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Suit No. 284 of 1979, decided on 22nd April, 1982.

--------O. I, rr. 1 & 2‑Parties to suit‑--.Several plaintiffs‑Common ques tion of law and fact involved in suit‑Joinder of plaintiffs neither causing embarrassment nor delay in trial of suit‑Ordering separate trial of suit of each of plaintiffs‑Held, not proper in circumstances of case.

A I R 1956 Assam 7; A I R 1932 All. 401; A 1 R 1942 All. 387 and A I R 1928 Cal. 92 ref.

A I R 1926 Mad. 57 and A I R 1953 Bom. 112 distinguished.

------Rr. 21, 36 & 39‑Natural justice, principles of‑Plaintiffs promoted to various Grades by President of Bank and promotions confirming upon them certain rights and benefits‑Such promotions, after long time, cancelled on assessment of service records, efficiency, past conduct and consideration of rival claims of other employees‑Order of cancellation of promotions passed without any show‑cause notice to plaintiffs‑Held, in violation of principle of natural justice and of no legal consequence-- Maxim: Audi alteram partem (no one should be condemned unheard). [Maxim‑Civil services].

Dina Sohrab Katrak's case P L D 1959 S C (Pak.) 45 ; Messrs Farid Sons Ltd.'s case P L D 1962 S C 394 ; Commissioner, Income‑tax v. Fazalur Rehman P L D 1.964 S C 410 ; Province of East Pakistan v. Nur Ahmad P L D 1964 S C 451 ; Ismail Ibrahim v. S. H. A. Gardizi P L D 1981 Kar. 622 and Ghulam Mustafa v. Punjab Government P L J 1974 Lah. 287 ref.

Muhammad Ismail ‑Zafar v. Director‑General Pakistan, Telegraph and Telephone Department P L D 1967 Kar. 22 distinguished.

------S. 42 read with National Bank of Pakistan (Staff) Service Rules, 1973, r. 21‑Declaratory suit‑Position, office, rank, grade of pay and ... benefits arising from such office treated as foundation of an employee's right‑Cancellation of promotions of plaintiffs affecting their right to hold and have senior position higher salary and benefits ordered in Violation of principles of natural justice without giving show‑cause notice to them‑Held, plaintiffs are entitled to declaration that impugned orders are illegal and without legal effect.‑ [Civil services].

Malik & Haq v. Muhammad Shamsul Islam Chaudhry P L D 1961 S C 531 ; R. T. H. Janjua v. National Shipping Corporation P L D 1974 S C 1:46 ; Gulf Steamship Company v. Dilwas Baloch P L D 1962 Kar. 899 ; Muhammad Shipping Corporation's case P L D 1979 Kar. 246 ; Abdul Hamid v. Secretary, Rehabilitation and Revenue to the Government of Punjab P L D 1980 Lah. 1 and Pakistan v. Muhammad Abdul Quddus P L D 1961 Dacca 616 distinguished.

Pakistan v. Muhammad Abdul Quddus P L D 1861 Dacca 616 and District Board, Lahore v. Agha Muhammad Khan P L D 1957 Lah. 781 ref.

Syed Nasiruddin for Plaintiff.

Khalid Anwar for Defendant.

Dates of hearing : 4th and 16th March, 1982.

By this judgment I propose to dispose off Suit Nos. 284/79, .85/79 and 286/79. 1n all the three suits plaintiffs are the employees of the National Bank of Pakistan who have challenged the order dated 19‑3‑1979 whereby the promotions granted to the plaintiffs were cancelled. It is an admitted position that in Suit No. 284/79 the Plaintiffs were promoted by order dated 5‑10‑1976 to Senior Grade III with effect from 1‑7‑1978 and were designated as Asstt. Vice President. In Suit No. 285/79 the Plaintiffs were promoted as Officers Grade I with effect from 1‑7‑1978. In Suit No. 286/79 the P13intiffs were promoted as Officers in Grade II with effect from 1‑7‑1978. After the promotions, the plaintiffs in all the three suits, were granted annual increment and other benefits including house allowance. The plaintiffs have averred that their promotions were cancelled on 19‑3‑1979 without assigning any reason and without giving any opportunity of being heard. The representations made to the defendants have remained unnoticed hence the plaintiffs have filed these suits.

