P L D 1961 (W (PLP)

(4) Did the plaintiff accept the termination of his services and did he settle all accounts with the defendants is stated in para. 9 of the written statement? If so, what is the effect? (5) Is the plaintiff entitled to claim Rs. 48,160 or any part thereof? (6) What should the decree be? (7) General.

5. When the case came up for hearing before me, from a perusal of the issues and considering that all the relevant evidence has been brought on record it appeared that no oral evidence was perhaps necessary. The plaintiff, however, was keen to give his own evidence, which he did as P. W.

1. In his evidence the plaintiff stated that in June 1952 he was sent for by one Mr. Ghori, who was a Deputy Secretary in the Ministry of Industries, Government of Pakistan, and who told him to accept an employ ment with the defendants as General Manager; that in the first instance he was hesitant but Mr. Ghori was able to persuade him largely in the interest of the country and good management of the company. He was then introduced to Mr. Dalmia the Managing Director of the defendant company) in the office of Mr. Ghori and later on met him in the guest house of the Dalmia Cement Factory, where he gave him the general terms of his services. The plaintiff then goes on to say that he enquired from Mr. Dalmia as to how long he would be required to serve as he was already 55 years of age. The reply, which Mr. Dalmia is alleged to have given him, may be reproduced in the words of the plaintiff himself. This is what he says:‑ "He (Mr. Dalmia) told me that there was provision for such contingencies in the rules of the company. I asked Mr. Dalmia for a definite term of the duration of my service. He told me that in case of some European officers the Company did enter into an agreement for a definite term, which generally is 2 to 3 years and renewable by mutual consent. He told me that as far as I was concerned I would in effect have that benefit under the rule which makes provision in case of persons over 55 years of age." He then goes on to say that he received his letter of appointment Exh. 5, but he had already joined on 5‑6‑52 and this document confirmed the terms; that he was removed from service by means of notice, Exh. 8, dated 27th October 1956, and that if he had not been so removed he would have continued in the service for another 17 to 18 months according to rules, which, he contended, applied to him. When this evidence was being given Mr. Dingomal for the defendants objected to it on the ground that no case of such under standing between the plaintiff and the Managing Director Mr. Dalmia had been pleaded. I, however, allowed this evidence to go on record.

6. In order to understand the contention of the plaintiff it would be necessary to reproduce the rule referred to by him. The rules which were in force at the time of the plaintiff's employment, are described as General Service Rules, 1945. The relevant rule is rule 38 and may be reproduced:‑ "Retirement‑

38. Every employee is required to retire on attaining the age of 55 years. He may be retained in. service after that age only with the express sanction of the Head Office, but such extension of service will not exceed two years at a time." These Rules of 1945 (Exh. 31) were replaced by Employment Rules of 1954 (Exh. 32), of which rule 31 is equivalent to rule 38 of the former Rules. It is upon this rule that the plaintiff has relied in para. 12, of his plaint. I shall reproduce it:‑ "Retirement‑

31. Every employee shall retire on attaining the age of 55 years. He may be retained in service after attaining that age only with the express sanction of the Managing Agents, but such extension of service shall not exceed two years at a time." Rule 39 (sic) of these Rules deals with the termination of employ ment and reads as follows:‑ "Termination of Employment‑ 93 (sic). Services of permanent employees are liable to be termi nated by giving one month's notice in writing or by paying the salary in lieu of the notice period. Employees desiring to leave the service of the company are required to give like notice to the company. The privilege leave standing to the credit of an employee at the time of discharge will be adjusted against notice period." This is followed by rule 94 which deals with the cases of temporary and casual employees and it says: "

