MUHAMMAD NAWAZ ABBASI, J.- The petitioner was employed as General Manager in Pakistan State Oil a public limited company, established under the Marketing of Petroleum Products (Federal Control) Act, 1974, controlled by the Government of Pakistan through Ministry of Petroleum and Natural Resources. Initially, the petitioner joined Pakistan State Oil Company as Management Trainee on 3-3-1975 and having confirmed as regular employee thereof was appointed as District Sales Officer in Group VII with effect from 6-5-1976 and thereafter was promoted in Group-II w.e.f.
13-9-1990.
2. The Board of Management consisting upon seven Directors, namely. Managing Directors, P.S.O., Parco, N.R.L., Director General Oil, F.A. Ministry of Petroleum and Managing Director, I.C.P. Under- the Chairmanship of the concerned Minister, constituted under section 7 of Marketing of Petroleum Products (Federal Control) Act, 1974 (hereinafter to be read as Act XVII of 1974), promoted the petitioner in Group-I and appointed him as General Manager vide order dated 24-8-1996.
Subsequently, the Managing Director of the Company, respondent No. 3, without disclosing any reason demoting the petitioner through an order dated 2-2-1997 transferred him to Karachi.
Being aggrieved of the demotion order, petitioner questioned the validity thereof through a civil suit and pleading the personal malice of respondent No. 3 against him stated that during the Caretaker Government of Mr. Balakh Sher Mazari. An inquiry was initiated against the petitioner, but the allegations having not proved, he was exonerated, and two complainants categorically stated before the Inquiry Officer that the complaint was lodged against him at the instance of respondent No. 3, but pending disposal of the same, respondent No. 3 terminated his secrecies from the employment of Pakistan State Oil vide order dated 20-2- 1997. The petitioner challenging the legality of termination of his service through this Constitutional petition assailed the impugned order inter alia on7 the ground firstly that respondent No. 3 due to personal reasons and having malice against him, passed the impugned order without notice in violation of the principle of audi- alteram partem, and. Secondly, that respondent No. 3 being not competent to, terminate the services of the petitioner and pass the impugned order, the same was coram-non-judice.
3. Respondents No., 2 and 3 in their written statement to the writ petition raising the preliminary objection to the invocation of Constitutional jurisdiction in the matter asserted that services of the petitioner with Pakistan State Oil, a public limited company established under Companies Ordinance, 1984, is not regulate by any statutory rules but being governed by principle of Master and Servant, the Constitution is not maintainable. While commenting upon the requirement of notice, the stand taken was that contract of service of the petitioner could be terminated at any time with payment of one month salary and that respondent No. 3 being the competent authority has validly passed the impugned order.
4. The confirmation of the petitioner as regular employee of the company was made on the terms incorporated in the letter dated 5-3-1976, reproduced as under: "Further to our letter MST PFT(TAK) dated 18-2-1975 we are pleased to confirm you in your employment with the Company on regular basis with effect from lst March. 1976 on the fallowing terms and conditions:
(1) Effective 1-3-1976 you will be a confirmed permanent employee of the Company. If you wish to lease service, you will be required to give one month's notice or surrender one month's pay. The company will be it liberty to dispense with your services by giving one month's notice or one month's pay in lieu thereof. Such notice will not be necessary if your services are terminated by the Company for disciplinary reasons.
(2) Your salary will be Rs. 650/- per month (Rupees six hundred and fifty only) per month.
(3) You will be paid House Rent Allowance at 25% of your salary' which works out to Rs. 162.50/- per month on your present salary.
(4) Your will also be paid Special Cost of Living Allowance at 10% of your salary, as per Employees Cost of Living (Relief) Act 1974, which works out. To Rs. 65/- per month on your present salary. This will be in addition to Rs. 35/- per month Cost of Living Allowance payable to you under the Employees Cost of Living (Relief) Act, 1973. You will also be paid Rs. 25/- per month in accordance with the provisions of the Employees' Cost of living (Relief) (Amendment) Act, 1975.
(5) Subsequent increase in your salary will be at the sole discretion of the Company
(6) The Company has a Car Policy applicable to its confirmed employees whose mobility is essential as per their job assignment. Until such time that you are not covered under Company's Car Polity you will be paid Conveyance Allowance at Rs.. 100/- per month.
