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Petitioner: SUI SOUTHERN GAS CO. LTD. VS Respondent: SARDAR ALI CHOHAN
1998 P L C (C
1998 P L C (C.S.) 346
[Karachi High Court]
Before Saiyed Saeed Ashhad, J
Messrs SUI SOUTHERN GAS CO. LTD.
Versus
SARDAR ALI CHOHAN
Revision Application No. 19 of 1995, decided on 5th June, 1997.
(a) Civil service---
---- Employees of statutory corporations---Termination of service---Rules framed by such corporations---Status of such rules---Statutory corporations do not have status of Government Department or Organisation, therefore, employees thereof do not possess Constitutional and statutory guarantees and safeguards available to civil servants---Rules of service framed by such corporations themselves do not have status of statutory rules and breach of such rules would not give right to employee to maintain action for re instatement.
M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83; Alavi Sons Limited v. The Government of East Pakistar and others PLD 1968 Kar 222; Sarfaraz Khan v. Federation of Pakistan 1986 SCMR 1950; Mst Sakina and 3 others v. The Excise and Taxation Officer 1989 CLC 964; Karachi Shipyard and Engineering Works Ltd. and 5 others v. Muhammad Shaker Shaikh 1993 CLC 330; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Messrs Standard Hotels (Pvt.) Ltd. v. Messrs Rio Centre and others 1994 CLC 2413; Choudhry Zahoor Elahi v The State PLD 1977 SC 273; Mst. Amina Begum and others v. Mehar Ghulam Dastagir PLD 1978 SC 220; Muhammad Yaqoob v. Muhammad Ishaque 1980 CLC 2056; Mst. Salma Abbasi and another v. Ahmed Suleman and two others 1981 CLC 462; Haji Muhammad Shafee v. Mst. Rani and 2 others 1981 CLC 1728; Muhammad Farooque v. The Province of Punjab PLD 1993 Lah. 56; Government of N.-W.F.P. through Land Commission/District Collector, Karak and 2 others v. Ali Bas Khan alias Ali Baz Khan and others 1996 SCMR 1427; Secretary to Government of N.-W.F.P. and another v. Muhammad Nawaz, Sub-Engineer PLD 1996 SC 837; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531 and Anwar Hussain v. Agricultural Development Bank of Pakistan 1992 SCMR 1112 ref.
(b) Specific Relief Act (I of 1877)---
----Ss. 42, 21 & 56---Suit for declaration and injunction by employee of statutory corporation to the effect that his date of birth was wrongly entered in record of corporation and that such corporation be restrained from retiring him on basis of age entered in their record---Validity---Rules governing terms and conditions of service of employees of statutory corporation having been framed by the corporation itself, they were not statutory rules, therefore, they would not entitle him to file declaratory suit for re instatement in service---Employee's prayer that his suit for declaration and injunction should be treated as suit for damages was also not tenable-- Employee having filed suit for declaration before his services were terminated or he was retired by statutory corporation and till that time no breach or violation of terms of service contract having been committed by such corporation, he could not have filed suit for damages for breach of terms of contract of service, which right would have accrued to him only if he was dismissed or retired illegally in breach of service contract-- Employee, thus, at the time of filing suit for declaration had no cause of action to file suit for damages for wrongful or illegal termination or retirement and could not claim relief for damages as it was not available to him in that suit, therefore, suit for declaration could not be treated as suit for damages.
Karachi Shipyard and Engineering Works Ltd. and 5 others v. Muhammad Shakir Shaikh 1993 CLC 330 and Mst. Salina Abbasi and another v. Ahmed Suleman and 2 others 1981 CLC 462 ref.
(c) Administration of justice---
----Formalities and technicalities of law and procedural requirements should not be allowed to defeat ends of justice for prime object of all formalities would be to safeguard interest of justice and if they were to create impediment in the true dispensation of justice, then they could be brushed aside provided that they should not lead to unsettlement and uncertainty of law.
Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Messrs Nishat Mills Ltd. v. Superintendent of Central Excise Circle II and 3 others PLD 1989 SC 222 and Mir Mazar v. Azim PLD 1993 SC 332 rel.
