A.M. SHEIKH Versus NATIONAL REFINERY LIMITED

AJMAL MIAN, CJ.‑‑ The petitioner, through this petition, has sought declaration that the order dated 31st August 1978, passed by respondent No.l, terminating petitioner's services, is without lawful authority. He has also'sought a prohibitory injunction restraining the respondents from acting upon the said order.

2. The brief facts leading to the filing of the above petition are that the petitioner was employed as the Chief Engineer through appointment letter dated 26th January 1965, by respondent No.l i.e. National Refinery Limited. His appointment was confirmed w.e.f.3rd December, 1966. It seems that in 1972, the Federal Government took over the control of respondent No.l under the Economic Reforms Order, 1972 (hereinafter referred to as the Order). It also seems that the petitioner's services were loaned to Messrs Pak. Hy‑Oils Limited (hereinafter referred to as the Company), by respondent No.l, on 10th June 1974, and he was appointed as the General Manager and a Director. While the petitioner was on deputation with the Company, he made representation to respondent No.l's management on 1st March 1977, that in the wake of reorganization some persons very junior to him, were promoted and appointed as General Managers and Deputy Managing Directors in respondent No.l. In response to the above representation, the Managing Director of respondent No.l by his letter dated 5th March 1977, assured the petitioner that his interest would not be prejudiced. After that, the petitioner returned to its parent company, i.e., respondent No.l and reported for duty on 12th October 1977, after completing his assignment in the Company, where he was posted as OSD. It is the case of the petitioner that after the return from the Company, he again made a representation to respondent No.l, for his promotion. In response to which, he was told that his case was under consideration.

It further seems that in mid of 1978, the petitioner submitted applications to the C M L A for pointing out malpractice in the working of respondent No.2, in response to public notices published in the newspapers on 11‑5‑1978 and 13‑7‑1978. It is the case of the petitioner that on 28th August 1978, he submitted his application for annual leave and worked with respondent No.l u pto 31st August 1978. It has also been averred that 1st September 1978 and 2 nd September 1978 were closed holidays, the petitioner applied for two days casua leave for 3‑9‑1978 and 4‑9‑1978 as he had gone to Islamabad for some work. It is also the case of the petitioner that he came back from Islamabad to Karachi, but after celebrating Eid in Karachi, he went back to Islamabad as he had some work to attend. It has also been averred that while he was in Islamabad, he came to know that some adverse order was passed against him by respondent No.l. Thereupon, he filed an application dated 27‑9‑1978 before the NIRC, which was taken up by the learned Chairman N I R C on 30‑9‑1978, when he ordered the issuance of notice to the respondents and also ordered the suspension of the adverse order. In pursuance whereof, the petitioner reported for duty to respondent No.] on 10‑10‑1978 and attended the same upto 30‑10‑1978, when the High Court in C.P. No.1416/1978 suspended the Chairman NIRC's aforesaid order dated 30‑9‑1978. It is the case of the petitioner that through the memo. of the aforesaid petition, he came to know that his services were terminated by letter dated 31‑8=1978. Thereupon, the petitioner filed the present petition, in which the petitioner has also alleged mala fides on the part of respondent No.2's Chariman. It may be observed that respondents' aforesaid petition No.1416/1978 was allowed by a Division Bench through its judgment dated 3‑5‑1982 on the basis of a Full Bench judgment of this Court in the case of Pakistan Burmah Shell Ltd. v. Central Labour Commissioner and 5 others reported in P L D 1982 Karachi 33, and the judgment of the Supreme Court in the case of Karachi Electric Supply Corporation Ltd. v. National Industrial Relations Commission and another, Reported in P L D 1982 SC 125, in which inter alia it had been held that the NIRC had no power to entertain individual's grievance. The above petition has been resisted by the respondents inasmuch as they filed counter‑affidavit and certain documents to indicate that action is bona fide and that the petitioner has no case.

3. Mr. Mushtaq Memon, learned counsel for the petitioner, in, support of the above petition, has urged as follows:‑

(i) That since Pakistan Essential Services (Maintenance) Act, 1952, (hereinafter referred to as the Act) was applicable to respondent No.1 the petitioner's services could not have been terminated because of Section 5 of the Act.

