1997 PLP 1936 (CLC)

Mahmood A. Baloch for Plaintiff. Ikram Ahmad Ansari, by. Attorney‑General and Mrs. Navin S. Merchant for Defendants Nos. l and

2. Date of hearing: 29th May, 1997 Through this application for interim relief the plaintiff‑employee seeks to restrain the defendant No. l employer from giving effect to the letter dated 27‑3‑1997 purporting to terminate the services of the plaintiff and taking action in consequence thereof pending the disposal of the suit. When the case initially came up before my learned brother Rashid A. Razvi, J. for Chamber orders on 7‑4‑1997, he directed notices to the defendants and passed ad interim orders suspending the operation of the letter of termination. Thereafter, the matter came up for hearing before me and after perusing the pleadings, affidavits and documents and hearing the counsel at length I announced a short order on 29‑5‑1997 confirming the ad interim injunction, following are my reasons for the said order.

2. In tile main suit the plaintiff has prayed for a declaration that the termination of' his service vide letter dated 27‑3‑1997 (hereinafter mentioned as the impugned letter) is illegal and for a permanent injunction seeking to restrain the defendants from giving effect to the same. The plaintiff's case, as set out in the plaint, is that he joined the defendant No. l Corporation, which is a company owned and controlled by the Federal Government (defendants Nos.3 and 4) in 1983 as an apprentice Engineer. After successful completion of the probationary period he was appointed as Assistant Executive Engineer on a confirmed basis in terms of the appointment letter dated 16‑8‑1983. He was promoted to the rank of Executive Engineer in 1993 and though he was performing important duties with skill, honesty and diligence his services were sought to be terminated through the impugned letter (Annexure 'J' to the plaint) the relevant terms whereof read as under:‑‑

"In order to exercise economy, curtail expenditure and save the Corporation from huge financial losses, the KESC Ltd., is engaged in re‑structuring and re‑organization of its affairs. As a result, 200 posts of officers in different grades have been abolished. The post held by you is also abolished rendering your services as no more useful and no longer required by the Corporation. Accordingly your services are hereby terminated in accordance with the terms and conditions of your appointment with immediate effect. You will be entitled to payment of three months' pay in lieu of the Notice period as required under the rules. "

3. The plaintiff has alleged that the very foundation upon which the impugned action is premised does not exist. Even if some justification existed for dispensing with the services of some officers a fair and reasonable criterion should have been adopted which was not done, an arbitrary pick and chose attitude was adopted and while the plaintiff was being sacked, several others in his line of specialisation with lesser experience and professional skill were being retained; that no opportunity to show cause was given to the plaintiff and that the impugned action was arbitrary, unjust, mala fide and violative of the principles of natural justice.

4. While the plaintiff relied upon the contents of the plaint in support of this application for interim relief, the defendants in their counter‑affidavit did not advert to the factual aspects of the case and only raised certain legal objections to the maintainability of the suit and the propriety of granting interim injunction. However, since I was of the view that the defendants' version on facts should also be available before the Court for making the requisite tentative assessment of merits at this stage, by my order dated 13‑5‑1997 I allowed them to file their written statement. Accordingly such statement was filed on behalf of the defendants Nos. l and 2 and its contents were adopted by defendants Nos.3 and 4.

5. In the written statement the basic facts stated in the plaint have not been disputed. However, the allegations that the impugned action is mala fide, discriminatory and arbitrary, have been emphatically denied. It is not disputed that no show‑cause notice was given to the plaintiff 'before taking the impugned action. However; it has been contended that such notice was not necessary. Moreover the defendants have raised certain preliminary objections as to the maintainability of the suit and it has been contended that the suit is barred by the provisions of the Specific Relief Act, that no permanent or temporary injunction can be granted in the circumstances and that the suit is bad for non joinder of necessary parties. It may be convenient to consider these objections first.

6. With respect to the plea of non‑joinder, Mr. Ikram Ahmad Ansari, learned Deputy Attorney‑General and counsel for defendants Nos.l and 2 contended that in view of the allegations that the services of persons junior to or less competent to the plaintiff were being retained such persons ought to have been identified and impleaded as they would be necessarily affected by a decree that may be passed. In response Mr. Baloch contended that the plaintiff has not sought any relief against such persons and is not even interested in seeking termination of their services. He has only referred to them to show that the defendant No. l have adopted a pick and choose policy and the impugned action is discriminatory. In this context it may be kept in view that the contours of the expression "necessary party" have been clearly laid down by the Superior Courts and one may refer to the judgment of Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 315), wherein it has been held that a necessary party is a party in whose absence no effective decree can be passed. It has not even been claimed that the number of officers required to be employed in the defendant No. 1 has been fixed by law and an injunction in favour of the plaintiff would necessarily entail termination of services of any other officers. Even if such persons were to be affected they could at the most be treated as proper parties and non‑joinder of such parties can never defeat a suit. As such I find no force in this contention.

