1. ' ARSHAD NOOR KHAN, J.---By this order, .I intend to dispose of C.M.A. 5408 of 2009 filed by the plaintiff under Order XXXIX, Rules 1 and 2, C.P.C., seeking therein directions against the defendants to detail/schedule him of utilization and training and also for ground and simulator training so that his ATPL (instrument rating) and PI current rating for Jumbo 747 does not expire and remains valid.
2. ' The facts leading to filing of the present application in brief are that the plaintiff was employed as pilot with the defendants in the year, 1967 and during the course of his employment he gained sufficient experience and was qualified to have 747 Jumbo command. The plaintiff ultimately attained the age of superannuation and was retired from the service and was re-employed by the defendants on contract basis from 15-8-2008 till 30-6-2009, vide employment agreement annexure "A" to the plaint. After re-employment, the plaintiff was performing his duties as pilot and his miseries started from January, 2009, when he suffered from illness and remained on sick leave for a long period and on A 13-4-2009, he was advised by the defendants, vide their letter, dated 10- 4-2009 to appear before the medical board for his medical examination. The plaintiff appeared before the medical board who after his examination noted that he was diabetic patient and was kept under operational multicrew limitation, vide medical certificate, dated 13-4-2009. It is further pleaded by the plaintiff that after issuance of fitness certificate, the defendants are not scheduling him for operational flights and he is in need of three take off flights to enable him to continue his certificate issued by the CAA and by the act of defendants, they are malafidely depriving him by not allotting the operational flights so that his licence may expire. The plaintiff wrote a letter to the defendants to allow him requisite flights for training and utilization purposes but the defendants did not listen him, therefore, the PIA Pilot Association, vide their letter, dated May 15, 2009 also asked the defendants to detail him for his ground and simulator training so that his ATPL (instrument relating) does not expire but the defendant did not assign him any schedule flights for mala fide purposes so that ATPL may expire. Hence, he filed the present suit seeking therein directions against the defendants to schedule him for training and utilization and that his agreement may be extended/renewed for fresh employment. Along with the suit the present application seeking therein the directions in the nature of writ of mandamus has also been sought.
3. ' The notice of the suit as well as the present application has been served on the defendants who have filed their counter-affidavit to the present application stating therein that he was retired from service on 14-8-2008 and he was re-hired by way of agreement, dated 15-8-2008, which is effective till 30-6-2009. It is further stated in the counter-affidavit that the plaintiff as per record almost remained on sick leave, therefore, he was referred for medical examination and medical board after examination has issued certificate, dated 13-4-2009 whereby he has been placed in operational multicrew limitation category and has been advised periodical check-up after six months. The plaintiff has filed affidavit in rejoinder against the counter-affidavit filed by the defendant, inter alia, denying and refuting the allegations levelled against him in the counter- affidavits.
4. ' I have, therefore, heard Mr. Salman Hamid, Advocate for the plaintiff and Mr. Khalid Javed, Advocate for the defendant.
5. ' Mr. Sulman Hamid, learned counsel for the plaintiff, vehemently contended that the plaintiff being senior most and experienced hand pilot of Boeing 747 Jumbo, is medically declared fit by medical board vide certificate, dated 13-4-2009 and in spite of the fitness of the plaintiff, the defendants are not scheduling him of the flights and in case he is not assigned the requisite landing and take off, his licence (APTL) will expire and in this way, the plaintiff will suffer heavy monetary loss. He has further contended that non derailment of the plaintiff for utilization and training and for ground and simulator training by the defendants, is mala fide attempt and act on their part to deprive the plaintiff from his legitimate right and that as per terms and conditions of the employment agreement, dated 15-8-2008, the defendants cannot refuse to assign the operational flights to the plaintiff as such by their act and deeds, the defendants have violated the terms and conditions of the agreement, dated 15-8-2008. According to learned counsel, the plaintiff has, therefore, good prima facie case in his favour and, in case, if the directions are not given to the defendants to detail him for the operational flights, the plaintiff will suffer irreparably. In support of his contention he has relied upon the cases of Kashif Anwar v. Agha Khan University (2006 CLC 1621), Malik Siddiq Ahmad and 11 others v. Wapda through Chairman (1991 MLD 1044), A.M. Fabric (Pvt.) Ltd. v. I.D.B.P.
6. And others 2003 CLC 1321 Muhammad Naseeruddin v. Mst. Hashmat Bibi (PLD 1993 Karachi 300), and Syed Waqar Hussain v. Messrs National Refinery Ltd. (1993 CLC 2397).
7. ' Mr. Khalid Javed, learned counsel for defendant, while refuting the arguments advanced by the learned counsel for the plaintiff, has vehemently contended that the plaintiff is suffering from severe ailments and the nature of job of the plaintiff does not demand that the lives of abut 400 passengers of Boeing 747 may be put to risk because of the ailment of the plaintiff and that as per their record, the plaintiff availed sick leave from January, 2009, till 12-4-2009, which fact itself shows that he has rendered himself disqualified for the employment as pilot and the medical certificate issued by the Medical Board, dated 13-4-2009 does not speak about complete fitness of the plaintiff for the job in question as such the defendants cannot play with the lives of the passengers by granting him schedule flights. According to learned counsel, no violation of any terms of conditions of the agreement has been made by defendants so as to provide a ground to the plaintiff to approach to this Court and that the said agreement though is an employment agreement could not be specifically enforced in view of section 21(a) and (b) of the Contract Act.
