MUHAMMAD AKRAM, J.--This shall dispose of the above revision, treated as a regular second appeal by virtue of section 5(5) of the Code of Civil Procedure (Amendment) Act III of 1963. It is directed against the judgment and decree dated the 24th of October 1962, passed by the learned District Judge Rawalpindi, on appeal, whereby he has upheld the decision of the trial Court in dismissing the suit of the plaintiff-appellant against the defendant-respondent.
2. It was alleged by the plaintiff in his plaint that in pursuance to a selection held by the Pakistan International Airlines Corporation (hereinafter called the Corporation) he was appointed as the M.
T. Supervisor at Chaklala Base on the 3rd of May 1960, on probation for the period of six months and thereafter he was duly confirmed by the respondent on the 3rd of November 1960. However, afterwards a charge-sheet dated the 1lth of April 1961, was served on him accusing him of an attempt in removing one tin of engine oil from a vehicle belonging to the Corporation. But. the plaintiff-appellant categorically denied this allegation against him. In spite of this the personnel Officer (Admin. Chaklal a, of the Corporation by his letter No, P. R/P-10219- 61-5182, dated 8th of June 1961 dismissed the plaintiff from service with effect from the 14th of June 1961 for abetment in the theft without any enquiry and without any show-cause notice issued to him. In these circumstances on the 20th of June 1961 the plaintiff tiled the suit against the Corporation in the civil Court at Rawalpindi, inter alia, alleging that his dismissal from service was ultra vires, illegal, arbitrary, malacious, void and unjust, and that no case for his removal from service was made out under the Service Code nor any rules an 1 the instructions were followed by the defendant before imposing this maximum penalty of his dismissal from the service. It was further alleged that he was already exonerated of the charge levelled against him and the principal accused, Samiullah, Motor Mechanic, was let off by a simple warning only. On these allegations, therefore, the plaintiff prayed for a decree against the defendant-Corporation in the suit for a declaration to the effect that the order of his dismissal from service was ultra vires, illegal, arbitrary, malicious, void and unjust and that he continued to be in the service of the Corporation as before as the M. T. Supervisor.
The defendant-Corporation controverted all these allegations in its written statement and inter alia raised a preliminary objection to the effect that this suit in its present form was not competent. The plaintiff was an employee of the Corporation and there were no statutory provisions protecting his service under the Corporation. This suit was barred under section 21(a) & (b) of the Specific Relief Act and the plaintiff was not at all entitled to specifically enforce the agreement of his personal service against his master. His remedy, if at all, was to sue the Corporation in damages for his wrongful dismissal.
After calling for the replication, the learned trial Court framed the following preliminary issue in the suit:-- "Whether the present suit is competent ?"
3. The parties did not adduce any evidence on this issue. After hearing the arguments, the learned Civil Judge, Rawalpindi, on the 24th of April 1962, gave effect to the preliminary objection and dismissed the suit of the plaintiff, holding that the employees of the Corporation were not entitled to any of the guarantees available for the Government servants under the Constitution and that this suit was not at all competent in its present form. The plaintiff-appellant went up in appeal against the decree. This was, however, rejected by the learned District Judge, Rawalpindi, on the 24th of October 1962. He was of the opinion that the respondent was a mere Corporation and not a Department of the State. There was no statutory guarantee affording any protection to the plaintiff in his service, and as such, his services could not be forced upon his unwilling master. In the opinion of the Court a mere infringement, if any, of the service rules by the Corporation, was of no avail to the plaintiff in this suit. In coming to this conclusion the Court below relied on the pronouncement of the Supreme Court in Messrs Malik Haq Nawaz and another v. Muhammad Shams-ul-Haq Chaudhary and in Faiz 4hmed v. The Registrar, Co-operative Societies, West Pakistan, Lahore and another .
4. The aggrieved plaintiff has come up to this Court in this revision, treated as a regular second appeal. This appeal was at first put up before a learned Single Judge of this Court for disposal. But by his order dated the 10th of March 1965, he recommended that the case may be laid before a larger Bench. Accordingly the Chief Justice directed that this case may be placed before a Division Bench and was put up before us for disposal.
5. Before proceeding further, it is necessary to mention here that respondent, the Pakistan International Airlines Corporation was established by the law under the Pakistan International Airlines Corporation Act (XIX of 1956). Under section 312) of the Act it is a body corporate, having perpetual succession and common seal with powers, subject to the provisions of the Act, to acquire and hold property both movable and immovable and to carry out the functions and duties of the Corporation under this Act. It can sue and be sued in its own name. The functions of the Corporation are defined under section 4 of the Act, inter alia, to provide and further develop safe, efficient, adequate, economical and properly-co-ordinated air-transport services, internal as well as international. Under section 5, the general direction of the administration of the affairs of the Corporation shall vest in a Board of directors headed by its Chairman. Section 10 of the Act lays down that the Corporation may appoint such officers, advisers and employees as it considers necessary for its efficient performance of functions on such terms and conditions as it may see fit.
