2005 PLP (C (PLC(CS))

Plaintiff has instituted this suit for recovery of damages amounting to Rs.55,000,000 on account of wrongful removal from service. On his retirement from Pakistan Navy, plaintiff was appointed as Deputy Managing Director (South) Bahria Foundation w.e.f. 1-12-1999 vide letter dated 11-11-1999 on contract basis. Provision for termination of service is provided under clause `e of that letter. The same is reproduced herein:-- Vice-Chairman, Committee of Administration, Bahria Foundation Naval Headquarters, Islamabad Tel: 9204666 20062500 Fax: 9208897 BF/0601 Cdre Sadeed A Malik ST (M) House No.B5 NORE-II Liaquat Barracks, Main Shahra-e-Faisal, Near Aisha Bawany Academy, Karachi. 11 November, 1999. APPOINTMENT AS BY MANAGING DIRECTOR (SOUTH) BAHRIA FOUNDATION.

1. The Committee of Administration has approved your appointment as Dy. Managing Director (South) Bahria Foundation. You are to join Bahria Foundation on 1 December, 1999. The terms and conditions of your appointment will be briefly as follows:-- (a) Tenure of appointment. Two years, renewable at the discretion of the employer. (b) Probation Period. Three months. (c) Salary Basic Pay 16,668 House Rent Allowance 7,500 Utilities Allowance 1,666 Entertainment Allowance 2,000 Servant Pay 3,000 COLA 1,176 Total Pay 32,010 (d) Leave Entitlement: The entitlement for leave with pay will be as under: (1) Earned Leave at the rate of 1 day earned leave for every 11 days service. Subject to a maximum of 30 days per year. This leave may be encashed if not availed. (2) Casual leave will be admissible upto a maximum of 10 days during each year of the contract. (e) Termination of Contract: Either party may terminate the contract by giving to the other 60 days previous notice in writing or payment of a sum equal to 60 days salary in lieu thereof. (2) You will not enter into the service or employment of any other person or carry on business or be interested in any business now carried on the Bahria Foundation during the continuance of this agreement. (3) You are to sign and return the attached duplicate copy of this letter in token of acceptance of the terms herein contained. (Sd.) Masood M. Biabani HI (M) S.B.C Vice Admiral The performance of the plaintiff during the tenure of his services has also been appreciated by his Senior Officers vide their letter dated 5-11-2000 and 27-11-2000 photocopies are available on record. Vide letter dated 24 December, 2000, the plaintiff was re-appointed as Director Education and Training (South) Bahria Foundation with immediate effect on same terms and conditions as laid down in letter referred to above. It appears that on 7th May, 2001 Office Order No.11 of 2001 was circulated which reads as follows:-- Bahria Complex-11, 6th Floor M.T. Khan Road, Karachi-2 (Pakistan) Office: 5610264-242-243 Fax: (92-21) 5610749 P.O. Box No.6503 Karachi City GPO BAHRIA FOUNDATION 7 MAY, 2001. OFFICE ORDER No.11 OF 2001 Reference: COA Letter No. BF/0505/Vol-XII dated 19 April, 2001. Pursuant to COA decision (Reference A), henceforth Directors, Education and Training will be responsible to the Managing Director through their respective Deputy Managing Directors. (Sd.) Mahmood Ali HI (M). S.Bt Vice-Admiral Managing Director. Distribution: DMD (North) DMD (South) DET (North) DET (South) DF ABP ALA. Plaintiff felt aggrieved by this order as according to him the same amounted to a demotion and so also is in violation of the terms. Consequently, plaintiff approached the concerned officers vide letter dated 15-5-2001 which is reproduced hereunder:-- The Managing Director, Bahria Foundation, Karachi. Sir, BREACH OF CONTRACT Ref: A. NHQ Letter No.BF/0601 dated 11 November, 1999 B. NHQ Letter No.BF/0617 dated 26 December, 2000.