94. Services of temporary and/or casual employees are liable to termination without any notice such termination taking immediate effect." The employees of the company are classified under rule 5 of Exh. 31, which would be relevant in the case of the plaintiff. All employees under this rule are classified under 3 heads. (i) Perma nent employees; (ii) Temporary employees and (iii) casual emplo yees. Their definitions are as follows:‑ (i) Permanent Employees are those who are employed for permanent posts, whether on graded scale or fixed salary or daily wages or monthly salary, and are confirmed as permanent in writing after completing the probationary period, if any. (ii) Temporary Employees are those who are employed it temporary vacancies (occurring due to persons proceeding on leave or otherwise) or on such work as is not of a permanent works, etc., or on probation against permanent posts. (iii) Casual Employees are those who are employed on casual or miscellaneous works of short duration and whose regular attendance is not essential and compulsory. Rule 26 of the 1945 Rules relates to termination of employ ment by notice and is more or less equivalent to rules 93 and 94 of the 1954 Rules, which have been reproduced earlier.

7. The first and the most important question to determine is as to what were the terms and conditions under which the plaintiff was employed by the defendants. This is the subject‑matter of Issue No.

1. The terms and conditions of the plaintiff's employ ment are contained in Exh.

5. Clause (3) of that document states as follows:‑ "You will be governed by General Service Rules, Leave Rules, T. A. Rules, etc. etc. of the Company in force from time to time." Normally, therefore, the rules contained in Exh. 31 with regard to the appointment and rule 93 of Exh. 32 with regard to termination would be the relevant terms of employment for the purposes of determining the plaintiff's claim. But the plaintiff, when he came to give evidence, for the first time alleged that there was an under standing between him and Mr. Dalmia, according to which he claims that his services could only be terminated at the end of 2 years from the time when that term commenced. I will first examine the question whether there was any such understanding.

8. It will be worthwhile at this stage to briefly refer to the relevant correspondence between the parties which is on record. Exh. 5 is the letter of confirmation, which has been referred to already and the plaintiff admitted in cross‑examination that after he received the terms of his employment as contained in Exh. 5 he did not put on record the understanding which he had alleged in the examination‑in‑chief. So until the notice of termination of the plaintiff's services came to be served upon him on 27th October 1956 (Exh. 8) all that there was on record was Exh. 5 and nothing more. Exh. 8 is dated 27th October 1 956, the purport of which has been reproduced by me earlier. The next letter is again from the defendants addressed to the plaintiff. 1t is dated 2‑11‑56 and is marked Exh.

9. That letter gives the details of the dues payable to the plaintiff and it states that this is being supplied to him as desired by him on 29‑10‑

56. To this the plaintiff replied by his letter dated 5‑11‑

56. It is a fairly long letter but all of it relates to certain minor claims with regard to payments of leave salary, income‑tax liability, privilege leave, salary etc. There is not a word said about the termination of his service being wrongful or impro per and no claim was made by the plaintiff that he was entitled to continue in service any longer. This was followed by a letter from the defendants dated 23rd November 1956, Exh. 11, in which the minor adjustment and accommodation asked for have been con ceded. 7 he next letter is from the plaintiff and is dated 6‑12‑56, Exh.

12. This is a 3 paged letter and all that it speaks about is with reference to certain other minor claims and about the non- payment of dues. There is again no grievance about the termina tion of his service or about its being wrongful or in violation of any rule or any special contract. On 13‑12‑56 the defendants wrote to the plaintiff (Exh. 13) and with that enclosed a cheque for Rs. 10,582‑6‑0, which was in full and final settlement of his account except for the amount of the provident fund. The plaintiff duly received this money and wrote to the defendants on 20th Decem ber 1956 pointing out to them that two items of Rs. 47‑4‑0 and Rs. 3‑6‑0 have been wrongly debited to him. He also, asked for the payment of his provident fund. This was replied to by the defendants on 26th December 1956 and he was told that the two items of debit were being looked into and that the delay in the payment of the provident fund was only due to certain technical difficulties of the new trustees of the provident fund. The next letter is Exh. 16, dated 28th December 1956 from Mr. Dalmia to the plaintiff, in which some of the plaintiff's claims, which were of a minor character, were referred to. On the 1st of January 1957 the defendants sent to the plaintiff a cheque of Rs. 19,164‑12‑0 in 'full and final settlement of the provident fund dues of the plaintiff and this cheque was sent with the covering letter of the same day, Exh.