The rule-making powers under section 29 of the Act is vested in the Central Government and it may make rules not inconsistent with the Act for the purposes of giving effect to the provisions of the Act. Section 30 of the Act lays down that the Board may with the previous sanction of the1 2 Central Government make regulations not inconsistent with the Act to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Act. In this connection section 31 lays down 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.
6. So far as we are aware the Board of Directors has not framed any regulations in the exercise of the powers vested in it under section 30, nor have these been published or laid before the National Assembly as required by section 31. However, in the exercise of the powers conferred by section 29 of the Act, the Central Government has framed the Pakistan International airlines Corporation Rules, 1956. In this connection rule 22 (1) generally lays that the Board shall manage the business of the Corporation and shall exercise all powers of the Corporation conferred upon it by the Ordinance and the rules. In particular rule 22(2) (e) provides that the Board shall have the power to appoint, remove or suspend any managers, secretaries, officers, clerks, agents, or servants and to direct and control them and fix their salaries and grades etc. Rule 22(2) (i) further lays down that the Board shall have the power to make "service rules and regulations" pertaining to the employment of its officers and servants. However, in order to avoid any possible ambiguity it must be mentioned that these "rules and regulations" are not the same thing and must be distinguished from the Rules framed by the Government under section 29 and Regulations framed by the Board with the previous sanction of the Central Government under section 30, placed before the National Assembly and published in accordance with section 31 of the Act and having statutory force.
7. We find that the terms and conditions of service of its employees are in general prescribed by the Corporation in the form of a "Service Code". Under Para 4, Chapter I of the Code, the Corporation has reserved for it the right to modify, cancel or amend all or any of these rules.
Chapter IV of the Code deals with the classification of the employees under the Corporation and Chapter V with their Confirmation, Promotion and Demotion, Chapter X of the Code deals with discharge, resignation and dismissal of the employees of the Corporation. Under this Chapter, Para. 40.1 of the Code in terms lays down that the Corporation reserves the right to dismiss without any notice any employee, who in the opinion of the competent authority, is guilty of misconduct. In the context, the term misconduct has been defined in Para. 40.2, Chapter XI prescribes the procedure for the disposal of the cases of misconduct, punishment and appeals. Under this Chapter para. 41.1 provides that if misconduct is alleged against an employee, the competent authority before taking action against him will hold an enquiry and the employee charged with misconduct will be afforded a reasonable opportunity of explaining and defining his action. Para. 42.1 lays down that the competent authority may in its discretion give the employee anyone of the punishments enumerated therein for an act of misconduct after having made proper enquiry as laid down in the rules.
8. On the face of it, this Code does not refer to any authority under the law under which it was framed. As pointed out above the provisions forming this Code do not have the force of the statutory rules made by the Central Government under section 29 of the Act. Nor even the force of Regulation made by the Board of Directors of the Corporation with the previous sanction of the Government under section 30. This Code was never published in the Government Gazette and placed before the National Assembly in accordance with section 31 of the Act. But, section 10 of the Act, lays down that the Corporation may appoint such officers and employees as it considers necessary for the efficient performance of its functions, "on such terms and conditions as it may see fit". This section confers plenary powers and absolute discretion in the Corporation to lay down any terms and conditions of service for its employees. The power in this connection is exercised by the Board of Directors on behalf of the Corporation. Rule 22(2) (a) of the Pakistan International Airlines Rules, 1956 lays down that the Board may make 'Service Rules and Regulations" concerning the appointment of its officers and servants. Apparently, it was in exercise of these powers that the Board has introduced the Service Code laying down in general the terms and conditions for its employees. There is no sanctity attached to the Service Code. Its provisions are not immutable and according to para. 4, Chapter I, of the Code the Corporation has the right to modify, cancel or modify all or any of those provisions as may be considered necessary. In other words they could be altered at the pleasure of the Corporation. Therefore, strictly speaking it is a misnomer to regard them as rules and regulations having a statutory force of the law. On the contrary, the provisions in this Code are altogether subordinate in character. These are in the nature of mere instructions issued by the Board for the guidance of its officers for their internal use and are altogether directory. As a result of this discussion we conclude that in this case there are no statutory safeguards and guarantees of a mandatory nature provided under the Act or the Rules having the force of law, in favour of the employees of the Corporation. In Faiz Muhammad v. The Registrar, Co- operative Societies, West Pakistan, Lahore and another a somewhat similar situation had arisen and the Supreme Court observed that the Civil Service Rules were applicable to the case of the employees of the Co-operative Bank, not by virtue of any statutory provision, but purely by adoption under the bye-laws of the Bank, which were no more than the rules laid down for the guidance of the Bank itself. These rules, therefore, did not create any right in the appellant therein to hold his office in accordance with them.
