P L D 1978 Karachi 990 (PLP)

(o) Any other relief which this Hon'ble Court may deem fit and expedient under the circumstances of the case."

24. Though in the body of the plaint the plaintiff has reiterated various facts which were stated by him in the above notice Exh. 89, but the reliefs claimed are different than what was mentioned in the above notice as pointed out hereinabove. In the above notice the plaintiff sought reinstate ment in the service, whereas in the suit in addition to a declaration he has claimed Rs. 2,50,030 as damages for wrongful dismissal out of the total claim in the suit amounting to Rs. 2,75,

666. In my opinion relief for re‑instatement is different from the relief for damages for wrongful dismissal. The plaintiff did not mention the above amount of damages in Exh.

89. As a matter of fact the plaintiff in his second notice Exh. 87 had claimed what be has claimed in the above suit. He has also relied upon on the above second notice in the body of the Plaint and not Exh.

89. I am, therefore, of the view that if it is to be held that section 70 of the Co operative Societies Act, 1925 is applicable to the instant Case Exh. 89 does not fulfil the requirements of the above section. But I have already held herein above that there was no need serving of a notice under section 70 for the reasons already discussed hereinabove.

25. Issue No. l.‑The above issue has two parts, the first relates to the terms on which the plaintiff was employed and the second part relates to the question, as to whether the plaintiff's removal from service was illegal and mala fide. Reverting to the first part of the issue, it may be stated that the plaintiff was appointed under Exh. 12 defendant No. 1's memorandum dated 9‑5‑1964 at a consolidated pay of Rs. 800 per month. His appointment was provisional in the first instance and was subject to verification of his antecedents. The other terms and conditions mentioned in Exh. 12 were as under :‑. "(1) He will be on probation for a period of six months whereafter, the question of his future retention in the service shall be determined. (2) Should he wish to resign he should give in writing a fortnight's notice of his intention to do so or in default forfeit to the Society the sum not exceeding his pay for fortnight. Similarly, a fortnight's. notice will be given to him by the Board if his service.; are no longer required. (3) Other terms and conditions of his employment including the ‑service rules and the Pay Scales shall be as decided by the Board of Directors from time to time." 26. (a) The plaintiff was confirmed after the completion of probationary period through defendant No. 1's resolution No. 8 dated 15‑1‑1965 Exh. 15, from the date of his appointment, namely, 11‑5‑1964 without any increment at the time of confirmation. It may be noted that under) Condition No. 3 quoted hereinabove one of the terms of employment of the plaintiff was that he would be subject to the service rules which were applicable to defendant No. L's employees. The defendant No. 1 had adopted the rules) and regulations relating to its employees on 7‑8‑1964 through resolution No.

2. The above rules and regulations are contained in Exh.

85. The above rules are exhaustive and deal with all aspects. (b) Rule 4 (II) at p. 18 of Exh. 85 provides the manner of termination of employment of a permanent employee. The above rule provides that service of an employee can be terminated on 3 months' notice on either side without assigning any reason or payment in lieu of the notice or a sum equivalent to the pay for 3 months or for the period by which the notice falls short of 3 months. (c) Rule 5 deals with the appointments, promotions, dismissal and confirmation. It may be advantageous to reproduce hereinbelow rule 5 (II) which reads as follows :‑ "Dismissal.‑For the employees of the Society including disciplinary action, conducting enquiries; punishments, appeal termination of service, etc. shall be governed by 'Fishermen's Co‑operative Society Ltd., Karachi (Efficiency and Conduct) Rules, 1964." Appendix II to these Rules. (d) Paragraph 3 of the above Appendix II given at page 25 of the above exhibit deals with penalties and the procedure for holding of inquiries in case of subversion, inefficiency misconduct and corruption. The above paragraph 3 reads as follows :‑ The following are the penalties; (a) withholding for a specified period of promotion increment. (b) recovery from pay of the whole or part of any pecuniary loss caused to the Society by negligence or breach of orders. (c) reduction to a lower post. (d) compulsory retirement. (e) Dismissal from service. (f) removal from service." Enquiry Procedure in cases of Subversion Inefficiency Misconduct and Corruption; "The authority may, if it thinks fit, appoint a Director or Directors or any officer or officers of the Society to examine and report, on the allegations against the employee to enable the authority to finally decide the case. However, the accused will be afforded opportunity to explain his position in writing or produce witnesses within a specified period before any penalty is imposed on him by the authority." My findings on the first part of issue No. 1 is that the plaintiff was appointed on the terms and conditions contained in Exh. 12 and subject to the rules and regulations contained in Exh. 85.

27. Reverting to the second part of the above issue, namely, as to whether the plaintiff's removal from service was illegal and mala fide, it may be pertinent to state the admitted facts. The plaintiff's services were terminated simpliciter through defendant No. 1's notice dated 18‑4‑1967 Exh.

30. The contents of the above notice will be material in order to consider the legality of the second notice dated June 1967 Exh. 45 which has been impugned in the present suit. The above Exh. 30 reads as follows :‑-- "The Board of Directors in their meeting held on 17th of April 1967, have decided that your services are no longer required by the Society and you are relieved of your duties with effect from 18th April 1967. You are directed to handover complete charge of all papers, documents, files, etc. in your custody to the Manager. After handing over complete charge you will be paid three months salary in lieu of notice period." It is an admitted position that the above notice Exh. 30 was withdrawn at the intervention of the Deputy Registrar, Co‑operative Societies, Karachi by defendant No. I through its resolution dated 3‑5‑1967 Exh. 35 on the ground that no enquiry was held against the plaintiff. Under the above resolution it was also resolved that the plaintiff would be considered as re‑instated but he was to proceed on forced leave with effect from 18‑4‑1967. It was also resolved that the plaintiff was to be charge‑sheeted and enquiry was to be conducted by the Chairman of the defendant Society and Mr. Mushtaque Ahmad the then Deputy Registrar, Co‑operative Societies and a director of defendant No. 1 Society. In pursuance of the above resolution the plaintiff was served with a charge‑sheet dated 10‑5‑1967 Exh. 39 containing 13 charges. Under the above charge‑sheet the plaintiff was required to submit his reply within 7 days. After that the plaintiff was served with an additional charge‑sheet dated 15‑5‑1967, Exh. 40, whereby the plaintiff was charge aheeted for an additional charge. Thereupon, the plaintiff submitted a reply dated 15‑5‑1967, to the first charge‑sheet Exh.