7. With respect to the bar of section 56(d), I was a little doubtful whether the defendant No. 1, which is admittedly an independent entity registered under the Companies Ordinance, though substantially owned, managed and controlled by the Federal Government, could be treated as a department of the Federal Government. Mr. Ansari, however, has candidly brought to my notice a judgment of this Court in the case of Muhammad Rasheed Bhatti v. K.D.A. (PLD 1986 Karachi 130), wherein the expression "department of the Government" appearing in the abovementioned provision has been discussed in detail. At page 134 of the report, Saleem Akhtar, J. (as his lordship then was) observed: "It is true that the Director‑General and members of the Governing Body are appointed by the Provincial Government and in matters of policy guidance is also sought by the Provincial Government, but these factors do not render the Karachi Development Authority as a department of the Government." In view of these observations objections premised on this ground must also be repelled. '

8. Mr. Ansari next contended that the suit was barred on account of section 21(b) of the Specific Relief Act as a contract for personal services could not be specifically enforced. He relied upon the judgments of this Court in the cases of Gulf Steamship Company v. Dilvash Baloch (PLD 1962 Karachi 899) and Volkervan (Pakistan Limited) v. Hamid Hussain (1988 MLD 2067), for the proposition that contracts of employment were not specifically enforceable and a declaratory decree could not be granted to the effect that the plaintiff continues to be an employee of the defendant, the only remedy of an aggrieved employee being to claim damages for breach of contract. He also referred to the judgment in the case of Muhammad Afzal v. House Building. Finance Corporation (PLD 1976 Karachi 1176), wherein the same view was taken in respect of employees of a statutory Corporation, and it was clarified that the protection available to civil service under the law did not apply to employees of such Corporation. Indeed this view has also been taken by the Honourable Supreme Court in the case of Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194) and a large number of other reported cases.

9. While the correctness of the above legal proposition can certainly not be disputed, I do not think that it applies to the present controversy. A suit would be barred only when the plaintiff seeks specific performance of his contract of employment. It is quite clear from the pleadings, as I shall discuss a little later in this order, that the plaintiff has not sought enforcement of any provisions of his contract of employment. He has only sought relief against action proposed to be taken in violation of the law. This objection must, therefore, also fail.

10. I may also add that in view of the law declared in the case of Anwar Hussain (PLD 1984 SC 194), it may not be possible for the plaintiff to seek a declaration as to his legal character as an employee of the defendant No.l when the terms of his employment are governed by contract and not statutory rules. Nevertheless if an obligation i.e. a duty enforceable at law is cast on the defendant, he would still be entitled to the relief of a permanent injunction. In this context it may be pertinent to refer to the judgment of the Honourbale Supreme Court in the case of Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi (PLD 1976 SC 785). In this case the plaintiff had sought certain reliefs by way of declarations and injunctions against the defendant Board. The suit was held to be not maintainable on the ground that a declaratory suit could not be filed against the Cantonment Board without prior notice under section 273(i) of the Cantonments Act. The Honourable Supreme Court, however, held that while declaratory relief may not be permissible, the relief sought by way of permanent injunction could always be considered as an independent relief and upon this principle the judgment of the Courts below were set aside. I am of the view that the principles laid down in the above precedent is squarely applicable to the present case and even if the plaintiff cannot be granted a declaration as to his legal character, relief by way of permanent injunction to prevent the breach of an obligation (apart from relief of damages claimed) can always be granted.

