1989 PLP 3747 (MLD)

The respondent No-1 in each of these revisions applications was employed by the Pakistan National Shipping Corporation, the second applicant in this case. During the course of his employment, the respondent was found guilty of missuing medical facilities extended to him by the Corporation and consequently, a show-cause notice was given to him, calling upon him to explain why action against him should not be taken under the Service Regulations of the applicant Corporation for the aforesiad conduct. The respondents thereafter filed a suit against the applicants in the Court of XIIIth Senior Civil Judge, Karachi, for a declaration to the effect that the medical facilities which were availed by the respondents were according to the regulations framed by the applicants and the respondents were entitled to such facilities as of legal right and that the applicants were not entitled to execute and/or implement the show-cause notice, dated 14-10-1982. As a consequential relief, an injunction to restrain the applicants from seeking further action in the matter was also prayed for. Thereafter, the applicants filed an application under Order 7 Rule 11, C.P.C. requesting for rejection of the plaint as according to the applicants the suit was incompetent and barred under the provisions of the Specific Relief Act. However, such application was dismissed by the learned Civil Judge vide his order dated 18-1-1986 and hence this revision application. Before this Court the argument of Mr. Yousuf Rafi, learned counsel for the applicants, firstly is, that the services of the respondents purely governed by the general law of master and servant and consequently, the suit filed by the respondents was incompetent; and secondly that the declaration and injunction prayed for by the respondents cannot be granted to them under the provisions of the Specific Relief Act. Mr. Raja Qureshi and Mr. Naraindas Motiani, learned counsel for the respondents, on the other hand, have fully supported the impugned orders. So far as the first contention of Mr.Yousuf Rafi is concerned, he has first of all placed reliance on section 21 of the Pakistan National Shipping Corporation Ordinance (XX of 1970). According to this section, the Corporation has been empowered to appoint officers consultants, advisers and employees on such terms and conditions as it may deem fit. The same section also empowers its Board of Directors to dispense with the services of such persons if they so like. The next section on which Mr. Yousuf Rafi has leaned, is section 39 of the aforesaid Ordinance which further empowers the Board of Directors to make regulations, not inconsistent with the provisions of the P.N.S.C. Ordinance and the Rules made thereunder, to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of the Ordinance. Admittedly, service regulations have been framed by the Corporation under this section. The learned counsel has also placed reliance upon the case of Agricultural Development Bank of Pakistan v. Anwar Hussain Jatoi P L D 1982 Kar. 313 wherein it has been held that the employees of Agricultural Development Bank of Pakistan are governed by the law of master and servant. In Anwar Hussain v. The Agricultural Development Bank of Pakistan P L D 1984 S C 194 the Supreme Court has observed as under:- "It follows that if the relationship is the result of a contract verily entered into by the contracting parties then the principle of Master and Servant will apply. The principle will however, not apply if some law or statutory rule interferes and places fetters upon the freedom of the parties in the matter of terms of contract. It is on this principle that a civil servant for whom there are constitutional safeguards is not governed by the principle of master and servant, for he is possessed of a legal character for the enforcement of which he can bring an action. Even where the employee is not a civil servant but there are statutory safeguards governing his relationship with the employer and placing restrictions on the freedom of the parties to act, the general law of master and servant will not apply." It has been further observed by the Supreme Court in that case: "Where a corporation is set up by a statute but the Government does not reserve to, itself the power to regulate the conditions of service of the employees under the corporation and the statute itself also does not prescribe any condition but leaves the matter entirely in the discretion of the corporation who is given the power to frame rules and regulations in that regard so that the employee is left with no protection under the statute itself, then the corporation must be held to be the sole arbitrator in the matter of prescribing the terms and conditions itself and is competent to deal with them in accordance with the terms and conditions so prescribed by it." The observations made by the Supreme Court in the above case are fully attracted to the facts of the present case. The parties in the present case are purely governed either by the terms of the contract of service or the Regulations which the applicant Corporation has been empowered to frame, without the Government retaining for itself any control over such regulations. The respondents have not contested this factual position and consequently in view of the above observation of the Supreme Court, I have no hesitation in agreeing with Mr. Yousuf Rafi that the case of the respondents is purely governed by the law of master and servant. Turning to the next question raised by Mr. Yousuf Rafi, as provided by section 42 of the Specific Relief Act, a declaratory decree can be granted only to a person entitled to any legal character or a right to any property. It is an admitted position that the respondents in the case have not sought any such declaration but the declaration sought by them is that the medical facilities were availed by them in accordance with the regulations of the corporation and that the applicants were not entitled to execute or implement the show-cause notice dated 14-10-1982. According to Mr. Yousuf Rafi, the declaration sought by the respondents is completely outside the purview of the section 42 of the Specific Relief Act. Reliance has been placed by the counsel on the case of Messrs Valkeryam (Pakistan) Ltd. and two others v. Syed Mushtaque Hussain 1982 P L C 761 which was decided by this Court. In that case a declaration had similarly been sought that show-cause notice-cum-charge, sheet and consequential enquiry to be held thereupon were mala fide and illegal. Naimuddin, J. (as he then was) after referring to a large number of cases came to the conclusion that the suit filed by the employee was not competent since such a declaration could not be sought by him under section 42. of the Specific Relief Act. In this respect I would like to refer to only two cases referred to by Naimuddin, J. in his judgment. The first case is the case of M. A. Naser v. Chairman, Pakistan Eastern Railway P L D 1965 S C

