1. ' This revision is directed against the judgment of VIIth Additional District Judge, Karachi whereby he accepted the appeal filed by the respondent against the judgment and decree of Senior Civil Judge, Karachi.
2. ' The facts in brief are that the respondent was serving as Junior O.D.C. Under the applicant since 1964. It is alleged that he committed misappropriation of Rs,2,221.18 during the period commencing from 1-1-1966 to 31-5-1968. He was suspended and charge-sheeted and enquiry was conducted.
3. The Enquiry Officer came to the conclusion that it was due to carelessness and not with dishonest intentions that the over time had been drawn. The total amount paid will not be more than Rs,400.
4. The wrong payment made is very little and forms a very small fraction of the total amount. The Enquiry Officer, therefore, recommended that the respondent may be made to refund the amount wrongly paid because of his carelessness and his pay may also be reduced by two increments for a period of one year. However, his services were terminated and appeal filed against the termination was rejected. He, therefore, filed a suit for declaration and injunction and made the following prayer: -
(a) That the order of termination of service of the plaintiff by the defendant is a initio illegal, ultra vires and not binding on the plaintiff .
(b) A direction be made that the plaintiff be reinstated to his post.
5. ' The following issues were framed by the trial Court and the parties adduced evidence: ' Preliminary Issues:-
(1) Whether the present suit for declaration and injunction is not maintainable under law?
(2) Whether the relations of the defendants and plaintiff was that of Master and Servant?
(3) Whether the contract of personal service with the plaintiff is not capable of specific performance and enforceable in law?
(4) Whether the service of the plaintiff and/or contract of service has terminated? If yes, whether the defendants not willing to keep the plaintiff in their employment can be compelled in law to act otherwise?
(5) Whether the suit is barred under section 87 of the Karachi Port Trust Act?
6. ISSUES.--
(1) Whether the defendants terminated the services of the plaintiff under lawful authority and in accordance with their rules and regulations?
(2) Whether the plaintiff was given reasonable opportunity to defend himself, if yes what is its effect?
(3) Whether the appeal of the plaintiff was rejected after the due consideration?
(4) Decree?
7. ' The trial Court came to the conclusion that the relationship between the plaintiff and the defendant was that of Master and Servant and the contract of service is not capable of specific performance and enforceable in law. In these circumstances the suit for declaration and injunction is not maintainable under the law.
8. ' An appeal was filed by the respondent which was accepted. The appellate Court held that an employee of statutory body can seek declaration from a civil Court, that the termination of his service was void, wrongful and inoperative. Reliance was placed on PLD 1969 Kar.
304. It was observed in this authority that the declaration sought by the petitioner was not in the nature of enforcing a contract but merely one that her services were wrongly terminated. Though the observation made in this case helps the respondent but there are various cases where it has been held that such suit is not maintainable. In PLD 1974 SC 146 it has been observed that the constitutional safeguards available to the generality of civil servants against arbitrary dismissal or removal from service are not available to the servants of a registered company, or a statutory Corporation. The general law of Master and Servant is applicable and the only remedy available to the aggrieved servant in such cases is to sue for damages for wrongful dismissal and not a writ of mandamus or certiorari. Same view was taken in 1971 SCM R 566 and PLD 1961 SC 531.
9. ' The learned counsel for the respondents has referred to PLD 1984 SC 170 wherein it has been observed that condition of service of employees of statutory body if governed by statutory rules, any action prejudicial taken against such employees in derogation or in violation of such rules can be set aside in writ. Terms and conditions of employees if not governed by statutory rules but only by regulations, instructions or directions which institution or body in which he was employed had issued for its internal use, any violation thereof, would not, normally be enforced through writ petition.
10. No statutory rules have been framed but rules for investigation against Port Trust employees were made through the Chairman Standing Order No,
79. In this, the procedure of enquiry has been laid down There is no allegation by the respondent plaintiff that any violation these rules have been made by the applicant. Mala fide has been alleged in the plaint but that has not been established through any evidence. A In the absence of any allegation about the violation of any rules the suit of the plaintiff was not maintainable and the only remedy for the plaintiff/respondent was to claim damages against the applicant.
11. ' The revision petition is, therefore, accepted and the order of the first Appellate Court is set aside and that of the trial Court is restored.
12. ' In the circumstances of the case there would be no order as to costs.