18. The next letter is dated 2‑1‑57 from the plaintiff to Mr. Dalmia, Exh. 19, which also refers to certain minor claims. In none of these letters there was any grievance by the plaintiff that his services have been terminated prematurely or wrongfully, nor was there any mention in them of any understanding between him and Mr. Dalmia. It was for the first time on 7‑1‑57, by which time the plaintiff had received more or less all his dues that he had claimed, that he wrote a long letter to Mr. Dalmia, at the end of which he made a claim for 18 months, salary, and I would like to reproduce that part of the letter. It runs thus:‑ "I was appointed on 6th June 1952, after having passed the age of 55, 2 years earlier. My appointment was subject to the terms and conditions and was to be governed by the General Service Rules of the Company. Under clause 31, of the latest Employment Rules, retention in service of any employee beyond the age of 55 will be in instalments of not more than 2 years each time, with the express sanction of the Managing Agents. After completing 2 years of service I could have been retired with effect from 5‑6‑1954, but my service was continued and as such the next occasion for my being retired came on 5‑6‑

56. Again my service was continued and as such 1 was entitled to have continued service till 4‑6‑

58. Since my service has been terminated on 29‑1(t‑56 nearly 18 months earlier due to victimi zation, I am entitled to be compensated by payment of an amount representing the value of the salary and other amenities which I would have enjoyed during the period of nearly 18 months. This amount could be calculated with mutual under standing and early steps may please be taken to have it determined and paid to me to close the matter finally." But, here again there is no mention of any understanding between him and Mr. Dalmia. This letter was replied to by the defendants on 1st February 1957, Exh. 23, in which they denied the plaintiff's claim, and it was categorically stated that the service of an employee was terminable under the rules by giving notice of one month or salary in lieu of notice which had been duly paid to him (plaintiff). After this I need refer to only two more letters. Exhs. 34 and

35. The first is the notice sent by Mr. Dost Muhammad Advocate on behalf of the plaintiff, in which besides the claim for acting allowance the further claim, which was the subject‑matter of Exh. 20, namely, 18 months' salary was demanded and the defendants were warned that if this was not paid the matter would be taken to Court. Again there is no mention of the alleged understanding. This notice was replied to by the defen dants on 21st March 1957 (Exh. 35), in which the claim of the plaintiff was repudiated. The next document in point of time is the plaint. And nowhere in the plaint has it been alleged that there was such an agreement or understanding between the plaintiff and Mr. Dalmia as was deposed to by the plaintiff in Court. When the plaintiff was cross‑examined with reference to these documents he admitted that it was true that he had referred to the alleged understanding for the first time in his evidence. The only explanation which he had to offer was that he had not considered it necessary to refer to it earlier, and he further stated that since he knew that the defendants were determined to get rid of him he did not think it necessary to say that he was entitled to continue in service for a certain period at that stage. I however, find it extremely difficult to accept this explanation. The conduct of the plaintiff as is amply shown in the correspondence that followed his removal is not consistent with the case now put forward by the plaintiff. In fact, when the plaintiff was confronted with the wordings of rule 31 he had to concede that but for the alleged understanding between him and Mr. Dalmia he would not have invoked the provisions of that rule as they did not apply to him. As for the alleged understanding I do not find it possible to accept this story coming, as it does, for the first time at the stage of evidence. It is plain to me that if the plaintiff was relying for his claim on rule 31 supplemented by the alleged understandings he would have certainly stated earlier when his claim based upon that rule was categorically denied by the defendants. I must further point out that in the absence of any pleadings on that point this evidence could not be looked into, a principle which was clearly laid down in the judgment of their Lordships of the Privy Council in the case of Pir Siddiq Mohammad Shah v. Mst. Saran (24 Sind L R 138). For ail these reasons I reject the story of the agreement or understanding between the plaintiff and Mr. Dalmia as alleged by the former. Upon the conclusions reached by me my finding on Issues Nos. 1 & 2 is that the terms and conditions, on which the plaintiff was employed, were those as contained in Exh. 5 and the General Rules of Service, 1945 and Employment Rules of 1954.

