CH. MUHAMMAD IBRAHIM ZIA, J. --- The captioned petition has arisen out of the judgment passed by the Division Bench of the High Court dated 31.1.2015, whereby the findings recorded by the Trial Court have been concurred with.
2. According to the record, precise summary of facts is that the respondent was an employee of Habib Bank Limited holding the post of Assistant Manager. In consequences of an inquiry report, he was declared by respondent No. 6 as guilty of misappropriation of Bank funds, indulgence in fraudulent activities, dishonesty and breach of trust. The petitioners declaring the respondent guilty of the alleged charges mentioned in the report, issued the punishment letter dated 27.6.2011, and finally dismissed him from service. Against the punishment order, respondent No.1 preferred an appeal/review before the concerned Bank authorities which remain unattended, hence, he filed a civil suit on 21.11.2011 challenging the act of punishment by the petitioners. On behalf of the petitioner-Bank, the suit was contested by submission of written statement in paragraph 2 of which a categoric stand has been taken that the plaintiff-respondent was found guilty of misappropriation of Bank funds, indulgence in fraudulent activities, dishonesty and breach of trust, hence, he was punished.
3. During the proceedings in the Trial Court, the objection regarding maintainability of suit was also raised. After hearing the parties, the learned Trial Court vide order dated 24.8.2012 rejected the plea of defendant-petitioners regarding the competency of suit and declared the same as maintainable. The parties produced evidence to prove the material proposition according to the issues framed in the suit. On conclusion of trial, the learned Trial Court declared the whole proceedings of punishment as void and reinstated the plaintiff-respondent into service. The appeal filed in the High Court merged into concurrent findings recorded by the Division Bench of High Court in shape of impugned judgment.
4. On behalf of the petitioner-Bank, Mir Abdul Latif Advocate, assisted by Mr. Shahid Anwar Bajwa Advocate, Supreme Court of Pakistan, only stressed the point in arguments that the civil suit is not competent in this matter. The principle of 'Master and Servant' is attracted. The Master is empowered to terminate the services of his employee/servant and against the termination of his services the only remedy available is; the suit for damages and compensation. No other remedy lies according to law. He submitted that under the provision of Section 21 of the Specific Relief Act, 1877 the suit filed by the respondent is not maintainable. There is a consensus of the superior Courts on this point that against the termination of services of an employee, the declaratory suit is not competent and the only remedy available is a suit for recovery of damages. In support of his contentions, he placed reliance on the cases reported as M. Rashid Ahmad v. National & Grindlays Bank Ltd. and another [PLD 1971 Lahore 598], Abdul Wahab and others v. HBL and others [2013 SCMR 1383], Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and two others [PLD 1961 SC 531], Obaidullah and another v. Habibullah and others [PLD 1997 -"SC 835], Muhammad Yusuf Shah vs. Pakistan International Airlines Corporation [PLD 1981 SC 224], Anwar Hussain vs. Agricultural Development Bank of Pakistan and others [PLD 1984 SC 194], Messrs Volkervam (Pakistan) Ltd. and 2 others vs. Syed Mushtaque Hussain [1982 PLC 761], Qari Yar Muhammad v. Anjuman-e-lslamia [1987 SCMR 1776] and Syed Aziz Ahmed vs. Messrs Bolan Bank Limited through President [2002 CLC 857]. It is submitted that the suit is not competent, hence, the judgments of the Courts below are not maintainable. He further submitted that an unwilling Master cannot be forced to keep an employee in the service. He half-heartedly submitted that the findings recorded by the Courts below are against law but as the suit is not maintainable hence, there is no need to discuss the other merits of the case.
