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Petitioner: GHULAM NABI SHAH VS Respondent: PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Managing Director and 4 others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar Title:GHULAM NABI SHAH vs PAKISTAN INTERNATIONAL AIRLINES CORPORATION
through Managing Director and 4 others Case No.: C.M.As. Nos.3067 and 4376 of 2011 in Suit No,416 of 2011 Date of Judgment:2012-12-07 Reported As: 2013 PLC (C.S.) 768 Result: Applications disposed of Judgment ORDER ' MUHAMMAD ALI MAZHAR, J.--- This common order will dispose of C.M.A. No,3067 of 2011 filed by the plaintiff under Order XXXIX, Rules 1 and 2, C.P.C. And C.M.A. No,4376 of 2011 filed by the defendants under Order XXXIX, Rule 4, C.P.C. 2. The plaintiff has filed this suit for declaration, damages and permanent injunction and prayed as under:--- (a) Declare that the defendants are under legal obligation to implement the decision in terms of the judgment dated 24-2-2011 and decree dated 25-2-2011 passed by the competent court of law and allow the plaintiff to continue in the corporation service on the basis of the correction made in the date of birth as contained in letter/order dated 16-3-2011 issued/passed by the Board of Intermediate and Secondary Education, Hyderabad. (b) Direct the defendants to make necessary correction in the Service Record of the plaintiff maintained in the office of the defendant corporation as 7-4-1954 in place of 7-4-1951 and the date of superannuation may be notified accordingly. (c) Direct the defendants jointly and severally to pay a sum of Rs,225, 00,000 (Two crores and twenty five lacs) as damages for causing mental shock, discomfort and injury. (d) Permanently restrain the defendants, their servants, subordinates, agents, employees and/or anybody else claiming through or under them from giving any effect to the order No,DGM- HR(M)R9/11 dated 19-1-2011 (annexure-D) and allow the plaintiff to continue according to the corrected date of birth as 7-4-1954 in terms of the judgment and decree passed by the court of
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IInd Senior Civil Judge, Hyderabad, and the order dated 16-3-2011 passed by the Board of Intermediate and Secondary Education, Hyderabad. (e) To award any other relief(s) which this Hon'ble court may deem fit looking to the circumstances of the case. (f) Cost of the suit 3. The case of the plaintiff is that he was appointed Trainee Officer in Pakistan International Airlines Corporation (hereinafter referred to as PIAC) in the year 1975 and was being promoted from time to time and finally he reached to the position of Regional Manager North-Sindh in Pay Group-X and posted at PIAC sales office, Hyderabad. It was further averred that the plaintiff obtained primary education from Government Primary School District Badin, where his date of birth was recorded as 7-4-1954, however, due to some accidental error the plaintiff's date of birth was recorded in his matriculation certificate as 7-4-1951. It was further stated that the plaintiff took up this issue with Board of Secondary and Intermediate Education, Hyderabad for necessary correction and also submitted various applications. At the time of appointment of plaintiff in PIAC the authorities recorded the age in view of same matriculation certificate containing the date of birth as 7-4-1951. Since the Board of Secondary and Intermediate Education, Hyderabad failed to correct the date of birth, the plaintiff filed a Suit No,2 of 2011 for declaration and mandatory injunction against the Board of Intermediate and Secondary Education, Hyderabad in the court of Civil Judge, Hyderabad. During the pendency of the suit the plaintiff received a letter from PIAC in which it was mentioned that the plaintiff will attain the superannuation age of 60 years on 6-4-2011 and will be retired from that date. The suit of the plaintiff was decreed on an application moved by the plaintiff under Order XII, Rule 6, C.P.C., thereafter, he forwarded an application to the Managing Director, PIAC on 26-2- 2011 in which it was requested that the office order dated 19-1-2011 intimating the date of retirement be recalled and the plaintiff may be allowed to continue his service till his age of superannuation on the basis of correction required to be bade in the date of birth in view of the judgment and decree passed by Civil Court, Hyderabad. 