1980 PLP 381 (CLC)

2. In the plaint, it was alleged by the plaintiff that the order of his reduction in rank was arbitrary as it was passed by an incom petent Authority and alleged mala fides against Mr. F. R. Niazi, the Secretary of the Corporation The suit was resisted and it was submitted that relationship of master and servant existed between the parties and as such the plaintiff was not entitled to any right of civil action. On the pleadings of the parties the following issues were framed :-- (1) Whether the suit is not maintainable for the reasons detailed in preliminary objections Nos. I and 2 raised in the written statement '' (2) Whether the plaintiff has not come to this Court with clean hands ? (3) Whether the suit had abated '' (4) Whether the impugned order dated 27th May, 1969, is illegal and void ? (5) Relief.

3. During hearing of the appeal before the lower Appellate Court the present appellant filed a document which relates to one of the suits filed by the plaintiff titled a Shamim Khan v. F. R. Niazi, Secretary P. S. I. C. pending in the Court of Mir Afzal Khan, Civil Judge, Lahore Those two suits were different than the present suit to which this docu ment relates. The plaintiff admitted to have received his entire dues, gratuity, G. P. Fund etc. Those suits were withdrawn. This document was placed before the Additional District Judge to show that the plaintiff had compromised and as such the compromise in those suits was binding on him in the instant suit as well. The learned Additional District Judge has not referred at all to this document since there was no application under Order XLI, rule 27, C. P. C. before him showing reason as to who this additional evidence way necessary which has beer. refused by the trial Court. It is pertinent to mention here that the so called compromise was made almost four months before the present suit was dismissed by the trial Court. The second appeal was admitted on the ground that no appeal was competent since the matter had already been compromised between the parties.

4. After going through the record it is absolutely clear that no com-1 promise whatsoever was effected in the instant suit between the parties and the document presented before the Additional District Judge on 19th July] 1976, was not produced before the trial Judge. It could not be taken into consideration under Order XLI, rule 27, C. P. C. by the lower Appellate Court. The document itself is a photostat copy which is inadmissible in 4 evidence unless a certified copy is produced with a proper application Learned counsel for the appellant vehemently argued that this document should have been considered by the appellate Court but there is hardly any substance in his argument, for, the proper procedure has not been observed. The leading authority on such question is Mehr Allah Ditta and another -v. Muhammad Ali and another (P L D 1972 S C 59). 5 It was next contended by learned Counsel for the appellant that relationship of master and servant applied to the parties and as such the appellant was competent to pass the order of demotion of the plaintiff respondent He admits that although the appellant is a statutory Corpora tion and has framed Rule but the) have not been gazetted. The parties are governed be terms and conditions of service according to sec tion 40 (c) of West Pakistan Small Industries Corporation Ordinance. 1965. Learned counsel for the appellant further admitted that the terms and conditions of his service have not been filed by the appellant along the written statement. Reliance was placed on the Chairman, East Pakistan Development Corporation v Rustom Ali and another (P L D 1966 S C 848), Pakistan and Rehabilitation Finance Corporation Lahore anti another a. Syed Karamat Hussain (P L D 1966 Lah.442), Ghulam Farid Khan v. East Pakistan Industrial Development Corporation and others (P L D 1968 Dacca 347) and Syed Faywaz Hussain Qadri v. The Administrator, Lahore Municipal Corporation, Lahore aria others (P L D 1972 Lah. 316) to canvass that in the statutory Corporation the relationship of an employee is that of a servant with his master. Almost all the cases cited above deal with the writ petition. In Pakistan Refugee and Rehabilitation Finance Corporation and another v. Syed Karamat Hussain the writ was refused since after enquiry the services of the employee were terminated he having been found guilty of misconduct by the Enquiry Committee The case-law cited above is clearly distinguishable, for, to the instant case the plaintiff has filed the order of promotion stating the terms and conditions (Exh. P. 1) in paragraph 2 of which it is clearly mentioned that promoted officer shall remain on probation for one year. 1n para 3 of Memo (Exh. P. 2) issued by the Secretary of the appellant under the heading "Probation period" it is mentioned as under "He will be on probation of one year with effect from 27th September 1967 (forenoon) other terms and conditions of service remaining the same. The promotion will be subject to reconsideration at any time during the probation period." The order of demotion is Exh. P. 3 dated 27th May, 1969.

6. The appellant Corporation has filed the annual report of the officer for the period from Ist July 1967 to 30th June 1968 (Exh. D. 1) from 25th September, 1968 to 24th March 1969 (Lxh. D. 2) Office Order (Exh. D. 3) and the letter addressed by the plaintiff about his personal file (Exh. D. 4), The plaintiff in this letter requested the Secretary W. P. S. I C., Lahore, to confirm whether his personal file was in sate custody of the Department and asked for attested copies of the minutes of the Board of W. P. S. I. C. which reverted him from the rank of the Deputy Manager in 1969, so that he may take up the matter for reconsideration. This letter is dated 6th June, 1972.

7. Learned Counsel for the respondent cited Abdur Razzaq Malik v. WAPDA (P L D 1973 Lah 188) the judgment of the present Chief Justice of this Court which is a leading authority on the question of relationship of master and servant of a statutory Corporation. The finding of the learned Judge on page 203 is "The mere fact, therefore that a person is not a civil servant of the State and is, not entitled to Constitutional guarantees does not always lead to the result that he is governed by the ordinary and genera? law of master and servant. Wherever there are statutes or statutory rules governing the relationship between an employer and an employee, and there are restrictions placed in such provisions which are contrary to the concept of the ordinary law of master and servant it is those statutory provisions and rules, which shall apply and not the so-called general law of master and servant. In such cases the employer would have the power to terminate the employ ment only in the circumstances in which the statute or the rules clothe it with authority to do so." There is hardly any substance in the submission of the learned counsel for the appellant that the principle of master and servant would apply between the parties in the instant case. Even if the rules are not notified it is a statutory body and is the creation of an Ordinance. In any case the demotion had to be in accordance with the Ordinance by observing certain procedure and in any case the protection provided in the Ordinance to the employee could not be ignored.

8. Lastly it was submitted by learned counsel for the appellant that the suit was barred by time. The suit was filed after three years of the impugned order. He was unable to show under which article of the Limitation Act the period of three years is provided for filing such suits. Learned Counsel for the respondent referred to Article 120 of the Limita tion Act which prescribes six years period for filing suit in regard to which there is no specific provision in other articles of the Limitation Act. The suit is, therefore, within limitation. This objection was neither raised in the written statement nor before the lower Appellate Court or in the grounds of this appeal.

9. For the foregoing reasons this appeal fails and is dismissed with costs. S. Q. Appeal dismissed.