ZIA PERWEZ, J. -- By this order I propose to dispose of the applications through which the plaintiffs seeks suspension of operation of the letter of defendant dated 5.7.2001 terminating the services of the plaintiff and letter dated 31.7.2001 for return of office assets and seeking suspension of operationof the letter dated 7.8.2001 terminating the services of the plaintiff by the defendants in Suit No. 1091/2001 respectively.
2. Facts relevant for the decision of the application in Suit No. 1091/2001 are that the plaintiff was employed as Assistant by the defendants in 1968. On termination of his services in 1999 after settlement of the dues and back benefits plaintiff was again appointed as Senior Manager by the defendant with effect from 5.5.2000. The letter of appointment dated 5.5.2000 provides for cessation of- services as under:- "7. Cessation. -- Your services may be terminated by giving one month's notice from either side.
Notwithstanding the foregoing, your services can be terminated without any notice if you are found guilty of dishonesty, negligence, indiscipline or breach of trust."
The services of the plaintiff were terminated vide letter dated 5.7.2001 filed as Annexure A to the plaint. Plaintiff was also called upon vide letter dated 31.7.2001 to return the mobile telephone and car provided by the defendants. Aggrieved by the termination plaintiff filed his representation dated 20.7.2001 before the Chairman, All Pakistan Textile Mills Association and finally on 17.8.2001 plaintiff instituted suit for declaration, direction, mandatory and permanent injunction and damages alongwith above interlocutory application.
3. Relevant facts in Suit No. 1097/2001 are that the plaintiff instituted the suit for declaration, direction, permanent injunction and damages against the defendants M/s. Bolan Bank Limited. The plaintiff claims to have an experience of over 20 years in Banking and was employed with the defendant Bank on 27.1.1992. A copy of appointment letter is filed as Annexure A to the plaint. On meritorious services, appreciated through various letters, the plaintiff was promoted and received cash awards periodically . Plaintiff claims that following some differences with the President of the Bank, he was asked to tender resignation and later his services were terminated vide letter bearing No. BBC/COK/HRD/3450, dated August 7, 2001 filed as annexure F to the plaint.
4. Aggrieved by this action of the defendant plaintiff instituted the present suit seeking declaration, direction, permanent injunction and damages against defendants alongwith the present application seeking suspension of the operation of the above letter of termination.
5. Mr. Kh. Shamsul Islam, Advocate for the plaintiff, in support of the application in Suit No. 1091/2001 has challenged the validity of the orders of termination. He has referred to the articles of association of the defendants and the provision of month's notice. The contention of the learned counsel is that in view of the articles of association of the defendants powers of hiring and firing are to be exercised by managing committee vide Article 68(d) of the articles of association and termination letter signed by Mr. Khalid Amin, the Chief Executive of defendant association is in violation of the terms of Articles 63, 67 and 68(d) providing for quorum and exercise of powers by the managing committee of the defendants. In support of his contentions learned counsel has placed reliance on the case of M. Daryab Yousuf Qureshi Vs. Chairman, Wapda (1983 F.S.C. 17), Commissioner of Income Tax,. Peshawar Zone, Peshawar v. Messrs. Siemen A.G. (1991 PTD 488), Commissioner of Income Tax, Peshawar v. Messrs Siemen A.G. (PLD 1991 S.C. 368) and Section 23 of the Contract Act. His contentions are that the conventional theory of Master & Servant is not longer applies to the employees and has placed reliance on the case of Shahid Mehmood v. Karachi Electric Supply Corporation (1997 CLC 1936), Chairman Regional Transport Authority Rawalpindi v.
Pakistan Mutual Insurance Co. Ltd. (PLD 1991 S.C. 14).
6. Learned counsel for the plaintiffs argued that the services of the plaintiff in Suit No. 1097/2001 were terminated by a letter signed by an officer junior to the plaintiff and in contravention to the principles of natural justice contrary to the conditions of services applicable to the employees of the defendant Bank and opposed to the principles of natural justice audi alterm parten, as the plaintiff has been condemned unheard. Learned counsel in support of this application has argued that the plaintiff shall suffer humiliation resulting to irreparable loss if the effect of the operation of the aforesaid letters of termination is not suspended.
7. Mr. Faisal Arab and Mr. Shahid Anwar Bajwa, Advocates for the defendants, while opposing the arguments of learned counsel for the plaintiff, have argued that the services of the plaintiffs in both the cases have been terminated after approval of the managing committee and board of directors respectively; that the plaintiffs were employees in establishment where no statutory rules of services are applicable and as such the case is governed by the law of master and servants; the suit for declaration is hit by Section 42 of the Specific Relief Act; no irreparable loss is likely to be caused as damages have been claimed by the plaintiffs. Reliance has been placed on the cases of M. Daryab Yousuf Qureshi v. Chairman, Wapda (PLD 1983 FSC 17), Commissioner of Income Tax Peshawar Zone, Peshawar v. Messrs. Siemen A.G.
