2007 PLP 666 (MLD)

SH. AZMAT SAEED, J.

This order shall dispose of Civil Revision 1449 of 2006 filed by the petitioners Presbyterian Medical Board and others to call in question the validity of judgment and decree, dated 16-5-2006 by means of which the learned Additional District Judge dismissed the appeal filed by the appellants against the judgment and decree of the trial Court, dated 16-5-2006.

2. Precisely, the facts of the case are that Dr. Nelson Azeem, hereinafter to be referred as respondent, filed a suit for declaration and permanent injunction against the petitioners with the averments that petitioner No.1 is a charitable society registered under the Societies Registration Act, 1860 and petitioners 2 to 10 constitute the board purporting to run the affairs of petitioner No.1 including the hospital known as Memorial Hospital Sialkot. And that respondent who is a doctor by profession was initially appointed as medical office way back in 1983 and subsequently promoted as Medical Superintendent of the aforesaid hospital in 1991. However, vide circular, dated 6-10-1997, services of the respondent were terminated by the petitioner. In the above perspective suit was filed to the effect that a declaration be issued that termination of the services of the respondent was illegal and void and injunction be granted restraining the petitioner from interfering in this functioning as MS of the said hospital.

3. Petitioners entered appearance and contested the suit by filing its written statement. Upon divergent pleadings of the parties, issues were framed and both parties led their respective evidence, whereafter, the trial Court vide its judgment, dated 9-7-2005 decreed the suit and also directed the petitioners to pay the dues to which the respondent would have been entitled had he been working as MS. Being aggrieved, the petitioners filed an appeal which failed to find favour and was dismissed by the first appellate Court by means of judgment and decree sought to -be impugned herein.

4. Counsel for the parties have been heard and the record appended with this petition perused. It is argued by the learned counsel for the petitioners that relationship inter se the parties was contractual in nature and not governed by any statutory rules. And such contract was not only that of master and servant but also the nature of the contract was such i.e., the personal service, which could not be specifically enforced, hence, no injunction could be granted. It was next argued that the suit in its present form was not maintainable as further relief for the recovery of the alleged dues was not prayed for, hence, the suit hit by the proviso to section 42 of the Specific Relief Act. Adds that relief not even prayed for and alien to the suit as farmed, has been awarded to the respondent. Further asserts that letter of appointment of the respondent being the crucial document whereby relationship between the parties had to be identified was not produced in evidence. In support of his contentions, learned counsel for the petitioners relies on PLD 1961 SC 531, Malik and Haq and another v. Muhammad Shams ul Islam Chaudhri and 2 others, 2001 SCMR '909, Aurangzeb v. Messrs Gool Bano Dr Burjor Ankalseria and others, 2002 CLC 857, Syed Aziz Ahmed v. Messrs Bolan Bank Limited, PLD 2006 SC 602, Muhammad Mubeen ul Salam and others v. Federation of Pakistan.

5. Whereas, learned counsel for the respondent controverting the contentions as being. raised by the learned counsel for the petitioners, contends that even in absence of statutory rules, relief as prayed for by the respondent could be granted to him. Adds that petitioner No.1 had admittedly framed rules governing disciplinary action against its employees which necessitated holding the inquiry and opportunity of being heard. Said rules were admittedly not adhered to by petitioners nor opportunity of hearing granted to the respondent. In the above perspective, learned counsel contends that violation of said rules by the petitioners would cloth the respondent with a right to remedy of declaration and injunction as the petitioners cannot be allowed to violate the rules framed by themselves. Adds that concept of master and servant has now become obsolete and no longer applicable,. To substantiate his contentions, learned counsel relied on 2001 SCMR 934 PIAC and others v. Nasir Jamal Malik and others, 2002 PLC (C.S.) 1 Tilat Hussain and others v. Chairman PIA and others.

6. In rebuttal, learned counsel for the petitioners have stated that judgments relied upon by the learned counsel for the respondent arise from the decisions of the Service Tribunal pertaining to section 2-A of the Civil Servants Act, hence, are not applicable to the facts and circumstances of this case. Adds that rules relied upon by the learned counsel for the respondent were not only not statutory in nature but also pertained to a dismissal for cause and in the instant case is of termination simplicitor as is obvious from the impugned circular; dated 6-10-1997. It is reiterated that an employee rendering service cannot be foisted on an unwilling employer.

7. There can be no escape from the fact that most pivotal issue requiring determination of the lis at hand is the nature of relationship between the parties. It was to be ascertained whether relationship was contractual in nature. It was further required to be determined whether the nature of the contract was such that could be specifically enforced or not. It was also relevant for adjudication whether the suit was barred by proviso to section 42 of the Specific Relief Act. In this behalf contentions raised on behalf of the learned counsel and the judgments relied upon by them are obviously relevant. The examination of the judgments and decrees impugned reveals that real matter in controversy perhaps escaped the notice of the Courts below who have skimmed over the issue rather than adjudicate upon it. Hence, the judgments and' decrees impugned are not sustainable in law and are hereby set aside and case is remanded to the trial Court with a direction to decide the matter afresh within six months if necessary by framing additional issues.

8. Civil Revision accepted and case remanded in the terms indicated ibid. F.B./P-32/L Petition accepted.