AJMAL MIAN, J.---By this common order we intend to dispose of the above five petitions which are directed against interlocutory orders dated 20-9-1997 passed by a learned Single Judge of the Lahore High Court and dated 20-10-1997 passed by a Full Bench of three learned Judges, suspending the operation of the impugned orders of suspension.
2. The brief facts are that the respondents are employees of the petitioner i.e, Habib Bank Limited., hereinafter referred to as the bank. The bank has introduced Golden Handshake Package, whereunder it resolved to give option to certain number of its employees to leave the service on receipt of cash amount of compensation specified in the package for the various categories of the employees. It appears that the bank served suspension orders dated 18-9-1997, except that in C.P.L.A. No,1325-L of 1997, the date of the suspension order is 13-9-1997. Against the above suspension orders the respondents filed writ petitions in the Lahore High Court, which were placed before a learned Single Judge, who while asking the bank to file parawise comments, suspended the operation of the aforesaid suspension orders. The bank filed an application for recalling of the aforementioned orders. The matter was taken up by a Full Bench of the High Court comprising three learned Judges, which fixed the hearing of the above cases on 10-11-1997 and in the meantime maintained the interim orders. The bank has, therefore, filed the present petitions for leave to appeal.
3. Mr. Fazal-i-Hussain, learned Advocate Supreme Court appearing for the petitioner, has contended as follows:--
(i) That the writ petitions before the High Court were not maintainable in view of newly added section 2-A in the Service Tribunals Act, 1974, as the same were barred by Article 212 of the Constitution.
(ii) That even otherwise the relationship between the bank and the respondents was that of master and servant and, therefore, no writ petition could have been entertained in the absence of violation of any statutory rules.
(iii) That, in any case, the suspension orders under which the respondents were entitled to receive full salary and other fringe benefits, could not have been suspended as consistently held by this Court.
On the other hand, Syed Jamshed Ali, learned Advocate Supreme Court appearing for respondent in the above first petition, has submitted that the suspension order was passed by the Regional Chief Executive of the bank, who was equivalent in rank with the respondent, and, therefore, prima faice the order was void.
To this submission, Mr. Fazal-i-Hussain has submitted that with the approval of the competent authority, the suspension order was issued by the Regional Chief Executive.
Syed Jamshed Ali, learned Advocate Supreme Court for the respondent, has further contended that the old view that a suspension order cannot be suspended through an interlocutory order, no longer holds good and that the Courts' trend is to interfere with such orders as well.
Khawaja Haris Ahmed, learned Advocate Supreme Court appearing for respondent No,1 in C.P.L.A.
No,1323-L of 1997, has pointed out that the said respondent was awarded certain amount of salary on 6-6-1997 on account of his good performance and he was due to retire on 25-2-1998. The above respondent was on L.P.R. When the aforesaid suspension order was served. His further submission was that as the above respondent opted for the Golden Handshake Package, he has been mala fidely served with the suspension order.
4. We would not like to express our views on the question of maintainability of the above writ petitions. The only question in issue is, as to whether the High Court was justified in suspending the suspension orders. Before dealing with the aforesaid question, we may observe that this Court, being the apex Court, generally does not interfere with an interlocutory order passed by competent Courts but if the same is arbitrary or capricious or against the well-settled proposition of law, this Court is bound to interfere with the same in order to obviate miscarriage of justice. We may further observe that the principle that non-interference in interlocutory orders of the Courts below by this Court is a matter of rule and interference is an exception, seems to be a sound principle subject to what has been observed earlier. In this behalf reference may be made to a recent judgment of this Court of a Bench comprising Acting Chief Justice and two companion Judges in the case of Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v.
Muhammad Zaman Khan and others (1997 SCMR 1508). In the above report this Court set aside an interim order whereby the order of termination of service was suspended. The relevant portion of the same reads as under:--
12. In the present case as stated hereinabove, pursuant to the notification of termination of services of the respondents, the respondents handed over the charge of their offices though, according to them, under protest. Admittedly, they were not in office for several months when they filed their aforementioned writ petitions and, therefore, the learned Judge in chambers could not have created a new situation by suspending the termination orders. In other words, he could not have rein ducted the respondents into service before the disposal of their writ petitions. We are, therefore, inclined to hold that the impugned interlocutory orders are not sustainable in law.