108. Thereafter, the plaintiff submitted his second reply dated 21‑5‑1967 to the second charge sheet Exh.

107. After receiving the above replies the Inquiry Committee through its letter 29‑5‑1967 Exh. 106 called upon the plaintiff to attend the office of the Deputy Registrar, Co‑operative Societies at 3 p.m. on 2 6‑1967. Thereafter there was no further sitting of the Inquiry Committee. The latter submitted its report dated 6‑6‑1967 (Exh. 80/1) to defendant No. I in which it was observed that all the charges except charge No. 1 were proved against the plaintiff and that the members of the Inquiry Committee were fully satisfied that the plaintiff's continuing in service was not in the interest of the Society and, therefore, the Committee recommended that the plaintiff's services be terminated with effect from 15‑6‑1967. But at the same time the Committee also on the compassionate grounds recommended that the plaintiff may be allowed the facilities permissible under the Services Rules and that the period of his forced leave, if the Board would agree, might be condoned and counted as on duty. The above observations of the Committee are also contained in Exh. 48 which is defendant No. 1's Resolution No. 20 dated 6‑6‑1967 whereby the plaintiff's services were terminated. The above resolution reads as follows;

"The Board resolved to terminate the services of Mr. J. M. Miranda, Chief Accountant, with effect from 15‑6‑

67. He may be paid full pay up to 15‑6‑1967 and no other facilities be allowed to him." Thereafter the plaintiff was served with notice, dated 23‑6‑1967 Exh. 104, which reads as follows;

"Subject. ‑Termination of service. As per decision of .the Board, your services are terminated with effect from 15‑6‑1967. You will, however, be paid full pay up‑to 15‑6‑1967. No other facilities will be allowed to you."

28. A comparison of the previous notice dated 18‑4‑1967. Exh. 30 (whereby the plaintiff's services were terminated first time), and the impugned notice dated 23‑6‑1967 Exh. 104 will show that in the former, it was a simpliciter termination of service on payment of 3 months' salary in lieu of the notice whereas in the latter notice it has been stated that the plaintiff's services were terminated with effect from 15‑6‑1967 and that he would be P paid full pay upto that day but would not be entitled to other facilities. The words used in Exh. 104 "no other facilities will be allowed to him" are significant and indicate that the termination was not simpliciter. If the termination would have been simpliciter defendant No. 1 would have mentioned in its notice payment of 3 months' salary in lieu of the notice, as was mentioned in the first notice Exh.

30. It has been contended by the learned counsel for the plaintiff that this termination amounts to wrongful removal of the plaintiff from service without providing a fair opportunity to defend. Reliance has been placed on sub‑paragraph 3 of Appendix to the service rules quoted hereinabove which provides that defendant No. 1 may if it thinks fit appoint a director or directors or any officer or officers of the Society to examine and report, on allegations against an employee to enable the 'authority to finally decide the case. It has been further provided that the accused will be accorded opportunity to explain his position in writing or produce witnesses within a specified period before any penalty is imposed on him by the authority. It has been contended by the learned counsel for the plaintiff that the two persons' Committee referred to hereinabove was appointed to examine and to report 'in respect of the allegations against the plaintiff and that the above submitted its report to defendant No. 1 Exh. 80/1 but defendant No. 1 failed and neglected to provide an opportunity to the plaintiff before imposing the penalty of removal from the service as contemplated under sub‑paragraph 2 of paragraph 3 of Appendix II. It is an admitted position that the plaintiff was not served with any show‑cause notice before his services were terminated through Exh.

104. It has been contended that the above violation of the sub‑paragraph 2 of paragraph 3 of Appendix (I amounts to wrongful dismissal from the service m breach of the terms of the appointment.

29. It may be pertinent to mention here that one of the members of the Enquiry Committee was examined as a witness by defendant No. 1 namely, Mr. Mushtaq Ahmad D. W. 1 Exh. 80 in his Examination‑in‑Chief he has stated as follows;-- "We issued notice for hearing of the inquiry to the plaintiff. The plaintiff appeared in consequence of the notice, but before the submis sion of his explanation we had given him opportunity to inspect the record. We asked the plaintiff if he wanted to make any further reply or statement, or have the witnesses examined in his defence to which he replied that he is a poor man that he should be excused. He further stated that the written explanation submitted by him was sufficient and that he did not want to examine any witness. We then read out each item of the charge and discussed in his presence each charge. After that we prepared a report which I produce as Exh. 87/ 1." The above statement is belied by the above report Exh. 80/1 submitted by the Enquiry Committee as it does not contain surprisingly the above fact. The report proceeded on the basis as if the plaintiff had contested the charges. The above statement of the D. W. 1 Exh. 80 indicates that the Enquiry Committee did not go into the detail of the charges. This fact is also borne out from the above witnesses' admission in the cross‑examination to the following effect;

"Apart from the notices that were issued against the plaintiff and the permission to inspect the record no other proceedings were recorded by us because the plaintiff did not contest the proceedings. The order granting permission for inspection of the record was passed in writing. We did not mention the reasons for our conclusion regarding each charge in our report as the plaintiff had offered no defence. The hearing had taken place on 2nd June 1967."

30. On the other hand, the learned counsel for the defendant has contended that the termination of the plaintiff's service was simpliciter and, therefore, the plaintiff cannot have any grievance as his services were liable to be terminated under the rules. Mr. Nurul Hassan, learned counsel for the defendant, in the alternative submitted that even if it is to be held that the termination of plaintiff's service amounted to wrongful dismissal/removal, the plaintiff cannot maintain his above suit as he was given fair, opportunity to defend himself. In support of his first contention the learned counsel for the defendant has relied upon paragraph 15 of the written statement which reads as follows : "The contents of paragraph 15 of the plaint are denied. It is denied that the termination of the service of the plaintiff was in any way male fide or against the provisions of the rules of defendant No. I Society. It is submitted that the Board of Directors of defendant No. I having considered the past record of the plaintiff decided that services of the plaintiff were no more required and thus the plaintiff's service was terminated with effect from 1 E‑4‑1967." In order to appreciate as to whether on the basis of above paragraph 15, defendant No. 1 can successfully contend that the termination of the plaintiff's service was simpliciter reference to other paragraphs of the written statement becomes very much pertinent. In this connection para graphs 29, 30, 31 and 35 (viii) of the written statement are pertinent which read as follows;

"That with regard to paragraph 32 of the Plaint, it is submitted that the plaintiff could not be given clearance due to his negligence of duty, inefficiency, misconduct, etc. as submitted above it is denied that the plaintiff's services were terminated illegally. That with respect to paragraph 33 of the plaint, it is denied that the said action is mala fide and illegal. It is not the fault of the defendant No. I Society, if the plaintiff is jobless. On the contrary, due to .the negligence of duty, inefficiency and misconduct of the plaintiff, the defendant No. I Society has suffered monetary loss as well as loss in prestige and the plaintiff is himself responsible for what he is faced with now. That, the contents of paragraph 34 of the plaint are denied, he was not entitled to remain in service because of his misdeeds. (viii) The plaintiff is not entitled to any salary for Notice Period as his services were terminated for inefficiency, insubordination, any misconduct, etc." A perusal of the above‑quoted paragraphs of the written statement clearly shows that defendant No. I has terminated the plaintiff's service on account of his alleged negligence of duty, inefficiency and misconduct, etc. Defen dant No. 1 has also asserted that the plaintiff was not entitled to obtain clearance certificate from defendant No. l because of the above reasons nor he was entitled to 3 months salary as his services were terminated fort? inefficiency, insubordination and misconduct. In view of the above clear pleas taken by defendant No. 1 it cannot be urged by it that the plaintiff's service was terminated simpliciter. This fact is also borne out from the termination notice Exh. 103, which stated that the plaintiff would not be entitled to other facilities except the pay upto the date of termination of his service, i.e. 15‑6‑1967. 31. (a) The above. discussion leads us to the question, as to whether defendant No. 1 has contravened any terms of the employment of the rules which entitles the plaintiff to maintain a suit for damages against defen dant No.

