1993 PLP (C (PLC(CS))

2. In this writ petition the .comments have been submitted by the respondent No. 2 and it has been contended therein that the relationship between the petitioner and respondent being that of Master and Servant, this writ petition is not maintainable inasmuch as no statutory service rules have been framed and, therefore,. the order of repatriation of services. of the petitioner which should be read as an order of termination of his services cannot be challenged in writ.

3. Ch. Sadiq Muhammad Warriach, Advocate has appeared on behalf of the petitioner whereas Mr. Mansoor Ahmed, Advocate, learned Standing Counsel of Federal Government has appeared on behalf of the respondents.

4. Learned counsel for the petitioner has argued that the petitioner having been permanently absorbed in the service of respondent No. 2, lie could not have been reverted to his parent department with which he had already severed all his service relations and, therefore, the impugned order is illegal and without a lawful authority and that the petitioner still continues to be a servant of respondent No. 2 who are illegally refusing to take him on duty and to treat him as their employee and to pay his dues which include his pay etc. and other benefits. Learned counsel has further contended that the petitioner is a member of essential services and, therefore, his services being governed under the provisions of sections 5 and 6 of Pakistan Essential Services (Maintenance) Act, 1952, impugned order could have been challenged in writ. In support of his argument learned counsel relies upon case of Pakistan Television Corporation v. M. Babar Zaman and others (1989 SCMR 1549). It is further contended the impugned order is based on assumption of wrong basis and hence is void ab initio as having not been passed judiciously and after conscious application of mind.

5. On the other hand learned Standing Counsel for the respondents has contended that as per provisions of section 29 of the Oil and Gas Development Corporation Ordinance, 1961, the, Central Government is .authorised to make rules with‑ regard to the terms and conditions of service of Directors only. Subsection (2) which provided similar powers of the Central Government to frame service rules of other employees has been omitted. At any rate the Central Government has not framed any rules governing terms and conditions of services of employees of OGDC. However, the respondent No. 2 has framed OGDC Servants (Efficiency and Discipline) Rules, 1973 which are in the nature of internal regulations and as they have been framed by the Board, which govern the service of the corporation, these rules do not have the force of statutory rules and, hence, are not enforceable in writ jurisdiction of this Court: Consequently the relationship between the petitioner and respondent being that of master and servant, the petitioner is not entitled to the issuance of a writ in his favour as prayed for. Reliance is placed on case of Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194) and Chairman, WAPDA and 2 others v. Syed Jamil Ahmed (1993 SCMR 346).

6. I have considered arguments addressed by the learned counsel for the parties and have also gone through the record. Admittedly the petitioner was absorbed permanently as a servant of O.G.D.C. No order of termination of the service of the petitioner has been passed so far. The order impugned in this writ petition is an order of reversion/repatriation to parent department which cannot be passed in the case in hand in view of the principle of `Promissory Estoppel' as interpreted in case of Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others (1992 SCMR 1652) wherein at pages 1681 to 1697 of the report it has been held as under:‑‑ "

45. We may first take up the law obtaining in. England on the question of promissory estoppel in context with the statutory provisions. The judgment of the Court of Appeals in the case of Falmouth Boat Construction Ltd. v. Howel (1950) 1 All ER 538, was rendered by Denning, LJ., in which the facts were that the Admiralty, in pursuance of powers conferred on them by Regulation 55(1) of the Defence (General) Regulations, 1939, ordered that no ship repairer was to carry out any repairs or alterations to ships `except under the authority of a licence granted by the Admiralty'. It seems that on June 24, 1942 the Director of Merchant Shipbuilding and Repairs at the Admiralty sent a circular letter to all the licensing officers as follows: `I understand that it has been made clear to you that when you are dealing with reliable ship repairs and owners with a good record you ought not to delay the putting in hand of obvious repairs, merely pending the actual issue of a licence. It further seems that in or about May 1947, the defendant entered into a contract with the plaintiffs, a firm of ship repairers, for the conversion of a naval vessel into a passenger carrying vessel. Before they began any work on the ship, the plaintiffs applied to the licensing officer of the Admiralty for a licence and from time to time the officer gave the plaintiffs verbal permission to proceed with the work, which they carried out under his inspection. On being presented with an account for the work done, the defendant refused to pay on. the ground that the work was illegal, for want of a written licence under the provisions of Restriction of Repairs of Ships Order; 1940. Denning, LJ, while rendering his opinion, pressed into service the doctrine of promissory estoppel and observed as follows:‑‑ `The principle is this: Whenever Government Officers, in their dealings with a subject, take on themselves to assume authority in a matter with which the subject is concerned, he is entitled to rely on their having the authority which they assume. He does not know, and cannot be expected to know, the limits of their authority and he ought not to suffer if they exceed it. That was the principle which I applied in Robertson v. Minister of Pensions and it is applicable in the present case also. It was not canvassed in Jackson Stansfied v. Butterworth (1948) 2 All ER 558 and that case is, therefore, no obstacle to its adoption. In my judgment, therefore, the plaintiffs were guilty of no illegality and their claim is not to be defeated on that account. The appeal should be allowed.' However, the above view was not upheld by the House of Lords in the appeal arising from the above judgment. Though the appeal was dismissed on merits. The judgment is reported under the caption Howell v. Falmouth Boat Construction Co. Ltd. (1951 Appeal Cases 837).

46. It may be pointed out that earlier to the above judgment of the Court of appeal, Denning, J. (as His Lordship then was) rendered judgment in the case of Central London Property Trust Ltd. v. High Trees House Ltd. (1947) 1KB 130 and also reported in (1956) 1 All ER 1956, in which he pressed into service the doctrine of promissory estoppel against the landlord and held that the tenant was liable to pay reduced rent at Pound 1,250 per year in place of Pound 2,500 per year on the basis of the promise made by the landlord for certain years. The above view was reiterated by Denning, J., in the case of Robertson v. The Minister of Pensions reported in (1949) 1 KB 227, in which the appellant a serving. army officer, wrote to the War Office regarding a disability of his and received a reply accepting the above disability as attributable to the military service. Relying upon the above assurance, he did not obtain an independent medical opinion. Later, the Minister of Pensions declined the appellant's claim. Denting, J., while hearing an appeal, held as follows:‑‑ `Held that as between subjects such as assurance would be enforceable because it was intended to be binding, intended to be acted upon, and was in fact acted upon; (ii) that the assurance was binding on the Crown because no term could be implied that the Crown was at liberty to revoke it; and (iii) that the assurance was therefore binding on the Minister of Pensions, the appellant having become entitled to assume that the War Office had consulted any other departments concerned before it gave the assurance.'

