ARSHAD HUSSAIN KHAN, J.---This suit was initially filed on 23.02.1999 against the defendant for Recovery of Money and Damages with the following prayers:- a) Damages in the sum of Rs,10 million for the emotional anguish and distress caused by the refusal to honor the commitment towards the compensation package and the mental agony, emotional stress and hurt caused by the allegations of fraud, misrepresentation and cheating. b) Decree in the sum of Rs,23,42,748.00 at the rate of two gross salaries for eight years of the Plaintiff's service with the Defendant with interest/mark-up at the rate of 22% from 30.10.98 till the date of decree and further interest/mark-up at the same rate from date of decree till its realization. c) Pension calculated according to defendant's policy, which existed at the time of the Plaintiff's resignation. d) Costs of the proceedings from the Defendant. e) Any other, further or better relief that this Hon'ble Court deems fit and proper in the circumstances.
However subsequently, upon application (C.M.A. No,10673/99) of the plaintiff, this Court on 18.12.2000, granted permission to the plaintiff to file amended plaint whereas the defendant was also granted permission to file amended written statement. In pursuance of the said order the parties filed their amended pleadings. The plaintiff though filed amended the plaint however, the prayer clauses in the amended plaint have remained the same.
2. Brief facts as averred in the plaint are that the plaintiff was employed with the defendant, which is an established pharmaceutical company, for eight years as Director Medical and Scientific Information from 1990 to 1998 and he served the defendant with dedication and adhered to the highest standards of profession service until his departure from the defendant in October, 1998.
After the change in the defendant's senior management, and without even meeting the formality of consulting him, the plaintiff was arbitrarily removed from the Executive Committee of the defendant. This unwarranted and unprofessional treatment shocked the plaintiff, which caused him severe agony and distress. In the circumstance, he met with Mr. Shahid Qureshi, Director Human Resources and Corporate Affairs and Syed Riaz Ahmed, Commercial Director of the defendant to resolve this predicament, and these officials suggested the plaintiff that he could be officially declared redundant, if Dr. Irum Afaq rejoins the Medical and Regulatory Affairs Department of the defendant. It was explicitly represented to the plaintiff that he would be entitled to a compensation package of two gross salaries for the, number of years he has worked for the defendant if he would act on such a proposal. During meeting with Mr. Qureshi and Mr. Ahmed, the plaintiff candidly discussed that in such circumstances he was considering to either emigrate to U.S. or start practicing as a general medical practitioner or consider alternate employment opportunities. The plaintiff was also told that since he is over 45 years of age, he will also be paid his pension which will be calculated according to the policy which existed at the time of his resignation. The plaintiff conceded to the proposal made by Mr. Qureshi and Mr. Ahmed on behalf of the defendant and plaintiff approached Dr. Irum Afaq and convinced her to rejoin the defendant.
At the plaintiffs initiative said Dr. Irum Afaq rejoined the defendant with effect from 02.10.1998.
