MANAGING DIRECTOR, ITTEHAD CHEMICALS LTD., KALA SHAH KAKU, DISTRICT

MALIK MUHAMMAD QAYYUM, J.---This appeal under section 3 of the Law Reforms Ordinance, 1972 arises from judgment and order dated 29-3-1994 of a learned Single Judge of this Court accepting Writ Petition No.1021 of 1987 filed by the respondent challenging the termination of his services as General Manager vide order, dated 2-11-1985 of the Chairman, Federal Chemical and Ceramic Corporation, appellant No.2 herein.

2. It is unnecessary to set out facts for those have been adequately dealt with by the learned Single Judge in his impugned judgment and there is no dispute about the same. Suffice it to say that the order of termination of services of the respondent who was working as General Manager of Ittehad Chemical Limited which is one of the units which was nationalised in the Economics Reforms Order, 1972 was declared to be without lawful authority and of no legal effect by the learned Single Judge primarily for two reasons; firstly, that the order had been issued by the Chairman while the power of termination vested in the Board of Directors and secondly that the order had been passed by the Chairman under the dictates of Minister Incharge who does not figure anywhere in the context of things.

3. Having heard the learned counsel for the parties at length, we are of the view that the order of termination of services impugned in the Constitutional petition by the respondent was liable to be struck down on the short ground that it was passed without affording any opportunity to the respondent of being heard and was thus contrary to the principles of natural justice. No detailed discussion on the subject is necessary for the case is squarely covered by the ratio of famous decision of the Supreme Court of Pakistan in the case of Mrs. Anisa Rehman v. P.I.A.C. And another 1994 SCM R 2232.

4. Mian M. Dilawar Mahmood, learned counsel for the appellants has, however, contended that as there were no statutory rules of service governing the employment, the principle of master and servant would apply and the service of any notice to show cause was not necessary. We are unable to sustain this contention. Although it is true that earlier the view which prevailed was that in cases where there were no statutory rules of service, if the employment had been terminated without any notice the only remedy for the aggrieved servant was to file a suit of damages and the order of termination could not be set aside in the Constitutional petition, however, this view can no longer be accepted in view of Mrs. Anisa Rehman's case supra.

5. It was next argued by Mian M. Dilawar Mahmood, Advocate that according to the terms of employment, the service of the respondent could be terminated without giving any notice and as such no legitimate grievance can be made by the respondent against the impugned order. Again we are not impressed with this contention. This condition in the service of contract has reference to a case where services are terminated without any cause or fault on the part of the servant and not on account of misconduct said to have been committed by him. Any such termination of service can only take place after giving a reasonable opportunity of showing cause to the service. This requirement stands accentuated in the present case in view of the factual background in which the allegation of the respondent that his termination of service was on account of pointation of grave irregularities cannot be said to be without any foundation. Prima facie, it lends credence to the plea that the respondent was removed from service by mala fide exercise of power. While at this juncture we may also point out that in the case of employment under the State or the Corporation owned and controlled by the State there is always an element of unequal bargaining power and retention. Of the right to terminate the services by including a clause in the contract cannot be said to be voluntary. In these days where social and economic justice is a right of citizens no one can claim to have absolute unbridled and gained power of depriving an employee of the source of his livelihood especially in view of Article 31 and Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. In this behalf we are tempted to refer to the two decisions from the Indian Supreme Court viz. Central Inland Water Transport Corporation Ltd. And another v. Tarim Kanti Sengupta and another AIR 1986 SC 1571 and Delhi Transport Corporation v. D.T.L. Mazdoor Congress and others AIR 1991 SC 101. In Central Inland Water Transport Corporation's case supra the services of an employee of a Company incorporated under the Companies Act were terminated without giving him any notice or an opportunity of being heard. The Supreme Court of India went to the extent of holding that Rule 9.1 of the Central Inland Water Transport Corporation Ltd. Service Discipline and Appeal Rules (1979) empowering the Corporation to terminate the services of permanent employees without giving any reason or notice were void in view of section 23 of the Contract Act as being opposed to the public policy and also as being violative the directive principle contained in the Indian Constitution. In the case of Delhi Transport Corporation, a similar regulation was struck down as arbitrary, unfair, unjust, unreasonable and opposed to public policy.