2. The defendants have filed written statement and pleaded that the suits are bad for misjoinder of plaintiffs and causes of action, and that no relief can be granted under the provisions of section 21, 42, 54 and 56 of Specific Relief Act. The main defence is that the promotions made to the plaintiffs were unjustified and eventually were cancelled strictly on the merits after the Executive Board of the Defendant No. 1 had considered the per formance of the plaintiffs and all other relevant circumstances including their seniority and had fully satisfied themselves that the promotions were not justified. On cancellation of promotions the Plaintiffs' entitlement in relation to salary was relegated to that which it was prior to the promotion. It has been further pleaded that the principle of natural justice was not attracted to the facts of the case since a hearing is normally only given before imposing the punishment. As the cancellation did not take place by reason of any misconduct on the part of the plaintiffs after. their promotions but by reason of the fact that the initial act of promotion was unjustified there was no question of the plaintiffs being given a hearing. On the basis of these pleadings the following issues were framed:‑---

(1) Whether the suit is bad by reason of misjoinder of plaintiffs or causes of action

(2) Whether order of cancellation of promotion of the plaintiffs dated 19‑3‑1979 is in violation of the principles of natural justice If so, what is the effect

(3) Whether the plaintiff is entitled to any of the reliefs claimed by him

(4) What should the decree be

3. After the plaintiffs' learned counsel had completed the argument on 4‑3‑1982 the learned counsel for the defendants partly argued and requested the matter to be fixed on 16‑3‑1982. On that date when the matter was called no one was present on behalf of the defendants therefore, I reserved the judgment but allowed the parties to file their written arguments which have been filed by them.

4. Issue No. 1.‑The main contention of the learned counsel for the defendants is that as the plaintiffs were separately employed and. had indepen dent dealings with the defendants No. 1 and as separate letters of cancellation of promotions were issued, the plaintiffs have distinct and different causes of action independent from each other and therefore they cannot file suit jointly with other plaintiffs. It may be mentioned here that in Suit No. 284/79 there are two plaintiffs, in Suit No. 285/ 79 there are nine plaintiffs. and in Suit No. 286/79 there are seventeen plaintiffs. The Plaintiffs in all these suits were promoted on different dates but it is an admitted position that the Executive Board of defendant No. 1 in its meeting held on 18‑3‑197) cancelled the promotions of all these plaintiffs. It was by one resolution that these promotions were cancelled which was communicated to the plaintiffs by the letters of defendant No. 2 dated 17‑3‑1979. The order of cancellation is materially the same. Mr. Khalid Anwar, the learned counsel for the defendants has relied on A I R 1926 Mad. 57 and A I R 1953, Born. 112 to support his contention that separate suits should have been filed by each plaintiff. In A I R 1926 Mad. 57 the facts of the case were completely different. The Court had upheld the objection mainly on the ground that the charge of misconduct against the plaintiffs were not identical and each plaintiff's case ought to have been dealt with on its own merits. Here in the present case the facts are completely contrary. The defendants have cancelled the promotion by a uniform steryo type order without any distinc tion. In A I R 1953 Born. 112 the shareholders of a company had filed a common suit for setting aside the contract of allotment of shares and for refund of money paid. In that case also the case of each share holder was to be considered on its own merits. Both the cases quoted above by the learned counsel for the defendants do not apply to the facts of the present case. In the present case, there is no dispute that the promotions of all the plaintiffs in all the three suits were cancelled by one resolution of the Executive Board of the defendant No. 1 dated 18‑3‑1979. It is this resolution which is in fact the operative order against all the plaintiffs which was communicated by the defendant No. 2 who has neither passed any order nor could have passed such an order. In this regard reference can be made to Order I, rule 1, C. P. C. which is an enabling rule. It permits the joinder of several persons as co‑plaintiffs subject to the condition that the right to relief to them arises out of the same act or transaction or series of acts or transactions whether jointly, severally or alternatively; and if such persons brought separate, suits, common question of law and fact would arise. In this regard the learned counsel for the plaintiffs has relied on A I R 1956 Assam 7, A I R 1932, All. 401, A I R 1942 All. 387 and A I R 1928 Cal. 92. If the conditions laid down in Order 1, rule 1, C. P. C. for trial of suit with several plaintiffs is not. satisfied the Court has ample power under Order I, rule 2, C. P. C to order separate trials. In the present case as is obvious common question of law and fact is involved. Considering the facts and circumstances of the case it would not be proper to order separate trial of the suit of each of the plaintiffs as joinder of the Plaintiffs will neither cause embarrassment nor it will delay the trial of the suits. In view of this discussion my finding on issue No. 1 is in the negative.