Accordingly, on 26.10.1998, the plaintiff tendered his resignation vide letter of the same date which was dictated to him by Mr. Qureshi, which letter clearly refers to the compensation to be given to the plaintiff with reference to the meeting which took place between the plaintiff, Mr. Qureshi Mr. Ahmed. The plaintiff's resignation was accepted vide acceptance letter dated 28.10.1998 issued by Mr. Qureshi, however, in the acceptance letter plaintiff's agreed compensation package was not mentioned. To satisfy the plaintiff's concern, Mr. Qureshi showed him the original resignation letter dated 26.10.1998 containing the approval of the compensation package by Mr. Alan Eldridge, Chairman and Managing Director of the defendant. The plaintiff was to receive the agreed compensation on 30.10.1998 but instead he was shocked to learn from Mr. Qureshi on 03.11.1998 of the defendant's intention to renege on its legal obligations to pay the agreed compensation package to the plaintiff. The payment of agreed compensation package to the plaintiff was refused on the flimsy ground that he had started a new job after resigning the defendant, such excuse was, not only an afterthought but entirely untenable. Thereafter, plaintiff made repeated efforts for the recovery of the outstanding compensation package through letters dated 11.11.1998, 12.11.1998 and 16.11.1998 but despite all such efforts the defendant failed/refused to pay agreed compensation package to the plaintiff. Consequently, the plaintiff through his advocate addressed legal notice dated 31.12.1998 to the defendant claiming his full compensation package amounting to Rs,23,42,748.00 etc. In their reply dated 14.01.1999 to the plaintiff's legal notice, the defendant denied the assertions of the plaintiff made in his legal notice and also specially denied that the defendant had ever agreed to pay the plaintiff any compensation package but admitted that an ex-gratis hardship allowance was being recommended for the plaintiff on the ground that he was emigrating to USA. But the same was denied when it was discovered that the plaintiff was instead entering into employment with another pharmaceutical company. It is also averred that the resignation letter dated 26.10.1998 clearly referred to a compensation package and requested a waiver of notice period. The defendant's Chairman and Managing Director approved the payment of two gross salaries per year worked on 27.10.1998, however, in order to renege from the obligation, the defendant through Mr. Qureshi has made interpolation in the note on the letter and altered the same so that the agreed compensation package could be denied. The defendant without any lawful cause continued to refuse the rightful claim of the plaintiff and leveled reckless allegation of fraud misrepresentation. Such conduct of the defendant has deeply hurt the plaintiff and has caused him mental-anguish and financial strain.
3. Upon service of the notice of present case, the defendant filed its written statement wherein while denying allegations leveled in the plaint of the instant suit, it has been stated that until October, 1998 the plaintiff was happily employed by the defendant when the plaintiff received the offer from Bristol-Myers Squibb (BMS) a competing multinational pharmaceutical company. It is also averred that the reporting lines of the plaintiff were changed and or that plaintiff was removed from the Executive Committee was on account of normal corporate reorganization only and nothing else. The rehiring of Dr. ham Afaq was undertaken exclusively at the initiative of the plaintiff who wanted to ensure that as and when he decides to leave the employment of the defendant, his resignation would be immediately accepted. None of the officers of the defendant company had any input in the language or content of the letter of resignation. It has been denied in the written statement that any ex-gratia or any other payment was recommended by Mr. Qureshi for payment to the plaintiff. The Director Human Resources and Corporate Affairs (Mr. Qureshi) did not recommend payment of any amount to the plaintiff due to the fraudulent representation made by him that he was migrating to USA for personal reasons and would face severe financial hardship as a consequence thereof. Although the defendant learnt the true facts from the current employers of the plaintiff but, to-date, the defendant has not divulged to 'BMS' the manner in which the plaintiff had sought to defraud and cheat the defendant. In the written statement it has been specifically denied that the acceptance of resignation as well as approval of the alleged compensation package to the plaintiff was ever shown to the plaintiff by Mr. Qureshi. It has also been denied that any interpolation, as alleged, was committed by the defendant. It has further been stated that having extracted all legal benefits due to it from the defendant, the plaintiff remains unsatisfied and is ought to seek further illegal monetary benefits from the defendant after having voluntarily resigned. Furthermore, no further amounts are due from the defendant to the plaintiff as all his legal dues have been fully settled and paid and the defendant is not liable to pay any amount towards pension and or damages. The suit being frivolous is liable to be dismissed.
4. On pleadings, the followings consent issues were settled/adopted by the Court:
1. Whether the plaintiff suffered severe mental agony and distress due to any act of the Defendant?
2. Whether the plaintiff's contention about migration to USA was true and, if not, whether the same was advanced to make a financial gain?
3. Whether the plaintiff is entitled to receive from the defendant two gross salaries for each year worked or any other amount in addition to the amount already paid to him on his resignation from service?
3-A. Whether the defendant through Mr. Shahid Qureshi has made any interpolation in the hand written note on resignation letter dated 26.10.1988, and if so, its effect?
4. What should the decree be?
5. The plaintiff in support of his case examined himself Dr. M. Raza Zaidi as P.W-1 [Exhibt-1], whereas the defendant in support of its case has examined Syed Riaz Ahmed as D.W-1 [Exhibt-12] and Mr. Shahid Mustafa Qureshi as DW-2 [Exhibt-13].
