The present suit was filed in this Court on 18-12-1970 by the Plaintiff Badr--uddin who died during the pendency of the suit and his legal representatives were brought on record. The two defendants are J. B. Advani & Co. (Pakistan) Ltd. And Pakistan through the Additional Custodian Enemy Property. In the suit the plaintiff made a claim for the recovery of Rs. 59,213 against the defendants.
Plaintiff's case was that he joined defen--dant No. 1's company is 1948 as a salesman and in due course was appointed Manager with effect from 1-10-1960 and a contract of service was signed on 22-11-1960 (Exh. 5/1) which was for 5 years and then the contract was renewed for another 5 years by the letter dated 23-4-1965 of defendant No. 1 (Exh. 5/2). According to para. 3 of the plaint, as a result of the hostilities between Pakistan and India, defendant No. 1 was taken over in September, 1965 by defendant No. 2 as enemy property. The plaintiff then alleged that he was required to produce his service contracts (Exh. 5/1 and Exh. 5/2) before the Deputy Custodian, Enemy Property and after his service contracts were approved, he was allowed to continue in service of defendant No. 1 on same terms and conditions. Plaintiff's services were, however, terminated with immediate effect through letter dated 18-12-1967 of the Government (Exh. 5/3) and he handed over charge to the accountant of defendant No 1 on 21-12-1947 (Exh. 5/4). Plaintiff alleged that the termination of his services was illegal. His claim of Rs. 59,213 is split up under eight heads as is manifest from para. 8 of the plaint which is reproduced here :- "By his wrongful dismissal the plaintiff claims the following amounts :-- Rs.
(i) Salary for 3 -- months i. e. From 18-12-1967 up to 31-3-1968 for the agreed notice period 7,747
(ii) Increment not received from 1-10-1966 up to 31-3-1968 1,350 (i.e) Amount of provident fund 2,026
(iv) Leave due but not availed up to 31-3-1968 for 5 -- months (cash compensation for unutilised leave based on salary of Rs. 2,075 per month 11,412
(v) Amount sanctioned by the Directors of the Defendant No. 1 for travelling expenses in connection with leave to be availed in January, 1966 7,000
(vi) Bonus for the year 1965-66 based on previous payments of 4 months' salary 8,400
(vii) Car maintenance allowance for the period January, February and March, 1968 at Rs. 250 per month750
(viii) Gratuity on the basis of 1 month's salary for every one yearRs. of completed service for the first 12 years of service at Rs. 400 per month and for the remaining 8 years of service at Rs. 2,000 per month 20,000 Total,59,213
2. Defendant No. 2 filed a written statement but defendant No. 1 was not represented in the sense that no appearance was made or written state--ment filed on their behalf. This was to be expected as defendant No. 1 had been taken over by defendant No. 2 who were defending the suit. The fol-- lowing consent issues were adopted by the Court :-
(1) Whether the suit is not barred by the Enemy Property (Conti--nuance of Emergency Provisions)
Order, 1959, and M. L. R. No. 70 (dated 30-9-1970) ?
(2) Whether the suit is not barred by Limitation ?
(3) Whether the plaintiff is entitled to any benefit under the letter dated 23-4-1965 ?
(4) Whether the defendant No. 2 is bound to allow the plaintiff to continue in service at all on any specific terms and conditions ?
(5) Whether the termination of the plaintiff's service under letter dated 18-12-1967 is illegal or wrongful ?
(6) Relief, if any, to which the plaintiff is entitled ?
3. On behalf of the plaintiff's only one witness gave evidence on 11-1-1982 and he was P. W. 1, Arif Badar (Exh. 3) son of the deceased plaintiff. After the evidence of P. W. 1 learned counsel for the plaintiff closed their side on 11-1-1982 and the suit was then adjourned for today Syed Inayat Ali, standing counsel for the Government of Pakistan, made a statement today that defendant No. 2 did not want to lead any evidence. In the circumstances their side was also closed. 1 have heard the arguments of Mr. Amanullah Khan, learned counsel for the plaintiff and Syed Inayat Ali, learned counsel for defendant No. 2.
4. On issue No. 1, no provision of any law was pointed out by Syed Inayat Ali to show that the suit was barred or not maintainable. I accordingly hold that the present suit was not barred by any law.
5. I now take up issues Nos. 3, 4 and 5 together which relate to ille--gality or otherwise of the termination of plaintiff's services on 18-12-1967 through Exh. 5/3 and whether the plaintiff could take the benefit of Exh, 5/2 as against defendant No. 2. Genuineness of Exh. 5,11 and 5/2, the service con- -tracts have not been challenged. There can, therefore, be no doubt on the point that the defendant No. 1 was bound by the service contracts. Now, defendant No. 2 took over the management of defendant No. 1 which became an enemy, defendant No. 2 would remain liable under Exhs. 5/1 and 5/2 unless the legal provisions under which the take-over and vesting took place provided that defendant No. 2 would not be liable for the lawful contract entered into by defendant No. 1. There also no provision was referred by Syed Inayat Ali under which defendant No. 2 could take protection. Relevant law is not the Defence of Pakistan Rules, 1965 which Rules were continued by Ordinance I of 1969. Learned Standing Counsel for Government of Pakistan referred to Rule 182 (i) (6) of the 1965 Defence of Pakistan 'Mules but I do not see how it helps the contention of learned counsel that defendant No. 2 was not bound by the service contracts. I may here refer to rule 177 which reads as follows "Contracts with enemy firms.-Where it appears to the Central Govern--ment that a contract entered into, whether before or after the com--mencement of the Ordinance, with a person or body of persons who at the time of such contract was, or subsequent to such contract: became, an enemy as defined is rule 161 or an enemy subject or any enemy firm is injurious to the public interest, or was entered into with a view to evade the provisions of this Part, the Central Government may by order cancel or determine such contract either unconditionally or upon such conditions as it thinks fit."
