This is a petition for revision against the order dated 7-1-69 passed by the' Civil Judge, Ist Class, Multan and the order dated 17-1-69 passed by the District Judge, Multan, refusing the prayer for issuance of a temporary injunction, to the petitioner, pending the disposal of the suit.
2. The facts, so far as relevant for the disposal of this petition, are that the petitioner joined the service of the Agricultural Development Bank of Pakistan (hereinafter called respondent No, 1) with effect from 11-5-59 as an investigation officer. On 1-1-63, he was promoted to the rank of the Senior Investigation Officer (Class II) and was confirmed in the said cadre with effect from 1-1-64.
However, by an order dated 11-12-68, purported to be passed under Regulation No, 13 of the Staff Services Regulation, which Regulations have been framed under section 39 of the Agricultural Development Bank Ordinance, 1961, the services of the petitioner were terminated on payment of three months' salary in lieu of notice.
3. The petitioner filed a suit on 14-12-68 before the Civil Judge of Multan for a declaration that the order dated 11-12-63 passed by respondent No, 1 terminating the services of the petitioner was null and void, illegal, ultra vires, mala fide and inoperative against his rights and that the petitioner continued to hold the office of Senior Investigation Officer, Agricultural Bank of Pakistan, Multan, and entitled to all emoluments and privileges attached to that office. An application under Order XXXIX, rules 1 and 2, C. P. C. was also moved for issuance of a temporary injunction against the respondents to restrain them from removing the petitioner from the service of the Agricultural Development Bank, till the determination of the above-mentioned suit.
4. An interim stay was granted to the petitioner on 19-12-68 but the same was vacated on 7-1-69.
The petitioner thereafter filed an appeal before the Additional District Judge, Multan, on 8-1-69 and an interim stay was again granted by him which was, however, subsequently vacated on 17-1-69. It seems that in view of the interim orders of stay obtained by the petitioner, he was permitted to sign the attendance register of the bank and marked his daily attendance up to 16th of January 1969.
Following the vacation of the stay granted by the Addl. District Judge a revision petition was instituted in this Court and on 20-1-69, the petition was admitted to regular hearing and a status quo order passed. The respondent submitted an application for vacation of the said order of status quo but it was directed that instead of disposing of the said application for vacation of stay it would be appropriate to dispose of the main revision petition itself.
5. Learned counsel for the petitioner, Mr. Waseem Sajjad, has contended that the learned Courts below misunderstood the case in taking the view that a declaration could not be granted to restore the employee of a statutory Corporation to office. He submits that the petitioner's case is that action under Regulation No, 13 being in breach of rules of natural justice the same is without jurisdiction and that being so, the question of restoration of office does not arise because the office was in law never vacated. The order removing the petitioner from service, it is contended, being without jurisdiction has no effect in law. The learned Courts below, it is urged, overlooked the distinction between an order which is illegal and one which is without jurisdiction. The former, it is submitted, will have the effect of removing a person from the office and, therefore, the question of restoration will arise. In the latter case, the order being without jurisdiction, the removal from service never takes effect and hence there is no need to restore the petitioner to office. The petitioner's plea, it is urged, was for a declaration that the order dated 11-12-68 is without jurisdiction.
6. It was also argued by the learned counsel for petitioner that the Courts below failed to appreciate the distinction between Constitutional guarantees which have been held to be unavailable to the employees of statutory corporations by the pronouncements of the Supreme Court, referred to in the orders passed by the Courts below, and the statutory guarantees available to an employee of a statutory Corporation. It is argued that in the ruling given in the matter of Chairman, East Pakistan Industrial Development Corporation v. Rustam Ali wherein constitutional guarantees were not held to be available to employees of statutory Corporations, cannot be made applicable to the present case as the prayer in that case was confined only to the issuance of a writ of mandamus seeking restoration of the petitioner in that case to the office he had held previously whereas the present is a case for a declaration in the nature of certiorari and is, therefore, distinguishable. It is next argued, on the basis of University of Dacca v. Zakir Ahmad that rules of natural justice must be read into every statute unless a specific bar has been created by the statute itself in this regard, which in the instant case did not exist, and as such the order terminating the petitioner's services was contrary to rules of natural justice.
It is also stated that two Writ Petitions Nos, 385/S-68 and 939/S-68 have already been admitted to a full hearing to examine the aforesaid contentions. It is submitted that this last circumstance alone shows that there is prima facie a case in favour of the petitioner and that the contentions urged by him are arguable. It is submitted that if the petitioner can make out arguable case a temporary injunction could issue. In this connection reliance is placed on Mrs. Parveen Begum v.
