2025 PLP 160 (PLC)

AHMAD NADEEM ARSHAD, J.

This Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 27.06.2022, whereby, the learned trial Court dismissed the suit instituted by the appellant-plaintiff for declaration and recovery of an amount of Rs.9,03,00,000/- as damages.

2. The brief but essential facts of this appeal are that the plaintiff (herein after referred to as 'the appellant) instituted a suit on 16.01.2016 for declaration and recovery of Rs.9,03,00,000/- as damages against the defendants (herein after referred to as 'the respondents) with the contention that in order to fill the vacant post of Financial Analyst the respondents advertised the same and the appellant applied for it; that although at that time he was serving in Habib Bank Limited, Sialkot as Manager Relationship but as the respondents offered better package, therefore, he sought his appointment on the said post; that he was selected as Financial Analyst on merits and the respondents issued his appointment letter dated 03.01.2008; that in the said appointment letter except the salary of Rs.35,000/- utility allowances, house rent etc. were also agreed along with medical and telephone facility; that it was agreed in the appointment letter that probation period is six months and thereafter, he will be confirmed; that he served the respondents with their entire satisfaction without any complaint; that after six months he was confirmed; that vide notification dated 21.07.2010 he was terminated from service without any reason/allegation and without providing him an opportunity of hearing; that no notice was given to him prior to his termination; that he served the respondents and provided maximum benefits to them; that the respondents, in order to appoint their own blue-eyed, terminated his service; that he approached the Hon'ble High Court and his writ petition was disposed of while directing the respondents to decide his pending appeal strictly in accordance with law; that despite this, the respondents have not provided him any opportunity of hearing and dismissed his appeal; that due to his termination from service and dismissal of his appeal by the respondents without providing opportunity of hearing, he suffered mental agony and also became un-employment; that he belongs to a respectable family of Gujranwala and due to his termination his reputation was badly damaged, so he is entitled to recover Rs.9,03,00,000/- as damages for mental torture, loss of reputation as well as expenses incurred upon litigation and also prayed for cancellation of termination letter and his reinstatement in service with all back benefits. In response, the respondents appeared before the learned trial Court and filed contesting written statement on 14.03.2016 by raising preliminary objections such as the suit is not maintainable in its present form as the service matter is involved in the instant case, therefore, Civil Court has no jurisdiction to entertain the same; that the appellant has not come to the Court with clean hands; that he has no cause of action and locus standi to institute the suit; that the performance of the appellant was not up to the marks and he remained absent from his duty without information, so he is not entitled to any relief; that the appellant filed Writ Petition bearing No.18113 of 2010 and if any grievance is left, he may approach the Hon'ble High Court so his plaint is liable to be rejected under Order VII, Rule 11, C.P.C. While replying on facts it was submitted that the appointment of appellant was purely on contract basis and due to his poor performance his contract was terminated in the light of clause No.10 of the agreement/appointment letter; that due to his absence, explanation letters dated 26.09.2008, 28.02.2009 and 17.03.2009 were issued to him and he filed reply on 24.03.2009; that prior to termination opportunity of personal hearing was granted to the appellant; that in compliance with the order of Hon'ble High Court dated 24.09.2004 opportunity of hearing was provided to the appellant and in this way the order of the Hon'ble High Court was complied with; that due to termination the reputation of the appellant was not damaged and he has not suffered any type of loss and prayed for dismissal of the suit with special costs.

3. Out of divergent pleading of the parties, the learned trial Court vide order dated 11.03.2015 framed following issues. ISSUES:

1. Whether the plaintiff is entitled to get a decree for declaration and recovery of Rs.9,03,00,000/- from the defendants on the basis of averments made in the plaint ?OPP.

2. Whether the suit is not maintainable in its present form, hence, the some is liable to be dismissed under Order VII, Rule II, C.P.C. ?OPD.