(7) You will be entitled for membership to the Company's Provident Fund Scheme upon completion of one years' continuous service as per Company's Rules and Regulations. When eligible you will be entitled to contribute to the Staff Provident Fund at 7% of your salary as per Staff Provident Fund Rules and Regulations.
(8) You will be eligible to leave and other benefits in accordance with the current policies of the Company, as may be amended from time to time, and as applicable to your assignment.
(9) During the course of your employment, you are liable to be transferred to any location of this Company's operations in Pakistan or on an assignment in any suitable capacity to be determined by the Company with any other affiliated Company, anywhere in Pakistan.
(10) This letter supersedes letter MST.-'PF/TCTAK) dated 18-2-1975 giving terms and conditions of your assignment as Management- Trainee.
(11) You will treat the contents of this letter as PRIVATE AND CONFIDENTIAL, and any other confidential information that you may possess by virtue of your employment, shall be treated by you as such and shall not be disclosed without proper authority to any person.
Please signify your acceptance of terms and conditions set forth above, by signing the duplicate of this letter."
The order dated 24-8-1996 by virtue of which the petitioner was promoted in Group-I is to the following effect: "I am pleased to advise you that the appropriate authority has approved the revision of the salary scales and allowances of the management employees of Pakistan State Oil Company Ltd. The new scales and allowances shall be called hereinafter as Revised Salary' and Allowances'. Under the revision your salary and allowances have been revised with effect from lst July, 1996.
(1) Basic Salary.
Your monthly basic salary will be Rs. 19,475/- (Nineteen thousand for hundred and seventy five only.)
(2) Allowances & Pre-requisites.
(a) Cost of Living Allowance @ Rs. 25/- per month will be paid as admissible under Cost of Living Relief Act, 1970 as amended Act No. LXI of 1975.
(b) You will be paid an Entertainment Allowance @ 10% of basic salary subject to a maximum of Rs.
1000/- per month.
(c) You will be entitled to Leave Fare Assistance @ Rs. 40.073/- per annum. You can accumulate this allowance upto two years.
(d) You will be provided with a Company owned Staff Car maintained by the Company.
(e) You will be reimbursed with expenses on gasoline upto a maximum of 350 liters per month.
(f) Upto Rs. 2,385/- per month will be paid to you as reimbursement of the Driver's salary who will be on your personal payroll.
(g) Your will be entitled to Company leased accommodation upto a maximum rental of Rs. 9,680/- per month.
(h) You will be reimbursed with Rs. 2,385/- per month for engaging Chowkidar, mali and Sweeper at the Company leased accommodation.
(i) The Company will pay the actual expenses on utilities on presentation of the monthly bills pertaining to the Company leased accommodations as follows:
(i) Actual bills of domestic electricity upto a maximum of 1,350 units per month.
(ii) Actual bills of domestic telephone upto a maximum of 900 calls per month.
(iii) Actual expenses on domestic gas, water and conservancy.
Travel Allowances: You will be entitled to reimbursement of travelling expenses as per Company's Business Travel Policy. You are entitled to the following expenses: - ((Table))
Mod# of Travel: By Air (club class) or by Rail (lst Class acc).
Hotel Accommodation: Actual Hotel Bills (excluding Five Star Hotels), PSO Guest Horse at Islamabad, Lahore Karachi.
Daily allowance in lieu of (b) above: Rs.. 200/-per day.
(d) (e) #tbs
(f) 1998
(g) #the
(h) (i) #tbs
(j) Key Law Repeals
(k) #the
(l) (m) #tbs
(n) 250 C.C.
(o) #the
(p) Local Transport: Actual taxi fare for visiting places of business while on tour (full time and daily basis engagement of taxi is hot allowed.
((Table))
(4) Transfer allowances: You will be entitled to reimbursement of expenses for self, wife and children below 18 years of ago, on transfer as per Company's Staff Transfer Policy. Under this policy, you will be entitled to the following expenses: ((Table))
(a) Mode of Travel: By air (economy class) or by rail (lst class acc).
(b) Personal Effects: 1500 cft by rail or two truck loads.
(c) Packing and Forwarding: Upto Rs. 2,500/1-.
(d) Setting allowance for a period upto 15 days at new location:
(i) For employee and wife each: . Rs. 150 per day.
(ii) For children upto 18 years (each): Rs. 75 per day.
((Table))
The rest of the terms and conditions of service as conveyed to you earlier shall remain unchanged.
