1998 PLP (C (PLC(CS))

Mr. Muhammad Jamil, learned Advocate for the applicant vehemently objected to the maintainability of the applicant's suit and submitted that in view of the fact and the circumstances a suit of the above nature was barred by the provisions of sections 21, 42 and 56 of the Specific Relief Act as well as the authoritative pronouncements of the Hon'ble Supreme Court as well as of the various High Courts of Pakistan. Elaborating his arguments, he submitted that under section 42 of the Specific Relief Act, a person is entitled to seek a declaration in respect of his legal character/status or in respect of any right as to or in the property when such right has been denied or threatened to be denied by a person and further that from the facts disclosed in- the plaint as well as in the affidavit/counter -affidavit/affidavit-in-rejoinder filed by the respondents it is established beyond any doubt that the issue of any right as to or in the property is not the subject matter of the suit and that the respondent had filed the suit for seeking a declaration in respect of his legal character and the question to be decided is to what that legal character was and whether the respondents could file a declaratory suit under section 42 of the Specific Relief Act for obtaining a declaration-in respect thereof. It was further contended by him that from the perusal of the facts mentioned in the plaint, applications and affidavits filed by the respondent, it was clearly spelt out that effectually the respondent had sought a declaration that he continued to be in the service of the applicant's company and would continue to be in their service till he attained the age of 60 years and further that the applicant's company may be directed to modify/rectify his date of birth from 1934, as claimed by the applicant's company, to 1939, which would be the correct and true date of birth of the respondent. He further submitted that the declaration sought by the respondent was nothing but that the respondent continued to be in the employment/service of the applicant's company as per terms of the contract entered in to between the applicant's company and the respondent and that he would continue to be in service in terms of the above service contract till he attained the age of 60 years to be calculated in accordance with his correct date of birth, which according to him was 1939. Mr. Muhammad Jamil, learned Advocate for the applicant further submitted that a declaration in respect to any right arising out of contracts or agreements is beyond the domain and scope of section 42 of the Specific Relief Act which is confined to declarations to the legal character/status enjoyed or vesting in a person which has been conferred by law on the person seeking declaration and was not the outcome of contractual obligations and submitted that the suit was liable to be dismissed as it was beyond the scope of section 42 of the Specific Relief Act. It was further submitted by him that the suit was not only barred by section 42 of the Specific Relief Act, but also by section of the Specific Relief Act which bars specific performance of Contract of Service and further that the suit for enforcement of the terms of a contract of service, the grant of injunction was specifically barred by sections 54 and f the Specific Relief Act and the 1st Appellate Court committed errors in setting aside the order of rejection of plaint as well as in granting injunction in favour of the respondent and the impugned order was contrary to and in disregard of the statutory provisions and was liable to be set aside. In support of his above contentions he placed reliance of the cases of: (1) M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83. (2) Alavi Sons Limited v. The Government of East Pakistan and others, PLD 1986 Kar 222; (3) Sarfaraz Khan v. Federation of Pakistan 1986 SCMR 1950; (4) Mst. Sakina and 3 others v. The Excise and Taxation Officer 1989 CLC 964; (5) Karachi Shipyard and Engineering Works Ltd. and 5 others v. Muhammad Shakir Shaikh 1993 CLC 330 ; (6) Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; (7) M/s. Standard Hotels (Pvt.) Ltd. v. M/s. Rio Centre and others 1994 CLC 2413. Mr. Chaudhry Rasheed, the learned counsel for the respondent, submitted that the respondent was employee of a Government controlled Organisation which has been carrying on business under the instructions and supervision of the Federal Government, the Chief Executive of the said applicants' company is appointed and removed by the Federal Government also holds majority of shares of the applicants' company and as such it is to be treated at part with a Government Department and the employees of the applicants' company acquire the status of Government Servants entitled to the constitutional and statutory guarantees and safeguards available to the civil servants. He further submitted that the terms and conditions of the employees of the applicants' company would be regulated and governed by the rules framed by the applicants' company which are statutory rules and as such