' MAQBOOL BAQAR, J.--The appellant, through this appeal under section 3 of the Law Reforms Ordinance, 1972, have assailed order dated 27-5-2010, passed in Suit No. 815 of 2010, whereby a learned single Judge of this Court had suspended the operation of termination letters issued against the respondents till 2-6-2010.
2. The relevant facts of the case, in brief, are that the respondents, who are permanent employees of the appellant were, vide separate notices dated 19-4-2010, informed that their service with the appellant have been terminated with immediate effect with provision of one month salary in lieu of notice. The respondents through the above suit filed on 19-5-2010, sought the following reliefs:-
(i) Declare that the plaintiffs are entitled to continue their services at their respective posts/designations and receive all applicable benefits and privileges thereto as prevailing on 18-4- 2010;
(ii) Cancel the purported termination notices dated 19-4-2010 issued by the KESC to the plaintiffs;
(iii) Restrain the KESC from dismissing, terminating, compulsorily retiring or awarding any penalty against the plaintiffs except in accordance with Chapter 6 of the KESC Officers Policy, 2002 and after initiating proper show cause proceedings and observing the rules' of natural justice;
(iv) Restrain the KESC from alerting or revising the terms of the KESC Officers Policy, 2002 to the detriment of the plaintiffs without their consent.
3. The impugned order was passed on an application filed by the respondents in the above suit under section 94 read with Order XXXIX Rules, 1 and 2 C.P.C.
4. The respondents' case as submitted before the learned single Judge through the aforesaid suit/plaint was that the respondents were appointed in different designations in the appellant company. (The KESC) on their respective dates of appointment and after satisfactory completion of 12 months probation period, they were confirmed and made permanent employees of the KESC.
In 2005, the KESC was privatized in a prima facie unlawful manner on the pretext that it was incurring losses and was a burden on the public exchequer and that its privatization would lead to greater efficiencies in the generation and transmission of electricity to the citizens of Karachi.
Thereafter, 73 % of the shareholding in the KESC was transferred to a consortium led by the Al Jomaih Holdings Group along with Hassan Associates and Premier Mercantile Services.
Privatization was challenged in various constitutional petitions before this Court which petitions are still pending adjudication, however, despite pendency of the said petitions, the effective management/ownership of the KESC was in the year, 2008 transferred to the Abraaj Group. This subsequent transfer has also been challenged through a Constitutional Petition before this Court. It was alleged that the KESC continues to enjoy huge subsidies and reliefs from the Government of Pakistan especially in respect of its payment obligations for electricity made available to it from the national grid and for the fuel purchased for production of electricity. It is claimed that KESC's rationale for claiming such subsidies and reliefs directly and indirectly from the public exchequer is that it is engaged in the essential service of providing electricity to the entire city of Karachi and noncooperation from the Government could lead to a complete break-down and deprive the citizens of Karachi of the basic amenities of life. It is claimed that the respondents have been working at the KESC in increasingly senior positions and most of them repeatedly received certificate of merit from the management of KESC for their exemplary services and contributions during their term of services with KESC. It is further claimed that the respondents have spent prime period of their lives rendering their services for KESC with hard work and honesty. It is alleged that around December, 2009, a number of KESC Officers, including the respondents were suddenly called back from the respective postings and assigned to a special pool. Being perturbed at this development, the respondents from time to time approached the KESC management, as to whether the management was dissatisfied with their performance but were assured that due to their expertise and experience their reassignment was merely in line with new administrative policy and they would shortly be re-posted at their respective positions. On 15-4-2010, the KESC management issued a revised KESC Officers Policy. The management, far from consulting with the concerned officers in relation to the framing of a revised policy, took every measure to keep the revised Policy a secret. That as per clause 5.1 of the new Policy, the KESC unilaterally arrogated to itself the power to terminate the services of even a permanent officer without assigning any reason whatsoever on 1-month notice (or 1-month salary in lieu of notice). Through the aforesaid notice, the respondents were abruptly informed that their long standing service with KESC had been terminated with immediate effect with provision of 1 month salary in lieu of notice. It is claimed that the said termination' notices are yet to become operational inasmuch as even the 1-month salary in lieu of notice has not been paid. In fact, even the salary for 19 days in April has not been paid to the respondents. The respondents claimed that at the time the respondents entered into KESC employment, the latter was a wholly state-owned corporation. While salaries in the private sector for a person with the respondents' qualifications were far higher, the respondents nevertheless opted to join KESC with a view to serve the nation and for the security of knowing (after being confirmed) could not be terminated without just cause and after proper show-cause proceedings.
