P L D 1975 Karachi 138 (PLP)

(4) Whether the plaintiff was in the employ of the defendants, c immediately before the contract dated 27‑8‑1961 was offered by the defendants? (5) Whether in terms of the contract dated 27‑8‑1961 the plaintiff was. to give his services to the employees of the defendants and their Associated Companies only or to all such persons as the defendants f or their Associated Companies shall direct and to perform such duties as were assigned to him? (6) Whether the medical services rendered by the plaintiff to the 12 companies listed in paragraph 5 of the plaint and to local Arabs, Trucial Oman Scouts and employees of the Sheikh of Abu Dhabi at the order and directions by the defendants were extra contractual services. (7) Whether there were any fixed working hours for the plaintiff and: whether the nature of his services permitted fixed working hours. (8) Whether the defendants recovered payments against the monthly bills treated by the plaintiffs as alleged in para. 6 of the plaint. (9) Whether any new contract between the plaintiff and defendants came into being as alleged in para. 10 of the plaint. (10) Whether the defendants have made any charge for medical services rendered to local Arabs, Police Personnel and Trucial Oman Scouts. (11) Whether the plaintiff is entitled to receive 9290‑5‑0 or 8646‑5‑0 and whether the statement of account set forth in para. 7 of the plaint is correct. (12) Whether the defendant is bound to account for plaintiff entitlement to any alleged extra‑contractual services. (13) To what relief, if any, is the plaintiff entitled.

6. The plaintiff examined himself. On behalf of the defendant, four witnesses were examined on commission on interrogatories. They are Dr. Colenso‑Jones (D. W. 1), a Chief Medical Officer of the Iraq Petroleum Company and its associated Companies including the defendant, Mr. A. A. Waterworth (D. W. 2), defendant's Personal Manager, J. B. Tillott, (D. W. 3) Oil Movement Controller of the defendant, and Mr. Alan Turner (D. W. 4), General Manager of the defendant.

7. I have considered the evidence and the submissions of the counsel and my findings on the issues are as follows:

8. Issues Nos. 1, 2 and 4.‑These issues may conveniently be considered together as they raise the common question as to the jurisdiction of this Court to entertain the suit. Mr. N. Awan, learned counsel for the plaintiff relying on section 20, C. P. C. submitted that the Court had jurisdiction on two grounds, as (a) part of the cause of action arose at Karachi, namely, the plaintiff's first agreement of service dated 27‑1‑1961 Exh. 10 was con cluded at Karachi, and (b) the defendant carries on business in Karachi through B. P. (Pakistan) Limited as its agents. With regard to the first ground, the agreement of service dated 27‑1‑1961 Exh. 10 was entered into with Qatar Petroleum Company Limited and not with the defendant and in its place, a new agreement of service was concluded between the plaintiff and the defendant at Tarif, under Exh. 10/2 dated 27‑8‑1961, where the plaintiff accepted the same on 6‑9‑1961. The plaintiff was therefore, not in the employment of the defendant immediately before concluding the second agreement Exh. 10/2. No cause of action, therefore, arose within jurisdiction A of this Court. Moreover, as pointed out by Mr. Saleem Akhtar, learned counsel for the defendant, section 20, C. P. C does not apply to the High Court by virtue of section 120, C. P. C. He referred to West Pakistan Industrial Development Corporation v. Fateh Textile Mills Ltd. (P L D 1964 Kar. 11), in which it was observed by Kharal, J., that in the absence of statutory provisions regarding the place and forum of suing applicable to the High Court, the general principle of law was applicable, according to which the plaintiff has no right to sue a defendant in a personal action except when he resides or B carries on business within the jurisdiction of the Court. The question, therefore, is whether the defendant resides or carries on business within the jurisdiction, which is ground (b) of Mr. Awan's submission. Mr. Awan's submission is that B. P. (Pakistan) Limited acted as the agents of the defendant in Karachi for purposes of recruitment of Pakistan personnel required by the defendant for service in the Trucial States. Further that the said agents made payment of the plaintiff's dues on behalf of the defendant at Karachi as will appear from correspondence Exhs. 10/4, 10/6, l0/11 and 10/12 and also made travel arrangements for the plaintiff. But admittedly the defendant, as its name indicates, operated exclusively at Abu Dhabi and had no branch office in Karachi and it carried out no commercial business whatever at Karachi for pecuniary profits and gains, as observed in Fazal Muhammad Nizam‑ud‑din Baig & Co. v. The Province of West Pakistan (P L D 1969 Lah. 453). B. P. (Pakistan) Limited acted only as correspondents of the defendant and although in the correspondence, the defendant has been referred to as "our Principals", there is nothing to indicate that any other relationship existed except as friends. Therefore, I find no force in the submission of Mr. Awan that the defendant was carrying on business in Karachi through the said agents. My finding, therefore, on these issues is that this Court has no jurisdiction to entertain the suit.