Raja Muhammad Sarwar Khan , Mansur Ahmad v. Kalipada Chattopadhya and Muhammad Azeem etc. v. Municipal Committee, Montgomery .
7. Learned counsel for the respondent has relied upon the rulings cited by the learned Courts below to show that there is no prima facie case even in favour of the petitioner. It is also urged that petitioner is no longer in the service of the Bank as is evident from the admission made by him in para. 5 and para. 8 of the plaint, which show that his services stand terminated. It is urged that in1 2 3 4 5 the notices issued by him to the Bank the petitioner prayed that he should be allowed to resume his duties and that the law was clear that in a case, such as that of the petitioner, the only remedy lies in a suit for damages for breach of a contractual liability and not for a declaration. In this connection learned counsel for the respondent urged that an employee cannot be thrust on an unwilling master and, therefore, the prayer of the petitioner for issuance of temporary injunction tantamounts to re-instatement and restoration to office from which he stands removed.
8. As noticed above already, the petitioner was allowed to mark the attendance register from 13th December 1968 to 16th January 1969 and in one sense may be presumed to have resumed duty. On 17-1-1969 the petitioner intimated to the Manager, Agricultural Development Bank, Multan that he was proceeding to Lahore in connection with the institution of the present revision petition and a status quo order was obtained on 20th January 1969 (the 19th being Sunday). On these facts, in addition to the legal contention, it is contended that the petitioner was continuing in service on the date the status quo order was issued by this Court viz, the 20th January 1969. Although neither the factual position nor the legal contention is accepted by the respondent, the point that the petitioner was no longer in the service of the Bank on 20th January 1969, requires further investigation. Moreover, the contention raised that if the order of termination is without jurisdiction then despite the said order of termination the employee concerned is to be deemed in law to be still continuing in service, is also arguable. Therefore, if the petitioner's case on the merits be an arguable one the relief of temporary injunction cannot be denied on the ground that be is no longer in the service of the Bank.
9. On the merits I find that two writ petitions stand admitted in this Court to examine the question whether the provisions of the Regulation No, 13 whereby the services of an employee can be terminated without any reason and without issuance of any notice are not contrary to the terms of the Statute, namely the Agricultural Bank Ordinance, 1961 inasmuch as the terms thereof are to be considered as including therein the principles of natural justice including the principles that no termination of service without issuance of an opportunity to show cause against the action proposed can be taken. This aspect of the matter has yet to be considered and was not discussed in W. P. No, 305/68 decided by the High Court of West Pakistan, Peshawar, relied upon by the respondents. I consider, therefore, that petitioner has an arguable case on the merits.
10.It was submitted on behalf of the respondent that in case the petitioner is allowed to resume service in the Bank his presence therein can cause the most serious harm to the institution considering the very delicate nature of the operations performed by a Banking institution. It is argued that the inconvenience to be suffered by the petitioner will be much less if the temporary injunction is not granted, as he can be paid the entire salary for the relevant period in case of the success of his suit than would be the inconvenience caused to the Bank in allowing him to serve in the Bank during the pendency of the suit, which might ultimately fail. It is also pointed out that the petitioner is holding unauthorisedly some papers and documents belonging to the Bank which he is refusing to return on the ground that an order of status quo has been passed in his favour.
11.On the point of balance of inconvenience the submission on behalf of the petitioner is that he is a young man having a family to support and if his salary is withheld during the pendency of the suit, he and his family will be driven to dire straits and they would have no means of subsistence. It is further pointed out that the apprehension of the Bank, which he describes as unfounded, can easily be allayed if the petitioner is transferred and posted, if necessary, to some innocuous post ensuring thereby that no harm comes to the interests of the Bank. The submission of the learned counsel for the petitioner on the question of balance of inconvenience are not without merits and the petitioner cannot be refused the prayer for temporary injunction on account of the objections raised by the Bank in this behalf.
12.In view of my conclusion that the petitioner does have a prima facie case to argue, the temporary injunction prayed for should be issued in his favour. The petitioner will be entitled to draw his monthly salary during the pendency of the suit provided he furnishes security to the satisfaction of the trial Court! to the effect that he will make good the amount to be received by him in the event of an adverse decision in the suit. The temporary injunction issued in his favour does not, however, preclude the Bank to take all necessary steps to recover the documents and papers belonging to it, if indeed the same are held by the petitioner.
13. This revision petition, subject to the observations made above, is hereby allowed. PLD 1966 SC 848 PLD 1965 SC 90 PLD 1956 Kar. 521 PLD 1959 Dacca 498 PLD 1967 Lah. 218