1. According to the learned counsel for the plaintiff as stated hereinabove the plaintiff was not given fair opportunity to defend himself in as much as no show cause notice as was required under sub‑paragraph 2 of paragraph 3 of Appendix II was served on the plaintiff before terminating his services. Whereas according to the learned counsel for the defendant the plaintiff was given fair opportunity. The learned counsel for defendant No. 1 has relied upon the case of Secretary, Last Pakistan Industrial Development Corporation, Dacca v. Md. Sirajul Haque (1970 S C M R 398), the case of Lahore Central Co‑operative Bank Ltd. v. Pir Saifullah Shah (P L D 1959 S C (Pak.) 210), the case of Faiz Ahmad v. Registrar, Co‑operative Societies, West Pakistan, Lahore (P L D 1962 S C 315), the case of Province of East Pakistan v. Moulavi Mwmtazuddin Ahmed (P L D 1971 Dacca 235) and the case of Muhammad Afzal v. House Building Finance Corporation (P L D 1976 Kar. 1121). (b) Referring to 1970 S C M R case, it may be stated that the Secretary East Pakistan Industrial Development Corporation filed an appeal against the judgment of a Division Bench of the High Court of East Pakistan by which the two writ petitions of the respondents were accepted and the orders terminating their services were declared to have been made without any lawful authority and they were re‑instated. The facts of the above case were that the services of the two respondents were terminated by serving notice as per terms of the appointment and the respondents were offered one month's pay in lieu of notice. It was contended by the respondents before the High Court that in fact the termination of their services were on account of certain allegations made against them for inefficiency, etc. contained in the office note. The above contention was accepted by the High Court and the writs were allowed. The Supreme Court while accepting the appeals of the East Pakistan Industrial Development Corporation was pleaded to observe as follows at page 401; "The present case is rather worse than the cited ones inasmuch as the employees in the cited cases being public servants were entitled to the constitutional protection, but the respondents here being servants of the Corporation were not entitled to that protection. Moreover, the terms and conditions of employment of the respondents were not regulated by any statutory rules but were governed by their contracts of employment. That being so, the ordinary law of master and servant was applicable to the present case, and under that law the Corporation was entitled to terminate the services of the respondents, without giving them any opportunity of showing cause against the proposed termination, particularly when the impugned orders them selves do not show that their services were terminated by way of penalty. We do not therefore, think that the learned Judges of the High Court were right in holding that the orders terminating the services of the respondents were bad in law for not giving them any opportunity of showing cause before terminating their services." In the above case their Lordships of the Supreme Court were pleased to hold that the employees of the Corporations were not entitled to the Constitutional protection, but were governed by the terms and conditions of the employment which were not regulated by any statutory rules and that being so, the ordinary law of master and servant was applicable to the respondents and that the Corporation was entitled to terminate the services of the respondents without giving them any opportunity or issuing a show‑cause notice against the proposed termination, particularly when the impugned orders themselves did not show that their services were terminated by , way of penalty. The above case is not applicable to the instant case because in the present case the plaintiff has not filed any constitutional petition and secondly the termination of the plaintiff's service is not simpliciter, but on account of his alleged inefficiency, negligence and misconduct, etc. as pleaded by defendant No. I in its written statement quoted hereinabove. (c) Referring to the case of 1959 S C 210 it may be stated that the facts of the above case are very much relevant to the instant case. The facts of the case were that the respondent was an employee of the Co‑operative Bank under a service agreement by which he was appointed as a commercial manager for the period of 10 years on a specific salary. During the above employment certain irregularities were discovered. He was charge‑sheeted and was placed under suspension. By the charge‑sheet he was allowed to submit his reply to which he filed his detailed reply on 9‑12‑1954 and denied the various allegations. He failed to submit any reply to one of the charges about accepting bogus documents. On the above, date, i.e. on 9‑12‑1954 which was fixed by the Inquiry Committee for respondent's appearance in reply to the charge‑sheet the Managing Committee heard the respondent. The respondent protested that he was not given sufficient opportunity to meet the charges by fully examining the record. However, the sitting lasted for about 3 to 4 hours and the Managing Committee examined each and every charge and the replies submitted by the respondent, and on the same day the Managing Committee passed a unanimous resolution resolving that the charges entered in the charge‑sheet against the respondent were proved against him and that during the term of his service he had been guilty of corruption, inefficiency, cheating the bank and embezzlement of bank property. He was also guilty of the conduct which was improper and bad. Accordingly the respondent was removed from service with immediate effect. Against the above order of the removal, the respondent had filed a writ petition and sought an order in the nature of mandamus. Reliance was placed by respondent before the High Court on Civil Service Rules which were adopted by the Bank by passing a resolution to the effect that the Civil Service Rules would apply in relation to the bank's employees. The above writ was accepted by the High Court. Their Lordships of the Supreme Court, while accepting the appeal of the Co‑operative Bank were pleased to hold that the adoption of the Civil Service Rules, by the Co‑operative Bank would not give them the status of the statutory rules and that the same could not be enforced through a writ petition. Their Lordships were pleased to observe as follows at page 215; "The learned Judges, however, proceeded on the basis that Pir Saif Ullah Shah was entitled to a proper inquiry, that is to say an opportunity to present evidence in reply to evidence led by the Bank on the various charges, etc. as is admissible to Government servants under the Civil Services Rules. Their ground for so thinking appears to be a resolution passed by the Managing Committee in the year 1945 to the effect that the Civil Services Rules would apply in relation to the Bank's employees. This resolution was passed under a bye‑law enabling the Managing Committee to frame rules on matters concerning the establishment. On reference to the Act, however, we find that by section 43(2) (g) provision relating to the "appointment, suspension and removal of the members of the Committee and other officers" is to be made by the Provincial Government, in‑the form of rules which must be published in order that they should be valid. Thus, if the Commercial Manager of the Bank be thought to be an officer, then the law requires that provisions for his removal should be made by rules under section