Iftikhar Hussain Khan v. Ghulam Nabi Corporation Ltd. PLD 1971 SC 550; Messrs Standard Hotels (Private) Ltd v. Messrs Rio Centre and others 1994 CLC 2413; Zamindara Corporation Society Ltd. v. National Bank of Pakistan and others 1982 CLC 1276 and Delhi and London Bank Ltd. v. A Oldham ILR 21 Cal. 60 (PC) ref.
(d) Civil Procedure Code (V of 1908)---
----S. 115---Specific Relief Act (I of 1877), S 42---Revision against order of First Appellate Court---Competency---Respondent's plea that revision had not been filed by competent and authorised person, could not be sustained-- Revision had been filed by Principal Officer of the Corporation who had defended his establishment in lower Forums also i.e. Trial Court and First Appellate Court, therefore, revision was competent and maintainable.
(e) Civil Procedure Code (V of 1908)---
----O. VII & R. 11---Specific Relief Act (I of 1877), Ss 42, 21 & 56-- Rejection of plaint---Suit for declaration was not competent under Ss. 42, 21 & 56, Specific Relief Act, 1877---Trial Court having rightly rejected plaint, restoration of plaint by First Appellate Court was not warranted and such order was struck down as incompetent and invalid---Trial Court's order rejecting plaint was restored in circumstances.
Muhammad Jamil for Applicant.
Choudhry Rasheed Ahmed for Respondent.
JUDGMENT
This civil revision application has been filed against the judgment dated 12-1-1995 of the Vth Additional District and Sessions Judge, (South), Karachi, in C.A. No. 153 of 1994 whereby the order of the trial Court rejecting the plaint under Order 7, Rule 11, C.P.C., was set aside and the trial Court was directed to proceed with the matter in accordance with law. By the same judgment the first trial Court had ordered maintenance of status quo between the parties till disposal of injunction application by the lower Court. Feeling aggrieved and dissatisfied with the said judgment the applicants/defendants have preferred the above civil revision application.
The brief facts as disclosed in this revision application by the respondent/plaintiff are that the plaintiff/respondent joined the service of the applicant's company on 15-7-1959 as a fitter and then was promoted to the position of officer in 1968 and continues to be in the service of the applicant's company. It has further been stated that the applicant's company was nationalised in 1972 alongwith two other companies and was merged into one company under the name and style of M/s. Sui Southern Gas Co. Ltd. and the respondent was the President of M/s. Sui Southern Gas Officers Association. The respondent further stated that at the time of joining the service, he had disclosed his date of birth as 30-12-1939 in his application as well as in the nomination form but he subsequently learnt that his date of birth had been mentioned in application as well as in the service record as 30-12-1939 whereupon he informed the applicant that his date of birth was 1939 and not 1933 and also brought to the notice of the applicants several documents issued with the permission or knowledge of the applicants bearing his date of birth as 30-12-1939 and requested for correction of date of birth vide application/representation dated 4-1-1992 but the defendant did not response to the above representation of the respondent and, subsequently vide their letter dated 14-11-1994 informed the respondent that he would retire on 31-12-1994 instead of 31-12-1993 and submitted that respondent were bent upon to retire him from the service because of his activities and the role played by him for the welfare of the officers and refused to rectify/correct his date of birth from 30-12-1933 to 30-12-1939. Having been left with no other alternative, the respondent filed a suit in the Court of VIII the Senior Civil Judge, Karachi South for declaration and permanent injunction with the following prayers:--
(i) hold and declare that date of birth of the plaintiff is 30-12-1939 and not 30-12-1934 and that he will retire on 30-12-1999, on attaining the age of superannuation which is 60 years;
(ii) Grant permanent injunction against the defendants its officers, agents, servants and any person acting for them and on their behalf from retiring the plaintiff on 30-12-1994 or any date thereafter till he attained the age of superannuation i.e. 30-12-1999.
(iii) Any other relief which this Hon'ble Court may deem fit.
(iv) Cost of the suit."
