The petitioners are a statutory corporation established under the Oil and Gas Development Corporation Ordinance, 1961 (Ordinance XXXVII of 1961). The Management and the business affairs of the Corporation are governed by section 4 of the said Ordinance which reads as follows :- "The general direction and superintendence of the affairs and business of the Corporation shall vest in a Board of Directors which, with the assistance of a General Manager, may exercise all powers and do all acts and things which may be exercised or done by the Corporation.
(2) The Board shall act on commercial considerations having due regard to public interest generally.
(3) In discharging its functions, the Board shall be guided by such instructions on questions of policy as may be given to it from time to time by the Central Government, which shall be the sole Judge as to whether any instructions are on a question of policy or not.
(4) If the Board fails to carry out any instructions given to it under subsection (3), the Central Government may supersede the Board and appoint any person or body to function in its place until a new Board is constituted in accordance with the provisions of this Ordinance, and no such supersession or appointment shall be called in question in any Court."
Section 22 of the Ordinance deals with appointment of officers, advisers and servants of the Corporation; and is to the following effect:- "The Corporation may appoint or employ, on such terms and conditions as may be prescribed, such officers, advisers and servants as it considers necessary for the efficient performance of its functions."
Under section 29 of the Ordinance the Central Government may, by notification in the official Gazette make rules for carrying out the purpose of the Ordinance, and such rules, may, inter alia provide for regulating the terms and conditions of services of the officers and servants of the Corporation. No such rules, however, have yet been framed.
2. The respondent was a Lieutenant-Colonel in the Pakistan Army and retired from service in the year 1956. On 1-1-1962, he was appointed as Administrative Manager in the Corporation on the basis of a contract for a period of live years. Under the terms of his employment the services of the respondent could at any time be terminated by the Corporation, without assigning any reasons, on three months' notice or three months' pay in lieu thereof. In September 1965, the services of the respondent were requisitioned for War purposes, but on his-release from active duty on 18-6-1966, he was once again taken in the employment of the Corporation on 20-6-1966, as an Officer on Special Duty, as the post of Administrative Manager had since been abolished. After his initial contract of service expired on 31-12-1966, it was extended from 1-1-1967 for another period of five years on the same terms and conditions, by an agreement which was signed on 3-10-1967. The respondent was after that working as Chief Stores Officer of the Corporation, in addition to his other duties.
3. On 3-5-1968, the respondent filed a suit (being Civil Suit No. 71/68) for a declaration that he was entitled to continue as the Chief Stores Officer and to remain in the service of the Oil and Gas Corporation till the expiry of the period of his contract, and for a permanent injunction restraining the Cor--poration and its Managing Director from divesting the respondent of the charge of Chief Stores Officer and from terminating his contract of service. There was also a prayer for temporary injunction. This prayer was, however, refused by the Civil Judge.
On 7-5-1968, another suit (being Suit No. 836/68) was filed by the respondent wherein he prayed for a declaration to the effect that the Oil and Gas Corporation Was not entitled to terminate his service by giving him 90 days' notice. Interim orders restraining the petitioners from terminating his services were once again prayed for. In reply it was stated by the Cor--poration that no order of the respondent's removal had been passed and, secondly, that they were fully competent to remove him if they so desired, as provided under the terms of the contract of service itself. In this suit also interim injunction asked for was refused.
On 22-9-1968, the respondent's services were terminated by giving him three months' pay in lieu of the required three months' notice by Resolution to this effect passed by the Corporation on 11-6- 1968. This decision was conveyed by the Managing Director of the Corporation vide his letter dated 22-6-1968.
The respondent, thereafter, filed Civil Suit No. 1410/1968, against the petitioner for declaration that the order dated 22-6-1968, passed by the Managing Director of the Oil and Gas Corpo--ration terminating his services was void, invalid and inoperative; and that he continued in the service of the Corporation. The respondent also prayed for permanent injunction restraining the petitioner from giving effect to their order dated 22-6-1968. There was in addition an application for temporary injunction. The petitioners opposed this application on the plea that their Board of Directors had lawfully terminated the services of the respondent on payment of three months' salary in lieu of the required notice which was provided for under the terms of the contract itself.
This decision was taken by the Board of Directors, by Resolution No. 745, dated 11-6-1968. Thereafter, the respondent actually handed over the charge of his office and his name was also removed from the rolls of the Corporation.
