1999 PLP 1763 (CLC)

"(1) Whether the suit is not maintainable? (2) Whether the suit is barred under the Specific Relief Act? (3) Whether the‑ suit is barred under the Limitation Act? (4) Whether the plaint does not disclose a cause of action? (5) Whether the plaintiff is in the service of the defendant after acceptance of his resignation? (6) Whether the plaintiff's services have been illegally determined by the defendant and in the alternative he is entitled for a compensation? (7) What should the order be?"

5. In support of his claim, the plaintiff has examined himself while on behalf of the defendant one Deputy Director was examined. Both the parties have filed their written arguments which have been perused. I have heard their oral arguments as well. My findings on the above issues are as follows:‑‑. Issues Nos. l to 4.

6. No specific plea as to the maintainability of this suit was raised by the defendant in either written statement or written arguments. However, during the course of oral arguments, Mr. Abdul Sattar contended that the suit is not maintainable in view of the fact that no causes of action was available to the plaintiff to file the instant suit. This is a suit for declaration to the effect that the plaintiff's services were illegally, unjustly and without lawful authority dismissed by the defendant and, therefore, he is entitled to monetary compensation for the period for which he was entitled to serve the defendant. In respect of legality of his resignation, the plaintiff has cited a decision of a Division Bench of this Court in the case Muhammad Khan v. Pakistan PLD 1958 Kar.

75. In that case, it was held, inter alia, that the resignation in respect of a service matter is the act of giving up; it is the act of an officer by which he declines his office and renounces his further right to use it. It was further held, "to constitute a resignation, it must be unconditional, addressed to the prescribed officer and there must be intention to relinquish the remaining portion of the term of his office ... The words "under protest" only show that he was resigning on account of the objectionable treatment of his superiors, but that does not mean that he was not renouncing his further rights to remain in office. Petitioner's intention to no longer remain in service is very clear and this intention is further made clear in requesting the authorities to deduct two months' salary in lieu of notice". In that case, the petitioner who filed a writ petition was‑ sub‑Inspector of police at the relevant time when he tendered his resignation under protest which was accepted by another authority instead of Inspector‑General of Police. In such circumstances, it was held as follows:‑‑

.... This procedure was not followed in the present case and, therefore, the resignation of the petitioner was not accepted by a competent authority. It seems to us that under these circumstances the petitioner was entitled' to withdraw his resignation and by his subsequent conduct had sufficiently indicated his intention to withdraw the same. In these circumstances the resignation did not become effectual and in law the petitioner is entitled to be treated as a member of the Karachi Police Force. "

7. In the case District Board, Lahore v. Agha Muhammad Khan PLD 1957 Lah. 78, it was held by a learned Single Judge of Lahore High Court, B.Z. Kaikaus, J. (as his Lordship then was) that the office which a person holds, his rank as well as grade of pay to which he is entitled are all parts of his legal character within the meaning of section 42 of the Specific Relief Act, 1877. In the case Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531 at 535, it was held, inter alia, by a Full Bench of Honourable Supreme Court that a breach of contract in a service matter gives rise to only two reliefs, one, for damages and another for specific relief. It was further held that if the specific performance is barred, the only relief available is damages. In the cases of master and servant, it was further clarified that the servant was entitled to the right to damages only. However, this view is now to be read in the matters of Government servants and statutory employees in the light of provisions of Civil Servants Act and Service Tribunals Act, 1973.

8. The abovementioned cases of Malik and Haq (ibid) and District Board (supra) were considered by a learned Single Judge of this Court, Saleem Akhtar, J. (as his Lordship then was) in the case of Rana Usman Ali and others v. National Bank of Pakistan and another 1982 CLC 1234 and it was held, inter alia, that the position, office, rank, grade of pay and the benefits arising from such office are treated foundation of an employee's right and if there is any change in the condition of service or rank and grade and such variation is to the detriment of such employee then his legal character is affected and he is entitled to maintain a suit for declaration and damages. In such circumstances, the suit of the plaintiff was decreed against a scheduled bank on the ground that his removal from service was in violation of the principle of natural justice. In the instant case, it is an admitted position that the plaintiff would have retired in the year 1993 upon attaining the age of superannuation and, therefore, the relief of declaration that he is still in service and the relief of mandatory injunction against the defendant to take the plaintiff on duty have become infructuous. This being the position, there is 'no need of discussing the question of newly introduced section 4‑A of the Services Tribunals Act, 1973 through which an employee of a statutory corporation has been given the limited status of a civil servant for the purpose of maintaining an appeal before the Services Tribunal. The only question remains is that of damages if awarded for which the plaintiff is required to prove that his removal from service was illegal, unjustified and without lawful authority.

9. Since the defendant was not able to cite any provisions of Specific Relief Act or any Article of the Limitation Act, 1908 to challenge the maintainability of the suit and in view of the above discussion, I am inclined to hold that the suit is maintainable .to the extent of damages and monetary compensation. Issues Nos.5 and 6.

