2008 PLP 18 (CLC)

NADEEM AZHAR SIDDIQI. J:- The plaintiff has filed the suit for damages pleading therein that he was employed with the defendant No.1 in the year 1967 and due to his hard-work raised revenue and gained promotion and was assigned position of Manager in 1985. The plaintiff further pleaded that without any reason the plaintiff was called by defendant No.2 to relinquish the charge of office and abdicate the same to a person of his choice. The plaintiff showed his resentment and protest on which defendant No.2 suggested to the plaintiff to resign from his employment: The plaintiff under protest and economic duress put his signature on the letter of resignation. The plaintiff has deprived of his legitimate expectancy to gain the coveted position of Regional Manager and other positions perks and his right to increased remuneration. The plaintiff claims that he was made on record to appear to have resigned yet, it was the abrupt resignation perpetuated' by the defendants, jointly and severally, that he has been disgraced beyond repair for which no amount of money can compensate. The plaintiff claims the compensation as under:- Rs.8 million Compensation Rs.2 million Metal torture and anguish. The defendants have filed their joint written statement. In the written statement, it was stated that the employment of the plaintiff with the defendant No.1 covers solely by his contract/letter of appointment dated 14-9-1967. According to clause (7) whereof both the plaintiff as well as defendant No.1 could terminate the employment by giving to other one month notice or salary in lieu thereof and the plaintiff exercised his contractual right to terminate his employment with defendant No.1 by submitting resignation vide his letter dated 19-12-1997 and as requested, the plaintiff was released from the service on the same date and in pursuance thereof he was paid a sum of Rs.18,74,745 being full provident fund dues and after 19 days i.e. on 7-1-1998 the plaintiff received from defendant No.1 a sum of Rs.13,44,145 being his remaining legal/separation dues (comprising gratuity, less the amount due from him). In addition to the above, the defendant No.1 also gave to plaintiff on 7-1-1998 on purely as a gesture of goodwill, a gift of 35.588 U.S. Dollars (equivalent to Rs.16,50,000) treating the severance of plaintiff employment with defendant No.1 as if it was a case of early retirement. It was further pleaded in the written statement that plaintiff himself, on his own and absolute will and discretion decided to terminate the contract of his. employment by submitting his resignation on 19-12-1997. The claim of the plaintiff for Rs.10 million is entirely vexations and unjustified and there was no cause for the plaintiff to make such claim. From the pleadings of the parties following issues were framed:

(1) Whether the plaintiff resigned from the service on his own accord on 19-12-1997 or his services were terminated by the defendants as alleged? If no, whether the plaintiff has a cause of action to file the suit? (2) Whether defendants have committed any breach of the service contract dated 14-9-1967, to give rise to the plaintiff to file the present suit for damages? (3) Whether the plaintiff after getting all his legal dues including gratuity, provident fund and ex-gratia payment amounting to Rs.52,69,572 as a result of resignation from the service can be said to be an aggrieved person for filing the present suit for damages? (4) Whether the suit as framed is maintainable in law for future expectations and promotions after resignation from service? (5) Whether the defendants are entitled to claim for special costs for vexatious and frivolous litigation? (6) What should the order be? To prove his case the plaintiff examined himself and produced documents from Exhs.5/1 to 5/9. In support of its case the defendants examined Shaad Hassan and produced document as Exh.6/1. Issue No.1 The burden to prove the issue is upon the plaintiff. In his examination the plaintiff deposed that on 16-12-1997 he was called by his Boss and informed him that stellar Vice-Person/Area Manager of the Middle East want to appoint Mr. Humayoon Baig as Regional Manager of the defendant-company and he have to step down and to work under him. He requested for time and then tendered his resignation as he was pursue by the defendant to do so. In his cross-examination the plaintiff admits his signature on Exh.5/9 which is the copy of resignation letter. The plaintiff further admits that after tendering resignation he has received all his dues and gave receipt for full and final settlement of his dues. The learned counsel for the plaintiff submits that the plaintiff was assigned to work on number two position or to resign from service and for that reason the dues was cleared on the same day and one month notice pay was also paid to the plaintiff in breach of the terms of appointment letter. He submits that a situation was created for the plaintiff to resign from service and that amounts to exercising undue pressure upon the plaintiff. Mr. Abdul Hafeez has referred to Exh.6/1 and submits that by this letter the plaintiff was informed to hand over charge to Mr. Humayoon Baig, the plaintiff instead of handing over the charge voluntarily resigned from service. He then refers to Exb.5/9 which is the resignation letter of the plaintiff and submits that this document is sufficient to prove the voluntarily nature of resignation. He then contended that the plaintiff till the receipt of full and final payment never disputed his resignation and after more than six months of the receipt of payment filed this suit as an afterthought. Admittedly the services of the plaintiff governs under the Service Contract and unwritten law of master and servant is applicable. The plaintiff can claim damages if he was wrongfully dismissed from service. Exh.5/9 coupled with the fact of receiving payment without any objection and protest prove that the plaintiff has rendered his resignation voluntarily. In the reported case of Chairman P.I.A.C. and others v. Nasim Malik PLD 1990 SC 951 the Honourable High Court while dealing a case of employee of who was at that time consider to be civil servant by deeming provision held as under:

