2017 PLP (C (PLC(CS))

MUHAMMAD IQBAL KALHORO, J.

This is a suit for recovery and damages, filed by plaintiff namely Brig. R. Arif Mahmud Malik against defendant/Karachi International Container Terminal.

2. Brief facts are that the plaintiff was appointed as Manager Administration and Support Services for a period of three years on contract basis by the defendant vide letter dated 04.05.2006. Although the appointment letter stipulated that during the first six months of the employment, the plaintiff would be on probation, but the defendant on being satisfied with the performance of the plaintiff confirmed his employment within three months of such period. At the time of appointment, the plaintiff was already serving at a senior position in National Logistic (Cell (NLC) at Rawalpindi, but on assurances by the defendant of further promotion he moved his entire family from Rawalpindi to Karachi and joined them. During his service, he was time and again assured by the defendant of security of job and further promotion. However, vide letter dated 30.10.2007; service of the plaintiff was terminated by the defendant without any apparent reason by resorting to sub-clause (4.2) of clause 4 of the appointment letter. According to the plaintiff, this was a gross violation of solemn assurances and commitments made to him by the defendant regarding promotion and security of the job. Many a times the plaintiff was offered jobs of a higher position by some other private companies but on account of assurances of the defendant, he declined to accept the same. The termination not only has caused substantial financial loss to the plaintiff, but he and his family have suffered emotionally as well. Due to termination, the plaintiff has to relocate and resettle his family that entails great encumbrances, for, the plaintiff will have to get re-admission of his kids in schools, find another home and make efforts to seek another job with the entities, whose offers he had already declined. In such a scenario, the plaintiff claims that he is entitled to the salary of unexpired term of the contract, and a sum of Rs.2,000,000/= as damages for placing him in such a position; and causing him financial loss by unlawfully terminating his contract. According to the plaintiff, he made many demands from the defendant to recover the above said amount but to no avail. He in this regard also served a legal notice upon the defendant on 28.11.2007, which was replied by it on 10.12.2007 denying the claim of the plaintiff, hence this suit on the following prayers:- (a) To direct the defendant to pay the plaintiff Rs.45,032,50/= (Rupees forty five lacs three thousand two hundred and fifty) on account of salary for the unexpired period of the contract i.e. 19 months and damages of Rs.20,000,00/= (Rupees twenty lacs). (b) Any other relief which this Hon'ble Court may deem fit and proper in the circumstances. (c) Cost of the suit.

3. Defendant has filed the written statement raising preliminary legal objections to the suit on the ground of maintainability, and by pointing out that relations between it and the plaintiff are governed by the principle of Master and Servant. Case of the defendant, is that according to the terms of the appointment letter, both parties had a right to terminate employment of the plaintiff by giving one month's notice in advance or making payment in lieu whereof. Termination of the plaintiff from the service took place in accordance with the terms and conditions of the contact and it was effected with the approval of competent authority. While denying the averments of the plaint relating to claims made by the plaintiff, the defendant has lastly prayed for dismissal of the suit.

4. On the basis of contentious points between the parties in their pleadings, the following issues were framed:- (i) Whether the suit as framed is not maintainable in law? (ii) Whether the letter dated 30.10.2007, issued by the defendants was in breach of the representations made to the plaintiff as well as in violation of the principles of natural justice? (iii) Whether any damages of the kind claimed in the plaint can be claimed where the governing law is the law of Master and Servant? (iv) Whether the plaintiff is entitled to the relief(s) as prayed for in the plaint? (v) What should the decree be?

5. During the trial, the plaintiff filed his affidavit-in-evidence as Exb.P, his evidence was recorded at Exb.P. He produced photocopies of the following documents before the Commissioner. 1 Appointment Letter dated 04.05.2006 as Exb.P-1.

