1989 PLP (C (PLC(CS))

This revision petition has arisen from a suit brought by the petitioner, for a declaration challenging the legality of order dated 11‑1‑1977 of termination of his service with respondent No. 1, when he was working as Passenger Sales Manager, Karachi, mainly on the following three grounds:‑ "(1) That original termination of the plaintiff contained in letter dated 11‑1 1977, is obviously mala fide act of the defendants and it was issued mainly to keep the secrets regarding the corrupt, scandalous activities of the higher officers in collusion with the Chairman of the defendant intact .......... (2) That the subsequent letter dated 25‑9‑1980 disposing of the plaintiffs appeal/representation against termination from service, manifestly discloses that there was some enquire conducted by the defendant No. 1 against the plaintiff but strangely the plaintiff was never disclosed its nature; the allegations contained therein, even the right to defend and the opportunity of hearing was never afforded. Obviously the plaintiff has been condemned unheard in the instant case, as his termination from service is attached with a stigma ....... (3) That from the termination letter dated 11th January. 1977, it could he quite obvious that the plaintiff has been terminated by an officer quite junior to him, it is vet another illegality and irregularity which renders the very termination illegal, unlawful, against the fundamental principles of law and thus clearly mala fide. It is unheard of that a junior person may terminate his senior, this too is sufficient to speak the mala fides in volumes."

2. The suit was filed on 8‑11‑1983 and according to averment in the plaint the cause of action accrued against the defendants firstly on 11‑1‑1977 when the original order of termination was passed and thereafter accrued on 25‑9‑1980 when defendant No. 2 acting as Appellate Authority, refused to re‑instate the plaintiff in service. It was also averred that since plaintiff was for the time being residing at Lahore where his services were unlawfully terminated through letter dated 11‑1‑1977 and where the sub‑office of the respondent No. 1 is also located, therefore, the Civil Court at Lahore had the jurisdiction to entertain and adjudicate upon the matter.

3. The suit was resisted by the defendants who were Pakistan International Airlines Corporation through its Manager and Chairman Pakistan International Airlines. It was specifically pleaded in defence that according to letter of appointment, the employment of the plaintiff with the P.I.A. was with the express condition that the appointment was subject to Corporation Rules and Regulations enforced from time to time and according to rule 2‑5.2 of the P.IA. Administration Manual, the services of the petitioner could be terminated by giving him three months notice or by paying him wages in lieu of such notice. It was also averred that the relationship between the plaintiff and the defendant No.1 was that of Master and Servant. The jurisdiction of the Civil Court at Lahore to entertain it was also challenged on the ground that no cause of action accrued to the plaintiff at Lahore as his services were terminated when he was working as Passenger Sales Manager at Karachi. It was also averred that suit was barred by time. A plea of estoppel was also raised in the written statement against the plaintiff. On the pleadings of the parties, the learned trial Court framed the following issues:‑ (1) Whether this Court has got no territorial jurisdiction to entertain the present suit? OY.D. (2) Whether the parties are governed by general law of master and servant" If so, to what legal effect:' O.P.D. (3) Whether the suit is within time? O.P.P. (4) Whether the plaintiff has got no cause of action to bring this suit? O.P.D. (5) Whether the plaintiff is estopped to file this suit on account of his conduct? O.P.D. (6) Whether impugned order of termination dated 11‑1‑1977 is illegal, unlawful, mala fide and without lawful authority? O.P.P. (7) Relief. After recording evidence, the learned trial Court by judgment dated 28‑6‑1984 dismissed the suit. Under issue No. 1 it was held that the Civil Court at Lahore had no jurisdiction to entertain the suit because no cause of action accrued to the plaintiff at Lahore. Issue No. 2 was answered against the plaintiff. It has been held that relationship of the parties was govetrned by principle of master and servant. The trial Court held under Issue No. 3 that the suit was barred by time. Issue No. 4 has also been answered against the plaintiff. Under Issue No. 5 it was held that the plaintiff was estopped by his conduct from agitating against the order of termination of his service at the belated stage. Issue No. 6 was also decided against the plaintiff. Feeling aggrieved, the petitioner filed appeal before the learned District Judge, Lahore which has also been dismissed by judgment dated 20‑10‑1984. Both the judgments have been challenged in this revision petition by the petitioner/plaintiff.