The learned trial Judge after hearing the parties and their Advocates refused the prayer for temporary injunction by his order dated 7-2-1969. The operative part of this order was as follows:- "At this stage without evidence of parties, I am not inclined to accept that plaintiff should be considered as a Government servant or that he should be given constitutional protection. The clause of termination of service of plaintiff does not appear to have been improperly complied with and as such, I do not find prima facie case in favour of plaintiff. I, therefore, dismiss the application."
4. Being dissatisfied with this order the respondent filed an appeal which was allowed by the District Judge, Karachi, by his order dated 18-10-1969, whereby the learned Judge granted a temporary injunction pending disposal of the suit, to the res--pondent, restraining the petitioners from "putting into effect their impugned order dated 22-6-1968, and requiring them to maintain status quo as obtaining before that order." ---The termination on the face of it is malicious and contravention of the principles of natural justice and if this order is allowed to continue without the pronouncement of a com--petent Court on its validity an impression may be gained that fraud may be played on the Court to deprive the weaker party of its right. On this ground alone I would have issued injunction against the respondent-Corporation restraining them from putting into effect their order dated 22-6-1968, and a mandatory injunction requiring them to put the appellant in the same position as before 22-6- 1968, in case, they had disturbed that status.--- After expressing himself so strongly on the point as to what the ultimate decision in the suit should be, the learned District Judge went on to consider whether a show-cause notice was necessary in this case. He relied on an office Memorandum No. 2/2/66-D-I, dated 1-7-1966, issued by the Government of Pakistan, Cabinet Secretariat, Establishment Division, which was to the effect that although it would be legally permissible to terminate the services of the temporary Government servants who were appointed on or after 8th June 1962, by a simple notice without assigning any cause, according to the terms of their appointment; in case of Government servants appointed on or before the 7th of June 1962, it would be necessary to give them an opportunity of showing cause against the proposed termination of their service, under the relevant rules as applicable to them.
The learned Judge thereafter came to the following conclusion :- "His services, therefore, could not be terminated by the respondent-Corporation without giving him an opportunity of showing cause as laid down in the office Memorandum. This disposes of the argument raised by Mr. Samad Khan that a servant cannot be forced on Master."
The learned District Judge next considered the contention of the counsel for the Corporation that this being a contract for personal service, a suit for specific performance was barred by the provisions of section 21 of the Specific Relief Act. The learned District Judge distinguished, a case of the Supreme Court reported as M/s. Malik & Haq and others v. Muhammad Shamsul Islam (PLD 1961 SC 531) and went on to observe as follows:- "The position in the instant case, I say with deference, is that the servant does have statutory protection in the form of instructions issued by the Central Government to the respondent--- Corporation and those instructions have force of rule."
The learned Judge further observed that the position on this point had been set at rest by the views expressed in the case reported as Manni v. Karachi Cantonment Board (PLD 1969 Kar. 304) and that in view of that case he did not "have to say anything more on this point."
4. This order of the learned District Judge has been assailed on a number of grounds.
Mr. Fakhruddin, the learned counsel for the petitioner has contended that the learned District Judge has virtually decided the whole suit for declaration filed by the respondent which is now pending before the Civil Judge ; inasmuch as, he has expressed his clear and unequivocal opinion on all the issues involved in the suit. According to the learned counsel, what is worse, he has done so in utter disregard of the law declared by the highest Court of the country, namely, the Supreme Court. Mr. Fakhruddin, further contends that it is by now settled that in case of employees of statutory Corporate bodies; the constitu--tional guarantees are not available to them, and that such persons hold their posts at the absolute pleasure of the appointing authority who has an unfettered discretion to terminate their services as stipulated in the contract of employment. To sub--stantiate his contention the learned counsel has relied very strongly on the authority of Chairman, East Pakistan Development Corporation v. Rustom A.I (PLD 1966 SC 848). In that case respondent Rustom A.I was employed by the E. P. I. D. C. As diesel-in-charge in its Sugar Mill at Jaipurhat. One of the conditions of his employment, which were embodied in his letter of appointment, was that his services could be terminated on one month's notice on either side. He was accused of certain charges and dismissed by the Secretary of E. P. I. D. C. As a result of an enquiry. In these circumstances, it was held by the Supreme Court that the respondent being an employee of a statutory corporation, could not claim the constitutional guarantees provided to the civil servants. Their Lordships further observed that as the relationship was governed by the ordinary law of master and servant, the Secretary's action of dismissing the respondent was a proper one on the authority of the Lahore Central Co-operative Bank Ltd. v. Pir Saifullah Shah (PLD 1959 SC (Pak.) 210). The learned counsel also relied on the following decisions to show that the respondent did not have even a semblance of a prima facie case and that he was accord--ingly not entitled to an interim injunction at this stage:- Pakistan Refugee & Rehabilitation Finance Corporation v. Syed Karamat Hussain PLD 1966 Lah. 442 ; Zainul Abidin v. Multan Central Co-operative Bank Ltd.
