P L D 1988 Karachi 489 (PLP)

AJMAL MIAN, J.‑This High Court Appeal' is directed against the judgment/decree dated 29‑9‑1981 passed by a learned Single Judge of 'this Court in Suit No.276/1971 decreeing the suit of the respondent No.l for a sum of Rs.48,410 with proportionate cost.

2. The brief facts leading to the filing of the above appeal are that respondent No.l joined the service of M/s. Bahawalpur Bank, (hereinafter referred to as the defunct bank), with effect from 1‑6‑1964 for a period of five years as the Principal Officer, on the terms and conditions contained in the Agreement dated 1‑6‑1964 (at page 45 of the Paper Book). Upon the completion of above period of five years, respondent No.l continued in service subject to the bye‑laws of the defunct bank. During the above service period he was promoted as the Chief Accountant of the defunct bank. It seems that as per bye‑laws of the defunct bank respondent No.l was to retire at the age of 55 years on 16‑4‑1971. However, respondent No.l by his letter dated 17‑9‑1970 addressed to the Chairman‑cum‑Managing Director applied for extension of one year period which was to expire on 16‑9‑1972 on the existing terms and conditions. It further seems that by letter dated 19‑11‑1970 the Establishment Manager of the defunct bank informed respondent No.l that the Board of Directors in its meeting held on 14‑11‑1970 abolished the post of Chief Accountant with effect from 1‑1‑1971 and, therefore, the extension of service for a period of one year granted to him by the Chairman/ Managing Director stood withdrawn. He was also granted leave from 1‑1‑1971 to 16‑4‑1971 as he was going on Hajj. It is the case of the appellant that when respondent No.l received the above letter he lost his temper and used abusive language with the then Chairman/Managing Director, respondent No.2, as a result of which respondent No.l's services were terminated with immediate effect by a letter dated 23‑11‑1970. Thereupon, respondent No.l protested and resisted the above action of the defunct bank. Eventually respondent No.l filed the aforesaid suit on 22‑9‑1971, in which he claimed a sum of Rs.1,49,402, the break up of which was as follow:‑ (1) Salary including fringe benefits for the period commencing from December 1970 to 16- 4- 1972 at the rate of Rs.4,

841. Rs 80038 (2) Salary in respect of four months leave period amounting to Rs 19364 Total Rs.99402 (3) General damages amounting to Rs 50000 G. Total: Rs.1,49,402 The above suit was resisted by the defunct bank inasmuch as written statement was filed in which inter alia it was averred that as per Bye‑laws the defunct bank was entitled to terminate respondent No. l's services by. paying one month's basic pay in lieu of notice or by serving one month's notice. It was also averred that, the Chairman cum‑Managing Director was competent to appoint respondent No.l but it was subject to approval of the Board of Directors. It was further averred that upon expiry of five years agreement period on 31‑5‑1969, respondent No.l's services were governed by the Staff Bye‑laws. It was denied that the Chairman‑cum‑Managing Director was duly authorised to extend the employment of respondent No.l without approval of the Board of Directors. It was averred that as soon as the matter was placed before the Board of Directors, they disapproved the extension and as such the extension was withdrawn. Alternatively it was pleaded that even if it was assumed that service of respondent No.l was duly extended by one year, the same was on the terms and conditions as laid down in the Staff Bye‑laws and his services would have been terminated in accordance with Bye‑law

19. On the basis of the pleadings of the parties the following six issues were framed: (1) What was the status and terms and conditions of service of the plaintiff with Defendant Bank? (2) Whether withdrawal in November 1970 of extension of service was in breach of agreement with plaintiff and mala fide? (3) Whether termination of service of the plaintiff in November, 1970 by defendant No.2 was in breach. of terms and conditions of service, without authority and mala fide? (4) Whether Defendant No.2 slandered and defamed .the plaintiff? (5) To what amount is the plaintiff entitled on account of remuneration, leave remuneration, compensation and or damages? (6) What should the decree be?" However, on 28‑10‑1978 the following additional issue was framed: "Whether the Chairman and the Managing Director of the Defendant No.l was authorised to extend the service of the plaintiff without approval of the Board of Directors of the defendant No. I."