3. Whether the plaintiff has not come to the court with clean hands ?OPD.

4. Whether the plaintiff has no cause of action to file the instant suit ?OPD

5. Whether the suit is false, frivolous hence the same is liable to be dismissed with costs and the defendants are entitled to get special costs under section 35-A, C.P.C.? OPD.

6. Relief Thereafter, the parties were invited to produce their respective evidence. The appellant himself appeared as PW-1 and also got exhibited 19 documents as Exh.P-1 to Exh.P-19 in his documentary evidence. In rebuttal, Tayyib Shabbir Manager, HRBP appeared as DW-1. In documentary evidence they produced 10 documents as Exh.D-1 to Exh.D-10 along with documents Mark-P.A to Mark-P.H. Upon conclusion of the trial and after providing opportunity of hearing the learned trial Court dismissed the suit of the appellant vide impugned judgment and decree dated 27.06.2022. Being dissatisfied, the appellant preferred the instant appeal.

4. We have heard learned counsel for the parties at full length and have also gone through the record with their able assistance.

5. Perusal of the record reveals that the appellant instituted his suit and claimed two relief i.e. firstly he sought declaration to the effect that his termination letter be declared as null and void and he be reinstated in service with all back benefit and secondly; in alternate he claimed recovery of damages to the tune of Rs.9,03,00,000/- due to the act of the respondents with regard to his termination from service whereby his reputation was badly effected and he also suffered mental agony, whereas, the respondents in their written statement raised objection that the Civil Court has no jurisdiction to entertain the suit as the service matter is involved in this case. To resolve this controversy, the learned trial Court framed issues Nos.1 and 2 in the following manner: - Issue No. Whether the plaintiff is entitled to get a decree for declaration and recovery of Rs. 9,03.00,000/- from the defendants on the basis of averments made in the plaint ?OPP. Issue No.2. Whether the suit is not maintainable in its present form, hence, the same is liable to be dismissed under Order VII, Rule II, C.P.C.? OPD.

6. In order to prove his case, the appellant himself appeared as PW-1 and deposed that he was appointed in the department as Financial Analyst; that prior to this job he was working as Relationship Manager in Habib Bank Limited and produced his appointment letter in HBL as Exh.P-1. He further deposed that after probation period of six months, he was confirmed in service through letter Exh.P-3 and produced job offer letter as Exh.P-4 and appointment letter at Exh.P-5; that during service he performed his duties in good faith and due to this reason he was promoted within one year of service and also produced promotion order as Exh.P-6 and performance record as Exh.P-7; that on 21.07.2010 he was informed that his contract had been expired and terminated his service without giving any notice or providing opportunity of hearing; that he was not appointed as contract employee; that he was not served with any notice. He further deposed that the respondents terminated his service in order to oblige someone dearest; that he filed a writ petition before High Court and the Court directed the respondents to decide his appeal in accordance with law but again the respondents have not provided him opportunity of hearing and decided the appeal; that due to termination he was shocked and his reputation was also effected. He further deposed that he belongs to a respectable literate family; that his termination is against the law and fact without jurisdiction and without any reason and prayed that he be reinstated in service with all back benefits and also be awarded damages with regard to his mental agony, damage of his reputation as well as expenses incurred upon litigation and his termination letter be also declared as illegal and void. During cross-examination he admitted that he remained absent from duty without any information. He also admitted that explanation letter were issued due to his absence from duty on 26.09.2008, 28.02.2009 and 17.03.2009 and he submitted reply on 26.09.2008. He also admitted that he received termination later Exh.D-5 from the department. He further admitted during cross-examination that in all three explanation letters Exh.D-1, Exh.D-2 and Exh.D-4 sufficient reasons were mentioned. He also admitted that it is correct that in Exh.D-8 it was mentioned that he was given opportunity of personal hearing, on 30.07.2010 and 14.01.2015. He further admitted that he remained absent from duty w.e.f. 06.02.2009 to 22.02.2009 without any intimation. He explained that he remained admitted in C.M.H. Hospital Gujranwala. He further admitted it correct that in his writ petition (Exh.D-6) he has not mentioned that he met an accident. He also admitted that in his suit he has not mentioned the fact that he met an accident. He also admitted that in clause 10 of appointment letter it was mentioned that the service can be terminated by giving one month notice or salary plus all allowance equal to one month in lieu of notice period by either side. He denied the suggestion that he was appointed on contract basis. He also denied the suggestion that he failed to satisfy the company regarding his absence. He also denied the suggestion that in the light of direction of Hon'ble High Court he was given opportunity of personal hearing on 14.01.2015.