PLD 1966 SC 445 ; and Ghulam Farid Khan v. East Pakistan Industrial Development Corporation (E. P. L D. C.) PLD 1968 Dacca 347.
Prima facie there appears to be a good deal of force in the con--tention of the learned counsel for the petitioner. Mr. Wajihuddin the learned counsel for the respondent has on the other hand contended that the respondent's services were terminated in violation of the principles of natural justice inasmuch as he was condemned unheard and no opportunity was given to him to show cause against the" action proposed to be taken against him. According to the learned counsel the termination of the respondent's services was mala fide and the binding instructions given by the Central Government were deliberately disregarded thereby creating a right in favour of the respondent to challenge the orders of his removal in a Court of law. To substantiate his contention the learned counsel relied on the following cases:
(1) Ghulam Sarwar v. Pakistan PLD 1962 SC 142;
(2) High Commissioner for India and another v. L M. Lail AIR. 1948 P C 121;
(3) Province of the Punjab v. Ch. Nazir Hussain PLD 1956. Lah. 556;
(4) M. Abdul Majid v. The West Pakistan Province PLD' 1956 Lah.615;
(5) Hadi A.I v. Government of West Pakistan PLD 1956 Lah.' 824;
(6) Abdul Ghafur v. The Thai Development Authority PLD 1958 Lah: 169;
(7) Mahbub A.I v. Corporation of the City of Lahore PLD 1958 Lah.370;
(8) Ghulam Mohiuddin v. Board of Trustees, Karachi Port' Trust PLD 1957 Kar. 482;
(9) Rasul Bakhsh v. Larkana Municipality and others P L.D 1957 Kar. 489;
(10) District Board, Lahore v. Agha Muhammad Khan PLD 1957 Lah.780;
(11) Muhammad Din v. Corporation of the City of Lahore PLD 1960 Lah. 242;
(12) Imtiaz Muhammad Khan v. Govt. Of West Pakistan PLD 1960 Lah. 422 ; and
(13) Manni v. Karachi Cantonment Board PLD 1969 Kar. 304.
I would refrain from expressing any opinion on these points at this stage as that is the principal issue involved in the suit filed by the respondent which is now pending before the Civil Judge. This is necessary as any expression of opinion by this Court on this crucial point is likely to influence the decision of the Civil Judge and may thereby prejudice the case of one party or the other.
5. Mr. Wajihuddin, the learned counsel for the respon--dent next contended that this Court should not interfere with the exercise, of discretion within the bounds of jurisdiction by an Appellate Court, even though while doing so the learned District Judge reversed the order of the trial Court. The principles of non-interference with the normal exercise of the judicial discretion is well recognized; but the relevant consideration has always been whether that discretion has been exercised on judicial principles or in an arbitrary manner.
"In my opinion, there is a fair and substantial question to be decided as to the rights of the parties in the present suit. It is not necessary for our present purposes nor is it right that we should further examine the question in dispute or anticipate the decision of the question in the suit itself. What the Court has at this stage to determine is whether there is a bona fide contest between the parties or, as observed by Turner L. J. In Walker v. Jones (1865) L. R. I. P. C. 50 at p.61-35 L J PC30.
'The real point is not how these questions ought to be decided at the hearing of the cause, but whether the nature and difficulty of the question is such that it was proper that the injunction should be granted until the time for deciding them should arrive.