13. The above petitions are converted into appeals; the aforementioned interlocutory orders and the orders confirming the same are set aside. However, since the period of three years will expire on 7-7-1997 and 11-7-1997, the High Court may dispose of the main writ petitions before 7-7-1997, as purely a point of law is involved in them. The above appeals stand disposed of in the above terms, with no order as to costs."
5. Mr. Fazal-i-Hussain has referred to the following cases:--
(i) Mian Muhammad Hayat v. Province of West Pakistan (PLD 1964 SC 321); in which this Court while dismissing an appeal filed by a civil servant against the order of erstwhile High Court of West Pakistan declining to suspend the suspension order, repelled the contention that diminution of remuneration during the suspension period constituted as penalty. Cornelius, C.J. Made the following observations in this behalf:-- I am unable to regard the diminution of remuneration as sufficient to constitute an order of suspension as a penalty, for the simple reason that it is provided by the rules of the services, which every public employee accepts that in the event of suspension, his remuneration shall be at such a level. As to the question whether suspension is within the power of the Government, I entertain no doubt that it is within the responsibilities of the executive in respect of the public services, namely, to maintain their standards by ensuring that there are no black sheep among them, and at the same time to maintain the efficiency of the public services and the confidence of the public in those services by eliminating persons whose conduct has tended to lower standards below those required, that there should be a power to ensure the temporary severance of a member of the public service whose conduct has been such as to demand an enquiry, from the discharge of his functions, until the enquiry has been completed. The power is relatable both- to the general duty of maintaining high standards in the administration, as well as to the requirements of service management. Therefore, I can see no difficulty in supposing that the executive authority acts within the pleasure of the Governor, when it suspends a public employee from the discharge of the duties of his office, pending an enquiry into his actions."
(ii) Unreported judgment dated 16-6-1982 in the case of Federation of Pakistan v. Mazhar Ali.
In the above case this Court, while allowing the appeal of the Federation, set aside the order of the High Court whereby suspension order was suspended. This Court repelled the contention that since suspension order was not final, no appeal was competent before the Service Tribunal and thus a constitutional petition was competent, in the following terms:- The only objection in the context could be that an appeal to the Service Tribunal is competent only against final order and such a regulatory periodic order as of suspension does not qualify as final order and hence is not amenable to the jurisdiction of the Service Tribunal. Where the scheme of a law provides appeal only against the final order, the legislative intent is manifestly one of shutting out all challenges to interlocutory, interim or procedural orders, which do and could end up in an appealable final order. To hold that all such interim, procedural and interlocutory orders could, on account of such exclusion, be brought before superior Courts under Article 199 of the Constitution would not only amount to deflecting the legislative intent, but seriously impede the passing of the final order itself. An expression of such a legislative intent is found in section 9 of West Pakistan Waqf Properties Ordinance, 1961 (denial of interim relief in pending proceedings) and section 15 of the West Pakistan Urban Rent Restriction Ordinance (limitations regarding appeal to orders passed under specified sections). In two cases that came to this Court under the former law, Sayed Muhammad Ali Shah Bokhari v. Chief Administrator (1972 SCMR 297), Mumtaz Hussain alias Bhutta v. Chief Administrator of Auqaf (1976 SCMR 450), an effort to seek redress in constitutional jurisdiction was disallowed. In the present case the bar of Article 212 of the Constitution read with section 3 of the Service Tribunals Act excluded the jurisdiction of the High Court under Article 199 of the Constitution.
The other limitation on the jurisdiction under Article 199 of the Constitution is want of 'other adequate remedy'. It is clear that an order of suspension is interim in character, regulatory in effect and directed towards smooth and expeditious completion of an enquiry at the end of which the order of suspension is substituted by another/a final order with which it merges. In respect of such a final order it is impossible to hold that there is no other adequate remedy provided by law. On that view of the matter also the civil servant should be left to face the inquiry and to let it proceed to a conclusion.