47. We may, at this juncture, refer to the treatise on The Law of Contract by D.W. Greig and ‑JLR Davis, 1987 Edition, relied upon by Mr. Sharifuddin Pirzada wherein the Authors have summarised the legal position obtaining in the United States, United Kingdom and Australia in respect of promissory estoppel as follows: `(a) As a means of enforcing promises: ‑‑There is no doubt that promissory estoppel in the United States became a significant adjunct to contract doctrine as a means of enforcing promises in the absence of consideration. In England such a role may have been possible in the light of the terms in which it was first enunciated by Denning, J., in Central London Property Trust Ltd. v. High Trees House Ltd. 1947 KB 130 (above p. 139): However, the recent trend in England, in which Lord Denning M.R. himself participated towards regarding it as an aspect of un-conceivability, has shifted the emphasis towards the prevention of the exercise of legal rights where it would be unconscionable for the possessor of those rights to do so. The fact that the unconscionability in this exercise arises from the possessor's promise not to exercise them is of secondary importance. The choice between the two approaches is a matter of policy, of deciding whether to enlarge the role of contract. If, consciously or unconsciously, the Courts in Australia are prepared to extend the ambit of contractual liability that could, be achieved through the medium of promissory estoppel.

48. We may now refer to the cases of Indian jurisdiction: (i) The Union of India and others v. Messrs Anglo‑Afghan Agencies etc. AIR 1968 SC

718. Irk this case the facts were that the Textile Commissioner published on October 10, 1962 a scheme called the Export Promotion Scheme, providing incentives to the exporters of woollen goods. By the scheme as extended to exports to Afghanistan, the exporters were invited to get themselves registered with the Textile Commissioner for exporting woollen goods, and it was represented that the exporters would be entitled to import raw materials of the total amount equal to 100 per cent. of the FOB value of the exports. However, clause 10 of the scheme entitled the Commissioner to reduce the value of the import certificate if it was found that fraudulent attempt was made to secure an import certificate in excess of the true value of the goods exported. The respondents who exported woollen goods, of Rs. 5,03,471.73 applied to the Textile Commissioner for the issuance of import entitlement certificate but instead of issuing for the full amount certificate for Rs. 1,99,459 was issued. Thereupon, the respondents filed a Constitution petition before the High Court of Punjab for a writ or order directing the Union of India, the Textile Commissioner and the Chief Controller of Imports and Exports,. Bombay to issue a Licence permitting import of wool‑tops raw wool, wool waste and rags of the value of Rs. 3,04,012.73 which was upheld. Against the above judgment of the High Court, Union of India filed an appeal before the Indian Supreme Court, which was dismissed. While dismissing the appeal the following observations were made:‑ "

19. We hold that the claim of the respondents is appropriately founded upon the equity which arises in their favour as a result of the representation made on behalf of the Union of India in the Export Promotion Scheme, and the action taken by the respondents acting upon that representation under the belief that the Government would carry out the representation made by it. On the facts proved in this case, no ground has been suggested before the Court for exempting the Government from the equity arising out of the acts done by the exporters to their prejudice relying upon the representation. This principle has been recognised by the Courts in India and by the Judicial Committee of the Privy Council in several cases. In M.C. of the City of Bombay v. Secretary of State ILR 29 Born. 580 it was held by the Bombay High Court that even though there is no formal contract as required by the Statute, the Government may be bound by a representation made by it

"

20. This case, is in our judgment, a clear authority that even though the case does not fall within the terms of section 115 of the Evidence Act, it is still open to a party who has acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise is not recorded in the form of a formal contract as required by the Constitution." (ii) Messrs Motilal Padampat Sugar Mills v. The State of Uttar Pradesh and others AIR 1979 SC

621. In the above case the facts were that the appellant which was a limited company, primarily engaged in the business of manufacture and sale of sugar and it had also a cold storage plant and a steel foundry. On 10th October, 1968 a news item which appeared in the National Herald and in which it was stated that the State of UP had decided to give exemption from sales tax for a period of three years under section 4‑A of the U.P. Sales Tax Act to new industrial units in the State with a view to enable them 'to come' on firm looting in developing stage. The above news item was founded upon a statement made by Shri M.P. Chatterjee, the then Secretary in the Industrial Department of the Government. On the basis of the above news item, the appellant addressed a letter, dated 11th October, 1968 to Director of Industries, stating that in view of the Sales Tax Holiday announced by the Government, the appellant intended to set up a Hyderogenation Plant for manufacture of Vanaspati and sought for confirmation that this industrial unit, which they proposed to set up, would be entitled to Sales Tax Holiday for a period of three years from the date it would commence production. The Director of Industries replied vide his letter, dated 14th October, 1968 confirming that there would be no sales tax for three years on the finished product of the proposed Vanaspati factory from the date it would commence production. However, on a subsequent stage, the above concession was denied. The matter came up finally before the Indian S.C. Bhagwati, J. (as his Lordship then was) after tracing the history of the doctrine of the promissory estoppel and after referring to the case‑law of foreign jurisdiction, including that of United Kingdom and USA concluded inter alia as follows:‑‑ '