10. It was strenuously argued by Mr. Abdul S attar, learned counsel for the defendant that the resignation tendered by the plaintiff was voluntary which was acted upon. It was further argued that he has acquiesced in the act of the defendant in accepting his resignation. He has placed reliance on the proceedings of Suit No.57 of 1977 State Bank of Pakistan v. Fakhr‑e‑Alarri Farooqui which was a suit for recovery of money and sale of mortgaged property of the plaintiff filed on the original civil jurisdiction of this Court. This fact was stated by the defendant's witness in paras. 11 and 12 of his affidavit in evidence (Exh.9) who was not cross‑examined on this aspect by the counsel of the plaintiff which amounts to admission on his part. Following are the contents of paras. 11 and 12 ~of Exh.9:‑‑ "(l1) After acceptance of plaintiff's resignation and in order to release the dues, the plaintiff was asked to arrange payment of his liabilities, fallen due to the Bank but he did not pay any heed to it. The Bank had to file a Suit No.57 of 1.977 in the High Court of Sindh for recovery of its dues outstanding against him. The said Suit ‑No. 57 of 1977 was later on decreed and the appeals etc. filed by the plaintiff were also dismissed. (12) That while the said suit for recovery of Bank's dues was pending with the High Court, the plaintiff filed the above suit against the defendant Bank in the High Court of Sindh, alleging harassment, victimisation and termination of his services from the defendant Bank against the facts, the conduct of the plaintiff which were in his personal file and Confidential Report/Service."

11. There is a clear admission on the part of the plaintiff in his affidavit in evidence (Exh.8) vide paras.27 and 29 that he tendered resignation on 1‑6‑1974 but he stated that "I also desired to resign from my, post if I failed to get any protection from the Government". Subsequently, he pleaded that it was a conditional and not a voluntary resignation; that it was withdrawn and that it was accepted by an authority not competent to accept his resignation. According to him the Governor of the State Bank was not legally competent to accept his resignation. This resignation was produced as Exh.8/22. It is now a proved fact that after resigning on 1‑6‑1974, the plaintiff withdrew his resignation on 23‑10‑1974 after nearly four months when his resignation was accepted and acted upon. Plaintiff has not denied that he received letter of acceptance of his resignation on 20‑6‑1974 which was to be made effective from 1‑9‑1974. No protest was made by him at that time. This letter of the State Bank was produced as Exh.8/23. I have gone through the contents of the letter of resignation Exh.8/22 and in no manner it could be termed either as conditional or not voluntary. The last paragraph of the plaintiff's letter, dated 1‑6‑1974 (Exh.8/22) clearly says that "In view of the above circumstances, I cannot tolerate such inhuman treatment, repeated denial of justice, constant mental torture, financial distress and coercion any more, and hereby tender my resignation from Bank Service with effect from 1‑9‑1974 and request that this letter be treated as notice. Meanwhile, for the reasons advanced above, I would continue on leave as before.: ." The notice period of 90 days expired on 1‑9‑1974 whereafter plaintiff stood retired but no attempt for withdrawal of resignation was made during that 90 days period. At the time, when the resignation was tendered (1‑6‑1974), the plaintiff was already on leave. He opted for further leave till 1‑9‑1974 but thereafter, he was not on leave till 23‑10‑1974 when he withdrew his resignation. This subsequent letter was not produced by the plaintiff. It was produced by the defendant's witness as Exh.9/3. Again, this letter in no manner amounts to withdrawal of plaintiff's resignation.

12. Since I am of the considered view that the act of resignation was voluntary and unconditional and since it was acted upon by the defendants due to inaction on the part of plaintiff for a period of nearly five months, the rule laid down by a Division Bench of this Court is of no help to the plaintiff. The background under which the instant suit was filed cannot be ignored. The resignation was tendered on 1‑6‑1974 while this suit was filed on 26‑3‑1978 nearly 46 months after tendering resignation. During this period, another qui, was filed by the defendant for recovery of house loan arising out of mortgage Which was disposed of on the admission made by the present plaintiff who was defendant in that suit. Thus. it has substance when the defendant said that the instant suit was a counter‑blast of that suit filed by the defendant. It will not be out of place to reproduce the order of the Division Bench of this Court in H.C.A. No.59 of 1979 which was filed by the plaintiff against the judgment/decree of this Court in Suit No.57 of 1977 which reads as follows:‑‑ "On the admission of Asad Ali Bilgrami, Advocate for the appellant /defendant that the statement of account of defendant showing a sum of Rs.36.993 20 was outstanding against him (defendant) a preliminary decree was passed by the learned Single Judge on 18th April, 1979. Twelve days thereafter on 31st May, 1979, Mr. Bilgrami made an application to the learned Single Judge under sections 151 and 152, Cr.P.C. that he had not admitted the correctness of the statement of account showing the amount outstanding against the defendant. The learned Single Judge had dictated the order in open Court in presence of Mr. Bilgrami on 18th April, 1979, to which no exception was taken by Mr. Bilgrami. The learned Single Judge found the application to be an afterthought and dismissed it. We do not find this order wrong and/or illegal. Since decree was passed, by consent of parties, no appeal lies under subsection (3) of section 96 of the Code of Civil Procedure, 1908. Appeal is, therefore, dismissed in limine."

20. In view of the abovemoted facts, it cannot be termed that the plaintiff was in the service of the State Bank of Pakistan after 1‑9‑1974. His services were not illegally determined and, therefore, he is not entitled for any monetary compensation. No wrong was done by the defendants for which the plaintiff may have suffered any damages. Both these issues are to be answered in negative.. Issue No. 7.

21. As a result of the above discussion, this suit is dismissed with no order as to costs. Q.M.H./M.A.K./B‑41/K Suit dismissed.