1. It is submitted that letter at ref B above appointing me as DET (South) is a breach of contract. The same was pointed out to the then Vice-Chairman Committee of Administration during an interview immediately after the issue of the letter. During that interview he had assured that consideration will be given to redress the situation after appointment of the new MD. The same was explained to new MD; no decision was given and it was said that it would be deliberated at appropriate level.

2. With the issue of office order No.11 of 2001 it appears that instead of remedying, Bahria Foundation persists on violating the contract.

3. Under these circumstances, therefore, I will not be able to continue with this breach in contract. However, without prejudice to my legal rights to oversee the projects that I have started in Bahria Foundation I will continue to serve for the next two months under protest. Yours faithfully (Sd.) 15-5-2001. (SADEED A. MALIK) Karachi, Cdre (Retd.) On 3-8-2001 notice of termination of service in pursuance with para-1(e) of the appointment letter was issued which reads as follows:-- Secretary, Committee of Administration, Bahria Foundation, Naval Headquarters Islamabad Tel: 0217461 Ext. 62506 20062506 BF/0617 Cdre (Retd) Sadeed A. Malik Dy. Managing Director (South), Bahria Foundation, Bahria Complex-11, 6th Floor, MT Khan Road, Karachi. 2001-3-August TERMINATION OF CONRACT-CDRE (RETD) SADEED A MALIK DMD (SOUTH). Reference: A. Vice-Chairman Committee of Admin Letter No.BF/0601 dated 11 November, 1999.

1. In accordance with para 1(e) of letter under reference you are hereby given sixty days notice w.e.f. 2 August, 2001 for termination of your contract.

2. Receipt of this letter is to be acknowledged. (Sd.) MS Ahmad SI (M) Commodore (Retd) Secy Committee of Admin Bahria Foundation. Copy to: Managing Director Bahria Foundation Karachi. This was followed by further representation demanding payment of compensation of Rs.10 Million by the plaintiff on account of compensation for breach of contract vide his letter dated 15-10-2002. It was followed by subsequent legal notice dated 20-3-2003. Whereby the amount of damages was raised to Rs.55,000,

000. On failure to get redress the plaintiff has now instituted the above suit seeking damages as under:--

1. Conveyance during the whole period (for moblisation) 500,000

2. Loss in job till date of filling suit. 1,000,000

3. Loss in professional worth and good will. 20,000,000

4. Mental torture 20,000,000

5. Agony suffered by the family 10,000,000

6. Miscellaneous 3,500,000 Defendants were served and on 11-11-2003 Mr. Rashid Tariq Khan Advocate undertook to file his Vakalatnama on behalf of defendants. Thereafter, on 16-1-2004, Mr. Muhammad Yaseen Azad Advocate filed power on behalf of the defendants and requested for time to file written statement but neither any written statement was filed nor any appearance was made on behalf of the defendants when the suit came up for final disposal. In support of the case learned counsel for the plaintiff has argued that the plaintiff has been unduly harassed. He was promised certain benefits including his present appointment at the time of retirement on the basis of which he agreed to his retirement instead of his promotion as Rare Admiral Pakistan Navy. He has been subject of malice and the act of termination of service has caused mental shock and disgrace to him as well as the members of his family, giving rise to the present suit for recovery of damages. In support of his contention, learned counsel has placed reliance on the following cases:--

1. Rasool Bukhsh v. Larkana Municipality and others (PLD 1957 Karachi. 489).

2. Noorul Hassan v. The Federation of Pakistan and 6 others (PLD 1955 Sindh 200).

3. Liaqat Ali Khan v. Secretary to the Government of Pakistan. Ministry of Foreign Affairs and Common Wealth Relation (PLD 1958 Karachi 117).