2. Termination Letter dated 30.10.2007 as Exb.P-2.

3. Legal Notice dated 28.11.2007, issued to Defendant as Exb.P-3.

4. Reply of defendant dated 10.12.2007 to legal notice as Exb.P-4.

6. On behalf of the defendant, one Muhammad Yousuf Alam filed his affidavit-in-evidence at Exb-D, his evidence was recorded on 02.11.2013 at Exb-D and he produced photocopies of the following documents. He also produced original Authority Letter dated 09.09.2013, which was seen and returned after retaining its photostat copy:-

1. Full and Final Settlement of Provident Fund Account as Exb.D-1.

2. Acknowledgment receipt regarding payment of Provident Fund as Exb.D-2.

3. Cheque dated 30.10.2007, amounting to Rs.239,253/- as Exb.D-3.

4. Settlement statement regarding Gratuity Fund as Exb.D-4.

5. Acknowledgement of Gratuity fund along with copy of cheques dated 30.10.2007 as Exhs. D-5 to D-5/1.

6. Documents regarding organizational restructuring as Exhs.D-6 to D-6/3.

7. I heard the counsel for the parties and perused the material available on record including the decisions cited by them at the bar. Learned counsel for the plaintiff in support of his arguments relied upon the citations reported in 2013 SCMR 120, 2015 PLC (CS) 323, PLD 1971 SC 550, 2009 CLD 1329, 2010 CLC 420, 2010 PLC (CS) 417, 2004 SCMR 1874, 2003 YLR 406, AIR 1940 Bombay 386, AIR 1929 Ranghon 167, AIR (sic) Dehli 427, AIR 1958 Supreme Court 12, AIR 1938 Madrass 672 and AIR 1969 Bombay 373.

8. On the other hand, counsel for the defendant in order to vouch for his contentions relied upon the cases reported in 2009 CLC 1329, 2010 CLC 420.

9. My findings on the above issues are as under:- Issue No.1 Negative Issue No. 2 Negative Issue No. 3 Replied accordingly. Issue No.4 Replied accordingly. Issue No. 5 The suit is partly decreed. The plaintiff is entitled to receive a notice of 120 days or the payment in lieu thereof.

10. Reasons on these findings. Issue No.1. Burden to prove this issue lies on the defendant. No evidence has been led by it to establish that the suit filed by the plaintiff is not maintainable. Even during the course of final arguments, learned counsel for the defendant did not refer to any material suggesting that the suit is not maintainable. I am of the view that the plaintiff can maintain the instant suit against the defendant on the basis of facts he has pleaded in his plaint. The issue therefore is replied in negative. Issue No.2. Onus to prove this issue lies on the plaintiff. He has examined himself and produced certain documents as referred to above. The plaintiff has stated in his plaint and evidence that on assurances of the defendant regarding promotion and job security for the entire period of 3 years of the contract, he joined the defendant as Manager Administration and Support Services. His termination vide letter dated 30.10.2007 is in breach of all those assurances and representations made to him. His claim however has been vehemently denied by the defendant. Apparently a word against a word has come in this regard. The claim of the plaintiff has met the counter-claim in such a situation under the law it is the plaintiff who must fail. For, he has to establish that he was extended assurances of job security and further promotions. He has not produced any document or examined any witness supporting him on the fact that apart from the terms and conditions mentioned in his appointment letter, he was promised of any additional assurances regarding job security. There is nothing on record to indicate that the plaintiff was assured that the terms contained in his appointment letter regulating his service were merely a formality and were not meant to be adhered to in any case as per their context provided therein. The plaintiff has talked about all these assurances generally without specifying as to which officer of the defendant had given him an additional word for his job security and further promotions and exactly when such kind of promise was extended to him, or whether such assurances were made to him in writing or they were simply oral promises. Although he has talked about his performance with the defendant and according to him due to his efforts the defendant earned a lot of business, but again these are mere ascertains without any evidence substantiating his claim. He has not produced any testimonials/certificates showing his extraordinary performance. In the trial the plaintiff did not seek to summon any officer of the defendant to verify his stance. To prove that termination letter is in breach of any additional promises made to him relating to his service, the plaintiff, in terms of Article 120 of Qanun-e-Shahadat, 1984, is bound to establish first the additional assurances or representations made to him by the defendant. As discussed above nothing has been brought by the plaintiff to suggest so, except his word in this respect. Simply on the basis of his evidence, it cannot be inferred that the plaintiff, apart from the terms and conditions which are already mentioned in his appointment letter, had accepted the job on any other extraneous considerations, which stipulated a situation different than the one visualized in his appointment letter. Learned counsel for the plaintiff tried to establish his case on the premise that the person who adduced evidence on behalf of the defendant was not duly authorized to do so in terms of Order XXIX, Rule 1, C.P.C. His evidence had no merit of the evidence as provided in the law and could not be read so. Therefore, he stressed, that the pleadings of the plaintiff and his evidence stood un-rebutted and when the plaintiff's evidence was un-rebutted, his suit was bound to be decreed. I do not find myself agreeing with the learned counsel on this point, for the reasons by the Board Resolution dated 3.8.2007 Mr. Anjum Sajjad as the Chief Executive Officer and Mr. Ameer Hussain, who has filed the written statement on behalf of the defendant, have been duly authorized to deal with jointly and severally all the legal affairs or any legal proceeding before any forum in support the defendant company. And the person namely Muhammad Yosif who has adduced evidence on behalf of the defendant has been authorized by the Chief Executive Officer. The defendant admittedly is a company, which in regard to its main-power and machinery continuously undergoes certain changes and once its Chief Executive Officer is empowered by the board resolution to deal with all the legal affairs and the ancillary matters arising out of it, his authorizing an employee of the company to adduce evidence on behalf of the company cannot be legally questioned. Notwithstanding the above, as per Articles 117 and 118 of Qanun-e-Shahadat, 1984, if a person desires the court to give judgment as to any legal right or liability that is dependent on the existence of facts which he asserts, then he must prove those facts to exist. As discussed hereinabove, nothing has been produced by the plaintiff to prove that any extra assurances or promised other than the ones already stipulated in the appointment letter were extended to him by the defendant to hold that his termination from service resulted into breach of any such those assurances or promises. Accordingly this issue is replied in negative. Issues Nos.3 and