3. Respondent No.l in support of his claim examined himself and produced documentary evidence, whereas the defunct bank examined respondent No.2 and also produced certain documents. It may be stated that after the enforcement of the Banks (Nationalisation Act of 1974) (Act No.XIX of 1974) the defunct bank was merged into M/s. National Bank of Pakistan and, therefore, by virtue of an order dated 10‑4‑1979 passed by a learned Single Judge, the latter bank was substituted as defendant No.l in place of the defunct bank. The learned Single Judge after hearing the arguments of the learned counsel for the parties passed the above judgment/ decree. The appellant/ defendant No.l being aggrieved by the above judgment/ decree has filed the present appeal, whereas respondent No.l has filed cross‑objections for not allowing his remaining claim including amount of interest. 4 In support of the above appeal, Mr. Mansoorul Arfin learned counsel for the appellant has urged as follows:‑ (i) That as per bye‑laws of the defunct bank respondent No.l's services were liable to be terminated by one months' notice or in lieu of the notice one month's salary and, therefore, respondent No.l was entitled to one month's salary. (ii) That as respondent No.l was required to serve three months' notice on the defunct bank before leaving the service at the most he could have claimed three months' salary in lieu of three months' notice. (iii) That without prejudice to the above in any case respondent No.l could not have claimed salary as damages beyond the period commencing from 16‑4‑1971 as he was to retire on the above date upon attaining the age of suprannuation of 55 years. On the other hand Mr. J.H. Rahimtoola learned counsel for respondent No.l in opposition of the above appeal and in support of his cross objections has contended as under: (i) That once it is held that respondent No.l's services were he was termianted wrongfully on the ground of misconduct, entitled to recover damages and that the learned Single Judge assessed the amount of damages on rational basis in consonance with law. (ii) That the learned Single Judge was not justified in not granting the amount of interest from the date of the suit till the payment. 5. (a) Since. the above contentions of the learned counsel for the appellant are interconnected, we intend to dispose of the same together. In this regard, it may be pertinent to observe that respondent No.l's services were terminated on the ground of misconduct without holding any enquiry as required by the defunct bank's bye‑laws and, therefore, the finding of the learned Single Judge that respondent No.l's services were wrongfully terminated is in accord with the evidence on record and law. The learned Single Judge after reviewing the case law has awarded 10 ‑months salary as the amount of damages after holding that respondent No.l had obtained alternate employment on a monthly salary ,of Rs.2,000 per month in place of Rs.4,841 per month from October 1971. Mr. Mansoorul Arfin in support of his above submissions has referred to Bye‑laws 18, 19 and 20 of the defunct bank. It may be observed that Bye‑law 18 provides that no employee shall leave or I discontinue his service in the Bank, if he is an employee under categories 'A' and 'B' without first giving three months' notice and if ~ he is an employee under categories other than 'A' and 'B' without first giving one month's notice in writing to competent authority of! his intention to do so, whereas Bye‑law 19 provides that notwithstanding anything contained in these Bye‑laws the Bank shall A have the right to terminate the services of any employee in any category without assigning any reason on giving one month's notice or pay in lieu thereof and such powers of termination of service will be exercised by the competent authority. Furthermore, Bye‑law 20 provides that every employee shall retire at the age of 55 years or 30 years after the commencement of his service in the Bank whichever occurs first; provided that the competent authority may in its discretion, extend the period of service of any such employee in the interest of the Bank. It may be pointed out that respondent No.l was an employee falling under category 'A' and the competent authority for the extension of service in terms of above Bye‑law 20 was the Chairman‑cum‑Managing Director. (b) Mr, Mansoorul Arfin has referred to the following cases: (i) J.J. Miranda v. Fishermen's Co‑operative Society Ltd, Karachi and another reported in P L D 1978 Kar. 990, in which the plaintiff was working as Accounts Officer in Fishermen's Co‑operative Society Ltd., Karachi, defendant No.