The respondent also filed an application under Order 39, Rules 1 and 2 read with section 151, C.P.C. praying temporary injunction suspending the operation of the letter dated 14-11-1994 till the disposal of the suit. This application was duly supported by the affidavit of the respondent and the facts contained therein were controverted by way of counter-affidavit filed by Sardar Ikramullah, Deputy General Manager (Corporate and Legal Affairs) of the applicant's company. It was further stated on behalf of the applicants in the above coutner-affidavit that the respondent in his application for appointment as fitter dated 8-5-1959 had mentioned his age as 25 years according to which his birth year would be 1934. It was further averred that vide letter dated 20-7-1993, the applicants had required the respondent to submit documentary proof of his date of birth as in their record only the year of birth of the respondent was mentioned as 1934 without any date and month, but the respondent did not respond to the said letter and neither produced any proof of this date of birth nor denied the year 1934 to be his birth year. On behalf of the applicant's company an application under Order 7, Rule 11, C.P.C. was filed duly supported by the affidavit of the above said Sardar Ikramullah praying that the plaint filed by the respondent be rejected as he was not entitled to the reliefs prayed for by him in his suit, and further that the plaint did not disclose any cause of action in favour of the respondent against the applicant's company.
The trial court by its order dated 21-12-1994 disposed of both the applications whereby the respondent's application under Order 39, Rules 1 and 2, C.P.C. was dismissed as the trial Court observed that the respondent did not succeed in making out a strong prima facie case in his favour which was a necessary condition for grant of temporary injunction in his favour, while the applicant's application under Order 7, Rule 11, C.P.C. Was allowed as it was observed by the trial Court that the suit filed by the respondent was hit by sections 21, 42 and 56 of the Specific Relief Act as the declaration sought was not in respect of his legal character/status as contemplated by section 42 of the Specific Relief Act and further that the respondent had not prayed for cancellation of the letter dated 14-11-1994 whereby he was conveyed the date of his retirement as 30-12-1994. The respondent feeling aggrieved and dissatisfied with the above order of the trial court preferred a civil appeal which was decided by the Vth Additional District and Sessions Judge, Karachi (South), vide his impugned order dated 12-1-1995 whereby the order of rejection of the plaintiff was set aside and status-quo order was passed on the application under Order 39, Rules 1 and 2 read with section 151, C.P.C. till the disposal of the said application by the trial Court on merits. The impugned order passed by the trial Court did not satisfy the applicants and hence the above Revision Application has been filed by them.
On 4-4-1997 arguments of Mr. Muhammad Jamil, learned counsel for the applicant and Mr. Chaudhry Rasheed Ahmed, learned counsel for the respondent were heard. Material on record has been perused and the case law relied upon by the learned counsel for the parties in support of their respective arguments has also been examined.
Mr. Muhammad Jamil, learned Advocate for the applicant vehemently objected to the maintainability of the applicant's suit and submitted that in view of the fact and the circumstances a suit of the above nature was barred by the provisions of sections 21, 42 and 56 of the Specific Relief Act as well as the authoritative pronouncements of the Hon'ble Supreme Court as well as of the various High Courts of Pakistan. Elaborating his arguments, he submitted that under section 42 of the Specific Relief Act, a person is entitled to seek a declaration in respect of his legal character/status or in respect of any right as to or in the property when such right has been denied or threatened to be denied by a person and further that from the facts disclosed in- the plaint as well as in the affidavit/counter -affidavit/affidavit-in-rejoinder filed by the respondents it is established beyond any doubt that the issue of any right as to or in the property is not the subject matter of the suit and that the respondent had filed the suit for seeking a declaration in respect of his legal character and the question to be decided is to what that legal character was and whether the respondents could file a declaratory suit under section 42 of the Specific Relief Act for obtaining a declaration-in respect thereof. It was further contended by him that from the perusal of the facts mentioned in the plaint, applications and affidavits filed by the respondent, it was clearly spelt out that effectually the respondent had sought a declaration that he continued to be in the service of the applicant's company and would continue to be in their service till he attained the age of 60 years and further that the applicant's company may be directed to modify/rectify his date of birth from 1934, as claimed by the applicant's company, to 1939, which would be the correct and true date of birth of the respondent. He further submitted that the declaration sought by the respondent was nothing but that the respondent continued to be in the employment/service of the applicant's company as per terms of the contract entered in to between the applicant's company and the respondent and that he would continue to be in service in terms of the above service contract till he attained the age of 60 years to be calculated in accordance with his correct date of birth, which according to him was 1939. Mr. Muhammad Jamil, learned Advocate for the applicant further submitted that a declaration in respect to any right arising out of contracts or agreements is beyond the domain and scope of section 42 of the Specific Relief Act which is confined to declarations to the legal character/status enjoyed or vesting in a person which has been conferred by law on the person seeking declaration and was not the outcome of contractual obligations and submitted that the suit was liable to be dismissed as it was beyond the scope of section 42 of the Specific Relief Act. It was further submitted by him that the suit was not only barred by section 42 of the Specific Relief Act, but also by section of the Specific Relief Act which bars specific performance of Contract of Service and further that the suit for enforcement of the terms of a contract of service, the grant of injunction was specifically barred by sections 54 and f the Specific Relief Act and the 1st Appellate Court committed errors in setting aside the order of rejection of plaint as well as in granting injunction in favour of the respondent and the impugned order was contrary to and in disregard of the statutory provisions and was liable to be set aside. In support of his above contentions he placed reliance of the cases of:
(1) M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83.