5. Issue No. 2.‑-The admitted position is that before cancelling the promotion of the plaintiffs no show‑cause notice was issued to them nor any opportunity of being heard was provided to them. The defendants have endeavoured to justify this action on the ground that in the facts and cir cumstances of the case no notice was necessary for the simple reason that the plaintiffs had not committed any fault and were not required to give any explanation. It has further been contended that the plaintiffs were not demoted but their promotions were cancelled and therefore no hearing was given to the Plaintiffs since under the rules as well as under the principles of natural justice a show‑cause notice is issued only when a person is called upon to explain some act on his part which is alleged to be wrongful. It has been contended on behalf of the defendants that the promotions were being cancelled not due to wrongful act committed by the plaintiffs but due to the fact that the promotions themselves were invalid. To support the contentions the learned counsel has referred to the National Bank of Pakistan (Staff) Service Rules, 1973. Rule 21 provides the circumstances in which the promotions are to be granted. Rule 36 provides for punishment and a proper procedure has been prescribed. Rule 39 provides that before a penalty is imposed on the employees a written explanation of the charges against him and show‑cause notice as to why disciplinary action should not be taken against him is to be issued. Therefore wherever a disciplinary action is taken notice is necessary. The learned counsel has contended that because in cases and circumstances which governed the plaintiffs' case no notice has been provided by the rules. The learned counsel for the defendant has not been able to show or point out any rule which may govern such a situation. In the absence of any provision in the rules the defendants contend that no notice is necessary. This contention has to be examined in the background of the circumstances of the case. The defendants have examined Ghulam Qadir who has stated that in Suit No. 284/79 promotion was made for Officer Grade I to Asstt. Vice President's Grade that is the Senior Grade III. In Suit No. 285/79 promotions were made from Officer Grade II to the Grade I and in Suit No. 286/79 the promotions were made from Officer Grade III to Grade II. He has also pointed out that the plaintiffs were not sufficiently qualified, experienced or had a clear record to entitle them to be promoted. He has stated that after promotions were made a large number of complaints were received by the Bank from various departments about the promotions given to the plaintiff's. The Bank in order to keep up the efficiency and for administrative reasons decided to reappraise the whole promotion in the light of applicable criteria. The Executive Board of the Bank, therefore, after due scrutiny of Service records and on consideration of the circumstances decided to cancel the promotions of those who were unjustifiably promoted. He further stated that in all, promotions of 57 officers of all the levels were cancelled and the plaintiffs were not demoted but their promotions were validly cancelled. The witness has described the procedure for granting promotions and has stated that. the then President of the Bank had approved all the promotions as laid down by the Executive Board. Rule .21 relating to promotion also provides that in special cases and for special reasons the rules laid down in sub‑rules (2) and (3) for promotion may be relaxed. The admitted position is that the Plaintiffs after being promoted continued in their new assignment and have even drawn the usual increment, allowances and benefits. It therefore seems clear that the decision taken by the defendants was in general terms in respect of the promotions that were granted by the then President of the Bank which were scrutinised by taking into consideration the service records, seniority and efficiency of all the plaintiffs and adverse order was passed against them without affording them any hearing. The adverse order was not passed for the simple reason that the then President had no authority to pass such order but on the assessment of the service records, efficiency, past conduct and taking into consideration the rival claims of other employees who had been superseded. This process was not mechanical or clerical. It required application of mind to the facts of the case and therefore in such process the affected party should have been given an opportunity to explain their case. Without commenting upon, the merits of the impugned order it cannot be denied that by promotion chain rights and benefits were conferred upon the plaintiffs which continued for sufficiently long time. In the face of these facts vested rights had accrued to the plaintiffs which could not be disturbed or cancelled without hearing them. The defendants allege not to have levelled any charge against the plaintiffs for cancellation of their promotion and justify their action by stating that it was a mistake on the part of the previous management who had not taken into consideration the criteria laid down for promotions and it was granted without properly evaluating the service records of the plaintiffs and other employees. Whenever any adverse order is passed on the basis of comparative evaluation and assessment of rival claims, unless otherwise provided under the law and notice to the affected person is dispensed with, such person should be afforded a proper opportunity to present his case. The process adopted by the defendants entitled the plaintiffs to explain that in spite of the existing service records, they were entitled to such promotions. This aspect of the case has completely been ignored by the defendants. Merely by taking the blame upon themselves the defendants No. 1 cannot be absolved of the responsibility to hear the plaintiffs or violate the principles of natural justice. It will be a mockery to suggest that if a person commits any fraud or misconduct he is entitled to a show‑cause notice to explain his conduct but if a person is not guilty of any such misconduct because of the default of the employer an adverse order can be‑passed against such employee without any notice to him. Recognition of such a principle will give a handle to the employers to take the blame upon themselves and pass arbitrary and adverse orders against the employees. The principle of natural justice though not provided in rules for certain cases does not mean that the defendants were absolved from observing it. Where any proceeding affects any person, property or other rights then unless the applicability of the principle of natural justice is specifically excluded by law, the authority passing the order has to observe this principle. Any order passed in violation of the principles of natural justice is not sustainable. Reference can be made to the cams of Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45), Messrs Farid Sons Ltd. (P L D 1962 S C 394), Commissioner of Income‑tax v. Fazalur Rehman (P L D 1964 S C 410), Province of East Pakistan v. Nur Ahmed (P L D 1964 S C 451) and Ismail 1hrahim v. S. H. A. Gardezi (P L D 1981 Kan 622).