6. The plaintiffs in his examination-in-chief produced the following documents:
1. Affidavit in evidence of the plaintiff as Exh.2
2. Letter dated 28.10.1998 addressed to plaintiff as Exh.3
3. Letter dated 13.11.1998 addressed to plaintiff as Exh.4
4. Legal Notice dated 31.12.1998 as Exh.5
5. Reply legal notice dated 14.1.1999 as Exh.6
6. Resignation letter dated 26.10.1998 as Exh.7
7. Letter dated 11.11.1998 addressed to defendant as Exh.8 The plaintiff was subsequently cross-examined by the counsel of the defendant. For the sake of ready reference, the cross-examination of the plaintiff is reproduced as under:-- "I joined the service of predecessor of Defendant as Manager (Medical Scientific information) in December 1990. The office which I joined on my appointment was designated as "Medical Advisor".
When I joined the predecessor of the Defendant, I was drawing basic salary of Rs,9,500/- per month. I see copy of offer letter made to me by M/s. Wellcome Pakistan Limited (Predecessor of the defendant) on 9th December 1990 on which I endorsed my acceptance. I produce the same as Exhibit 9. It is correct that my service continued after creation of the defendant. After creation of the defendant I was not promoted to the Executive Committee but I remained the Director of the Defendant. Voluntarily says that I became the Director of the Wellcome Pakistan Limited in 1993. It is incorrect to suggest that my salary was increased or I was promoted in a higher grade. The increase in my salary was routine matter. It is correct that in my contract of employment there is no term under which I was entitled to claim additional compensation on my tendering resignation.
It is correct that the terms of the employment were never renegotiated during my stay with the defendant. Voluntarily says that just before my resignation negotiation took place in which I was assured that if I resign I will be paid an additional compensation package. Negotiations were entered into by me with the Director (Human Resources) of the defendant Mr. Shahid Qureshi. I was given oral assurance by the said Director Mr. Shahid Qureshi that on my tendering resignation I will be paid additional compensation package by the defendant. Except in my resignation which I have tendered to the defendant the additional compensation package is not reflected in any other document produced by me in these proceedings. It is correct that the allegations which I have levelled in para-2 of Exhibit 2 were not communicated by me in writing to the Company. However, I have verbally raised all these complaints which are incorporated in para-2 of my affidavit in evidence to the Director Mr. Shahid Qureshi. It is incorrect to suggest that I have not verbally complained to the Director (Human Resources). I know Syed Riaz Ahmed who is the Commercial Director of the defendant precisely since November 1995. I have good terms with the Director Syed Riaz Ahmed. Mr. Shahid Qureshi the Director (Human Resources) is also known to me since the merger of the defendant. Voluntarily says that both these gentlemen were not Directors at that time when the defendant came into existence but they were just General Managers. I had good terms with Mr. Shahid Qureshi as well. The meetings which I have referred to in para-6 of Exhibit 2 took place in August 1998. These were not the joint meeting with Mr. Shahid Qureshi and Mr. Riaz Ahmed. I was having meetings with them separately. It is incorrect to suggest that I resigned under duress. Voluntarily says that I resigned on the understanding that if I resigned I will be given additional compensation packages. I am presently employed with BRISTOL MYERS SQUIBB (BMS) which is a pharmaceutical company. I am drawing Rs,175,000/- salary per month with a Car and with a Driver's Salary of Rs,3,500/-. Once in 5 years I am also entitled to one Refrigerator and one Air Conditioner. I am also provided full medical cover through insurance company. I joined BMS on 2.11.1998. It is correct that I applied in BMS for a job during my employment with the defendant. It is correct that I was interviewed by the BMS during my job with the defendant. I see Exhibit 9 and say that an employee cannot negotiate with any other company for employment during his stay with the defendant. I have never informed the defendant that I was negotiating for a job with BMS.
Q. Is BMS a competitor of the defendant?
R. Being Pharmaceutical Company, it, is I do not remember exactly as to when I was, firstly' interviewed by BMS for my employment. It may be January, February or March 1998. I was called for interview over phone by the Managing Director of BMS. I was interviewed at times by the Managing Director, the Director (Human Resources) and then by the Lead Team (Executive Committee). It is correct that I was also interviewed by the Representative of the Regional Head Office of the BMS who came from Egypt. I see Ethical Code of Conduct of the defendant and say, that it has also been signed by me. I produce the same as Exhibit 10.