1. His services were terminated. He filed a suit for recovery of damages. One of us (Ajmal Mian, J.), why tried the suit after reviewing the case law awarded one year's salary as the amount of damages. It may be advantageous to reproduce hereinbelow the concluding portion of the above judgment which reads as follows: ‑ 'In my opinion, the salary for one year as has been held in 1960 Calcutta case and in 1929 Sind case would be reasonable compensation to the plaintiff for the wrongful dismissal. The 1967 Karachi ruling relied upon by the learned counsel for the plaintiff is distinguishable inasmuch as in the above case the contract period agreed between the employer and the employees was 5 years whereas in the instant case there was no period for the employment. The plaintiffs' employment was liable to be terminated simpliciter by serving 3 months' notice or on payment of 3 months' salary in lieu of the notice, and therefore, the above Karachi ruling is of no assistance to the plaintiff .' (ii) Gulf Steamship Co. Ltd. v. Dilwash Balooch reported in PLD 1962 (W.P.) Kar.

899. In the above case the facts were that the respondent was working as Fourth Engineer on the vessel S.S, idehdi belonging to the petitioners. He fell seriously ill and, therefore, he remained absent. When he resumed the duties after illness his services were terminated and he was not taken on duty. He filed a suit for declaration that he was still in the service of the petitioners and for the recovery of wages amounting to Rs.1,860.58 upto 13‑2‑1961. Tile above suit was decreed. The appeal filed against the above decree was dismissed. Thereupon, a Revision was filed in the erstwhile High Court of West Pakistan, which was partly allowed and the portion of the decree granting declaration that respondent was still in service of the petitioners was modified. In the course of the judgment Wahiduddin, J. (as his Lordship then was) referred to the case law and the treatise on the law of Master and Servant by Diamond, Mayne and McGregor on Damages on the question as to how to determine the amount of damages in case of wrongful dismissal and observed in context with the facts of the case before his Lordship as follows: 'Admittedly the respondent rejoined service on the 26th of December, 1960. He was entitled to a month's notice which would take his case to the 25h of January, 1961. The only claim which can be disputed on behalf of the petitioners will be from the 26th of January, 1961 to the 13th of February, 1961. Mr. Fakhruddin has not contested the liability of the company, without prejudice to the petitioner's right to challenge the future claims of the respondent, in this revision, for this short period.' (iii) Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others, reported in P L D 1961 S C 531, in which the respondent was working as the Accountant in the Appellant Firm's Chittagong Branch. His services were terminated. He filed a suit for declaration that the order of termination was illegal, unjust, inoperative and void and he continued to hold the post of accountant of the firm and for an injunction to reinstate him with an alternate prayer for damages for the loss caused to him by a wrongful discharge. The above suit was resisted by the appellant but the suit was decreed. Eventually the matter was taken up by the appellant firm to the Supreme Court in appeal, which was allowed. It was held that the relationship between the petitioner and the respondent was that of master and servant, and therefore, the above decree for a declaration referred to hereinabove could not have been granted. While dilating upon the request of the learned counsel for the respondent to remand the case to the trial Court for determining the amount of damages, the Hon'ble Supreme Court observed as follows:‑ 'The decree passed in this suit has to be set aside. It is contended that we should remand the case for a decision as to the right of respondent No.l to damages, for there was an alternative prayer for damages though court‑fee had not been paid on it. We are of the opinion that no useful purpose will be served by a remand. No period of service was provided in the contract in suit and, therefore, the termination of service on payment of one month's salary was proper. This appeal is allowed, the decree of the High Court is set aside and the suit dismissed, but the parties shall bear their own costs throughout.' (iv) Addis v. Gramophone Company Limited. Appeal Cases, 1909, page