Your salary, terms and conditions of service being -a matter strictly between you and the Company, must be treated as Private and Confidential.
The order dated 2-2-1997 passed by respondent No. 3, whereby the petitioner was demoted in Group-II is read as under: "The competent authority has decided to examine/re-assess promotion/placements of all General Managers appointed had placed during the last three years.
As a result of careful scrutiny of the promotion given to you, it has been found that the same was wrongfully allowed.
Resultantly, the promotion granted to you vide letter dated 24th August, 1996 is hereby rescinded with immediate effect and as such you are advised to report to Sr.G.M.(R) for further assignment.
BASIC SALARY: Your monthly basic salary has been revised as Rs. 20,160/- (Rupees twenty thousand hundred and sixty only).
ALLOWANCES AND PERQUISITES:
(a) You will be entitled to Leave Fare Assistance @ Rs. 35,447/- per annum.
(b) You will be reimbursed with expenses on gasoline upto a maximum of 270 liters per month.
(c) Upto Rs. I 2210/- per month will be paid to you as reimbursement of the Driver's salary who will be on your personal payroll.
(d) You will be entitled to Company leased accommodation upto a maximum rental of Rs.. 8470/- per month.
(e) You will be reimbursed with Rs. 2210/- per month for engaging Chowkidar and Sweeper at the Company leased accommodation.
(f) The Company will pay the actual expenses on motilities on presentation of the monthly bills pertaining to the Company leased accommodation as follows:
(i) Actual bills of domestic electricity upto a maximum of 850 units per month.
(ii) Actual bills of domestic telephone upto a maximum of 550 calls per month.
(iii) Actual expenses on domestic gas, water and conservancy.
The rest of the terms and conditions of service as conveyed to you earlier \ide letter dated 24th August, 1996 shall remain unchanged. Your salary, terms and conditions of service being a matter strictly between you and the Company must be treated as Private & Confidential."
The order dated 20-2-1997 by virtue of which the petitioner has been terminated is read as under: "We regret to inform you that your services being no longer required, are hereby terminated with immediate effect on payment of one month's salary in lieu of notice as per terms and conditions of your contract of employment.
Your dues, if any, would be cleared at the earliest."
5. Leamed counsel for the petitioner raised the following points to be considered in support of this petition:
(a) That the Pakistan State Oil. a Public Limited Company, having established under Act XVII of 1974 and discharging function in relation to the affairs of the Federation is under direct control of the Federal Government. .
(b) That the Federal Government as Controlling Authority to run the affairs of the Company, appoints a governing body with the name of Board of Management with the powers to regulate the sen ices of the employees of the Company through the Regulations framed thereunder.
(e) That the petitioner being regular employee of a public limited Company controlled by the Federal Government is governed by the service regulation to be framed under the Act in question and his employment being no more contractual but statutory, the relationship of master and servant does not exist.
(d) That the termination of since without any reason and notice is mala fide and the same having done in violation of the principles of natural justice is not lawful.
(e) That the jurisdiction of a public Company discharging the affairs in connection with the Federation or government cannot claim immunity for their official action from judicial scrutiny under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
6. Leamed counsel for respondents No. 2 and 3 argued that as per terms of employment contained in the contract of service, the same could be dispensed with at any time with one month's notice or one month pay in lieu thereof and that in case of termination for disciplinary reasons, even no such notice was required. According to them, no statutory protection being available to the petitioner against dismissal from service, he cannot claim re-instatement in service through invoking the Constitutional jurisdiction of this Court.
7. The preliminary question relating to the status of respondent No. 3 under the Act XVII of 1974 and the nature of sendee of the petitioner whether contractual or statuary requires determination. For the benefit of proper appreciation of the points involved therein and to resolve the controversy, it would be appropriate to reproduce the relevant provisions of Act XVII of 4974 dealing with the subject: S.5. Power to take over management or acquire shares or business of marketing Company.
(1) The Federal Government may, if it considers necessary in the public interest so to do. By an order, -
(a) take over the management of any marketing company and, as from the date of such order, the previous management shall stand divested of such management:
(b) acquire the whole or a portion of die shares from all or any of-the shareholders of such marketing Company and as from the date of such order, the shares so acquired shall vest in the Federal Government: Provided that no order shall be made under this section for the acquisition of the shares held in a marketing Company by an institution owned or controlled by the Federal Government, including the National Investment Trust and the Investment Corporation of Pakistan or the shares held by a foreign investor: Provided further that the Federal Government may, by notification in the official Gazette exempt from acquisition shareholdings of any shareholder upto such maximum amount as may be specified in the notification.
