P L D 1971 Lahore 598 (PLP)

6. I have heard the learned counsel for the parties in this case. Respondent No. 1, National & Grindlays Bank. Ltd., Lahore is a duly registered Banking Company and the plaintiff appellant was in the position of an ordinary employee serving in the Bank since 1952. In essence the relationship between the parties was that of a master and a servant under the general law. The appellant was employed by a private firm. His service was altogether of a domestic nature. As such his position is wholly different from that of a servant of the State or a statutory corporation holding a public office or performing public functions and duties under a statute. It was not disputed before me that under the general law a private contract of service between a master and a servant was not capable of specific enforcement under section 21(a) and (b) of the Specific Relief Act I of 1887, and the aggrieved servant could, at best, sue for damages only for the breach of contract. The Courts have generally declined to grant a relief for declaration to the servant against his wrong ful removal from service under section 42 or for injunction against his master to that effect on the principles contained in section 54 read with section 56 of the Specific Relief Act.

7. In this connection in Azizur Rahman v. Burmah Oil Co. (Pakistan Trading) Ltd. (P L D 1960 Dacca 759), the Court has held that a private firm must as such have a free choice in the matter of appointment and discharge of its employees, and that the consensus of estab lished authorities is that a Court cannot foist upon an unwilling private firm an employee or employees, whom it has thought fit to get rid of, and to that end, rightly or wrongly discharged; or whom, for one reason or the other, the firm is unwilling to accept, should an employee, however, feel aggrieved and con sider that he has been wrongfully and illegally discharged, all that he can seek from a Court in consonance with the above mentioned principle is damages and not his re‑instatement, which the Court is not competent at all to order. The Court further observed that even though an employee may establish that he has been wrongly dismissed, still he is not entitled to the remedy of an injunction or specific performance, and contract involving his personal service cannot be specifically enforced in view of section 21(b) of the Specific Relief Act. In this connection the Supreme Court in the Karnaphully Papers Mills Ltd., v. Karnaphully Paper Mills Workers Union and others (P L D 1961 S C 329) held that in the case of private employment, the, ordinary rule of master and servant must be sustained, namely, that without cause assigned the master may dispense with the services of the servant with notices or on payment of salary in lieu of notice. The servant may equally exercise the power of relinquishing his appointment on similar terms. These are mutual and reciprocal promises, and there is no principle available in the relevant law which could operate to minimise their effect. Similarly in Messrs Malik & Haq and another v. Muhammad Shamsul Islam Chowdhury and two others (PLD 1961 S C 531) the Supreme Court was of the opinion that the services of a servant cannot be forced upon his master the master in always entitled to say that he is prepared to pay damages to the servant for breach of contract of service but will not accept his services. The Court observed that a contract for personal service as will appear from section 21(b) of the Specific Relief Act, 1877 cannot be specifically enforced. Even apart from section 21(b) such a contract was unenforceable under section 21(a) wherein it is provided that a contract for the non- performance of which compensation in money is adequate relief cannot be specifically enforced. In a case where there is a contract between a master and a servant, the master agreeing to 'pay the salary and the servant agreeing to render personal service. It is obvious that money compensation can afford full relief, for all that the servant was entitled to under the contract was his salary. The Court has further held that a breach of contract can give to rise only two reliefs, damages or specific performance and if specific performance be barred the only relief available is damages. When a master, in breach of his contract, refuses to employ the servant the only right that survives to the servant is the right to damages and a decree for damages is the only decree that can be granted to him.

8. Again in the Chairman, East Pakistan Industrial Develop ment Corporation, Dacca and another v. Rustom Ali and another (P L D 1966 S C 848) on somewhat similar consideration the Supreme Court has held that by the ordinary law of master and servant, when a servant is guilty of misconduct, the master is entitled as of right to terminate his service without notice. In Pakistan Refugee and Rehabilitation Finance Corporation, Lahore and another v. Syed Karamat Hussain (P L D 1966 Lah. 442) the Court dismissed the suit of the employee against the Statutory Corporation for a declaration to the effect that the notice purporting to terminate his service on the expiry of his leave was illegal and of no legal effect. In the opinion of the Court the relationship between the parties thereto was regula ted by the law of master and servant and the remedy for the illegal termination of the service of the employee lay in a suit for damages for his wrongful dismissal and not for a declaration or injunction against the Corporation.