488. In the above case the facts were that the appellant was employed by the respondents at their Calcutta Office at 15b per week as salary and a commission on the trade done. He could be dismissed by six months' notice. In October 1905, the respondents gave him six months' notice but at the same time they appointed one Mr. Gilpin to act as his successor. ,, and took steps to prevent the plaintiff from acting any longer as manager. In December 1905 the appellant came back to England. He brought an action in‑1906 .claiming an account and damages for breach of contract. The House of Lords held that there was a breach of contract but it did not amount to a wrongful dismissal. It granted six months' salary as damages plus the amount of commission for the above six months' period. (v) British Guiana Credit Corporation v. Clement Hugh Da Silva, reported in 1965 Vol. 1 The Weekly Law Reports at page 248, in which the facts were that the respondent was a Deputy Financial Secretary of the colony of British Guiana. The appellant Corporation was incorporated by British Guiana Credit Corporation Ordinance, 1954. In 1960 a vacancy occurred in the post of general manager of the appellant corporation for which applications were invited by advertisement. Respondent was selected and asked how soon he could take his appointment but before he could do so the appellant corporation changed its mind and without any formal notification to the respondent appointed someone else. Thereupon, the respondent filed the suit for the recovery of damages for the breach of contract. The Caribbean Court of Appeal awarded 2 years' salary and other fringe benefits as damages. Upon appeal the Privy Council was of the view that as the respondent himself had suggested sot'''' in his letter dated 3‑10‑1960 that the appellant corporation could terminate on paying him six months' salary, the Court of Appeal was not justified in awarding salary of 2 years' as damages, and therefore, the case was remanded to it for determining the above question with reference to the respondent's above letter. (vi) Muhammad Afzal (Through Legal Heirs) v. House Building Finance Corporation Karachi, reported in PLD 1976 Karachi 1121. In the above case a learned Single Judge while dealing with the question of the amount of damages for the wrongful termination of service in a suit observed as follows: 'The remedy of an employee who has been wrongfully dismissed is an action for damages and if the defendant has the right to terminate the contract before the expiry of the term, damages for wrongful dismissal to be awarded can be assessed only upto the earliest time at which the defendant could have validly terminated the contract. Thus, if the contract expressly provides that it is terminable upon 3 months' notice the damages will ordinarily be 3 months' wages or loss of salary. Thus, in this case the most that the plaintiff could claim was 3 months' salary which has already been received by him admittedly.' (vii) Lavarack v. Woods of Colchester, Ltd. The All England Law Reports 1966' (3) at page 683 in which Lord Denning sitting in Court of Appeal while dealing with the question of assessment of damages for wrongful dismissal observed as follows: 'In assessing damages for wrongful dismissal, the Court, as I understand it, has to make two calculations. First, the Court has to consider what the position would have been if the old employment had run its full course. It must calculate the sums which the' plaintiff might reasonably have expected to receive in his old employment. Secondly, the Court has to consider what the plaintiff has done since his dismissal. It is his duty to act reasonably in mitigation of damages. If he has acted reasonably and obtained new employment, the Court must calculate the sums which he has received for his work in his new employment during the run‑off period. If he has not acted reasonably, the Court must calculate the sums which he might reasonably have been expected to receive if he had acted reasonably. The damages then are assessed by giving him the sum which he would have received in his old employment, less the sum to be deducted in mitigation of damages.' Mr. Mansoorul Arfin has also referred to para. 653 from the Halsbury's Laws of England, Fourth Edition Volume 16, which reads as follows:‑ "