4. The General, Manager (Human Resource Management) of PIAC filed counter affidavit in which he stated that the plaintiff is estopped to challenge his date of birth when he reached to the age of superannuation. The defendants took up date of birth, which was duly recorded in the plaintiff's own testimonials including the matriculation certificate. The plaintiff wants the implementation and execution of decree passed by civil court in collusion with the officers of Board of Secondary and Intermediate Education, Hyderabad. It was further averred that at no point of time the institution of suit was brought into the knowledge of the defendants nor the defendants were impleaded in this suit, hence, the decree passed by the civil court is not binding upon the defendants. The defendants recorded the date of birth furnished by the plaintiff at the time of initial joining and till reaching the age of retirement neither he objected nor approached the defendants for any correction of his age, but first time he made a request when he secured collusive judgment and decree. The entire service record maintained by PIAC clearly shows the date of birth of the plaintiff is 7-4-1951 and he never challenged until the letter of his retirement was issued to him. The defendants denied the service of letter/notice dated 26-2-201.1, which was allegedly sent by the plaintiff to the defendants along with the judgment and decree of civil court. 5. Mr. Muhammad Nawaz Shaikh, learned counsel for the plaintiff argued that since the wrong date of birth was mentioned in the matriculation certificate, therefore, the plaintiff repeatedly sent letters to the Chairman, Board of Secondary and Intermediate Education, Latifabad, Hyderabad. Despite making requests in at least five letters, written from time to time, the Board of Secondary and Intermediate Education, Hyderabad failed to correct the date of birth, hence no option was left with the plaintiff but to file the suit for declaration and permanent injunction. Learned counsel further argued that since the date of birth was corrected in view of the judgment and decree, hence the
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same is binding on PIAC and they are duty bound to make necessary correction in their employment record. Learned counsel frankly conceded that PIAC was not party in the suit. It was further averred that on the basis of judgment and decree passed by the civil court, the Board of Secondary and Intermediate Education, Hyderabad issued a letter to Headmaster, Government High School Matli, through which the date of birth was corrected and recorded as 7-4-1954. Learned counsel argued that despite submitting application by the plaintiff on 26-2-2011, the defendant failed to correct the date of birth. Learned counsel further argued that after correction, the letter issued by defendants on 19-1-2011 has no legal sanctity. He further argued that due to action of the defendants, the plaintiff has suffered serious mental torture and agony as despite receiving the intimation of the judgment and decree passed by competent court the defendants have failed to withdraw their letter dated 19-1-2011, hence, plaintiff is also entitled for the damages as claimed in the suit. 6. In support of his arguments learned counsel for the plaintiff relied upon the following case-law:-- - (1) 2008 SCMR 255 (Administrative Committee of High Court of Sindh v. Arjun Ram K. Talreja), in which it was held that date of birth recorded in service book of civil servant, change or alternation, not an absolute rule that such entry once made could not be altered or changed. It was further held once an entry of age or date of birth has been made in a service book, no alternation of the entry should afterwards be allowed, unless it is known that the entry was due to want of care on the part of some person other than the individual in question or is an obvious clerical error. Cases in which the correctness of the original entry is questioned on other grounds should be referred to a competent authority. (2) 2010 PLC (C.S.) 78 (Bibi Shahjahan v. Azad Government). In this case it was held that no doubt it was provided in sub-rule (2) of Rule 67 of Azad Jammu and Kashmir Financial Code that declaration of age, made at the time of or for the purpose of entry into the government service would be deemed, absolutely conclusive; as no revision of such a declaration should be allowed to be made at a later stage for any purpose, whatsoever, however, it was nowhere provided in said Rules that the Government was deprived of from making the necessary correction when a genuine claim was brought before it. (3) 2008 SCMR 713 (Muhammad Arshad and another v. Mian Noor Ahmad and others). In this case the Hon'ble Supreme Court held that the date of birth shown in birth certificate and national identity card would have no relevance when date of birth shown in matriculation certificates is different from date of birth shown in birth certification and national identity card. In such case, date of birth shown in matriculation certificate would prevail over date of birth shown in birth certificate and national identity card. (4) 2002 PLC (C.S.) 928 Province of Sindh v. Malik Ghulam Hussain). In