11. A great deal of forensic literature is available on the question of rights and remedies of employees of statutory Corporations and other corporate entities controlled by the Government in the form of pronouncements of the Honourable Supreme Court. Most of these judgments have been cited in the very erudite judgment of Ajmal Mian, J. in the case of Anisa Rehman v. P.I.A. (1994 SCMR 2232) relied upon by Mr. Baloch. It is indeed correct that the age old principle that contract of employment cannot be specifically enforced is well -entrenched in our judicial system. It has been consistently held that an employee cannot, in view of the provisions of the Specific Relief Act, seek specific performance of a contract of employment or obtain injunction against termination of a services and his only remedy is to claim damages for breach of contract. At the same time Courts have also declined to exercise Constitutional jurisdiction on account of the well‑settled principle that contractual obligation cannot be enforced through a petition under Article 199 of the Constitution. Nevertheless when conditions of an employment were found to be protected by law or rules having the force of law relief both under the Constitutional jurisdiction and the original civil jurisdiction has been found to be permissible. The basis of the distinction is not difficult to appreciate. Admittedly the Constitutional jurisdiction of the High Court is designed to afford redress against the violation of law and whenever a law has been violated the Court can always issue an appropriate direction to the person doing so provided he is a person performing functions in connection with the Federation, Province or a local authority. Similarly where declaratory relief or injunction is claimed for breach of a contractual obligation the same cannot be granted in' view of the provisions of the Specific Relief Act. Section 54 enables a Court (subject to the other provisions in Chapter X) to grant a perpetual injunction to prevent a breach of an obligation existing in favour of the plaintiff. Such injunction may be either prohibitory or mandatory. An obligation has been defined to mean any duty enforceable at law. Obviously such duty may either arise from contract or from law. This power under section 54 is, however, conditional by the stipulation that when an obligation arises from a contract the Court is to be guided by the provisions of Chapter 11 which includes section

21. This section enumerates the types of contracts which are not specifically enforceable Le contracts for personal service or contracts, the breach whereof can be adequately compensated in monetary terms. Again section 56(1) bars grant of injunction to prevent breach of contracts which are not specifically enforceable. Evidently the power of the Court to grant injunctions relating to performance of contractual obligations have been restricted. Nevertheless there is no embargo whatsoever on the power to enforce obligations ordained by the law itself.

12. The crucial question that has arisen before the Court on several occasions is whether the obligations that the petitioner or the plaintiff seeks toll enforce arises from a contract or from law. It is in this context that the question whether the rules of service were statutory or otherwise was considered decisive, inter alia, in the cases of Cadet College, Kohat v. Shoaib Qureshi (PLD 1984 SC 170), Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194), Riazuddin v. P.I.A. (PLD 1992 SC 531). When such rules were framed by the Government under powers conferred by statute they obviously had the force of law and obligations created thereunder could be specifically enforced. On the other hand when the Corporation framed rules or regulations for their internal management such regulations could not acquire the force of statutory rules. They could only be treated as implied terms of contract between the employer and the employee and hence the rules of master and servant was held to be applicable. The only basis of distinction therefore, in my humble opinion was whether the rules/regulations had the force of law or merely terms of contract of an employment. Relief of injunction or reinstatement could be granted in the former case but not in the latter. Obviously if a contract of service could not be enforced even in case of violation of law, a Civil Court would in no circumstances have power to grant relief of reinstatement.

13. The next question that arises is whether expression "law' is confined here to mean only a provision of a statute or statutory instrument or whether it includes judicial principles laid down from time to time by the superior Court and required to be followed by all Courts and Tribunals in adjudicatory process. In this context it may be pertinent to refer to two relatively recent judgments of the Honourable Supreme Court. In the case of Karachi Development Authority v. Wali Ahmad Khan, (1991 SCMR 2434) a decision of the High Court, directing reinstatement of the respondent in the employment of the appellant was assailed, inter alia, on the ground that the rules of employment in the appellant were not statutory and the principle of master and servant was applicable. The Supreme Court found this contention to be correct. Nevertheless it declined to reverse the finding of the High Court on the ground that the impugned action had been found to be mala fide. In the case of Anisa Rehman v. P.I.A. (1994 SCMR 2232), the appellant, who was an employee of the respondent, was demoted to a lower rank without show‑cause notice. The Honourable Supreme Court held that the rules of employment were not statutory and the principle of master and servant applied. Nevertheless it found the impugned action to be unlawful because the principles of natural justice, required to be treated as part of the law, were not followed. At page 2240 of the report Ajmal Mian, J. observed:‑‑ "The above violation can be equated with the violation of a provision of law warranting pressing into service Constitutional jurisdiction under Article 199 of the Constitution, which the High Court failed to exercise. The fact that there are no statutory service rules in respondent No. l Corporation and its relationship with its employees is of that Master and Servant will not negate the application of the above maxim audi alteram partem." Obviously there is no specific statutory provisions requiring public authorities to act in good faith or to adhere to the principle of natural justice. Nevertheless such duties have always been treated to inhere in public functionaries as a matter of law and the Honourable Supreme Court found them enforceable, irrespective of the consideration that the employment was contractual. In view of the above am clearly of the opinion that the expression "law" has been used in its broader sense.