the employment of the respondent would not be governed by the principle of master and servant and he is possessed of legal character and would be entitled to seek a declaration that he continued to be in the service of the applicants' company and the suit filed by him both competent and maintainable. In support of his above contentions he placed reliance on the cases of: -- (1) Choudhry Zahoor Elahi v. The State PLD 1977 SC 273; (2) Mst. Amina Begum and others v. Mehar Ghulam Dastagir PLD 1978 SC 220; (3) Muhammad Yaqoob v. Muhammad Ishaque 1980 CLC 2056; (4) Mst. Salina Abbasi and another v. Ahmed Suleman and two others 1981 CLC 462; (5) Haji Muhammad Shafee v. Mst. Rani and 2 others 1981 CLC 1728; (6) Muhammad Farooque v. The Province of Punjab PLD 1993 Lah. 56; (7) Government of N. -W.F.P. through Land Commission/District Collector, Karak and 2 others v. Ali Bas Khan alias Ali Baz Khan and others 1996 SCMR 1427; (8) Secretary to Government of N.-W.F.P. and another v. Muhammad Nawaz, Sub-Engineer PLD -1996 SC .837 - and (9) Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232. After careful and minute/examination and consideration of the respective arguments advanced by the above learned counsel and the case law relied upon by them, I find that the arguments advanced by Mr. Ch. Rasheed to the above effect do not carry any weight. Irrespective of the facts that the Federal Government holds the bulk of the shares of applicants's company appoints and removes its Chief Executive, issues instructions and guidelines for its working and generally regulates and controls its affairs, the applicants' company can neither be treated at par with a Government Department nor its employees acquire the status of civil servants or become entitled to the guarantees and safeguards provided by the constitution or statutes to the civil servants. The rules governing the terms and conditions of service of the employees of applicants' company have been framed by the company itself and they are not statutory rules as neither they have been framed by a foreign superior body or authority nor have been notified so as to acquire the status of statutory rules to confer a legal character on its employees, which would entitle them to file a declaratory suit for reinstatement in service. The case-law relied upon by him does not support his contentions of either that the applicants' company is to be treated at par with a Government Department and its employees as Government Servants entitled to constitutional and statutory guarantees and safeguards available to civil servants or that the rules framed by the applicants' company are statutory rules of service so as to confer upon the respondent a legal character to enable him to seek a declaration for reinstatement in service in case of illegal or wrongful termination or dismissal. There is a long list of cases decided by our Supreme Court wherein the observations made and the principles declared are to the effect that the various statutory corporations including the applicants' company do not have the status of a Government Department or Organisation, that the employees of such corporations do not possess the constitutional and statutory guarantees and safeguards available to civil servants and the rules of service framed by such corporations themselves do not have the status of statutory rules and breach of such rules does not give a right to an employee to maintain an action for reinstatement. It will be of great advantage in deciding the above controversy to refer to a few of such important cases. The first case is that of Raziuddin v. Chairman, Pakistan International Airlines Corporation and two others (PLD 1992 SC 531) wherein their Lordships of the Supreme Court after examining the cases of various statutory corporations in Pakistan declared that the employees of statutory corporations did not acquire the status of Government servants and that the safeguards and guarantees given by the constitution to the civil servants were not available to them. The next case is that of Anwar Hussain v. Agricultural Development Bank of Pakistan (1992 SCMR 1112) wherein the Honourable Supreme Court expressed the view that in the absence of guarantees or statutory rules an employee of A.D.B.P. could not maintain a suit for reinstatement in service. In the next case of Anisa Rehman v. Pakistan International Airlines Corp. the Supreme Court reiterated its above view and declared that an employee of P.I.A.C. could not invoke the Constitutional jurisdiction for breach or violation of rules of service framed by M/s. P.I.A.C. as they did not have force of statutory rules. The relationship of the applicants company and the respondent is analogous to that of M/s. P.I.A.C. and its employees and of M/s. P.N.S.C. and its employees as well as various other statutory corporations and their employees wherein the rules of service are not statutory rules and, therefore, the above suit for declarations that the respondent would continue to be in the service of the applicants' company is clearly not maintainable. It will