4. Learned counsel for the petitioner maintained that the appointment of the petitioner was made under section 10 of the P.IA. Act, 1956, therefore, his service was regulated by the Act and as such relationship between the plaintiff and defendant No. 1 was not that of master and servant. He also argued that since a copy of termination order of the service of the petitioner was also sent to him at his address at Lahore, therefore, under section 20, C.P.C. the suit could be entertained by a civil Court at Lahore for the additional reason that defendant No.l has also a subordinate office at Lahore. According to the learned counsel due to issuance of copy of impugned order of termination of petitioner's service at Lahore, to the petitioner the cause of action shall be deemed to have partly arisen at Lahore. He also urged that the employment of the petitioner has been terminated by Mr. Shujaullah Khan, Administration Manager Marketing who was an officer junior to the petitioner therefore, the order was void, ab initio hating not been passed by a competent authority who in this case, was P.I.A. itself and only Chairman on its behalf could pass such an order. He also argued that the suit was not barred by time and it could be filed within six years under Article 120 of the Limitation Act and the limitation was to start from the date of disposal of departmental appeal of the petitioner which was rejected in the year 1980, therefore, the suit filed in 1983 could not be held to be barred by time. Reliance in this respect has been placed on 1973 P L C'

355. Lastly it was argued that where the order of termination of service was void, ab initio having not been passed by a competent authority, the Civil Court could interfere and declare the same as null and void. Reliance has been placed on the following judgments; Muhammad Sadiq v. WAPDA 1973 P L C (D.B.) 8 to 12; Nargis Khatoon v. P.B.C. 1984 P L C (C.S.) 238; Abdul Razzaq Malik v. WAPDA P L D 1973 Lah. 188; Gul Muhammad v. Punjab Road Transport Board P L D 1973 Lah. 240; M.S. Faruki v. Municipal Corporation, Lahore P L D 1970 Lah. 195, 227; Principal, Cadet College v. Muhammad Shoib Qureshi‑P L D 1984 S C 170; P L D 1981 Pesh. 1; P L D 1972 S C 332; P L D 1980 Lah. 697 (701); Salah‑ud‑Din v. Frontier Sugar Mills P L D 1975 S C 244; Muhammad Nazir v. Mobashar Hassan P L D 1974 Ye Lah. 49; 1982 P L C (C.S.) 1, (25) (D.B.) Judgment, 1983 C L C 414; P L D 1969 Kar. 304; P L D 1982 Pesh.1 and P L D 1969 Lah. 241.

5. The submissions made by the learned counsel for the petitioner have no substance. The petitioner when he examined himself as P.W. 1 admitted that his services were terminated at Karachi on 11‑1‑1977 when he was working as Passenger Sales Manager, at Karachi. He also admitted that he received the letter of termination at Karachi when he was staying there. Documentary evidence to this effect was produced by the defendant in the form of Exh. D.W.1/3 and‑"' D.W.1/4. The contract of employment was admittedly executed at Karachi between the parties. It is in the evidence of Dr. Shahid Ali Naqvi, Manager Legal (Personnel) P.IA" Karachi Airport who was examined as D.W. 1 by the defendants, that the letter of termination of service of the plaintiff was issued to him during his stay at Karachi and only its copy was sent to him at his Lahore address. In the presence of this clear evidence learned counsel for the petitioner could not satisfy me that the findings of two Courts below that Civil Court at Lahore had no jurisdiction to entertain the suit were not legally correct. Section 20(c) of the C.P.C. is not attracted inasmuch as no part of cause of action can be held to have arisen at Lahore. Merely because subordinate office of P.IA. is at 'I' Lahore would not by itself confer jurisdiction on Civil Court at Lahore unless a cause of action in a given case is relatable to such subordinate office. The following expression in explanation II of section 20, C.P.C. "or in respect of any cause of action at any place where it has also a subordinate office at such place." `' The rule laid down by this explanation is only applicable where a cause of action arises at a place where the Corporation has subordinate office which is an" exception to general rule contained in section 20, C.P.C. that generally suit against Corporation had to be filed at the place where its principal office is ''situated. Had petitioner been posted in the subordinate office of defendant No. 1 " at Lahore and his services had been terminated while so posted, he could certainly file a suit at Lahore on the ground that P.IA. in respect of that cause of action shall be deemed to be carrying on business at Lahore also where its subordinate office was situated. Issue No. 1 was rightly answered against the petitioner. Even otherwise, nothing turns on this, as because of reasons to follow the petitioner has to fail on merits.