14. It may now be considered whether the plaintiff is seeking enforcement of a provisions of a contract or a duty ordained by law. The plaintiff has no where complained that any particular provisions of the terms of his contract of employment contained in the appointment letter have been violated. He has only asserted that the action taken against him is mala fide, arbitrary, unfair and unreasonable. He has further complained that he was entitled lo an opportunity of showing cause before the impugned action could be taken. In view of the weighty pronouncements of the Supreme Court in the above two cases, I am quite clear in my mind that he has only sought enforcement of obligation arising from law. These obligations exist independently of the terms of the contract and can be enforced notwithstanding the fact that the nature of his appointment was contractual. The plaintiff is entitled to an injunction provided a case for its grant is made out on merits.

15. Coming to the merits of the case Mr. Mahmood Baloch, learned counsel for the plaintiff has raised the following contentions:‑

(i) In the first instance there was no rational justification for taking a decision to abolish posts or terminate the services of officers on the pretext of effecting economy and curtailing expenses. (ii) That even if such justification existed, the defendant No. l exercising public power ought to have followed some fair and rational criteria for retrenchment. The impugned action against the plaintiff is arbitrary, mala fide, discriminatory and illegal. (iii) That the plaintiff was not the junior most officer in his cadre and no finding as to his unsuitability for retention in service could be made without allowing him to explain his position. (iv) That in any case the impugned action without giving the plaintiff an opportunity of showing cause was unlawful and contrary to the law declared by the Supreme Court.,

16. In support of the first contention Mr. Mahmood Baloch, has referred to the terms of the plaint showing that since 1991 there is a ban on recruitments in the defendant No.l, while during this period about 18,000 new connections have been issued to different consumers. He has also argued that whereas on one hand the defendant No.l are attempting to terminate the services of the officers at the junior level on the pretext of effecting economy, on the other hand several posts at the higher level have recently been created, increasing the establishment expenditure of the Corporation. The factual aspect of these contentions have not been disputed in the written‑statement. Nevertheless Mr. Ansari has argued that re‑organization and restructuring of its establishment or effecting other measures, with the object of curtailing expenses is the privilege of every employer and the Courts have no jurisdiction to sit in judgment over such policy matters. Prima facie there is force in Mr. Ansari's contention and I am of the view that the Corporation is entitled to take any bona fide measures for cutting down its expenditure and exercise any of the several available options and Normally Courts of law would not interfere in its discretion unless it could be shown to be perverse or mala fide. This contention, therefore, fails.

17. In support of his second contention Mr. Baloch has placed on record a seniority list dated 23‑7‑1990 containing the names of 186 Assistant Executive Engineers in the Engineering Group of the defendant Corporation. He has explained that the first 54 officers mentioned in the above list were since promoted to the rank of Executive Engineers after the issuance of this list and the plaintiff's name figured at Serial No.27. He has pointed out that out of the 54 officers, services of 8 only are proposed to be terminated which includes five officers junior to him. As such 22 Executive Engineers who were admittedly junior to the plaintiff are being retained. Even in para. 15 of the plaint the plaintiff had urged that persons lacking skill experience and specialization were retained while those like the plaintiff, possessing higher. degree of skill experience and specialization were being terminated. Defendant ‑No. l in the written statement have not denied the assertion. All that has been said is that the plaintiff failed to show which of the retained officer possesses less skill, experience or specialization and that such officers were required to be impleaded as parties. In para. 14 of the plaint it has been specifically contended that the post held by the plaintiff has not been abolished even under the new structure and this contention has not been denied by the defendant. All that is said is that the contention pertains to the policy of the defendant and the plaintiff being an employee cannot question the wisdom of policy decisions.