6. The learned counsel for the defendants has heavily relied upon the case of Muhammad Ismail Zafar v. Director General Pakistan Telegaraph and Telephone Department (P L D 1967 Kar. 22). Emphasis has been laid on the following observation :‑--------

"Now we are impressed by Brohi's further contention that the order of 21‑9‑1962 is illegal inasmuch as it viogates the principles of natural justice having been passed without notice to the petitioners. In our view no notice was necessary to the petitioners for the simple reason that the petitioners had done no wrong and had committed no fault that would require explanation."

7. To understand the clear and correct implication of this observation the remaining part of this passage is quoted below :‑

"Besides, it seems to us that the order dated 21‑9‑1962, deconfirming the petitioners was not in order to their detriment. On the contrary, the petitioner's own prayer in this petition is that their seniority had not been properly determined by the earlier orders Annexures C, D and E and should, therefore, be redetermined in accordance with the law applicable to them. Therefore, the petitioner can have no grievance with the order of 21‑9‑1962, because this order has cancelled the previous notification Annexures C, D and E against which they are seeking relief through this writ petition. They have also not asked for cancellation of the' order of 21‑9‑1962 so that notice to them was not necessary."

8. It is thus obvious that the observations relied upon by the learned counsel for the defendants were made with particular reference to the facts of the case. On facts this case is clearly distinguishable from the present one. Mr. S. Nasiruddin, the learned counsel for the plaintiffs has relied on the case P L J 1974 Lah. 287 and an unreported Judgment of the Lahore High Court in case of Muhammad Abdullah Khan v. National Bank of Pakistan in which the order passed for cancellation of the promotion was held to be illegal for want of notice. The learned counsel for the defendants has contended that in an identical petition No. 1694/79 the same Court has dismissed the petition for lack of jurisdiction and therefore Abdullah Khan's case is not binding. It has been further contended that Abdullah Khan's case is under appeal before the Supreme Court. The only distinction drawn by the learned counsel for the defendants is that in Abdullah Khan's case impugned order was challenged in writ petition whereas the present proceeding is in a suit. The principles laid down in Abdulla h Khan's case are of universal applicability and the mere fact that the present proceedings are in suit which are wider than the writ proceedings it cannot be contended that the principle followed in that case cannot be applied here.