Q. I put it to you that in entering into a secret negotiations with the Competitor of the defendant you have violated the terms of the Code of Ethics of the defendant?
R. I do not think that I have violated any Code of Ethics while negotiating for my job with BMS.
It is incorrect to suggest that Exhibit 7 has not been tampered by Mr. Shahid Qureshi; I see endorsement on the Exhibit 7 made by Mr. Shahid Qureshi and say that the words "don't think" in the first line and the words "weeks" in the second line were added by him subsequently by tampering this document. The tampering came to my knowledge when an application for discovery of the document was made in these proceedings. After I was refused additional compensation package I made a representation to the defendant. My representation was not responded to by the Managing Director of the defendant but instead Mr. Shahid Qureshi, had replied me in writing which I have produced as Exhibit 4. The Managing Director of the defendant at the relevant time was Mr. Alan Elridge. I in additional to the representation which I have made to the Managing Director also complained to the Chairman of the defendant. I might have also sent a copy of the complaint to the Regional Director of the defendant Mr. Ken Windle. The Regional Director responded to my complaint but he rejected my request made in my complaint. I produce the copy of the response of the Regional Director Ken Windle of the defendant as Exhibit 11. The authority to grant additional compensation was with the Managing Director of the defendant, who on the recommendation of the Director (Human Resources) approved such payment. It is correct that the decision taking authority in regard to any additional compensation of any nature is the Managing Director of the defendant.
Q. I put it to you that when you submitted your resignation to the defendant you had stated to Mr. Shahid Qureshi that you were migrating to USA and as such you wanted some additional compensation because you would be unemployed in USA?
R. It is incorrect.
Recalled and reaffirmed I was of 47 years of age when I left the employment of defendant. I am unaware about the age of retirement of an employee in the defendant company. I am not sure that the age of retirement in the Organization of defendant was 58 years at the time when I resigned. I am not even sure that the retirement age in BMS is 60 years. It is correct that I have not lost salary of a single day when I resigned from the defendant and joined BMS. It is incorrect to suggest that I have not suffered damages on account of change of employment. It is incorrect to suggest that I have not suffered any distress or anxiety by the action of the defendant. It is correct to suggest that my all dues were paid by the defendant and only my compensation package agreed by the defendant was not paid. It is correct to suggest that other than the compensation package the remaining dues were paid by the defendant. I was not a Member of Board of the defendant. It is correct to suggest that I had brought back Dr. Irum Afaq so that whenever I will tender my resignation, it would be accepted immediately. Voluntarily said that this was suggested by Mr. Riaz Ahmed who was the Commercial Director. Dr. Irum Afaq is no more working with the defendant. I cannot say whether she has resigned from the employment of the defendant. It is incorrect to suggest that the defendant has never paid any compensation package to any employee upon his tendering resignation. It is correct that I worked with the defendant for seven years and ten months. It is incorrect to suggest that claim in my suit against the defendant is bogus.
Re-examination Question\ What was your salary when you joined BMS?
AnswerMy salary was Rs,102,000/- per month with car; Driver's salary of Rs, 3,500/- per month and Medical Allowance of Rs,1,950/- per month."