. (ii) That since the petitioner was a permanent employee of respondent No.l, his services could not have been terminated without serving a show‑cause notice and without holding an enquiry.

(iii) That since the petitioner had joined respondent, No.l's .service in 1965, his services could not have been terminated on the basis of the Service Rules framed by respondent No.1 in 1966. .

(iv) That in view of the provisions contained in Section 4 (4) of the Order, Federal Government was competent to terminate the petitioner's services and not respondent No.l.

4. On the other hand, Mr. A.A. Fazeel, learned counsel for respondents, whose arguments were adopted by Mr. Dastagir Ghazi Advocate holding brief for Mr. S.M. Nurul Hassan Advocate for the respondents, has contended as under:‑

(i) That since the provisions of the Act were not applicable at the relevant time, the petitioner. cannot rely upon Section 5 of the Act.

(ii) That in the absence of any law or statutory rules providing protection to the petitioner against the termination of his services, his services have been lawfully terminated.

(iii) That since under the terms of ,the appointment, respondent No.1 had reserved the right to frame inter alia any service rules, the rules framed by respondent No.1 in 1966, were applicable, to the petitioner.

. (iv) That Section 4 (4) is to be read with Section 6 of the Order, which makes it clear that the power of respondent No.1 to take action against its employees remained intact notwithstanding the application of the provisions of the order or of the taking‑over of the management by respondent No.2.

5. Adverting to the first submission of Mr. Mushtaq Memon, learned counsel for the petitioner, that since Pakistan Essential Services (Maintenance) Act, 1952, was applicable to respondent No.l, the petitioner's services could not have been terminated because of section 5 of the Act, it may be observed that in support of his above submission, he has invited our attention to the notification dated 23‑2‑1978, issued by the Government of Pakistan, Ministry of Defence, under subsection (3) of section 3 of the Act, to the petitioner's letter dated 22‑3‑1980, addressed to the Manager of Publication,. Government of Pakista4hand to its reply dated 22‑3‑1978, sent by the Manager of Poblication. It may be observed that the petitioner in his aforesaid letter dated 22‑3‑1980 requested the Manager of Publication, Government of Pakistan to. issue certificate indicating the date on which the Extraordinary Gazette of Pakistan bearing date 23‑2‑1978 was made available for sale to the general public, whereas, the Manager: of Publication in his aforesaid reply dated 22‑3‑1980 has stated that the Gazette containing the aforesaid notification was put on sale to general public w.e.f. 28‑3‑1978. On the basis of the above two letters, it has been vehemently contended by Mr. Mushtaq Memon that six months period of the aforesaid notification dated 23‑2‑1978 is to be computed from the date when the Gazette was put on sale for the general public and, therefore, six months period of the above notification had expired on 27‑9‑1978, and hence the petitioner's services were terminated at the time when the above notification was iP operation. Reliance has been placed by him on the case of Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab, reported in P L D 1977 SC 639, in which the Hon'ble Supreme Court while construing Section 7 of the West Pakistan Waqf Properties Ordinance (XXVIII of 1961), has held that a notification under the above Section must not only be published in Gazette but must also re served on person in possession of property declared as waqf. In the body of the judgment, their Lordships quoted with approval, the following three cases:‑

(i) Bal Krishana Anand Hirlikar v. Emperor (A I R 1931 Bom. 132);

(ii) Province of East Pakistan v. Hassan Askary (P L D 1971 SC 82)i and

(iii) Straker v. Director of Public Prosecution (1963) 10 B 926). in which inter alia it was held that insertion of a notification in the official Gazette itself would not constitute publication of the notification, but the notification could . be said to be published only when some means was adopted to communicate to the public or to the party concerned. On the other hand, Mr. A.A. Fazeel, learned counsel for the respondents,. invited our attention to the language used in the aforesaid notification dated 23‑2‑1978, particularly to the following portion of the notification: "declaring the following categories of employment to be classes of employment to which the said Act shall apply, shall reman in force for a further period of six months commencing on the 26th February 1978, namely:"

