' This petition for leave to appeal is addressed against the judgment of a learned Single Judge of the High Court dated 28-11-1984 whereby the petitioner's constitutional writ under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, in challenging the action of the Chairman, Azad Kashmir Logging and Sawmill Corporation (hereinafter to be referred as AKLASC) for terminating his services vide order dated 27-7-1981 and that of the Board of Directors AKLASC dated 5-4-1982 in rejecting his appeal which was moved to annul the order of his termination of service, was disallowed.
2. The following is the background of the controversy : The petitioner was employed as Deputy Forest Manager in AKLASC, Mirpur, and was posted as Sales Officer at Sale Depot Rawat. He applied for two days casual leave w,e,f, 16-6-1981 but, according to him, kidney trouble could not allow him to join his duty and he had to apply for extension of casual leave for two weeks more and even after the termination of this period he continued to be ill. He was thus constrained to apply for extension of leave. But instead of granting the leave applied for he received an order of termination of his service signed by Secretary AKLASC dated 27-7-1981. Appeal against the order of termination of his service before the Board of Directors of AKLASC was also dismissed by the Chairman on 5-4- 1982. As stated earlier the High Court even could not be persuaded to accept the writ which was disallowed on 28-11-1984. Hence this petition for leave to appeal to assail the said judgment of the High Court.
3. I have heard the learned counsel for the parties. In support of the petition Mr. Basharat Ahmed Sheikh, the learned counsel for the petitioner, maintained :-
(i) that the impugned order of termination of the service of the petitioner has been made without giving him an opportunity of being heard and this fact, being violative of the principle of audi alteram partem, makes the order a nullity ;
(ii) that under section 12 of the Azad Kashmir Logging and Sawmill Corporation Employees Services Rules, 1977, the services of an employee of the AKLASC can only be terminated by the competent authority for good and sufficient reasons to be recorded in writing and as the order of the termination of the service in the present case does not show any reason for the termination of service, the order being bad is to be recalled ; and
(iii) that the appeal moved before the Board of Directors could not validly be disposed of by the Chairman AKLASC.
4. On behalf of the respondents, Agha Ashiq Hussain countered Mr. Sheikh and argued :-
(i) that the termination of service of the petitioner was validly made and no illegality had been committed by the respondents as under clause (6) of the appointment order the appointment of the petitioner was purely temporary and was liable to be terminated at any time on one month's notice or pay in lieu thereof on either side without assigning any reasons. The petitioner, the learned counsel maintained, was bound by this condition of his appointment and if the respondent No, 1 terminated his service on the above condition of the appointment of the petitioner, the order is absolutely valid and cannot be called in question in invoking the constitutional jurisdiction of the High Court ;
(ii) that the appeal of the petitioner was validly disposed of by a competent authority ; and
(iii) that the employees of the AKLASC, a Corporation, do not have constitutional protection under the provisions of Constitution Act, 1974, and therefore, even if the grievance of the petitioner listed under (i) and (ii) above is considered to be correct, his remedy lay by way of claiming damages etc. And not by invoking the extraordinary writ jurisdiction of the High Court.
5. I have given my considered thought to the arguments advanced at the bar and am of the view that even if the grievance of the petitioner is genuine, the relevant orders of the termination of the service and rejection of the appeal could not be called in question by the petitioner by invoking the writ jurisdiction of the High Court. The law is settled A that the writ of Mandamus will be allowed to compel the restoration of a person to his office provided the office is of public nature and not for the restoration of any and every kind of office. The office held by the petitioner as Deputy Forest Manager of the AKLASC does not fall within any of the categories of the public nature. In Lahore Central Co-operative Bank Ltd. v. Pir Saif Ullah Shah (1), it was clearly laid down that a writ was not a proper remedy in case of wrongful dismissal of a co-operative bank employee. In this case the passage in paragraph 162 of the Halsbury's Laws of England was quoted with approval and it was observed :- "The superior Courts in England have not found it possible to extend the scope of Mandamus to restoration to office in private corporations. All the offices mentioned in the list contained in the quotation above appear to be of a public nature and to have a quality which is entirely foreign to that belonging to the post of Commercial Manager in a Co-operative Bank. That post was clearly of a contractual nature, falling within the category of employment, and having nothing of the true character of a statutory or corporate office."
' In the case Pakistan v. Mehrajuddin (2), it was pointed out that "in the absence of proof that any statutory duty was involved or that any legal right was being enforced or that the performance of a public duty was being claimed it is clear that a Mandamus could not have been issued consistently with relevant practice and precedent".
6. Again in Faiz Ahmad v. Registrar, Co-operative Societies, West Pakistan Lahore (3), it was indicated that a prayer for a writ of Mandamus would be wholly misconceived for the restoration to an office of a clerk under a Co-operative Bank. In this case argument had also been advanced to the effect that since the Bank concerned had adopted the Government Service Rules, the constitutional guarantees that were given to the Government servants became also available to the employees of the Co-operative Bank, but this argument was repelled and it was held that this was wholly erroneous assumption, for the civil service rules were applicable to the employees of such bank "not by virtue of any statutory provision but purely by the adoption thereof under the bye-laws of the Co-operative 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 to hold his office in accordance with them nor did the said rules automatically extend the protection given to a Government servant under the constitutional provisions." It was thus found that the writ was not a proper remedy for the recovery of the sums alleged to have been wrongfully
(1) PLD 1959 SC (Pak.) 210 (2) PLD 1958 SC (Pak.) 147
(3) PLD 1962 SC 315 deducted from the appellant's salary, for, a Mandamus does not lie to enforce an obligation for payment of money arising merely under a personal contract between private parties.
