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Saturday January 29, 2022

‘Master’ and ‘servant’

August 24, 2021

If you think I’m going to dwell in this piece upon the relationship between our executive and alleged ‘selectors’, you’re totally mistaken. I’m talking about an issue closer to real life, one which affects the lives and livelihood of thousands of ordinary Pakistanis, although you’ll never hear about it in the media.

I’m referring to a legal doctrine coined by the Pakistani superior courts over the last few years: ‘the doctrine of master and servant’. This is a legal doctrine that presently governs the relationship between autonomous statutory corporations and their employees. Unlike those proper ‘sarkaari mulazims’ who are directly employed by the federal or provincial governments, this category of employees, which include the likes of university professors, senior regulatory officials and public-sector company managers, has been left by the court almost entirely at the mercy of their employers. If you are one of those unlucky persons whose employment is governed by the rule of master and servant, in most cases, the courts will not restore you. No matter how wrongfully you may have been terminated, all you can claim is damages, which, of course, will take years to materialize.

It wasn’t always like this.

Since the early 1950s, when writ jurisdiction was first conferred upon Pakistan’s constitutional courts, public servants have remained the largest category of litigants in our court system. This is hardly surprising. In any polity which is based on rule of law, courts have to ensure that the state’s most intimate relationship – its relationship with its own employees – is governed strictly by law and not by the whims and fancies of the top officials.

However, the frequent resort by aggrieved public servants to the writ jurisdiction of the high court also led to a vast increase in their caseload. Overburdened high court judges started looking for ways to ward off this deluge of litigants. That is the socio-legal reality in which our courts coined the doctrine of statutory/non-statutory rules. The employment rules of the vast bulk of statutory corporations have been declared as non-statutory rules. The result is that employees of such organizations cannot approach the high court and get a ‘writ’ issued.

Had the courts stopped there, this may have been acceptable. Aggrieved employees could still have approached the civil courts for getting an ‘injunction’, which in practice is as good. But the courts, in recent years, have gone a step further. They have started saying that if your employment rules are non-statutory, you are governed by what they described as “the rule of master and servant”. This means that you are not only disentitled from obtaining relief in the constitutional courts, you cannot seek reinstatement even in the ordinary civil courts.

As a result of the rise of this doctrine, top administrators of statutory corporations have been vested with almost unchecked power over the careers of public-sector employees. Unbeknownst to many, our semi-government institutions – the likes of universities, regulatory bodies and public-sector companies – are turning into personal fiefdoms, and public servants have been reduced into minions.

Thankfully, this pernicious legal doctrine can be easily deconstructed through legal reasoning. Here’s how.

First, this doctrine lacks any solid statutory foundation. If you ask any judge or lawyer about the statutory basis for it, their argument runs something like this: reinstatement is a form of injunctive relief granted under the Specific Relief Act, 1875. Section 56(f) of the Act states that an injunction cannot be granted “to prevent the breach of a contract the performance of which would not be specifically enforced.” Contracts which cannot be specifically enforced include contracts which are “dependent on the personal qualifications or volition of the parties…” such as contracts “to render personal service”.

To re-cap, the argument of the proponents of the doctrine of master and servant is that the contract between a statutory corporation and its employees is a “contract to render personal service”; therefore, this sort of a contract cannot be specifically enforced nor can its breach be prevented through an injunction.

This is exactly where the argument becomes fallacious. "Personal service" and "institutional service" are not one and the same thing. The term ‘personal service’ referred to the service of a natural person, not the service of a juridical person or a corporation – and this was especially so back in 1875 when the Specific Relief Act was promulgated. The idea behind this rule was that if an aristocrat no longer wanted to continue employing a particular barber, cook or washerwoman, then the courts would not impose such a servant upon the unwilling master, all contractual obligations notwithstanding.

To lift this rule regarding personal servants of aristocrats out of its medieval English context and apply it upon 21st century quasi-government institutions in Pakistan is a most disingenuous idea. Whoever first made this leap of logic did us a great disservice. It is not too late for our courts to realize this fallacy.

The other great weakness of the doctrine of ‘master and servant’ is that it is based upon a complete misreading of the foundational texts of English law. Anyone who bothers to actually read these foundational texts will realize that the doctrine of master and servant was meant to be a private law doctrine, and not applicable in public law, even back then.

Take, for instance, William Blackstone's ‘Commentaries upon the Laws of England’, first published in 1765. Blackstone’s Chapter XIV deals with the rule of "Master and Servant". The first line says it all: “Having thus commented on the rights and duties of persons, as standing in the public relations of magistrates and people, the method I have marked out now leads me to consider their rights and duties in PRIVATE ECONOMIC RELATIONS… The three great relations in private life are, one that of master and servant…” Any fair reader of Blackstone will be able to grasp that the doctrine of master and servant was meant to be a doctrine of private law, not public law. The principles of public law, even in medieval England, were not so arbitrary. That Pakistani judges and lawyers in the 21st century have given such a disingenuous twist to this doctrine says something about the prevailing post-colonial despotic mindset. Blackstone would be shocked.

To sum up, if we are to create autonomous, rule-of-law based institutions in Pakistan, the contracts which these institutions enter into with their employees must be strictly enforced – if not by the high courts, then by the civil courts through injunctions. This is a responsibility the judiciary cannot possibly shirk. The pernicious doctrine of master and servant – which is, in any case, devoid of solid legal foundations – needs to be re-visited.

The writer is a partner at The Law and Policy Chamber.

Email: umer.gilani@gmail.com

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