(2) Where the Federal Government makes an order under subsection (1) for taking over the management of any marketing company, no dealings or business relating to the shares of such company shall be transacted on any stock exchange and no transfer of such shares shall be registered in the share register of the Company for a period of ninety days from the date of such order or such short period as may be notified by the Government.
5.6. Appointment of Managing Director. -
(1) Where the Federal Government has made an order under section 5 in .Respect of a Marketing Company, it may appoint a Managing Director in respect of such company.
(2) Upon the appointment of a Managing Director in respect of a Marketing Company, the administration and the management of the affairs of the company shall vest in the Managing Director, and any person or authority exercising or having the right to exercise, immediately before such appointment, any powers or functions in relation to the management of the Company shall cease to exercise or to have the right to exercise such powers or functions.
(3) The Managing Director shall-
(a) hold office during the pleasure of the Federal Government:
(b) in the discharge of his functions, be subject to such orders and such directions of the Federal Government and of the Board of s Management as the Federal Government or the Board of Management may from time to time give in writing; and
(c) receive such remuneration and be subject to such other terms and conditions of appointment and service as the Federal Government may determine.
(4) The Managing Director appointed in respect of a. Marketing Company shall exercise and perform all the powers and functions of the Board of Directors of the Company.
S.7. Board of Management.- (1) The Federal Government may set up a Board of Management to control, manage and direct the affairs of the Marketing Companies in respect of which Managing Directors have been appointed.
(2) the Board of Management shall consist of a Chairman and such number of members, not exceeding nine, as the Federal Government may appoint.
(3) The Board of Management shall be a Body Corporate having perpetual succession and a common seal, with power to acquire and hold property and shall be its name Sue and be sued.
(4) The Chairman and Members of a Board of Management shall hold office during the pleasure of the Federal Government on such terms and conditions as it may determine.
S.10. Officers, etc. Of the Board. -(1) The Board of Management may from time to time appoint such officers, servants, experts and" consultants as it may deem fit.
(2) The Board of Management may appoint one or more Committees of the Board with such composition and to perform such functions as it may determine.
S.16. Continuance in service. In case of a managed Company, all person employed in, by or for the purpose of the business of the company, by whomsoever appointed or engaged, shall continue in their respective employments on the same remuneration and other conditions of service as were applicable to them immediately before the appointment of the Managing Director in respect of that company, unless the Managing Director directs otherwise in a /particular case or their terms and conditions of service are altered in accordance with law or any rides applicable to such managed company."
The Federal Government being empowered to take management and acquire the share and business of the Company in the public interest has direct control over all affairs of Pakistan State Oil. The Managing Director, appointed by the Federal Government under Section 6 of the said Act to regulate the affairs and discharge the functions in relation to the State owned company, is required to act in strict observance of rules, policy and direction of the Federal Government and the Board of Management as the case may be.
8. Under section 10 of said Act, the appointment of the officers of the company is made by the Board of Management and their employment/service is to be governed through the regulations framed thereunder with the prior approval of the Federal Government. The person employed with the managed Company before the promulgation of tie Act in question having provided protection under section 16 thereof remained continued in service as such.
9. The Administration and Management Of the Company is vested in the Managing Director, who can also exercise the power of Board under Section 6 of the said Act and thete would be no objection to the exercise of such powers by the Managing Director, if the same are exercised in the spirit of law and public interest with prior approval and consent of Federal Government. The Mauling Director in the normal circumstances cannot in its discretion pass an order of his choice as soil authority depriving an employee from valuable right, of service. The scheme of law on the subject shows that the Management and Administration of Pakistan Strate Oil, a public company, is under the direct control of Federal Government, to be discharged through Managing Director and the Board of Management. This public Company dealing with the essential commodities in the judicium sector is definitely performing functions in relation to the affairs of Federation through the Managing Director of the Board of Management, as the case may be. It is well understood drat certain limitations are applicable in exercise of power by the holder of public offices and according to these limitations derivable from an as a result of long services of decision given by the superior Courts, a body or person in the public sector through the improper exercise of jurisdiction or authority committing irregularity in violation of the principle of natural justice effected injuriously, some justifiable right of a person is amenable to the writ jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973.