7. The above aspect unfortunately was entirely overlooked by the High Court. It is not controverted that the petitioner is an employee of a corporation. He thus cannot claim for himself the status of a "civil servant" and as such the relationship between him and the corporation . Was to be regulated entirely by law of master and servant and constitutional safeguards available to the generality of "civil servants" will not be available to him. Therefore, even if it be assumed for the sake of arguments that termination of the service of the petitioner was not valid, then his remedy is to sue for damages for wrongful dismissal and not for a declaration by invoking the writ jurisdiction of the High Court. Gulf Steamship Company Ltd. v. Dilwash Balooch (1), may be quoted with approval on the point. That was a case of an employee of a company incorporated under the Companies Act, 1913, who was wrongfully discharged from service, and who sued for a declaration as is done in the instant case. Waheed-ud-Din Ahmad, J. (as he then was) applied general principle regulating the relationship of master and servant to that case and after a review of the case law bearing on the point came to the conclusion that the wrongful discharge from service of Dilwash Balooch under a contract providing for one month's notice for discharge would only entitle him to pay for the period of notice plus damages.
8. The same principle is deducible from Messrs Malik and Haq v. Muhammad Shamshul Islam Chaudhry (2). It was a case of an employee of a private firm. Relief for a declaration for wrongful dismissal was also refused to a municipal employee in a case reported as Muhammad Shaft v.
Municipal Committee, Murree (3). In this case it was also held, inter alia, that the safeguards provided in section 240 of the Government of India Act, 1935, were not available to a municipal employee. Similarly, in a case where there is a contract between a master and servant (as the present case is) a breach of contract can give rise to only two reliefs : damage or specific performance. If specific performance be barred the only relief available is damages. Therefore, when a master in breach of his contract refused to employ the servant the only right that survives, to the servants is the right to damages and not to invoke the extraordinary writ jurisdiction of the High Court. I may quote the following authorities which approve this view point :-
(1) Messrs Malik and Haq v. Muhammad Shamshul Islam Chaudhry PLD 1961 SC 531.
(2) Zainul Abidin v. Multan Central Co-operative Bank Ltd. Multan PLD 1966 SC 445.
(3) Pakistan Refugee and Rehabilitation Finance Corporation, Lahore and another v. Syed Karainat Husain PLD 1966 (W. P.) Lah.
442.
9. I am also of the view that the petitioner being a temporary and not a permanent employee of the AKLASC, the action of termination of his service taken in accordance with the appointment order cannot be challenged in invoking extraordinary writ jurisdiction of the High Court. A temporary employee has no cause of action if his services are terminated
(1) PLD 1962 Kar. 899 (2) PLD 1961 SC 531
(3) PLD 1953 Lab. 163 in conformity with the terms of his agreement incorporated in the appointment order. It may be observed here that the petitioner was given one D month's pay as stipulated under clause (6) of his appointment order. I am fortified in my view in a case reported as The Federation of Pakistan v.
Mrs. A. V. Isaacs (1). In this case Muhammad Munir, C. J. (as he then was) speaking for the Court observed that "a temporary employee has no cause of action if his services are terminated in conformity with the terms of his agreement.
10. A case identical in feature and facts came for consideration before the Supreme Court of Pakistan which is reported as The Federation of Pakistan v. Sirajul Islam (2). In this case the services of one Sirajul Islam had been terminated without giving a show-cause notice and the High Court of West Pakistan issued a writ directing the Federation of Pakistan to afford Sirajul Islam an opportunity of showing cause against his removal from public service. Sirajul Islam was appointed to the post of Technical Probationer in Radio Pakistan under the Office Memorandum, dated 1 1 th of August, 1950. The relevant terms and conditions of his service were :- "(1) He will have to undergo training for a period of six to twelve months in the first instance. Initial training will be given at the Staff Training School, Radio Pakistan Karachi ; and subsequent training at other Units of Radio Pakistan in Karachi or outside. The period of training may be extended further, if found necessary in the light of the progress shown by him.
(2) During the period of training he will be granted a fixed pay of Rs, 100 p.m. Exclusive of all allowances as may be sanctioned by the Government of Pakistan from time to time.
(3) On the successful completion of his training, and if found suitable, he will be appointed Technical Assistant in the scale of 175-10-225- EB-10-275 in a temporary capacity.
(4) His services may be terminated at any time by giving him one month's notice without cause assigned or one month s pay in lieu thereof.
(5) If he wishes to resign he will be required to give a notice in writing for a period not less than one month or in default forfeit to Government such sum not exceeding his pay for one month.
(6)
(7)
He should clearly understand that his appointment and terms of service, including pay scale, are subject to such changes as Government of Pakistan may order from time, to time and he will have no claim for any compensation in consequence of any such changes."
(2)
11. It may be observed that clause (4) of the appointment order is identical with clause (6) of the appointment order in this case. The Supreme Court accepting the appeal moved by the Federation of Pakistan observed that termination of service could be terminated according to the conditions on which he was employed at any time by giving one month's notice without cause assigned and it was not a dismissal within the meaning of section 240 of the Government of India Act, 1935, and the affected was not entitled to any opportunity for showing cause against his termination.
(1) PLD 1956 SC (Pak.) 431 (2) PLD 1957 SC (Pak.) 77
12. For the above-stated reasons I am of the considered view that the writ petition, even if the grievances of the petitioner are considered to be correct, is not the legal remedy to be availed of.
He had the remedy to sue the relevant authorities by way of damages etc. And he is at liberty to) do so even now if he so feels advised.
For the view I have taken in the matter without adverting to the merits of the other arguments advanced by Mr. Basharat Ahmed Sheikh to the effect that the termination of the service of the petitioner was illegal ; and F that he was being removed for no valid reason ; and that his appeal had not also been disposed of by the competent authority, I find little force in this petition for leave to appeal which accordingly stands refused.