9. Issue No. 3. ‑Not pressed.

10. Issues Nos. S, 6, 7, 8 and 11‑These issues relate to the question. whether the plaintiff had rendered any extra‑contractual services as pleaded and, if so, whether he is entitled to claim additional remuneration therefor. It appears from the evidence that the nature and scope of the duties of the plaintiff as medical officer were, speaking generally as follows to treat short term in‑patients in the small detention ward at the medical centre; to treat out‑patients of various nationalities who attended the clinic for treatment during fixed working hours during the day; to attend to emergencies and '' accidents in the field area and to remove casualties in his jeep to the medical ' centre and, on the preventive side, he was responsible for the general ' sanitation and public hygienic measures in the area. As there was no other state or public medical facilities available in that area, it was the policy of the defendant to provide such medical facilities as were available not only to its own employees and those of its associated companies, but also to non‑company employees, local Arabs, Trucial Oman Scouts, Police Personnel in service of Shaikh of Abu Dhabi and such other sundry persons who came for treatment as out‑patients at the clinic. In the words of Alan Turner D. W. 4, the General Manager of the defendant, in answer to interrogatories No. 9 "This is normal decency and a moral requirement which must be expected from the Company's medical officers." Medical services to such persons were rendered free of cost. However, the defendant had special agreements with some of its contractor companies containing medical clauses under which the defendant was entitled to make a fixed charge per capita for the medical services provided to the employees of such contractor companies, until such time as they made their own private arrangements. The plaintiff was advised by a memorandum Exhs. 9/1 to 9/6, ' from time to time by the defendant of the medical clauses of the agreements entered into with such contractor companies. The medical services rendered to such contractor employees were entered in separate registers called "out‑ patient non‑companies", in which were entered the name of the non‑company employee treated and the complaint for which he was treated. The registers maintained for the years 1961 to 1964 are Exhs. 47, 48, 49 and

50. Monthly statements were prepared by the plaintiff and/or his staff (contained in file Nos. 51 and 52) showing the names of the out‑patients, the details of the treatment and the charge to be made for it. These were signed by the medical officer and then .were sent to the Senior Medical Officer who forwarded them to the Accounts Department at Bahrain, which vetted the same and prepared bills (contained in File No. 53) which were submitted to the contractor firms and payment was recovered from them. It is admitted by the defendant's witness A. A. Water worth D. W. 2 and Alan Turner D. W. 4 that during the period May 1961 to May 1964, a total amount of 8967‑12‑0 were recovered from the contractor companies. The plaintiff claims this amount as additional remuneration, for extra‑contractual services.. In other words, the contention of the plaintiff is that under clause 2 of the service agreement Exh. 10/2 dated 27‑8‑1961, the plaintiff was obliged to render services only to the defendant and to any of its Associated Companies, but the services rendered to other persons were extra‑contractual services for which he is entitled to be paid additional remuneration. The case of the defendant, on the other hand, is that the plaintiff was engaged to give his exclusive whole‑time services to the defendant in accordance with its orders. and directions given to him from time to time; that the services in question were rendered pursuant to the defendant's orders and directions and were within the scope of the duties of the plaintiff; as such, they were not extra‑contractual services. The testimony of the witnesses of the defendant was consistent on this point. The recovery of the medical charges from the contractor companies was explained on the ground that there were special contractual arrangements between the defendant and the contractor companies under which they agreed to pay these charges until they made their own separate arrangements. I am inclined to accept the submission of the defendant. The plaintiff had agreed to give exclusive whole time services to the defendant and to obey its orders and directions. Therefore, it was part of his duties as employee to render all such services as are within' the scope of his duties, to such persons and agencies as his employer may order or direct him from time to time. In such event he would not be entitled to any additional remuneration beyond his contractual salary. There is no doubt that the medical services in question rendered to the contractor employees detailed in the monthly statements (contained in Files Exhs. 51 and 52) as well as those to the local Arabs, Trucial Oman Scouts, Police Personnel, etc., were similar and of the same nature as those rendered to the employees of the defendant and its Associated Companies themselves. Neither the nature of the services were changed, nor did the plaintiff undertake any increased responsibilities or additional risks outside the scope of his employment, so as to justify his claim to entitlement to additional remuneration, either on basis of express agreement or basis of an implied contract. In this connection Halsbury's Laws of England, Third Edition, Volume 25, Article 914, p. 474 may be referred to : "

914. Additional remuneration.‑Additional remuneration can only be recovered when it is the subject of a distinct agreement. A promise to pay extra‑remuneration for services which are within the scope of] the servant's duty as defined by his subsisting contract of service is void for want of consideration, and it makes no difference that such extra remuneration is claimed under a usage. A promise to pay" extra remuneration is, however, founded on good consideration, ands will be enforced, when the servant is no longer bound by the original contract by reason of the risk having become greater than that within' the contemplation of that contract, or because the nature of the service has been entirely changed, or in a case where the servant undertakes, increased responsibility, or more work." The plaintiff also put forward no serious claim to the additional remuneration until some two year. later, on 22‑8‑63 when he realized that the General Manager, John Tillott (D. W. 3) while holding an enquiry about some incident with a contractor employee, expressed his conviction that the plaintiff was "unsuited for personal reasons to his present job and should, leave" (document No. 28). The plaintiff's services were terminated on 1‑5‑1964 (Exh. 10/3). These issues are, therefore, decided accordingly as follows:‑ Issue No. 5.‑The plaintiff was to give his services in terms of the contract dated 27‑8‑1961 to all such persons as the defendant directed provided that such services were of the same nature and within the scope of his duties. Issue No. 6.‑No. Issue No. 7.‑Although the plaintiff was to attend at the medical centre during fixed working hours of the day, he was on call at any time to attend to emergencies. Issue No. 8.‑Yes. To the extent admitted namely, 8697‑12‑

0. Issue No. 11.‑No.

11. Issue No. 9.‑The plaintiff has failed to prove any express or implied contract on the part of the defendant to pay for the alleged extra services as .pleaded in paragraph 10 of the plaint.

12. Issue No. 10.‑No. The services were rendered free of cost.

13. Issue No. 12.‑The plaintiff's entitlement to account has not been established. The issue is answered in the negative.

14. Issue No. 13.‑For the foregoing reasons I would dismiss the suit with no order as to costs. K. B. A. Suit dismissed.