10. It was observed by late Justice A.R. Cornelius in Sheikh Maqbool Elahi and others v. Khan Abdul Rehman Khan and others (PLD 1960 SC (Pak) 266) that "Even upon the basis of narrow requirements that there should be either a statuary duty involved, or a legal right to be' enforced or the performance of a public duty which was attracted by the circumstances, it is equally possible to regard the admission of a duly qualified director of the Board of Directors of a public company such as the West Punjab Steel Corporation Limited, as being within the scope of a writ".
The contrary view of the Hon'ble Supreme Court in case Tariq Transport Co. v. Sargodha Bhera Bus Service (PLD 1958 SC (Pak) 437) is as under: "that no Constitutional safeguard being available against the arbitrary dismissal or removal from sendee to the employees of Statutory Corporations or registered Companies established by the Statutes under the control of Government are governed by the general law of master and servant and normally the remedy in such cases is to sue for damages and not to invoke the Constitutional jurisdiction of High Court."
There can be no deviation to the law laid down by the Supreme Court of Pakistan in case Zainul Abidin v. Multan Central Co-operative Bank Limited, Multan (PLD 1966 SC 445); The Chairman, East Pakistan Industrial Development Corporation Dacca and another v. Rustam Ali and another (PLD 1966 SC 848) and R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146).
11. The distinction would be drawn in purely contractual service and service under some statute in the Government owned organization and Companies. The wrongful dismissal by an authority in exercise of the powers under the general law of master and servant is not questionable in writ jurisdiction in purely contractual service but if the service of an employee of such Corporation or a public company is governed through some statute providing express or implied protection and creating some legal right, the enforceability of such right through writ jurisdiction is not barred.
The preamble of the Constitution read with Article 2-A thereof aid Chapter 2- Principles of Policy of the' Constitution demands that every person performing functions on behalf of an organization or authority of State shall be responsible to act in accordance with the principles set out in said Chapter, sofaras they relate to the functions of said Organization and Authority. However, the validity of an action is not questionable on the ground that it is not in accordance with the principle of policy but if the same is against the law and has been taken in violation of any right or excess of authority or breach of principle of natural justice would be liable to judicial review of the High Court.
An apparent unfair action having taken against the natural equity and the justice is void and inoperative. Notwithstanding, the general power of an authority attributed to law, the omnipotence of such authority over the rights of others is not absolute even under the specific provisions. Thus a positive unreasonable action of an authority' is not protected by law and the Courts exercising the power of judicial review are at liberty to reject such action. This is a settled principle that an act of an authority unjustifiably taking away a valuable right of a person or an act is against reasons and repugnant to the natural justice and common right; the law will control the oppressive acts and the same would definitely come under the express or implied powers of judicial review. The administrative decisions of the nature must receive proper attention by the Court to protect the legal rights of citizens as only the administration of law can improve the conditions of rule of law and advance the constitutionality in the system by the executive. The arbitrary and oppressive attitude and conduct of the authorities acting on behalf of State must be checked and balanced through judicial activism. The judicial interpretation of a statute is judicial legislation and the same has the binding force unless modified through a legislative measure by the Parliament. The constitutional system of check and balance must strictly watch the action of executive authorities and they should not be allowed to transgress the law and impose their will in derogation to the foundation of system.
12. In a nutshell, all authorities acting in connection with the affairs of Federation directly or under the control of Government should show all possible respect to the law of land and deal with the individual rights of the people fairly and justly. The invitation of disappointment of expectations of a common man of fair treatment can destroy his faith leading to disaster of system. Thus, unless it is established that an Executive Authority in an action against an individual or a class of persons is not answerable having some legal and constitutional protections and such authority enjoys immunity from judicial scrutiny in his action or a matter is exempted from judicial interference under constitution, so exemption can be claimed to the exercise of power of judicial review. The concept of judicial review of not allowing the fragment of powers must not confine only to the express provision but it should also impliedly reside under all matters dealing with the rights and duties under such law.
