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Miscellaneous Petition No. 20 of 1986 in Appeal No. 4(R) of 1986, decided on 15th March, 1986.

---S. 4--Specific Relief Act (I of 1877), S. 56--Ad interim injunction, grant of--Principle of--Employee removed from service having prima facie case, with balance of convenience equally divided, held, would not be entitled to relief of ad interim injunction because such employee, on success in appeal, would be entitled to back benefit and thus would not suffer from irreparable loss--Injunction could not be granted to interfere with public duties of Government Department--Where equally efficacious relief could be obtained the discretion to grant injunction would not be exercised.

Government of Sind v. Ghulam Muhammad 1973 S C M R 96 and Province of West Pakistan v. Malik Asghar Khan 1971 S C M R 569 ref.

---Art. 175(2)--Service Tribunals Act (LXX of 1973), S.4--Injunction, grant of--Power of Tribunal to grant--Grant of injunction being ancillary and incidental to main appellate jurisdiction of Tribunal, bar placed by Art. 175(2) of Constitution of Pakistan (1973), held, would not be applicable.

---S. 4--Specific Relief Act (I of 1877), S.56--Removal from service- Appeal against--Ad interim injunction--Competency of--Grant of injunction would be matter of pure discretion depending upon circumstances of each case--Prayer of injunction to disturb functioning of Government Department, held, would not be granted except for compelling reasons.

S. Jamshed Ali for Petitioner.

Muhammad Amir Akbar Khan for Respondent.

Date of hearing: 13^th March, 1986.

The appellant was removed from service under the WAPDA Employees (Efficiency and Discipline) Rules. An appeal has been filed to challenge the order of his removal and simultaneously the present miscellaneous petition has been brought before us, praying stay of the order of removal, during the pendency of appeal.

2. The learned counsel for the petitioner contended that the order is without jurisdiction and that proper procedure has not been followed.

He also urged that the appellant has a good prima facie case on merits as well, and that the impugned order is ex facie unjust and harsh, and that the penalty, in these circumstances of the case, is excessive.

3. There may be, prima facie, a case in favour of the petitioner. The balance of convenience is equally divided, but the question is whether the appellant shall suffer irreparable loss or not, cannot be answered in his favour; for if he succeeds in the appeal, he will be entitled to back benefits.

4. Apart from what has been stated above, the principles of granting interim injunction during the pendency of an appeal, are the same which govern the grant of a permanent injunction under section 56 of the Specific Relief Act, 1877. Clause (d) of that section provides that B injunction should not be granted to interfere with, the public duties of a Government Department, while clause (i) lays down that where equally efficacious relief can be obtained, the discretion to grant injunction should not be invoked.

5. The learned counsel for the petitioner, however, retied on the case of Government of Sind v. Ghulam Muhammad 1973 S C M R 96 where temporary injunction granted by the three Courts below was not interfered by the Supreme Court. In this case, the law laid down by the same Court in the case of Province of West Pakistan v. Malik Asghar Khan 1971 S C M R 569, that a temporary injunction should not ordinarily be issued to Government department in respect of service matters, unless there are compelling reasons to do so, was distinguished. Reliance was also placed on the case of Sind Employees Social Security Institution v. Adamjee Cotton Mills Ltd. wherein it was held that the grant of temporary injunction is ancillary to the jurisdiction and that Article 175(2) of the Constitution is no bar to the granting of such injunction.

6. As far as the last case is concerned, the Tribunal has also been consistently of the view that grant of injunction being ancillary and incidental to the main appellate jurisdiction of the Tribunal, the c bar placed by Article 175(2) of the Constitution is not applicable, because the exercise of inherent jurisdiction is distinguishable from the exercise of ancillary or incidental jurisdiction.

7. However, without prejudice to the power of the Tribunal to grant temporary injunction, we are of the opinion that each case has to be examined on its own merits. In the case of Government of Sind v. Ghulam Muhammad, referred to above, the Supreme Court did not, interfere with the orders of the three Courts below which granted interim injunction, 'presumably for the reason that the matter of grant of injunction is one of discretion and when discretion is exercised by one Court, that should sparingly be interfered by the higher Court. In this case even the High Court had upheld the orders of the Civil Judge and the District Judge granting the injunction, and therefore, the Supreme Court did not consider it proper to interfere with the orders of the Courts below. On the other hand, in the case of Province of West Pakistan v. Malik Asghar Khan it was specifically laid down on the principles laid down in clause (d) of section 56 of the Specific Relief Act 1877, that injunction should not be granted to interfere with the functioning of the Government departments. In the latter decision in Government of Sind v. Ghulam Muhammad the law laid down in this case was not disapproved. 8. In our opinion, the grant of injunction is a matter purely of discretion, depending upon the circumstances of each case and when a prayer is made to disturb the functioning of the Government Departments, injunction cannot be granted, except for compelling reasons. We are, therefore, not inclined to accept that the appellant is entitled to grant w; of injunction in this particular case where order of removal has been passed and the question of jurisdiction and the merits of the case are debatable points. We also no not find any substance in the arguments of the learned counsel for the petitioner that the order of removal from service amounts to disgracing the appellant and to undo injustice, temporary injunction would be a consolation to the appellant. In our opinion, the matter shall be threshed out at the time of final hearing of the appeal. Ad interim injunction granted on 13-2-1986 is consequently vacated. Parties to be informed.

A.A. Petition for injunction rejected.

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