ANISA REHMAN Versus P.IA.C.

AJMAL MIAN, J.‑‑ ‑This is an appeal with the leave of this Court against the order dated 28‑11‑1991 passed by a Division Bench of the Sindh High Court in Constitutional Petition No. 1103/91 filed by the appellant against the order of respondent No. 1 dated 6‑8‑1991 reverting her from pay group VII to pay group VI, dismissing the same in limine on the ground that the relationship between respondent No. 1 and the appellant was that of Master and Servant.

Leave to appeal was granted to consider the question, whether the principles of natural justice can be pressed into service by the appellant in the present case keeping in view the judgment of this Court in the case reported in PLD 1987 Supreme Court 304 (Pakistan and others v. Public‑at‑Large and others (Shariat Appellate Bench).

2. The brief facts are that the appellant, who holds M.A. degree in International Relations and had some experience in service was offered the post of Public Relations Officer in pay Group‑VI by respondent's Manager Employment through letter dated 19‑11‑1989. The appellant was not willing to accept the above appointment and, therefore, she made a representation to the Chairman of respondent No. 1. It appears that she was interviewed by the Chairman. In consequences whereof, she was placed in Group VII through respondent No. 1's Manager Employment letter dated 7‑12‑1989. After that she was confirmed by respondent No. 1 Administrative Manager's letter dated 27th June/8th August, 1990. It seems that after the expiry of about one year and eight months, the appellant was informed by respondent No. 1's Administrative Manager's letter dated 6‑8‑1991 that the Committee appointed to review the case of irregular appointments in P.I.A.C. and Personnel appointed during the period of ban reviewed her case in which the following decision was taken:‑‑

"It has, therefore, been decided that there is no basis to retain you as Assistant Manager, Sales Development, in Pay Group VII. Accordingly, with immediate effect, you have been redesignated as Marketing Officer and placed in Pay Group VI. Upon placement in the new pay group, your salary, will be re-fixed at the initial of the applicable pay scale."

The above order was challenged by the appellant through the above Constitutional petition inter alia on the ground that before reverting her to Group‑VI from Group VII she was not heard by the Committee or by the respondent and hence, there was violation of the principles of natural justice. However, a Division Bench of the Sindh High Court dismissed the above Constitutional petition in limine on the ground that in the absence of any statutory rules the relationship of the Corporation and the appellant was purely that of Master and Servant under general law. The reliance was placed on the case of Muhammad Yousuf Shah v. P.I.A.C. (PLD 1981 SC 224), and on the case of A. George v. P.I.A.C. (PLD 1971 Lah. 748) and the case of Sindh Road Transport Corporation v. Muhammad Ali Khokhar (1990 SCMR 1404). Thereupon, the appellant filed a petition for Leave to Appeal which was granted to consider the above question.

3. In support of the above appeal Mr. M.L. Shahani, learned Advocate Supreme Court appearing for the appellant has vehemently urged that factually there are statutory rules applicable to respondent No. 1. Then he further contended that the High Court has misapplied the principle of Master and Servant to the present case and that the violation of the principles of natural justice has nothing to do with the above relationship.

On the other hand Mr, Muzaffarul Haq, learned‑ counsel for the respondent has submitted that the so‑called statutory rules relied upon by the learned counsel for the' appellant are not statutory rules relating to service matters. His further submission was that principles of natural justice cannot be pressed into service in the case in hand as the relationship between respondent No. I and the appellant was that of Master and Servant.

4. Adverting to the above first contention of Mr. Shahani that respondent No. 1 has statutory rules, it may be observed that in furtherance of his above submission he has referred to P.I.A.C. Rules, 1958 framed by the Central Government under section 29 of the P.I.A.C. Act, 1956 (hereinafter referred to as the Act). He has particularly referred to rule 22(e), which empowers the Board of respondent No. 1 to appoint, remove or suspend any Manager, Secretary, Officers, Clerks, Agents or servants and direct and control and fix their salary and grades etc. In our view, above rules have nothing to do with the service matters as they relate to the working and powers of the Board of Directors of respondent No. 1 Corporation. It may be pointed out that it has been consistently held by this Court that respondent No. 1 does not have any statutory service rules in terms of section 31 of the Act which provides that "all rules and regulations made under this Act shall be published in the official Gazette, and shall come into force upon such publication and shall be laid thereafter as soon as may be before the National Assembly"

In this behalf reference can be made to the latest judgment of this Court in the case of Raziuddin v. Chairman, P.I.A.C. (PLD 1992 SC 531). In this view of the matter the above first contention fails.

5. As regards the above second contention of the learned counsel for the parties, it may be stated that it is true that this Court has consistently held that in the absence of any statutory service rules the relationship between respondent No. 1 and its employees was that of Master and Servant. In this regard reference can be made to the following cases:‑‑

(i) Shahid Khalil v. P.I.A.C. (1971 SCMR 568).

(ii) A. George v. P.I.A.C. (PLD 1971 Lah. 784).

(iii) Muhammad Yousuf Shah v. P.I.A.C. (PLD 1981 SC 224).

(iv) Raziuddin v. Chairman, P.I.A.C. (PLD 1992 SC 531).

The same view was taken in relation to the other Corporations/Cooperative Banks etc. In this regard reference can be made to the following cases:‑‑

(i) Lt.‑Col. Shujauddin Ahmed v. Oil and Gas Development Corporation (1971 SCMR 566).

(ii) Chairman of East Pakistan Development Corporation v. Rustam Ali (PLD 1966 SC 848).

(iii) Lahore Central Cooperative Bank Ltd. v. Pir Saifullah Shah (PLD 1959 SC (Pak.) 210).