7. The witnesses of the defendant namely Syed Riaz Ahmed as D.W-1 [Exhibt-12] in his examination in chief only produced his affidavit in evidence as [Exh. 12]and he was cross-examined by the counsel of the plaintiff, which cross-examination for the sake of ready reference is reproduced as under:- "In the year 1998, I was Commercial Director in the-defendant company. The plaintiff was supposed to report me. In the year 1995. I was designated as Director Marketing and my position and that of the plaintiff was at par. Voluntarily state that in the year 1995 there were two companies namely Glaxo Pakistan Limited and Wellcome Pakistan Limited and I was in Glaxo Pakistan Limited. The plaintiff has never expressed any dissatisfaction to me in the year 1998. It is correct to suggest that the plaintiff informed me that he is planning to migrate to USA. In the end of October, 1998 I came to know that the plaintiff has Joined Bristol Myers Squibb (BMS). I do not recall who told me about the same. Someone in my company informed me about the joining of the plaintiff in BMS. I do not remember as to what the plaintiff was drawing salary in Glaxo Pakistan Limited. I cannot say that the last salary drawing by the plaintiff was Rs,117,000/-. It is correct to suggest that the plaintiff was supposed to report me but since there are 800 employees working in the company it is not possible for me to know what the salary is being drawn by each of them. I cannot say whether the offer of BMS was good. I cannot produce the record about salary drawn by the plaintiff as it is for Human Resource Department who can produce the same. The "ex-gratia sum" mentioned by me in affidavit-in-evidence is not a fixed amount it can be any amount. It is correct to suggest that the compensation package offered to the plaintiff was conditional. The condition was that in case the company asked someone to leave the company, the company was supposed to compensate him under the agreement and if somebody voluntarily resigned and left the company he is not entitled to such compensation. Except this there was no other condition. I am receiving pension after my retirement. Whatever I have stated in my affidavit-in-evidence is correct and not because that I am loyal to my company.
Thereafter, the defendant examined Mr. Shahid Mustafa Qureshi as DW-2[Exhibt-13]. In his evidence he produced affidavit-in-evidence and confidential memo. dated 19.11.1998 as [Exh. 13/1].The witness was subsequently cross-examined by the counsel for the plaintiff. The said cross- examination for the sake of ready reference is also reproduced as under:- "I am under the employment of the defendant company since 1992. Prior to that I was under the employment of Pfizer Laboratory. It is correct to suggest that Pfizer Laboratory is an independent company engaged in the pharmaceutical business and not a direct competitor of the defendant company. I know the plaintiff and cannot categorize him as a fraud and cheat person but on this occasion he lied to me. The plaintiff never told me that he was unhappy in the company. It is correct that his reporting line was changed twice, first he was reporting to Mr. David Josie, Executive Director and then to Mr. Riaz Commercial Director. Mr. Josie left the company sometime in 1998. Reporting line was changed in 1998. I cannot say whether in the year 1995 Mr. Sheikh Riaz Ahmed was junior to the plaintiff. In the year 1995 my designation was Corporate Industrial Relation Manager. It is correct to suggest that I- have met the plaintiff in August, 1998. It is correct to suggest that in August, 1998 when I met Mr. Zaidi he discussed about his employment situation in the company. It is incorrect to suggest that the plaintiff told me that he was being forced to resign the company. It is correct to suggest that the plaintiff informed me that he is planning to leave the company and to migrate to USA for higher studies. He also informed me that he would try to get job in USA and or join medical practice. It is not in my knowledge whether the plaintiff had immigration visa or not. It is correct to suggest that going to USA in the case of plaintiff is hardship.
It is incorrect to suggest that the company gives compensation package to its employees who go to USA but company gives ex-gratia under the hardship situation. I do not have any written record about the conversation took place between me and the plaintiff. The company has given ex- gratia in the case as I have stated to one Mr. Hameed at the rate of two and half weeks' gross salaries per year worked. For the first time on 27th October, 1998 I came to know that the plaintiff is going to join BMS on 1st November, 1998. I had been informed by Mr. Kamal, Incharge or Human Resource in the defendant company. On the given date at lunch this conversation took place. It is incorrect to suggest that I met the plaintiff on 25th or 26th October, 1998. I met the plaintiff only on the day when he submitted resignation i,e, 27th October, 1998. I met the plaintiff couple of weeks before he submitted his resignation. I met him in the head office. However, the said meeting was not taken place in my office. In the said meeting no conversation was taken place regarding the resignation of the plaintiff. It is incorrect to suggest that I have advised the plaintiff to write in the resignation letter about Dr. Erum Afaq joining the department. On 27th October, 1998 we met in the morning. It is incorrect to suggest that any meeting was taken place on 28th October, 1998. After the resignation of the plaintiff, I have not seen the plaintiff. It is incorrect to suggest that I have met the plaintiff on 28th October, 1998 and shown him handwritten approval of his compensation package. I see Ex.7 and say that handwritten portion on the said exhibit is of mine. I have written the said note on the resignation letter at about 12.30 p.m. on the given date. It is incorrect to suggest that the words "don't think" and "weeks" were added by me subsequently (these two weeks have been underlined by red pencil). It is incorrect to suggest that any compensation package was discussed with the plaintiff. It is correct to suggest that though we have not specifically denied the averments with regard to discussion as mentioned in Ex.7 yet we have replied and acknowledged receipt of this letter. I have stated that the plaintiff lied to me because he told me that he was migrating to USA and would be facing hardships. It is correct to suggest that we have not made complaint to the company on his joining the competitor company in breach of the contract between the plaintiff and the defendant. The term "better deal" mentioned by me in my affidavit-in-evidence. I meant to say that the plaintiff to get better salary and other benefits in the company M/s. BMS. I can produce the record to show the last salary drawn by the plaintiff. It was around Rs,100,000/-. It is correct to suggest that the last salary drawn by the plaintiff was Rs,117,000/-. It is incorrect to suggest that the plaintiff is drawing lesser salary in BMS. The plaintiff is receiving more amount in BMS than what receiving from the defendant company. This statement I have made on the basis of information I have received but I do not have personal knowledge.