this case it was held that retirement from service on the basis of wrong entry of date of birth, the date of birth of civil servant as recorded in his service book was 1-3-1941, and on its basis date of superannuation was 28-2- 2001. Departmental record showed his date of birth as 1-3-1939, thus, he was retired from service on 28-2-1999. Civil servant challenged notification of his retirement and claimed consequential benefits of promotion and revised pay/pension etc. By way of departmental appeal, but the same was dismissed. Service Tribunal accepted the appeal of civil servant, when Assistant Advocate General conceded that civil servant had been wrongly retired due to bona fide mistake and not due to any mala fide intention. (5) 2004 CLC 1029 (Arif Majeed Malik and others v. Board of Governors Karachi, Grammar School). In this case, the grant of relief under section 42 of Specific Relief Act, 1877 and Power of Courts were considered and court held that one reason for the divergence of judicial opinion is that when Specific Relief Act, 1877, was enacted, concept of rights which could be enforced through Courts
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was largely confined to 'status' as understood in feudal social context or rights pertaining to property in laissez- faire economy. With the development of jurisdiction over more than a century, a large number of other rights which did not relate to status of an individual or deal with tangible property came to be recognized by law and some of them were in the form of guaranteed fundamental rights. Right of privacy, to carry on business of one's choice, access to public information and large body of social and cultural rights neither relate to status in the traditional sense nor tangible property. Principle, "whenever there is a right there must be a remedy to enforce it", persuaded courts not to remain bound within the technicalities of section 42 of Specific Relief Act, 1877, for granting relief. (6) 1997 PLC (C.S.) 1122 (Regional Commissioner of Income-Tax, Karachi and 2 others v. Shafi Muhammad Baloch). It was held that dispute relating to entry in service record would not come within definition of terms and conditions of service, therefore, Civil Court being Court of ultimate jurisdiction could entertain such suit. Where Department concerned did not correct entry relating to date of birth and plaintiff had relevant documents to show that his date of birth was wrongly recorded in his service book, Civil Court would have jurisdiction to entertain suit for correction. (7) PLD 2004 Karachi 304 (Mrs. Zuhaida v. CDGK). In this case it was held that for deciding fate of an application for grant of injunction under Order XXXIX, rules, 1 and 2, C.P.C., in addition to examine question of irreparable loss and injury in case of refusal of injunction and balance of convenience, the court has to see only a prima facie case and not a indefeasible case in favour of a party seeking injunction. (8) 2008 CLC 1462 (Islamic Republic of Pakistan v. General Traders and Ammunition Manufacturers Ltd.). It was held that for grant or refusal of injunction/stay application, three ingredients/essentials were to be considered. Plaintiff not necessarily must have a strong, good prima facie case, but an arguable case would be sufficient. (9) 1990 MLD 2232 (The Karachi Catholic Cooperative Housing Society Ltd. v. Mrs. Daphne Mary Mendonca and 6, others). It was held that for grant or refusal of interlocutory injunction it is not necessary for court to find a case for the plaintiff which could entitle it relief at all events; but was quite sufficient if the court found that the case showed that there were substantial questions to be investigated and that the matter had to be preserved in status quo until the question could finally disposed of The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial, but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. (10) PLD 1983 Karachi 387 (Muhammad Matin v. Mrs. Dino Manekji Chinoy and others). It was held in the case that grant of injunction of interlocutory stage of suit, plaintiff only to show that he has prima facie case, that balance of convenience between the parties as well as for avoidance of complications lie in favour of party seeking injunction and that plaintiff would suffer irreparable harm by refusal of injunction. 7. Mr. Khalid Javed, learned counsel for the defendants referred to various documents attached with the counter affidavit. Annexure-D-1 is the synopview/information sheet of the plaintiff in which also the date of birth of the plaintiff is mentioned as 7-4-1951. The annexure D-2 is the matriculation certificate issued on 29-12-1970 by Board of Secondary and Intermediate Education, Hyderabad in which also the same date of birth of plaintiff is mentioned. Learned counsel argued that the plaintiff himself filled a vetting and verification Form of PIAC employees at the time of his joining in which also same date of birth was mentioned and the plaintiff had also signed the Form Annexure- D-5 which was required to be filled by the Trainee Officer in which also his date of birth was 7-4-