It has been contended by Mr. A.A. Fazeel, since the notification was to operate for a further period of six months commencing on 26‑2‑1978, the period of six months cannot be computed from any other date than which has beed specified in the above‑quoted portion of the notification. In our view, if the notification would ,nmence, the not have specified the date from which the notification was to co contention of Mr. Mushtaq Memon might have force. To put it differently, if the notification would have been silent as to the date of the commencement of the period of six months, it could have been contended that the period of six months was to be reckoned from the date when the notification was made available to the public and not from the date of the publication of the notification in the Gazette. Even if we were to accept the above contention of Mr. Mushtaq Mernon, the effect would be that in fact this notification would operate for a shorter period than six months, as we would exclude the period from 26‑2‑1978 to 28‑3‑1978 on the ground that the Gazette was not available. However, we cannot change the date mentioned in notification, namely, 26‑2‑1978, as observed hereinabove. It is, therefore, evident that on 31‑8‑1978, when the impugned order of terminating petitioner's service was passed, the provisions of the Act were not applicable 'to respondent No.l. The view which we are inclined to take as to the interpretation of the above notification dated 23‑2‑1978 is fortified by the fact that in the notification dated 12th September 1978 also issued under subsection (1) of section 3 of the Act, no date as to the commencement of the notification was mentioned nor any period for which the notification was to operate was mentioned. . We may observe that section 5 of the Act prohibits the fi discontinuation of the service either by an employee or by employer without reasonable excuse.

6. Then it was contended by Mr. Mushtaq Memon, as the aforesaid second notification dated 12th September 1978 was operative on 30th October 1978, i.e. on the date when the petitioner discontinued the work in respondent No.l upon the suspension of the Chairman NIRC's order dated 30‑9‑1978, by the High Court in aforesaid Writ Petition No.1416/1978. The above contention has no force, as admittedly the petitioner could not have acquired any right on the strength of the order dated 30th September 1978 of the Chairman NIRC, particularly when it was suspended by the High Court on or before 30th October 1978 and eventually it was declared as without lawful authority when the above writ was allowed by the aforesaid judgment dated 3‑5‑1982.

7. As regards Mr. Mushtaq Memon's second submission that since the petitioner was a permanent employee of respondent No.], his services could not have been terminated without serving a sh6w‑cause notice and without holding an enquiry, it may be observed that in support of his above submission, he has referred to the letter of appointment dated 26‑1‑1965, in which in paragraph 1 inter alia it has been stated that "the position we have to offer is a permanent one being that of a Chief Process Engineer". It has, therefore, been contended, since the petitioner was a permanent employee, his services could not have been terminated. It was also urged that factually no notice was served and that respondent No.l made an incorrect endorsement purported to have been made by the postal authority to the effect that the receipt of the letter was refused by the addressee. In furtherance of the above averment of fact, reliance was placed by Mr. Mushtaq Memon upon an alleged letter dated nil issued by someone for City Superintendent of Post Office with reference to the petitioner's letter dated

1‑11‑1978 stating therein that registered letter No.029 which was booked by the Hotel Metropole Post Office Karachi, on 31‑8‑1978, was not delivered due to non‑availability of the addressee. The above everments are denied by the respondents. They had also made available the original sealed covers containing the termination order and other sealed covers, whereby the cnptes etc., were sent. (, in response to the petitioner's advocate's notice under Order 12 Rule 8 C.P.C.. served on the Advocate for the respondents. It will suffice to obacrvc that we cannot examine the above factual controversy in this petition.

8. Reverting back to the question, whether the petitioner's services could have been terminated by serving one month's notice or by payment of one': month's 'salary in lieu of one month's notice, it may be observed that in the absence of any violation of any provision of law or statutory rules, an employee of a limited company or a Corporation cannot maintain a petition for writ for I D getting himself in effect reinstated. 1t had been consistently held by the Hon'ble I Supreme Court of Pakistan that an employee of a statutory Corporation could not; seek redress in writ jurisdiction of the High Court, which relief is available to a civil servant against his removal from service. Reference may be made in this regard to the following cases:‑

(i) Abdul Salam Mehta v. Chairman, Water and 'Power Development Authority and another, reported in 1970 S C M R 40.

