me to justify the conclusion arrived at by appellate Court that it is the Baluchistan Education Code that is applicable and the appeal filed by plaintiff was an exercise in futility and that does not affect the rights of plaintiff to file the suit. I am unable to subscribe to this view that the directions contained in the Code are rules having the force of it this Code does not refer to any authority under the law under which it was framed:' The provisions forming this Code do not have the force of the statutory Rules made by the Baluchistan Government. Therefore, it would be misnomer to regard this Code, having a statutory force of law. They are in the nature of mere instructions issued by the Education Department for the guidance of the Aided institutions and are altogether directory. Thus, a mere infringement of the direction contained in any Article of this Code is of no avail to the plaintiff. This Code itself confers plenary powers and absolute discretion to the Aided institution to lay down terms and conditions of service. Mr. Basharatullah concedes that under Rule 5 contained in Appendix XXIV prescribed under Article 51 (iv) of the Baluchistan Education Code at (page 86) the service of an employee in recognized schools under Private Management may be terminated by either party on giving three months' notice in writing or paying three months' salary in lieu thereof unless the agreement provides for a shorter or longer notice. The learned counsel, however, terms the termination of service of the plaintiff as "Dismissal". This is simply misconceived. The order communicated to the plaintiff (Exh.P.3) in the concluding para. is expressed in these words:‑ "The termination order did not cast any stigma or slur on the career of the plaintiff /respondent.

11. The apprehension of the Anjuman was that in view of the incidental duties attached to the office to which Qari Yar Muhammad was elected (As Councillor of the Cantonment Board, Quetta) he may not be able to pay proper attention to this work in the Islamia School and this apprehension was strengthened by his occasional absence of duty as said in the letter, dated 6‑10‑1979 was definitely fraught with consequence, was sufficient of attract the attention of the educational institution, was the attention of the management and their concern in the interest of the educational institution, was not without reason. The action contemplated by the Anjuman in the circumstances of the case was thus not unjustified. The service was offered by the Headmaster of the School to the plaintiff the termination of service by the person holding the same post cannot, therefore, be denied. The plaintiff took the matter in appeal and there too he was heard and there is nothing on record that the decision arrived at in this behalf is not honestly made. The Anjuman Islamia being a registered body has a legal entity with a personality of its own distinct from the state, has sufficient power to control its day to day administration free from the control of the Government. The School run by the Anjuman was never taken over by the Provincial Government under M.L.R. No.

118. Thus, the decision arrived at honestly and in good faith cannot be interfered with by the Court even if it thinks that the penalty is severe or that a very strict standard has been applied. The Members of the judicial committee of the Privy Council in case L.A.P.O. Reilly v. C.C. Gittens A I R (36) 1949 P C 313 have pointed out that the Principles applicable to the proceedings before the domestic tribunal .are that there must be due enquiry. The accused person must have notice of what he is accused. He must have an opportunity of being heard, and the decision must be honestly arrived at. If he has had a full opportunity of being heard and the Tribunal acts honestly and in good faith, the Court cannot interfere even if it thinks that the penalty is severe or that a very strict standard has been applied. The plaintiff was required to explain his conduct, vide Exh. D.3 and after his reply Exh. D.4 the services were terminated, vide letter 12‑11‑1979 (Exh.P.13). The plaintiff took the matter in appeal before Majlise‑Muntazima and there too he was heard. There is evidence on record which cannot be possibly challenged. There is nothing on record to suggest that the decision arrived at in this behalf is not honestly made. The jural relationship between the Anjuman‑e‑Islamic and its employees is purely that of a master and servant under the general law.

12. The contention of Mr. Shakeel Ahmed, counsel for the petitioner' is that the suit filed by Qari Yar Muhammad the respondent herein is not maintainable in view of section 42 and section 21 (b) of the Specific Relief Act. On a careful consideration of the question in the light of the arguments advanced before me, I am inclined to accept this view. It is important to bear in mind that the petitioner‑defendant is an association free from any outside control, as stated above in the matters of appointment and discharge of its employees. Section 42 of the Specific Relief Act speaks of a right, only that right is a legal right which is recognized and protected by the laws of the statute and every such legal right involves a duty or obligation. The word obligation is the duty enforceable by law. It implies a right in another person to which it (the obligation) is co‑related. The characteristic mark of a legal right is its recognition by a legal system. If the right is challenged. Will the statute enforce it? Enforceability by legal process has, therefore, sometimes been said to be the sina qua non of a legal right.

