' The Administrator, Thal Development, Lahore has filed this revision against the judgment of the Additional District Judge Lahore, dated 13th June, 1978 by which the appeal filed by the respondent against the judgment and decree of the Civil Judge, Lahore dated 27th April, 1976 dismissing the suit filed by the respondent was upset.
2. Briefly stated the facts of the case are that the respondent filed a suit for a declaration that the order of the petitioner dated 7th July, 1965 terminating his services as a Draftsman was illegal, void and inoperative. The respondent was employed by the Thal Development Authority constituted under the Thal Development Act, 1949 as a Tracer.
' On 7th February, 1954 his services were confirmed in this capacity. On 15th June, 1954, the respondent was promoted as a Draftsman and was confirmed on 16th December, 1964 as against this post. According to the respondent he had fallen ill and could not attend office from 24th September, 1964 when on 7th July, 1965, by virtue of notice Exh. P. 1 issued under rule 5 (ii) of the Service Rules, 1949, framed under section 50 (1) (iii) of the Thal Development Act, 1949, his services were terminated by giving three months' notice. The suit was resisted by the petitioner. In the written statement tiled on 7th November, 1970, a number of preliminary objections were taken in the first place. The territorial jurisdiction of the Civil Courts at Lahore to entertain the suit was also disputed. An objection was also taken that the suit was not maintainable in the present form. On merits issue No, 3 was framed to the effect whether the impugned order was illegal and void and inoperative for the reasons given in the plaint. The learned trial Court on issue No, 1 held that the mere delivery of notice at Lahore would not give the Civil Courts at Lahore jurisdiction to entertain the suit. Issue No, 2 relating to the maintainability of the suit in the present form which was of course a crucial issue had not been pressed by the petitioner. The learned trial Court decided issue No, 3 against the respondent and in favour of the petitioner. It was also held that there was no documentary proof of the fact that the respondent was drawing a salary of more than Rs, 300 p.m.
And as such the Chairman was the competent authority to pass the orders and to terminate the services. Oral testimony of the respondent that his last pay drawn was not believed. Rule 5 (ii) was constituted giving powers to the authority to terminate the services by giving an employee notice of the termination of service. The delay in tiling of the suit inasmuch as the suit was filed on 8th June, 1970 when the notice of termination of services was issued on 7th July, 1965 was also held to be laches on the part of the respondent disentitling him for a discretionary relief under section 42 of the Specific Relief Act. The respondent having felt aggrieved against the judgment and decree dismissing the suit filed an appeal which was accepted by the learned Additional District Judge, Lahore vise is judgment dated 13th June 1978. The learned Additional District Judge relying upon an admission of the petitioner in paragraph I of the written statement by which para. 1 of the plaint wherein it was specifically pleaded that the Thal Development Authority has been dissolved and that the Administrator, Thal Development Authority was functioning at 39, Lower Mall, Lahore had been admitted. The power of attorney on which the Administrator had signed by giving his address of Lahore was also held to be sufficient to confer the jurisdiction on the Civil Courts at Lahore to try the suit. Under issue No, 3, the learned Additional District Judge held that the finding of the learned trial Court was based on the misinterpretation of rule 5 (ii) of the said Service Rules and held that it could only be applicable if a member of the service was first called upon to resign. The question of laches as to the suit having been filed on 8th June, 1970 when the order of termination had been passed on 7th July, 1965 was not at all adverted to by the learned Additional District Judge.
3. The learned counsel for the petitioner has argued that the interpretation placed by the learned Additional District Judge on rule 5 (ii) of the Service Rules is wholly erroneous.
4. In order to examine whether the interpretation placed by the learned lower appellate Court was correct, it would be necessary to quote rule 5 of the Service Rules in extensor : "5 (i)-A member of the services shall not leave or discontinue his service under the authority, without first giving to the Chairman one calendar months' notice in writing of his intention so to do, if he is receiving a salary of less than Rs, 330 permensem and 3 calendar months' notice ; if he is receiving a salary of Rs, 300 per mensem, or more and in case of breach by him of this clause, or if the period of notice falls short of the period punished for the case, he shall be liable to pay to the Authority as compensation a sum equal to his salary for the period, of the notice punished for the case or for the period by which the notice falls short, as the case may be : ' Provided that the payment of such compensation may be waived by the Chairman at his discretion.
(ii) In the event of a member of the service being called upon to resign the service after the expiry of his period of probation it shall be incumbent on the Authority to give him notice or pay compensation in the same way as member of the service has to give or pay under clause (I) of this rule in the event of his barring or discontinuing the service : ' Provided that nothing in the rule affects the right of the Authority or of the Chairman to dismiss any member of the service for misconduct without notice or salary in lieu of notice in the manner hereinafter provided in these Rules."
' This rule has been interpreted in a judgment of this Court reported as Siddiq Ahmad and others v.
