1999 PLP (C (PLC(CS))

(5) Whether the plaintiff is entitled to be re‑instated, if so, whether he is entitled to draw arrears from which date and to what rate? O.P.P. (6) Whether the suit is totally false, frivolous and vexatious, as such the defendant is entitled to get special costs and to what extent? O.P.D. (7) Relief.

4. After recording evidence, adduced by the parties and of course, providing due opportunity of being heard, teamed Civil Judge, then seized of the matter, determined Issues Nos. 3, 4 and 5 in favour of respondent/plaintiff. Issues Nos. 1, 2 and 6 too, were resolved against the petitioner/defendant. Entitlement and claim of ex gratia were also found in favour of respondent/plaintiff. Both the suits were ultimately decreed.

5. Such judgments and decrees dated 30‑10‑1995 were affirmed in appeals, which, were turned down on 19‑12‑1996, by an Additional District Judge.

6. Feeling uncontended and dissatisfied with the same, petitioner/defendant has resorted to revision petitions captioned above.

7. Reiterating various facets, aspects and factors agitated in revision petitions, learned counsel, representing the petitioner has lambasted the verdicts with the assertion that the rules governing the services of employees of petitioner/Chamber of Commerce and Industries are not "statutory" in nature, suits challenging an order of termination and recovery of ex gratia could not be filed and resorted to and only remedy of respondent was to sue for damages. With reference to Chairman, WAPDA and 2 others v. Syed Jamil Ahmad (1993 SCMR 346), it has been elaborated that the case of respondent, is patently governed by the principle of "Master and Servant" and only remedy for such an aggrieved employee is in shape of suit for damages simpliciter. Also it has been canvassed that both the suits, in the form in which it had been brought were liable to be thrown out as the matter manifestly fell beyond the domain of Civil Court.

8. Conversely, learned counsel for the respondent and even respondent, himself, have stressed that on the face of it, termination order suffers from following infirmities:‑‑ (i) It was passed by Acting President while no such "Office" exists. (ii) At the relevant time, Executive Committee was not properly constituted in terms of Article 22 of Memorandum and Articles of Association. (iii) Relevant item could not be taken into account and discussed in the absence of one week notice as envisaged by Article 56 of aforesaid Memorandum.

9. Last nail in the coffin of such perfunctory termination order, according to them, stands put by the hard fact that neither any show‑cause notice was issued nor opportunity of hearing, sine qua non, for such actions, was ever afforded to the aggrieved employee, who, thus stands condemned unheard against the principles of Natural Justice, which, are to be read and taken as integral part of every statute, even if, right of hearing has not been expressly provided therein. Also it has been maintained that violation of principle of Natural Justice can be equated with the violation of provisions of law even if there are no statutory rules. Reliance has been placed upon Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232); National Bank of Pakistan and another v. Malik Manzoor Ahmad (1995 CLC 267), Muhammad Din and 9 others v. Province of Punjab through Collector, District Rahimyar Khan and 3 others (PLD 1990 Lah. 58), Mst. Qaisra Ellahi v. Hazara (Hill Tract) Improvement Trust through Chairman and 5 others (PLD 1995 Pesh. 22), Managing Director, Ittehad Chemicals Ltd., Kala Shah Kaku, District Sheikhupura and 2 others v. Mushtaq Ahmad (1997 MLD 798) and Hoechst Pakistan Ltd. and others v. Maqbool Ahmad (1998 CLC 134) in support of contentions. Impugned judgments and decrees have been acclaimed to be not only correct in all respects but also in consonance with law. Accordingly, dismissal of revisions have emphatically been demanded and urged.

10. It goes without saying, there is no denying the fact and rather candidly and scrupulously conceded that neither any notice was issued to the respondent nor he was called upon to explain his position inasmuch as no opportunity of being heard in the matter was afforded and provided to him. In such event, Civil Courts, being Courts of ultimate jurisdiction, have jurisdiction to examine and scan, if acts of such fora are within four concerns of law or illegal‑or even mala fide.

11. Proposition stands set and at rest by the dictum of law expounded in Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232): "From the above‑stated cases, it is evident that there is judicial consensus that the Maxim audi alteram partem is applicable to judicial as well as to non judicial proceedings. The above maxim will be read into as a part of every statute if the right of hearing has not been expressly provided therein. In the present case respondent No. l in its comments to the writ petition (at page 41 of the Paper Book) admitted the fact that no show‑cause notice was issued to the appellant nor she was heard before the impugned order dated 6th August, 1991 reverting her to Grade‑VI from Grade‑VII was passed. In this view of the matter there has been violation of the principles of natural justice. 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 above Maxim audi alteram partem. The above view, which we are inclined to take is in consonance with the Islamic Injunctions as highlighted in the case of Pakistan and others v. Public at Large (supra), wherein, it has been held that before an order of retirement in respect of a civil servant or an employee of a statutory Corporation can be passed he is entitled to be heard."

12. Applying the principle enunciated above, following illuminating observations were made in National Bank of Pakistan and another v. Malik Manzoor Ahmad (1995 CLC 267):‑‑ "It is true as has been argued by the learned counsel for respondent that the Supreme Court of Pakistan as also this Court in various cases had held that where the employment of a person was not governed by the statutory rules of service, the principle of master and servant would become applicable and neither Constitutional petition nor suit challenging order of termination of services could be maintained as a master was within his rights to ask his servant to quit and the only remedy in the event of wrongful dismissal from service was held to be a suit for damages. The position, has, however, undergone a radical change in view of the pronouncement of Supreme Court of Pakistan in Mrs. Anisa Rehman v. P.I.A.C. and another (Civil Appeal No. 238‑K of 1992), decided on 28‑11‑1993, (1994 SCMR 2232). In that case it has been held that if while passing an order detriment to the interest of the employee the principles of natural justice are violated, the employee can challenge that order by filing a Constitutional petition. The reason which prevailed with the Supreme Court of Pakistan for so holding was that the n2itural justice being part of every statute/statutory instrument, its violation would in law be violative of the statutory provision it self. The earlier view about the maintainability of the suit/Constitutional petition which was noticed by the Supreme Court in Mrs. Anisa Rehman's case does not hold good and cannot be pressed into service."

13. Asking for and requirement of show‑cause prior to action becomes imperative by following Holy verse: This aspect is further fortified by the fact that even "Satin" was not condemned unheard. Fallacy of arguments advanced by learned counsel for the petitioner is thus exposed from all angles.

14. In this perspective and when tested upon touchstone laid down in plethora of authorities and galaxy of rulings on the point, matter squarely falls within the ambit and compass of the Civil Court and was rightly adjudged so. Termination order being perfunctory on various counts is void ab initio, of no legal effect and significance and liable to be struck down as held by learned Courts below. Findings to that effect and even with regard to claim of ex gratia are unexceptionable and therefore, upheld.

15. Be that as it tray, section 115, C.P.C. applies to cases involving illegal assumption, non‑exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which, do not, in any way, affect the jurisdiction of the Court, no matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction. An erroneous conclusion of law or fact is liable to be corrected in appeal, but, revision will not be competent on such a ground, unless in arriving at such conclusion an error of law has been committed.

16. Neither any such aspect has been put forth or highlighted nor is seemingly available so as to attract or entail provisions of section 115, C.P.C., which, thus, can neither come into play nor press into service. Judgments and decrees sought to be impeached and set at naught, are accordingly unassailable as the same neither appear to suffer from any infirmity nor perversity or arbitrariness.

17. Viewed from any angle, both the Revision Petitions merit dismissal and are hereby dismissed, with costs. H.B.T./C‑12/L Revision petition dismissed.