It is quite sufficient if the Court find a case which shows that there is substantial question to be investigated and that matters should be preserved in status quo until that question can be finally disposed of. Reference may be made to Israil v. Shamser Rahman 41 Cal. 436, A I. R 1914 Cal. 362 which is an authority in support of this view. Applying this principle to the present case, I hold that the petitioners are entitled to be granted a temporary injunction restraining the opposite party from executing the order of eviction passed by the House Controller until the disposal of the suit in the Court of the Munsif. On behalf of the opposite-party, the argument was stressed that it was in the discretion of the lower Courts to grant or not to grant an order of temporary injunction, and the High Court ought not to interfere in such a case. But I am of the opinion that the lower Courts have not exercised their discretion according to well-settled judicial principles but, on the contrary, have acted in an arbitrary manner. Instead of finding whether a prima facie case has been made out, the lower appellate Court has indeed decided the whole suit by finding that 'There was no lack of jurisdiction on the part of the House Rent Controller in passing the eviction order and the title suit filed is merely a contrivance to extend the period of stay of the appellants to the house as long as possible.
It is manifest that the lower Courts have in this case failed to exercise a jurisdiction vested in them by law and the High Court ought to interfere in revision for the ends of justice."
Reference in this connection may also be invited to the Election Officer, Gujrat v. Abdul Ghani etc. (AIR 1923 Lah. 47), where it was observed that to restrain the respondent from contesting the election at an interlocutory stage would be tantamount to granting the plaintiff' the relief sought in his suit which might thereby deprive the defendant of a right to which be was really entitled.
6. There is also ample authority for the proposition that if a subordinate Court fails to notice or ignores or refuses to follow a decision of the High Court to which it is subordinate, it acts illegally or with material irregularity within the meaning of section 115, Civil Procedure Code. Reference maybe made in this connection to the following cases:
(1) Surajman Prasad Misra v. Sadanand Misra and others AIR 1932 Pat. 346 ;
(2) Gupteswa r Chandra Deo v. T. Y. Y. Narsimham and others AIR 1945 Pat. 132 ;
(3) Kolipakam Penchelu Varadappa Rao v. Chittor Mahadevish and another AIR 1933 Mad. 94 ; and
(4) UPo Hlaing and another v. Dow Ngwe AIR 1941 Rang.
22. The position would be worse in this respect if a decision of the Supreme Court is not considered.
7. The provisions of section 115, Civil Procedure Code were construed by a Full Bench of this Court in Zafar Ahmad v. Abdul Khaliq (PLD 1964 Kar. 149) and the conclusions were summarized by their Lordships in paragraph 19 of this judgment which reads as follows:- " The position with reference to section 115 may thus be summarized in the following proposition
(1) The High Court may, in respect of any state of facts judicially considered, on which a Court subordinate to High Court has given a decision, make such order as it thinks fit, if in the opinion of the High Court, such Court in giving the decision,
(a) has exercised or assumed a jurisdiction not vested in it by law, or
(b) has failed to exercise or declined to assume a jurisdiction vested in it by law, or
(c) while exercising its jurisdiction has taken a procedural step which is contrary to a mandatory provision of the law, or has omitted to take a procedural step which is required by a mandatory provision of law to be taken, or
(d) while exercising its jurisdiction has taken a procedural step which is contrary to a directory provision of the law, or to a general principle of law, and which in the final result has given to one party an advantage over the other which it would not have got but for the fact that that step was taken."
8. Applying these principles to the facts of the present case, I find that the learned District Judge has interfered with a valid and proper order of a Court of competent jurisdiction without any reference to the law laid down by the Supreme Court. Not only this but in doing so the learned Judge over--stepped the limits of his jurisdiction and went on to decide all the issues involved in the suit. There can be no doubt that the learned Judge thus acted in exercise of his jurisdiction illegally or in any case with material irregularity. The learned District Judge was bound to exercise the discretion after due regard to the discretionary order of the Civil Judge and to proceed according to the settled principles of law' which govern the provisions of Order XXXIX, rules I and 2, C. P. C.; but he has failed to do so. His order dated 18th October 1969, has accordingly, to be set aside.
9. The question would then arise whether I should remand the case to the learned District Judge or consider the merits of the case myself. It would serve no purpose if the case is sent back to the same District Judge who has already expressed his opinion on merits in such strong terms.
Moreover, it would also cause unnecessary delay. I would, therefore, consider whether the discretionary order dated 7-2-1969 of the Civil Judge is such as to call for interference by a superior Court.
10. It is settled law that the principles which should guide a Court in issuing an ad interim injunction are as follows:
(1) There should at least be a prima facie case in favour of the party asking for the injunction.