(2) Alavi Sons Limited v. The Government of East Pakistan and others, PLD 1986 Kar 222;
(3) Sarfaraz Khan v. Federation of Pakistan 1986 SCMR 1950;
(4) Mst. Sakina and 3 others v. The Excise and Taxation Officer 1989 CLC 964;
(5) Karachi Shipyard and Engineering Works Ltd. and 5 others v. Muhammad Shakir Shaikh 1993 CLC 330 ;
(6) Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232;
(7) M/s. Standard Hotels (Pvt.) Ltd. v. M/s. Rio Centre and others 1994 CLC 2413.
Mr. Chaudhry Rasheed, the learned counsel for the respondent, submitted that the respondent was employee of a Government controlled Organisation which has been carrying on business under the instructions and supervision of the Federal Government, the Chief Executive of the said applicants' company is appointed and removed by the Federal Government also holds majority of shares of the applicants' company and as such it is to be treated at part with a Government Department and the employees of the applicants' company acquire the status of Government Servants entitled to the constitutional and statutory guarantees and safeguards available to the civil servants. He further submitted that the terms and conditions of the employees of the applicants' company would be regulated and governed by the rules framed by the applicants' company which are statutory rules and as such the employment of the respondent would not be governed by the principle of master and servant and he is possessed of legal character and would be entitled to seek a declaration that he continued to be in the service of the applicants' company and the suit filed by him both competent and maintainable. In support of his above contentions he placed reliance on the cases of: --
(1) Choudhry Zahoor Elahi v. The State PLD 1977 SC 273;
(2) Mst. Amina Begum and others v. Mehar Ghulam Dastagir PLD 1978 SC 220;
(3) Muhammad Yaqoob v. Muhammad Ishaque 1980 CLC 2056;
(4) Mst. Salina Abbasi and another v. Ahmed Suleman and two others 1981 CLC 462;
(5) Haji Muhammad Shafee v. Mst. Rani and 2 others 1981 CLC 1728;
(6) Muhammad Farooque v. The Province of Punjab PLD 1993 Lah. 56;
(7) Government of N. -W.F.P. through Land Commission/District Collector, Karak and 2 others v. Ali Bas Khan alias Ali Baz Khan and others 1996 SCMR 1427;
(8) Secretary to Government of N.-W.F.P. and another v. Muhammad Nawaz, Sub-Engineer PLD -1996 SC .837 - and
(9) Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232.