According to the respondents, such security of tenure was an express and implied term of their employment and it was in view of the above that the respondents willingly accepted not only a lower salary but also the other restrictions on their liberties and civil rights imposed as a result of their services in a government owned corporation engaged in providing essential services.
5. Mr. Khalid Jawed Khan, the learned counsel for the appellant/ KESC submitted that the appellant is a private limited company and that in the year, 2005, approximately 75% of the shares of the appellant, which were owned by the Government of Pakistan were privatized through the Privatization Commission, which resulted in the ownership and management of the appellant, being consortium under the name of KESC Power; Mr. Khan submitted that prior to its privatization, the appellant in the year 2002, had framed the KESC Officers Service Rules, clause 1.2 whereof empowered the Board of Directors of the appellant to add to, amend or repeal any of the said Rules, whereas, Rule 1.3 of the Rules, 2002 provides that in case of any controversy/ambiguity concerning interpretation of these Rules or matters otherwise not specifically provided for these Rules, the decision of the Board of Directors of the appellant shall be final and binding on all concerned. He pointed out that Rules, 2002 were not statutory Rules and contended that the relationship of the appellant and its employees, including respondents Nos. 1 to 45 is/was exclusively governed by the principle of master and servant. The learned counsel further submitted that the appellant was privatized in the year, 2005 and the present management took over the business and affairs of the appellant in the year, 2007 and in April, 2010 the appellant issued the KESC Officers Service Policy (Policy 2010) which is applicable to all regular' employees in the officers and management cadre, including the respondents and since Policy 2010 repeals the Rules, 2002 the Policy 2010 exclusively governs the terms and conditions of the services of the said employees of the appellant including respondents Nos. 1 to 45. The learned counsel referred to clause 5.1 of the Policy, 2010 to show that the services of a regular officer is terminable by either side on one month's notice or payment of salary in lieu thereof; be further submitted that the impugned notices are in conformity with clause 5.1 of the 2010 Policy. Mr. Khan submitted that the impugned order is contrary to the provisions of section 21 and section 56(f) of the Specific Relief Act; the learned counsel submitted that since the relationship between the appellant and the respondents was governed by the principle of master and servant and the Policy, 2010 which does not confer a guaranteed right on them to continue in the employment and to seek reinstatement, even if it is presumed that they are illegally dismissed or terminated, as neither Rules, 2002 nor Policy, 2010 had/has any statutory force or sanction, and thus the respondents cannot approach the Court of Law for seeking their reinstatement and can at the most claim damages, however, the respondents, instead of claiming damages, have sought their reinstatement and as such, the plaint itself was/is liable to be rejected. Mr. Khan submitted that since neither any statutory law nor any statutory rules governing the services of the respondents were/are involved in the case, it is not possible in law to grant to the respondents a decree against the appellant; that the respondents are still its servants. In support of his contentions, the learned counsel relied upon following cases:--
(1) Pakistan Red Crescent Society v. Syed Nazeer Gillani (PLD 2005 SC 806); (2) Talit Hussain and others v. Chairman. P.I.C. And others 2002 PLC (C.S) 1 and (3) Syed Shahid Raza and others v. Oxford University Press 2003 PLC (C.S) 11.