5.Conversely, Syed Shahid Bahar, Advocate, the learned counsel for the respondent, strongly opposed the petition for leave to appeal on the ground that the petitioners have got no legal justification to challenge the concurrently recorded findings of the Courts below. They are estopped by their own conduct to challenge the same, as the question of incompetency of suit was decided by the Trial Court on 24.8.2012. This order has not been challenged in appeal or revision, hence, attained finality. He further submitted that this order has also not been challenged by the petitioners in appeal before the High Court. Before the High Court they have challenged the judgment of the Trial Court mainly on the basis of improper appreciation of evidence. Thus, they cannot agitate the point which has not been raised before the High Court in appeal. He submitted that even otherwise, the question of competency of suit has no substance as the Supreme Court of Azad Jammu and Kashmir in Shoukat Usman's case [2010 SCR 173] has observed that there is no bar in filing of a civil suit. It is also submitted that on the question of facts concurrent findings have been recorded by the Courts below. The petitioners failed to point out any illegality or make out any ground for grant of leave, specifically when the whole foundation of all the baseless allegation is being shattered by negation of the so called complainant. The alleged proceedings were shown to have been conducted on the complaint of the account holder, lftikhar Ahmed and the affidavits filed by Muhammad Farooq and Muhammad Aftab. All these persons during inquiry denied the lodging of any complaint or submission of the affidavits. They also appeared as witnesses before the Court and categorically deposed that neither any complaint has been filed by them nor any affidavit has been submitted in this regard. He further submitted that the whole findings of inquiry are based on the photo-stat copies which under law are not admissible in evidence. Therefore, no question of law is involved. The suit has rightly been decreed. The petitioners have failed to make out any ground for grant of leave, 'therefore, the petition for leave to appeal is liable to be dismissed.
6. I have considered the arguments of the learned counsel for the parties and also examined the record made available. On behalf of the petitioners very lengthy arguments have been advanced and during the course of arguments the only focus made was on the incompetency of the suit by application of principle of 'Master and Servant' and the provisions of Section 21 of Specific Relief Act, 1877. According to the petitioners' version as the plaintiff-respondent was employee on contract basis, thus, in case of termination of service, the remedy of declaratory suit was not available.
Under the provisions of section 21 of the Specific Relief Act, the only remedy is suit for damages. The counsel for the petitioners by referring to Section 21 of Specific Relief Act stressed that under this Statutory provision where the compensation in money is adequate relief and the Court cannot enforce the specific performance of a contract in its material terms declaratory suit is not maintainable.
7. I have given serious thought to the arguments and also carefully gone through the case-law. All the judgments referred to and relied upon in this context are mainly based upon the proposition "termination of contractual service". As discussed hereinabove according to the brief summary of the case, in my opinion, the arguments advanced on behalf of the petitioners is result of misunderstanding of proposition involved in this case. The services of plaintiff-respondent have not been terminated as a contract employee but according to the facts of the case, he has been punished for alleged offences of misappropriation of Bank funds, indulgence in fraudulent activities, dishonesty and breach of trust. This proposition does not require any other proof as not only in the inquiry report or punishment order but also in paragraph 2 of the written statement, it is petitioners' categoric stand. The inquiry concludes in the following words:--- "I therefore, found the defendant being guilty of following charges as levelled against him vide HOK Show-Cause Notice #AHVJMAB/448805, dated 02.05.2011:--- Misappropriation of bank fund Indulgence in fraudulent activities, Dishonesty and Breach of trust."
This conclusion is relied and reproduced in paragraph 2 of the written statement. Thus, according to the petitioners' own version, it is not mere a case of termination of service, rather it is a matter of imposition of punishment. The dismissal of plaintiff-respondent in consequence of punishment as being guilty of misappropriation of Bank funds, indulgence in fraudulent activities, dishonesty and breach of trust, is of far reaching effects. It is not mere an act of depriving him of Bank service or the matter confined to a 'Master and Servant', rather this punishment has also disqualified him of any other service or job and also deprived him from his fundamental right of reputation. Thus, in the light of facts of this case, all the case-law referred to by the petitioners has no relevance as it is not a mere question of termination of service or matter confined to 'Master and Servant'.