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1951. Form P-4 is also part of annexure D-5, which is Interrogation Form of the applicant required for verification of the entries against the items and for necessary correction in the antecedents. In this Form the particulars of the plaintiff are mentioned as an Officer Trainee and column No,6 relates to the date of birth, in which same date of birth, was recorded. Annexure D-6 is appointment advice in which also the same date of birth of the plaintiff is mentioned. After referring these documents the learned counsel for the defendants referred to clause 35.02.08 of Chapter No,35 of Personnel Policies Manual of PIAC (annexure D-3). The said clause pertains to date of birth and in the sub- clause (a) it is provided that the date of birth shown in the matriculation certificate or release certificate received from ex-servicemen, produced at the time of initial joining shall be recorded as the correct and final date of birth. Learned counsel argued that the plaintiff has no locus standi or legal character to invoke the jurisdiction of this court for implementation or execution of decree of civil court. He argued that the plaintiff with mala fide intention avoided impleading the defendant No,1 in the civil suit. The plaintiff on his own, volition and freewill filled all his credentials in various forms at the time of his initial appointment and joining and he throughout of his career, maintained complete silence and on the eve of his retirement, he filed suit in a civil court for the correction of his date of birth, while it was in his knowledge that as per rules the date of birth provided by him at the time of his initial appointment will only be taken into consideration. He further argued that the judgment of civil court in which PIAC was not a party is not a binding judgment. All relevant forms/proformas duly filled and signed by the plaintiff at the time of his employment are demonstrating that his actual date of birth is 7-4-1951. He further argued that annexure-H attached to the plaint was never served upon the defendants and neither it was delivered by hand nor any postal/courier receipt is attached to show that it was ever sent to the defendants. The matriculation certificate issued on 29-12-1970 clearly shows that the actual date of birth of the plaintiff. Learned counsel pointed out the affidavit in rejoinder filed by the plaintiff and argued that in paragraph 7 of the counter affidavit the defendants have clearly mentioned all the documents signed by the plaintiff at the time of his initial employment and also attached various documents, but in paragraph 11 of the rejoinder while replying paragraph 7 of the counter affidavit the plaintiff failed to controvert or deny the documents, but simply replied that there is no rigid and strict rule of law for getting the date of birth changed. 8. In support of his arguments he relied upon the following case-law:--- (1) PLD 1961 Supreme Court 531 (Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhry). It was held in this case that in absence of any statutory provision protecting the servant it is not possible in law to grant to him a decree against an unwilling master that he is still his servant. A servant cannot be forced upon his master. The master is always entitled to say that he is prepared to pay damages for breach of contract of service but will not accept the services of the servant. A contract for personal service as will appear from section 21(b) of the Specific Relief Act, 1877 cannot be specifically enforced. But it is not even necessary to invoke section 21 (b) for such a contract is unenforceable on account of section 21 (a) wherein it is provided that a contract for the non-performance of which compensation in money is adequate relief cannot be specifically enforced. In a case where there is a contract between a master and a servant the master agreeing to pay the salary and the servant agreeing to render personal service it is obvious that money compensation is full relief, for all that the servant was entitled to under the contract was his salary. A breach of contract can give rise to only two reliefs, damages or specific performance. If specific performance be barred the only relief available is damages. When a master, in breach of his contract, refused to employ the servant the only right that survives to the servant is the right to damages and a decree for damages is the only decree that can be granted to him.