7. In rebuttal, Tayyib Shabbir Manager HRBP appeared as DW-1 and deposed that the appellant was appointed in the year 2008 on contract basis through agreement (Exh.D.9) in which there are 14 clauses and in clause No.10 it was mentioned that service can be terminated by giving one month notice period or salary by either side; that certain notices were given to the appellant time and again but he did not file the replies. He further deposed that on 17.03.2009 a letter (Exh.D-2) was issued to the appellant with a warning that departmental proceedings shall be initiated against him; that during the period of his posting his performance was very poor; that he remained absent from duty without intimation; that the department also issued explanation letter Exh.D-4; that vide letter dated 21.07.2010 (Exh.D-5) the appellant was terminated from service; that the appellant filed a writ petition (Exh.D-6) and in the light of order of High Court dated 24.03.2014 (Exh.D-7) the appellant was provided opportunity of hearing; that the Company has not forced the appellant to leave his previous job and join the PTCL; that the appellant has not suffered any loss due to his termination from service. During lengthy cross-examination nothing was brought on record favouring the appellant.

8. The appellant was given notices/letters to explain his position. This fact was also admitted by him while appearing as PW-1 by stating that he has submitted reply of the notices/letters. He also admitted that he remained absent from duty without any intimation. His version is that he met an accident and was admitted in C.M.H. Gujranwala but he failed to produce any medical prescription or any other documents showing that he remained admitted in the hospital. Even otherwise the appellant did not mention in his plaint that he met with an accident and remained admitted in hospital. Evidence beyond pleadings neither can be produced nor relied upon.

9. According to appointment letter (Exh.P-5/Exh.D-9) he was appointed on contract basis and according to clause 10 his service can be terminated with prior notice of one month by either side. Exact deposition is as under: -

10. PROBATION AND TERMINATION OF APPOINTMENT. You will commence your employment on a probationary period of six (06) months. On the completion of this period, provided your services are found satisfactory, you will he confirmed in service. Your services can be terminated by giving one (01) month notice period or salary plus all allowance equal to one (01) month in lieu of notice period by either side. However, the appointment shall be terminated if any document or information provided by you proves fake or false."

10. The pivotal question that requires to be answered in this case is as to whether the suit for declaration under section 42 of the Specific Relief Act, 1877 to challenge the order of termination from service of" an employee in a statutory Corporation having no statutory rules, was maintainable or not. It is a Nettled proposition that in absence of any statutory rules the employee cannot claim the rights and privileges as are available to "Civil Servants" rather the rule of "master and servant" would attract which is to the effect that unwilling employer cannot be enforced to accept the services of an employees who had been removed from service and no declaration could be issued as to the subsistence of a contract that by its own terms and conditions was terminable at the option of the employer. In the absence of any statutory provisions protecting servant, it is not possible under the law to grant him a decree against an unwilling master that he is still his servant. If the employee feels that the order of removal was not just or fair or suffered from any mala fide, the remedy will be to sue for damages and not for declaration for subsistence of service as no declaration could be issued as to the subsistence of a contract that by its own terms and conditions was terminable at the option of employer.

11. It is not controverted that the appellant was an employee of the Corporation i.e. "Pakistan Telecommunication Corporation Limited". As such the relationship between him and the "Corporation" was to be regulated entirely by law of "Master and Servant" and the Constitutional safeguards available to the generality of 'civil servants' will not available to him. In "Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others" (PLD 2011 SC 132) it has been held that employees of Pakistan Telecommunication Corporation Limited were governed by principle of "Master and Servant" and in absence of statutory rules, constitutional petitions filed by employees were not maintainable. Therefore, ever, if it be assumed for the sake of arguments that the termination order dated 21.07.2010 is against law and fact and passed due to ulterior motive even then the remedy available to the appellant is to sue for damages for wrongful dismissal/termination and not to institute suit for declaration.