6. The learned counsel further submitted that through the ex parte mandatory order, the learned single Judge has restored the terminated employees to their employment and thus a contract of service of a private employer governed exclusively by the principle of master and servant has been specifically enforced through an ex parte order and the respondents numbering 45, have been thrust upon an unwilling master; the learned counsel also submitted that since the impugned order is arbitrary and is against the well settled principle of Law, the same is amenable through the above appeal and requests that the interim order may be suspended in order to obviate miscarriage of justice. In this context, Mr. Khan relied upon the following cases (1) United Bank Limited and others v. Ahsan Akhtar and others (1998 SCMR 68) and (2) Habib Bank Limited v. Zia ul Hasan Kazmi (1998 SCMR 60).
7. On the other hand, Mr. Salahuddin Ahmed, the learned counsel for the respondents submitted that the instant appeal is not maintainable as the same has been filed against an adinterim order; he submitted that unless the appellant successfully demonstrates before this Court that the respondents have no case, they cannot maintain the present appeal justifying interference in the learned single Judge's exercise of his jurisdiction; he submits that as long as, the respondents can demonstrate that there is a fair chance of a reasonable possibility of the respondents making out a prima facie case, interference with the impugned order will not be justified otherwise every time such order is passed directly an appeal will be filed before a Division Bench resulting in clogging of the whole system; the learned counsel submitted that in the cases of United Lank Limited and others v. Ahsan Akhtar and others (Supra), relied upon by the counsel for the appellant, it has been clearly held that it is only in exceptional circumstances that the Hon'ble Supreme Court interfere with an interim order of a High Court and such interference has been made only when the order was found to be arbitrary, capricious and against the well settled principle of law, in order to obviate miscarriage of justice, and has further held that non-interference in interlocutory order of the Courts below by the Supreme Court is a matter of rule and interference is an exception; learned counsel submits that in the above case the interim order of a learned Single Judge of Lahore High Court, whereby operation of an order terminating respondent's services as a Vice-President in the petitioner-bank under a golden hand shake package was suspended, the respondent was to get more than Rs.24,00,000 as compensation for the termination of his service under the said 'scheme/Package and the respondent had relinquished the charge on 10-10-1997, whereas the impugned order whereby he was reinstated was passed on 22-10-1997, about 12 days after such relinquishment. It was held that the effect of the impugned order is to reinstate respondent No.1 and is in conflict with what has been held by the Supreme Court in the case of Islamic Republic of Pakistan-through, Establishment Division and others, wherein it is held that it is a well-settled proposition of law that the object of passing an interim interlocutory order or status quo is to maintain the situation obtaining on the date when the party concerned approaches the Court and not to create a new situation. Mr. Ahmed further submitted that in the present case, unlike the aforenoted case the impugned termination letter has not been acted upon inasmuch as neither the respondents have relinquished charge nor have they been paid one month salary in lieu of notice, as offered to them through the impugned letter.
8. As regards the case of Syed Ziaul Hasan Kazmi (supra), Mr. Ahmed submitted that the suspension order impugned before the Hon'ble Supreme Court in that case entitled the respondents to receive full salary and other benefit and un-like in the present case the respondents had handed over the charge of their offices and they were not in the offices for several months when they filed the writ petition and obtained the impugned order.
9. The learned counsel further submitted that a contract cannot be repudiated unilaterally and the only exception is a service contract but there are numerous exceptions to the above legal principle such as cases where the dismissal, suspension, or removal is in violation of statutory provision governing the relationship between the employee and the employer or such is violative of any law and it is now well-settled that the term 'violation of law also connotes violation of judicial principles laid down by the superior Court and it certainly includes the principle of natural justice. The learned counsel referred to the case of Aneesa Rehman v. P.I.A. (1994 SCMR 2232), where the right of hearing was not claimed on the basis of any statutory provision but only upon principle of natural justice and the Hon'ble Supreme Court held that the exception of master and servant rule extended, not merely to cases of violation of specific statutory provision but also violation of any law and that principle of natural justice had become part of law in Pakistan.