9. In this connection the learned counsel for the plaintiff appellant has relied on some of the decided cases cited before me but none of them is in point. They are all distinguishable and have no bearing on his case before me. In Gladstone, Wyllie & Co. Ltd. v. Badona Miah (P L D 1960 Dacca 305) the Company had dismissed the respondent therein who was serving as a driver. He filed a suit for a declaration that his dismissal was illegal and prayed for his re‑instatement to his post. The trial Court decreed his suit and the Company did not prefer any appeal against the decree. However, during the course of the execution proceedings the judgment‑debtor filed an objection under section 47 of the Code of Civil Procedure contending that the declaratory decree was not executable under the law. But the objection was overruled by the executing Court. However, the High Court allowed the appeal of the decree‑holder and observed that :‑ "Soon a declaration might vindicate the honour of the servant, but for its execution he has to depend on the good sense of his master." This is, however; no authority for holding that the suit for a declaration was competent, In Sh. Maqbool Elahi and others v. Khan Abdul Rehman Khan and others (P L D 1960 S C 266) a question had arisen with respect to the affairs of the West Punjab Steel Corporation Limited and its Board of Directors. In that connection in the exercise of its writ jurisdiction the Supreme Court held that a duly qualified Director had a legal right to sit on the Board of Directors and that this is a right which is of the greatest importance to the public interest in the field of the operation of public joint stock companies under the Company Law. The com position of the Board of Directors or a Company incorporated as a public company, in whose operation the public at large has an interest and whose constitution is required to be determined by the wishes of the share‑holders, is a matter of the greatest interest to the public. It was on these considerations that the Court issued a prerogative writ for the restoration of some of the Directors of the company to their rightful places on the Board of the Company. However, in the same case the Supreme Court declined to interfere on behalf of the office secretary, who was found not entitled to the writ of mandamus on the general princi ples. This authority goes against the appellant who was at best in the position of an ordinary employee of a private firm. In Mst. Manni v. Karachi Cantonment Board (P L D 1969 Kar. 309) Wahiduddin Ahmad, C. J. (as he then was) has observed that there are a number of decided cases in which it has been held that where the services of a Government Servant or of an employee of a statutory body are terminated, the civil Courts have got jurisdiction to go into the question whether their services were validly terminated or not. Similarly in M. S. Faruki, Chief Officer, Lahore Municipal Corporation, Lahore v. The Province of West Pakistan and others (P L D 1970 Lah. 195) in the case of an employee of the Municipal Committee, the Court observed that the concept that their relationship rested on the general principle of master and servant was not' quite apt inasmuch as the ‑ appointment, dismissal, removal and transfer of the employee of the committee was regulated by the statute and the Rules applicable to him. But in my considered opinion the cases of Government Servants and employees of Statutory Corporations must be distinguished and they stand on a different footing. In fact in the case of Gulf Steanship Co. Ltd. v. Dilwash Balooch (P L D 1962 Kar. 899) Wahiduddin Ahmad, J. (as he then was) held that a contract of service by the employee against a private firm or a company was not capable of specific performance and his suit for declaration against his wrongful removal from the service was not competent. Also in Faiz Ahmad v. The Registrar Co‑operative Societies, West Pakistan, Lahore (P L D 1962 S C 315) it has been held that the bye‑laws of the Co‑operative Bank concerned do not create any legal right in its employee to hold Ace in accordance with them and Court refused to grant a writ of mandamus against employer for the restoration of the employee to the post held by him. The instant case before me belongs to this second category and the National & Grindlays Bank Ltd., cannot be relegated to the position of a statutory corporation bound by the law under which it was established.

10. In fact it was not seriously contested before me on behalf of the appellant that under the general law of master and servant the employee is not entitled to any relief by way of specific performance against his wrongful removal from service. His services cannot be thrust upon the unwilling master who was not prepared to take him. His remedy, if any under the law lies in a suit for damages for the breach of the agreement of service. But the learned counsel for the appellant has laid a very great emphisis and attempted to distinguish his case on an altogether different ground. He pointed out that in this case the appellant was admittedly a "workman" employed in a "commercial establishment" of the respondent within the meanings of the Industrial and Commercial Employment (Standing Orders) Ordi nance I1I of 1960. As such, according to the learned counsel the appellant was entitled to the protection and the guarantees extended to him under the special provisions of this law against his wrongful suspension and removal from the service. Accord ing to section 3 of this Ordinance in every industrial of commercial establishment, conditions of the employment of workmen and other incidental matters shall, subject to the other provisions of this Ordinance, be regulated in accordance with the standing orders contained in the Schedule. These Standing Orders may be modified by means of collective agreement and not otherwise. Subsection (1) of section 7 of this Ordinance lays down that, an employer who modifies his Standing Orders otherwise than in accordance with section 4 shall be punishable with fine which may extend to five thousand rupees, and in the case of a continuing offence, with a further fine which may extend to two hundred rupees for every day after the first during which the offence continues. In this connection subsection (2) further provides that an employer who does any act in contravention of the Standing Orders as applicable to his industrial or commercial establishment shall be punishable with fine which may extend to one hundred rupees, and in the case of a continuing offence, with a further fine which may extend to twenty‑five rupees for every day after the first during which the offence continues. Section 8 of the Ordinance safeguards all conditions of service which are more favourable to the workmen than those laid down in the Standing Orders. The Schedule to this Ordinance contains the terms and con ditions of service which are of general information to a workman employed in an industrial or commercial establishment. Standing Orders Nos. 8 and 9 contain the provisions concerning the leave and the holidays admissible to a workman. Standing Order No. 12 deals with the question of the termination of service of a workman by a notice in writing. Standing Order No. 13 embodies the provisions for the disciplinary action against a workman employed in an industrial or a commercial undertaking. Clause (2) of this Standing Order lays down that a workman may be suspended for a period not exceeding four days at a time or dismissed without notice or any compensation in lieu of notice, if he is found to be guilty of misconduct. In this connection clause (4) further provides that no order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him.