9. The next question is whether the termination of the plaintiff's service was contrary to the terms of the contract and, therefore, wrongful. This is the subject‑matter of Issue No.

3. The rule regarding the termination of, employment by notice is contained in rule 93 of the Employment Rules of 1954 and rule 26 of the General Rules of 1945, and under both these rules the defendants have the right to terminate the services of even a permanent employee by giving one month's notice in writing or by paying the salary in lieu of the notice period. The defendants acted under this rule and gave the plaintiff one month's salary in lieu of the notice period, which the plaintiff accepted without protest. It was contended by Mr. Khalid Ishaque, the learned Advocate for the plaintiff, that in the first place this rule was not effective because rules 90 and 91 provide for an inquiry before dismissal. But an enquiry would be necessary only if the company sought to dismiss an employee on the ground of misconduct, in which case the company reserved to itself the right under rule 99 to remove a person even without notice and in that case the employee would not be entitled to salary for the notice period and would also forfeit under rule 99 (b) all leave at his credit and other allowances and also rights to benefits, if any, such as bonus, etc. It is an accepted principle of interpretation that in interpreting the provision of any statute or any other document effort should be made to interpret the various provisions in a manner so as to give effect to all of them and it should not be readily concluded that a particular provision is either redundant or repugnant with another Attempt should be made to reconcile the various provisions unless it is not possible to do so. In the present case, I do not find any inconsistency in the rules 93 & 94 on the one hand and rules 90 & 91 on the other. A removal on the ground of misconduct carries certain penalties which are provided in the rules themselves and besides puts a stigma upon the employee. It is plain that this can only be done after an inquiry; but that does not mean that rules 93 & 94 become ineffective. Rule 93 is applied when the services are sought to be terminated without any allegation of mis-conduct and by giving a month's notice or paying salary in lieu of the notice period.

10. Mr. Khalid Ishaque then contended that in case of persons employed after the age of 55 years rules 93 and 94 would not apply. But before I go on to examine this contention let me for a moment refer to rule 31, which was the basis of the plaintiff's claim as pleaded in para 12 of the plaint. I have earlier quoted this rule. Upon the plain wordings of this rule it is clear that it provides for compulsory retirement at the age of 55 years. A provision is however made for his retention, but that can only be done with the express sanction of the Managing Agents. And ‑then there is a further prohibition, namely that such an extension of service shall not exceed 2 years at a time. I find it impossible to read into this rule the meaning suggested by the learned counsel that when a person is employed after he has attained the age of 55 years, his employment must of ‑necessity be deemed to be for a period of 2 years in the first instance and thereafter if he is conti nued it must further be deemed that all such extensions and renewals would be for a period of two years and not less. The rule clearly provides that an extension after 55 years can only be with the express sanction of the Managing Agents. It must therefore, follow that when such a sanction is given it must provide C for a specific term which must be within the period of 2 years and not beyond it. It might be for 6 months, it might be for one year; or it might be for 2 years, but that is a question of fact. And ever if an extension is expressly granted after the employee has attained the age of 55 years it is impossible to hold that he would be in a better position than that of a permanent employee within the age of 55 years whose services could be terminated by a month's notice. Therefore, whether the plaintiff is treated as a permanent employer or an employee for no fixed period his services were liable to be terminated by a month's notice or by payment of salary in lieu of the notice period. I hold accordingly.

11. Mr. Khalid Ishaque then contended that in the alternative the plaintiff's term of appointment should be treated as having been for a period of one year at a time and, therefore, when his services were continued after the expiry of the period of one year it should be held that the same should be deemed to have been renewed from year to year, and 'inasmuch as his initial appointment was made on 5th June 1952 he could not have been removed from service in the midst of his term on 27th October 1956 as was done in the present case by the notice Exh.

