1979 PLP 483 (CLC)

Mumtaz Ali Mirza for Respondent. Date of hearing 26th November 1978. This is an appeal against the judgment and decree of Syed Amjad Hussain Bokhari, Additional District Judge, Rawalpindi, dated 30th :tune 1971, by which the decree of dismissal of the appellant's suit was maintained in appeal.

2. The appellant was appointed as Secretary of the Rawalpindi Improvement Trust. His appointment was confirmed by Resolution No. 7, passed by the Trust on 11th December 1953 (Exhs. D. r. and D. 7). The respondent is said to have been confirmed in his post with effect from 1st August 1961. On the 2nd May 1964, the appellant was placed under suspension under the direction of the Provincial Government. The appellant was directed to appear before the Rawalpindi Improvement Trust on the 6th May 1964, to explain his position. Instead of putting appearance before the Rawalpindi Improvement Trust, the appellant sent a written statement: After considering his explanation and the whole case the Improve ment Trust resolved unanimously that "his services be terminated immediately on payment of three months salary. The appointment of Sh. Bashir Ahmad E. A. C. as part-time Secretary approved".

3. The appellant challenged this order by a civil suit which was contested not only on merits but also on the ground that suit was not maintainable. The learned trial Court found both the issues against the plaintiff and as a result of the same dismissed the suit on 15th May 1968.

4. The appellant's appeal was dismissed by the learned Additional District Judge, on 30th June 1971.

5. It is established from the record that the appellant's services were terminable by three month's notice on either side. Exh. D. 1 is the offer of service from the Chairman, Rawalpindi Improvement Trust, to the appellant and this offer is subject to this condition. This offer was accepted by a telegram which was confirmed by letter Exh. D. 2 by the appellant. Exh. D. 3 is the report of the Secretary, Rawalpindi Improvement Trust, dated 17th November 1953, for confirmation of the appointment by the Sub-Committee. Exh. D. 7 is resolution No. 7 of the special meeting of the Rawalpindi Improvement Trust dated 11th December 1953, confirming the appointment. Exh. P. 2, are the minutes of the meeting of the Rawalpindi Improvement Trust held on 6th May 1964, and the resolution of termina tion of service is item No. 67 of the minutes. From these documents, it is clear that the appellant's appointment was terminable on three months' notice on either side and it was so terminated,

6. The learned counsel for the appellant, however, contended y that this order amounted to removing the appellant since it was passed on account of some charges levelled against the appellant. He also submitted that since the disciplinary action is governed by statutory rules 12 to lf of Punjab Town Improvement trust Services trained under section 73 of the Town Improvement Act, in September 194:5, the civil suit vas competent.

7. I agree with the argument of the learned counsel that the civil suit was competent since the rules of service governing the appellant are statutory rules. The case is distinguishable from those cases where it was held by their Lordships of the Supreme Court that the dispute between a statutory corporation and its employees are governed by the law of master and servant and in case of such dispute the. only remedy for the employees is to file suits for damages even though the employees have been removed or dismissed from service without being conferred an opportunity of being heard. The cases to this effect are Lahore Central Co-operative Bank Ltd. v. Saif Ullah Shah (PLD1959SC(Pak.)210), Pakistan v. Naseem Ahmad (PLD1961SC445), Messrs Malik and Haq and another v. Muhammad Shams-ul-Islam (PLD 1961 SC531) and Chairman, East Pakistan Development Corporation v. Rustam Ali (PLD1966SC848).

8. But this principle does not apply to a case where the relations between employer and the employees are governed by the statutory rules. This is clear from the observation in the Lahore Central Co-operative Bank Ltd. v. Saif U1Jah Shah in which reliance was placed upon a resolution passed by the Managing Committee to the effect that the Civil Services Rules would apply to the Bank's employees. It was held that this could not help the employees since the resolution was not passed in the form of a rule. In the case of Messrs Malik and Haq another v. Muhammad Shams-ul-Islam the principle of master and servant was applied in the absence of any statutory provision. In Ijaz Ahmad Siddlqui v. Municipal Committee (P L D 1967 Lab. 408), a Division Bench of the High Court of West Pakistan entered a caveat that "we should not be understood as saying that a Municipality or another corporate body is absolutely immune from the writ jurisdiction in the matter of grant of redress to an aggrieved employee even if the impugned order suffers from an inherent vice and is for that reason ab initio." Similar view was taken in District Board Lahore v. Agha Muhammad Khan (P L D 1957 Lab. 780), Abdul Ghajoor v. The Thal Development Authority. Jauharabad (P L D 1958 Lab. 169), Deputy Managing Director, National Bank of Pakistan v. Ataul Haq (P L D 1965 S C 201), Manni v. Karachi Cantonment Board (P L D 1969 Kar. 304), M. S. Faruki v. Province of West Pakistan (P L D 1970 Lab. 195), .Secretary, East Pakistan Industrial Development Corporation v. Md. Serajul Haque (1970 S C M R 398), Province of East Pakistan v. Mumtaj-ul-Din Ahmad (P L D 1971 Dacca 235), Fayyaz Hussain v. Admr. Lahore Municipal Corporation (P L D 1972 Loh, 316) arid Abdul Razzaq v. WAPDA (P

1. D 1973 Lab. 188). In view of this consistent view, I agree that the civil suit was not incompetent.

9. On merits, however, the appellant has no case. Though it is correct that certain allegations were levelled against the petitioner but ultimately his services were terminated according to the contract of payment of three months' salary. In Secretary, East Pakistan Industrial Development Corporation v. hid. Sirajul Haque it was reiterated that where service is terminated simply on payment of one month's pay and no stigma is attached in the order even though in the office note there was an allegation about employee's efficiency, it cannot be said that the service was terminated by way of penalty. Reference was made in support of this proposition to Abdul Karim v. West Pakistan Province (P L D 1956 S C (Pak.) 1298) and Noorul Hassan v. The Federation of Pakistan (P L D 1956 S C (Pak.) 331). In view of this established proposition, the termination off service of the appellant could not amount to dismissal or removal with an 1y stigma. Issue No. 2 was, therefore, rightly decided.

10. The appeal is without force and is dismissed with costs. Appeal dismissed.