8. According to learned counsel, the plaintiff has, therefore, no good prima facie case in his favour nor balance of convenience lies with him nor, he will suffer irreparable loss, if application is dismissed.
9. In support of his contention he has relied upon the case of Messrs Malik and Haq and another v.
10. Muhammad Shamsul Islam Chowdhruy (PLD 1961 SC 531), Haji Abdul Karim v. Builders Incorporated and others (1993 MLD 269), Messrs Arrow Trading Company v. Hyosung Corporation (1997 MLD 55), Messrs Qasimabad Enterprises v. Province of Sindh (1998 CLC 441) and Royal Foreign Currency v.
11. The Civil Aviation Authority (1998 CLC 374).
12. ' I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
13. ' The plaintiff admittedly was retired from his service on 14-8-2008, and after his retirement his services were re-hired by the defendants by way of employment agreement, dated 15-8-2008. The terms and conditions of the service of the plaintiff are therefore governed through the terms and conditions of the employment agreement and the plaintiff cannot claim any thing in excess to the terms and conditions of the employment agreement. In employment agreement there is no condition binding the defendants for training of the plaintiff and also for ground and simulator training so as to keep the ATPL of the plaintiff alive. In absence of such condition in the employment agreement, the plaintiff cannot plead for enforcement of such conditions which is not available in the agreement. The defendants have alleged that the plaintiff remained on sick leave from January, 2009 to 12th April, 2009 and in para.8 of the counter affidavit the defendants have stated that the plaintiff remained on sick leave for 29 days in the month of January, 2009, 27 days in the month of February, 2009, 31 days in the month of March, 2009 and 12 days in the month of April, 2009. In para.9, the defendants have further stated that the due to prolong sickness of the plaintiff, he was taken off from flight duties and he was referred for medical examination to the Medical Board, vide letter, dated 10-4-2009 and Medical Board after examining him issued medical certificate on 13-4-2009 whereby he has been placed on operational multicrew limitations category has been advised to periodical checkup after six months. The details of sick leave availed by the plaintiff has not been specifically controverted in his rejoinder. In para.8 of his rejoinder, he has nowhere disputed about the details of sick leave availed by him. The plaintiff in para.8 of the plaint has also categorically admitted that in the month of January, 2009 because of his sickness he was not given the roster for flying and ultimately on 10-4-2009, he was called for medical examination and was, therefore, examined by the Medical Board who issued medical certificate, dated 13-4-2009, which is valid upto to 31-10-2009. The plaintiff has also based his cause of action in para.8 on account of his sickness due to which he was not given any roster for flying. The sickness or ailment of the plaintiff is, therefore, not a disputed fact, which has been admitted by the plaintiff in his plaint itself. The fact remains that since January, 2009, till April, 2009, the plaintiff was admittedly suffering from his ailment and was availing sick leave which was granted to him by the defendants, which fact itself shows that certain diseases have been developed in him after his retirement. The plaintiff admittedly was also examined by the Medical Board who after his examination have noted that he was a diabetic (blood sugar) and he was kept under operational multicrew limitations.
14. ' The medical certificate annexure "D" is completely silent to show that he was medically declared fit for flying purposes by the medical board of CAA. The medical certificate produced by the plaintiff, vide annexure "D", therefore, affirms the stand taken by the defendant that because of his ailment, the plaintiff is not in a position to continue the flights.
15. ' Admittedly, the defendants have not terminated the service of the plaintiff on account of his medical disease and they have continued him to be in service and have assigned administrative duties, vide personal crew schedule, annexure "G" filed by the plaintiff. The ailment/sickness of the plaintiff duly confirmed by the Medical Board, therefore, disentitled him for operational flights. He has, therefore, not made out any case for issuance of any writ thereby directing the defendants to assign him the requisite flights to keep his APTL alive. The case-law relied upon by learned counsel for the plaintiff, in my humble opinion, are distinguishable from the circumstances of the present case and are inapplicable. The .Case of Messrs Malik and Haq v. Muhammad Shamsul Islam Chowdhury relied upon by the learned counsel for the defendant to some extent support his contention wherein the Honourable Supreme Court has been pleased to observe that 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. In the present case, the case of the defendants is on better footing for the reason that the defendants have not violated any terms and conditions of the employment agreement and in spite of that the plaintiff in his suit has also claimed damages against the defendants.
16. ' After appraisal of whole material available on record as well as the case-law relied upon by the learned counsel for the parties, I am of the opinion that the direction regarding assigning of the flights to the plaintiff cannot be issued to the defendants to detail him on the flight of Jumbo 747.
17. The listed application was dismissed in the morning after hearing the learned counsel for the parties for the reasons to be recorded later on and these are the reasons for the same.