43. Now, an officer of the Bank by definition includes "a Chairman, secretary, treasurer, member of the committee, or other person empowered under the rules or the bye‑laws to give direction in regard to the business of the society." The Commercial Manager is not enumerated by name in this definition, and the office does not seem to be one which is recognised by the Co‑operative Societies Act, 1912. Yet, having regard to the wording of a number of the charges presented to Pir Saif Ullah, it seems clear that he was not one of those employees whose duty was merely to obey or carry out orders and directions received by him. 1n a number of places, it is charged against him that he sanctioned loans and that he followed certain procedure which did not provide sufficient safeguards for the interests of the Bank. In other words, as Commercial Manager, Pir Saif Ullah Shah was empowered to give directions in regard to the business of the Society. Yet, it does not seem that this was done in accordance with any rule or bye‑laws of the Bank, and therefore, it would appear that the provision in regard to the removal of the Commercial Manager did not require to be made by rules under section 43, regarded as an ‑employee in the relevant respect, the respondent would seem to fall under bye‑law 23(18) which gives the Committee power "to appoint, dismiss, suspend or otherwise punish salaried or unsalaried employees of the bank and to frame rules on matters concerning the establishment. The resolution of the 3rd February 1945, to which reference has been made earlier was not passed in the form or a rule, and it is therefore very doubtful whether it can be thought that thereby compliance was made with bye‑law No. 23 (18). Consequently, we consider that it is a point of considerable doubt whether the respondent could claim the application to himself of the Civil Service Rules. In any case, these rules were not applicable to him of their own force, but merely by reference. Where these rules embody safeguards provided for public servants under the then Constitution, i.e. the Government of India Act, 1935, as then in force, they cannot be availed of by such a person as Pir Saif Ullah Shah, as a matter of legal right. That is another strong reason why in the present case, a writ of the kind in question here should not have been issued in favour of Pir Saif Ullah. It has been observed by this Court in the recent case of Pakistan v. Merajdin P L D 1959 S C (Pak.) 147 (Civil Appeal No. 36 of 1958), decided on the 20th January 1959, that :‑ In the absence of proof that any statutory duty was involved or that any legal right was being enforced or that the performance of a public duty was being claimed, it is clear that a mandamus or an order of mandamus could not have issued consistently with the relevant practice and precedent." A perusal of the above‑quoted paragraph will show that the quest7on before their Lordships of the Supreme Court was as to whether an employee of a Co‑operative Bank was entitled to claim mandamus on the basis of violation of Civil Service Rules which were adopted by the Co‑operative Bank by a resolution of the Managing Committee. Their Lordships were pleased to hold that the above rules had no statutory force and that their violation would not entitle him to maintain a writ petition for an order of mandamus. The question as to whether an employee can maintain a suit for damages for wrongful dismissal was not in issue. (d) Referring to P L D 1962 S C case, the facts were that the appellant was employed as a clerk in the bank on 4‑I1‑1947, and was confirmed in the said capacity in March 1952. Subsequently, he became cashier and while serving in that capacity be was served on or about 27‑8‑1956 with a charge sheet alleging impertinent behaviour, continued absence from duty, insolence and insubordination towards the officers, misbehaviour towards public and negligence in the performance of his duties. He was called upon to submit his explanation to the above charges. He was, thereafter suspended from service with effect from 1‑1‑1956 and his explanation to the charge‑sheet was forwarded to the Assistant Registrar, Co‑operative Societies, Montgomery for taking steps to institute regular proceedings against him, and appointed Inspector, Co‑operative Societies, Pak Pattan as the Inquiry Officer. The Inquiry Officer, after considering the explanation submitted by the appellant but without recording any evidence made a report finding the charges against the appellant proved. On the basis of the above report the appellant was dismissed. However, on appeal to the Registrar, Cooperative Societies, the order of the dismissal was set aside. The Managing Committee appointed a new Inquiry Officer. The appellant before this officer produced 11 witnesses in his defence. The Inquiry Officer submitted his report on 14‑3‑1959 with his finding that the allegations of misconduct, rudeness, negligence of duty, fraud, and absence etc. were proved against the appellant. After considering this report, the Managing Committee on Iii‑3‑1959 by a majority vote dismissed the appellant from service. The appellant preferred an appeal against the above order before the Registrar, Co‑operative Societies, which was dismissed. Against which he filed a writ for mandamus on the ground that no show‑cause notice as required under the Civil Service Rules had been given to the appellant and that he was refused the right to cross‑examine the witnesses appearing against him, that he was denied the copies of the relevant documents which he wished to have produced in support of his defence and that the Inquiry Officer took the evidence of the witnesses produced against him in his absence after being closeted with them in a separate room and, therefore, the Inquiry Officer acted in mala fide and biased manner. The above writ petition was dismissed by the defunct High Court of West Pakistan, Lahore Bench, in limine. Against the above judgment of the High Court, the appellant had filed appeal before the Supreme Court and their Lordships were pleased to maintain the order of the High Court. Their Lordships while discussing the entitlement of the appellant with reference to the adoption of the Civil Service Rules by the Bank through a resolution, were pleased to observe as follows at page 319;-- "Although this was the only ground upon which leave was granted in this case, learned counsel also sought to contend that in so far as no second opportunity of showing cause against the punishment proposed to be inflicted upon him had been furnished, the dismissal was contrary to the provisions of the Government Servant Rules, and, therefore, should be set aside. This argument, in effect, assumes that because the Co‑operative Bank concerned in the present case had by its own bye‑laws adopted the procedure of the Government Service Rules for the taking of disciplinary action against its employees, such employees were also entitled to the protection given to Government servants under section 240(3) of the Government of India Act, 1935. This assumption, however, is totally unwarranted, for, the Civil Service Rules were made applicable to the case of the appellant not by virtue of any statutory provision but purely by the adoption thereof under the bye‑laws of the Co‑operative Bank, which were not more than the rules laid down for the guidance of the Bank itself. These rules, therefore, did not create any right in the appellant to hold his office in accordance with them, nor did the said rules automatically extend the protection given to a Government servant under the constitutional provisions of the Government of India Act, 1935, and the late Constitution, to persons employed in non‑Governmental institutions or concerns. Even if the adoption of the Government Service Rules could be interpreted as amounting to the adoption of also the guarantee of the kind given to public servants by the aforesaid constitutional provisions, they would have the statutory force behind them and would, therefore, according to the decision of the Judicial Committee in the case of Venkat Rao v. The Secretary of State for India‑in‑Council (64 1 A 55) be no more than mere violation of rules or regulations which would not entitle the appellant to have the performance of the rules enforced by action. The High Court of West Pakistan was, therefore, in our view, right in refusing to interfere in its writ jurisdiction with the decision of the appellate order of the Principal, Co‑operative Training Institute, acting as Registrar, Cooperative Societies, West Pakistan, upholding the dismissal of the appellant. The complaint that a copy of the Enquiry Officer's report was not supplied to the appellant cannot also be entertained for the same reasons. He had no right as such to receive the copy. In any event, be is not entitled to make this a ground for attacking the impugned order, as no such ground was taken in the petition filed in the High Court." In the above case also the question before their Lordships of the Supreme Court was, as to whether an employee of the Co‑operative Bank was entitled to maintain a writ petition for a writ of mandamus on account of violation of the Civil Service Rules adopted by the Co‑operative Bank. Furthermore, in the above case their Lordships were satisfied that the appellant was given sufficient opportunity to meet the charges inasmuch as he had examined 11 witnesses in his defence. (e) Referring to the 1971 Dacca case a Division Bench of the Dacca High Court was pleased to take the view that a servant of the Co‑operative Bank was not entitled to maintain a suit for declaration that he continued to remain in service, on the ground that he was not given fair opportunity before the impugned action was taken. However, at the same time their Lordships were of the view that an employee may be entitled to maintain a suit for damages for wrongful dismissal if it is properly framed. 1t may be pertinent to quote hereinbelow their Lordships observation as follows at page 242:‑ "Next we come to the most important point in this appeal and which is the central point in the appeal itself namely, whether the suit itself is maintainable against the Provincial Co‑operative Bank, for the alleged wrongful dismissal or discharge of the plaintiff from service of the Bank. The contentions of the learned Advocate for the appellants are that in the present case relationship between the plaintiff and the bank is that of a master and servant and under the ordinary principles of the power to dispense with the service of his employee and in case of misconduct can dismiss him without notice. Even in case of wrongful dismissal no suit for declaration lies. If at all, a suit for damages may lie when so properly constituted‑ But the plaintiff having chosen to frame the suit for declaration only and having prayed for a consequential relief his claim for reinstate ment and payment of arrear salary it is not maintainable. There is much substance in this contention of the learned Assistant Govern ment Pleader. In this connection several decisions have been cited by both the learned Advocates which may be dealt with one by one. The First decision has been cited by the appellants in the case of Lahore Central Co‑operative Bank Limited v. Pir Saif Ullah P L D 1959 S C (Pak.) 210, where the Commercial Manager of the said Cc‑operative Bank was dismissed and in that connection it was observed by the Supreme Court as follows : ‑