Although the plaintiff has lied with me yet the maximum favour which I could extend to him was to waive one month notice for resignation. I produce confidential memo. dated le November, 1998 which I have mentioned in para 12 of my affidavit-in-evidence as Ex.13/1."
Recalled and reaffirmed "It is correct to suggest that I have never informed plaintiff that compensation package was conditional. The question of informing the plaintiff that in case plaintiff joins service in Pakistan he would be not entitled compensation package would not arise. Plaintiff rehired Dr. Erum Aftab. There is no written document in support of my statement. On the recommendation of the plaintiff I issued the appointment letter. There is no written document in this regard. It is correct that Dr. Erum Aftab resigned in June 1988 to go abroad. It is not in my knowledge whether Dr. Erum Aftab has gone abroad or not. At present she is working at Barrett Hodgson. It is correct to suggest that said company is competitor of the defendant's company. It is correct to suggest that we hired persons from other pharmaceutical company. I know the plaintiff for last four years. It is correct to suggest that prior to this incident plaintiff has not lied to me and I was asked about his death in this occasion. It is incorrect to suggest that I have deliberately interpolated Ex.7. It is incorrect to suggest that defendant's company wrongly denied plaintiffs compensation package. Voluntarily says that there was no such agreement."
8. Learned counsel for the plaintiff during the course of his arguments. while reiterating, the contents of the plaint, has contended that it was very clearly represented to the plaintiff that if he resigns, .he would be entitled to a compensation package of two gross salaries for the number of years he worked for the defendant. It is also argued that the plaintiff pursuant to the said discussion had given his resignation. The said fact is also corroborated from the resignation letter [Exh.07 at page 37 of evidence file] wherein it is clearly referred to a compensation package with reference to a discussion with Director Human Resource, and requested for waiver of notice period.
The said fact, though initially was denied by the defendant in its written statement that not any discussion took place between plaintiff and defendant's officials wherein any compensation package and or any ex-gratia or any other payment was recommended, however from the evidence of the defendant it has been cleared that not only discussion was held but in the resignation letter the same was also approved to be given to the plaintiff however subsequently through interpolation in the approval granted to the plaintiff it was refused. It is further argued that interpolation in the resignation letter is very much visible as the defendant's Chairman and Managing Director approved the two gross salaries per year worked, however, words 'don't think and 'weeks' have been added subsequently by way of interpolation in the note of approval on the resignation letter by the defendant in order to renege from their obligation. It is also argued that the plaintiff has discharged his onus to prove that the discussion regarding compensation package; 2 (two) gross salaries per year worked, was held between the plaintiff and the defendants and pursuant thereof the plaintiff had given his resignation. It is also argued that contradictory stand of the defendant clearly reflects mala fide on the part of the defendant to refuse to compensation package offered to the plaintiff. Further argued that the evidence available on record supports the stands of the plaintiff whereas defendant has failed to discharge its burden to prove and substantiate his stance in the case, hence the plaintiff is entitled to a decree as prayed in the case.