After careful and minute/examination and consideration of the respective arguments advanced by the above learned counsel and the case law relied upon by them, I find that the arguments advanced by Mr. Ch. Rasheed to the above effect do not carry any weight. Irrespective of the facts that the Federal Government holds the bulk of the shares of applicants's company appoints and removes its Chief Executive, issues instructions and guidelines for its working and generally regulates and controls its affairs, the applicants' company can neither be treated at par with a Government Department nor its employees acquire the status of civil servants or become entitled to the guarantees and safeguards provided by the constitution or statutes to the civil servants. The rules governing the terms and conditions of service of the employees of applicants' company have been framed by the company itself and they are not statutory rules as neither they have been framed by a foreign superior body or authority nor have been notified so as to acquire the status of statutory rules to confer a legal character on its employees, which would entitle them to file a declaratory suit for reinstatement in service. The case-law relied upon by him does not support his contentions of either that the applicants' company is to be treated at par with a Government Department and its employees as Government Servants entitled to constitutional and statutory guarantees and safeguards available to civil servants or that the rules framed by the applicants' company are statutory rules of service so as to confer upon the respondent a legal character to enable him to seek a declaration for reinstatement in service in case of illegal or wrongful termination or dismissal. There is a long list of cases decided by our Supreme Court wherein the observations made and the principles declared are to the effect that the various statutory corporations including the applicants' company do not have the status of a Government Department or Organisation, that the employees of such corporations do not possess the constitutional and statutory guarantees and safeguards available to civil servants and the rules of service framed by such corporations themselves do not have the status of statutory rules and breach of such rules does not give a right to an employee to maintain an action for reinstatement.
It will be of great advantage in deciding the above controversy to refer to a few of such important cases. The first case is that of Raziuddin v. Chairman, Pakistan International Airlines Corporation and two others (PLD 1992 SC 531) wherein their Lordships of the Supreme Court after examining the cases of various statutory corporations in Pakistan declared that the employees of statutory corporations did not acquire the status of Government servants and that the safeguards and guarantees given by the constitution to the civil servants were not available to them. The next case is that of Anwar Hussain v. Agricultural Development Bank of Pakistan (1992 SCMR 1112) wherein the Honourable Supreme Court expressed the view that in the absence of guarantees or statutory rules an employee of A.D.B.P. could not maintain a suit for reinstatement in service. In the next case of Anisa Rehman v. Pakistan International Airlines Corp. the Supreme Court reiterated its above view and declared that an employee of P.I.A.C. could not invoke the Constitutional jurisdiction for breach or violation of rules of service framed by M/s. P.I.A.C. as they did not have force of statutory rules. The relationship of the applicants company and the respondent is analogous to that of M/s. P.I.A.C. and its employees and of M/s. P.N.S.C. and its employees as well as various other statutory corporations and their employees wherein the rules of service are not statutory rules and, therefore, the above suit for declarations that the respondent would continue to be in the service of the applicants' company is clearly not maintainable. It will also be useful to refer to the case of Karachi Shipyard and Engineering Works Ltd. v. Muhammad Shakir Shaikh (1993 CLC 330) wherein suit filed by respondent Shakir Shaikh for declaration and permanent injunction against K.S. & E.W. Ltd. on the basis of breach of contract of service was dismissed as being barred by sections 21 and 42 of the Specific Relief Act.
Mr. Ch. Rasheed further submitted that assuming for the sake of argument that the above suit for declaration and injunction was not found to be maintainable then the same could be treated as a suit for damages for breach of the terms of service contract between the above parties by virtue of which the respondent would not retire before attaining the age of sixty years to be calculated in accordance with his date of birth, as disclosed by him at the time of his entry into service, which was 1939 and not 1934 as claimed by the applicant. According to Mr. Ch. Rasheed wrong frame of the suit would not preclude the Court from granting a relief, which on the facts and circumstances of the case would be available to a party and a relief not specifically prayed for in plaint could be granted. In support his above proposition he placed reliance on the judgment in the case of Mst. Salina Abbasi and another v. Ahmed Suleman and 2 others (1981 CLC 462). The contention raised by Mr. Ch. Rasheed is devoid force it view of the facts of this case and the principle declared in the aforesaid case is not applicable to the facts of this case. The respondent had filed the above suit for declaration before his service was terminated or .he was retired by the applicant's company and till that time no breach or violation of the terms of service contract of the respondent had been committed by the applicant's company. Therefore, at the time he filed the above suit, he could not have filed a suit for damages for breach of terms of the contract of service which right would have accrued only if he was dismissed or retired illegally in breach of service contract. Thus, the respondent at the time of filing of the above suit had no cause of action to file a suit for damages for wrongful and illegal termination or retirement and could not claim the relief for damages as it was not available to him in the above suit and, hence, the same could not be treated as a suit for damages.
Mr. Choudhry Rashid, the learned Advocate for the respondent, then objected to the competency and maintainability of the above…
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