(PLD 1991 S.C. 368), Sui Southern Gas Company Ltd. v. Engr. Naraindas and others (2001 PLC (C.S.).
743), Muhammad Ramzan Qureshi v. Federal Government and others (PLD 1986 FSC 200), Province of West Pakistan through Deputy Commissioner, Hyderabad and another v. Malik Asghar Khan (1971 SCMR 569), Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 S.C.
139), Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. (1995 SCMR 453), Mst. Anisa Rehman's v. P.I.A.C. And another (1994 SCMR 2232), United Bank Ltd. And others v. Ahsan Akhtar and others (1998 SCMR 68), Messrs. Telephone Industries of Pakistan .v. Sindh Labour Appellate Tribunal (1998 PLC (C.S) 221), Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194), Pakistan International Airline Corporation and 5 others v. Muhammad lzharul Ahsan Qureshi (PLD 1979 Karachi 640), Agricultural Development Bank of Pakistan and 3 others v. Anwar Hussain Jatoi (PLD 1982 Karachi 313), Mothey Krishna Rao v. Granmdhi Anjaneyulu and others (AIR 1954 Madras 113), Islamic Republic of Pakistan through. Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others (1997 P.S.C. 1508), Pakistan and others v. Public At Large and others (PLD 1987 S.C. 304), Kala Shah Kaku, District Sheikhupura and 2 others v. Mushtaq Ahmed (1997 MLD 798), Federation of Pakistan v.
Ali Ahmed Qureshi (2000 CLC 1557), The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others (PLD 2001 S.C. 176) + (2001 PSC 49), The State of Orissa v. Madan Gopal Rungta (AIR 1952 S.C. 12(14), lmtiaz Hussain v. Government of Pakistan through Secretary, Ministry of Work, Estate, Islamabad and 2 others (1992 CLC 1122), Pakistan and others v. Public At Large and others (PLD 1987 S.C. 304), Chairman, Pakistan Broad Casting Corporation, Islamabad v. Nasir Ahmed and 3 others (1995 SCMR 1593), M. Daryab Yousuf Qureshi v. Chairman, WAPDA (PLD 1983 FSC 17), Sui Southern Gas Company Ltd. v. Engr. Naraindas and others (2000 PLD (C.S.) 743), Union of India Vs. Ramchandra (AIR 1981' S.C. 101), Shahid Mehmood v. Karachi Electric Supply Corporation Ltd. (1997 CLC 1936), Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd., Rawalpindi (PLD 1991 S.C. 14).
8. Perusal of the record and the contentions of the learned counsel based on the documents, photocopies whereof are available on record and not disputed by the parties, the question for consideration and necessary for the decision of this application in the light of the arguments advanced by Advocate for the plaintiff, is whether the law of Master and Servant is applicable to the case in view of Section 4(b) of the Shariah Act, 1991 which reads as follows:- "4. Law to be interpreted in the light of Shariah. -- For the purpose of this Act--
(a) while interpreting the statute-law, if more than one interpretation is possible, the one consistent with the Islamic principles and jurisprudence shall be adopted by the Court; and
(b) where two or more interpretation are equally possible the interpretation which advances the Principles of Policy and Islamic provisions in the Constitution shall be adopted by the Court."
Section 4(b) of the Enforcement of Shariah Act, 1991 pertains to cases where two or more interpretations of law are equally possible. The preconditions for two or more interpretations of law has to be considered first. In the instant case no two or more interpretations of law are involved.
There is also no conflict on the point that parties to contract are supposed to abide by their lawful contracts. In the instant case neither any statutory law nor any statutory rules governing the services of the plaintiff are involved and the question of interpretation of law to this extent does not arise.
9. The case, of Commissioner Income Tax (supra) pertains to interpretation of statute when the agreed terms of both the parties to the agreement providing for payment of fixed dividend on shares was not adhered to by the Income Tax Officer. In view of the terms of the agreement the Hon'ble Supreme Court held that the discretion could not be exercised in the-manner contrary to the intentions of the contracting parties bound to fulfill their contracts and the third party viz. The Income Tax Officer erred in exercise of his jurisdiction by declining to give effect to the same for the purpose of assessm ent of tax. These facts are entirely distinguished from the facts of the present case as no breach 'of contract was involved.