4. The Federation of Pakistan v. Fayyaz Ahmed (PLD 1958 (W.P. Lahore 500)

5. Cagle v. Burns and Roe (106 Wn.2d 911. 726 p.2d 434)

6. UBL and others v. Ahsan Akhtar and others (1998 SCMR 68)

7. City School Education Seciety v. Mrs. Talat Yazdani (2004 PLC 282)

8. Irshad Jahan v. PNSC (1999 CLC 192)

9. Sufi Muhammad Ishaque v. Metropolitan Corporation Lahore (PLD 1996 SC 737)

10. Ursulina D Lima and others v. Orient Airways Ltd. and another (PLD 1960 (W.P) Karachi 712).

11. Tahir Jahangir and another v. DON Waters (2003 CLC 1699)

12. Mrs. Zahra Zaidi v. Anwar Khan Ghouri (2004 CLC 233)

13. Abdul Qadir v. S.K. Abbas Hussain and 2 others (PLD 1997 Karachi 566 ).

14. Pakistan International Airlines Corporation v. Syed Ali Raza Rizvi (1996 CLC 627). The documents on record reveal that the mode of termination of service is laid down in the letter of appointment itself. The plaintiff himself vide his letter dated 15-5-2001 had agreed to perform his duties for a period of two months only but he without any further protest continued to perform his duties. The letter of termination dated 3rd August, 2001 is a communication in pursuance to the terms of the employment and without assigning any other reason. Contention of the learned counsel that the termination of services of the plaintiff under the circumstances constituted a breach of contract as it was based on arbitrary and mala fide exercise of powers vide Office Order No.11 of 2001 already reproduced above require examination. The order reveals that it has been addressed to all the Deputy Managing Directors which shows that it was an administrative action pertaining to the affairs of the organization all over the country. It is neither applicable only against the plaintiff nor affects the duties that he was performing or assigned. There is nothing on record to show that there was any variation in the nature of his duties or the work assigned to him. The plaintiff was at liberty to have stepped down but he continued to offer his services for a period of two months without any coercion and also received his salary and benefits. The case-law cited by the learned counsel on point of dismissal from service of public employees working/governed by statutory provisions involving dismissal or termination of service as a form of punishment awarded to an employee under the respective Statute or Rule, are not attracted to the facts of the case. In the instant case the service of the plaintiff has not been terminated as a penalty or punishment, nor any disciplinary action is stated to have been taken. No statutory rules to this effect have been relied upon. Under these circumstances the question of any stigma on the career of the plaintiff would not arise. Plaintiff agreed to the contract of service providing for termination as one of the agreed terms. He cannot now turn around and make a grievance of termination of service in pursuance to the agreed terms of the contract. Learned counsel has also placed on record photocopy of judgment in C.P. No.1455 of 2002 preferred by the plaintiff against his retirement from the Pakistan Navy which shows that he was very much aggrieved by his retirement and it was not on account of any understanding as contended by the plaintiff. The case-law cited by learned counsel for the plaintiff are based on dismissal of service and on the point of relationship of master and servant. The same are not relevant to the instant case as the plaintiff was admittedly appointed on contract basis and the contract was terminated as per terms and conditions of the contract. No allegation of misconduct or incompetence has been levelled on the plaintiff while terminating the contract hence question of damages on account of wrongful dismissal from service and mental agonies or defamation does not arise. Learned counsel has not been able to show any case-law in which contract was terminated. The case of CAGLE v. Burns and Roe (supra) is also not applicable in the present case as no violation of public policy has taken place. It is now settled law that in cases where the employment is under a contract providing for termination of service after service of notice for a stipulated period, either side is at liberty to avail the benefit of the stipulation. In case a proper notice is not served then all that the other party is entitled to recover is the amount equal to the salary of notice period. However, when the notice as stipulated is served, the employment comes to an end in pursuance to the agreed terms of contract which by itself does not give rise to an action for damages. Mere fact of redesignation of post or change of administrative policy under the circumstances can at best be termed as a technical breach of contract for which the plaintiff is awarded nominal damages in the sum of Rs.1000 without any order as to costs. M.H./S-94/K Order accordingly.