653. Measure of damages. The employee cannot wait until the termination of the period for which he was engaged and sue for the whole amount of his remuneration, but where it is a term of the contract that an employee who is dismissed without notice is to be paid remuneration for a certain period in lieu of notice, the measure of damages for the breach is the amount of such remuneration, which is to be regarded as liquidated damages. The same principle applies where the contract specifies a particular sum to be payable as and for liquidated damages in the even of a breach. In any other case the damages are to be measured by the amount of remuneration which the employee has been prevented from earning by reason of his wrongful dismissal, including the value of any other benefit to which he is entitled by virtue of his contract and of which he is deprived in consequence of its breach, after taking into consideration the probabilities of his obtaining employment elsewhere. If, therefore, he obtains other employment immediately after his dismissal, the amount which would otherwise be payable as compensation must be reduced by the amount of remuneration which he receives in respect of such employment, and if he is paid the same or higher wages his loss is merely nominal. Moreover, it is his duty to minimise his loss, and he cannot therefore claim damages in respect of,, any loss which he could have avoided by using due diligence , in endeavoring to obtain employment. If, but for his own. . default or neglect, he could, immediately after his dismissal, have obtained suitable employment at similar wages, he cannot recover more than nominal damages against the employer. He is not, however, bound to accept employment of a different kind, or even a lower position in the same kind of employment, and, in such case, it is immaterial that the rate of remuneration offered is the same. The damages are also reduced by the value of certain benefits which the employee receives as a result of the termination of his employment. In assessing the damages the Court is entitled to take into consideration all that has happened, or is likely to happen, to increase or mitigate the employee's loss down to the day of trial." (c) Whereas Mr. J.H.Rahimtoola has referred to para. 3636 from Chitty on Contracts. The Common Law Library No.2, Twenty Fourth Edition, Vol. II which reads as follows:‑ '3636. Damages for loss of earnings following wrongful dismissal. The remedy of an employee who has been wrongfully dismissed is an action for damages. The normal measure of damages is the amount the employee would have earned under the contract for the period until the employer could lawfully have terminated it, less the amount he could reasonably be expected to earn in other employment. The dismissed employee, like any innocent party following a breach of contract by the other party, must take reasonable steps to minimise his loss. In the case of wrongful dismissal these reasonable steps mean that the employee must seek and accept any reasonable offer of other employment, if he fails to take other employment when he ought reasonably to have done so, damages will be assessed on the basis of the difference between the salary or wages under the broken contract, and what he would have received from the substituted employment. A reasonable offer of alternative employment may come from the defendant himself. A deduction must be made, however, on account of the accelerated receipt of damages for loss of future earnings. The onus of proof is on the defendant employer to produce evidence to show that the dismissed employee ought reasonably to have obtained alternative employment. If the defendant has a right to terminate the contract before the expiry of the term, damages for the wrongful dismissal should be assessed only up to the earliest time at which the defendant could validly have terminated the contract. Thus, if the contract expressly provides that it is terminable upon, e.g., a month's notice, the damages will ordinarily be a month's wages. If the employee's claim is on the ground that the employer dismissed him with insufficient notice, in an action for damages the defendant employer is entitled to particulars of the period of time claimed by the plaintiff to constitute reasonable notice. Similarly, the amount of damages for loss of salary and commission which would have been earned during a period of reasonable notice, had it been given, must be specially pleaded. The value of the benefits which the employee receives from the substituted employment should be assessed by looking at the whole of his new situation, and not merely by reference to his nominal salary or wages. Thus, where, following his wrongful dismissal, the employee makes a substantial investment in another firm and takes employment in it at a low salary on the basis that he hopes to benefit from an increase in the value of his investment, account should be taken of the increase in value (during the relevant period) when assessing damages for wrongful dismissal." (d) From the above cited cases and treatises, the