11. The appellant, in this case, has strongly relied on these provisions to contend that his suspension, the enquiry against him and his dismissal from service were in contraventions of these guarantees and the protection afforded to him under the law and that as such he was fully entitled to the declaration prayed for, by means of this suit, to the effect that the order of his suspension, the enquiry held against him and the eventual order of his dis missal from service, were ultra vires, illegal, wrongful, malacious and in contravention of the aforesaid mandatory provisions con tained in the Industrial and Commercial Employment (Standing Orders) Ordinance III of 1960.

12. But, the question still remains to be seen is as to whether and how far, in the light of these special provisions, an ordinary civil Court is competent to entertain this suit by a servant against his master for the declaration and the specific relief for which he has prayed? The Industrial and Commercial Employment (Standing Orders) Ordinance, 1960, has repealed and with certain amend ments re‑enacted the Industrial Employment (Standing Orders) Act, 1946 with the same object in view. . This Act as its preamble shows was made "to require employers in industrial establishments formally, to define conditions of employment under them, and to make the said conditions known to workmen employed by them". No doubt primarily the relationship between the master and his servant is regulated by the terms of contract between them. However, the industrial progress and prosperity, the maintenance of peaceful relations between the employer and the employees is very necessary and of great importance to the State as well. The State must, therefore, bring to hear its own influence, where ever necessary, to maintain the harmony and peaceful relations and resolve any conflict between the capital and the labour to work in unison, with the march of time and in our changing society, with the ever increasing emphasis on the social justice for the people. It was in this spirit that the then Government of India thought it fit to separately provide for the Standing Orders and introduce the Bill, entitled the "Industrial Employ ment (Standing Orders) Act, 1946" with the following statement of objects and reasons: "Experience has shown that Standing Orders defining the conditions of recruitment, discharge, disciplinary action, holi days, leave, etc. go a long way towards minimising friction between the management and workers in industrial undertak ings. Discussion on the subject at the Tripartite Indian Labour Conference revealed a consensus of opinion in favour of legislation. The Bill accordingly seeks to provide for the family of `standing orders in all industrial establishments employing one hundred or more workers." In essence these Standing Orders have defined the terms and conditions of service between a workman and his employer in an industrial or commercial establishment. In Buckingham & Carnatic Co., Ltd. v. Yenkatiah and another (1963 P L C 1125), the Supreme Court of India observed that these Standing Orders represent the relevant terms and conditions of service in a statutory form and they are binding on the, parties "at least as much, if not more", as private contracts embodying similar terms and conditions of service.

13. There is no doubt that these Standing Orders embody in a statutory form the terms and conditions generally applicable to the industrial and commercial establishments, and are binding on them. At the same time these could be modified by means of a collective agreement in accordance with section 3 of the Industrial and Commercial Employment (Standing Orders) Ordi nance, 1960. Another peculiar feature of these statutory temps and conditions is that according to section 8 of the Ordinance comparatively more favourable terms and conditions which are applicable to a workman in any establishment are preserved in tact in preference to the less favourable terms and conditions, if any, prescribed under these Standing Orders. It appears that these terms and conditions embodied in the Standing Orders, although statutory in form, do also favour of and are superadded by the agreement of service between the workman and his employer, and also bear the hall mark of their agreement.