83. In that case a contractor had filed a suit for declaration that the catering agreement was still subsisting and it was observed by the Supreme Court as under:-- "In the suit there was also a prayer for declaration under section 42 of the Specific Relief Act that the contract in question was still subsisting. The learned counsel has not pressed this point before us. Under the provisions of section 42 of the Specific Relief Act a person entitled "to any legal character" or "to any right to property" can institute a suit for a declaratory relief in respect of his title to such legal character or right to property. It will, therefore, suffice to say that section 42 does not contemplate a suit like the present one." The next case on the point was decided by Noorul Arfin, J. (as he then was), the case being reported Alvi Sons Ltd. v. Government of East Pakistan and others P L D 1963 Kar.

222. In that case a declaration was sought by the plaintiff that he had not committed any breach of contract for supply of Steam Coal to the Government of East Pakistan and further that the Government of East Pakistan was not entitled to require payment of Rs.66,000 through Habib Bank Ltd. Under its guarantee for due performance of the contract. It was held as under:-- "

10. A further objection to the maintainability of the suit is that the declaration sought by the plaintiffs is neither with respect to the plaintiff's legal character, nor with regard to any right to property, under section 42 of the Specific Relief Act, 1877, it is only with regard to these matters that a person can come to the Court for declaratory relief. The phrase "legal character" has been used, as held in K.P. Ramakrishna Patter v. K .P .Narayana Patter and others I L R 39 Mad. 80 in the sense of "status", which is constituted by the attributes which the law attaches to a person in his individual and personal capacity and which according to Holland, is referable to such legal conditions as (1) sex, (2) minority, (3) `patria protestas' and `manus', (4) conderture, (5) celibacy, (6) mental defect (7) bodily defect, (8) rank, caste and official position, (9) slavery, (10) profession (11) civil death, (12) illegitimacy, (13) heresy, (14) foreign nationality, and (15) hostile nationality. According to Salmond, the term "status" is usually confined to personal legal condition or personal capacities and incapacities, or compulsory as opposed to concentional personal conditions. In this sense the expression will include personal rights and burdens to the exclusion of the proprietary relations, contractual capacities, or legal conditions imposed upon a person by law without his own consent as opposed to the condition which he has acquired himself by agreement, such as the position of a slave. A declaration that the plaintiff has not committed breach of legal character, nor any right to or in any property. This point is now conclusively settled by the decision of the Supreme Court in MA. Nasir v. Chairman, Pakistan Eastern Railways and others P L D 1965. S C 83 from which I would, with respect, reproduce the following observations of Fazler Akbar, J. (which I have already reproduced hereinbefore.)" It was further observed in that judgment that: "This pronouncement should effectively dispose of doubts, if any, with regard to the maintainability of the present suit, which I hold accordingly to be misconceived and incompetent. The plaintiff's remedy could have been either a suit for rescission of the contract, or for specific performance if so permitted, or for damages for its breach but none of these courses have been pursued by the plaintiff." After quoting from the above judgments, although I have no hesitation in agreeing with the contention raised by Mr.Yousuf Rafi but the learned counsel for the respondents have argued that a person having any legal right can file a suit against another who has a corresponding obligation to discharge, consequently all declaratory relief cannot be restricted to section 42 of the Specific Relief Act. Reliance in this respect has been placed on Abdur Rahman Mobashir and three others v. Syed Amir Ali Shah Bokhari and four others P L D 1978 Lah. 113 wherein in para 57 of the report it has been observed as follows:- "

57. It will be evident that under section 9, C.P.C. the Court will have jurisdiction on the suit of a person whose right to something e.g. property or office, is infringed or at least a cloud is cast on it by a threatened injury by the defendant. It appears that for this reason, the Supreme Court did not allow another Anjuman to be impleaded as a party in Anjuman-e-Ahmadiya v. D.C., Sargodha, on the ground that it had no legal interest in the land in dispute. A suit of a civil nature presupposes a legal right in the plaintiff and a corresponding duty on the defendant:" However, the arguments appear to be misconceived, as first of all, the observations made in the above case do not indicate that a declaration can be sought outside the provisions of section 42 of the Specific Relief Act, but even if assuming that the same can be done, the respondents have failed to establish whether they have any legal right to challenge the show-cause notice issued by the applicant. It is an admitted position that after the show-cause notice no further action was taken by the applicants when the respondents filed their respective suits before the learned Civil Court. The learned counsel have failed to show, how; the respondents had any cause of action against the applicants after issuance of show cause notices to them by the applicants. I am consequently of the view that the suits filed by the respondents against the applicants were incompetent and not maintainable and thus the applicants could seek relief under Order 7, Rule 11, C.P.C., from the learned Civil Court. I, therefore, allow these revisions and set aside the order passed by the learned Civil Judge in each of the suits and further order rejection of the plaints respectively filed by each of the respondents before the learned Civil Judge. The parties are left to bear their own costs. AA./P-112/K Revisions allowed.