13. Section 21(b) of the Specific Relief Act embodies the well‑known rule of English law that contracts of personal service between a Master and a Servant cannot be specifically enforced by either party. The reason, why it is so has been given in a judgment of the Calcutta High Court in Ram Chandra Bajpye v. Rakhal Das Mukherjee A I R 1914 Cal. 325, 20 I C 147 in these words:‑ "A contract of service may be determined by the master and the only remedy for wrongful dismissal would be an action for damages." "Suppose, the plaintiff refused to serve the defendants, the defendants surely could not compel him to serve them. If the trustees cannot prevent the plaintiff from resigning, he can have no right to compel the trustees to keep him. An agreement to serve cannot be specifically enforced." It was further said the judgment that assuming that the had been wrongly dismissed the Court cannot compel the trustees to re‑instate the Superintendent in his office if he was merely a servant. In the cited case there was a deed of trust providing that there should be 'certain trustees and under their control there should be a Superintendent of the Trust Property. The first Superintendent was to be the donor himself and after his death or relinquishment the Superintendent was appointed by the Trustees and the Trustees eventually dismissed that Superintendent. The Superintendent brought a suit claiming that he was wrongly dismissed and asking for an injunction against the trustees. It was held the contract of service was governed by section 21(b) of the Specific Relief Act and an injunction could, therefore, be not granted. Admittedly, the plaintiff entered the service of the Anjuman‑e- Islamia by virtue of a letter addressed to him by Ch. Sultan then Headmaster (Exh. P.l). the relationship does not appear to have been fixed or regulated either by any contract then with respect to any period between the parties, hence, he cannot complain that the termination of his service is against the terms explicit or implied in the contract or any statuary Rule/law. There was no condition of service with respect to the period. So, the suit could not be a suit for specific performance of the contract and the termination of service does not entitle the plaintiff to the claim of service. The record contains a document, dated 8‑12‑1979 issued by the Anjuman‑e‑Islamia to its employees and contains the terms of its employees and this was relied by the plaintiff and is filed alongwith the plaint. The relevant paras of the same read:‑ This agreement is certainly in consonance with the Rules of service of the employees in recognized school under private management as contained in rule 5 of Appendix XXIV provided under Chapter 111, Article 51 (iv) of the Education Code. The same is reproduced:‑ "(5) The agreement may be terminated by either party on giving three months' notice in writing or paying three months' salary in lieu thereof unless the agreement provides for a shorter or longer notice." The Anjuman (Master) may dispense with the services of the employees with notice or on payment of salary in lieu of notice. The servant may equally exercise the power of relinquishing his appointment on similar terms. These are mutual and reciprocal promises and there is no principle available in law which could operate to minimize their effect and this is the freedom of contract both for Anjuman and its employees uafettered by any legal disability. In view of this, the plaintiff could only be entitled to money from the defendant (see P L D 1961 S C 531). This judgment has been followed by Waheeduddin, J. as his Lordship then was, in Gulf Steamship v. Delwash Baluch. The position of an employee of the Anjuman‑e‑Islamia is not the same as that of a public servant who enjoys protection in respect of his terms and emoluments as such his position is wholly different from that of a servant of the state or a statutory corporation holding public office or performing public functions and duties under a statute.

14. The services of a servant cannot be forced upon his master. The master is always entitled to say that he is prepared to damages to the servant for breach of contract of service, if any but would not accept his service. A contract for personal service as will appear from section 21(b) of the Specific Relief Act, 1877 cannot be specifically enforced. Even apart from section 21(b) such a contract is unenforceable under section 21(b) where in it is provided that a contract for the non‑performance of which compensation in money is adequate relief cannot be specifically enforced.

15. A breach of contract can give rise only to two reliefs, damages or specific performance and if specific performance is barred the only relief is damages. When a master, in breach of his contract, refuses to re‑employee the servant, the only right that survives to the servant is the right to damages and a decree for damages is the only decree that can be granted to him. The civil Court, in the administration of Specific Relief Act, cannot order the re‑instatement of a servant wrongly dismissed by his Master. Under the general law, the services of a servant cannot be thrust upon his Master who is unwillingly to take him back and no declaratory suit in a civil Court is competent. The Supreme Court of Pakistan in R.T.H. Janjua's case P L D 1974 S C 146 has in unequivocal terms observed that the safeguards available to the generality of civil servants against dismissal or removal from service are not available to the servants of a registered company or a statutory corporation and to them the general law of Master and Servant is applicable and the only remedy available to the aggrieved servant in such cases is to sue for damages for wrongful dismissal. It is unnecessary to pad up this judgment with the authorities of the Superior Courts any further on this aspect of the law.

16. It have earlier come to the conclusion that the decision of the Anjuman‑e‑Islamia to terminate the services of the plaintiff‑respondent was essentially just and was in the interest of the institution and was made in good faith and this does not cast any stigma or slur on the career of Qari Yar Muhammad. Moreover, the plaintiff had been duly informed about the charges against him and he had been given opportunity to meet those charges by the Headmaster of the School, (the appointing authority) as well as the Majlis‑e‑Muntazima in appeal. This ends the matter. The reliefs claimed in the suit being discretionary, in the circumstances of this case, there is no justification for granting it. Further, such a decree can be easily nullified by the Anjuman‑e- Islamia after giving the plaintiff due notice as permitted by Rule 5 of the Appendix XXIV quoted above, and, therefore, the Court would be stultifying itself by granting such relief. The Courts below have proceeded on wrong assumption that there has been any statutory provision protecting the service of the respondent and there is any condition of service which is protected under any statutory provision. If the Anjuman has lost confidence in Qazi Yar Muhammad he cannot be forced upon them. The relief claim by the plaintiff‑respondent, therefore, cannot be claimed either in law or in discretion. I have no hesitation to hold that the orders/ judgments of the Courts below have been made in disregard of the decisions of the superior Courts. Both the Courts below have failed to apply an obvious principle of law and have acted illegally in the exercise of their jurisdiction. For the reasons, this revision has to be accepted. I, therefore, set aside the judgments and decrees of the Courts below impugned in this petition, As a consequence thereof, the suit filed by Qari Yar Muhammad, the plaintiff‑respondent stands dismissed. The parties shall bear their own costs. These are the reasons for the short order passed on 8‑9‑1985. A. A. Revision accepted.