10. The case of Joseph James (Gonsalves (supra) was under appeal. Learned counsel for the defendant has filed statement that High Court Appeal No. 5 of 1998 was admitted to regular hearing suspending the operation followed by compromise between the parties before the matter attained finality.
11. The case of Mrs. Anisa Rehman's (supra) does not pertain to the termination of service but the reduction in lower grade of an employee of PIA. The Hon'ble Supreme Court while allowing the appeal has held that the statutory law of Master and Servant is applicable to the employment of PIA as the service rules of PIA were not statutory rules of service and observed 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, if any, is to claim damages.
12. The specific performance of contract in case of an employee, the criteria for termination and grant of injunction in the absence of any statutory provision protecting the servant, has been examined by the superior Courts and it is already settled that it is not possible in law to grant him a decree against an unwilling master that he is still his servant. A servant cannot be forced upon his master. The master is always entitled to say that he is prepared to pay damages for breach of contract of service but will not accept the services of the servant. A contract for personal service as will appear from Section 21(b) of the Specific Relief Act cannot be specifically enforced. But it is not even necessary to invoke Section 21(b) for such a contract is unenforceable on account of Section 21(a) wherein it is provided that a contract.For the non-performance of which compensation in money is adequate relief cannot be specifically enforced. In a case where there is a contract between a master and a servant the master agreeing to pay the salary and the servant agreeing to render personal service it is obvious that money compensation is full relief, for all that the servant was entitled to under the contract was his salary. A breach of contract can give rise to only two reliefs; damage or specific performance. If specific performance is barred the only relief available is damages. When a master, in breach of his contract, refused to employ the servant the only right that survives to the servant is the right to damages and a decree for damages is the only decree that can be granted to him. It has further been held that if a plaintiff is entitled to money from the defendant he cannot claim a declaration as to his being so entitled. He must sue for money. In any case, the only right that survived on account of breach of contract was the right to sue for damages. For purpose of termination it has been observed that it is quite sufficient that the master when he files the written statement or appears in Court takes up the position that the servant is no longer his servant and that his services have been terminated by him. Assuming that before suit there was no valid termination of services there is a breach of contract when the master appears and makes a statement to this effect the relationship of master and servant necessarily ends. The master is a defendant to the suit. He is contesting the suit. He contents that respondent No. 1 is not his servant. No decree for a declaration that the servant holds a post can be passed against the master as held by the Hon'ble Supreme Court in Messrs. Malik and Haq's case (supra).
13. In the case of R.T.H. Janjua (supra) the Hon'ble Supreme Court after examining the case of arbitrary dismissal of an employee of PNSC while refusing to grant leave for appeal observed that in all these cases, the grievance. Related to alleged arbitrary dismissal from service of an employee by an incorporated company or statutory corporation in which the general law of master and servant was held applicable and it was laid down that the only remedy available to the aggrieved servant in such cases is to sue for damages for wrongful dismissal and not a writ of mandamus or ceritiorari.
14. In Messrs Volkervam's case (supra the Hon'ble Supreme Court has held that the relief for injunction sought was of a consequential nature. Even otherwise, a contract of personal service could not be specifically enforced as for breach thereof generally damages could be obtained, and therefore, no injunction could be granted under the provisions of Section 56 of the Specific Relief Act.
15. In Obaidullah's case (supra) the Hon'ble Supreme Court was pleased to observe that in the absence of any Constitutional or other statutory guarantee of continuity of employment, the contract is revocable. Injunction cannot be granted as it is hit by Section 21(b) of the Specific Relief Act and compensation in money is an adequate relief in case of non-performance of the contract.
16. In case of Habib Bank Limited and others (supra) the Hon'ble Supreme Court setting aside the operation of the interlocutory orders of the High Court suspending the effect of the letter of termination was pleased to rely on an earlier decision (1997 SCMR 1508) wherein it was observed:- "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 afore-mentioned 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 re-inducted 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 afore-mentioned interlocutory orders and the ing 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."
The same principle was upheld in Zeba Mumtaz's case (supra) and by upholding the action of termination of service the Hon'ble Supreme Court observed that respondent bank may have had certain grievances against the petitioner but then a decision was taken to terminate the services of the petitioner under the said rule 11 of the Staff Service Rules of the Bank and three months pay was also received by the petitioner from the respondent Bank in lieu of three months notice under the said rule. The finding of the Tribunal that in the circumstances, the order terminating the services of the petitioner was a termination simpliciter does not call for interference.
17. It is also settled law that while granting interlocutory relief the Court maintain the situation as prevailing at the time of institution of proceedings and does not create a new situation. Allowing the present application would amount to creating a new situation by grant of interlocutory relief as held by this Court in the case of Shahnawaz Limited (supra).