(ii) Shahid Khalil v. Pakistan International Airlines Corporation, Karachi, reported in 1971 S C M R 568.

(iii) The Chairman, East Pakistan Industrial Development Corporation and another v. Rustom Ali and another, reported in P L D 1966 SC 848.

(iv) Zainul Abidin v. Multan Central Co‑operative Bank Ltd., Multan, reported in P L D 1906 S C 445.

(v) The Lahore Central Co‑operative Bank Ltd. v. Pir Saif Ullah Shah, reported in P L D 1959 SC (Pak.) 210.

(vi) Dr. Abdul Hafeez v. Chairman, Municipal Corporation, Lahore and others, reported in P L D 1967.Lahore 1251.

(vii) R.T.H. Janjua v. National Shipping Corporation, reported in PLD 1974 SC 146; and

(viii) Muhammad.Yusuf Shah v. Pakistan International Airlines Corporation; reported in P L D 1981 SC 224.

However, in the case of The Principal, Cadet College, Kohat and another v. Muhammad Shoab Oureshi, reported in P L D 198.1 SC 170 the Hon'ble Supreme Court, after referring some of the cases referred to hereinabove, had held that a writ would not be competent unless violation of any provision of statute or statutory rules was shown. The appeal filed by the Principal of the College against the judgment of the High Court allowing writ of an employee was set aside and the appeal was allowed. We may observe that after the pronouncement inter alia of the above judgment, the view that in no case an employee of a statutory corporation can maintain a constitutional petition is no longer the prevalent view. If an employee of a statutory corporation can demonstrate that there has been infraction of any provision of law or statutory rule, a Constitutional petition will E be competent. for an appropriate relief. We may observe that Mr. Mushtaq Memon, has not been able to point out successfully that there has been any violation of any statute or of a statutory rule, though he contended that because of Section 4 (4) of the Order, the petitioner's services could not have been terminated by respondent No.l which contention we intend to deal with later on hereinbelow. Mr. Ali Ahmed Fazeel, learned counsel for the respondents, has reiied upon the above Supreme Court cases of R.T.H. Janjua v. National Shipping Corporation, reported in P L D 1974 SC 146 and Muhammad Yusuf Shah v. Pakistan International Airlines Corporation, reported in P L D 1981 SC 224, and has also referred to the following cases:‑

(i) Province of East Pakistan v. Moulvi Momtazuddin Ahmed anal 2 others, reported in P L D 1971 Dacca 235, and the case of

(ii)' Federation of Pakistan v. Shamsul Huda reported in P L D 1957 Dacca 148.

In the first case, a Division Bench of the Dacca High Court, has held that a master can dismiss a servant for misconduct without notice and that the principle of audi alteram partem cannot be extended to a case of employer and employee governed by principle of master and servant and the suit for damages is the only remedy for the employee. In the latter case, a learned Single Judge of Dacca High Court, after referring to the provisions of Sections 240 and 241 of the Government of India Act, 1935 and the Civil Servants Rules, held that the termination of the service of the plaintiff by notice had no stigma or implication of misbehaviour or incapacity.

9. It was also contended by Mr. Mushtaq Memon that in the instant case factually the termination of the petitioner's service was motivated on account of mala fides and in fact it was a punishment. The mala fides was alleged against the Chairman of the respondent No.2. Mr. Ali Ahmed Fazeel, has invited our attention to paragraph 14 of the counter‑affidavit of the respondents, in which it has been pointed out that the Chairman against whom mala fides was alleged in fact left the service in 1977, whereas, the action was taken against the petitioner in August 1978. Then it was contended by Mr. Mushtaq Memon that originally the action was initiated by the aforesaid Chairman. There is nothing on the record to support the above submission. On the contrary, the factum that aforesaid Chairman had to leave the company and even the country indicates that at the when the impugned action was taken, he had no say in the matter.

As regards Mr. Mushtaq Memon's submission that in fact termination of the petitioner's service amounted to punishment, it will suffice to observe that termination notice is simpliciter without attributing any inefficiency or other misconduct to the petitioner.