9. The learned counsel for the defendants has further submitted that as the plaintiffs have not led any evidence and the defendant have produced evidence stating the illegalities and irregularities in the promotions given to the plaintiffs, all these facts should be taken to be correct and as the promotion was cancelled and the plaintiffs were not demoted no notice was necessary. In the present proceedings the issue under consideration is whether the promotion was cancelled in violation of the principle of natural justice. Whatever may Have been the considerations before the defendants the fact remains that the plaintiffs have been deprived of higher grade and have been relegated to a junior position without being heard. This by itself is sufficient to entitle them to challenge the impugned order, I do not wish to comment upon the efficiency, seniority or the irregularity of the promotions granted to the plaintiff's and without entering upon that aspect of the case sufficient to say that adverse order was passed against the plaintiffs without any show‑cause notice and therefore it cannot be sustained. My finding on the issue is that the order cancelling the pro motions dated 9‑3‑1979 was passed in violation of the principles of natural justice and is of no legal consequence.

10. Issue No. 3.‑The learned counsel for the defendants has contended that the plaintiffs are not entitled to the relief claimed in the suit. Mr. Khalid Anwar, the learned counsel for the defendants has relied on the cases of Malik & Haq v. Muhammad Shamsul Islam Chaudhry (P L D 1961 S C 531), R. T H. Janjua v. National Shipping Corporation (P L D 1974 S C 146), Gulf Steamship Company v. Dailwas Baloch (P L D 1962 Kar. 899), Muhammad Aslam v. National Shipping Corporation (P L D 1979 Kar. 246) Abdul Hamid v. Secretary, Rehabilitation & Revenue to the Government of Punjab (P L D 1980 Lah. 1), and Pakistan v. Muhammad Abdul Quddus (P L D 1961 Dacca 616). All these cases relate to wrongful termination of service. The well‑settled principle as laid down by the Supreme Court in Malik and Haq's case is that where the service of an employee is wrongfully terminated, the employee has only the right to claim damages for wrongful termination and cannot seek declaration that he continues to be in service. This is a well‑settled principle governing relation ship of master and servant. In the present cases the question of wrongful termination of service does not arise. The only grievance is that their promotions have been wrongfully cancelled ex parts. In these circumstances principle laid down in the aforestated cases cannot be applied to the present case.

11. Under section 42 of the Specific Relief Act a declaration can be granted to any person entitled to any legal character or to any right to any property or legal status. The position, office, rank, grade of pay and the benefits arising from such office are treated foundation of an employee's right if there is any change in the condition of service or rank and grade and such variation is to the detriment of such employee then his legal character is affected. In such circumstances a declaration can be sought. Reference can be made to the case of Pakistan v. Muhammad Abdul Quddus. In the case of District Board, Lahore v. Agha Muhammad Khan (P L D 1957 Lab. 781), it was held that "the office which a person holds, his rank as well as the grade of pay to which he is entitled, are all parts of his legal character for they are personal attributes of a person which are the foundation of his rights." It is therefore, clear that as the present suits relate to the cancella tion of promotion which has affected the plaintiff's right to hold and have a senior position, higher salary and benefits the plaintiff's legal character is involved and therefore they are entitled to a declaration. In the result the plaintiffs are entitled to declaration that the impugned orders of cancellation of promotion are illegal and without legal effect as having been passed in violation of the principles of natural justice without giving any show‑cause notice to the Plaintiffs.

12. Issue No. 4.‑-----In view of this aforestated discussion the suit is decreed against the defendants in terms of aforestated declaration with costs.

S. Q. Suit decreed.

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