(2) The Court should be satisfied that if the injunction is not issued, irreparable damage or injury would be caused to the party's interests in the property involved.
(3) The balance of convenience is an important factor to be considered.
As regards prima facie case, I have already shown that the contentions of the petitioners are prima facie supported by several cases decided by the Supreme Court which have been enumerated in paragraph 4 above. Mr. Wajihuddin contends that all these cases are distinguishable. I do not wish to express any opinion on this point as he shall have full opportunity to distinguish these authorities in the trial Court. However under the terms of his employment as embodied in the contract of his service, the service of the respondent could at any time be terminated by three months' notice or in lieu thereof three months' pay without assigning any reason.
10. Oil the question of balance of convenience and irrepar--able injury the learned District Judge expressed himself thus :- ---The contention of Mr. Samad Khan that the appellant is not likely to suffer irreparable loss in this case does not appeal to me. If an employee, who has certain guarantees in the shape of the instructions issued by the Government, is removed in the manner in which the appellant has been removed he falls in the eyes of his colleagues and monetary compensation can never compensate him for the damage that he has suffered.
Balance of convenience also in this case requires that the appellant be allowed to continue to serve on the same terms and conditions. He was holding the post of the Chief Stores Officer in addition to his own duties as Officer on Special Duty and even if the respondents have employed another person as Chief Stores Officer they can conveniently allow the appellant to continue as Officer on Special Duty till the matter is finally adjudicated upon by the Court.--- It is difficult to appreciate as to how the learned District Judge arrived at the conclusion that the balance of convenience lay in forcing a servant on an unwilling master. As mentioned in the revision application, the respondent had left the service of the petitioners after his services were terminated and his name was removed from the Rolls of the Corporation. Mr. Wajihuddin has, vehemently controverted this position. The fact, however, remains that in the plaint itself the respondent had prayed that he should be "restored to his post". Even if the reasoning of the learned District Judge that the respondent "had fallen in the eyes of his colleagues" on this account were to be accepted, this had already happened. As observed by their Lordships of the Supreme Court in M/s. Malik & Haq and others v. Muhammad Shamsullslam Chowdhury, personal service is the duty of the servant under the contract and not his legal right. If at all the respondent's suit succeeds he would be entitled to all his emoluments and he may also claim damages for any breach of contract etc.
11. An interlocutory injunction of a mandatory character can only be granted if the Court is satisfied that the matter is an emergent one and immediate assistance is needed to prevent irreparable injury being done to the legal or equitable rights of the claimant. The leading principle which ought, generally speaking, to be the guide of Court and to limit its discretion in granting injunctions is that only such restrain should be imposed as may suffice to stop the mischief complained of and to keep things in status quo during the pendency of the litigation. Even the fact that the plaintiffs may have made out a prima facie case does not necessarily mean that a temporary injunction can be claimed by him as a matter of right. Before issuing such an injunction the Court must consider and satisfy itself whether the effect of the injunction would be to preserve or alter the status quo during the pendency of the litigation and whether irreparable injury would be caused to the plaintiff if- the injunction is not issued. If the effect of the injunction would be to alter the status quo during the pendency of the trial and no irreparable injury is likely to be caused to the plaintiff it is not a fit case issuing a temporary injunction which is a remedy which should be sparingly resorted to since it would often result in giving to the plaintiff the remedy he seeks in the suit, even before the contention of the contending parties are properly tried.
Both the Courts below have omitted to consider these essential aspects and have considered mainly the question of P prima facie case. This case, therefore, clearly falls under clause (c) of section 115, C.P.C. And attracts the revisional jurisdiction of the High Court on this ground as well.
12. In view of what has been stated above, I consider that no irreparable injury is likely to be caused to the respondent and the learned Civil Judge rightly refused his prayer for an ad interim injunction.
The balance of convenience also requires that the respondent should not be forced upon an unwilling master. Last but not the least the respondent does not appear to have a strong prima facie case.
13. For the reasons given above I allow this revision application, set aside the order dated 18th October 1969, of the learned District Judge and restore that of the learned Civil Judge. In the circumstances of this case, however, there shall be no order as to costs.
Before I conclude, I should like to make it clear that the trial Court shall not be influenced by any expression of opinion in this order while deciding the suit on its merits. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.