9. The respondent is a statutory Corporation having a legal entity with a personality of its own, distinct from the State. It was created as an autonomous Corporation with sufficient powers to control its day-to-day administration free from the ministerial control of the Government except as to broad lines of policy. It does not function as a Government Department or as a servant or agent of the Government. The Court of Appeal in Tomlin v. Hannsford was of the opinion that the Transport Commission, established under the law, was not the agent of the Crown. The appellant was neither appointed by the Government nor was he removable by it. Nor was he paid out of the revenue of the Government of Pakistan. He could not, therefore, be said to be holding any office of profit under the Government. In this respect in Dr. Abdul Hafiz v. The Chairman, Municipal Corporation, Lahore a Division Bench of this Court has held that an employee of the Municipal Corporation established under the law, was not a Government servant, in the real sense, entitled to the Constitutional protections against his removal.
In an unreported case of this very Corporation, in W. P No, 403 of 1963 (Shahid Khalil v . The Pakistan International Airlines. Corporation) the High Court of West Pakistan, Karachi Bench was of the opinion that the provisions contained in the Service Code do not have the force of the Regulations under section 30 of the Pakistan International Airlines Corporation Act, 1956. The Bench was further of the opinion that the provisions of Code are the Rules of service framed by the Corporation under rule 22(1) of the Pakistan International Airlines Corporation Rules, 1956. At the same time the Bench held that these rules in the Code were not mandatory in their nature, and it was altogether optional for Corporation to order any enquiry into the misconduct against its employees and afford a reasonable opportunity to them to show cause against any action proposed against them. The Court was also of the opinion that the employees of the Corporation were not entitled to the protection and guarantees extended to the Government servants under Article 181 of the Constitution of 1956. The petitioner in that case went up to the Supreme Court against the judgment of the High Court in Civil Petition for Special Leave to Appeal No, 18 of 1964 Khalil v.
Pakistan International Airlines Corporation). But the petition was rejected on the 31st of March 1964, and Supreme Court observed:-- "The Corporation is a statutory body created by an Act, and although it is rendered amenable to the exercise of various C controls by the Central Government, nevertheless it is not a branch of that Government, and as an employer, it is quite distinct from Central Government."3 4 On behalf of the petitioners in that case it was not even contended before the Supreme Court that apart from the above his service was protected under any Statute or the rules having the force of law. For the reasons already discussed by us we regret that we cannot subscribe to the view taken by the High Court of West Pakistan, Karachi Bench that the directions contained in the Service Code are rules having the force of law.
10.To sum up the above discussion, we find that the servants of the Pakistan International Airlines Corporation cannot be treated as the employees of the State. They are not entitled to any guarantees and safeguards under the Constitution or any Statute or the rules having the force of law. The relationship between the Corporation and its employee is purely that of a master and a servant under the general law. In this connection we find that the order dated the 10th of March 1965, passed by the learned Single Judge referring this case to a larger Bench was based on an erroneous admission made before him by the parties of the effect that the provisions contained in the Service Code are in the nature of Regulations framed under section 30 of the Pakistan International Airlines Corporation Act of 1956 and have the force of Statutory rules and consequently under para. 14.1 of the Service Code the employees of the Corporation were entitled to the Statutory protection against their wrongful dismissal. With due reference we find that the whole of this order of reference proceeds on this basis and the erroneous assumption that the Corporation was bound by any statutory rules of service in force and that its employees are vested with the right to be treated in accordance with those rules having the force of law.
11.We have come to the conclusion that the general law of master and servant is applicable to the parties in this case. Such a contract of service between the parties is not capable of specific enforcement under section 21 (a) & (b) of the Specific Relief Act, 1877. It is axiomatic that the services of an employee cannot be forced on his unwilling master. In Malik & Haq and another v.
Muhammad Shams-ul-Islam Chaudhary and others the Supreme Court has held that "in the absence of statutory provisions protecting the servant", it is not possible in law to grant to him a decree against an unwilling master to the effect that he was still his servant. A servant cannot be forced upon his master. The master is always entitled to say that he is prepared to pay the damages for breach of contract of service but will not accept the services of the servant. A contract for personal service, as will appear from section 21(b) of the Specific Relief Act, 1877 cannot be specifically enforced. The ratio in the Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustam Ali and another is fully applicable to the facts in this case before us. The East Pakistan Industrial Development Corporation, established under the law, did not have any statutory rules for the protection of its employees and in that case the Supreme Court observed that the safeguards provided for public servants in the Constitution could not be availed of as a legal right by an employee of a Statutory Corporation, like the East Pakistan Industrial Development Corporation. By the ordinary law of master and servant when a servant is guilty of misconduct the master is entitled as of right to terminate his service without notice.
12. For the forgoing reasons, in agreement with the two Courts below, we find that the suit of the plaintiff-appellant against the defendant-respondent for the Specific Relief was not competent.
There is therefore, no force in this appeal which is dismissed. But the parties are left to bear their own costs under the circumstances of this case. PLD 1961 SC 61 PLD 1962 SC 315 (1950) 1 K B 8 PLD 1967 Lah, 1251 PLD 1966 SC 848 5 1 2 3 4 5
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