2002 PLP 124 (PLC)

"To declare that the plaintiff is entitled to remain in service of the defendant‑Bank and that the order dated 13‑8‑1991 dismissing the plaintiff from service in his capacity as Accountant (then working in the Khanpur Mahar Branch of the Muslim Commercial Bank Ltd.) is illegal, void ab initio; mala fide, and therefore not binding on the plaintiff. To grant mandatory injunction to the, defendants‑ to reinstate the plaintiff in service from 13‑8‑1991 and to award all service back benefits including seniority in service from the date."

6. Upon service of notice, the applicants filed an application under Order VII, rule 11, C.P.C. pleading therein that the suit was barred by the law. After hearing the parties, learned trial Court came to the conclusion that the suit was barred by the law and accordingly rejected the plaint of the plaintiff under Order VII, rule, 11, C.P.C. The plaintiff/respondent No.1 challenged the said orders in appeal which were reversed vide judgment dated 21‑4‑1999 resulting in filing of the present revision application.

7. Both the learned counsel have been heard.

8. Learned counsel for the applicant has contended that the suit by the plaintiff/respondent was barred by the principles of constructive res judicata. He further contends that the respondent was governed by the law of master and servant and thus, had no legal character to maintain a suit for declaration under section 42 of the Specific Relief Act. Learned counsel next argues that in the alternative the suit of the respondent/plaintiff was barred by limitation. In support of his above contentions learned counsel relied upon the following cases‑law: (i) 1998 SCMR 68, (ii) 1994 SCMR 2232, (iii) PLD 1984 SC 194, (iv), 1972 PLC 190, (v) PLC 1993 Lahore 281, (vi) 1983 PLC 1284, (vii) 1977 PLC 6, (viii) 1994 MLD 207, (ix)1992 CLC 1122 and (x) PLD 1982 Karachi 313.

9. On the other hand, learned counsel for the respondent contends that the case of the plaintiff will not be hit, by the principles of res judicata as the findings of fact recorded by the labour forums were without jurisdiction. He further submits that since the plaintiff has no other remedy, the Civil Court being the Court of ultimate jurisdiction, it was competent to grant the relief claimed. He next contends that the delay in filing the suit was condonable under section 14 of the Limitation Act, 1908, as the plaintiff bona fidely approached wrong forum. He next argued that the rejection of plaint by the learned trial Court without framing the issue was not warranted. Learned counsel has placed reliance upon case‑law reported in 1997 PLC (C.S.) 1014.

10. I have considered the arguments advanced at the bar and have also benefited from the case‑law relied upon by the learned counsel for the parties.

11. There is no denying the facts that after his dismissal on 13‑8‑1991, the respondent approached the Labour Court. The Labour Court after complete trial adjudicated the matter and gave findings against the appellant on two counts, firstly, that the allegations of, misappropriation of Rs.1,100,000 was proved against the appellant and, secondly, the appellant having the powers of supervisory nature was not eligible to invoke the jurisdiction of the Labour Court as he did not fall within the definition of workman. The appellant assailed the said orders before the Labour Appellate Tribunal which maintained the decision of the Labour Court and also held that the appellant could not escape the liability of misconduct. The findings recorded by the two labour forums were maintained by this Court in Constitutional Petition No. 466 of 1995.

12. The suit for declaration is governed by section 42 of the Specific Relief Act, and it will be appropriate to reproduce section 42 of the Specific Relief Act:‑‑ "Discretion of Court as to declaration of status or right‑‑‑ Any person entitled to any legal character, or to any right as to any property; may institute a suit against any person denying or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief: Bar to such declaration‑‑‑Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."

13. Bare reading of section 42 will adequately reveal that it is not every form of declaration which could be sought by a person under the said section but only such declaration which relates to the entitlement of the plaintiff to any legal character or to any right as to property.

14. Admittedly the applicant was employed with the Muslim Commercial Bank Ltd.; which is a Banking Company, registered under the Companies Ordinance (Now Act; 1984) and is not a statutory organization. The employment of the officers of the Bank is contractual in nature.