10. Mr. Ahmed further submitted that by purported termination of the respondents services, a very valuable right i,e, right to work has been denied to them. He submitted that services of the respondents have been illegally, malafidely and abruptly terminated at such stage of their life and services when they can prove their ultimate worth and require the job to settle their family and children. Although, no fault has been and can be attributed, however, the abrupt termination of the respondents services carries the stigma and disrespect in the public eye and adversely affect their reputation as the curtailment of service is summary and sudden, the injury to the reputation is also pronounced and acts as a severe blow to the self-respect and dignity of the respondent, which definitely operates as a penalty and is thus a punishment by way of denial of right, to work, as also right to earn and right to reputation. He submitted that the impugned order is whimsical, arbitrary, mala fide and is in bad faith. The learned counsel contended that the termination having been conveyed to the respondents without citing any reason and without hearing is also repugnant to the Injunctions of Islam. In this context, he referred to the case of Pakistan and others v. Public at Large (PLD 1987 SC 305). The learned counsel, in support of his contention, also relied upon the case, of Mrs. Aneesa Rehman v. P.I.A.0 and others (1994 SCMR 2232), wherein Ajmal Mian, J (as his Lordship then was), whilst referring to eighteen cases, beginning with Shahid Khalil v. P.I.A.C. (1971 SCMR 568), observed that the ratio dencindi of the said 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. And proceeded to hold that there is a judicial consensus that the Maxim audi alteram partem is applicable to the judicial as well as non-judicial proceedings. To the same effect is the judgment in the case of Chairman, Pakistan Broadcasting Corporation, Islamabad v. Nasir Ahmad and 3 others (1995 SCMR 1593), cited by Mr. Ahmed.
11. Learned counsel also submitted that even where there is a discretion it is not to be exercised on whims, caprices and moods of the authorities as it is now well-settled that the exercise of discretion is circumscribed by principle of Justice and fair play and referred to the case of Walayat Ali Mir v. Pakistan International Airlines Corporation (1995 SCMR 650), in this regard.
12. In support of his contention that the rule of Master and Servant is inapplicable to cases where there is violation of statutory provisions or of any other law and that violation of law would not be confined merely .To violation of any specific provision of a statute but all that is treated as law of this country, including even the judicial principles laid down from time to time by the superior courts. The learned counsel relied upon the case of Muhammad Dawood and others v. Federation of Pakistan and others (2007 PLC (C,S,) 1046).
13. Mr. Ahmed referred to clause 5.1 of the KESC Officers Service Rules, which provided that the services of a permanent officer shall not be terminated without assigning any reason and submitted that the present management has, through the new policy surreptitiously adopted in 2010, changed the said clause to read that the services of a regular officer are terminable from either side without assigning any reason, without taking the respondents or any of its employees into confidence. The learned counsel submitted that the employees of the appellant were not only kept in dark about the purported service policy, 2010 but every effort was made to keep it a secret and referred to a Circular dated 15-4-2010, issued by KESC where-under individual copies were sent to the respective department heads, containing instructions that the same may be kept in the custody of the department heads or person specifically nominated as custodian in that behalf, but not below the level of DGM and further that the policy will under no circumstances be photocopied, hand noted, scanned, photograph or distributed etc. The circular also contained a note that the copies of the policy sent thereunder bear serial number unique to every department and are in original form and that in case of any loss, theft or being copied the concerned department heads or his/her custodian shall be held responsible. The learned counsel submitted that the purported policy was framed with mala fide intent to illegally and unjustly terminate the services of the officers abruptly, inter alia, for the reasons that petitions challenging the privatization of KESC are pending adjudication before the Courts. He submitted. That on the one hand, after calling back the respondents from their respective postings and assigning them to a special pool, the appellant kept on assuring them that due to their expertise and experience their reassignment was merely, in line with new administrative policy and they would shortly be reposted at their respective positions, and on the other, surreptitiously and malafidely introduced the policy, 2010. He submitted that even in terms of the purported officers policy, 2010, it is mandatory for KESC to hold proper inquiry and initiate proceedings prior to imposing the major penalty of termination artd KESC's reliance on clause 5.1 of the purported policy for termination of respondents services without assigning any reasons and without initiating any departmental inquiry, is misplaced, malafide and of no legal significance. The learned counsel contended that the impugned purported termination being mala fide, the respondent suit for reinstatement is maintainable and relied upon the case of Raziuddin v.