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(2) 1994 SCMR 1633 (M.R. Khalid v. Chief Secretary, Punjab and another). It was held that civil servant while taking competitive examination had himself declared his date of birth to be 2-6-1930 and thereafter remained in service for about 35 years. Civil Servant's name together with his declared date of birth appeared in the gradation lists and civil lists periodically published by the Provincial Government but he did not object to the incorrect publication of his date of birth till a few years before his retirement. Mere fact that civil servant was able to obtain a decree from Civil Court for correct of date of birth, did not advance his case for the Government was not a party to that civil suit brought by him. Silence of civil servant over the major portion of his service was such that he did not merit a favourable decision from the Government relating to correction of his date of birth---Service Tribunal's decision against civil servant did not warrant interference. i. To appeal was refused in circumstances. (3) 1998 SCMR 1494 (Syed Iqbal Haider v. Nederation of Pakistan and another). In this case it was held that Government employee under the relevant Rules cannot make any application for change in his date of birth after two years of his joining the service. Authenticity of date of birth recorded in the documents, therefore, cannot be challenged belatedly specially beyond the period of two years. Supreme Court desired that such Rule with regard to correction of age should also be applied to judiciary. (4) SBLR 2009 Sindh 115 (Yasmin Abbasey v. Province of Sindh and others). In this case the learned division bench of this court referred to the judgment of apex court in the case of Qamaruddin v. Pakistan through Secretary, Establishment Divisions, Islamabad and another, reported in 2007 SCMR 66, in which Hon'ble Supreme Court while considering the scope of section, 12-A of Service Tribunal Act, 1973, was pleased to observe that a tendency has developed whereby unwarranted claims, attempting to show error in "date of birth". The view expressed by the Hon'ble Supreme Court, is that the correction in the date of birth of an employee may be considered within two years from the date of his induction in the service and the correction solely on the basis of the affidavit is not permissible and the developing tendency of agitating the incorrect date of birth in service record of government employee must be curbed and discouraged otherwise it will open a Pandora box. (5) 1991 MLD (Lahore) 824 (Government of the Punjab through Secretary, Department of Education, Lahore v. Prof. Mst. Jamida Malik and another). It was held that adjudication of Civil Court on change of birth of plaintiff, such decree being nullity in law was rightly ignored by concerned department, although decree of Civil Court could furnish a piece of evidence for change of date yet same would not be binding---Authorities would have to make their own determination about the date of birth of their employees and would be fully justified to ignore such adjudication by Civil Court. (6) 2010 PLC (C.S.) 943 (Ayub Gul v. Chairman, Board of Intermediate and Secondary Education, Peshawar and another). In this case it was held that claim of plaintiff that his date of birth had been incorrectly mentioned in the record which later on was incorporated in his educational certificate and National Identity Card, which wrong entry was illegal, not binding on him and was liable to be corrected. Alleged wrong entry cropped up when the plaintiff was a student of Primary School which was duly incorporated in various record of the Board of Education as well as the University. On the alleged wrong date of birth, the plaintiff joined service and completed his tenure of service while reaching the age of superannuation, plaintiff was awakened from a deep slumber and filed present suit in order to gain extension in service. During his past long period of service, the plaintiff never objected to the date of birth and under that date of birth duly recorded in the testimonials, he joined service, remained in Public Health Engineering Department, secured promotion and reached the post of Executive Engineer. During the entire service the plaintiff had never intimated that fact to his department nor ever applied for the alleged correction to
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challenge the said date of birth, especially in the circumstances, when he reached the age of superannuation, which could not be corrected. 9. Heard the arguments of the both the learned counsel. It is a matter of record that the plaintiff has filed a suit for declaration that the defendants are under legal obligation to implement the decision of the civil court. He has also prayed that the defendants be directed to correct office record in view of the civil court judgment. Besides claiming permanent injunction, the plaintiff has also claimed damages on account of mental shock, discomfort and injury. What plaintiff is asking is the execution and implementation of the civil court's judgment and decree in which PIAC, or any of the other defendants were not made party. There was no lawful justification to first obtain decree for correction in date of birth without impleading the employer then file a declaratory suit in this court for execution and implementation of the civil court's judgment. Under section 42 of Specific Relief Act, discretion vests in court as to declaration of status or right. Any person…
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