8. The defendants-petitioners have punished the person declaring him guilty of serious alleged misconduct which amounts to an offence. The question arises, whether, any company or any Master is authorized in a Constitutional state in this 21st Century to punish a servant in such a manner and then take the shelter of law that such act is immune from judicial review and only remedy lies in shape of compensation suit. According to the Constitutional provisions, it is inalienable fundamental right of every citizen to enjoy the protection of law and to be treated in accordance with law. In particular, no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law, as is mentioned in Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. The identical provision is right No. 15 guaranteed under Section 4 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. In Article 4, specifically, the term no action detrimental to reputation or property of any person shall be taken except in accordance with law, is mentioned. This Constitutional guarantee provides protection to every citizen that his reputation and property should not be dealt with except in accordance with law. In view of this Constitutionally guaranteed right, the concept of 'Master and Servant' cannot be accepted or enforced in such a manner to allow the Master to award any punishment to his servant by depriving him of his reputation, property etc., and then claim that his such act of damaging property and reputation of servant is immuned from law and judicial review. Such a concept cannot be acceptable in civilized society or in this era of human rights, dignity and liberties. The arguments advanced on behalf of the petitioners, appear to be based on misconception of treating the case as one mere of termination of service, ignoring the act of awarding of punishment by declaring the respondent guilty of misappropriation, indulgence in fraudulent activities, dishonesty and breach of trust, that too without any legal proof. As mentioned hereinabove with reference to Constitutional provisions that the reputation and property of any citizen cannot be dealt with except in accordance with law, thus, the concept that in case of 'Master and Servant', no statutory law is governing the terms and conditions of service, hence, the action of Master cannot be challenged, in my opinion, is not applicable in case where the punishment is awarded that too also declaring the person guilty of serious offences which particularly damaged his reputation. Thus, this Constitutional guarantee barred the acts of all persons and authorities taking away the reputation of any person except in accordance with law.
Therefore, for awarding punishment to any person, there must be a valid law. As according to the spirit of all the judgments referred on behalf of the petitioners there is consensus that the non- statutory bodies which are not governed by the statutory law, their acts of termination of contract employment are not governed by law, but this principle has no application according to peculiar facts of this case because without law no one can deprive any person of his reputation or punish him. The act of the defendant--petitioners is barred by the Constitution. They are not authorized to punish any person or take away the reputation of any one without law or contrary to law. Thus, the argument of the petitioners that the suit is not maintainable, in view of the peculiar facts of this case, has no substance, hence the same stands repelled. In this regard, it will be suffice to refer here the wisdom expressed by the Constitutional Courts. In the case reported as Watan Party and another v. Federation of Pakistan and others [PLD 2011 SC 997], while dealing with the scope of application of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 with reference to the previous judgment in a case reported as Sardar Farooq Ahmad Khan Leghari v. Federation of Pakistan [PLD 1999 SC 57], it has been observed as under:-- "To strengthen this 'argument one of the reasons assigned in the later part of the judgment was that in spite of suspension of enforcement of certain Fundamental Rights under clause (2) of Article 233 of the Constitution, Article 4 thereof remained fully operative, which laid down that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen whatever he may be, and of every other person for the time being within Pakistan and in particular no action detrimental to the life, liberty, body, reputation or property of any person would be taken except in accordance with law."
In another case reported as Fahad Khan and 2 others v. President, CECOS University of IT and Emerging Sciences and 2 others [2011 CLC 1], while discussing the scope of Article 4 of the Constitution of Islamic Republic of Pakistan, Peshawar High Court has held that:--- "14. The Constitutional Court cannot remain mum against excess of a statutory body just because there are no statutory rules. If there is a blatant violation of Fundamental Rights of a citizen or a breach of due process of law as protected under Article 4 of the Constitution, the High Court as a Constitutional Court under Article 199 of the Constitution has always come to the rescue of the "aggrieved" person."
In another latest judgment reported as All Pakistan Muslim League through Chief Organizer Sindh v.
Government of Sindh through Home Secretary and 3 others [2012 CLC 714], it has been observed as under:-- "6.In the first instance we would draw attention to Article 4 of the Constitution. Clause (2) of this Article is presently relevant and states that "no person shall be prevented from or be hindered in doing that which is not prohibited by law". Thus, it is the duty of the State, if it seeks to prevent any person from doing any act to show that such act is specifically prohibited by law. As noted above, the learned Additional Advocate-General relies upon the afore-mentioned sections of the Police Act in this regard." In the case reported as National Institute Cooperative Credit Corporation Ltd. and another v.