also be useful to refer to the case of Karachi Shipyard and Engineering Works Ltd. v. Muhammad Shakir Shaikh (1993 CLC 330) wherein suit filed by respondent Shakir Shaikh for declaration and permanent injunction against K.S. & E.W. Ltd. on the basis of breach of contract of service was dismissed as being barred by sections 21 and 42 of the Specific Relief Act. Mr. Ch. Rasheed further submitted that assuming for the sake of argument that the above suit for declaration and injunction was not found to be maintainable then the same could be treated as a suit for damages for breach of the terms of service contract between the above parties by virtue of which the respondent would not retire before attaining the age of sixty years to be calculated in accordance with his date of birth, as disclosed by him at the time of his entry into service, which was 1939 and not 1934 as claimed by the applicant. According to Mr. Ch. Rasheed wrong frame of the suit would not preclude the Court from granting a relief, which on the facts and circumstances of the case would be available to a party and a relief not specifically prayed for in plaint could be granted. In support his above proposition he placed reliance on the judgment in the case of Mst. Salina Abbasi and another v. Ahmed Suleman and 2 others (1981 CLC 462). The contention raised by Mr. Ch. Rasheed is devoid force it view of the facts of this case and the principle declared in the aforesaid case is not applicable to the facts of this case. The respondent had filed the above suit for declaration before his service was terminated or .he was retired by the applicant's company and till that time no breach or violation of the terms of service contract of the respondent had been committed by the applicant's company. Therefore, at the time he filed the above suit, he could not have filed a suit for damages for breach of terms of the contract of service which right would have accrued only if he was dismissed or retired illegally in breach of service contract. Thus, the respondent at the time of filing of the above suit had no cause of action to file a suit for damages for wrongful and illegal termination or retirement and could not claim the relief for damages as it was not available to him in the above suit and, hence, the same could not be treated as a suit for damages. Mr. Choudhry Rashid, the learned Advocate for the respondent, then objected to the competency and maintainability of the above Revision on the ground that it was not filed by a person authorised by the applicants' company to sign pleadings and institute suit, appeal or revision in Court in accordance with the provisions of the law. In this connection he further submitted that the applicants' company being a company registered under the Companies Ordinance, 1984 was required to authorise the concerned Officer of the applicants' company to file suit, proceedings in court on its behalf or such authority should have been shown to have been conferred on him by the Article of Association and it the absence of conferment of such authority on Sardar Ikramullah, Deputy General Manager (Corporate and Legal Affairs), the above Revision Application was instituted incompetently and was liable to be dismissed as such. In support of his above contention he placed reliance on the cases of: (i) Iftikhar Hussain Khan v. Ghulam Nabi Corporation Ltd (PLD 1971 SC 550); and (ii) Messrs Standard Hotels (Private) Ltd v. M/s. Rio Centre and others (1994 CLC 2413). After going through the aforecited cases, there is no dispute with the contention of Mr. Ch. Rasheed that in the absence of conferment of authority on the person for institution a suit on behalf of a corporation, the suit would be incompetent and not maintainable. However, the case-law relied upon by Mr. Ch. Rasheed is not applicable to the facts and circumstances of this case. In the cases referred to by Mr. Ch. Rasheed the question involved was concerning the authority of the person filing a suit on behalf of a corporation whereas in the present case the question is whether the Revision Application filed by a person not authorised to file the same in accordance with the provision of law, when that person had been defending and pursuing the suit and the appeal filed against the corporation without any objection to his capacity or right to appear and defend either before the trial Court or the Appellate Court, would be incompetent and not maintainable. Therefore, the views expressed in the two aforesaid cases are not applicable to the facts of the present case. Mr. Muhammad Jameel, the learned counsel for the applicants drew my attention to rule (1) of Order XXIX of the Civil Procedure Code which authorises the Secretary or any Director or other Principle Officer of a corporation to sign and verify pleadings on behalf of the corporation and submitted that it included the authority to institute a suit and further that the above rule was applicable for filing or instituting a Revision Application. As regards the contention that rule (1) of Order XXIX of the Civil Procedure Code