1989 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER),‑‑The appellant's application for temporary injunction is outcome of his appeal under section 4 of the Service Tribunals Act, 1973, instituted by him on 18‑6‑1988, to challenge the validity of order dated 15‑10‑1987 (Annex H), whereby, in consequence of disciplinary proceedings under the Pakistan WAPDA Employees (Efficiency & Discipline) Rules, 1978, the Competent Authority "decided to impose upon him the penalty of reduction in rank for a period of three years" with a direction that he should not be given a field assignment.

2. The prayer for stay is based on the ground that he has got a good prima facie case; that the balance of convenience lies in allowing the continuance of prevailing situation and that refusal to grant the injunction would cause an irreparable injury to him.

3. The application has been opposed on the pleadings that there is no prima facie case in favour of the appellant and that balance of convenience lies in refusing the grant of injunction. It is, however, conceded that the impugned on; has not yet been enforced and that the appellant is still working as Deputy Director, in the post he was holding before the passage of the impugned order which position has been justified on the ground that the continuance of status quo is the result of Tribunal's order dated 23‑6‑1968.

4. Although the result in both the situations is the same, but we must take notice of the appellant's allegation, which has not been denied by respondent, that the impugned order was not implemented by the departmental authorities on account of the pendency of his departmental appeal. We were informed by the respondent's learned counsel, during the course of arguments, that this is no: the normal practice and that the orders regarding imposition of penalty are ordinarily carried out, irrespective of the pendency of a departmental appeal. Be that as it may, the fact remains, and this will materially influence the decision of the application for stay, that the appellant is still holding the same post, first because of the pendency of his departmental appeal and then because of the order passed by this Tribunal on 23‑6‑1988.

5. As for the assertion that the petitioner/appellant has got a good prig‑: facie case, we feel it would not be expedient to make an address to the merits the case and it will be enough to say that he has got an arguable case. Keeping view the nature of allegations, the report of the Inquiry Officer and the pence' imposed against him, it is not possible to say that he will have nothing to s during the course of arguments in the main appeal.

6. On the question of balance of convenience we feel that it lies m allowing the continuance of present situation. As already noticed before, the impugned order has not so far been implemented and the appellant is still holding the sari post from which his reduction is sought by the impugned order The balance of convenience obviously is in allowing him to continue in the same post, particular, when no disturbance will be caused in the department's working, in view of the fact that his reduction in rank is being sought as a punitive measure and not in consequence of any administrative consideration, which is evident from the fact that the impugned order was not carried out and he was allowed by the Department themselves to stay in the same position during the pendency of the departmental appeal.

7. The position regarding the third ingredient for the issuance of a temporary injunction, namely, the irreparable loss, is that it will not be possible to compensate the appellant in terms of money if the impugned order is allowed to be executed. This will evidently result in reducing him in status, a loss which cannot possibly be assessed in terms of money. The disposal of appeal may take some time and in the event of a decision in the appellant's favour, it will be well- nigh impossible to compensate him for the loss of status, he will be made to suffer by enforcement of the order. As already pointed out, in actual fact it will not be possible to work out the extent of this loss for a compensation.

8. For these reasons, the circumstances of this case would justify the grant of appellant's petition and the issuance of temporary injunction, prayed for by him, particularly when it will still be possible for the department to reduce him in rank and impose the proposed penalty, in case the Tribunal's decision goes against him. It may be stated that this conclusion amongst other consideration, is dictated by the fact that he has got an arguable case and is still continuing in the same post.

9. Reliance on behalf of the respondent has been placed upon 1971 S C M R 569 P L D 1973 Kar. 21 and P L D 1970 S C 139 in support of the contention that there is no justification for the issuance of temporary injunction. We feel it is not necessary to go into details of the facts of the cases which caused those rulings and it will be sufficient to say that they are distinguishable. The rulings against the grant of stay orders in those cases were caused by considerations, which were the outcome of entirely different circumstances. We might make a reference to 1973 S C M R 96 where the issuance of such an injunction was upheld by the Supreme Court, in spite of the authority of Malik Ashgar Khan's case 1971 S C M R 569 with the observation that the question whether temporary injunction should have been granted or not was a discretionary matter and that "in the present case, we are satisfied that the injunction has been granted on sound ground." It follows from this ruling that what is material is a matter regarding issuance of temporary injunction, are the circumstances of a case. The Court has to see in each case, after due consideration of the facts, whether the maintenance of status quo will ensure for the promotion of the ends of justice.

10. For these reasons, it is held that the appellant has been successful in making out a substantial case for the maintenance of status quo. The petition is, therefore, allowed and the respondents are restrained from implementing the impugned order till the final disposal of this appeal.

11. Parties to be informed. M.Z.S./464/Sr. F Appeal allowed.