1990 PLP 479 (CLC)

(i) Bal Krishana Anand Hirlikar v. Emperor (A I R 1931 Bom. 132); (ii) Province of East Pakistan v. Hassan Askary (P L D 1971 SC 82)i and (iii) Straker v. Director of Public Prosecution (1963) 10 B 926). in which inter alia it was held that insertion of a notification in the official Gazette itself would not constitute publication of the notification, but the notification could . be said to be published only when some means was adopted to communicate to the public or to the party concerned. On the other hand, Mr. A.A. Fazeel, learned counsel for the respondents,. invited our attention to the language used in the aforesaid notification dated 23‑2‑1978, particularly to the following portion of the notification: "declaring the following categories of employment to be classes of employment to which the said Act shall apply, shall reman in force for a further period of six months commencing on the 26th February 1978, namely:" It has been contended by Mr. A.A. Fazeel, since the notification was to operate for a further period of six months commencing on 26‑2‑1978, the period of six months cannot be computed from any other date than which has beed specified in the above‑quoted portion of the notification. In our view, if the notification would ,nmence, the not have specified the date from which the notification was to co contention of Mr. Mushtaq Memon might have force. To put it differently, if the notification would have been silent as to the date of the commencement of the period of six months, it could have been contended that the period of six months was to be reckoned from the date when the notification was made available to the public and not from the date of the publication of the notification in the Gazette. Even if we were to accept the above contention of Mr. Mushtaq Mernon, the effect would be that in fact this notification would operate for a shorter period than six months, as we would exclude the period from 26‑2‑1978 to 28‑3‑1978 on the ground that the Gazette was not available. However, we cannot change the date mentioned in notification, namely, 26‑2‑1978, as observed hereinabove. It is, therefore, evident that on 31‑8‑1978, when the impugned order of terminating petitioner's service was passed, the provisions of the Act were not applicable 'to respondent No.l. The view which we are inclined to take as to the interpretation of the above notification dated 23‑2‑1978 is fortified by the fact that in the notification dated 12th September 1978 also issued under subsection (1) of section 3 of the Act, no date as to the commencement of the notification was mentioned nor any period for which the notification was to operate was mentioned. . We may observe that section 5 of the Act prohibits the fi discontinuation of the service either by an employee or by employer without reasonable excuse.

6. Then it was contended by Mr. Mushtaq Memon, as the aforesaid second notification dated 12th September 1978 was operative on 30th October 1978, i.e. on the date when the petitioner discontinued the work in respondent No.l upon the suspension of the Chairman NIRC's order dated 30‑9‑1978, by the High Court in aforesaid Writ Petition No.1416/1978. The above contention has no force, as admittedly the petitioner could not have acquired any right on the strength of the order dated 30th September 1978 of the Chairman NIRC, particularly when it was suspended by the High Court on or before 30th October 1978 and eventually it was declared as without lawful authority when the above writ was allowed by the aforesaid judgment dated 3‑5‑1982.

7. As regards Mr. Mushtaq Memon's second submission that since the petitioner was a permanent employee of respondent No.], his services could not have been terminated without serving a sh6w‑cause notice and without holding an enquiry, it may be observed that in support of his above submission, he has referred to the letter of appointment dated 26‑1‑1965, in which in paragraph 1 inter alia it has been stated that "the position we have to offer is a permanent one being that of a Chief Process Engineer". It has, therefore, been contended, since the petitioner was a permanent employee, his services could not have been terminated. It was also urged that factually no notice was served and that respondent No.l made an incorrect endorsement purported to have been made by the postal authority to the effect that the receipt of the letter was refused by the addressee. In furtherance of the above averment of fact, reliance was placed by Mr. Mushtaq Memon upon an alleged letter dated nil issued by someone for City Superintendent of Post Office with reference to the petitioner's letter dated 1‑11‑1978 stating therein that registered letter No.029 which was booked by the Hotel Metropole Post Office Karachi, on 31‑8‑1978, was not delivered due to non‑availability of the addressee. The above everments are denied by the respondents. They had also made available the original sealed covers containing the termination order and other sealed covers, whereby the cnptes etc., were sent. (, in response to the petitioner's advocate's notice under Order 12 Rule 8 C.P.C.. served on the Advocate for the respondents. It will suffice to obacrvc that we cannot examine the above factual controversy in this petition.