No order has been produced on behalf of the Central Government that Exh. 5/1 and Exh. 5/2, were injurious to the public interest or were entered into with a view to evade the concerned Rules.
I have, therefore, reached the conclusion that plaintiff's contract with defendant No. 1 continued in force after its take over by defendant No. 2 and termination of plaintiff's service through Exh. 5/3 on 18-12-1967, being violative of Exh. 5/1 read with Exh. 5/2, was unlawful. Issues Nos. 3, 4 and 51 are decided accordingly.
6. Issue No. 6 relating to relief is now taken up and while dealing with the eight separate claims (as per para. 8 of the plaint reproduced above) issue No. 2 regarding limitation will also be dealt with whenever relevant.
(i) Rs. 7,475 has been claimed as notice pay for 3 -- months. Clause 14 of Exh. 5/1 provided that either party could terminate the service contract by giving 3 months' notice and on expiration of such 3 months' notice the contract was to come to an end. Here plaintiff's services were unlawfully terminated with immediate effect. He was entitled to 3 months' notice and as this was not done he became entitled to 3 months' notice pay and @ Rs. 2,000 per month plaintiff's claim for Rs. 6,000 under this head is established.
(ii) Rs. 1,350 has been claimed for increment not received from 1-10-1966 up to 31-3-1968. Under Exh.
5/2, apart from the salary of Rs. 2,000, Plaintiff was entitled to increment of Rs. 75 per month after one year to which he became entitled from 1-10-1966. Admittedly he was paid a salary of Rs. 2,000 per month by defendant No. 2. However, he was entitled to the increment of Rs. 75 per month with effect from 1-10-1966 and claim of Rs. 1,350 in this regard stands proved, (i.e) Claim of Rs. 2,026 on account of provident fund bas been conceded by Mr. Syed Inayat Ali, Advocate. i,TPis, claim is, therefore, allowed.
(iv) Rs. 11,412 has been claimed as cash compensation for 5 -- months leave due but not availed of.
There is no evidence on record to sub--stantiate this claim. It has not been established that leave for 51 months was due and was not availed by the plaintiff. Claim also appears to be time-barred.
This claim is rejected as not proved.
(v) Rs. 7,000 has been claimed as amount sanctioned by directors of the defendant No. I for traveling expenses in connection with leave to be availed in January, 1966. Reliance has been placed on a letter dated 3-9-1968 of the defendant No. 1 Company received from Bombay (Exh. 5/8). Hostilities between India and Pakistan started on 6-9-1965 and it is doubtful whether such a letter could have been received once hostilities bad started. Then this amount, if Exh. 5/8 is to be believed, was sanctioned as travelling expenses for leave to be taken in 1966 to go to London and Europe. Firstly it has not been proved that the plaintiff went to U K. And Europe in 1966. His passport, which could have been produced, was not produced. Then from September, 1965 defendant No. 2 took over management of defendant No. 1 and therefore, if at all the plaintiff was to go out in 1966, he would have taken permission from defendant No. 2. No document has been produced in this regard. This claim is rejected.
(vi) Rs. 8,400 has been claimed as bonus for the year 1965-66 on the basis of previous payments.
Neither previous payments of bonus were proved nor it was even averred that defendant No. 2 made any profit for the year 1965-66. This claim is not proved.
(vii) Rs. 750 has been claimed lea Rs. 250 per month as car maintenance allowance for three months' notice period. This allowance was payable to the plaintiff as per clause 11 of Exh. 5/1.
Plaintiff is entitled to this amount and his claim stands proved in this regard.
(viii) Rs. 20,800 has been claimed as gratuity on the basis of 20 years' service. Mr. Amanullah, learned counsel for the plaintiffs frankly conceded that this claim was not supported by any agreement between the parties. Tie also -could not cite any law in support of this claim. The claim is accordingly rejected.
The total amount to which the plaintiff is entitled comes to Rs. 10,126. His balance claim is not proved.
7. In view of my findings on the issues framed in this suit, I pass a decree in the sum of Rs. 10,126 in favour of the plaintiff against defendant No. 2 only. Plaintiff shall be entitled to proporititionate costs. In case the decretal amount is not deposited or paid on or before 31-5-1981, defendant No. 2 shall also pay interest @ 14 % per annum on the decretal amount from the date of this Judgment till realization.