Ali Baqar Najafi, J.--This appeal under Section 96, C.P.C. is directed against the judgment and decree dated 19.12.2011 passed by the learned Civil Judge 1st Class, Lahore, whereby Civil Suit No. 629/1 /2010 filed by the appellant for declaration with consequential relief and recovery of damages was dismissed with costs.
2. Brief facts giving rise to the filing of this appeal are that the appellant worked as Senior Instructor (Plumber) BPS-16 under the administrative control of Respondent No. 1(d)/ Director Manpower & Training, Punjab and Respondent No. 1(b)/Industries and Mineral Development as well as Respondent No. 1(c)/Chairman, Technical Education and Vocational Training Authority, (TEVTA). In the month of September, 1988 due to illness of his father he went on long leave w.e.f. 26.09.1988, upon which Respondent No. 2/Afzal Ahmad, Joint Director (Technical Training) Directorate of Manpower & Training, Punjab became personal who passed order dated 25.02.1990 imposing major penalty of removing from service. The appellant made departmental representation and also preferred Appeal No. 787 of 1995 before the Punjab Service Tribunal where the said order of removal from service was set aside and the case was remanded for holding a de-novo inquiry. The appellant was reinstated by the respondents and was directed to join as Senior Instructor (Plumber), Technical Training Centre, Mianwali where he reported in compliance of order.
3. On 18.11.1997 he was again issued a charge sheet and the statement of allegation akin to the previous one. An inquiry was conducted by the Director, Manpower & Training, Punjab and others against the appellant and as a consequence whereof the appellant was imposed major penalty of removal from service with effect from 03.05.1990 by treating the period of absence from 26.09.1988 to 03.05.1990 as extraordinary leave without pay vide order dated 09.07.1998. The said order was challenged before the Punjab Service Tribunal through Appeal No. 1444 of 1999 which was partly accepted. The order treating the period of absence from 26.09.1988 to 03.05.1990 as extraordinary leave without pay was upheld whereas removal' from service was ordered to take effect from 09.07.1998 instead of 03.05.1990. The appellant has frankly admitted that he did not challenge the said order before the apex Court because of insufficient funds; and, the fear that he would be further penalized for exposing the mala fide of the respondents. Due to his illegal removal from service the appellant allegedly sustained mental torture, financial difficulties, health hazards, humiliation, etc. therefore, according to him the damages amounting to Rs. 2,800,000/- were to be awarded besides payment of salary from 04.05.1990 to 09.07.1998. Notice under Section 80 of CPC was served upon the respondents but after when he got no response from the respondents, the civil suit for declaration, consequential relief with damages was instituted.
4. The suit was resisted by filing written statement. The respondents in the written statement pleaded preliminary objection of limitation; and, bar of jurisdiction etc. The allegations of the plaint were also traversed.
5. On pleadings following issues were framed:- Issues:
1. Whether the act/omission 'of the defendants in avoiding to pay the salary in the BPS-16 for the period 04.05.1990 to 09.07.1998 are illegal, unlawful and tantamount to denial of the legal character of the plaintiff? OPP
2. Whether the tortoise act of the defendants against the plaintiff, entitled the plaintiff to decree for damages to the tune of Rs. 28,00,000/-? OPP
3. Whether the plaint is about the terms and conditions of Civil Service, hence the jurisdiction of this Court is barred? OPD Whether the plaintiff is entitled to the decree as prayed for? OPP
5. Relief.
Vide order dated 09.03.2010 following issues were re-framed:
1. Whether the act/omission of the defendants in avoiding to pay the salary in the BPS-16 for the period 04.05.1990 to 09.07.1998 are illegal, unlawful and tantamount to denial of the legal character of the plaintiff? OPP
2. Whether the tortoise act of the defendants against the plaintiff, entitled the plaintiff to decree for damages to the tune of Rs. 28,00,000/-? OPP
3. Whether the plaint is about the terms and conditions of Civil Service, hence the jurisdiction of this Court is barred? OPD
4. Whether the suit has been filed with males fide intention just to harass and blackmail the answering defendant? OPD
5. Whether the plaintiff has no cause of action to file the suit? OPD
6. Whether the plaintiff is entitled to the decree as prayed for? OPP .
7. Relief.
On 15.04.2010, following additional issues were settled: 6-AWhether the plaintiff was dismissed from the service due to misconduct and willful absent from duty? OPD 6-BWhether the Defendant No. 2 was having delegate authority and acted upon the direction of the Government in accordance with law and relevant rules? OPD 6-CWhether the instant matter is hopelessly time barred? OPD 6-D Whether the order of the Punjab Service Tribunal attained finality and what would be the affect of the same? OPD.