33. The State, however, contended that the doctrine of promissory estoppel had no application in the present case because the appellant did not suffer any detriment by acting on the representation made by the Government, the Vanaspati factory set up by the appellant was quite a profitable concern and there was no prejudice caused to the appellant. This contention of the State is clearly unsustainable and must be rejected. We do not think it is necessary in order to attract the applicability of the doctrine of promissory estoppel, that the promisee, acting in reliance on the promise, should suffer any detriment. What is necessary is only that the promisee should have altered his position in reliance on the promise.' (iii) Messrs Jit Ram, Shiv Kumar and others v. The State of Haryana and another AIR 1980 SC 1285 in which the facts were that the appellants, who we're petitioners before the High Court had sought a writ of certiorari or mandamus or any other appropriate writ for quashing the Resolution No. 6, dated 21st July, 1965 of the Municipality and the letter of the Government of Haryana to the President of Municipal Committee, Bahadurgarh, dated 30th October, 1967. The facts giving rise to the filing of the above petition were, that the M.C., Bahadurgarh, respondent No. 2, established Mandi Fatch in Bahadurgarh Town with a view to improve trade in the area. It was resolved by the M.C. through Resolution No. 8, dated 20‑11 1916 that the purchasers of the plots for sale in the Mandi would not be required to pay octroi duty on goods imported within the said Mandi. Pursuant to the above resolution of the M.C, hand bills were issued for the sale of the plots on the basis of the above resolution. It was, proclaimed that Mandi Fateh would remain exempt from payment of octroi duty. The above resolution was reiterated by a subsequent Resolution No. 4 of 1917 of the M.C. However, when the above second resolution was received by the Commissioner of Ambala he declined to give his ' approval. Tote matter remained under correspondence till 4.‑9‑1953 when the M.C. by its notification dated 4‑9‑1953 included Fatch Mandl* Bahadurgarh, within the octroi limits. Thereupon, the above writ petition was riled which was rejected by a Full Bench of the High Court of Punjab and Haryana. Against the above judgment of the High Court, the matter was taken up to the Supreme Court, which was dismissed. It was. held by the Supreme Court that `when a public authority ads beyond the scope of its authority, the plea of estoppel is not available to prevent the authority from acting according to law.' It was also held that `the principle of estoppel was not available against the Government in exercise of legislative or sovereign or executive powers.' The view taken in the case of Motilal Padampat Sugar Mills (supra) was dissented from. It may be advantageous to reproduce para. 12 of the above judgment which reads as follows:‑‑ `

12. A Bench of four Judges of this Court in a decision Excise Commissioner, U.P. Allahabad v. Ram Kumar (1976) Suppl. SCR 532, AIR 1976 SC 2237, after examining the case‑law on the subject observed that "it is now well‑settled by a catena of decisions that there can be no question of estoppel against the Government in exercise of its legislative, sovereign or executive powers. The earlier decision of this Court in N. Ramanatha Pillai v. State of Kerala (1974) 1 SCR 515; AIR 1973 SC 2641 and State of Kerala v. Gwalior Rayon Silk Manufacturing (Wing) Co. Ltd. (1974) 1 SCR 671; AIR 1973 SC 2734 were followed. It may, therefore, be stated that the view of this Court has been that the principle of estoppel is not available against the Government in exercise of legislative, sovereign or executive power: (iv) Union ‑of India and others v. Godfrey Philips India Ltd. AIR 1986 SC 806, in which the fads were that Under Secretary, Central Board of Excise and Customs, addressed a letter, dated 24th May 1976 to the Cigarette Manufacturers' Association, in response to the representation made by the Association to the Board on 19th May, 1976 to the effect that corrugated fibre board containers are not an integral or essential requirement for the sale of cigarettes and are used for the sole purpose of protecting cigarettes from any damage that may‑arise during transportation'. The Board accepted the above plea of the association by its aforesaid letter dated 24‑5‑1976 and informed the association that the Collectors of the Central Excise have been issued requisite instructions to implement the above decision. The respondents and the other members of the association on the basis of the above representation made by the board, proceeded on the basis that the cost of corrugated fibre board containers was not liable to be included in the value of the cigarettes for the purpose of assessment to excise duty and did not recover from the wholesale dealers to whom they sold the cigarettes, any amount by way of excise duty attributable to the costs of such corrugated fibre board containers. The above representation continued to hold the field until 2nd November, 1982 when the Central Board of Excise and Customs addressed a circular letter to all the Collectors of Central Excise stating that the matter had been re‑examined in consultation with the Ministry of Law and in view of section 4 of the Act, the costs of packing whether initial or secondary in which the excisable goods are packed at the time of removal may form part of the assessable value of such goods. Upon issuance of the above circular the question arose, whether the respondents/manufacturers were liable to pay Excise Duty for the period commencing from 24‑5‑1976 to 2‑11‑1982, on the corrugated fibre board containers. The High Court upheld their claim. Union of India filed an appeal before the Indian Supreme Court. Reliance was placed by the Union of Indian Supreme Court judgment to the case of Jit Ram Shiv Kumar and others (supra). It was vehemently contended that the doctrine of promissory estoppel was not available against the exercise of execute functions of the State and that the State could not be prevented from exercising its functions under the law. The above contentions were repelled and the view taken in Moti Lai Padampat Sugar Mills (supra) ‑ was reiterated as follows: '

12. There can, therefore, be no doubt that the doctrine of promissory estoppel is applicable against the Government in the exercise of its Governmental, public or executive functions and the doctrine of executive necessity or freedom of future executive actions cannot be invoked to defeat the applicability of the doctrine of promissory estoppel. We must concede that the subsequent decision of this Court in Jit Ram v. State of Haryana (1980) 3 SCR 689; AIR 1980 SC 1285 takes a slightly different view and hold that the. doctrine of promissory estoppel is not available against the exercise of executive functions of the State and the State cannot‑be prevented from exercising its functions under the law. This decision also expresses its disagreement with the observations made in Motilal Sugar Mills case AIR 1979 SC 621 that the doctrine of promissory estoppel cannot be defeated by invoking the defence of executive necessity, suggesting by necessary implication that the doctrine of executive necessity is available to the Government to escape its obligation under the doctrine of promissory estoppel. We find it difficult to understand how a Bench of two Judges in Jeet Ram's case could possibly overturn or disagree with what was said by another Bench of two Judges in Motilal Sugar Mills' case. If the Bench of two Judges in Jeet Ram's case found themselves unable to agree with law laid down in Motilal Sugar Mills case, they could .have referred Jeet Ram's case to a larger Bench but we do not think it was right on their part to express their disagreement with the enunciation of the law by a coordinate Bench of the same Court in Motilal Sugar Mills.' However, at the same time the limits of the applicability of the doctrine of promissory estoppel was highlighted as under: `

