1999 PLC 381 (PLP)

Learned counsel also cited 1991 CLC 2071 (Messrs Balagamwala Oil Mills v. Messrs Shakarchi Trading A.G. and others). The brief facts of this case are that, by indent/agreement, dated 8‑10‑1988 executed at Karachi, the plaintiff agreed to purchase from the defendant No. 1. which is a company registered outside Pakistan, 1,000 Metric tons of Chick Peas 29‑30 (New Crop 1988) at the rate of US. $.395 per metric ton C and F Karachi. The defendant No.2 is the agent of the defendant No. l in Pakistan. The shipment of the goods could not be made by the defendant No .l within the aforesaid period but the date at the request of the defendant No. l was extended upto, 30‑11‑1988. The port of shipment of the goods was also altered at the request of the defendant No. l making it permissible for them to ship the goods from any Mediterranian port. The case of the plaintiff, in short was that the defendant No. l has failed to perform it's part of the contract as the price of the chicks Peas has increased in the international as well as local markets. The case of the defendant No. 1, on the other hand, according to the counter‑affidavit filed on its behalf, was that, there was no concluded contract between the parties and if at all there was any contract between thetas then the acceptance of the proposal having taken place at Switzerland, the contract was concluded there and in that case, this Court‑ has no jurisdiction to try the present suit. His Lordship Mamoon Kazi, J. (as he then was) has observed as follows:‑‑ These documents at this stage of the case do suggest that there was a concluded contract between the plaintiff and the defendant No. l as alleged by the plaintiff. However, the claim of the plaintiff relates to damages and loss allegedly suffered by the plaintiff owing to the alleged breach of contract committed by the defendant No.

1. Such claim of the plaintiff can only be established by evidence, which is yet to be recorded in the case, and his Lordship did not grant the injunction application. Learned counsel also cited Suit No. 199 of 1995 (Khawaja Mukhtar Ahmed and others v. Air Fiance Cargo and others). wherein a learned Single Judge of this Court has observed that the plaintiffs have prayed that the defendant No. l may be directed to furnish security in the sum of Rs.94,02,778 as it is foreign company and is likely to close down its operation in Pakistan. In the counter‑affidavit it is stated by defendant No. I that they have closed down their flight operations or passengers from Pakistan with effect from November, 1994, which is the date prior to filing of the date of the suit. They have denied that they are in no manner closing their flight operation in Pakistan and that they are in the process of increasing the same. In this background of the matter learned Judge was pleased to observe that mere allegation or apprehension that the defendant company is likely to close down its business is not sufficient to grant of relief, Under the circumstances the office was directed to fix the suit for regular hearing within one year. Mr. Abid T. Japanwala also cited Article 81 of Master and Servant rules which reads as under:‑‑

"A master may dismiss without notice a servant who is guilty of misconduct, whether in the course of his duties or not, inconsistent with the fulfilment of the express or implied conditions of service." I have gone through the arguments advanced by the learned counsel for the parties. I have also gone through the material placed with the case. It is an admitted position that services of the plaintiff were terminated by the defendant without issuing show‑cause notice or without holding proper inquiry with regard to the allegations levelled against the plaintiff or without providing an opportunity of personal hearing to the plaintiff which is against the natural justice. In my humble opinion the authority 1994 SCMR 2223 cited by the learned counsel for the plaintiff is very authoritative one in which their Lordships of Hon'ble Supreme Court have considered the aspect of master and servant and terms and conditions of the service of the employees and autonomous bodies working in this country and have referred and inasmuch as they have discussed the abovereferred case and finally their Lordships concluded as follows:‑‑ From the above stated cases, it is evident that there is judicial consensus that the maxim audi alteram partem is applicable to judicial as well as to non judicial proceedings. The above maxim will be read into as a part of every statute if the right of hearing has not been expressly provided therein. The effect of the application of the master and servant rule is that an employee of a Corporation in the absence of violation of law or any statutory rule cannot press into service Constitutional jurisdiction or Civil Jurisdiction for seeking relief of reinstatement in service, his remedy for wrongful dismissal is to claim damages." Here in this case the plaintiff have filed this suit for declaration, compensation, recovery of dues and damages for illegal and mala fide dismissal from service. The case‑law cited by Mr. Abid T. Japanwala, learned counsel for the defendants, on the face of it is different, distinguishable and is not relevant and helpful to the case of the defendant The date of birth of the plaintiff is 17‑10‑1951 as such he 'will be attaining age of 60 years on 17‑10‑2011 which is the normal age of retirement in Pakistan and the plaintiff would be entitled to compensation amounting to Rs.41,94,100 in lieu of salary and other emoluments, benefits and dues which he would have received from the defendants at the age of retirement. In support of this application plaintiff has filed statement of claim which is Annexure H/1. The case‑law referred by Mr. Ashraf Hussain Rizvi is relevant and authoritative which I respectfully follow. Keeping in view the principle of equity, fairplay and justice I am of the firm opinion that it would be entirely in the interest of justice to allow the application. The application is granted. The defendants are directed to deposit an amount of Rs.52,30,820 as per Annexure H/l to the plaint filed by the plaintiff, within a period of 2 months with the Nazir of this Court. After deposit of the amount the Nazir shall invest the amount in some profit earning scheme till the final decision of the suit: The party ultimately successful in the suit, will be entitled for the entire amount. H.B.T./J‑39/K Order accordingly.