Province of Punjab/Government of Punjab, through Secretary Cooperative Department and another [PLD 1992 Lahore 462], while dealing with the scope of application of Article 4 of the Constitution, the High Court with reference to the case reported as Ghulam Zamin v. A.B. Khondkar [PLD 1965 Dacca 156], has observed as follows:--- "The argument advanced on behalf of the respondents presupposes that a vague, indefinite and wide power has been vested in the executive to invade upon the proprietary rights of citizens and that such invasion cannot be subjected to judicial scrutiny if it is claimed that it is a merely executive order. This is not the position in law. Any invasion upon the rights of citizens by anybody, no matter whether by a private individual or by a public official or body, must be justified with reference to some law of the country."
(Underlining is mine)
As according to the contents of Article 4, reputation is also an inalienable right of a citizen which is recognized by the Constitution as well as the injunctions of Islam. In this regard, reference may be made to a case reported as Muhammad Akram v. Mst. Farman Bi [PLD 1990 SC 28], wherein the Court observed as under:-- "Regarding the right of good reputation in Islam, suffice it for the purpose of this discussion, further to refer to the Last Khutaba of Prophet (P.B.U.H) wherein it has been given equal place with the right of life and property."
9. According to the admitted position, Constitutional remedy of writ petition is not available against the private Banks, whereas respondent being Assistant Manager, holding the administrative post of the officer cadre is also excluded from the definition of workman and cannot seek remedy under the Industrial Relations Ordinance. Thus, the only remaining remedy available to him is civil suit.
According to the universally accepted and applied principle, ubi jus ibi remedium, "where there is wrong there is remedy". Thus, no wrong can be left without remedy in a Constitutional society.
According to the celebrated principle of law, every wrong has a remedy. The apex Court of Pakistan in the case reported as Mst. Zahida Sattar and others v. Federation of Pakistan and others [PLD 2002 Supreme Court 408] while dealing with the proposition, has observed that:--- "There can be no cavil with the proposition that in terms of Section 9 of the Code of Civil Procedure, 1908, the Courts have jurisdiction to try all suits of a civil nature, excepting suits of which their cognizance is either expressly or impliedly barred. The well-recognized maxim "ubi jus ibi remedium" i.e. where there is a right there is a remedy can also be referred to in this behalf. By virtue of provisions of aforesaid section, Civil Courts have been conferred with the general jurisdiction to try all suits of a civil nature."
The apex Court of India, while dealing with the scope of civil suit in disciplinary proceeding which resulted into dismissal of an employee of the society, in a case reported as U.P Co-operative Cane Union Federation Ltd., and another v. Liiladhar and others {AIR 1981 SC 152] has held that Civil Court has jurisdiction.
In the case reported as Arif Majeed Malik & others v. Board of Governors, Karachi Grammar School [2004 CLC 1029], while dealing with the scope of civil suit with reference to Article 4 of the Constitution, and the scope of section 42 of the Specific Relief Act an exhaustive judgment has been delivered in which the declaratory decree of perpetual injunction has been granted in relation to a private school. The Court has observed as follows:--- "18. We have given our anxious consideration to the question involved after having noticed that both view, as to Section 42 being exhaustive or otherwise have been taken by superior Courts in the subcontinent. Possibly one reason for divergence of judicial opinion appears to be that when the Specific Relief Act was enacted in 1877 the concept of rights which could be enforced through Courts was largely confined to "status" as understood in a feudal social context or rights pertaining to property in bouillabaisse economy. With the development of jurisprudence over more than a century a large number of other rights which did not strictly speaking, relate to status of an individual or deal with tangible property came to be recognized by law and some of them in the form of guaranteed fundamental rights. The right of privacy, to carry on the business of one's choice, access to public information and, large body of social and cultural rights neither relate to status in the traditional sense nor tangible property. Keeping in view the well-settled principle that wherever there is a right there must always be a remedy to enforce it persuaded Courts</u> not to remain bound within the technicalities of section 42 for the sunrises of ranting relief.
19. Moreover, Article 4 of the Constitution guarantees to every citizen the inalienable right to be treated in accordance with law. This guarantee, which has been often described as embodying the right of law does not o erate merel a ainst the instrumentalities of the State. Article 5 stipulates obedience to the law and the Constitution as the inviolable obligations of every citizen. It would indeed be anomalous to suggest that a victim of illegal action has to go without redress because sub-Constitutional legislation does not lay down the mode for enforcing his rights. For this reason too, we were persuaded to hold that the view that the provisions of Section 42 of Specific Relief Act are not exhaustive seems to be preferable."
