2009 PLP (C (PLC(CS))

IJAZ-UL-HASSAN KHAN, J.

The above captioned appeals by appellants are directed against identical judgments dated 19-9-2001 passed by learned Peshawar High Court, Peshawar, whereby Regular First Appeals Nos.35 and 36 of 1999 filed by Messrs Hoechst Pakistan Ltd., respondent-company, were accepted, setting aside judgments and decrees of learned Civil Judge, Peshawar, dated 9-4-1999 and as a result, suits filed by the appellants were dismissed.

2. Facts of the case need not be reiterated 'as the same have been mentioned in detail in the impugned judgments as well as in the memo. of petitions. Suffice is to state that Gohar Ali and Sher Zaman Khattak, appellants, filed separate suits in the Court of Senior Civil Judge, Peshawar, claiming Rs.54,81,750 and Rs.54,77,214 respectively as damages against respondent-company, averring that while serving as Senior Medical Information Officers with the respondent-company, appellants' salaries, gratuity bonuses, premium and leave fair allowances were withheld by respondent-company and that appellants were transferred from Peshawar to far flung areas i.e. Hyderabad, Sukkur and Larkana in order to pressurize them to resign from service of the respondent-company and ultimately appellants' services were terminated on 23rd January, 1996 on false and baseless grounds ignoring that appellants throughout their service showed satisfactory performance and devotion to their jobs and as an appreciation of the same appellants were given promotion by the respondent-company.

3. The suits were resisted on all grounds legal as well as factual and claim of the appellants was denied. To adjudicate upon .the matter, following issues were framed for trial:-- (1) Whether the plaintiff has got a cause of action? (2) Whether this Court has got the jurisdiction in the matter? (3) Whether the suit is bad for non-joinder and misjoinder of the parties? (4) Whether the suit is bad/incompetent as framed? (5) Whether the relationship of master and servant exists between the parties? (6) Whether the petitioner is liable to receive the suit amount from the respondent? (7) Whether the petitioner is entitled to the decree prayed for? (8) Relief.

4. Upon consideration of the material placed before him, learned trial Judge, seized of the matter vide judgments and decrees dated 9-4-1999 and allowed both the suits with costs awarding Rs.7,00,000 each to the appellants as damages due to illegal termination of their services by the respondent-company. Feeling aggrieved, respondent-company preferred regular first appeals before learned High Court which through the judgment impugned herein have been allowed, as stated and mentioned above.

5. We have heard in detail Mr. Waseem-ud-Din Khattak, Advocate appearing on behalf of the appellants and Mr. Neel Keshov, Advocate representing the respondent-company, in the light of the material on file.

6. Learned counsel for the appellants bitterly criticized the impugned judgment and contended that learned High Court has taken contrary view and reversed the findings of the trial Court without justifiable reasons and in total disregard to the material on record, resulting in complete failure of justice. Learned counsel added that hammer has fallen on the appellants for no other reason but on account of their refusal to abide by the wishes of the management of the respondent-company culminating in termination of appellants' services. To augment the contentions reliance was placed on Habib Bank Limited and others v. Syed Zia-ul-Hassan Kazmi 1998 SCMR 60.

7. As against that learned counsel representing the respondent-company, fully supported the impugned judgment submitting that services of the appellants were terminated for valid and cogent reasons i.e. absence from duty and lack of interest towards their jobs; that there was nothing on file to substantiate the claim of the appellants and that transfer from one team, territory or city to another anywhere in Pakistan is a normal incident in the business of respondent-company.

8. Having heard learned counsel in the light of the material on file we find weight in the submissions of learned counsel for the appellants. We feel necessary to refer to paras.6, 7 and 9 of the impugned judgment which read:

"(6) The letter of termination of the respondents' (appellants) service dated 23-1-1996 (Exh.P.W.1/3) states that the respondent's services have been terminated under clause 8 of his letter of appointment. No reasons however, were given nor any allegations made in the letter of termination. In the written statement filed by the appellant-company it was pleaded that the respondent's services were terminated under clause 9 of the letter of appointment. It will be seen that clause 8 does not make any reference to the period of employment or termination of the respondent's services. It only makes reference to the manner in which the respondent is to conduct business of the company. Reference to clause 8 in the letter of termination of service was erroneous, whether made consciously or mistakenly. Respondent's service could not have been terminated under clause 8 and the only provision under which such action could have been taken was clause 9(a). The respondent's termination of service is, therefore, to be considered as having been made under clause 9(a). (7) According to clause 9(a) the respondent's services were liable to be terminated on one month's notice or one month's pay in lieu thereof. However, no such notice was required if the respondent's services were terminated on the grounds of misconduct etc. If the respondent's services were terminated in violation of clause 9(a) his only remedy was to recover one month's salary. He cannot claim any compensation for termination of his service as his service was not for specified fixed period but liable to termination at any time at the will of the employer. (9) The learned counsel for the respondent had also argued that the respondent was victimized during his employment. It may be stated that the relationship of the respondent and the plaintiff was of master and servant and according to clause 9(a) of the letter of appointment the respondent was at liberty to quit the services by giving one month's notice to the employer. Thus, he had the option to leave the appellants employment if he could not get along with his employer. By not exercising that option he now has no right to claim compensation for the alleged victimization which he could have averted by resigning from his services."

9. A careful scrutiny of the record would reveal that salaries of the appellants were withheld by the respondent company without any legal justification. Appellants were transferred from one place to the other to compel them either to abide by the wishes of the management or tender resignation and ultimately services of the appellants were terminated vide letter, dated 23-1-1996 (Exh.P.W.1/3) under clause 8 of the appointment letter dated 5-10-1987, which clause does not provide for such action. Neither any reason for said action has been given nor the required one month's notice was issued to the appellants before termination of their services. Naturally by such illegal action on the part of the respondent-company without any justifiable reason appellants suffered in their reputation and prospects of future employment.

10. Adverting to the question of compensation it may be observed that the effect of the application of the master and servant rule is that an employee of a corporation in the absence of violation of law or any statutory rule cannot press into service constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service, his remedy for wrongful dismissal is to claim damages. It was held by this Court in Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor PLD 1996 SC 737 that there can be no yardstick or definite principle for assessing damages in such cases. The damages are meant to compensate a party who suffers an injury. It may be bodily injury loss of reputation, business and also mental shock and suffering. So far nervous shock is concerned, it depends upon the evidence produced to prove the nature, extent and magnitude of such suffering, but even on that basis usually it becomes difficult to assess a fair compensation and in those circumstances it is the discretion of the Judge who may, on facts of the case and considering how far the society would deem it to be a fair sum, determines the amount to be awarded to a person who has suffered such a damage. The conscience of the Court should be satisfied that the damages awarded would, if not completely, satisfactorily compensate the aggrieved party.

11. In the light of the above discussion both the appeals are allowed, impugned judgments of learned High Court are set aside and the judgments and decrees passed by learned trial Court in favour of the appellants are restored. There shall be no order as to costs. M.H./G-16/SC Appeals allowed.