following principles of law are deducible: (a) That an employee of a firm or a company cannot seek the, releif of reinstatement even in case of his wrongful dismissal from the service, his remedy is to sue for damages. (b) That there seems to be a marked distinction between termination of service in breach of the employment contract and wrongful dismissal on the ground of misconduct for they; purpose of assessing the amount of damages. (c) That in a case where an employee is dismissed without notice in breach of the employment contract the measure of damages in such a case ordinarily will be the remuneration of the notice period agreed to between the parties or provided for in the rules. (d) .That in a case where. employment is for a fixed period but the service of the empolyee is wrongfully terminated before the expiry of the agreed period, the measure of damages would; be the salary for the unexpired period of employment minus' the amount which the employee has earned or might reasonably have expected to earn. (e) That in case of a breach of contract of employment on the part of an employer, the employee must take reasonable steps to minimise damages and, therefore, he cannot wait until the termination of the period, for which he was engaged and suet for the whole amount of remuneration. (f) That if an employee upon wrongful dismissal/ termination of his employment succeeds in obtaining a better employment any does not suffer any pecuniary loss, he will be entitled to recover nominal damages from his former employer for the breach of the employment contract. (g) That if an employee whose service has been wrongfully terminated, takes employment on a lower salary than what he could have obtained because he receives other monetary benefits in other forms, the Court while assessing the amount of damages, can deduct an amount in respect of other monetary benefits received or to be received by him. (h) That the onus of proof is on the defendant employer, that the dismissed employee ought reasonably to have obtained alternate employment or that he has received or will receive other monetary benefits in the other form than the salary. (i) That if the defendant employer had the right to terminate the contract before the expiry of the period of employment,' ordinarily damages for wrongful dismissal to be awarded can be assessed only upto the earliest time at which the defendant employer could have validly terminated the contract. (j) That in case of wrongful dismissal of an employee on the ground of misconduct, the measure of damages may include an amount to compensate him for the injury caused to him by[ attributing misconduct. '

6. It was vehemently urged by Mr. Mansoorul Arfin that the above Karachi case of J.J. Miranda is distinguishable from the instant case inasmuch as in‑ the above J.J. Miranda's case there was no fixed period for the employment, whereas in the present case respondent No.l's tenure of office was upto 16‑4‑1971 and therefore the ratio decidendi of J.J. Miranda's case relied upon by the learned Single Judge is not applicable to the present case. It was further submitted by' him that the preponderance of the judicial view as is reflected in the above cited cases seems to be that an employee can be granted damages either on the basis of the notice period provided for in the terms of the appointment which may be either under the appointment letter or under the rules applicable or at the most he can be granted the salary upto the period when his service period was to terminate as per terms of the appointment or' the rules. It was, therefore, further urged by him that in no case respondent No. 1 could have been granted salary beyond 16‑4‑1971 when he was to retire upon attaining the age of 55 years. as per above Bye‑law

20. Whereas Mr. J. H . Rahimtoola has submitted that the amount awarded by the learned Single Judge cannot be said to be unreasonable as admittedly the respondent would have been entitled to the salary for the period commencing from December, 1970 upto 16‑4‑1971 i.e. for a period of 41 months' plus three months' salary for the earned leave. The total of the above two items comes to 71 months, whereas the learned Single Judge has granted 10 months salary as damages which in fact means he has awarded for the wrongful dismissal salary of 2J months only. It was further urged by Mr. J. H . Rahimtoola that once .the extension was granted by the competent authority, the same could not have been withdrawn without incurring any liability and, therefore, factually the respondent was entitled to remain in service upto 16‑4‑1972 and not upto 16‑4‑1971.