10. Reverting to Mr. Mushtaq Memon's submission that since petitioner had joined services in 1965, the Service Rules 1960, inter alia providing termination of service by serving one month's notice or payment of salary in lieu of the notice, could not have been made applicable to the petitioner, it may be observed that Mr. A.A. Fazeel, has invited our attention to clause (g) of the appointment letter which provided that, "you will be subject to the Service, T.A., Leave Rules etc. framed by the Company from time to time". On the basis of the above clause, it was urged by Mr. A.A. Fazeel that respondent No.l had reserved the right to frame the rules. It will suffice to observe that there. can be argument for and against the above proposition. In this regard, reference may be made to a recent case of the Hon'ble Supreme Court, namely, Falak Sher Khan and another v. Mukhtar Ahmad and others, reported in P L D 1989 SC 262, in which it was urged on behalf of the appellants that the Governor was not competent to frame rule as to provide more academic qualifications for the persons already in service. It was held by the Hon'ble Supreme Court that the Governor was competent by virtue of the power vested in him by section 23 of Punjab Civil Servants Act, 1974 to give more importance to academic qualifications rather than experience in the field and that framing of such a rule was a legitimate exercise of the said power. Since in the instant case, even if we were to hold that the above Rules of 1966 were not applicable to the petitioner, it would not improve the petitioner's case for the relief of a writ. In that event, at the most, the petitioner would have been entitled to a reasonable notice for termination of his services by his employer, if one month's period is to be held not reasonable and the remedy, if any, of the petitioner is to claim damages, on the ground that his services were not terminated by serving a reasonable notice. .

11. This leads us to the last submission of Mr. Mushtaq Memon, namely, that in view of the provisions contained in section 4 (4) of the Order, Federal Government was competent to terminate the petitioner's services and not respondent No.l. In this behalf, it may be stated that Mr. Mushtaq Memon has referred to subsection (4) of section 4 of the Order, which reads as follows:‑

"4 (4) Where a Managing Director is appointed in respect of an .establishment, the Federal Government may, by order, remove from office the Board of Directors, the Managing Agent, any Director or any other person howsoever designated performing or having the right to perform any function in relation to that establishment: Provided that the Managing Director may require any Director or other officer in respect of whom an order is made under this clause, to perform any function in relation to the establishment as the Managing Director may direct on such terms and conditions as may appear reasonable

12. Whereas, Mr. A.A. Fazeel, has referred to Section 6 of the Order, which provides as follows:

Employees continue in service.‑‑ Unles in any particular case the Manging Director otherwise directs, all persons employed in, by or for the purpose of the business of the establishment by whomsoever appointed or engaged, shall continue in their respective employments on the same remuneration and other conditions of service ids were applicable to them immediately before the appointment of the Managing Director that establishment:'

In our view, under subsection (4) of section 4 of the Order, the Federal Government had reserved the power to remove ~ from the office the Board of Directors, Managing Agent, any Director or any other person howsoever designated performing or having the right to .perform any function in relation to I an establishment as defined in the Order. The above power was in addition to the power which was enjoyed by a taking‑over company internally, which is evident from the provisions of section 6 of the Order and, thereore, respondent No‑1 could have taken action as an employer against the petitioner for terminating his services.

13. It was also contended by Mr. Mushtaq Memon that factually the petitioner was a Director, as he acted as such in the Company, the above contention is factually incorrect, as he was Director in the company, i.e. Messrs Pak. Hy‑Oils Limited, where he was on deputation but when he returned to respondent No.l, he was appointed as Officer on Special Duty, as has been averred in the petition.

14. We may also observe that during the arguments, it was also submitted by Mr. Mushtaq Memon that in August when the petitioner's services were allegedly terminated, he was entitled to 90 days earned leave. In our view, this point is not relevant for the purpose for present petition. This may be relevant for a suit for the recovery of the dues, if the above earned leave was encashable.

15. The upshot of the above discussion is that the petition has no merit and, therefore, it is dismissed but, there will be no order as to cots.

16. These are the reasons in pursuance of the short order of even date.

A.A. /A‑701/K Petition dismissed