1998 P L C (C.S.

) 221
[Lahore High Court]
Before Muhammad Nawaz Abbasi, J
TARIQ AKBAR KHAN
versus
FEDERATION OF PAKISTAN through Secretary,
Petroleum and Natural Resources, Islamabad and 2 others
Writ Petition No. 317 of 1997, decided on 6th June, 1997.
(a) Marketing of Petroleum Products (Federal Control) Act (XVII of 1974)---
----S. 5---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Demotion and
subsequent termination of petitioner (employee) assailed in Constitutional petition---
Competency---Petitioner employee of statutory corporation under the direct control of
Federal Government---Such corporation being public company dealing with essential
commodities in public sector was, performing functions in relation to affairs of Federation---
Where statutory body or person in public sector through improper exercise of jurisdiction or
authority had committed irregularity in prescribed procedure or exercise of power in
violation of principles of natural justice affecting injuriously, some justiciable right of a
person, such action would be amenable to Constitutional jurisdiction of High Court under
Art. 199 of the Constitution---Wrongful dismissal of employee by Authority in exercise of
powers under general law of master and servant although was not questionable in
Constitutional jurisdiction yet if service of employee of such corporation or public company
was governed through same statute providing express or implied protection and creating
some legal right, enforceability of such right through Constitutional jurisdiction was not
barred.
Sheikh Maqbool Elahi and others v. Khan Abdul Rehman Khan and others PLD 1960 SC
(Pak.) 266; Tariq Transport Co. v. Sargodha-Bhera Bus Service PLD 1958 SC (Pak.) 437;
Zainul Abidin v. Multan Central Cooperative 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 ref.
(b) Constitution of Pakistan (1973)--
---- Arts. 29 199 --- Natural justice, principles of judicial review of administrative action --
- Validity of action complained of, could not be as assailed on the touchstone of principles of
policy as provided in Chap. 2, part11 of the Constitution --- Where, however, such action
was against law and had been taken in violation of any right or excess of authority or breach
0f Principles of natural justice, same would be liable to judicial review of the High Court.
(c) Constitution of Pakistan (1973)---
----Art. 199---Administrative decision---Judicial review of administrative decision---
Essentials stated.
(d) Contract Act (IX of 1872)---
----S. 2(h)---Marketing of Petroleum Products (Federal Control) Act (XVII of 1974), S. 5---
Constitution of Pakistan (1973), Art. 199---Constitutional petition---Respondent-company
originally being private company, management and control thereof, was subsequently taken
over by Federal Government and its affairs were regulated by statutory law i.e. Marketing of
Petroleum Products (Federal Control) Act, 1974---Employee, thereafter, being in the service
of statutory body could invoke jurisdiction of High Court for redress of his grievance.
(e) Marketing of Petroleum Products (Federal Control) Act (XVII of 1974)--
----S. 5---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maxim: "Audi
alteram partem"---Applicability---Dispensation of services of employee of statutory
corporation without notice and without providing him opportunity of being heard---Validity--
-Provisions of Marketing of Petroleum Products (Federal Control) Act, 1974, nowhere
provided dispensation of service of employee by Managing Director of such corporation
without notice and without providing him opportunity of being heard---Principle of law
embodied in maxim "audi alteram partem" has to be accepted invariably and same is equally
recognised as principle of Islamic law---Statutory employee, subject to law, having acquired
status of regular/confirmed employee, would be entitled to continue his service for full length
and in case he was ousted from service in derogation of law, unless specifically debarred by
some law, could not be restrained from invoking Constitutional jurisdiction of High Court,
by simply taking plea of relationship of master and servant.
Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another PLD
1966 SC 639 ref.
(f) Marketing of Petroleum Products (Federal Control) Act (XVII of 1974)--
----S. 5---Constitution of Pakistan (1973), Arts. 2A, 227(1) & 199---Person illegally deprived
of beneficial position---Remedy in terms of Islamic law and the principles thereof---
Injunctions and tenets of Islam being of higher status than general law, any action not
approvable as fair and just in the spirit of Islamic law was not legal---Islamic law having
overriding effect must prevail in every field of life---Right of people must be weighed and
judged in terms of Islamic dispensation of justice to advance command of Islamic system
free of any element of unfair and oppressive action.
(g) Marketing of Petroleum Products (Federal Control) Act (XVU of 1974)---
----S. 5---Constitution of Pakistan (1973), Art. 199----Constitutional petition---Employee of
statutory body---Termination of service without show-cause notice and without affording
opportunity of being heard--Termination of service of petitioner/employee being in violation
of principles of natural justice and illegal exercise of Authority, was set aside in
circumstances.
Abdul Baseer Qureshi for Petitioner.
Muhammad Bashir Kiani, Standing Counsel for Respondent No. 1.
Samad Mehmood with M. Hamayun for Respondents Nos. 2 and 3.
Date of hearing: 5th June, 1997.
JUDGMENT
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 with effect from 13-9-1990.
2. The Board of Management consisting upon seven Directors namely Managing Directors,
P.S.O., Parco, N.L.R. 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-1 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 services 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
Constitution petition assailed the impugned order inter alia on 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 Nos. 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 regulated by any statutory rules but being governed
by principle of Master and Servant, the Constitution petition under Article 199 of 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/PF/T(TAK), dated 18-2-1975 we are pleased to confirm you in
your employment with the Company on regular basis with effect from 1st March, 1976 on
the following terms end conditions:
(1) Effective 1-3-1976 you will be a confirmed permanent employee of the Company. If you
wish to leave service, you will be required to give one month's notice or surrender one
month's pay. The company will be at 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) You will also be paid Special Cost of Living Allowance at 10% of your salary, as per
Employee 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 Employee's 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 Policy 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/T(TAK), 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 1st July, 1996.
