2020 PLP 1259 (SCMR)

GULZAR AHMED, C.J.

We have heard the learned counsel for the parties and have also gone through the material available on record.

2. The Respondent was employed with the appellant-company as a Chief Engineer. On 16.10.2000 he submitted resignation from service. However, after submission of the resignation, the Respondent did not report for duty for a long time. On 13.07.2001, he submitted a letter to the appellant-company seeking rejoining of duty. However, in the meanwhile on 09.04.2001 the appellant-company issued a charge sheet to the Respondent for his remaining absent from duty. The appellant-company accepted the resignation of the Respondent on 14.09.2001. The Respondent filed a civil suit seeking a declaratory decree. The suit was dismissed. Appeal filed against dismissal of the said suit was also dismissed. The Respondent thus filed a constitutional petition which was converted into a Revision Application and by the impugned order 07.02.2019 the same has been allowed by the High Court. As the Respondent had already attained the age of superannuation the appellant-company was directed to calculate his pensionary benefits in accordance with law and pay the same to him within a period of two months.

3. Learned counsel for the appellant-company contends that the very suit filed by the Respondent before the Civil Court was not maintainable for the reason that the appellant-company is not a statutory corporation nor any statutory rules of service are applicable to its employees rather the principle of 'master and servant' applies to them and a declaratory suit could not have been filed by the Respondent. He further contends that there were concurrent findings recorded by the trial Court as well as the Appellate Court where the Respondent has been non suited for the reason that his suit was not maintainable, and the High Court in the revision application was not competent to upset such concurrent findings more so when the High Court itself has not considered the case of the Respondent while applying the correct principles of law. He adds that the High Court has illegally and erroneously applied principles of ESTACODE which are applicable to the civil servants and not to the Respondent, who was not a civil servant and thus decided his case on such basis which was totally against the settled principles of law.

4. Learned counsel for the Respondent, on the other hand, has defended the impugned judgment.

5. We note that the submissions made by learned counsel for the appellant-company regarding rules applicable to the employees of the appellant-company have not been elaborately considered by the High Court in the impugned order and it has gone on to consider the law as laid down in the ESTA CODE which apparently was not applicable to the case in hand for that the Respondent was not a civil servant. The High Court has also not considered that there were concurrent findings recorded by the Courts below and what need was felt by the High Court to interfere with such concurrent findings the same has not been addressed in the impugned order.

6. In the circumstances, we consider this case to be a fit one for remand to the High Court for deciding the same afresh. Consequently, this appeal is allowed, the impugned judgment dated 07.02.2019 is set aside and the matter (Revision Application No.61 of 2009) is remanded to the High Court to decide the same afresh, in accordance with law.

7. As this is an old matter, it is expected that the learned High Court will decide the same as early as se possible, preferably within a period of six months.

8. All pending C.M.As. also stands disposed of. MWA/S-28/SC Case remanded.