(Underlining is mine)
Same like in another judgment reported as Messrs N.A. Rahin & Sons (Pvt.) Ltd. v. Province of Sindh and another [2003 CLC 649], the scope of Section 42 of the Specific Relief Act and Section 9 of the Civil Procedure Code, it has been declared that even vires of law can be challenged in a civil suit."
The observation of the Court reads as follows:--- "8.I have given serious thought to the issue in question. Section 9 of the C.P.C. very clearly states that a Civil Court has jurisdiction to try all suits of civil nature unless expressly or impliedly barred.
Admittedly there is no bar either in the C.P.C. or in the Constitution with regard to filing or maintainability of a civil suit challenging the vires of law. Also at the same time challenging the vires of law would be a matter of civil nature which would come squarely within the parameters of section 9 of the C.P.C.
10.
10. The Trial Court has rightly declared the punishment order void and without authority. The learned counsel for the respondent has rightly pointed out that the question of competency of suit was resolved by the Trial Court vide order dated 24.08.2012 and this order has not been challenged by the defendant-petitioners, even specifically in memo. of appeal before the High Court or this Court. In this context, the argument of non-competency of suit is also not available.
11.The petitioners main focus is on the question of competency of the suit in view of provisions of Section 21 of Specific Relief Act. I have no cavil with this statutory provision and principle of law enunciated by the Courts. As it has been observed in this case that it is not a mere case of enforcement of contract or contractual obligations, whether they are specifically enforceable or not or whether non-performance of which compensation in money is an adequate relief, rather as discussed hereinabove that it is a matter of awarding of punishment and taking away the reputation and property of the person, which act, under the Constitutional provisions is prohibited as specifically mentioned in Article 4 of the Constitution of Islamic Republic of Pakistan and fundamental right No. 15 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Therefore, the statutory provisions of Section 21 of Specific Relief Act, 1877 are not attracted in this case.
12.So far as the merits of the case are concerned, as on behalf of the petitioners no illegality has been pointed out and only half-heartedly, it has been argued that the respondent was found guilty of misappropriation, indulgence in fraudulent activities, dishonesty and breach of trust according to evidence. It is very amazing that according to the petitioners' own produced inquiry report, the respondent has been cross-examined but he has neither been provided an opportunity of cross- examining any witness nor statement of any witness has been recorded in his presence. The inquiry report itself disclosed that it is based upon Photostat copies of affidavits of Mr. Aftab Khan and Mr. Akhlaq, account holders. Even, inquiry report has not supported the petitioners' case as mentioned in conclusion of the inquiry report in the following words:--- "I am of the firm opinion that the defendant was indulged in parallel banking and subsequent affidavit and statement of the account holder and the complainant exonerating the defendant from any wrong doings were appeared to be futile attempt to save the defendant from any disciplinary action by the bank."
(Underlining is mine)
13.The petitioners themselves have appended with the petition, the copies of the statements of the witnesses recorded in Trial Court. Mr. Aftab, appeared as a witness and clearly deposed that he has not lodged any complaint or submitted application on 14.03.201,1 nor signed any such application. Same like, lftikhar Ahmed appeared as a witness and has also not supported the version of the defendants-petitioners.
14.As according to the nature of the allegation levelled by the defendants-petitioners and the proof in the inquiry report, the reputation of the plaintiff-respondent has been taken away declaring him dishonest, fraudulent etc. The petitioners' own produced witnesses did not support this version. The petitioners own produced witness, Muhammad Asif, Operation Manager HBL, in his statement deposed:--- 15.Another witness, Muhammad Nawaz, Senior Manager, deposed that:-- {{URDU TEXT}} 14.The petitioners' own produced witnesses and employees have negated their version by declaring the plaintiff-respondent as honest, hardworking and prize winner. Thus, even on merits, the petitioners have failed to make out any valid ground, for indulgence.
Therefore, finding no force this petition for leave to appeal alongwith application for interim relief stands dismissed.