By the ordinary law of master and servant, when a servant is guilty of misconduct, the master is entitled as of right to terminate his services without notice. In this case, the notice given was of some two months' duration, following upon a period of five months of suspension during which enquiries were being held. There can be no doubt that under the general law of master and servant, the action taken by the Committee was perfectly proper one, and it could have been taken in an even more peremptory manner." A perusal of the above‑quoted observation of the learned Judges of the Dacca High Court clearly shows that their Lordships were of the view that a suit for damages be competent in a fit case. The above ruling as a matter of fact supports the case of the plaintiff about ttl0 maintainability of suit, for damages for wrongful dismissal. (f) Referring to the case reported in 1976 Karachi, it will suffice to say that Zaffar Hussain Mirza, J. was of the view that the relationship between the plaintiff and the defendant corporation was that of master and servant and that the defendant corporation was entitled to terminate the services of the plaintiff at its pleasure without assigning any reason which power was given under the Service Regulation of the defendant corporation and that the plaintiff was not entitled to the rights available ' to the civil servants. In the above case the plaintiff's service was terminated on abolishing the post which he was holding. The contention of the plaintiff before the High Court was that the termination of his service was mala fide but his Lordship was pleased to come to the conclusion that his services were terminated in accordance with the terms of the appointment and the service regulations by offering 3 months salary in lieu of 3 months notice.

32. The ratio decidendi of the above cases particularly of the Supreme Court of Pakistan is that an employee of a society/corporation cannot maintain writ petition for violation of service rules which the society/corpo ration might have adopted through a resolution and not through an enactment and that the employee of the society/corporation cannot claim same opportunity to defend himself against the charges which a civil servant is entitled to. In the instant case under the terms of the appointment, it was provided that the plaintiff shall be governed by the service rules of the society and that these services rules provided a procedure of holding inquiry and dismissal of employees. The question which require consideration is, as to whether the society can act in violation of these rules. In my view as the above rules have become part of the terms of the employment, any breach of the same will amount to breach of the contract entitling the aggrieved employee to maintain an action for damages, but he shall not be entitled to claim reinstatement, through any legal action. I accordingly, hold that in the above case defendant No. 1 by not following the procedure provided for in sub‑para. (2) of para. 3 of Appendix II to the service rules has committed the breach of the terms of the employment and that the plaintiff is entitled to maintain an action for damages for wrongful dismissal.

33. The plaintiff has also alleged that his dismissal is mala fide, but he has not substantiated the above allegation. According to the assertion contained in the plaint the then Manager Zafar Ahmed had developed enmity against the plaintiff for the reason that the plaintiff wanted that the said manager should follow the society rules strictly in financial matters. It may be noteworthy that the services of the Manager were also terminated by the society. Even otherwise, any mala fide on the part of an employee of the society, will not constitute mala fide on the part of the society itself. The plaintiff has failed to furnish the particulars of mala fide on the part of the society and has 'failed to adduce any evidence in that regard. I, therefore, accept the contention of the learned counsel for the defendant, that the plaintiff was obliged to give the detail of mala fide against the society in the plaint and to prove the same as has been held in the above Karachi case of 1976 and the case of L. Collins v. Charles Both & Co. Ltd. (A I R 1921 Sind 106).

34. Issue No. 2.--‑The question which requires consideration is as to whether the plaintiff is entitled to any damages and if so on what basis. In view of my finding that the plaintiff's removal from service was wrongful, I am of the view that the plaintiff is entitled to recover damages. The learned counsel for the plaintiff has contended that the plaintiff is entitled to the salary upto the date when this Court gives its finding that the plaintiff's removal from service was wrongful. The learned counsel for the plaintiff has relied upon the case of Pakistan v. A. V. Issacs (P L D 1970 S C 415). In the above case the Supreme Court was pleased to hold that the respondent was entitled to arrears of salary up to the date of re‑instatement. The respondent was an employee of the Pakistan Railways and, therefore was entitled to the relief of re‑instatement through writ petition or otherwise. The above rule is not applicable to the instant case because the plaintiff in the above suit cannot claim the relief of the re‑instatement. He can, at the most, claim damages for a reasonable period. In the present case the plaintiff has claimed Rs. 2,40,000 as special damages which includes salary upto the period of his normal retirement from defendant No. 1's service. The learned counsel for the plaintiff has relied upon the case of Messrs General Iron and Steel Works v. Fazal Muhammad (P L D 1967 Kar. 1) and the case of Profulla Ranjain Sarkar v. Hindustan Building Society Ltd. (A I R 1960 CaL 214).

35. In the above Karachi case the facts were that the respondent was employed by the appellant for a period of 5 years as an Engineer. The respondent's services were terminated before the expiry of the contract period, i.e. after about 2 years. The respondent had filed a suit for the recovery of Rs. 33,000, i.e. salary for the period from 1‑9‑52 to 31‑12‑55 (upto the date of expiry of the contract). The learned Single Judge of the erstwhile High Court of West Pakistan Karachi Bench was pleased to decree the suit to the extent of Rs. 20,

000. Against the above judgment the appellant filed L. P. A. which was also dismissed by a Division Bench comprising of Waheeduddin Ahmed and H. T. Raymond, JJ. It may be pertinent to quote paras. 29 and 30 which read as follows at pages 20 and 21: "

29. The appellant counsel's contention that appellant was completely discharged of their liability after his employment in 1953, is based on the ground than an employer's liability continues only upto the time an employee remains out of service. In support of his contention Mr. Aziz relied on the commentary in the book shown as "Mayne on Damages" (11th Edition). In this book the learned author has summed up the laws on the point at page 293 as under: "From the above consideration it follows that the loss measured may be less than the wages for the unexpired period of service, where other employment may be easily obtained and that it will vanish and where the plaintiff has immediately passed into another employ ment on equally good terms." The learned counsel further relied on the following observation of Fry L. J. in Reid v. Explosive (1887) 19 Q B D 264. "If nothing further had happened he would have been entitled to bring his action, but under the circumstances, as he was employed in an equally advantageous manner for the whole of the period for which he was entitled to notice he cannot claim damages."