6. The appellant appeared as PW-1 and produced order of Punjab Service Tribunal, Exh.P.1, order of Secretary Labour and Manpower, Exh.P.2, order dated 9th July, 1998 of Director, Manpower of Training Punjab, Exh.P.3 and judgment of Punjab Service Tribunal, Exh.P.4 and notice under Section 80 of C.P.C. as Exh.P.5. On the other hand, Afzal Ahmad appeared as DW-1, Rana Muhammad Ilyas, DW-2, Masood Anwar, DW-3, Muhammad Suleman, DW-4 and Shabbir Ahmad, DW-5.
7. On consideration of the matter the suit was dismissed by the learned trial Court vide judgment and decree dated 19.12.2011 primarily on the ground that under Rule 7.3 Chapter VII of the Civil Service Rules (Punjab) it was only the appellate authority who could grant the salary and since no such order was passed, therefore, the appellant was not entitled to any benefit. Hence this appeal.
8. Mr. Awais Ahmad, Advocate/learned counsel for the appellant contends that the order of the Punjab Service Tribunal dated 16.01.2001 passed in Appeal No. 1444 of 1999 clearly permits the extraordinary leave without pay only for the period from 26.09.1988 to 03.05.1990 and not for subsequent period i.e. 04.05.1990 to 09.07.1998 for which he is also entitled to draw the salary as he remained on duty, further contends that the prayer in the suit for declaration was neither regarding terms and conditions of service nor he had emphasized on their enforcement but demanded his right determined by the Punjab Service Tribunal for the reason that it was not vested with powers to execute its decision. Adds that Rule 7.3 Chapter VII of the Civil Service Rules (Punjab) referred to in the judgment is not applicable to the appellant. Also contends that tortuous acts of the Government functionaries are amenable to the jurisdiction of the civil Court in the suit for the recovery of damages. Lastly, submits that the appellant has faced extreme hardship and difficulties besides mental torture at the hands of the respondents/Government functionaries who withheld his salary, therefore, prays for setting aside of the impugned judgment and decree. Places reliance on Federal Ministry of Railways and others vs. Zafarullah Khan [1988 PLC (C.S.) 602], Mian Ansar Hayat vs. Punjab Mineral Development Corporation through Managing Director and 4 others [2001 YLR 2670], Dr. Surraya Javed vs. Director General, Health Services and another [20C3 SCMR 141], Abdul Majeed Khan vs. Tawseen Abdul Haleem and others [PLD 2012 Supreme Court 80] and Nazir Ahmad vs. Islamic Republic Of Pakistan [KLR 1992 Civil Cases 56].
9. Conversely, Mr. Naveed Saeed Khan, learned Addl. Advocate General assisted by Raja Tasawar Iqbal, Advocate/learned counsel for Respondent No. 2 contends that the appellant has already drawn salary/benefit for the period he remained in service and continued to work but he cannot draw any salary for the period during which he remained absent and did not work. Adds that the Punjab Service Tribunal has not specifically permitted the appellant to claim such salary/benefit, therefore, the same could not be allowed. Adds that the prayer made in the suit was relating to the terms and conditions of service which was not proceedable under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Also adds that under Rule 7.3 Chapter VII of the Civil Service Rules (Punjab) such claim cannot be granted, therefore, appeal be dismissed.
10. Arguments heard. Record perused.
11. Our findings on Issue No. 1 are as under: The appellant while appearing as PW-1 reiterated the contents of the plaint. Afzal Ahmad/ DW-1, had also referred the documented facts to the extent that after reinstatement in service a fresh inquiry was conducted, where after the appellant was removed from service vide order dated 09.07.1998 (Exh.P.3) against which appeal i.e. Appeal No. 1444 of 1999 was filed before the Punjab Service Tribunal where the departmental order was upheld. Here, it would be expedient to reproduce operative Para of the judgment dated 16.01.2001 of the Punjab Service Tribunal (Exh.P.4).
