The respondent, Muhammad Umar Malik, was employee of Muslim Commercial Bank Limited, a company incorporated under the Companies Ordinance, 1984. His services were terminated on 2- 1-1982/11-2-1982. After having unsucessfully availed of the remedies of review and appeal before the higher officers, the respondent challenged his dismissal by filing a suit for declaration. That suit was decreed by the trial Court on 3-5-1989 on the ground that the order of termination of services of the respondent had not been passed by a competent authority. The learned Additional District Judge upheld these findings and dismissed the appeal of the petitioners on 15-5-1991, who has now come to this Court by filing this revision petition.
2. It was argued by Mr. Asif Jan, Advocate learned counsel for the petitioners that the respondent was an employee of a company incorporated under the Companies Ordinance, 1984, which did not have any statutory rules of service and as such relationship between the parties was governed by the principle of master and servant. On these premises, it was urged that the respondent could not challenge the termination of his services by filing a suit for declaration nor could the Civil Court direct his reinstatement into service. According to the learned counsel, even if the termination was illegal or unlawful, the only remedy with the respondent was to sue for damages and the suit for declaration filed by him was incompetent. In support of this submission, reliance has been placed by him upon Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194), The Principal, Cadet College Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 S.0 170), the judgment of this Court in Mushtaq Piracha v. MCB (W.P. 3749/82), decided on 5-12-1983 and the judgment of the Division Bench of the Sindh High Court in Ansar-ur-Rehman v . Muslim Commercial Bank Limited (W.P. D-204/83), decided on 16th May, 1983..
3. Mr. Habibullah, Advocate the learned counsel for the respondent, did not dispute that the Muslim Commercial Bank, the petitioner herein, was a company incorporated under the Companies Ordinance, 1984, or that there were no statutory rules of service of its employees. He, however, argued with vehemence that the recent trend of judicial pronouncements is that even in matters, which are discretionary in nature, the order passed by an authority can be struck down if the discretion is shown to have been exercised arbitrarily, whimsical or in an unjust manner. According to the learned counsel, there was no reason as to why this principle should not be extended to service matters. He sought to rely upon Chairman, Regional Transport Authority, Rawalpindi v.
Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14, Mrs. M.N. Arshad and others v. Miss Naeema Khan and other PLD 1990 SC 612 and Salahuddin and 2 others N. Frontier Sugar Mills & Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 214.
4. It was next argued by the learned counsel that as the order of termination of services of the respondent was wholly void and without jurisdiction, this Court should refrain from exercising its revisional jurisdiction in favour of the petitioners, as the effect of setting aside the impugned decrees would be to restore an order which is nullity in the eyes of law. According to the learned counsel, as the Courts below have done substantial justice by declaring the order to be without lawful authority, no interference should be made by this Court in the exercise of its revisional jurisdiction, which was discretionary in nature. In support of this contention, he cited Mst. Mussarrat Sultana v. Bashir Ahmad and another (PLD 1986 Lahore 189), Ghulam Qadir and others v. The State (PLD 1959 (W.P.) Lahore 753), Muhammad Sadiq v. Secretary, Education, Government of Balochistan and others (1979 SCMR 139) and Muhammad Hassan and 4 others v. Deputy Commissioner, Nawabshah and 3 others (1979 SCMR 334).
5. Admittedly, the Muslim Commercial Bank Limited, petitioner herein, is a company, which was incorporated as a public company under the Companies Act, 1913, now repealed by the Companies Ordinance, 1984. Its employees do not have the status of civil servants nor even that of employees of a statutory corporation. They cannot, therefore, claim protection available to the person in the employment of the Government or the Corporation set up under a Statute. Learned counsel for the respondent is also not in a position to dispute that there are no statutory rules of service governing the conditions of employees of the Muslim Commercial Bank Limited. The rules relied upon by A the respondent, namely, Muslim Commercial Bank Limited (Staff) Service Rules, 1981, have been framed by its Executive Board under Article 118 of the memorandum and articles of association and not in exercise of any statutory power. In these circumstances, there is no escape from the conclusion that the services of the respondent were governed by the principle of master and servant.
6. It is axiomatic that in such cases the termination of services, even if illegal, cannot be challenged by filing a suit for declaration nor can it be set aside by the Civil Court. This proposition is too well- established to need any authority but reference may be made to Muhammad Yousaf Shah v.
Pakistan International Airlines Corporation (PLD 1991 SC 224) which was followed Cadet College Kohat's case (PLD 1984 SC 170).