30. On the other hand Mr. Sadiq referred to para. 995 of Halsbury's Laws of England, Vl. 25), dealing with the "Measures of damages" which is to the following effect: "The servant cannot wait until the termination of the period for which he was engaged and sue for the whole amount of his wages, but where it is an express term of the contract that a servant who is dismissed without notice is to be paid his wages for a certain period in lieu of notice, or where there is a usage to the effect, the measures of damages for the breach is the amount of such wages, which is to be regarded as liquidated damages. The same principle applies where the contract specifies a particular sum to be payable as and for liquidated damages in the event of a breach. In any other case the damages are to be measured by the amount of wages which the servant has been prevented from earning by reason of his wrongful dismissal including the value of any other benefit to which he is entitled by virtue of his contract and of which he is deprived in consequence of its breach after taking into consideration the probabilities of his obtaining employment elsewhere. If, therefore, he obtains other employment immediately after his dismissal, the amount which would otherwise be payable as compensation must be reduced by the amount of remuneration which he if he is paid the same or higher wages, his loss is merely nominal. Moreover, it is his duty to minimise his loss, and he must therefore use due diligence in endeavouring to obtain employment. If, but for his own default or neglect, he could, immediately after his dismissal, have obtained suitable employment at similar wages, he cannot recover more than nominal damages against the master. He is not, however bound to accept employment of a different kind, or even a lower position in the same kind of employment, and in such case, it is immaterial that the rate of wages offered is the same. In assessing the damages the jury is entitled to take into consideration all that has happened, or is likely to happen, to increase or mitigate the servant's loss down to the day of trial."

36. Referring to the Calcutta case, it may be stated that the plaintiff in that case was employed as Secretary by the defendant at a salary of Rs. 750 per month. The plaintiff's services were terminated. The plaintiff filed a suit in which he claimed Rs. 20,000 as damages for the wrongful termination of his services. Mitra, J. while deciding the above case was of the view that one year's salary namely, Rs. 6,750 was sufficient amount of compensation. 37. (a) On the other hand, the learned counsel for the defendant has contended that at the most plaintiff is entitled to claim 3 months' salary as damages. He has relied upon the case of Abraham Reuben v. Karachi Municipality (A I R 1929 Sind 69) the case of Sher Muhammad and others v. Ahmed Sultan (P L D 1968 Kar. 526) and the above case of Muhammad Afzal v. Mouse Building Finance Corp. (P L D 1967 Kar. 1121) referred hereinabove. (b) Referring to the above case of 1929 Lobe, A. J. C. discussed the relationship of the plaintiff and the defendant and was of the view that a corporation could dismiss its employee by giving a reasonable notice and that the employee could not maintain an action for damages on the ground that he was unable to obtain any employment during the period of notice. But at the same time his Lordship was of the view that a suit for wrongful dismissal by an employee of a corporation was competent if the Court was satisfied that the dismissal was in utter disregard of the rules and bye‑laws of the Municipality. His Lordships was also pleased to observe that the plaintiff in that suit would have been entitled to 12 months' salary if the termination of his services would have been held by the Court as wrongful. In this regard it may be pertinent to quote hereinbelow the last para. at page 83 of the above case which reads as follows;

"Bearing in mind the nature of the plaintiff's employment, and after considering the cases I have referred to above, I should in this case, bad I not decided issues 4 and 5 against the plaintiff, have awarded him 12 months' salary at Rs. 335 per month. (Rs. 39 plus 45 plus Rs. 20) as damages for wrongful dismissal. Unfortunately for the plaintiff I have found on issues 4 and 5 against him and his suit must, therefore, be dismissed with costs." (c) Referring to the P L D 1968 Karachi case, the facts of the case were that the plaintiff/appellant was employed by the defendant/respondent as Manager to look after his estate for a period of 10 years. His services were terminated by the defendant/respondent. He brought a suit for the recovery of Rs. 85,400 (i.e. 92,400 being the salary for the 10 years minus Rs. 7,000 being the amount received by him during service). His suit was dismissed by the learned trial Judge on the ground that in the previous suit instituted by the plaintiff/appellant, he had not claimed all the reliefs which, he was entitled to. The plaintiff/appellant's appeal was accepted by a Division Bench of the erstwhile High Court, West Pakistan, Karachi Bench. Their Lordships were pleased to hold that the plaintiff/appellant was entitled to recover salary for the period from 10‑2‑55 to 4‑9‑58, i.e. up to the date when he was removed from service, amounting to Rs. 30,613.40 out of which Rs. 7,000 being the amount received by the appellant was to be adjusted. Their Lordships were pleased to disallow further claim on the ground that he had failed to prove damages, and also failed to prove what steps he had taken to mitigate the amount of damages. In this connection it will be pertinent to quote hereinbelow para. 10 of the above judgment at p. 535 which reads as follows:‑ "The learned counsel for the appellant further urged that on the basis of agreement, the plaintiff was employed by the defendant with effect from 10‑2‑1955 for a period of ten years and he was thus entitled to the salary for the above‑mentioned period in accordance with the terms of the agreement, which amounts to Rs. 92,400 out of which he had realised Rs. 7,000 and the balance of Rs. 86,400 was still due. The plaintiff was, however, removed from service on 2‑9‑1959 and he received the notice on 4‑9‑1958, so he is entitled to receive his pay from 10‑2‑1955 to 4‑9‑1958. The plaintiff is not entitled to any compensation from 4‑9‑1958 to 9‑2‑1965, because he failed to prove the amount of damages he suffered. It was the plaintiff's duty to mitigate such damages, i.e. that he was unable to get suitable employment, or because of his dismissal, he got bad reputation and could not get suitable employment. The plaintiff has not said a word about damages. A servant complaining of wrongful dismissal from service cannot rest content by merely putting forward a claim for recovery in lump sum and in advance the entire amount of anticipated salary covering the whole period for which he expected to continue in service The law which recognizes his right to recover camages for wrongful dismissal imposes a corresponding duty on him to do all that is possible to mitigate such damages. He is bound to act in that direction not only in his own interest but also in the interest of the opposite‑party against whom he has to sustain an action for damages. He has to use diligence in endeavouring to obtain suitable employment with wages approximating that which he was getting in the service from which he was dismissed, even though he is not expected to accept a fresh engagement in a lower status. The possible chance of obtaining a suitable employment elsewhere has to be taken into account in assessing the measures of damages to be awarded to the plaintiff. The plaintiff has failed to mitigate such damages, and in these circumstances we hold that he is not entitled to it. Learned counsel for the appellant referred us to a case reported as Messrs General Iron & Steel Works v. Fazal Muhammad (P L D 1967 Kar. 1)." (d) Referring to the third case relied upon, i.e. P L D 1976 Karachi, it will be pertinent to point out that in the above case the point in issue was, whether the plaintiff was entitled to 3 months 3 salary or any other amount in case of termination of services simpliciter. While deciding the above question Zaffar Hussain Mirza, J. was pleased to observe as follows at page 1132: "Even if it is assumed that the impugned order was illegally passed the position would not very materially change. It may be seen that the suit as it was filed prayed for a relief of declaration that the order of termination was void and that the plaintiff therefore continued to be in service and consequential relief for payment of arrears of salary. Mr. Saiduzzaman conceded before me that on the death of the plaintiff the prayer relating to declaration no longer survived and the suit is in substance only a suit for recovery of damages for wrongful dismissal. It is now well settled that the Court will not grant specific performance of a contract of employment. Such a contract is one of the personal services and comes within the category of contracts whose execution the Court cannot supervise and will not therefore enforce by an order for specific performance. This is the import of Rules laid down by their Lordships of the Supreme Court to the effect that such a case would be governed by the law of Master and Servant. The remedy of an employee who has been wrongfully dismissed is an action for damages and if the defendant has the right to terminate the contract before the expiry of the term, damages for wrongful dismissal to be awarded can be assessed only up to the earliest time at which the defendant could have validly terminated the contract. Thus, if the contract expressly provides that it is terminable upon 3 months' notice the damages will ordinarily be 3 months' wages or loss of salary. Thus in this case the most that the plaintiff could claim was 3 months' salary which has already been received by him admittedly." In the above case his Lordship has observed that 3 months' salary would ordinarily be sufficient amount of damage even in case of wrongful dismissal but the above case is distinguishable inasmuch as it did not involve wrongful dismissal of the employee. Furthermore, his Lordship has used the words `damages' will ordinarily be 3 months wages or loss of salary, the word `ordinarily' indicates that in a fit case damages may be more than the salary of the notice period.

