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Petitioner: RIAZ AHMED VS Respondent: PRESIDENT, NATIONAL BANK OF PAKISTANHonorable Justice MAULVI ANWARUL HAQMuhammad Akram Jived,Zafar Iqbal Chaudhary
2007 Y L R 2960
2007 Y L R 2960
[Lahore]
Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ
RIAZ AHMED---Appellant
Versus
PRESIDENT, NATIONAL BANK OF PAKISTAN and 3 others---Respondents
Regular First Appeal No. 539 of 2006, heard on 12th June, 2007.
Constitution of Pakistan (1973)---
----Art. 212---Civil Procedure Code (V of 1908), O. VII, R. 11---Service Tribunals Act (LXX of 1973), S.2-A---Suit for damages---Rejection of plaint---Bank of where appellant was appointed as Godown keeper having been merged in another Bank, services of appellant stood transferred to the said Bank---Appellant completed 25 years of service---Service of appellant in the first Bank from 21-11-1972 to 20-6-1974 having not been included, full emolument due to appellant were not paid t~ ;aim and he had to resort to litigation in the High Court, Service Tribunal and Supreme Court; and in the light of decision so a rendered, appellant was paid his remaining emoluments---Attributing mala fide to respondent, appellant claimed damages on various counts in his suit for damages--In written statement filed by respondents, their main objection was that jurisdiction of civil court was barred under Art.212 of the Constitution and respondents filed separate application under O. VII, R.11, C.P. C. for rejection of plaint, which was rejected---Appellant had filed appeal against said rejection order---Contention of respondents was that claim for damages was relatable to the terms of service and was cognizable only by Service Tribunal---Validity---Damages were being claimed by appellant on the' ground-that because of acts of respondents, appellant was forced to resort to litigation and he had also sought compensation for the delay---Appellant, in circumstances, could not be treated as a civil servant under S.2-A of Service Tribunals Act, 1973 as his terms and conditions were not determined by Federal legislation---Appeal was allowed and impugned order and decree was set aside, with the result that suit filed by appellant would be deemed to be pending before civil court, which would be decided in accordance with law.
Muhammad Mubeen-us-Salim and others v. Federation of Pakistan PLD 2006 SC 602; Federal Ministry of Railways and others v. Zafarullah Khan 1988 PLC (C.S.) 602 and Zafar Ali Qureshi v. Muhammad Ali PLD 2002 SC 723 rel.
Muhammad Akram Jived for Appellants.
Zafar Iqbal Chaudhary for Respondent.
Date of hearing: 12th June, 2007.
JUDGMENT
MAULVI ANWARUL HAQ, J.---On 27-10-2005, the petitioner filed a suit against the respondents. According to the plaint the petitioner was appointed Godown Keeper in the Batik of Bahawalpur at Kasur on 21-11-1972. While he was so serving the said Bank was .merged with National Bank of Pakistan. His services accordingly stood transferred to the National Bank w.e.f. 1-7-1974. He had been serving in various branches. He completed 25 years of service on 20-12-1997. Full emoluments due to him were not paid and this was done as his service in the Bank of Bhawalpur from 21-11-1972 to 20-6-1974 was not included. He had to resort to litigation in this Court, Federal Service Tribunal and in Honorable Supreme Court of Pakistan. It was in the light of decisions so rendered that fie was paid his remaining emoluments. Attributing mala fide to the respondents he claimed damages on various counts. Written statement was filed with main objection that the jurisdiction of Civil Court is barred under Article 212 of the Constitution. A separate application under Order VII, Rule 11 was also filed, which was replied by the appellant. Vide order and .decree dated 4-5-2006 the plaint was rejected. This appeal was filed in this Court on 7-6-2006. It came up before the Court on 18-12-2006, when it was admitted and notice was issued.
2. The learned counsel for appellant contends that the plaint has been misread by the learned trial Court and upon a plain reading the claim as such had not nexus with the terms and .condition of service of appellant. According to the learned counsel the appellant was deemed to be civil servant under section 2-A of the Service Tribunals Act, 1973, in view of judgment of Honorable Supreme Court of Pakistan in case Muhammad Mubeen-us-Salam and others v. Federation of Pakistan (PLD 2006 Supreme Court 602), the said provision of law has been declared ultra vires.
3. The learned counsel for respondents, on the other hand, relies on the case of Federal Ministry of Railways and others v. Zafarullah Khan (1988 PLC (C.S.) 602) to urge that the claim for damages is relatable to the terms of service and is cognizable only by the Federal Service Tribunal. He, however, admits that the appellant is deemed to be civil servant by virtue of said section 2-A of the Service Tribunals Act, 1973. He has not much to say as to said second ,contention of the learned counsel for appellant except that at the, time when the plaint was rejected the said provision of law was in force.
4. We have gone through the record. Gist of the plaint has already been narrated above. Upon a plain reading the damages are being .claimed on the ground that because of acts of the respondents/ officers the appellant was forced to resort to the litigation and he has also sought compensation for the delay. To the extent of this latter claim the judgment cited by the learned counsel for respondent does support him. On the other hand, the learned counsel for appellant refers to the case of Zafar Ali Qureshi v. Muhammad Ali (PLD 2002 Supreme Court 723) where the Honorable apex Court has expressed appreciation for the efforts of a Government Servant to sue the concerned Officer for damages, who had delayed the payment of his salary bills. Re-appreciation of the matter is not required in view of the said judgment of Mubeen-us-Salim and others. Admittedly, terms and conditions of the appellant are not determined by the Federal Legislative and as such according to the said judgment he could not be treated as a civil servant under section 2-A of the Service Tribunals Act, 1973. The R.F.A. is accordingly allowed. The impugned order and decree is set aside. Result would be .that the suit filed by the appellant shall be deemed to be pending before the learned Senior Civil Judge, Kasur. The parties shall appear in the said Court on 19-7-2007. Record shall be remitted to the said learned Judge by the office along with the copy of this judgment, who shall proceed further and decide the suit in accordance with law. No order as to costs.
H.B.T./R-31/L Appeal allowed.