14. In this connection, on behalf of the, appellant reliance was placed on the Glaxo Laboratories (Pakis an) Ltd. v. Glaxo Laboratories Workers' Union and others (P L D 1962 S C 60). In that case the Supreme Court repelled the argument of the appellant to the effect that it was beyond the competence of the Industrial Tribunal to order the re‑instatement of a discharged or dismissed employee even if the termination of his service was wrongful. In that connection adverting to the provisions contained in the Industrial Disputes Act (XIV of 1947), the Court observed that‑ "The Act is designed to ensure industrial peace and harmony between the employers and their workmen. With that object in view the Legislature appears to have provided that in suitable cases the re‑instatement of a victimised worker may be ordered. It is now well settled that a Tribunal, functioning under the Act, can alter the terms of contract between the employers and his workmen in order to resolve any industrial dispute and this Court has in several cases upheld orders of re‑instatement of workmen whose services were terminated illegally. It is too late in the day to urge that much a power is not vested in an Industrial Tribunal or in a Court that entertains an appeal from an award of such a Tribunal." In conclusion the Supreme Court held that it would depend upon the circumstances in each case whether the relief of re‑instatement or compensation for wrongful discharge from service would be the appropriate remedy. No hard and fast rule can be laid down, in this connection. Similarly in the Chair man WAPDA v. Labour Union, WAPD.4 Electrical and Mechani cal Workshop (P L D 1967 Lah.1286) on appeal from the award of the Industrial Court under the Industrial Disputes Ordinance (LVI of 1959) a Division Bench of the West Pakistan High Court, ordered the re‑instatement of a workman who was wrongly dismissed from service.

15. But in my opinion these two cases, cited on behalf of the appellant, are distinguishable. In both these cases this question was raised in connection with the validity of the award made by the Industrial Court and Tribunal in the exercise of its jurisdiction under the Industrial Disputes Act (XIV of 1947) and the Industrial Disputes Ordinance (LVI of 1950. The object of these enactments, as expressed in their respective preambles, was to provide for the investigation and settlement of indu9trial disputes. This necessarily implies a power in the authorities to effect reconciliation, settlement and to grant relief bringing about harmonious relations between the employer and the workman and to maintain peace and prosperity for the common good of the industry in settling the disputes between the employer and work man, the function of the Industrial Court and Tribunal, are not necessarily confined to the administration of justice under the law. 1t has to arrive at some equitable arrangement for averting strike and lockouts and it is not bound by the rigid rules of law. Indeed in the case of Bharat Bank Ltd. v. The Employees of Bharat Bank Ltd. (AIR 1950 S C 188), the Supreme Court of India in discussing about the functions of the industrial tribunal observed that: "Its functions are of judicial nature, though the ambit of the powers conferred is larger than that of an ordinary Court of law inasmuch as it can grant relief which no Court of Law could give but that is because of the powers conferred on it by law".

16. Therefore, it is no doubt open to the Industrial Court and the tribunal to administer the law under the Industrial and Commercial Employment (Standing Orders) Ordinance III of 1960 and to grant specific relief, in suitable cases; by ordering the re‑instatement of an ordinary worker wrongfully dismissed by his employer. This is by virtue of the provisions contained in the special law meant for the settlement of the industrial p disputes. The jurisdiction in this respect does not, however, extend to the ordinary civil Courts bound to administer the general law applicable to them. As already discussed above, the civil Court, in the administration of the Specific Relief Act, cannot order the re‑instatement of a servant wrongly dismissed by his master under the general law the services of a servant cannot be inflicted upon his master who is unwilling to take him back and his remedy, if any, lies in a suit for damages against him, I am, therefore, convinced that this suit by the plaintiff‑appellant in its present form was not competent.

17. As a last resort the learned counsel has laid emphasis that the removal of the appellant in this case was a mala fide one and as such the impugned order must be treated as null and void. So that the suit of the plaintiff for the declaration could be entertained on this ground. In this connection the learned counsel has strongly relied on the observation by the Supreme Court in Abdul Rauf and others v. Abdul Hamid Khan and others (P L D 1965 S C 671) to the effect that a mala fide act is by its nature on act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is tantamounts to a fraud on the statute. In this connection, Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (P L D 1965 S C 695) the Supreme Court has further observed that in respect of every order passed by a competent authority the Court can make an enquiry and if it finds that all the circum stances needed for passing the order were not present it will declare the order to be void. Also in Zafar‑ul‑Ahsan v. The Republic of Pakistan (P L D 1960 S C 113) the Court was of the opinion that in case proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken, though it purports to have been taken, under the statute, the order will not, in accordance with a long line of decisions in England and in this sub‑continent, be treated as an order under the statute. Subject to these observations, the Supreme Court was of the opinion that :‑ "If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omission or irregularity alleged will be a matter for that authority, and not for a Court of law." However, from the plaint I find that the allegations of the plaintiff in this respect are vague and insufficient. At any rate this is in fact begging the whole question. Even if the order for the removal of the plaintiff‑appellant from service was bad and vitiated by malice, his remedy nonetheless lies in a suit for damages against the respondent for his wrongful dismissal and his suit for declaration and re‑instatement was not competent.

18. For the foregoing reasons. I find that this appeal has no force. It is, therefore, dismissed. But in the circumstances of the case the parties are left to bear their own costs throughout. K. B. A. Appeal dismissed.