8. He, therefore, claimed that in any case his client would be entitled to the total salary, which he would have received till 5th June 1957. He relied firstly, upon a passage in Halsbury's Laws of England, III edition, Volume 25, page 480, para.

923. This is the portion ,upon which the learned counsel bases his contention:‑ "

923. General hiring.‑--If a contract of hiring and service is a general hiring, that is to say, without limitation of time, there is a presumption that the hiring is for a year, whether the contract is oral or in writing." This passage refers to the case of De Stempel v. Dunkels ((1938) 1 All E R 238). In the first place it is difficult to hold that even if there is such a presumption in such cases of employment in England, where there is a general hiring for an indefinite period, that presumption must also be applied to similar cases in this country. Such a plea was never raised in the pleadings. . This was necessary because if such a case was pleaded it might have been‑possible for the defendants to effectively rebut the alleged presumption. But even in the case quoted above, Greer, L. J. and Scott, L. J. emphasised‑‑‑ "that the presumption that a general hiring is a hiring for a year is not inflexible and that each case must depend on its circumstances." But even if such a case had been pleaded in the present suit I would have found it extremely difficult to raise that presumption in view of the clear provision in the rules, which entitled the employers to terminate the services of a permanent employee by giving one month's notice and those of temporary or casual employees with out any notice. I have, therefore, no hesitation in rejecting his contention.

12. Mr. Khalid Ishaque then contended that in any case the plaintiff was entitled to a reasonable notice and, according to him, the notice should have been extended to June 1957. He relied upon the case African Association Limited, and Allen (1910 K B D, Vol. 1 396). In that case an agreement for the employment of a clerk in Africa for two years at a salary at and after the rate of 25OL a year provided that the employers might at any time at their absolute discretion terminate the engagement at any earlier date than that specified, if they desired to do so. It was held by their Lordships that the power to terminate the engagement at an earlier date than that specified could only be exercised after giving reasonable notice. Lord Alverstone, C. J., who wrote the leading judgment in the case, observed as follows: "The only question which we have to consider is whether clause 2 of this agreement confers upon the employers the right to dismiss their servant summarily. Mr. Bailhache's argument seems to me to overlook the fact that, although the employers clearly have the right to determine the engagement at an earlier date than the expiration of the two years, clause 2 does not say in terms nor in my opinion does it say by, implication, that the servant may be summarily dismissed. The employers may in their discretion terminate the engagement at any time, but in my opinion the proper construction to place upon the language of clause 2, particularly when one bears in mind that the agreement relates to service abroad, is that it means that that discretionary power to terminate the engagement at any time can only be exercised after reasonable notice of their intention has been given by the employers." This case is of no assistance to the plaintiff and is clearly distingu ished. For one thing the employment in that case was for a specific period of 2 years and that employment was to be abroad. E Further there was nothing in the agreement on the lines of rule 93 of the present case, which provides for one month's notice. The present case is not the case of a person taken abroad for employment for a definite period. But even if the principle of this case was to apply to the present case the only question would be as to what would be the reasonable notice. And upon that point having regard to the provisions of rule 93 and the circumstances of the case it must be held that one month's notice was a reason able one.

13. For the reasons given above, my finding on Issue No. 3 is that the termination of the service of the plaintiff was not contrary to the terms of the contract, nor was it wrongful for any other reason.

14. Issue No. 4.‑--In view of the conclusions recorded earlier the answer to the first part of the issue must be in the affirmative. But with regard to the effect of that finding on the plaintiff's claim I do not think that the acceptance of the termination of service and receipt of all dues without protest would have necessarily disentitled the plaintiff from making a claim for further dues, if he was otherwise entitled to do so, unless there was any estoppel which stood in his way. No such estoppel has been pleaded in this case.

15. In view of my finding on Issue No. 31 hold that the plaintiff is not entitled to the claim in suit or any portion thereof. I accordingly dismiss the plaintiff's suit with costs. A. H. Suit dismissed.