4. I like to discuss both of these issues together as the result of issue No.3 may influence the result of issue No.4. In regard to the legality of issue No.3 that whether the plaintiff can claim damages against the defendant on termination of his service before the expiry of contract period, when his relations with it are governed by the principle of Master and Servant, I am of the opinion that to file the suit for damages is the only remedy available to the plaintiff. He cannot, of course, ask for restitution of his service under the circumstances. Nonetheless, the burden to prove his entitlement to the reliefs on the grounds as stated by him in the plaint is on him. He has to establish that abrupt ending of his service by the defendant is in breach of the contract and has resulted into financial loss and mental suffering or anguish to him and his family. These are mainly the grounds taken by him in his pleadings to prove his entitlement to the relief of damages. In his evidence the plaintiff states that, he was extended many assurances of job security and further promotions by the defendant and on the basis of such commitments, he moved his family from Rawalpindi to Karachi and severed all business ties with that city; that the termination letter is a gross violation of all those solemn representations made to him; that because of those misleading assurances, he refused to accept other more secured and highly-paid jobs, and resultantly, due to termination, he has suffered a substantial, financial loss and that is besides the severe mental anguish he and his family have suffered. He further states in his deposition that due to termination of service, as a natural consequences, he will have to move back his family to Rawalpindi, make efforts to find out new house there, get his children re-admitted in schools there and finding a new job with the employers, whose offers he had already turned down due to promises made by the defendant. I have perused the entire case of the plaintiff, on all these assertions, only his word has come on record without any supporting evidence either oral in nature or documentary. Under the provisions of the Qanun-e-Shahadat Order as discussed above, the plaintiff has to prove all these facts; that he has a family; that his family was residing in Rawalpindi previously before joining the present job here in Karachi; that he has got children; that his children were admitted in schools at Rawalpindi; that he shifted his family from Rawalpindi to Karachi on account of his job; that he got his children admitted in schools at Karachi; that he was offered more secured and highly-paid jobs from other companies; that he refused to accept them; that after termination of service he moved back his family to Rawalpindi; that he found out a new house there for residence; that he got his children readmitted in schools at Rawalpindi and that he remained unemployed for a certain period and made efforts to seek a new job but was unsuccessful and if it was so, for how long he remained unemployed. Since all these facts have to be considered to decide entitlement of the plaintiff to the damages, he has to bring them on record for the court's assistance. These all facts cannot be simply presumed to have happened under Article 129 of the Qanun-e-Shahadat Order to decide the issue in favour of the plaintiff. The plaintiff on the basis of these facts is claiming damages against the defendant, therefore, he is required to establish through convincing and supporting documentary evidence that all these facts have in fact happened in the manner as described by him. Admittedly any compensation or damages cannot be awarded to the plaintiff for a loss or damage which has been sustained by him indirectly by reason of the breach of the contract. The plaintiff has to bring on record the facts, which must solidify his pleadings made in the plaint, through corroborating evidence to show that the defendant's action of terminating his service prematurely was both against the terms of the contract and it caused him severe financial and mental loss. Merely making ascertains in this regard and reiterating the same in his evidence would not absolve the plaintiff from his primary duty of proving the facts as required by the law. His remaining unemployed for a certain period after his termination from service with the defendant, could be a foregone conclusion and can be presumed to have happened under the ibid Article, but rest of his ascertains adduced by him in evidence admittedly have gone unsupported. The plaintiff has not examined any witness in his support or produced any documents except his appointment and termination letters and the copies of legal notices exchanged between them. The fact of plaintiff's unemployment after his service got abruptly ended has to be examined, through the prism of terms and conditions of his service, in addition to evaluating reasonableness of 30 days period's notice in advance or payment in lieu thereof