(iv) Zainul Abedin v. Multan Central Cooperative Bank Ltd. (PLD 1966 SC 445).

(v) R.T. H. Janjua v. National Shipping Corporation (PLD 1974 SC 146).

(vi) Evacuee Trust Property Board and another v. Muhammad Nawaz (1983 SCMR 1275).

(vii) Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194).

(viii) Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170).

(ix) Nisar Ahmed v. The Director, Chiltan Ghee Mill (1987 SCMR 1836).

(x) National Bank of Pakistan v. Manzoorul Hasan (1989 SCMR 832).

(xi) Sindh Road Transport Corporation through its Chairman v. Muhammad Ali G. Khokhar (1990 SCMR 1404).

(xii) K.D.A. and another v. Wali Ahmed Khan and others (1991 SCMR 2434).

(xiii) Anwar Hussain v. Agricultural Development Bank of Pakistan and others (1992 SCMR 1112).

(xiv) Agricultural Development Bank of Pakistan and 2 others v. Muhammad Sharif (1988 SCMR 597).

In other words, inter alia the ratio decidendi of the above cases seems to be that if there is violation of any statutory rule or law a Constitutional petition is competent against a Corporation/Cooperative Body etc.

6. The question, therefore, arises whether violation of the principles of natural justice can be equated with the violation of law in order to warrant issuance of a writ in exercise of Constitutional jurisdiction under Article 199 of the Constitution. In this connection reference may be made to the following cases:‑‑

"(a) (i) The Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak (PLD 1959 SC 45), in which the question in issue before this Court was whether the Chief Commissioner before disposing of an appeal of the respondent was obliged to hear her. This Court while affirming the judgment of the High Court observed as follows as to the application of Maxim audi alteram partem:‑‑

As argued by Mr. Sharifuddin, the learned Advocate for the respondent and indicated by the learned Judges of the High Court the above rule of justice is not confined to proceedings before Courts but extends to all proceedings, by whosoever held, which may affect the person or property or other right of the parties concerned in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of a judicial proceeding though administrative in form. If authority is needed for this proposition, it is to be found in the cases cited by Mr. Sharifuddin'. "

(ii) The University of Dacca and another v. Zakir Ahmed (PLD 1965 SC 90).

In the above case this Court reiterated the above maxim and held that a student is entitled to be heard by a Disciplinary Committee before he can be held that he was guilty of misconduct.

(iii) Pakistan and others v. Public at Large and others (PLD 1987 SC/Shariat Appellate Bench 304).

In this case a Shariat Appellate Bench of this Court has held that order of retirement of a civil servant or of an employee of a statutory Corporation upon completion of 25 years service without hearing him is violative of the Islamic Injunctions which enshrine that no one should be condemned unheard. In this regard reference may be made to the following observations from Dr. Nasim Hasan Shah, J.'s opinion (as his Lordship then was):‑‑

"I further feel that no difference exists in this respect between the cases of civil servants who are in the employ of the Government and employees of the statutory Corporation like WAPDA, Cantonment Boards, Universities etc. I would., therefore, agree with the submissions on this point made by Mr. Khalil Ramday, Additional A.G. (Punjab). Hence the employees of all such organizations must also be intimated the reasons/grounds for their premature retirement which may be ordered under provisions similar to those under which the civil servants are liable to be retired."

(iv) Mst. Maryam Yunus v. Director of Education, Cantonment G.H.Q., Rawalpindi and others (PLD 1990. SC 666), in‑which this Court has held that violation of the principles of natural justice was not involved in the above case but at the same the following observations have been made as to the application of the above maxim:

"This Court has gone to the extent of pointing out that the mere absence of a provision in statute as to notice cannot override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal. "

(v) Olga Tells and others v. Bombay Municipal Corporation and others (AIR 1986 SC 180) in which the Indian Supreme Court while construing Article 21 of the Indian Constitution pertaining to the right of life held that the above Article was to be viewed in conjunction with Articles 39 (a) and 41 relating to State Policy requiring the State to secure to the citizens as adequate means of livelihood and the right to work, and that eviction of pavement dwellers and slums will lead to deprivation of their livelihood and consequently to the deprivation of life or personal liberty in terms of the above Article. It was further held that though under section 314 of the Bombay Municipal Corporation Act, 1886, the Commissioner had the discretion to cause an encroachment to be removed with or without notice, that discretion is to be exercised in a reasonable manner so as to comply with the Constitutional mandate. It was also held that the pavement dwellers were entitled to be heard before they could be removed."

(b) Reference may also be made to the following cases:‑‑

(i) St. Jude's Secondary School and others Employees' Old‑Age benefits Institution and another (PLD 1988 SC 473).

(ii) Mst. Afroz Jehan v. Mst. Noor Jehan and others (1988 CLC 1318).

(iii) M/s. Capital Sports Corporation, Sialkot v. Government of Pakistan (1989 MLD 999).

(iv) Haji Muhammad Aslam Aijaz Ali and Bros. v. Cotton Trading Corporation (1989 MLD 2886).

7. 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. 1 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 Grade VI from Grade VII was passed. In this view of the matter, there has beer: 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 rides in respondent No. 1 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. 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 m respect of a civil servant or an employee of a statutory Corporation can be passed, he is entitled to be heard.

The effect of the application of the master and servant rule is that an employee of a Corporation in the absence of violation of law or any statutory rule cannot press into service Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement to service, his remedy for wrongful dismissal is to claim damages.

8. We would, therefore, allow the above appeal and would declare the impugned order dated 6‑8‑1991 reverting the appellant to Grade VI as being without lawful authority with the observation that it will be open to respondent No. 1 to take fresh action after hearing the appellant in accordance with the law. There will be no order as to costs.

A.A./A‑1195/S Appeal accepted.