38. The plaintiff in his paras. 32 and 40 of the plaint has asserted as follows;

"

32. That the defendant No. 1 in order to further harass the plaintiff have illegally withheld the clearance of the plaintiff with the result that the plaintiff has not been able to seek any employment elsewhere and is jobless from the date his services were illegally terminated.

40. That on account of the above illegal actions of defendant No. 1 the plaintiff has been rendered jobless and has not been able to obtain any employment elsewhere and there is also no prospect for the plaintiff to obtain any job in future, and the career of the plaintiff which in the normal course would have lasted in the defendant's society upto 27th June, 1984 has come to an abrupt end." In reply to the above paras. defendant No. 1 has not denied the fact that it had not given clearance and that the plaintiff was jobless. It may be pertinent to quote hereinbelow paras. 29 and 35 of the written statement, which contain the replies to the above‑quoted paras. of the plaint, as under: "

29. That with regard to para. 32 of the plaint, it is submitted that the plaintiff could not be given clearance due to his negligence of duty, inefficiency, misconduct, etc. as submitted above. It is denied that the plaintiff's services were terminated illegally.

35. That with respect to para. 40 of the plaint, it is submitted that the plaintiff by his own action ruined his career and the defendant No. 1 is not responsible in whatsoever manner for his un employment." The plaintiff in his statement has also asserted that he has not been able to obtain any job which statement has not been challenged by the defendant in X‑Examination. However, the plaintiff in his cross‑examination has admitted the fact that he did not apply to defendant No. 1 for the issuance of a clearance certificate. It has been urged by the learned counsel for the defendant that on the face of this admission by the plaintiff, it should be presumed that the plaintiff had not made any efforts to obtain any alternate job. The above contention has no force as defendant No. 1 in its written statement has not asserted that it would have issued the clearance if the same would have been applied to by the plaintiff, but on the contrary the assertion of defendant No. 1 is that the plaintiff was not entitled to any clearance due to his negligence of duty, inefficiency, and misconduct, etc. But at the same time the plaintiff has failed to give the particulars of the steps he had taken in order to mitigate the amount of damages. He had not stated in how many companies or institutions be had applied to for the job and the reasons for his failure to obtain the job applied for. In my opinion, the salary for one year as has been held in 1960 Calcutta case and in 1929 Sind case would be reasonable compensation to the plaintiff for the wrongful dismissal. The 1967 Karachi ruling relied upon by the learned counsel for the plaintiff is distinguishable inasmuch as in the above case the contract period agreed between the employer and the employees was 5 years whereas in the instant case there was no period for the employment. The plaintiffs' employment was liable to be terminated simpliciter by serving 3 months' notice or on payment of 3 months salary in lieu of the notice, and therefore, the above Karachi ruling is of no assistance to the plaintiff. I accordingly hold that the plaintiff is entitled to recover Rs. 13,200, (I. e. Rs. 1,100 p. m. X 12) as damages and not Rs. 2,50,000 which he has claimed as special and general damages.

39. Issue No. 3. ‑In para. 39 of the plaint the plaintiff has given the detail of his claim for a sum of Rs. 25,866 which comprises of 9 items. I intend to deal with each of the 9 item3 separately in seriatim. (i) Rs. 2,700 being the salary from 1‑4‑67 to 30‑6‑67 at Rs. 900 per month. The learned counsel for the parties have agreed to the figure of Rs. 2,250 and, therefore, I hold that the plaintiff is entitled to the above amount of Rs. 2,250. (ii) Rs. 84 for the increment due from 11‑6‑67 to 30‑6‑67 at Rs. 50 per month. The learned counsel for defendant No. 1 has conceded to the above amount and, therefore, it does not need any further discussion. I, therefore, hold that the plaintiff is entitled to the above amount. (iii) Rs. 5,490 being the difference of pay on account of the revision of the pay scale from I1‑5‑54 to 31‑5‑67 at Rs. 150 per month. In this connection the learned counsel for the plaintiff has invited my attention to sub‑para. (3) of para. 35 of defendant No. 1's written statement, in which it has been asserted that the plaintiff is not entitled to the above difference of pay as his pay revision has not been accepted by it. Whereas D. W. 2 Exh. 135 in his examination‑in‑chief before this Court has stated as follows: "The pay scale of the plaintiff was revised and it was fixed at Rs. 750 to 1,200 with effect from 1‑4‑

65. This was also done in respect of other employees as well." A perusal of the above statement of defendant No. 1's main witness indicates that defendant No. 1 has given up its plea which was raised in the above para. of the written statement. I therefore, hold that the plaintiff is entitled to the benefit of the revision in the pay scale. The only question which remains to be considered is, at what rate. According to the learned counsel for the plaintiff, the plaintiff is entitled to at the rate of Rs. 150 per month and whereas the learned counsel for the defendant has contended that the plaintiff is entitled to at the rate of Rs. 50 per month only. It has also been submitted by the learned counsel for defendant No. 1 that there appears some mistake in recording D. W. 2's statement as the correct figure would have been Rs. 700‑50‑1,

200. As defendant No. 1 had not pointed out the above alleged mistake soon after recording of the evidence, it cannot be said with certainty as to whether in fact the above mistake had crept into the recording of the evidence. Be that as it may, but this discrepancy is not material as according to Schedule 'A' to the pay revision rules of defendant No. Exh. 85 at page 33 at Serial No. 2,'the then proposed revised figure was Rs. 700 ‑‑50‑1,200 in place of Rs. 600‑40‑800/50 1,

150. On the basis of the above entry, it can be presumed that factually on account of the revision in the pay scale the plaintiff was entitled to a difference of Rs. 100 per month and claimed. It has been contended by the learned counsel for the plaintiff that the above Schedule 'A' only indicated the then proposed revision, but it does not reflect the actual revised figure. It has further been urged that defendant No. 1 has not produced any document in order to show the actual revised figure of the pay. I am of the view that the Board must have accepted the proposed revised figure as was suggested without any further addition. I, therefore, hold that actually the plaintiff was entitled to Rs. 100 per month on account of the above revision in the pay scale and not Rs. 150 per month as claimed. It has also been urged by the learned counsel for the plaintiff that the amount of other allowances would also increase on account of the increase in the basic salary. But no detail has been furnished as to the actual amount of increase in the amounts of other allowances, because of the above increase of Rs. 100 in the basic salary. I, therefore, allow Rs. 100 per month. I accordingly hold that the plaintiff is entitled to a sum of Rs. 3,670, for the above period at Rs. 100 per month. (iv) The plaintiff has claimed Rs. 450 being the bonus difference on account of the revision of pay for the year 1964 to 67 at Rs. 150 per month. As I have held under Item No. 3 hereinabove that the plaintiff is entitled to a difference of Rs. 100 per month on account of the revision in the pay scale, the plaintiff, therefore, will be entitled to claim difference in the bonus at the rate of Rs. 100 per year and not Rs.

