2007 PLP 2960 (YLR)

MAULVI ANWARUL HAQ, J.

On 27-10-2005, the petitioner filed a suit against the respondents. According to the plaint the petitioner was appointed Godown Keeper in the Batik of Bahawalpur at Kasur on 21-11-1972. While he was so serving the said Bank was .merged with National Bank of Pakistan. His services accordingly stood transferred to the National Bank w.e.f. 1-7-1974. He had been serving in various branches. He completed 25 years of service on 20-12-1997. Full emoluments due to him were not paid and this was done as his service in the Bank of Bhawalpur from 21-11-1972 to 20-6-1974 was not included. He had to resort to litigation in this Court, Federal Service Tribunal and in Honorable Supreme Court of Pakistan. It was in the light of decisions so rendered that fie was paid his remaining emoluments. Attributing mala fide to the respondents he claimed damages on various counts. Written statement was filed with main objection that the jurisdiction of Civil Court is barred under Article 212 of the Constitution. A separate application under Order VII, Rule 11 was also filed, which was replied by the appellant. Vide order and .decree dated 4-5-2006 the plaint was rejected. This appeal was filed in this Court on 7-6-2006. It came up before the Court on 18-12-2006, when it was admitted and notice was issued.

2. The learned counsel for appellant contends that the plaint has been misread by the learned trial Court and upon a plain reading the claim as such had not nexus with the terms and .condition of service of appellant. According to the learned counsel the appellant was deemed to be civil servant under section 2-A of the Service Tribunals Act, 1973, in view of judgment of Honorable Supreme Court of Pakistan in case Muhammad Mubeen-us-Salam and others v. Federation of Pakistan (PLD 2006 Supreme Court 602), the said provision of law has been declared ultra vires.

3. The learned counsel for respondents, on the other hand, relies on the case of Federal Ministry of Railways and others v. Zafarullah Khan (1988 PLC (C.S.) 602) to urge that the claim for damages is relatable to the terms of service and is cognizable only by the Federal Service Tribunal. He, however, admits that the appellant is deemed to be civil servant by virtue of said section 2-A of the Service Tribunals Act, 1973. He has not much to say as to said second ,contention of the learned counsel for appellant except that at the, time when the plaint was rejected the said provision of law was in force.

4. We have gone through the record. Gist of the plaint has already been narrated above. Upon a plain reading the damages are being .claimed on the ground that because of acts of the respondents/ officers the appellant was forced to resort to the litigation and he has also sought compensation for the delay. To the extent of this latter claim the judgment cited by the learned counsel for respondent does support him. On the other hand, the learned counsel for appellant refers to the case of Zafar Ali Qureshi v. Muhammad Ali (PLD 2002 Supreme Court 723) where the Honorable apex Court has expressed appreciation for the efforts of a Government Servant to sue the concerned Officer for damages, who had delayed the payment of his salary bills. Re-appreciation of the matter is not required in view of the said judgment of Mubeen-us-Salim and others. Admittedly, terms and conditions of the appellant are not determined by the Federal Legislative and as such according to the said judgment he could not be treated as a civil servant under section 2-A of the Service Tribunals Act, 1973. The R.F.A. is accordingly allowed. The impugned order and decree is set aside. Result would be .that the suit filed by the appellant shall be deemed to be pending before the learned Senior Civil Judge, Kasur. The parties shall appear in the said Court on 19-7-2007. Record shall be remitted to the said learned Judge by the office along with the copy of this judgment, who shall proceed further and decide the suit in accordance with law. No order as to costs. H.B.T./R-31/L Appeal allowed.