authorises the Secretary or any Director or other Principal Officer to institute a suit, the same is not acceptable in view of the principle enunciated in the cases of Iftikhar Hussain Khan v. Ghulam Nabi Corporation Ltd. (PLD 1971 SC 550) and Standard Hotels (Pvt.) Ltd. v. M/s. Rio Centre and others (1994 CLC 2413) and that rule (1) of Order XXIX of the Civil Procedure Code only authorises the Secretary or the Director or any other Principal Officer to sign and verify pleadings and such authority does not extend to filing and defending a suit on behalf of a corporation. With regard to the above objection, his second contention was that this objection was not raised by the respondent either during the proceedings in the trial Court which, if raised, would have enabled the applicants to overcome the same by authorising their principal officer to defend the suit on their behalf, or in the Appellate Court and the respondent could not be allowed to raise the same in this Revision Application. His further submission was that Sardar Ikramullah had signed and verified affidavit, counter-affidavits re-joinder affidavits and miscellaneous applications and also signed Vakalatnamas in the proceedings before the two Forums in his capacity as a Principal Officer of the applicants company and would be deemed to be the authorised agent/attorney, and the above Revision Application filed under his authority was proper and maintainable. The controversy with regard to the filing or defending suits on behalf of a corporation by a person not authorised to do so in accordance with the provisions of law had been subjected to examination by the High Court of Lahore in the case of Zamindara Corporation Society Ltd., v. National Bank of Pakistan and others (1982 CLC 1276) and the learned Single Judge, who was seized of the matter relying on the case of Delhi and London Bank Ltd. v. A Oldham reported in ILR 21 Cal. 60 (Privy Council), expressed the view that non-signing of the plaint by an authorised person was only an irregularity and not an illegality. The above observations of the learned Single Judge would not override the view expressed by the Supreme Court in the case of Iftikhar Hussain Khan v. Ghulam Nabi Corporation Ltd., supra. However, there is another aspect of the case. The suit was filed against applicants' company and the same was defended on its behalf by Sardar Ikramullah, a Principal Officer of the applicants' company. The first appeal, filed by the respondent was also defended by the said Sardar Ikramullah on behalf of the applicants' company. The above Revision application was filed under the signature of the said Sardar Ikramullah. It cannot be said that the above acts of Sardar Ikramullah were not in the knowledge of applicants' company and were done by him on his own authority. This suggests that Sardar Ikramullah had been defending and pursuing the various legal proceedings initiated against and by the applicants' company not only within the knowledge but also with the consent of the applicants' company and it is to be presumed that he had been authorised to do so. The above controversy can be viewed from another angle. In the recent times the trend of the Courts including the Supreme Court has been that formalities and technicalities of law and procedural, requirements should not be allowed to defeat the ends of justice as the prime object of all legal formalities is to safeguard the interest of justice and if they create an impediment in the true dispensation of justice then they can be brushed aside provided that they do not lead to un-settlement and uncertainty of law. Reliance for the above is placed on the cases of: -- (i) Manager, Jammu and Kashmir, State Property in Pakistan v. KhudaYar and another (PLD 1975 SC 678); (ii) Mst. Ghulam Bibi and others v. Sarsa Khan and others (P 1985 SC 345) (iii) M/s Nishat Mills Ltd. v. Superintendent of Central Excise Circle-II and 3 others, (PLD 1989 SC 222): and (iv) Mir Mazar v. Azim (PLD 1993 SC 332). In view of the above, I am of the view that the objection raised on behalf of the respondent that the above Revision Application had not been filed by a person duly authorised in accordance with the law to file the same is not well-founded and cannot be sustained. The Revision Application had been filed validly and is both competent and maintainable. From the above discussions I have not the least doubt in my mind that the suit filed by the respondent was not competent under section 42 of the Specific Relief Act and was also barred by sections 21 and 56 of the Specific Relief Act and the Trial Court had rightly rejected the plaint filed by the respondent as it did not disclose any cause of action. The judgment of the Appellate Court in setting aside the order of the Trial Court was not proper and valid and is liable to be set aside. Accordingly, this Revision Application is allowed with no order as to cost. The impugned judgment is set aside and the order of the Trial Court is restored resulting in rejection of the plaint filed by the respondent. A.A./S-111/K Revision accepted.