150. I accordingly allow a sum of Rs. 300 to the plaintiff in respect of this item. (v) The plaintiff has claimed a sum of Rs. 840 being the amount for officiating as the manager of defendant No. 1 from February 1966 to September 1966 at 10 % i.e. at Rs. 120 per month. In respect of the above claim the learned counsel for the plaintiff has pointed out that the plaintiff was assigned certain duties of the manager when the latter post was lying vacant, but was appointed as an officiating manager and, therefore, I am of the view that the plaintiff is not entitled to claim this item. (vi) Under this item the plaintiff has claimed a sum of Rs. 6,600 being the salary for the earned leave period i.e. for 6 months at the rate of Rs. 1,100 per month. In support of this claim the learned counsel for the plaintiff has relied upon Exh. 24 which is a note dated 17‑10‑66 put up by the then manager of defendant No. 1, in which it was stated that the plaintiff was entitled to earned leave for 3 months and 29 days, and it was recommended that he would be allowed the above leave. It has been further contended by the learned counsel for the plaintiff that defendant No. I did not grant the above leave as the plaintiff was required to attend urgent works. His contention is that the plaintiff is entitled to the pay for the earned leave period. He has further contended that the period of 3 months and 29 days was calculated upto the period expiring on 15‑10‑66 and that thereafter the plaintiff had served defendant No. 1 for a further period of 8 months and 20 days, as his services were terminated with effect from 15‑6‑

67. According to the learned counsel for the plaintiff on the above basis the plaintiff is entitled to earned leave for a total period of 4 months and 24 days, by virtue of rule 7 (6) (ii) and (M) of defendant No. 1's rules Exh. 85 at p.

19. The plaintiff was entitled to earned leave at the rate of 1 / 11th period on full pay and for the same sick leave period at I /2 average pay convertable into full average pay. As the plaintiff remained in service for the period commencing from 11‑5‑64 to 15‑6‑67, the earned leave with full pay works out 4 months 21 days. In my opinion as the plaintiff was not given his due leave because of defendant No. 1's work, he is entitled to claim the salary for the same. Therefore, I allow the plaintiff salary for a period of 4 months and 21 days at the rate of Rs. 1,100 per month, which comes to Rs. 5,170. (vii) Under this item the plaintiff has claimed a sum of R.s. 4,000, being the amount of contribution of the provident fund admissible under the rules. The learned counsel for the plaintiff has drawn my attention to para. 25(vi) of the written statement of defendant No. 1, wherein it has been admitted that the defendant No. 1's contribution is equal to the plaintiff's contribution. D. W. 2 Exh. 135 in his X‑Examination has stated that the plaintiff is entitled to a sum of Rs. 1,745.79 on account of defendant No. 1's contribution. The learned counsel for the plaintiff has pointed out that under the Provident Fund Rules contained in Exh. 85, defendant No. 1 was obliged to maintain a separate account, for the provident fund and was also obliged to contribute to the fund a sum which was to be equal to the aggregate of the subscription preceding 1st day of July every year. Rule 7 prescribes the manner of maintaining the accounts. On the basis of the above rules, it was urged that it was for defendant No. 1 to produce the accounts in order to show the actual amount which the plaintiff was entitled to on account of the provident fund. But as defendant No. 1 has not produced the above accounts an adverse inference should be drawn against it: I have pointed out hereinabove that according to D. W. 2 the plaintiff is entitled to Rs. 1,745.79 as contribution. If in this amount interest is added to, it will work out about Rs. 2,000. 1 am, therefore, of the view that the figure claimed by the plaintiff, namely, 4,000 is a reasonable figure, but this figure includes the plaintiff's own contribution and the contribution of defendant No.

1. I, accordingly, hold that the plaintiff is entitled to Rs. 4,000, on account of the provident fund. (viii) The plaintiff has claimed a sum of Rs. 2,200 being the bonus for the year 1965‑66 and 1966‑67 for two years at the rate of Rs. 1,100 per year. The learned counsel for the plaintiff has invited my attention to rule 8 at p. 20 of Exh. 85 which entitles the plaintiff to claim bonus. He has also drawn my attention to para. 35 (vii) of the written statement, wherein defendant No. 1 has stated that the plaintiff is entitled to bonus for 1966‑67 amounting to Rs. 1,

700. According to the learned counsel for the plaintiff if this figure is to be accepted as thee figure for one year bonus the plaintiff would be entitled to Rs. 3,400 for two years. It has been further contended that the burden was on defendant No. 1 to show that in fact the plaintiff has received bonus for the year 1965‑66, and that as it has not produced any evidence, the plaintiff's claim for two years is to be accepted. He has also drawn my attention to the statement of D. W. 2 Exh. 135 in his cross‑examination which is to the following effect .‑ "It is not correct to suggest that we had not paid bonus for the years 1965‑66 and 1966‑67 which comes to Rs. 2,

200. Factually had included the bonus amount in the cheque which was forwarded to the plaintiff by the Society." On the basis of the statement, it has been contended by the learned counsel for the plaintiff that according to defendant No. 1 the amount of bonus was included in the cheque which was sent by it to the plaintiff and which was not accepted by the plaintiff. It has further been contended that D. W. 2 has not denied that the plaintiff was entitled to the bonus for two years. As I have already observed hereinabove that it was for defendant No. 1 to produce some documents in order to prove that factually it had paid the bonus for the year 1965‑

66. I would allow a sum of Rs. 2,200 for the years 1965‑66 and 1966‑67 and not Rs. 3,400. (ix) The plaintiff has claimed a sum of Rs. 3,300 as salary in lieu of 3 months of notice at Rs. 1,100 per month. As discussed under Issue No. 2 1 have hold that the plaintiff is entitled to recover damages to the extent of one year's salary for the wrongful dismissal, he is not entitled to recover 3 months' salary in lieu of the notice in addition to the above amount. I therefore, hold that the plaintiff is not entitled to the above amount.

40. Issue No. 4.‑--This issue was not pressed by the learned counsel for the plaintiff and, therefore, it does not need any discussion.

41. Issues Nos. 6 and 7.‑In view of my above discussion I hold that the plaintiff is entitled to a decree for a sum of Rs. 30,74 the break up of which is as follows;-- Rs. (a) Under Issue No.

2. One year salary as damages .:. 13,200 (b) Issue No.

3. Item (i) ... 2,250 (c) Issue No. 3 . (ii) 84 (d) Issue No. 3. (iii) ..... 3,670 (e) Issue No. 3. (iv) ..... 300 (f) Issue No. 3. (vi) ... 5,170 (g) Issue No. 3. (vii) ... 4,000 (h) Issue No. 3. (viii) ... 2,200 Total ... Rs. 30,874 I accordingly decree the suit for a sum of Rs. 30,674 with 10% interest thereon from the date of the decree till payment and proportionate costs. S. A. H. Suit decreed.