14. Of course we must make it clear; and that is also laid down in Motilal Sugar Mills' case AIR 1979 SC 621 (supra) that there can be no promissory estoppel against the legislature in the exercise of its legislative functions nor can the Government. or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that the promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine it must yield when the equity so requires, if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise, or representation against the 'Government or, public authority.. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government of public authority should be held bound by the promise or representation made by it. This aspect has been dealt with fully in Moti Lal Sugar Mills' case (supra) and we find ourselves wholly in agreement with what has been said in that decision on this point.' (v) Sirpur Papar Mills v. Union of India and others (1984) 17 ELT 217 (AP) in which the facts were that the petitioner was carrying on business of manufacturing paper. The Government of India first respondent, by its notification dated 1‑10‑1965, extended confessional rates in respect of paper which was attributable to enlarge production capacity of the producers and cleared after 1‑3‑1964. The concession was to operate with reference to the period during which the paper was manufactured. However, the said notification was rescinded by notification dated 1‑3‑1973. The petitioners had claimed benefit of the concessional rates of Excise Duty in respect of the paper produced during the period related to the enlarged production capacity but removed from the factory after 1‑3‑1973 i.e. the date on which the earlier notification was rescinded. The Assistant Collector, Central Excise respondent No.3 in the said petition on the basis of rule 9‑A, rejected the claim of the petitioners. The petitioners' effort to get redress from the Appellate Collector respondent No.2, and then before the revisional authority, Government of India, failed. Thereupon, they Filed the aforesaid writ petition which was allowed by a D.B. of Andhra Pardesh High Court. It may be advantageous to reproduce para. 25 of the above judgment which reads as follows: `

25. Yet another aspect. When a notification is issued extending exemption partial or total with reference to say, expansive production as in this case, and the assessee on that count produces or manufactures goods in compliance of the said notification and if the authority rescinds the same after the goods are manufactured and before the goods are cleared or removed for one reason or the other, then the very scheme and object behind such exemption clause is rendered abortive, stultifying the very incentive accorded to the manufacturer or producer. Surely, this could not be the intention of the authority concerned. We find it hard to accede to the contentions advanced by the learned Standing Counsel for the Central Government.'

49. We may now deal with the judgments of this Court, on the point in discussion: (i) Federation of Pakistan and others v. Ch: Muhammad Aslam and others 1986 SCMR 916, in which the facts were that the Government of Pakistan, Ministry of ‑Commerce and Local Government (Commerce Division) notified a revised policy dated 22‑10‑1973 through a Press Note for granting facility for the import of Tractors, Bus and Truck chassis against the foreign exchange earnings of Pakistanis abroad. The above policy was further modified through a Press Note dated 4‑3‑1978. The respondent, Muhammad Aslam Ch. acting upon the above notified policy, purchased abroad certain truck chassis. On 18‑9‑1982, he applied to the Controller of Export and Import, Lahore for issuing him import permit. Alongwith the application, he submitted:‑‑ (i) Earning Certificate, (ii) Purchase Receipts, (iii) Invoice, (iv) Bill of Lading, and (v) Certificate of Origin. However, in spite of his best efforts, he was unable to obtain import permit and, therefore, he filed a Constitution petition in the Lahore High Court. The High Court allowed the same by holding that since the respondent had fully satisfied the requirements of the Gift Scheme, as was in force immediately before 20‑3‑1983, he could not have been denied the benefit thereof by applying retrospectively the revised definition of the word `new', as defined in the press note dated 20‑3‑1983. The Federation of Pakistan filed an appeal before this Court, with the Leave of the Court, which was dismissed. The judgment was rendered by one of us namely, Shafiur Rehman, J. who, after referring to the case‑law of Foreign Jurisdiction as well as of Pakistani Courts concluded as follows:‑‑ `The department's contention that it possessed untrammelled powers and could prospectively prohibit or control the imports is correct considering the wide amplitude of powers conferred by section 3(1) of Act XXXIX of 1950 and the nature of the right that a seeker of the import licence can claim. Such a power has been recognised by this Court in Zamir Ahmad's case (PLD 1975 SC 667). All the same, even such an extensive power has its limits. One such limit was spelt out in Zamir Ahmad's case and it is that vested rights cannot be allowed to be overridden unless it takes place by unequivocal words, by an organ or authority competent to impair or override the vested rights. The question will still remain whether he respondent writ petitioner at that stage of the proceedings had at all acquired any vested rights. The second limit now well‑recognised is that all executive powers has to be exercised fairly and justly, for advancing the object of the legislation. In other words every such exercise of powers has to satisfy the test of reason and relevance. In order to ascertain the nature of the right and to determine whether it has come to vest in individuals we must in the first place note that it was not a totally unoccupied field which was sought to be controlled or regulated by press note dated 20‑3‑1981. The Gift Scheme had been in existence since 1st July, 1975. Pakistanis living abroad were the beneficiaries. They were provided the incentive to conserve their foreign exchange earnings to enter into contracts with foreign suppliers for repatriation of their earnings in the form of specified goods and articles and to inject them in the mainstream of nation's economy. If these contracts had been bona fide and legally entered into and had given rise to rights and liabilities enforcible at law then certainly vested rights had come into existence which could not be overriden even in the matter of import and export, except on express words of an authority competent to legislate retrospectively, competent to override or impair such vested rights. An agency or authority not empowered to override or impair vested rights cannot achieve that end simply by giving its dispensation in the form of a declaration. (ii) Al‑Samrez Enterprises v. The Federation of Pakistan 1986 SCMR 1917, in which. the Federal Government of Pakistan respondent No. 1 had issued a notification dated 8‑6‑1972 in exercise of the powers conferred by section 19 of the Customs Act, 1969, exempting certain items of machinery or articles for use with machinery or as component parts or spare parts of the machinery, as defined in the notification and set out in the table given therein. The appellant, acting upon the above notification opened an irrevocable letter of credit. However, when the machinery arrived at the Karachi port, before the goods were cleared the above notification, granting exemption was rescinded. The appellant's efforts to get redress from the. High Court through a Constitution petition failed. Thereupon, an appeal with the leave of the Court was tiled in this Court, which was upheld. The Federation's contention that in view of section 21 if the General Clauses Act, it could rescind the above notification at any time, was repelled as follows:‑‑ 'The principle of law enunciated above has been recognised in Corpus Juris of this country and also statutorily in section 6 of the General Clauses Act. For instances of the application of this rule of interpretation reference may be made to In re: March Mander v. Harris (1884) 27 Ch. D. 166 and Jones v. Ogle (1872) LR 8 Ch.A.