against which his service was terminated. As per sub-clause (4.2) of the appointment letter, the plaintiff and the defendant are put in the equal position to choose to terminate his service by either giving a 30 days written notice in advance or making the payment in lieu thereof. And in terms of sub-clause (4.3) of the said letter, both parties agreed that upon expiry, or earlier termination of this appointment, each party shall relinquish the other from all obligations and liabilities arising under this letter of appointment. Clause (4) of the appointment letter prescribes the terms and conditions governing the tenure and dissolution of service of the plaintiff and in sub-clause (4.1), it is mentioned that the appointment shall be valid for the period of 3 years from the date of joining the office. These sub-clauses (4.2 and 4.3) are part of clause 4 and cannot be read in isolation of the whole scheme available thereunder. Therefore, appointment's validity period of 3 years has to be read and construed in tandem with the remaining sub-clauses and it does not confer any right upon the plaintiff which is independent of remaining sub-clauses (4.2 and 4.3). The cumulative effect of reading the entire clause (4) would show that it was the domain of the defendant to terminate service of the plaintiff by resorting to scheme provided under sub-clause (4.2) of the appointment letter. And by doing so, in fact the defendant has not committed any breach of the contract. The plaintiff has not produced any evidence to show that he did not accept the service on these terms and conditions or he was given such assurances, which materially diluted or neutralized these terms and conditions in his favour; or that customarily these terms and conditions were not being resorted to or followed by the defendant in respect of other employees employed on the basis of them. Learned counsel for the plaintiff argued that sub-clause (4.3) was illegal and against the natural justice. In my view, simply pleading that sub-clause (4.3) is illegal or against natural justice would not relinquish the plaintiff from initial burden of proving that there was some other mechanism or custom except the one shown in the appointment letter against which he had accepted the service. This is the matter where relations between the parties are not governed by any statutory law and the plaintiff knows this fact, despite that his acceptance of the service against such terms and conditions, which are otherwise not proved to be against any law, speaks out very clearly that from very inception of his service, he was aware that his service could be terminated on the basis of these terms and conditions and it would not be a breach of the contract. Having concluded so would not, however, mean that the plaintiff's case on issue No.4 must fail necessarily as a natural corollary. The reason for thinking so is that the period of notice in advance i.e. 30 days or payment in lieu thereof, cannot be deemed to be unalterable. Its reasonableness can be examined by the Court in the circumstances as are prevailing here. The plaintiff's unemployment after his termination is but a foregone conclusion. The defendant has not pleaded anywhere that soon after termination, and within the stipulated period of 30 days, the plaintiff was able to secure another job having same perks and privileges. It has not been urged by the defendant either that the plaintiff did not make efforts to remedy the inconvenience caused by the non-performance of the contract. The record and pleadings of the parties are completely silent over the fact as to whether the plaintiff secured another job after his termination, and if the answer is in affirmative, then after how long, and if the reply is no, then up to what period. In absence of any assistance rendered by either party in this regard, I am left with but one option, that is, to examine the reasonableness of the 30 days period's notice in advance or payment in lieu thereof on the touchstone of prevailing employment conditions. To me 30 days period appear to be too short for a person to find out a new job in the private sector having same emoluments which his previous job carried. For that purpose 120 day's appear to be reasonable. In this period, in my view, a person can secure a new job of the same stature in the private sector that he was enjoying earlier in his previous job but was terminated from; and can resettle himself. Issue No.5. In view of above discussion, I am of the view that the plaintiff is entitled to either 120 days written notice in advance or payment in lieu thereof. The plaintiff has admitted that he has received Rs.458,443/- which includes 30 days salary in lieu of the stipulated notice and other emoluments and deductions. The plaintiff shall be paid the salary of remaining days (90) and other emoluments as per his entitlement. The suit is partly decreed in these terms. Office is directed to prepare such decree. ZC/A-12/Sindh Order accordingly.