"As a sequel of the above, the appeal is partly accepted in the following terms:-- i) the impugned orders treating the period of absence from 26.09.198 to 03.05.1990 as extra ordinary leave without pay is upheld but ii) the order of removal from service would take effect only from the date it was passed i.e.09.07.1998."
12. The Punjab Service Tribunal in its judgment (Exh.P-4) observed that the departmental authority rightly held the appellant to be guilty of willful absence from duty. However, the effect of order dated 09.07.1998 could not be extended retrospectively. The appellant could not point out from the record that he attended the office i.e. 26.09.1988 to 03.05.1990 for which period he could claim salary. This period, therefore, was rightly treated as extraordinary leave withcut pay. Order of the Punjab Service Tribunal did not say a word about the recovery of arrears of salary from 04.05.1990 to 09.07.1998.
The cases for payment of allowances etc. on reinstatement are dealt with under Rule 7.3 Chapter VII of Civil Service Rules (Punjab) which' is reproduced below:- 7.3. When a Government servant who has been dismissed or removed from service, is reinstated, the revising or appellate authority may grant to him for the period of his absence from duty:-
(a) "If he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed or removed and by an order to be separately recorded and allowances of which he was in receipt prior to his dismissal or removal" or
(b) "If other, such proportion of such pay and allowances as the revising or appellate authority may prescribe."
In a case failing under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under Clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so directs."
13. A perusal of clause (b) reveals that the revising or appellate authority may prescribe proportionate payment of such salary and allowances. The order of the Punjab Service Tribunal dated 16.01.2001 (Exh.P.4) treats this period from 26.09.1988 to 03.05.1990 as extra ordinary leave without pay, therefore, it cannot be considered as period spent on duty for the purpose of salary.
Admittedly, the appellant had not worked in that period though he claimed that he remained available to perform duty. To cater the situation guidance can be sought from Syed Niaz Hussain Shah Bukhari, Technician (Process) vs. Oil And Gas Development Corporation Limited through Chairman; OGDC Head Office, Islamabad [2003 SCMR 228], the relevant para is reproduced below: "We have considered the arguments of the learned counsel for the parties and have carefully examined the record, which shows that the period for which recovery of refund of the salary was effected from the petitioner was the period for which he did not work. By now, it is settled law that when there is no work there is no pay. The petitioner did not perform his duties as mentioned hereinabove and recovery was rightly effected from him ...."
The findings on Issue No. 1 is therefore, upheld.
14.The appellant was not reinstated in service as he was held guilty of absence from duty; therefore, he would not be entitled for damages. In a suit for recovery of damages the cause of damages are to be specifically spelled out. Certainly if mala fide act has resulted into suffering of Government servant in the form of dismissal from service he is entitled to the damages. The citation Abdul Majeed Khan vs. Tawseen Abdul Haleem and others [PLD 2012 Supreme Court 80] and Nazir Ahmad vs Islamic Republic of Pakistan [KLR 1992 Civil Cases 56], relied upon by the appellant's counsel, are not relevant in the facts and circumstances of this case as in those cases Government servant was reinstated in service, therefore, he was held entitled to receive damages on account of mala fide act for his compulsory retirement. In the instant case he was not reinstated in service by the Punjab Service Tribunal, therefore, the finding on Issue No. 2 by trial Court is also upheld.
15.The findings returned by the learned trial Court on Issue No. 3 also does not require any interference as the prayer was confined on the basis of judgment of Punjab Service Tribunal but for claiming salary of the period during which the appellant though did not work but claimed to have remained in service the said judgment is silent. The judgment cited by the learned counsel for the appellant as Federal Ministry of Railways and others vs. Zafarullah Khan [1988 PLC (C.S.) 602] is also not attracted to the facts and circumstances of the present case as claim of damages is based upon individual wrongs committed by the Government functionaries but no such observation was given in the order of Punjab Service Tribunal which has already attained finality since none of the parties went to apex Court.
16.Rest of issues i.e. Issues No. 6-(b), 6-(c), 4, 5 & 6 are therefore, ancillary in nature and need no proper adjudication.
17.For the above stated reason, this appeal fails and is hereby dismissed.