"As regards the merits of the case, we are of the view that the respondent after having made a request for treating his resignation as termination and after having received financial benefits in the form of more than Rupees one lac plus the benefit of pension etc. it was not open to him to re-agitate the question that his resignation was obtained by the appellants under duress and coercion. The Tribunal has overlooked the above important aspect which goes to the root of the matter, and has not said a single word in the lengthy judgment under appeal. We are, therefore, of the view that even on merits the respondent's service appeal merited dismissal". The other aspect of the case is that the plaintiff in presence of documentary evidence cannot relied upon oral evidence. These are only words of the plaintiff that he was forced to resign. The conduct of the plaintiff in receiving the payment without any objection and reservation. Issuing receipt for full and final payment, and enjoying, other returning benefits and remained silent for more than six months is sufficient to conclude that the plaintiff has tendered resignation voluntarily without any undue pressure and the defendants have not terminated his service and he has no cause of action to file this suit for damages. Issue No.2 The burden to prove this issue is upon the plaintiff. Exb.5/1 is the appointment letter of the plaintiff. Clause (7) of which provides that each party is at liberty to terminate the employment by giving one month notice, or failing such notice shall pay one month's salary in lieu thereof. The plaintiff has voluntarily resigned from his services and the defendants have not terminated his services. The learned counsel for the plaintiff submits that the payment of 'one month salary by the defendants is sufficient to prove that the services of the plaintiff was terminated and in lieu of one month notice one month salary was paid.. Even, if the contention of the plaintiff is accepted for arguments sake the termination is simpliciter without any stigma. The service contract provides for termination of service by giving one month notice. The defendant by paying one month extra salary to the plaintiff has not committed any breach of contract. If the defendant has paid any amount ex-gratia and that amount was accepted by the plaintiff without any objection, protest and reservations that cannot be termed as mala fide on the part of the defendants. The defendants have not committed any breach of service contract. The plaintiff has failed to prove the issue. Issue No.3 Since the plaintiff has voluntarily resigned from service and have received his dues including additional payment without any protest and objection he is not an aggrieved person for filing the present suit. Issue No.4 The plaintiff has no vested right for promotion. There is no specific condition in the service contract that the plaintiff will be promoted. The promotion of the plaintiff is not vested right but the wish, of employer and the plaintiff being a servant cannot impose himself upon his master. The suit is not maintainable. Issue No.5. The burden is upon the defendant to prove. No evidence has been produced by the defendant in this regard. The issue is answered in negative. The suit is dismissed. S.A.K./I-22/K Suit dismissed.