18. Mr. Baloch further argued that in paras. 3, 4 and 5 of the plaint the plaintiff has specifically contended that his performance of services was a very high quality and this contention has not been expressly denied by the defendant who have only averred that this is a question of fact requires to be proved or disproved through evidence. There appears substance in Mr. Baloch's submission that such an evasive reply amounts to a tacit admission as evidence is required to be led only in respect of facts which are disputed. 18‑A. On the basis of the above material Mr. Baloch argued that admittedly the plaintiff was not so junior that his services could have been terminated on the basis of a bona fide retrenchment policy nor have the defendant ever questioned his competence, integrity or skill so as to justify the termination of his services. He pointed out that the defendants have not even attempted to explain or refer to any rational criteria whereupon the services of certain officers were being terminated. As such, according to him, the plaintiff's allegation that the impugned action was arbitrary, mala fide and discriminated stood unrebutted. Mr. Ikram Ahmad Ansari on the other hand emphasised that the action was taken under bona fide policy decision and strictly in terms of the contract of an employment and no mala fide of any description could be spelt out. On the factual plane Mr. Ansari explained that at this stage the defendant did not wish to enter into a controversy on‑facts but would prefer to rely upon the legal principle that the action being permissible within the terms of the employment no mala fide could be inferred and interference by the Court was not warranted. He also argued that the mala fide had to be specifically alleged and the burden of proof the same squarely on the plaintiff which has not been discharged. Mr. Ansari is correct to the extent that there is a heavy onus of proof on the person alleging mala fide and as has been held in the celebrated decision of the Honourable Supreme Court in the case of Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151).

19. At the same time, however, I am also not unmindful of the current trend of judicial authority reflected in the judgment of the Honourable Supreme Court in the case of University of Punjab v. Roohi Farzana (1996 SCMR 263) where Saleem Akhtar, J. was pleased to observe:‑‑ " .... but if malice is imputed for procuring order which from circumstances seemed to be possible then unless it is explained or rebutted, it would be difficult to justify it. "

20. While I do not think it necessary to record the finding on the question of mala fide at this stage I cannot, in view of the above dictum, held observing that when the defendants, who are admittedly exercising public power have chosen not to divulge the basis on which the decision to terminate the services of a few officers have been taken and facts leading to an inference of mala fide have been admitted, the plaintiff's allegation cannot be lightly brushed aside.

21. It was forcefully contended by Mr. Ansari that the impugned action was taken strictly in accordance with the plaintiff's contract of an employment and could not be considered illegal in any sense. He referred to the terms of para. 13(b) of the plaintiff's letter of appointment which reads as under:‑‑ "After completion of 5 years' services three months' notice in writing or payment of three, months' pay in lieu thereof on either side will be necessary for the termination of services. " Mr. Baloch, however, argued that the defendant No. l being a public functionary was required to act fairly, justly and without discrimination even in any matter relating to award of contract and performance contractual obligation and duty to do so was imposed by law. He referred to two Division Bench judgments of this Court in case of Abdullah & Company v. Province of Sindh (1992 MLD 293) and M/s. Maniar Industries (Pvt.) Ltd. v. S.I.T.E. and another (1992 CLC 2329). In the first case the auction of a contract for collecting of octroi was questioned on the ground of being arbitrarily though not in violation of any specific provisions of law, Nasir Aslam Zahid, C.J. (as his lordship then was) observed:‑‑ "We may not be taken to hold that the Government did not have the power to withdraw the letter, dated 11‑5‑1991 but, in our view, this power or discretion which affected individual rights was required to be exercised in a fair, reasonable and just manner. An executive discretion which affects private rights cannot be exercised at the whim of the executive authority. It must have a basis and such basis must be reasonable fair and lust in the circumstances of the case." In the same judgment his lordship cited, with approval the well‑known judgment of the Supreme Court of India in the case of Ramana Dayaram Shetty v. International Airport Authority, wherein it was held that the Government even while entering into contract or issuing licence or granting any form of largesse cannot act arbitrarily. It may deal with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary irrational or irrelevant.

22. Similarly in the case of Maniar Industries (1992 CLC 2329) the petitioner was a lessee of S.I.T.E. which though registered as a company, had been found to be performing governmental function. There was Nallah adjacent to the petitioner's plot and the petitioner applied for allotment of the same but his request was rejected on the ground that S.I.T.E. does not allot Nallahs. However, at some later time the Nallah was allotted to another person (respondent No.2). The petitioner questioned such allotment as mala fide and illegal. The Court held that the decision to allot the Nallah to another persons after rejecting the petitioner's application was arbitrary, irrational and liable to be set aside. It was held by the same learned Judge: "It is now a well‑settled principle of our Constitutional Law evolve through Constitutional interpretation by decision of Supreme Court and also the High Court that such executive 4iscretion must be exercised justly, fairly and reasonably and not in an arbitrarily or unreasonable fashion".