7. At this stage, it may be pertinent to take up the question of extension. In this regard, it may be pointed out that the learned Single Judge on the additional issue has recorded the finding that the then Chairman and Managing Director was' competent to grant the extension of one year period without approval of the Board of Directors. The above finding seems to be in consonance with Bye‑law 20 of the defunct bank referred to hereinabove as admittedly the Chairman‑cum‑Managing Director was the competent' authority for the purpose of inter alia grade 'A' officers. However, it was urged by Mr. Mansoorul Arfin that the competent authority could have grantee extension only in the interest of the defunct bank and not otherwise and that in the instant case in fact respondent No.l had procured the extension from the then Chairman‑cum‑Managing Director with whom he had friendly terms. In this behalf, we may observe that the matter was placed before the Board of Directors. It was .never the case of the defunct bank prior to the termination of respondent'‑,= service that the extension granted by the then Chairman‑cum‑Managing Director was not in the interest of the bank. The Board of Directors had withdrawn the extension not on the ground that it was not, granted in the interest of the bank or that the then Chairman‑cum - Managing Director was not 'competent to grant extension but for the reason that it resolved to abolish the' post of Chief Accountant. If the extension of one year period was validly granted by the competent authority to respondent No:l, the same had brought about a binding contract of employment for a further period of one year and, therefore, it could not have been withdrawn by the Board of Directors without incurring liability in terms of the bye‑laws. The above case of Privy Council namely, British Guiana Credit Corporation, referred to hereinabove supports the above conclusion, which we are inclined to take. We are unable to concur with the finding of the learned 'Single Judge on the question that the Board of Directors could have withdrawn, the above extension simpliciter without incurring any liability. . Mr.Mansoorul Arfin has referred to the cross‑examination of respondent No.l and also the examination‑in‑chief of respondent No.2 in order to reinforce his submission that respondent No.l had procured the above extension about six months prior to the expiry of the service period because of his friendly relationship with the then Chairman‑cum‑Managing Director. We may again observe that this was not the case of the Board of Directors prior to the dispute and secondly except the suggestion in the cross‑examination to respondent No.l nothing concrete has been brought on record to substantiate the above averment. We are, therefore, inclined to hold that while assessing the amount of damages for awarding the same to respondent No.l the factum that he was granted extension of service upto 16‑4‑1972 had also to be taken into consideration. In ,our view, a distinction is to be drawn between simpliciter termination of service in breach of the terms of the employment or of the bye‑laws and wrongful dismissal/ termination on the ground of misconduct. In the former case ordinarily D an employee will be entitled to the salary of notice period provided for in the terms of the employment or the rules, whereas in the latter case an employee will be entitled to a reasonable amount of damages which will inter alia include the notice period anti any further reasonable period. Even if we are to make the above` case of the Court of Appeal namely, Lavarack v. Woods of Colchester, Ltd. as the basis in terms of the judgment of Lord Denning, . respondent No.l would be entitled to 41 months' salary from December to 16‑4‑1971, even if we were to assume that the extension was validly withdrawn plus three months salary for the earned leave which comes to 7 1/2months. However, we may point out, that according to 'Mr. Mansoorul Arfin respondent No.l was entitled to 2 months earned leave at the time of termination as he had availed of one month's leave and in support of his above submission he has referred to the cross -examination of respondent No.l. It will suffice to observe that the above submission seems to be contrary to the pleadings as in para. 16 of the plaint, respondent No. l has averred that he was entitled to 4 months salary to the leave due. The above para. has been replied to by the appellant through pare. 15 of the written statement in which it has not been averred that respondent No.l has availed of any leave which was liable to be adjusted but it has been stated that the procedure for accumulation of leave is provided in the Staff Bye‑laws of the defunct bank. On the contrary respondent No.2 in his cross‑examination has admitted the fact that respondent No.l would have been entitled to leave from 1‑1‑1971 to 16‑4‑1971. Mr. Mansoorul Arfin has referred to the cross‑examination of respondent No.l wherein he has admitted that he has availed of one month's leave as observed hereinabove but at the same time he has stated that he had accumulated privilege leave of three months and was entitled for one additional month for the extended period of one year. The above admission on the part of respondent No.l does not indicate that he had availed of one month's leave out of 3 months accumulated privilege referred to by him in his cross‑examination. As pointed out hereinabove there is no such plea in the written statement. In this view of the matter, respondent No. 1 is entitled to three months salary. Thus, the above two items make the total of 71 months. The learned Single Judge has awarded 10 months' salary as damages as observed hereinabove i.e. 21 months salary in addition to the above items but at the same time has not awarded any amount of interest which would have been more than 2) months salary. We are, therefore, inclined to hold that the learned Single Judge's assessment as to the amount of damages seems to be just and proper and no purpose would be served if we are to disturb the above basis. Even if we were to exclude 2) months salary, respondent No.l in his cross‑objections has claimed the amount of interest, which cap, be granted. In our view, the judgment under appeal is just any proper. The appeal as well as the cross‑objections have no merits and, therefore, the same are dismissed, but there will be no order as to costs. A.A./N‑118/K Appeal and cross‑ objections dismissed.