192. We are, therefore, clearly of the opinion that if a binding contract was concluded between the appellants and the foreign exporter or steps were taken by the appellants creating a vested right to the then existing 'notification granting exemption, the same could not be taken away and destroyed in modification of the earlier one, on the ground that under section 21 of the General Clauses Act, the Government could exercise the power of modification. The question b‑fore us is not whether the second notification was ultra vires the powers of the Government but whether the second notification would be applicable to the case of the appellants resulting in taking away the exemption already granted. As to the effect of issuance of the above notification granting exemption, the following observations were made:‑‑ Therefore, the exemption notification is basically addressed to public- at‑large or in any case to the respective importers. It will be inequitable and unjust to deprive a person who acts upon such assurance of the right to exemption and expose him to unforeseen loss in the business transaction by suddenly withdrawing the exemption after he has made legal commitments. It is in this perspective that a right is created in his favour and a subsequent withdrawal of exemption cannot be given retrospective operation by an executive act to‑destroy this right

" (iii) Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others PLD 1991 SC

546. In the above case the facts were that the Government of Pakistan notified a scheme for import of second hand reconditioned machinery, which came to be known as NRI Scheme, hereinafter referred to as `the Scheme'. It was provided in the Scheme that import of second hand reconditioned machinery on repatriable basis would not require permission of any Government agency provided that the conditions contained therein were met. The respondent, acting upon the above Scheme, purchased certain second hand machinery in United Kingdom from his earning abroad. After submitting necessary documents, the respondent obtained No Objection Certificate from the Investment Promotion Bureau, Government of Pakistan Ministry of Industries. When he applied for an import licence, in spite of his best efforts he was unable to obtain the same. Consequently, he filed a Constitution petition in the High Court of Sindh for, an order directing the Chief Controller of Imports and Exports, to issue the import licence, which was allowed. The Federation of Pakistan filed 4 petitions for leave to appeal, which inter alia included a petition for leave to appeal against the above judgment Leave was granted to consider the question, whether the writ petitioners/respondents had such a vested right in the matter of obtaining an import licence and in importing the machinery for which licence had already been issued notwithstanding a prohibitory notification issued under section 3 of the Import and Export Control Act, 1950. The above appeals were dismissed for the following reason:

15. What distinguishes the appeals now before us is that is not the case of the Government itself that the non‑Repatriable Investment Scheme was in any manner or to any extent beyond the competence of the Government of Pakistan or against the laws of the rent. Therefore, the scheme, the terms thereof and the inducement therein were in accord with law, were in advancement of public policy and had been presented by the competent authority inducing thereby Pakistanis, living and earning abroad to invest in machines of the required description. By providing that no sanction of any sort would be needed after a `No‑Objection Certificate' has been granted and the practice having been so observed, it cannot be said that in those cases where the `No‑ Objection Certificate' had been granted any further impediment remained. Making of an application to the Chief Controller of Imports and Exports and getting an import licence from him was a consequential formal step and no discretion as such was involved where bona ride `No‑Objection Certificate' was held by an applicant. The contention of the learned Deputy Attorney‑General that the doctrine of promissory estoppel does not extend to legislative, executive or sovereign functions of the State is correct to the extent that it does not indeed extend to legislativa and sovereign functions, but executive actions are not excluded from the operation of the doctrine. `The learned Deputy Attorney‑General has basically relied for .his contention on the decision given in Ram Niwas Gupta and others v. State of Haryana through Secretary, Local Self‑Government, Chandi Garh and another AIR 1970 Punjab and Haryana 462 which was approved by the Indian Supreme Court in the case of Messrs Jeet, Ram Shiv Kumar and others AIR 1980 SC 1285. But both these decisions were overruled by the Indian Supreme Court itself in Union of India and others v. Godfrey Philips India Ltd. AIR 1986 SC 806 ... It may also be observed that at the same time, it was also highlighted that the doctrine of promissory estoppel was subject to the following limitations:‑‑ (i) The doctrine of promissory estoppel cannot be invoked against the legislature or the laws framed by it because the Legislature cannot make a representation; (ii) promissory estoppel cannot be invoked for directing the doing of the thing which was against the law when the representation was made or the promise held out; (iii) no agency or authority can be held bound by a promise of representation not lawfully extended or given; (iv) the doctrine of promissory estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it and (v) The party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise.