23. It may be observed that the law relating to the limits of discretion of public functionaries has undergone a radical change through several decisions of our superior Courts including the Supreme Court, particularly during the post martial‑law period. At one time a great deal of latitude was accorded to such functionaries particularly in the exercise of their discretionary functions and their power to decide something was, held to include the power to decide rightly or wrongly. The current trend of judicial authority, however, appears to be that there is no concept of unfettered discretion in public law. All public power is in the nature of a trust and is to be exercised reasonably, honestly, fairly and justly. If authority is needed one may refer to the Supreme Court judgment in the case of Federation of Pakistan v. Muhammad Aslam (1986 SCMR 916). Such duty to act fairly is ordained by law and is enforceable through Courts. In S this context it may also be pertinent to refer to a Division Bench judgment of this Court in the case of Dadabhoy Investments v. Federation of Pakistan (PLD 1995 Karachi 33). In this case rejection of an offer for purchase of a factory through a bid by the Privatization Commission was questioned. It was contended on behalf of the respondents that the Government, under the law, had absolute discretion to accept or reject a bid, that the matter related to enforcement of contractual obligations and the petition was not maintainable. Repelling both objections, Majida Razvi, J. observed;‑‑ "In the present case it is an admitted fact that the petitioners are not, or have not, filed the present petition for the enforcement of contractual obligations but is only seeking relief against the actions of the executive authority which according to the petitioners, are unjust, unfair and arbitrary. After hearing the arguments and going through the case‑law submitted by both the learned counsel, we are of the view that no doubt the Government reserved to itself the discretionary ‑power to accept or not to accept the bid but while rejecting the same the Government is expected to act justly, fairly and reasonably, which in ‑the present case it was not so. It is settled law that the discretion vested in the authority is to be exercised judiciously and not arbitrarily. Exercise of such discretion against the subject shall be based on sound principles of justice, equity, fairness and in accordance with the spirit of the provision in which it occurs and shall not be merely at the whims of the authority. In the present case the respondents have not shown if the said discretion was exercised judiciously keeping in view the above principles. "

23. In view of the above I am of the view that the duty to act fairly is to be performed as a matter of law and is an inherent limitation upon the discretion of all public functionaries whether performing statutory function or discharging obligation under contract. Such duty being imposed by law cannot be deviated from through a contract. When such functionaries are required to act honestly and fairly in relation to different kind of contracts I see no reason why this obligation could be dispensed with in respect of contracts of employment. As such I am of the view that the plaintiff has made out a prima facie case in support of the proposition that the defendants have failed to act reasonably and fairly.

24. Coming to the third contention it is acknowledged that the defendant was not the junior most officer in his cadre and the post that he is holding has not been abolished. Perhaps the only legally permissible justification for termination of his services could be his inefficiency or lack of integrity. In para. 11 of the written statement it has been contended as follows:‑‑ "It is submitted that the persons who have not been found fit to serve the defendant's Corporation their services have been terminated, as such persons are responsible who have drained the defendant No. l of its financial resources and brought to the present juncture, inefficiency and mismanagement in the department of defendant No. 1 . The above allegations are indeed very serious and also contain over tones of moral turpitude, I am, therefore, tentatively of the view that the plaintiff was entitled to a show‑cause notice before any finding as to his unsuitability could be arrived at. In the case of Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan (PLD 1974 SC 393) it was held that a probationer was not entitled to show‑cause notice before termination of the service. Yet the Honourable Supreme Court held that when there were allegations of corruption against the probationer even he was required to be given notice and the termination of the service without such notice was illegal.

25. Mr. Ikram Ahmad Ansari indeed contended that the termination was effected in the exercise of a bona fide policy decision attributing no fault to the plaintiff. Hence no notice was necessary. He is indeed right to the extent that the letter of termination itself does not contain any specific adverse findings against the plaintiff. It is also true that at one time the Courts used to take the view that notice was necessary when termination of services was effected by way of penalty but not otherwise, i.e. termination simpliciter was sought to be effected, i.e. no fault was alleged against the employee. Nevertheless the legal position appears to have become somewhat different after the decision of the Shariat Appellate Bench of the Supreme Court in the case of Pakistan v. Public‑at‑large (PLD 1987 SC 304). In this case the validity of certain statutory provisions enabling the Government to effect premative retirements of Civil servants after completing a certain length of service or attaining certain positions was being examined on the touchstone of repugnance to Qur'an and Sunnah. Holding the provisions to be so repugnant, Zullah, C.J. (as his lordship then was) observed:‑‑ "Although no fault need be attributed and none is in fact attributed; however, the rules and practice relating thereto assume that it is not without fault on deficiency. Thus, it carries the stigma and disgrace in the public eye. This inference gets confirmed from the fact that the law itself is explicit in informing the enquirer, whosoever may be, that the retirement is in public interest. In other words, the continuance any further in the service of the affected officer is not in the public interest. This cannot be without a fault, deficiency etc. Thus, this type of retirement adversely affects his reputation also. And as the curtailment of service is summary and sudden, the inquiry to reputation is also pronounced and acts as severe blow to the self‑respect and dignity of man. Further, it is known in the community of the civil servants that the normal procedure for premature retirement is through an inquiry and opportunity of showing cause. When an officer is retired under the summary procedure and window of only pronouncement of 'public interest' without a visible finding on facts in that behalf, it definitely operates as a penalty and thus is a penal action and the provision is penal. It may also be mentioned that the Shariat Appellate Bench has been held to be part of the Supreme Court and the observations on questions of law have the same effect as other judgments.