13. The answer to the question that under the provisions of Act XVII of 1974. The taking over the control of the public limited company by the Federal Government, did not change the contractual nature of the service of the employees to challenge the order of termination of service or question the authority of respondent No. 3 to pass an order of dispensation w ith the services of petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973. It will be seen that alter promulgation of Act XVII of 1974. The character and legal status of the company having changed, the employees have been provided the protection under the said Act and their senders were to be regulated through the regulations framed by the Board of Management with the prior approval of the Federal Government under Section 10 of the said Act and thus Vie contractual nature of sendee acquired the status of regular sendee. The contractual feature of the service of the petitioner having come to an end. He became a regular employee of the public limited Company to be governed by the regulations of sendee famed thereunder and can unhesitantly seek the Constitutional protection and further the action of the Managing Director, the Management Board or an individual Director in such capacity is not out of the ambit of judicial review under Article 199 of the Constitution.
14. The contention that senders of a regular employee of respondent- Company are not liable to be dispensed with by the Managing Director in his discretion without notice is not without force. As discussed earlier the power of dispensation of senders with one month's notice or with one month pay in lieu thereof in terms of initial appointment of the petitioner was not available to the Managing Director after the change in the legal status of the Company and the sen ices of the petitioner by operation of law. Therefore, the termination of senders of the petitioner simpliciter not in public interest or for administrative and disciplinary reason would not be legal. The legal position emerged in the changed situation being not controvertible, the leamed counsel for the respondents could not satisfactorily meet the contention raised on behalf of the petitioner. The letter dated 24-8-1996 states that "the remaining terms and conditions of service of the petitioner remained unchanged." Nothing has been brought on record by the respondents to plead that the conditions in question were not other than those contained in the initial appointment letter and what were other conditions. The respondents also have not placed on record any material in the nature of approval, instruction or Authority of Managing Director to remove or terminate the petitioner front employment in his discretion under the Act. It is also not pleaded that the Managing Director under the Memorandum of Association or Article of Association ot Pakistan State Oil. a public limited Company, is the sole authority to deal with the employes of all categories and is not required to obtain consent of the Management Board or the Controlling Authority in the Government. The absolute power and exclusive authority of Managing Director on the subject being not supported by any law. Rule and Instructions, he under his general power of Management and Administration cannot in his sole discretion terminate services of a regular employee saying that he is no more required.
13. The terms and conditions of service of the petitioner having changed after promulgation of Act XVII of 1974. The Managing Director did not enjoy unlimited and uncontrolled powers as head of a private company to terminate the serv ice of the petitioner as personal employee. The petitioner after confirmation was assigned and promoted to the next position on 6-5-1976 and thereafter he gained two more promotions till 1996. The respondent-company having failed to establish that the terms and conditions of service initially settled remained unchanged and that with the change of legal position and status of petitioner in- service. No change in the terms and conditions of service has taken place. The correct physical position viz-a-viz the change in terms and conditions of service taken place during the intervening period having withheld, it shall be presumed that the terms and conditions of service applicable to the petitioner are different to that being relied upon.
Thus, the legitimate inference would be that the respondent No. 3 travelling on- the wrong premises unjustifiably and without visualizing the subsequent change terminated the employment of the petitioner without acknow ledging any right as regular employee of the company simply on contract.
14. The status of the petitioner is not at par to that of the Government employees or civil servant, but his service being governed by the statute and the regulations to be framed thereunder, it would be wrong to say that he could be shaked hand at any time at the will of respondent No. 3.
There is a clear distinction bet ween the general law of master and servant-and the employment gov erned by the statue or statuary rules. In cases, where the service of an employee in a State owned organization. Company or Official Agency or Statutory Body or a Corporation is regulated through a statute, an employer is not empowered to terminate the service of an employee except in accordance with the provisions of Statute governing the subject and the procedure provided thereunder and if no specific procedure is available, then according to the procedure of general law, and principle of natural justice. The appointment of the petitioner in Group-1 having made by the Board of Management in exercise of its powers under section 7 of the Act. XVII of 1974, respondent No. 3 as Managing Director without the approval of Board or the Government was not competent to terminate the services of the petitioner. The impugned order having no sanction of order or direction interims of section 6(3)(b) of Act XVII of 1974, referred to above, has no legal consequence.
15. Undeniably, the services of the petitioner were terminated for a disciplinary' reason without disclosing the grounds and giving proper notice and opportunity for explanation in terms of principle of natural justice which in absence of express provisions is deemed as essential part of every statute and cannot be dispensed with. The provisions of Act XVII of 1974 nowhere provides dispensation of services of an employee by respondent No. 3 without notice and providing him an opportunity of being heard. The conditions of service of the petitioner as contained in the letter dated 6-5-1976 even if are taken to be still applicable to him as such, the same being in conflict to the provisions of Act XVII of 1974 and the principle enshrined in the maxim "audi alteram partem" will not be followed. This cardial principle of law is accepted invariably and is equally recognized as Golden Principle of Islamic Law. Respondent No. 3 in departure to the repeated pronouncements of the apex Court and the High Courts that no one should be condemned unheard, did not feel it necessary to issue a notice to the petitioner before taking the proposed action.