Chairman P.I.A. (PLD 1992 SC 531).
14. The learned counsel further submitted that the KESC being a utility company catering to the entire electricity needs of the city of Karachi which was wholly owned by the Government of Pakistan and was operating under the effective control of Ministry of Water and Power, is carrying on an essential function of the State, namely the provision of electricity, which is part of the fundamental right of the citizens guaranteed under. Article 9 of the Constitution. In this context, Mr. Ahmed referred to case of Arif Majeed Malik and others v. Board of Governors Karachi, Grammer School (2004 CLC 1029), wherein it was held that though no amount of Government control over the defendant appears to be involved, but any organization running a school by its very nature performs functions of great concern to the public and the public interest involved in its working is far more than that in a joint stock company whose directors have been held to be holder of public offices for the purposes of Article 199, as held by the Hon'ble Supreme Court in Maqbool Illahi v.
Khan Abdul Rehman (PLD 1960 SC 266), and Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244). It was further held that even when the respondent is not a department of the Government or an institution substantially owned and managed by it, an element of public duty to impart proper education to students who fulfil the fee requirement and agree to abide by disciplinary and other regulations, was always present and that such public powers must be exercised fairly and honestly irrespective of, any strict legal right existing in favour of the students, such duty amounts to an obligation in terms of section 3 of Specific Relief Act, which could always be enforced through a perpetual injunction under section 54 and proceeded to refer to the case of Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi (PLC) 1976 SC 785), where the Hon'ble Supreme Court held that even if declaratory relief could not be granted under the law the prayer for injunction could be treated as independent relief and could always be granted. It was further held that even if the appellants are found not to be entitled to a declaration as to their entitlement it was always possible for the Court to grant permanent injunction preventing the respondent from violating their obligations ordained by law as held in Arshan Bi v. Maula Bakhsh (2003 SCMR 318).
15. As regards maintainability of the instant appeal, it is now well settled that intervention at the ad interim stage, is only permissible where it is found inevitable in order to obviate miscarriage of justice and where the interim order is arbitrary; capricious and against the well-settled principle of Law. In Ahsan Akhtar's case (supra), relied upon by Mr. Khalid Jawed Khan, also the same principle has been reiterated and the interim order, suspending the operation of the impugned order, whereby services of respondent No. 1, as a Vice-President in the petitioner-bank, UBL, under a golden handshake package, was suspended by the Hon'ble Supreme Court, the respondent No. 1 had relinquished the charge twelve (12) days before the impugned suspending order was passed, and in terms of such order, the respondent No. 1 was entitled to receive more than two and a half million rupees as compensation, which as noted in the order itself, would have fetched him more profit if the same would have deposited in a fixed deposit scheme than his salary, which he was drawing at the time of the service of the impugned order of termination of his services and Ajmal Mian, J (as his lordship then was) the author of this order, whilst, observing that at the particular stage of the case, where the matter was at interim stage before the learned single Judge of the Lahore High Court, they would not like to comment on the merit of the case as the same is to be examined by the High Court and that the only question before them was as to whether it was an appropriate case to pass the ad-interim order, suspending the termination notice, an effect of which is to reinstate respondent No. 1 on 22-10-1997 though he relinquished charge on 10-10-1997.