26. Mr. Baloch squarely relied upon the judgment of the Honourable Supreme Court in Anisa Rehman's case (1994 SCMR 2232) discussed above and a very recent unreported judgment of Division Bench of this Court in the case of Nadeem Ahmad and others v. P.I.A. and others (C.P. No.2360 bf 1996) and others), decided on 13‑5‑1997. In this case, following the law declared in Anisa Rehman's case, their Lordships allowed a bunch of Constitutional petitions filed by employees of the P.I.A. whose services were terminated without assigning any reasons or without giving them an opportunity of being heard. I am also aware of an unreported decision of the Lahore High Court in the case of Managing Director, Ittehad Chemicals v. Mushtaq Ahmad (I.C.A. No.217 of 1994), decided on 17‑1‑1996). In this case, following the pronouncement of the Supreme Court in Anisa Rehman's case, a Division Bench sustained the judgment of a learned Single Judge directing the reinstatement of the respondent, a General Manager in the petitioner which was an incorporated company nationalised under the Economic Reforms Order.

27. I specifically invited Mr. Ikram Ahmad Ansari to show, how the law declared in Anisa Rehman's case was not applicable in the instant matter. He first attempted to urge that rules of employment in P.I.A. were statutory. This is obviously not correct as is evident from the judgment itself. He then contended that the decision related to demotion and not termination of services. I am not impressed by this contention either. Obviously it cannot be assumed that their lordships were laying down a legal principle to the effect that a notice was mandatory where a relatively minor disadvantage was being caused to an employee but not when his services were being altogether dispensed with. In any case Nadeem Ahmad's case related to termination of employment and the decision is equally binding upon me.

28. Mr. Ansari then pointed out that both the cases of Anisa Rehman and Nadeem Ahmad were decided in the Constitutional jurisdiction of the High Court while the plaintiff has invoked the original civil jurisdiction of this Court. I do not think anything turns on this distinction. It is indeed correct that the original jurisdiction is regulated by the provisions of C.P.C. and the Specific Relief Act. However, once I have found that an obligation arising under law is enforceable through a Civil Court under the Act, then the rule of substantive law laid down to the effect the duty to comply with the maxim audi alteram partem is one ordained by law is binding on me. Moreover, neither any precedent has been cited nor am I aware of any case where it has been held that relief of this kind claimed may be permissible in a Constitutional petition but not in a civil suit. On the contrary in the decisions of the honourable Supreme Court in the cases of Anwar Hussain v. A.D. B.P. (PLD 1984 SC 194) and WAPDA v. Jamil Ahmad (1993 SCMR 346), both of which arose out of civil suits, the sole distinction drawn was that where there was a breach of law (i.e. statutory rules) both a writ or a civil suit seeking reinstatement could be filed but where there was only a breach of contract (i.e. internal regulations) the plaintiff could only claim damages. In the latter case Ajmal Mian, J. observed:‑‑ "... However, where the terms and conditions of an employee is (sic) regulated by a statute or statutory rules, any action prejudicial taken against him in derogation or in violation of the statute and/or statutory rules will give him the cause of action to file a suit or a writ petition for the relief of reinstatement."