6. Section 10 of P.IA. Act, 1956 makes enabling provision for the appointment of on officers etc. It reads as follows:‑

"Section 10 of P.IA. Act 1956.‑‑The Corporation may appoint such officers, advisers, and employees as it considers necessary for the efficient performance of its functions on such terms and conditions as it may see fit." Under section 29, the Federal Government has been empowered to you make rules not inconsistent with the act and section 30 vests the Board with the powers to make regulations with the previous sanction of the Federal Government which could provide for all or any matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of the Act. According to section 31, it is necessary that all rules and regulations made under the Act are published in the official Gazette and are required to be laid before the National Assembly as soon as possible immediately after they are framed. To determine whether relationship between an employee and the employer was that of master and servant the only criteria is whether such employment or service is as a matter of fact regulated by statutory rules or the provisions of some enactment. Learned counsel for the petitioner could not point out as to under which statutory rules the employment of the petitioner was governed. Merely because under section 10 of the P.I.A. Act, 1956 the Corporation was authorised to appoint officers etc. would not by itself be sufficient to hold that the employment of the petitioner was governed by any statute or rules. This section is in general terms and enabling provision, empowering the P.I.A. to appoint officers etc. on any terms and conditions. Section 10 of the Act came up for interpretation in a case A. George v. P.I.A.C. P L D 1971 Lah. 748 in which it has been held that "section 10 confers plenary powers and absolute discretion in the Corporation to lay down any terms and conditions of service for its employees which power in this connection is to be exercised by the Board of Directors on behalf of the Corporation." It was also held that the terms and conditions of service of its employees are generally prescribed by P.IA. Corporation in the form of service Code which does not refer to any authority or the law under which it was framed as such the provisions forming this Code did not have the force of statutory rules required to be made by the Central Government under section 29 of the Act, nor even the force of regulation to be made by the Directors of the Corporation with previous sanction of the Government under section

30. It has also been held that provisions of Code are in the nature of mere instructions issued by the Board for the guidance of its officers for their internal use and altogether directory. The defendants produced on record in evidence the copy of provisions of Administration Manual relevant to this case as Exh. D.W.1/5 according to paragraph 35.02, thereof the Corporation is empowered to release from service any of its officers by giving him notice or paying him wages in lieu of notice according to the formula provided therein on the basis of length of service. It also reserves a right with the Corporation to dismiss any employee without any notice who in the opinion of the competent authority is guilty of misconduct after affording him opportunity to defend his action. It is not a requirement of section 10 that terms and conditions on which the Corporation is to appoint the officers etc. must necessarily be prescribed through rules or regulations. The Corporation has been conferred uncontrolled and unlimited powers to settle the terms and conditions of officers etc. to be appointed by it. In view of these clear provisions and the fact that there are no rules or regulations framed laying down the terms and conditions of employees of the Corporation it can safely be held that the service of the petitioner was governed by the principle of Master and Servant simpliciter. It has been held in Muhammad Yusuf Shah v. Pakistan International Airlines Corporation P L D 1981 S .C 224 which was a case of employee of Pakistan International Airlines that the provisions of the service code of the P.I.A. were merely in the nature of instructions and not statutory rules and were directory in nature and in the absence of any statutory rules the relationship between Corporation and its employees was governed by simple theory of Master and Servant. This view was affirmed in another judgment reported as Principal Cadet College v. Muhammad Shoab Qureshi P L D 1984 S C

