2011 PLP 1287 (SCMR)

KHILJI ARIF HUSSAIN, J.

The petitioner, aggrieved by the judgment of Punjab Service Tribunal, Lahore, dated 21-7-2009, whereby the appeal (Appeal No. 2579 of 2008) filed by him against the order of recovery of Rs. 337,084 from his pensionary benefits was declined, seeks leave to appeal.

2. Brief facts to decide this petition are that the petitioner was retired from the post of Deputy Director, Farm Management and Farm Economics (BS-18), Adaptive Research, Agriculture Department, Gujranwala, with effect from 4-10-2004, on attaining the age of superannuation. He submitted necessary certificates to the respondents for the sanctioning of his pension case, but the same was not proceeded by the departmental authorities. Aggrieved by the said inaction of the respondents, the petitioner approached Lahore High Court, Lahore, through Writ Petition No.12885 of 2006, which was disposed of directing him to submit requisite medical certificate enabling the respondents to finalize the matter within a fortnight of the submission of said certificate. After receiving the said certificate, the respondents sanctioned the pension payment Order No.13001 in favour of the petitioner, however, he was paid the pension amount after deducting a sum of Rs. 337,

084. After submitting the departmental appeal, the petitioner moved the Service Tribunal by filing an appeal, but it was declined, which is impugned through the instant petition.

3. Learned counsel for the petitioner after taking us to various documents on record has vehemently argued that the petitioner stood surety for a sum of Rs.92,880, being the price of 360 bags of wheat seed supplied to his brother against whom the respondents filed a suit, which was decreed in their favour for the said amount. He has contended that the respondents without any lawful authority deducted a sum of Rs.424,800 from the salaries/pensionary benefits of the petitioner, which is much more than the amount of Rs.92,880.

4. In reply, learned Additional Advocate-General, Punjab, has submitted that initially the petitioner was called upon to pay a sum of Rs.92,880, which he failed to do so and that since the said amount was not paid by the petitioner, by a subsequent order the price of 360 bags of wheat seed was recalculated and a sum of Rs.424,800 was deducted from petitioner's salaries/pension amount.

5. We have taken into consideration the arguments advanced by learned counsel for the parties and have gone through the material available on case file. From the perusal of record, it appears that the petitioner was charge sheeted by the respondents and that an inquiry officer was appointed, who on 27-11-1997 submitted his report stating therein that the Corporation supplied a quantity of 360 bags of wheat seed worth Rs.92,880 on credit to Mr. Abdul Ghafoor Sindhu, real brother of the petitioner, and since he failed to pay the said amount, the petitioner, being the surety, was/is bound to make the payment to the Corporation. This order of the inquiry officer was called in question before the Service Tribunal through an appeal, which was dismissed on 26-12-2001. Now, the petitioner has, called in question the deduction of Rs.424,800 from his salaries/pension amount.

6. As regards the contention of learned Law Officer that since the petitioner has not paid the price of 360 bags of wheat seed, which at the relevant time was worth Rs.92,880, the respondents have rightly deducted the prevailing amount from his pensionary benefits/salaries. We are of the view that for the purpose of calculation of the damages normally date of breach of contract is the relevant date when the contract has to be performed. In the instant case, the due date for payment of price of 360 bags was the relevant date for the purpose of calculation of damages/price of wheat seed supplied on the surety executed by the petitioner and not a date of respondents' own choice. In assessing damages for breach of contract for sale of goods, the market price on the date on which the contract was to be performed is the criterion, and not that prevailing on any previous or subsequent date. It further appears that the respondents filed suit under section 55 of Sale of Goods Act (III of 1930) for the price of bags against the person whom bags were delivered and said suit was decreed for Rs.92,

880. If the respondents suffered any loss or damage due to the act of the petitioner over and above the amount for which the petitioner executed an affidavit as "surety of payment" they were to approach the proper forum for adjudication of the same.

7. For the foregoing reasons, the instant petition is converted into appeal and allowed. The impugned judgment is set aside and the respondents are directed to make payment of Rs.424,800 to the petitioner, but after deducting a sum of Rs.92,880, the actual price of the bags, within a period of two weeks from the date of this judgment and to submit a compliance report to the Deputy Registrar of this Court at Lahore for our perusal in chambers. S.A.K./M-45/SC Appeal accepted.