Chairman, Wert Pakistan Agricultural Development Corporation and others (1). The facts of this case were that by an order of the Chairman, Thal Development Authority in pursuance to the orders issued by the Government of West Pakistan Colonies Department, five persons were suspended with immediate effect on 27th September, 1966 and subsequently in November, 1966 their services were terminated under rule 5 (ii) of the Thal Development Authority Service Rules, 1949. The orders of suspension have been challenged in the High Court. Their services were terminated during the pendency of the writ petitions and, therefore, the writ petitions were amended. The action had been taken against these five persons on account of an inquiry made at the Workshop at Leiah and serious defalcations were found. It was under these circumstances that they had been suspended and the Chairman. The Development Authority was directed to charge- sheet them. The writ petitions were accepted on the ground that the petitioners had been threatened with charge-sheet and therefore, the powers under rules 5 (ii) of the Service Rules could not he invoked. It was observed in this authority as follows : "Under section-50 (1) (iii) of the Thal Development Act, 1949 vide Notification No, 310-Th, dated the 7th of February, 1953, Thal Development Authority Services Rules were framed by the Government.
The petitioners were threatened with a charge-sheet. According to rule 10 (ii) of the said Rules, no member of the service could be subjected to the penalty, such as withholding of increments or promotion, reduction to lower post, recovery from {{FOOT NOTE}}
(I) PLD 1968 Lah. 685 {{FOOT NOTE}} ' pay of the whole or part of any pecuniary loss caused to Authority by negligence, suspension, removal from the service of the Authority, and dismissal from the service of the Authority, except by formulating charge or charges in writing and given to the said member of the service allowing him reasonable opportunity to answer them in writing or in person, as he prefers, and no order reducing, dismissing or otherwise dispensing with the service of a member whose monthly salary is three hundred rupees or more shall take effect without its being confirmed by the Authority. The Authority did not comply with this rule although serious allegations were made against the petitioners but decided to take action under rule 5 (ii) of the Rules in terminating their services.
' The Authority decided to pay compensation to the petitioners for the period which fell short of the period prescribed in this rule. In the first place, the authority did not comply with the provisions of Rule discussed above although the petitioners were suspended with serious allegations against them and were threatened with charge-sheet. According to the learned counsel for the petitioners this leaves a blot on the career of the petitioners, and they will be handicapped in getting any employment. Secondly, the action taken under rule 5 (ii) could not be taken by the Authority against the petitioners because the rule envisages such an action where a member of the service is called upon to resign from service after the expiry of the period of probation. As all the petitioners were permanent servants of the Authority, and there is nothing on the record to show that they were called upon to resign from service, the action regarding the termination of the services of the petitioners could not be taken under this rule. We enquired from the learned counsel appearing on behalf of the Thal Development Authority whether the petitioners were ever called upon to resign, but he expressed his inability to show us such communication by the Authority with the petitioners.
We are, therefore, left with no other option but to hold that the suspension as well as the subsequent termination of services of the petitioners was not according to law. The order suspending the petitioners was nothing else but the compliance of the orders of the Chairman, Agricultural Development Corporation and by no stretch of imagination it can be considered to be an independent act of the Thal Development Authority under the Act. Similarly, the termination of the services of the petitioners by the said Authority is obviously an act without lawful authority."
As a Division Bench of this Court has already interpreted rule 5 (ii) and held to be applicable where a member of the service is called A upon to resign from service after the expiry of the period of probation and not otherwise. I have no other option than to hold that the order of the termination of the service was not in conformity with the aforesaid rule.
5. As regards the exercise of territorial jurisdiction, it may be pointed out that as there was an admission on the part of the petitioner in paragraph I of the plaint that after the dissolution of the Authority by virtue of the Amending Act, 1978, the Administrator was functioning at Lahore, therefore, the suit could be filed at Lahore. As regards the maintainability of the suit, since the petitioner had not pressed the same before the trial Court, therefore, that cannot be urged at this stage.
6. In spite of the fact that the learned counsel for the petitioner has not raised the question of laches a ground which had prevailed with the learned trial Court, the learned counsel for the respondent has argued that a delay simplicity in filing a suit could not be allowed to operate as a bar to the claim of the relief until it can be shown that the plaintiff in the suit had actively done something to lead the defendant to suppose that he has abandoned the claim. Reliance in this connection has been placed on a judgment of the Supreme Court reported as Habibullah Khan and others v. Qazi Muhammad Ishaq and others (1). The limitation to file a suit in the present case was governed under Article 120 of the Schedule to the Limitation Act as held by their Lordships of the Supreme Court in the case reported as F. A. Khan v. The Government of Pakistan (2) being 6 years from the date of the cause of action and the suit had been filed after a long delay of the dismissal of the appeal but the suit was held to be within time. No other point was urged. In view of the above discussion this revision has no force and is hereby dismissed. However, in the circumstances of the case there will be no order as to costs. {{FOOT NOTE}}
(1) PLD 1966 SC 505 (2) PLD 1964 SC 524 {{FOOT NOTE}}