7. It may also be noticed that in Muhammad Yousaf Shah's case (supra) (PLD 1991 SC 224), the dictum of a Division Bench of this Court in A. Goerge v. Pakistan International Airlines Corporation (PLD 1971 Lah. 748), the facts of which appear to be on all fours with the present case, was approved.
8. It may not be out of place to mention here that even in cases of employees of statutory corporations, the consistent view is that in the absence of any statutory rules of service, the validity of the order of termination cannot be challenged by the employee. This principle applies with greater force in case of employment under a company incorporated under the Companies Ordinance, 1984. As already mentioned, it is not disputed by the learned counsel for the respondent that the Muslim Commercial Bank Limited (Staff) Service Rules, 1981 do not have the status of statutory rules, which is even otherwise apparent, as these rules have not been framed in the exercise of any statutory powers but by the Executive Board of the petitioners company under the memorandum and articles of association. This aspect of the matter need not be dialated upon any further in view of the pronouncement by the Division Bench of this Court in A. Goerge's case PLD 1971 Lah. 748, where the effect of similar rules framed by PIA was considered and discussed in detail.
The view taken in the aforesaid case was approved by the Supreme Court in Muhammad Yousaf Shah's case (PLD 1991 S.C. 224). Reference may also be made to Sheikh Rashid v. United Bank Ltd.
(1989 PLC 276 at p.278). Inayatullah v. United Bank Ltd. (1988 CLC Karachi 1146 at 1453-A (D.B.)) and Mumtaz Javed v. P.N.S.C. (1988 PLC (C.S.) 705 at pp.708, 711, 716 and 717) and also to the decision of this Court in Mushtaq Piracha v. MCB (W.P. 3749/82), decided on 5-12-1983, which was a case relating to an employee of Muslim Commercial Bank Limited. A Constitutional petition filed by him in that case was dismissed on the ground that his terms of employment were regulated by the principle of master and servant and he cannot challenge his termination.
9. It needs to be stated that in the event of wrongful termination of services of his employment the aggrieved employee is not remedyless. It has been pointed out in the precedents referred to above in such cases, his remedy lies in suing for damages where he can claim suitable compensation, if the order of the termination is illegal or unlawful. He cannot, however, be reinstated into service.
10. The argument of the learned counsel for the respondent that even discretionary orders can be challenged and struck down if the discretion is shown to have been exercised arbitrarily or unlawfully is correct, but it has hardly any relevancy in the context of the present controversy. The principle, on which the Courts have refused to set aside the order of termination of services of whose terms of employment are not governed by a Statute or the statutory rules is that the services of servant cannot be thrust upon an unwilling master, who has the right to say that notwithstanding the contract of employment, he does not wish to retain the services of his employee. This principle finds support from the provision of section 21 of the Specific Relief Act, 1877.
In this view of the matter, the reliance of the learned counsel for the respondent on the cases cited by him, which do not arise out of service, is not . apt.
11. Even on merits, the respondent does not have any case. The only ground, which prevailed with the Courts below for holding that the order of termination of the services of the respondent is bad in law, was that the Vice-President, who passed the order, was not authorised to do so under the rules of service and that such an order could only be passed by the Executive Vice-President as the respondent was an officer in Grade I. These findings are clearly based upon misreading of the letter of termination Ex. D2, which though issued by the Senior Vice-President shows that the decision to determination the services of the respondent was taken by the Executive Board of the bank. A perusal of the Muslim Commercial Bank Limited (Staff) Service Rules, 1981 relied upon by the respondent himself shows that the Executive Board is vested with all the powers of management and various officers specified in Appendix-A are exercising these powers as delegated by the Board. That being so clearly the Board itself was not denuded to exercise its authority and no possible exception can be taken to the termination of services of the respondent by the Board itself.
12. As regards the contention of Mr. Habibullah, Advocate the learned counsel for the respondent that substantial justice having been done by the Courts below by setting aside the order of termination, this Court should not exercise its revisional jurisdiction in favour of the petitioners company, suffice it to say that the impugned judgments run counter to the law declared by the superior Courts of the country and cannot be allowed to stand. Furthermore, the termination of services of the respondent have been set aside mainly on a technical if not hypertechnical ground that the order should have been passed by the President or the Senior Executive Vice-President. As already found, this view taken by the Courts below is infirm and not sound. There is consequently no reason as to why this Court should not remove the illegality committed by them exercising its revisional jurisdiction.
In view of what has been stated above, this petition is allowed and the judgments and decrees of both the Courts are set aside with the result that the suit filed by the respondent stands dismissed with no order as to costs.