29. Mr. Ansari further argued with some vehemence that Anisa Rehman's terms of appointment did not apparently contain any stipulation as to reduction to a lower rank. Therefore, the Court found it possible to apply the principles of natural justice. Referring to the well‑established proposition that principles of natural justice are to be read into every statute unless expressly excluded he emphasized that plaintiffs terms of appointment on the other hand contained an express stipulation relating to termination and such provision clearly excluded the application of the principles of natural justice. I am afraid this proposition also merits rejection for more than one reason. In the first place no essential difference between the terms of employment of the plaintiff and those of P.I.A. employees can be found. Though the exact terms of appointment are not mentioned in the judgments, they have been held, subject to 'an overriding requirement of law, to be governed by what is generally described as, contracts of master and servant. Evidently under this conventional rule a servant holds office at the pleasure of the master and his services can be dispensed with without any reason and terms of such contracts are not per se enforceable. When their lordships held that a show‑cause notice ought to be given despite the application of the law master and servant rule, they were only saying that the duty to give such notice is superimposed by law and fetters the rights of the master under the conventional rule. Secondly the principles of natural justice have always been held to be treated and read as part of the law itself unless of course if they are expressly made non‑applicable. Such exclusion obviously can only be made through law and not through a contract between two parties. It is the law which must prevail over a contract and not vice versa. Parties cannot opt to contract out of the requirements of law. When it has been explicitly held by the Supreme Court that violation of principles of natural justice is to be equated with violation of a statutory provision it is difficult to see how the terms of a contract, purporting to exclude the application of such principles can be held to be legally enforceable.

30. I am also tempted to add that even otherwise where the employees do not enjoy specific statutory protection in respect of their terms of employment, it is too late in the day on the part of employers in the public sector to claim an unfettered right to dispense with the services of employees by causing "termination simpliciter" under the conventional master and servant doctrine. In the case of Pakistan v. Public‑at‑Large (PLD 1987 SC 304) even a statutory provision in the Civil Servants Act enabling the Government to retire a civil servant upon completion of 25 years' services without show‑cause notice, and similar provisions in the laws applicable to employees of statutory bodies was held to be repugnant to the Injunctions of Islam. In the recent case of Nadeem Ahmad, Mamoon Kazi, C.J. has observed:‑‑-- "When no reasons are assigned, it can justifiably be assumed that employment was terminated for extraneous reasons. " In the case of Al‑Jehad trust v. Federation of Pakistan the honourable Supreme Court has recognized the judicially enforceable doctrine of 'legitimate expectation' even in the absence of strict legal rights. In the case of Ittehad Chemicals, Malik Muhammad Qayyum, J. cited with approval two judgments of the Supreme Court of India in the cases of Central Inland Water Transport Corporation v. Tarum Kanti Sengupta (AIR 1986 SC 1571) and Delhi Transport Corporation v. D.T.L. Mazdoor Congress (AIR 1991 SC 101) where provisions in regulations empowering termination of services without notice were held to be of a contract void for being opposed to public policy. His lordship observed:‑‑ "In the case of employment under the State or a Corporation owned and controlled by the State there is always an element of unequal bargaining power and retention of a right to terminate services by including a clause in the contract cannot be said to be voluntary. In these days where social and economic justice is a right of citizens no one can claim to have absolute, unbridled and naked power of depriving an employee of the source of his livelihood specially in view of Articles 31 and 25 of the Constitution of Islamic Republic of Pakistan."

31. The above developments in the law have taken place in the recent past in addition to the judicially evolved principles restraining arbitrary or unbridled exercise of public power. I do not intend to discuss all these developments in detail as no arguments were addressed by counsel. It might nevertheless suffice to observe that a Court of law cannot remain oblivious of the development of law and evolution of new norms while exercising equitable discretion.

32. In view of the above I am satisfied that the plaintiff has made out a strong prima facie case in his favour. The balance of convenience also appears to be in his favour. The defendants have claimed that the termination was effected on account of a policy decision to reduce the strength of employees and no new promotions or recruitments have been effected. On the other hand the plaintiffs very right to livelihood is being affected. The plaintiff is likely to suffer far Chore in case of refusal of interim relief as compared to the defendant in the event it is granted. As such he is entitled to such relief unless the law disallows the same. I may mention that Mr. Ikram Ansari relied upon the judgment of the honourbale Supreme Court in the case of Marghub Siddiqui v. Hameed Ahmad Khan (1974 SCMR 523) in support of the proposition that when permanent, injunction cannot be granted, no interim injunction should be granted. The legal' principle is indeed unexceptionable. However, it would apply only if it can be shown that final relief by way of permanent injunction cannot be granted. Since I have already held that a suit for permanent injunction is clearly maintainable in the circumstances, this principle would not apply. The above are my detailed reasons for the short order announced on 29‑5‑1997. Needless to say the observations are only tentative and shall not affect the outcome of the suit. M . B. A. /S‑83/K Order accordingly