170. The similar view was expressed in a reported judgment Malik and Haque v. Shamas‑ul=Islam Chaudhry P L D 1961 S C

531. In view of these authoritative pronouncements made by the Supreme Court and the other reported judgments noticed by the learned lower appellate Court it is not possible on any principle of law to hold that the employment of the petitioner with the defendant No. 1 was not governed by the theory of Master and Servant. The case‑law relied upon by the learned counsel for the petitioner is not relevant and applicable to the facts and circumstances of his case. In none of those reported cases a contrary view has been expressed. Those cases have 'been decided on their own peculiar circumstances.

7. The objection that the termination of service of the petitioner was made I by an officer junior to the petitioner has no substance in it. The letter dated 11‑1‑1977 has been issued under the signatures of Mr. Shuja Ullah Khan which has been produced in evidence as Exh. P.13 and it has been rightly held on the basis of language employed therein that the said officer has merely conveyed the order of the competent authority i.e. the Corporation of termination of service of the petitioner and he has not passed the order himself. As a matter of fact this objection was not raised in the plaint and was raised in the grounds of appeal 1 before the learned lower appellate Court for the first time. It is in the evidence of Mr. Shahid Ali Naqvi D.W. 1 that according to the record the matter of termination of service of the petitioner was discussed by Director Administration with D.M. and Chairman from which it is fully established that Chairman of the Corporation had approved the termination of service of the petitioner. Even otherwise, it has been correctly held by the learned lower appellate Court on the strength of judgment reported as P L D 1961 S C 531 that defendant No. 1 contested the suit and took up the position that the services of the plaintiff were rightly and legally terminated which was sufficient proof that respondent No. i passed the impugned order of termination of service and supported it, which was sufficient to bring to an end relationship of master and servant. Even if before the suit was filed there was no valid order passed by the competent authority but the contract of employment could come to an end on the appearance of the master in the Court stating that the plaintiff was no longer in his service. On the question of limitation the findings of two Courts below are also unexceptionable. The service of the petitioner was terminated through letter dated 11‑1‑1977. The petitioner had been making representations and so‑called appeal, which according to the defendants was not provided under any issue or instructions. There is no provision in the P.IA. Act, 1956 or any rules or instructions issued by Corporation providing any right to prefer an appeal or representation against the termination of service. In the absence of any such provision if the petitioner made representation and appeal, the time for institution of suits prescribed by Article 120 could not be enlarged by act of the petitioner himself of filing appeal etc. not provided under the law. The time for filing the suit was to run from 11‑1‑1977 therefore, the suit was rightly found to be barred by time.

8. The objection of the petitioner that his termination from service is attached with stigma therefore, he was entitled to be given opportunity of hearing before such termination, has no force. The letter Exh P.13 conveying the decision of the Corporation regarding termination of petitioner's service does not contain any charge against the petitioner but it is apparent from its contents that it was a termination simpliciter and it was provided therein that in lieu of notice the stationer shall be paid wages. No stigma is attached, therefore, no objection can e entertained against the termination order on this score. The payment of wages in lieu of notice to the petitioner, in itself is proof of the fact that provisions of Service Code of P.IA. regarding termination simpliciter were invoked as otherwise, on removal or dismissal of service on a charge the employee is not entitled to any wages in lieu of notice.

9. Learned counsel for the petitioner has not been able to satisfy me that the Courts below have misread, misconstrued the record or that the law was not correctly applied. No material irregularity and illegality has been committed by the Courts below in exercise of their jurisdiction. The impugned judgments are perfectly valid which have been based on careful and elaborate appraisal of evidence and the law laid down by the superior Courts. The revision petition fails which is hereby dismissed without any order as to costs. AA./M‑1205/L Revision dismissed.