8. Reverting back to the question, whether the petitioner's services could have been terminated by serving one month's notice or by payment of one': month's 'salary in lieu of one month's notice, it may be observed that in the absence of any violation of any provision of law or statutory rules, an employee of a limited company or a Corporation cannot maintain a petition for writ for I D getting himself in effect reinstated. 1t had been consistently held by the Hon'ble I Supreme Court of Pakistan that an employee of a statutory Corporation could not; seek redress in writ jurisdiction of the High Court, which relief is available to a civil servant against his removal from service. Reference may be made in this regard to the following cases:‑ (i) Abdul Salam Mehta v. Chairman, Water and 'Power Development Authority and another, reported in 1970 S C M R 40. (ii) Shahid Khalil v. Pakistan International Airlines Corporation, Karachi, reported in 1971 S C M R 568. (iii) The Chairman, East Pakistan Industrial Development Corporation and another v. Rustom Ali and another, reported in P L D 1966 SC 848. (iv) Zainul Abidin v. Multan Central Co‑operative Bank Ltd., Multan, reported in P L D 1906 S C 445. (v) The Lahore Central Co‑operative Bank Ltd. v. Pir Saif Ullah Shah, reported in P L D 1959 SC (Pak.) 210. (vi) Dr. Abdul Hafeez v. Chairman, Municipal Corporation, Lahore and others, reported in P L D 1967.Lahore 1251. (vii) R.T.H. Janjua v. National Shipping Corporation, reported in PLD 1974 SC 146; and (viii) Muhammad.Yusuf Shah v. Pakistan International Airlines Corporation; reported in P L D 1981 SC

224. However, in the case of The Principal, Cadet College, Kohat and another v. Muhammad Shoab Oureshi, reported in P L D 198.1 SC 170 the Hon'ble Supreme Court, after referring some of the cases referred to hereinabove, had held that a writ would not be competent unless violation of any provision of statute or statutory rules was shown. The appeal filed by the Principal of the College against the judgment of the High Court allowing writ of an employee was set aside and the appeal was allowed. We may observe that after the pronouncement inter alia of the above judgment, the view that in no case an employee of a statutory corporation can maintain a constitutional petition is no longer the prevalent view. If an employee of a statutory corporation can demonstrate that there has been infraction of any provision of law or statutory rule, a Constitutional petition will E be competent. for an appropriate relief. We may observe that Mr. Mushtaq Memon, has not been able to point out successfully that there has been any violation of any statute or of a statutory rule, though he contended that because of Section 4 (4) of the Order, the petitioner's services could not have been terminated by respondent No.l which contention we intend to deal with later on hereinbelow. Mr. Ali Ahmed Fazeel, learned counsel for the respondents, has reiied upon the above Supreme Court cases of R.T.H. Janjua v. National Shipping Corporation, reported in P L D 1974 SC 146 and Muhammad Yusuf Shah v. Pakistan International Airlines Corporation, reported in P L D 1981 SC 224, and has also referred to the following cases:‑ (i) Province of East Pakistan v. Moulvi Momtazuddin Ahmed anal 2 others, reported in P L D 1971 Dacca 235, and the case of (ii)' Federation of Pakistan v. Shamsul Huda reported in P L D 1957 Dacca

148. In the first case, a Division Bench of the Dacca High Court, has held that a master can dismiss a servant for misconduct without notice and that the principle of audi alteram partem cannot be extended to a case of employer and employee governed by principle of master and servant and the suit for damages is the only remedy for the employee. In the latter case, a learned Single Judge of Dacca High Court, after referring to the provisions of Sections 240 and 241 of the Government of India Act, 1935 and the Civil Servants Rules, held that the termination of the service of the plaintiff by notice had no stigma or implication of misbehaviour or incapacity.

9. It was also contended by Mr. Mushtaq Memon that in the instant case factually the termination of the petitioner's service was motivated on account of mala fides and in fact it was a punishment. The mala fides was alleged against the Chairman of the respondent No.2. Mr. Ali Ahmed Fazeel, has invited our attention to paragraph 14 of the counter‑affidavit of the respondents, in which it has been pointed out that the Chairman against whom mala fides was alleged in fact left the service in 1977, whereas, the action was taken against the petitioner in August 1978. Then it was contended by Mr. Mushtaq Memon that originally the action was initiated by the aforesaid Chairman. There is nothing on the record to support the above submission. On the contrary, the factum that aforesaid Chairman had to leave the company and even the country indicates that at the when the impugned action was taken, he had no say in the matter. As regards Mr. Mushtaq Memon's submission that in fact termination of the petitioner's service amounted to punishment, it will suffice to observe that termination notice is simpliciter without attributing any inefficiency or other misconduct to the petitioner.