12. The appellant wants his reinstatement in service after cancellation of termination letter dated 21.7.2010, hence, the matter is fall within the domain of Labour fora and not in the Civil Courts. An adequate and efficacious remedy of filing a grievance petition after giving a grievance notice to his employer under Section 46 of the Industrial Relations Ordinance, 2002 before Labour fora is available to the appellant. There is no denial of the fact that the said alternate remedy has not been availed by the appellant. So the learned trial Court has rightly held that the Civil Court has no jurisdiction to adjudicate upon the matter.

13. Now coming towards the second relief claimed by the appellant in his plaint, it is succumbed that a person is entitled to compensation for damages in case a legal contract is broken, so when a contract is broken, the party who suffers by such a breach is entitled to compensation for the damages caused for the actual loss. It is also an admitted proposition that a claimant is entitled to actual loss resulting from a breach of contract that arose in the usual course of things. The appellant has to prove each category of damages he has faced. Without establishing that the termination order is void and against law/illegal and in order to oblige some favourable person he cannot get any damages. It is not proved on record that the termination order was actuated with malice and result of ulterior motive. The appellant has to prove his contention that the termination order was passed with mala fide intention and ulterior motive. Perusal of record reveals that the appellant was appointed as Financial Analyst for a probationary period of six months and this fact has been mentioned in his appointment letter (Exh.P-Exh.D-9). It was also mentioned in clause 10 of the said document that the service can be terminated by giving one month notice period or salary. Admittedly the appellant absented from duty from 06.02.2009 to 22.02.2009 and a show-cause notice/letter of explanation was issued to him but he has failed to file its reply as is evident from Exh.D-2. It is also evident from perusal of record that on 17.03.2009 another letter of explanation was issued to him levelling allegations of poor performance, negligence to assigned duties, default of assignments, not traceable, bad attitude with an official as well as absence from duty for almost 16 days without information. The appellant submitted its reply in which he admitted his absence from duty without intimation. Although he explained the matter that he met an accident and was remained admitted in hospital but no document was produced along with his reply to strengthened his version. He was served notice of explanation with a warning that if he failed to submit reply disciplinary action would be taken against him. In this view of the matter it is very much clear that prior to termination proper notices were issued to the appellant and he was also given proper opportunity of hearing.

14. He has also not produced any documents/medical prescription that due to his termination from service he was suffered any mental agony or admitted in any hospital and also spent a huge amount on litigation. Although, the law provides him right to sue in shape of damages suit but the same with the condition to prove the same through cogent, reliable and solid evidence. Moreover, the appellant failed to utter a single word describing the details of loss suffered by him due to his termination order such as fee of advocate or other charges for facing the litigation, medical certificate to prove mental agony as well as damages due to loss of his reputation. He has also failed to prove that the respondents acted with mala fide intention and ulterior motive. The appellant failed to prove these facts through cogent and confidence inspiring evidence and the learned trial Court has rightly decided issues Nos.1 and 2 against the appellant. Since the main issues are decided against the appellant, therefore, there is no need to discuss and decide the remaining issues, hence, the same are become redundant.

15. Learned counsel for the appellant failed to point out any illegality, mis-reading and non-reading of evidence in the findings of learned trial Court. We have minutely gone through the record available on the file as well as the impugned judgment and decree passed by the learned trial Court. We have seen no illegality, irregularity, mis-reading or non-reading of evidence and jurisdiction defect on the part of learned trial Court while passing the impugned judgment and decree.

16. Epitome of above discussion is that the instant appeal is devoid of any merits, hence, dismissed. Parties are left to bear their own costs. SA/N-32/L Appeal dismissed.