1. Basic Salary.
Your monthly basic salary will be Rs.19,475 (Nineteen thousand four hundred and seventy
five only).
2. Allowances and 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 by Act No. LXI of 1975.
(b) You will be paid an Entertainment Allowance @ 10% of basic salary subject to a
maximum of Rs.1,000 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) You 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:
(ii) 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.
3. 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:
(a) Mode of Travel By Air (club class) or by Rail (Ist Class
acc.).
(b) Hotel
Accommodation::
Actual Hotel Bills
(excluding Five
Star Hotels), P.S.O. Guest
House at Islamabad, Lahore
and Karachi.
(c) Daily Allowance in lieu
of (b) above:
Rs. 200 per day.
(d) Local Transport Actual taxi fare for visiting places of
business while
on tour (full time
and daily basis engagement of taxi is not
allowed).

4. Transfer Allowances:
You will be entitled to reimbursement of expenses for self, wife and children below 18 years
of age, on transfer as per Company's Staff Transfer Policy. Under this policy, you will be
entitled to the following expenses:-
(a) Mode of Travel: By air (economy class) or by rail (Ist
class acc.).
(b) Personal Effects: 1500 cft by rail or two truck loads.
(c) Packing and
Forwarding:
Upto Rs. 2,500.
(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.
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 promotions/placements of all
General Managers appointed and 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 one
hundred and sixty only).
ALLOWANCES AND PERQUISITES:
(a) You will be entitled to Leave Fare Assistance Q 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.2,210 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.
8,470 per month.
(e) You will be reimbursed with Rs.2,210 per month for engaging Chowkidar, Mali and
Sweeper at the Company leased accommodation.
(f) The Company will pay the actual expenses on utilities 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 vide 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 and
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. Learned 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 services of the employees of the Company through the Regulations framed
thereunder. .
(c) 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 service 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. Learned counsel for respondents Nos. 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
reinstatement 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 service of the petitioner whether contractual or statutory 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 1974 dealing with the subject:--
Section 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 the 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 shorter period as may be notified by. the Government.
Section 6. Appointment of Manning 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 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. Section 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.
Section 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.
Section 16. Continuance in service.--In the case of a managed company, all persons
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 rules 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 and 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 th6 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 the 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 there 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 Managing Director in the normal circumstances cannot in its discretion
passed an order of his choice as sole authority depriving an employee from valuable right of
service. The scheme of law on the subject shows that the management and administration of
Pakistan State 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 public sector is definitely performing
functions in relation to the affairs of Federation through the Managing Director or the Board
of Management as the case may be. It is well understood that certain limitations are
applicable in exercise of power by the holder of public offices and according to these
limitations derivable from and 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 the prescribed procedure or exercise of power in
violation of the principle of natural justice effected injuriously, some justiciable 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 AR. 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 statutory 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 ii 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 PL D 1958SC (PAK). 437 is as under:--
"that no constitutional safeguard being available against the arbitrary dismissal or
removal from service to the employee of statutory corporations or registered
Companies established by the statutes under the control of Government are governed
by the general law or 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 Cooperative Bank Limited, Multan PLD 966 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 organisation 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 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 2A thereof and Chapter 2-Principles of
Policy of the Constitution demands that every person performing functions on behalf of an
organisation of authority or State shall be responsible to act in accordance with the principles
set out in said Chapter, so far as they relate to the functions of said Organisation 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 acid 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 with the
services of petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan,
1973, it will be seen that after 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 services 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 the contractual nature of service acquired the status of regular
service. 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 service framed thereunder and can un-hesitantly 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 services 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 services 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
services of the petitioner by operation of law, therefore, the termination of services of the
petitioner simplicitor 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 learned 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
from 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 of Pakistan State
Oil, a public limited company, is the sole authority to deal with the employees 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 am 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.
15. 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 service of the petitioner as personal
employee. The petitioner after confirmation was assigned and promoted to the net 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 of being relied upon. Thus, the legitimate
inference would be that the respondent No.3 travelling on the wrong premises unjustifiably
and without visualising the subsequent change terminated the employment of the petitioner
without acknowledging any right as regular employee of the company simply on contract.
16. 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 I 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 between the general law of master and servant
and the employment governed by the statute or statutory rules. In cases, where the service of
an employee in a State owned organisation, company or official G 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-I 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 in
terms of section 6(3)(b) of Act XVII of 1974, referred to above, has no legal consequence.
17. 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 cardinal
principle of law is accepted invariably and is equally recognised as golden principle of
Islamic Law. Respondent No. 3 in departure to the repeated pronouncements of 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.
18. The termination of service of the petitioner having made in contravention to the
provisions of section 16 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 no; 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 recovery of damage. "
19. 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 service of
the petitioner in the said company being regulated by the statute and the regulations to be
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.
20. Through insertion of Article 2A in the Constitution of Islamic Republic of Pakistan,
1973, the principles of Islamic wave taken over the vacant area in the matters of rights and
duties of people and thus, a person illegally deprived of beneficial position has a right to be
restored to K 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
touchstone of Article 2-A or 227(1) of the Constitution of Islamic Republic of Pakistan,
1973, the action in conflict to each 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 approvable 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.
21. The administrative function of respondent No. 3 being incapable of comprehensive
definition, the same includes 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 service 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 illegal exercise of authority is
set aside. This petition succeeds with no order as to costs.
A.A./T-27/L Petition accepted