15. It is act established principle of law that a declaration under section 42 of the Specific Relief Act is not available to contractual employment inasmuch as damages would be an adequate remedy for illegal or unlawful termination of the services by the employer. It is because of this reason that an employee of a private organization does not possess any legal character/status as envisaged by section 42 of the Specific Relief Act. It is also an established principle that illegality in dismissing/terminating the services of a private employee is of no consequence and would not provide a dismissed employee the right to seek reinstatement in service. In support of the above contentions reliance can be placed on R.T.H. Janjua v. National Shipping Corporation, PLD 1974 SC 146 and Anwar Hussain v. Agricultural Development Bank of Pakistan, and others PLD 1984 SC

194. This view has further been affirmed by the Hon'ble Supreme Court in Aurangzeb v. Messrs Gool Bano Dr. Burjer Ankalseria and others reported in 2001 SCMR 909.

16. From the above it is clear that the respondent has no legal character/status to establish his entitlement to seek a prayer of declaration under section 42 of the Specific Relief Act.

17. Learned counsel for the respondent sought to argue that the dismissal of the applicant had taken place in violation of M.C.B. Staff Service Rules: Thus, the suit was maintainable. The argument is devoid of force for the simple reason that since the applicant itself was not the creation of a statute, rules framed by the Board of Directors of the Company could not have the force of law. Such rules can be determined to be mere instructions to be followed for the purpose of regulating the terms and conditions of the employees of the Bank. In such circumstances the respondent shall certainly be governed by the ordinary law of Master and Servant. It is a time tested principle that an undesirable servant cannot be thrusted upon an unwilling master. The declaration which the respondent/plaintiff was seeking was, thus beyond the jurisdiction of the Civil Court. Reliance can be placed on Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. and 2 others 1995 SCMR 453.

18. Regardless of the above‑stated legal proposition it is evident from respondent was issued a charge‑sheet and, consequently an inquiry was conducted in the allegations of misappropriation which he is alleged to have committed as an officer of the bank. It is also an admitted fact that the appellant participated in the inquiry and on the basis of the report of inquiry committee the orders of dismissal of the respondent were passed by the Bank authorities. In the circumstances, it could not be said brat the respondent .was condemned unheard or that any of the settled principles of natural justice were violated in the case of the respondent.

19. The limitation for filing suit for declaration is provided under Article 120 of the Limitation Act, 1908 which is six years from the date of right to suit. Naturally the right to sue accrues to the plaintiff when his right is denied by the defendant. In the instant case the applicant was dismissed from service in the year 1991 while he filed the suit on 16‑6‑1998 i.e. after a lapse or more than six years, when the right could be said to have accrued to the plaintiff/respondnet. Thus, the suit filed by the respondent/plaintiff was patently barred by limitation.

20. I do not find any weight in the argument advanced by the learned counsel for the respondent that the time spent by the respondent was in any manner condonable under the provisions of section, 14 of the Limitation Act, 1908 as the respondent/plaintiff himself chose to prosecute his case even in Constitutional jurisdiction of this Court, after exhausting the remedies available under the law.

21. No doubt for rejection of a plaint in suit it is normally the statement; itself in the plaint or in the documents on which it is based, are to be taken into consideration. However, Order VII, rue 11, C.P.C. is not exhaustive of the situation in which the plaint may be rejected or a suit can be dismissed summarily. It is the consistent view of the superior Courts that such litigation must be throttled at the outset and an still‑born suit must be buried without the formality of a ceremony. The cases on which reliance can be placed are Bermah Eastern Ltd. v. Employees' Union PLD 1967 Dacca 190, Muhammad Akhtar v. Abdul Hadi 1981 SCMR 878; Nazeer Ahmad v. Ghulam Mehdi 1988 SCMR 824 and Shahnaz Begum v. Zulaikha Bibi, 1990 CLC 1526. The facts narrated above clearly reveal, that the suit was barred under the Specific Relief Act, as well as the Limitation Act. Since the legal factual position was clear on the face of record, and no factual inquiry was necessitated, learned trial Court was not required to frame issues. It is not a hard and fast rule that before rejection of a plaint, evidence must be recorded in each and every case. The contention of the learned counsel is, thus misconceived and is repelled.

22. From the above conclusion it is crystal clear that the suit of the respondent was not maintainable, and the plaint was rightly rejected by the trial Court.

23. The upshot of the above discussion is that the revision application stands allowed. The judgment of the Appellate Court is set aside Resultantly, the order passed by tie leaned trial Judge is maintained. H.B.T./M‑291/K Revision allowed/Order accordingly.