50. Reference may also be made to the case of Government of Pakistan v. M/s. Mardan Industry Ltd. and another 1988 SCMR 410, in which the facts were that the Central Government in exercise of powers conferred by subsection (1) of section 12‑A of the Act, through a Notification dated 30‑6‑1961, exempted for a period of 4 years from 1st July, 1961, all excisable goods produced or manufactured in Tribal Areas from the excise duty leviable thereon. Pursuant to the above notification, the respondent, established a factory for manufacturing cigarettes. It was discovered that the respondents were manufacturing cigarettes under the Brand 'K‑2'. They despatched their first consignment to Karachi in Grit week of May, 191x1 and the second consignment was despatched on 7th May, 1964 which was stopped at Sher Garh by the Central Excise and Land Customs Department and a demand for payment of excise duty was raised. Thereupon, the respondents filed a Constitution petition in the Peshawar High Court while the above petition was pending, the Government of Pakistan on 19th May, 1964, issued SRO No. 31(K)/64, amending its earlier SRO by adding the following proviso: Provided further that the exemption herein granted shall not apply to any excisable goods, manufactured in the Tribal Area which bear brand, or trade name, or trade marks under which similar goods manufactured in any area of Pakistan other than the said Tribal Areas are also marketed if such goods are removed from the Tribal Areas to any other area in Pakistan.' The Constitution petition was amended as to impugn the above added proviso. The amended petition was allowed. Against the above judgment of the High Court, Government of Pakistan tiled an appeal, with the leave of this Court, which was allowed against the declaration by the High Court that the above addition of the proviso is ultra wires It was pointed out that "no doubt the power to take advantage of a notification can be termed as right. But the only right which it appears to us, can be said to have been conferred by the said notification, was that the new industrial undertaking should enjoy exemption from excise duty in respect of goods manufactured in Tribal Areas. That does not mean that a right had also been conferred on them to despatch free of excise duty out of the Tribal Areas goods with such brands and trade marks, under which similar goods were marketed in other parts of Pakistan". It was also held that the grant of the above concession did not debar the Government from its power to regulate the above concession by a subsequent notification. It may be pertinent to reproduce para. 14 of the above judgment, on the above aspect, which reads as follows: '

14. Lastly it may be mentioned that the concession granted to the respondent belonged to the class of privilegia favourablia and as such the same could be regulated by a subsequent notification. In other words by the notification granting exemption the Government had not stripped itself of its essential powers to regulate the said exemption. Furthermore, in view of section 21 of the General Clauses Act, the power of the Government to issue such a notification cannot also be challenged:

51. From the above reports and treatises, it seems that in the United States the promissory estoppel has become a significant adjunct to contract doctrine as a means of enforcing promise in the absence of consideration, whereas, in England the trend seems to be that the above doctrine is pressed into service in order to prevent exercise of legal rights where it would be unconscionable and in Australia the doctrine of promissory estoppel is invoked in aid of extending the contractual liability. It may further be observed that the House of Lords in England in, the case of Howell v. Falmouth Boat Construction Ltd. (supra)' reversed the judgment of the Denning, L.J., who pressed into service the doctrine of promissory estoppel against the provisions of Regulation 55(1) of the Defence (General) Regulations, 1939. I another words, the legal position obtaining in England seems to be that the doctrine of promissory estoppel cannot be pressed into service, against the Government functionaries if their act/action was not in consonance with the provisions of the relevant statute. The position obtaining in India appears to be that the Courts have given new dimensions to the doctrine of promissory estoppel and the same is pressed into service against the Government, and its functionaries. It is founded upon the equity which arises in favour of the person who acted upon the representation, made on behalf of the Government or its functionaries to his detriment, under the belief that the Government/its functionaries would carry out the representation made by it: In the case of Jeet Ram Shiv Kumar and others (supra) the case which has been relied upon by the High Court in the impugned judgment a some‑what contrary view was taken from its earlier judgments by holding that the principle of estoppel is not available against the Government in exercise of legislative, sovereign or executive powers, but the Indian Supreme Court in the case of Union of India and others v. Godfrey Philips India Ltd. (supra) disapproved the above departure and reiterated its earlier view by holding that `no doubt that the doctrine of promissory estoppel is available against the Government in the exercise of its Governmental, public or executive functions and the doctrine of executive necessity or freedom of future executive action cannot be invoked to defeat the applicability of the doctrine of promissory estoppel. However, in India, the following limitations of the above doctrine are recognised and it has been held that in the following cases, the same shall not be available:‑‑ (i) against legislature in the exercise of its legislative functions; (ii) against the Government or public authority from enforcing statutory prohibition; (iii) to compel the Government or a public authority to honour a representation or promise which is contrary to law; (iv) to compel the Government or a public authority to carry out a representation or promise which was outside the authority of the officer of the Government or the public authority which made the representation; and (v) having regard to the facts, if it appears that it would be inequitable to hold the Government or public authority to the promise or representation made by it.