10. Reverting to Mr. Mushtaq Memon's submission that since petitioner had joined services in 1965, the Service Rules 1960, inter alia providing termination of service by serving one month's notice or payment of salary in lieu of the notice, could not have been made applicable to the petitioner, it may be observed that Mr. A.A. Fazeel, has invited our attention to clause (g) of the appointment letter which provided that, "you will be subject to the Service, T.A., Leave Rules etc. framed by the Company from time to time". On the basis of the above clause, it was urged by Mr. A.A. Fazeel that respondent No.l had reserved the right to frame the rules. It will suffice to observe that there. can be argument for and against the above proposition. In this regard, reference may be made to a recent case of the Hon'ble Supreme Court, namely, Falak Sher Khan and another v. Mukhtar Ahmad and others, reported in P L D 1989 SC 262, in which it was urged on behalf of the appellants that the Governor was not competent to frame rule as to provide more academic qualifications for the persons already in service. It was held by the Hon'ble Supreme Court that the Governor was competent by virtue of the power vested in him by section 23 of Punjab Civil Servants Act, 1974 to give more importance to academic qualifications rather than experience in the field and that framing of such a rule was a legitimate exercise of the said power. Since in the instant case, even if we were to hold that the above Rules of 1966 were not applicable to the petitioner, it would not improve the petitioner's case for the relief of a writ. In that event, at the most, the petitioner would have been entitled to a reasonable notice for termination of his services by his employer, if one month's period is to be held not reasonable and the remedy, if any, of the petitioner is to claim damages, on the ground that his services were not terminated by serving a reasonable notice. .

11. This leads us to the last submission of Mr. Mushtaq Memon, namely, that in view of the provisions contained in section 4 (4) of the Order, Federal Government was competent to terminate the petitioner's services and not respondent No.l. In this behalf, it may be stated that Mr. Mushtaq Memon has referred to subsection (4) of section 4 of the Order, which reads as follows:‑ "4 (4) Where a Managing Director is appointed in respect of an .establishment, the Federal Government may, by order, remove from office the Board of Directors, the Managing Agent, any Director or any other person howsoever designated performing or having the right to perform any function in relation to that establishment: Provided that the Managing Director may require any Director or other officer in respect of whom an order is made under this clause, to perform any function in relation to the establishment as the Managing Director may direct on such terms and conditions as may appear reasonable

12. Whereas, Mr. A.A. Fazeel, has referred to Section 6 of the Order, which provides as follows: Employees continue in service.‑‑Unles in any particular case the Manging Director otherwise directs, all persons employed in, by or for the purpose of the business of the establishment by whomsoever appointed or engaged, shall continue in their respective employments on the same remuneration and other conditions of service ids were applicable to them immediately before the appointment of the Managing Director that establishment:' In our view, under subsection (4) of section 4 of the Order, the Federal Government had reserved the power to remove ~ from the office the Board of Directors, Managing Agent, any Director or any other person howsoever designated performing or having the right to .perform any function in relation to I an establishment as defined in the Order. The above power was in addition to the power which was enjoyed by a taking‑over company internally, which is evident from the provisions of section 6 of the Order and, thereore, respondent No‑1 could have taken action as an employer against the petitioner for terminating his services.

13. It was also contended by Mr. Mushtaq Memon that factually the petitioner was a Director, as he acted as such in the Company, the above contention is factually incorrect, as he was Director in the company, i.e. Messrs Pak. Hy‑Oils Limited, where he was on deputation but when he returned to respondent No.l, he was appointed as Officer on Special Duty, as has been averred in the petition.

14. We may also observe that during the arguments, it was also submitted by Mr. Mushtaq Memon that in August when the petitioner's services were allegedly terminated, he was entitled to 90 days earned leave. In our view, this point is not relevant for the purpose for present petition. This may be relevant for a suit for the recovery of the dues, if the above earned leave was encashable.

15. The upshot of the above discussion is that the petition has no merit and, therefore, it is dismissed but, there will be no order as to cots.

16. These are the reasons in pursuance of the short order of even date. A.A. /A‑701/K Petition dismissed