Same principle regarding interference with the interim order was reiterated by the Hon'ble Supreme Court in the case of Syed Ziaul Hasan Kazmi (supra) where, under the suspension orders, which were suspended by the Lahore High Court, through the impugned order, the respondents were entitled to receive full salary and other fringe benefits, and as noted in the order itself they were not placed in any disadvantageous positions, the Hon'ble Supreme Court whilst, observing that the suspension order has not in any way adversely affected the respondent, and without expressing on the merits of the case, granted leave to consider as to whether the High Court was justified in suspending the above suspension order, and suspended the operation of the impugned interlocutory order, but made it clear that it will be open to the bank to offer to the respondents the golden handshake package who will be free to accept the same.
16. However, in the case in hand, the impugned termination orders have not been acted upon as neither have the respondents relinquished their charge nor have they been paid any salary, as mentioned in the purported termination letters. Furthermore, no compensation has been offered to the respondents for the abrupt termination of their services and the termination, if effected, may have ruinous effect for the respondents and their families. One of the main contention of the respondents before the learned single Judge is that their services have been terminated without assigning any reason and without providing any opportunity of hearing which is against the principle of natural justice. In the case of Aneesa Rehman (supra) where the appellant challenged her reversion from higher pay group to a lower pay group by the respondent, on the ground that before reverting her she was not heard by the respondent and hence there was violation of the principle of natural justice. The Hon'ble Supreme Court referring to a large number of judgments starting from case of Shahid Khalil v. P.I.A.0 (1971 SCMR 568) held that the ratio decidendi of the referred cases was that if there is violation of any statutory rule or law a Constitutional Petition is competent against a Corporation/ Cooperative body etc. And proceeded to examine the question whether violation of the principle of natural justice can be equated with the violation of law in order to warrant issuance of writ in exercise of Constitutional jurisdiction under Article 199 of the Constitution. It was held that there is a judicial consensus that the Maxim audi alteram partem is applicable to the judicial as well as non-judicial proceedings. It was further held that the fact that there are no statutory service rules 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 and elaborating the above, held that the effect of the application of 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 in service and that remedy for wrongful dismissal is to claim damages. In other words, it is only in a case where there is a violation of law or any statutory rule that the constitutional or civil jurisdiction can be invoked for seeking relief of reinstatement in service otherwise the remedy is to claim damages, and as held in Muhammad Dawoods case (supra). The rule of master and servant is inapplicable to cases where there is violation of statutory provision or any other law and that the expression' violation of law' would not be confined merely to violation of any specific provision of a statute but the expression `law' as observed by Hamoodur Rehman, J, (as his lordship then was) in Government of West Pakistan v. Begum Aga Abdul Karim Shorish Kashmiri (PLD 1969 SC 14 and 31), ought to be considered in its generic sense as connoting all that is treated as law in this country, including even the judicial principles laid down from time to time by the Superior Courts, it means, according to the accepted norms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may, for instance, include the principles of natural justice, the public duty to act fairly and honestly, and absence of mala fides in fact and law. It was further held that in all such cases the Court would be competent to grant relief of reinstatement.
17. The respondent's case before the learned single Judge is at ad interim stage. The hearing of the respondents' case is yet to take place. The order before us was merely an ad-interim order; the same may be confirmed or set aside by the learned single Judge, after hearing the parties. The appellant may even move an application under Order XXXIX Rule 4, C.P.C. For discharging, varying or setting aside the ad-interim order. We would, therefore, refrain from expressing our opinion regarding the effect, implication and purport of the above judicial pronouncements and legal principles in the present context or else we will be encroaching upon the jurisdiction of the learned single Judge. We may, however, observe that at this ad-interim stage of the case, in view of the above pronouncements, it cannot be said that the ad interim order is either capricious, arbitrary or against the well settled principle of law or that the same may result in miscarriage of justice.
18. It was for the foregoing reasons, that vide short order, dated 3-6-2010, we dismissed the above appeal in limine.