52. This Court has also approved and pressed into service the doctrine of promissory estoppel in a number of cases. One of the earliest cases being the judgment in the case of Collector of Central Excise and Land Customs and 3 others v. Azizud Din Industries, Chittagong (supra) in which the judgment of the erstwhile High Court of East Pakistan was partly upheld and it was held that the person having acquired vested right of exemption from the levying of excise duty on all goods for a period of 4 years under the Notification dated 30‑6‑1961, could not be deprived of his vested rights by a subsequent Notification dated 28‑2‑1964. It may be mentioned that by now, it is well‑settled proposition of law obtaining in Pakistan that if an exemption from payment of excise duty or any other tax, has been granted for a specified period on certain conditions and if a person fulfils those conditions, he acquires a vested right, he cannot be denied the exemption before the expiry of the specified period, through an executive instrument like a notification, but he can be denied his vested right by a legislative provision, like section 31‑A, which has been incorporated in the Customs Act in 1988 nullifying the effect of the judgment of this Court in the case of Al -Sumrez Enterprises (supra) as has been held by the author of the above judgment, Zaffar Hussain Mirza, J., in a recent unreported majority judgment, dated 24th September, 1991 in Civil Appeals Nos. 915‑K to 918‑K all of 1990 (Molasses Trading and Exports (Pvt.) Ltd. v. Federation of Pakistan and others, wherein his Lordship observed as follows:‑‑ For the same reasons it cannot be held that the non obstante clause does not have the effect of setting at naught the effect of the judgment of this Court in the case of Al‑Sarnrez, because as discussed above, the new law is a departure from and is in conflict with the position expounded in Al‑Samrez Enterprises. For the same reasons the arguments of the learned counsel for the appellant is without substance that section 31 has not achieved the object of defeating the consequences of exemption granted under section 19 beyond the date on which any notification of modification of withdrawal of exemption is issued, or to nullify the judgment in the case of Al‑Samrez Enterprises. The language of section 31‑A, as discussed above clearly envisages and stipulates that the consequences that flow from the act of withdrawal or modification of an exemption notification, shall take effect with reference to the date of its issue, irrespective of the fact that the contract for the import of goods and the LC had come into existence prior to such date. This effect has been now prescribed by a mandatory provisions of law by legislative fiat to use the phrase earlier mentioned. The Courts would, therefore, have to give effect to it notwithstanding the decision in the case of Al‑Samrez Enterprises.' In the case of Federation of Pakistan v. Ch. Muhammad Aslam (supra) and the case of Pakistan v. Salahuddin and 3 others (supra), this Court pressed into service the doctrine of promissory estoppel in order to compel the Government to honour the Gift Scheme relating to import of tractors, bus and truck chassis and the reconditioned machinery respectively as the parties had acted upon the representation to their detriment before the amending notifications were issued. It is, therefore, evident that the doctrine of promissory estoppel is available in Pakistan against the Government and its functionaries, subject to inter alia limitations highlighted by one of us, Shafiur Rahman, J. in the case of Pakistan v. Slahuddin (supra)" .......... It has been further held at page 1698 as under:‑‑ "The above approach of the authors is also in consonance with the recent trend obtaining in England, namely, that the doctrine of promissory estoppel is pressed into service in order to prevent the exercise of legal right where it would be unconscionable for the possessor of those rights to do so." The petitioner having once been absorbed permanently could not have beer reverted to his parent department because there was no parent department inasmuch as the petitioner had severed all his relations with his parent department. Consequently, the order passed by the respondent No. 2 is based upon erroneous assumption of facts and has not been passed after conscious application of mind, hence is patently without jurisdiction and nullity in the eyes of law and is liable to be ignored, with the result that for the present, the petitioner still continues to be the servant of the respondent No. 2 and his services have not been so far terminated. It is not possible to read the order of reversion/repatriation as an order of termination. No order having been passed under the departmental rules by the respondents, the petitioner is at least entitled to the guarantees as provided in the Constitution of Islamic Republic of Pakistan according to which he is to be treated equally alongwith the other servants of the OGDC without any discrimination. He has a right to be proceeded against in the manner which is laid down by the respondents themselves for proceedings against their servants. He cannot be proceeded against for altogether extraneous considerations. Being dealt with in senses is the bare minimum to which the petitioner is entitled and as no order of termination has since been passed and the impugned order is patently without jurisdiction, it need not even be challenged and, therefore, it is quite clear that the petitioner still continues to be in the service of the respondent No.

2. Argument of the learned counsel for the petitioner that the petitioner is a member of essential services has also weight as is clear from the notification placed on the record of this case which clearly shows that the provisions of Pakistan Essential Services (Maintenance) Act, 1952 are made applicable to O.G.D.C. Relevant notification is reproduced as under:‑‑ "GOVERNMENT OF PAKISTAN MINISTRY OF INTERIOR & NARCOTICS CONTROL (INTERIOR DIVISION) Islamabad, the 19th August, 1990. No. S.R.O. 864(1)/90: ‑‑In exercise of the powers conferred by subsection (3) of section 3 of the Pakistan Essential Services (Maintenance) Act, 1952 (LIII of 1952), the Federal Government is pleased to direct that the declaration made in this Ministry's Notification No. 161(1);89, dated the 20th February. 1989, and last extended by this Ministry's Notification No. S.R.C. 176(1)/90, dated the 19th February, 1990, declaring all classes of employment under the Oil and Gas Organisations, except employment under the Pakistan State Oil Company Limited, to be employment to which the said Act applies, shall remain in force for a further period of six months commencing on the 20th August, 1990. (Sd.) (Ismail Hassan Niazi), Deputy Secretary Tele: 824506 No. 7/36/78‑Poll.I(2). Hence, the petitioner is a member of essential services of OGDC, therefore, his service could not have been terminated under sections 5 and 6 of the Act Lilt of 1952 which read as under:‑‑ 5.(1) Any person engaged in any employment or class of employment to which this Act applies who‑‑ (a) disobeys any lawful order given in the course of such employment, or attempts to persuade any person to disobey any such order (or refuses to work to continue to work, whether or not acting in combination with, or under a common understanding of any other person engaged in such employment), or (b) without reasonable excuse abandons such employment or absents himself from work, or (c) departs from any area specified in an order under subsection (1) of section 4 without the consent of the authority making that order, and any employer or a person engaged in an employment or class of employment declared under section 3 to be an employment or class of employment to which this Act applies, Who without reasonable excuse‑‑ (i) discontinues the employment of such person, or, (ii) by closing an establishment in which such person is engaged, causes the discontinuance of this employment, is guilty of an offence under this Act. 6. (1) The Federal Government, may make rules regulating or empowering a specified authority to regulate the wages and other conditions of service of persons or of any class of persons engaged in any employment or class of employment declared under section 3 to be an employment or class of employment to which this Act applies. 6. (1‑A) Notwithstanding any provision in any such rules or directions, regulating wages and other conditions of service, including any rules made or direction given before the commencement of the Pakistan Essential Services (Maintenance) (Amendment) Ordinance, 1978, as to the day on which they shall come into force, the Federal Government may direct that they shall be deemed to have taken effect on such day, not preceding the day on which such rules were made or directions were given, as the Federal Government may specify. (2) When any such rules have been made or when any directions regulating wages or conditions of service have been given by an authority empowered by such rules to give them any person failing to comply therewith is guilty of an offence under this Act." It has been held in case of Pakistan Television Corporation v. M. Babar Zaman and others (1939 SCMR 1549) as under:‑‑ The provisions of the Act and their examination in K.E.S.C.'s case establish a distinction between the regulatory powers (exercisable by the Federal Government or an authority specified by it under section 6 of the Act) punitive powers (exercisable by a servant of the Government empowered to file a criminal complaint in writing under section 7 of the Act)‑and the adjudicatory powers in other respects left untouched by the Act. The regulatory power was held in that decision not to extend, encroach upon or affect in any manner the adjudicatory set‑up. When it is provided in section 7‑A of the Act that the provisions of this Act shall have effect, notwithstanding anything to the contrary contained in the Industrial Relations Ordinance, 1969 (XXIII of 1969) or any other law the impact is created only to the extent of contrariety and not in the domain where there is no-contrariety. Section 3 applies the Act to every employment under the Federal Government and in spite of the Act there is an established adjudicatory system of Service Tribunals for civil servants. Similarly, those who fall in the category of workmen and are not exempted from application of Industrial Relations Ordinance can have recourse to the Labour Courts. Those who are excluded from the Labour Courts also can resort to Constitutional jurisdiction if the rules governing them happen to be statutory as recognised in the case of the Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC

170. In the case of Khuda Bux v. Pakistan Steel Mills Corporation and 2 others (1983 PLC 16) this question directly came up for consideration in the light of this Court's judgment in K.E.S.C: s case and the following observations at page 22 of the report of the High Court judgment deserve reproduction:‑‑ "It my be noticed that in the above judgment it was inter alia observed that the specified authority by its own notification purported to oust the jurisdiction, inter alia, of Labour Courts contained in sections 25‑A and 34 of the I.R.O. and the right of appeal under section 38 of the aforesaid Ordinance. The above judgment has been expressly approved by the Supreme Court in the above Karachi Electric Supply Corporation Ltd. and leave to appeal against the above judgment was also declined by the Supreme Court through the aforesaid order dated 16‑12‑1981 passed in Civil Petition for Special Leave to Appeal No. K‑114/81. It is true that in the above case the Division Bench of this Court proceeded on the assumption that the Labour Courts retain the jurisdiction in the absence of vesting of jurisdiction in the specified authority under the Act. However, the Supreme Court while declining the leave against the above judgment has not adverted to this aspect." It is clear to us that the provisions of the Act supersede every other provision only to the extent of contrariety and not beyond. For matters not covered by the provisions of the Act, the ordinary law will have application particularly in the matter of adjudication. In the cases before us, it was contended that the employees of the Pakistan Television Corporation could not invoke the forum of Labour Courts for redressing their grievances because by Ordinance No. XV of 1975, an amendment was made in subsection (3) of section 1 which was given effect to from a retrospective date, namely the 16th day of February, 1978. Pakistan Television Corporation and the Pakistan Broadcasting Corporation were added by clause (d) excluding them from application of Industrial Relations Ordinance. Similarly, by Ordinance No. XXXVI of 1978 promulgated on 27th day of August, 1978, subsection (1‑A) was added from the 25th day of January, 1978 which is in the following words:‑‑ "(I‑A) Notwithstanding any provision in any such rules or directions regulating wages and other conditions of service, including any rules made or directions given before the commencement of the Pakistan Essential Services (Maintenance) (Amendment) Ordinance, 1978, as to the day on which they shall come into force, the Federal Government may direct that they shall be deemed to have taken effect on such day, not preceding the day on which such rules were made or directions were given, as the Federal Government may specify." This provision has the effect of making the direction of the specified authority the command of the Federal Government as from retrospective date and any relief sought within its purview may be sought for by invoking the Constitutional jurisdiction of the High Court.

7. The case of Anwar Hussain (supra) referred to by the learned counsel for the respondent is distinguishable on facts and is not applicable to the facts of the case in hand. In case of Chairman, WAPDA and 2 others v. Syed Jamil Ahmad (1992 SCMR 346) referred to above, their Lordships of the Hon'ble Supreme Court at pages 355 and 356 of the report have held as under:‑ "Reference may also be made to a recent judgment of this Court in the case of Mrs. M.N. Arshad and others v. Miss Naeema Khan and others (PLD 1990 SC 612), wherein the principle of law enunciated in the above‑cited cases has been reiterated as follows:‑‑ `In this regard reference may be made to the case of (i) Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chawdhry and 2 others (PLD 1961 SC 531); (ii) Zainul Abidin v. Multan Central Cooperative Bank Limited, Multan (PLD 1966 SC 445); (iii) The Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustom Ali and another (PLD 1966 SC 848); (iv) Abdul Salam Mehta v. Chairman, Water and Power Development Authority and another (1970 SCMR 40); (v) Lt.‑Col. Shujauddin Ahmad v. Oil and Gas Development Corporation (1971 SCMR 566) and (vi) R.TA. Janjua v. National Shipping Corporation (PLD 1974 SC 146). In the above cases, this Court has held that relationship between a Corporation and its employees is that of a master and servant and that no writ petition would be competent against the order of wrongful termination of service or dismissal from the service. However, in the case of the Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi (PLD 1984 SC 170) and the case of Anwar Hussain v. Agricultural Development Bank of Pakistan and another (PLD 1984 SC 194), this Court has taken the view that even an employee of a Corporation can maintain a writ petition if there has been a violation of any provision of law of any statutory rules of service. But, we may observe that the above question is not germane to the point in issue." A perusal of the law declared by their Lordships of the Supreme Court in the aforementioned judgment as well as the facts thereof, clearly shows that this case is also distinguishable on facts and hence is not applicable to the facts of the case in hand. Hence, the impugned order is illegal and without a lawful authority. Resultantly, I accept this writ petition and declare that the order passed by respondent No. 2 dated 8‑1‑1989 is illegal and without a lawful authority, with the result that the petitioner continues to be in the service of the respondent No. 2, who is directed to take the petitioner on duty immediately and to pay all his arrears, allowances, and back benefits, etc. to which he is entitled under the rules applicable to his service. The parties are however left to bear their own costs. . A.A./M‑941/L Petition accepted.