16. The termination of service of the petitioner having made in contravention to the provisions of section I6 of Act, XVII of 1974, the contention that the alternate remedy in the form of suit for damages being available to the petitioner, this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on the subject is not maintainable, has no force. As discussed above, the principle of master and servant is not adhered to as such in case of service being regulated through statute creating statutory rights and obligations and in such cases, an employee in addition to the damages^can also claim reinstatement in service, if his term of service is not confined to a fixed period. A statutory employee subject to the law, having acquired the status of a regular/confirmed employee is entitled to continue the service for full length and in case he is ousted from service in an abnormal manner and in derogation to the law, unless is specifically debarred by some law cannot be restrained from invoking the Constitutional jurisdiction? Of this Court; on the plea of relationship of master and servant. It has been held by the Hon'ble Supreme Court of Pakistan in case Anjuman-e-Ahmadiya, Sargodha v. The Deputy commissioner, Sargodha and another (PLD 1966 SC 639) as under: "Once it is established that the remedy sought is for the performance of some public duty then relief by way of an extraordinary remedy of this nature is not to be denied merely because some other remedy under the general law is available, unless such alternative remedy can be considered to be equally, inexpensive, expeditious, beneficial and efficacious. The policy underlying the introduction of this form of extraordinary remedy is to prevent disorder from a failure of justice and defect of policy' in an inexpensive, expeditious and effective manner 'where the law has established no specific remedy wherein justice and good Government there ought to be one'. In a case where this remedy is in other respects warranted, it is rarely that the Courts in England have considered an action in law to be such an adequate alternative remedy as to refuse the writ unless complicated questions of fact have to be determined, or a question of title to land is involved or the remedy sought is, in effect, for the recover of damage."
17. In the light of above discussion, the legal position emerged is that the respondent being a public limited company established under the Statute and discharging functions in connection , with the affairs of the Federation through its Managing Director and the Board of Management is amenable to the exercise of writ jurisdiction of this Court and the sendee of the petitioner in the said company being regulated by the Statute and the regulations to the framed thereunder by the Board, he cannot be denied the Constitutional remedy on the ground that ordinarily a company registered under the Companies Ordinance, 1984 is not amenable to the writ jurisdiction of this Court and the petitioner being employee of the Company has no Statutory protection of service to invoke the provisions of Article 199 of the Constitution in the matter.
18. Through insertion of Article 2-A in the Constitution of Islamic Republic of Pakistan, 1973, the Principles of Islamic Law have taken over the vacant area in the matter of rights and duties of people and thus a person illegally deprived of beneficial position has a right to be restored to the same position, which he enjoyed before such deprivation. The entire Islamic Law and the principles thereof being applicable through the Constitutional provisions have to be kept in view and applied in all cases, in which administrative decisions injured the rights of an individual. Without stretching down the law, rules and regulations on a subject on the touch stone of Article 2-A or 227(1) of the Constitution of Islamic Republic of Pakistan, 1973, the action in conflict to such provisions of the Constitution can be declared illegal. Thus, the legitimate conclusion drawn from the above discussion is that the Injunctions and Tenets of Islam being higher status to the general law, an action not approvably as fair and just in the spirit of Islamic Law is not legal. The Islamic Law having overriding effect must prevail in every field of life. The right of people must be weighed and judged in terms of Islamic dispensation of justice to advance the command of Islamic Legal System free of any element of unfair and oppressive action.
19. The administrative function of respondent No. 3 being incapable of comprehensive definition, the same include the matter relating to the service of employees and there are many matter which the respondent has to perform under his general power but whenever a right of an individual is infringed, the same can only be excused, if there is a law to permit it in special circumstances in the public interest. The appointment includes promotion, termination, reversion and, therefore, the demotion of the petitioner followed by unreasonable dispensation of serv ice has no legal backing to sustain.
22 . The upshot of the above discussion is that the order of termination of service of the petitioner being ultra-vires to law and having been passed in legal exercise of authority is set aside. This petition succeeds with no order as to costs.