We find on a survey of the facts and law that the constitutional petition filed by the respondent against his suspension and the show-cause notice was not maintainable. Accepting the appeal we set aside the judgment of the High Court and recall the writ that issued. No order as to costs:
6. On the other hand, Syed Jamshed Ali, learned Advocate Supreme Court, has referred to the case of Mrs. Anisa Rehman v. P.I.A.C. And another (1994 SCMR 2232), in which this Court has inter alia held that though in P.I.A.C. There were no statutory rules but since the petitioner was demoted to a lower grade without issuing a show-cause notice and without hearing her, the same was violative of the maxim audi alteram partem and because of that the order was vitiated. However, at the same time it was observed in the above report that "The effect of the application of the master and servant rule is that an employee of a Corporation in the absence of violation of law or any statutory rule cannot press into service Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service, his remedy for wrongful dismissal is to claim damages". In other words, the well-settled proposition of law that in the case of an employee of a Corporation the relationship is that of master and servant as enunciated, inter alia, in the following cases was not deviated:--
(i) Lt.-Col. Shujauddin Ahmad v. Oil and Gas Development Corporation (1971 SCMR 566);
(ii) Chairman of East Pakistan Development Corporation v. Rustam Ali (PLD 1966 SC 848);
(iii) Lahore Central Cooperative Bank Limited v. Pir Saifullah Shah (PLD 1959 SC (Pak.) 210);
(iv) Zainul Abedin v. Multan Central Cooperative Bank Limited (PLD 1966 SC 445);
(v) Shahid Khalil v. P.I.A.C., Karachi (1971 SCMR 568);
(vi) A. George v. Pakistan International Airlines Corporation (PLD 1971 Lah. 748);
(vii) R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146);
(viii) Muhammad Yousaf Shah v. Pakistan International Airlines Corporation (PLD 1981 SC 224);
(ix) Chairman, WAPDA and 2 others v. Syed Jamil Ahmed (1993 SCMR 346);
(x) Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. Through its President, Karachi and 2 others (1995 SCMR 453).
7. The ratio of the judgment in the case of Mrs. Anisa Rehman (supra) is that a Corporation cannot demote its employee to a lower grade without hearing him/her before passing demotion order. It has not dealt with the question of termination of services or suspension order.
8. Syed Jamshed Ali has also referred to the case of P.R. Nayak, Appellant v. Union of India, Respondent (AIR 1972 SC 554), in which the Indian Supreme Court by a majority judgment allowed the appeal of a civil servant and quashed the suspension order. The above case has no application. The question in issue before us is, as to whether a suspension order can be suspended through an interlocutory order which was not an issue in the above report.
8-A. We may point out that in the case of Mian Muhammad Hayat (supra) under the relevant rules, the civil servant was not entitled to receive the full salary during the suspension period but in spite of that Cornelius, C.J. In the above-quoted extract held that diminution of remuneration is not sufficient to constitute an order of suspension as a penalty. Whereas in the case in hand, the respondents are entitled to the full salary and other fringe benefits during the suspension period. In other words, they are not placed in any disadvantageous position as to the monetary gain is concerned.
9. The case of the respondent in C.P.L.A. No,1323-L of 1997, namely, Habib H. Mirza seems to be distinguishable from the other four petitions for leave to appeal inasmuch as in the above petition, the respondent had already availed of L.P.R. And, therefore, it is not understandable as to why the suspension order was served. However, Mr. Fazal-i-Hussain submitted that the above order was served as the bank wanted to initiate disciplinary proceedings against the above respondent.
10. Be that as it may, the above suspension order has not in any way adversely affected the above respondent in C.P.L.A. No,1323-L of 1997 as he would be getting the full salary and other fringe benefits. In any case, in the above case also the question is, as to whether a suspension order can be suspended through an interlocutory order. In our view, the High Court was not justified in suspending the above suspension orders in view of the aforesaid judgments of this Court. The case in hand falls within the exception and as enunciated in the case of Islamic Republic of Pakistan through Secretary, Establishment Division (supra) as the orders of suspending the suspension orders have been passed contrary to law declared by this Court in the above two judgments. We, therefore, without expressing on the merits of the above writ petitions, would grant leave to consider, as to whether the High Court was justified in suspending the above suspension orders.
Leave is, accordingly, granted. The operation of the impugned interlocutory orders of the High Court is suspended. However, it is made clear that it will be open to the bank to offer to the respondents above Golden Handshake Package, who would be free to accept the same.
11. The appeals arising out of the above petitions may be listed for hearing at an early date. The High Court may hear the parties on the question of maintainability of the writ petitions and may finalise the aforesaid writ petitions expeditiously preferably within two months.
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