TAHIR MAHMOOD RANA vs THE TOURISM DEVELOPMENT CORPORATION OF PUNJAB, LAHORE And 2 OTHER

ORDER

1. Civil revision by the plaintiff in the suit for his reinstatement in service upon setting aside of termination order was against a decision of learned Additional District Judge, Lahore dated 9-5- 1994 given in appeal by which temporary injunction issued in favour of the plaintiff was vacated by him.

2. Petitioner was a Senior Tourism Officer of the Tourism Development Corporation of Punjab. Initially, he was appointed on 30-10-1991, on probation. Later, he was regularised and eventually confirmed in his service on 7-7-1992. On 29-7-1993, petitioner was terminated from service in terms of Rule 9(iv) of Tourism Development Corporation Punjab Service Rules, 1989 on account of overstaffing and negligence of work. The termination order runs as:-- OFFICE ORDER The Management of the Tourism Development Corporation of Punjab Limited, in exercise of the powers contained in Rule 9(iv), Chapter III of TDCP Service Rules, in constrained to terminate the services of Mr. Tahir Mahmood Rana, Senior Tourism Officer with immediate effect. The reasons for the above-said termination, although the Management is not obliged as per Rules to assign any reason in this behalf, are as under: (1)Overstaffing.

3. (2)The officer, right since his induction in service in the year, 1991, has practically been doing no work with the exception, however, that he has been receiving his salary regularly.

4. By order of the Managing Director.

5. (Sd.)

6. (Safdar Mahmood), General Manager (Admn.):"

7. Petitioner instituted a civil suit for setting aside of his termination from service and consequent reinstatement in it in a Civil Court at Lahore. Alongwith it, he filed a miscellaneous petition under Order XXXIX, Rr. 1 and 2, Civil Procedure Code for suspending the operation of the impugned order.

8. T.D.C.P. resisted the suit and contested the application. Vide order of the learned trial Court, dated 2-10-1993, petition for temporary injunction succeeded and thereafter a preliminary issue was settled about jurisdiction of the Civil Court to entertain and try the suit and the same was adjourned for taking of evidence on it. The Corporation filed an appeal against the interim order. It was allowed on 9-5-1994, as said above. Thereupon, this petition in revision was filed in this Court.

9. Learned counsel was heard at length on merits of the civil revision. T.D.C.P. was a public limited Company incorporated under the Companies Ordinance, 1984. Service in it was not regulated by statutory Rules. Therefore, prima facie law of master and servant shall regulate and govern the service in it. Case in Riazuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531 assisted the point. Additionally, Rule 9(iv) provided a mechanism for termination of service on either side by service of notice of three months or pay in lieu thereof. Upon his entry in service of T.D.C.P., the petitioner must be deemed to have accepted its service structure and the above rule of service particularly. Therefore, infringement of the rule at the most gave cause to the plaintiff to sue the Corporation for damages for his alleged termination from service. Right to claim reinstatement of service, therefore, was not beyond dispute. Petitioner had, therefore, no prima facie case in his favour. Existence of other two essentials i.e. balance of convenience and irreparable loss was also open to exception. His loss was measurable in terms of monetary compensation, in case he succeeded in the suit. Conversely, the loss of the Corporation, in the event of dismissal of the petitioner's suit could be immeasurable. Lastly, termination order took effect instantaneously. Its operation was not dependant upon payment of service dues. Civil suit was instituted by him later. Therefore, in absence of compelling circumstances, which were not shown to exist, status quo ante could not have been restored in service matters by an order passed under Order XXXIX, Rules 1 and 2, Civil P.C. Decision in Shahzada Muhammad Umar Beg v.

10. Sultan Mahmood Khan and another PLD 1970 SC 139 spelt out a clear prohibition for such a course.

11. Their Lordships observed: "A further consideration that very rightly weighed with the learned Additional District Judge was that the respondent had been reverted by an order dated the 18th of November, 1965, whereas his suit was instituted on the 20th of November, 1965, two days thereafter.

12. Under Order XXXIX, rule 1 of the Civil Procedure Code, status quo can be maintained between the parties in accordance with the situation as it obtains at the time of the institution of the suit and not to a point of time prior thereto. In the revision filed in the High Court, the learned Single Judge, with all respect, has unfortunately disposed of the matter summarily deciding it in favour of the respondent because he did not agree with the view of the learned Additional District Judge that section 56(d) of the Specific Relief Act placed an embargo on the powers of the Court in granting temporary injunctions against Government departments without heeding to the other weighty and relevant considerations which had persuaded the learned.. Additional District Judge to withhold the grant of temporary injunction. It is not correct to say, as remarked by the learned Single Judge in the High Court, that the bar under section 56(d) of the Specific Relief Act was the main consideration which had weighed with the learned Additional District Judge to vacate the temporary injunction. The learned Single Judge in dealing with the bar under section 56(d) has relied on decision of Kaikaus, J., as he then was, in the case of Ahmad Din and others v. Faiz Ali and others PLD 1954 Lah. 414, wherein it was held that if the jurisdiction to issue a temporary injunction is referable to inherent power, it cannot be taken away by section 56 of the Specific Relief Act. With all respect, even if it were to be accepted that section 56 does not limit the inherent power of a Court to grant temporary injunction, it cannot be said that in the exercise of those inherent powers it will not be a serious matter for the Court's consideration whether it would be right to issue an injunction to a public department which would obviously disturb its working and it would not do so unless. compelling reasons demand that course". Learned counsel relied on Mrs. Anisa Rehman's case Civil Appeal No. 238-K of 1992 decided on 28-11-1993 by the Supreme Court to urge that in absence of a show-cause notice, termination of service would not have been ordered by the P.T.D.C. and, therefore, the, order was liable to be struck down forthwith and reinstatement ordered immediately.

13. In the context of existing circumstances for decision of the application for temporary injunction for relief of reinstatement as a measure of interim relief during the pendency of the civil suit, the point raised on the application of rule of natural justice and a show--cause notice may not have much merit. It shall receive proper consideration at the trial. Therefore, exercise of discretion by the trial Court was rightly corrected in appeal by learned Additional District Judge for dismissing the application for temporary injunction. At the end, it may be noticed that the observations in the impugned order shall not effect decision on merits of the civil suit by the trial Court. In consequence civil revision is dismissed in limine.