9. On the other hand, learned counsel for the defendant while reiterating the contents of the written statement of the defendant has argued that the plaintiff has failed to prove his stance in the case through evidence hence he is not entitled to reliefs claimed in the case and the present suit is liable to be dismissed with special cost. He further argued that the defendant through its officer has neither represented nor entered into any negotiation for compensation package as alleged and or ex-gratia payment, in the event the plaintiff resigns from the defendant company. He has also argued that the defendant-company though pay ex-gratia payment to its employee, however, in hardship cases only and that too in special circumstances, when the employee become redundant and his/her services no more requires by the company but not in the case when the employee himself resigns from the services. Since the plaintiff himself resigned from the service of the defendant-company, therefore, commitment for any payments towards ex-gratia and/or compensation package does not arise. On the contrary, the plaintiff in order to obtain immediate release from the defendant without adhering the terms of employment contract in respect of 30 days advance notice, requested for waiver said notice period to which the defendant-company as a gesture of will allowed. Furthermore, from the conduct of the plaintiff, it clearly transpired that the plaintiff decided to resign from service of the defendant only because he had to join the competitor of the defendant namely Bristol-Myers Squibb [BMS] and that is the reason from the very next day after tending his resignation he joined the BMS, hence the plaintiff neither suffered any losses as claimed in the present suit nor he is entitled towards relief of ex- gratia payments and/or compensation package as allegedly claimed in the present suit.
10.I have given due consideration to the arguments advanced by the -learned counsel for the parities. minutely perused the material/evidence available on record. My findings on the issues are as under: 11.ISSUE NO.1: From perusal of the record, it appears that the plaintiff in the plaint has stated that owning to continued refusal/denial the rightful claim of the plaintiff and leveled reckless allegations of fraud, misrepresentation and cheating, caused mental agony, emotional stress and hurt, and as such the defendant is liable to pay damages to the extent of Rs,10 million to the plaintiff in addition to the compensation package agreed to between the parties. Whereas, in his affidavit in evidence, it is stated that due to defamatory allegations of fraud, misrepresentation and cheating against the plaintiff, leveled in reply to the plaintiff's legal notice, the plaintiff suffered losses hence entitled to damages in the sum of Rs,10 million.
Perusal of the above contents shows that the nature of the damages claimed by the plaintiff in the instant case falls within the ambit of general damages. It is settled principle of law that the question of mental agony was required to be established through cogent and reliable evidence mere feeling of resentment in one's mind is not sufficient to establish mental agony. If a person claims mental torture/agony or damage/injury to his reputation, initial burden would lie upon him to lead evidence on such point. Furthermore, it is also settled that for determining the general damages for mental torture, agony, defamation and financial loss were to be assessed following the "rule of thumb" and said exercise falls in the discretionary jurisdiction of the court, which has to decide in the facts and circumstances of each case. Reliance in this regard can be placed to the cases of Government of Khyber Pakhtunkhwa and others v. Syed Jaffar Shah (2016 MLD 223) and Mubashir Ahmad v. Syed Muhammad Shah through Legal Heirs (2011 SCMR 1009).
In the present case, since the plaintiff claim damages therefore, the onus to prove this issue is upon the plaintiff. From the perusal of the evidence, it appears that the plaintiff's claim of damages is based on the reply[Exh.6] made by the counsel on behalf of the defendant to the legal notice[Exh.5] of plaintiff. For the sake of ready reference, it would appropriate to reproduce the relevant paras of the said reply legal notice[Exh. 6], which according to the plaintiff is defamatory and caused the reputation and dignity of the plaintiff lowered in the estimation of general public, as under: - "8. It is denied that there was any legal obligation on our client to pay any amount in excess of the amount that has already been paid to your client by our client and accepted by your client. Even the Director Human Resources did not recommend the payment of any amount to your client due to the fraudulent misrepresentation made by your client to Mr. Qureshi that your client was emigrating to USA for personal reasons and would face severe financial hardship as a consequence thereof. Although our client learnt the true facts from the current employer of your client, to-date our client has not informed BMS of the manner in which your client has sought to defraud and cheat our client. If your client persists in making such baseless claim against our client, our client may bring the true facts to the knowledge of BMS in order to enable them to gauge for themselves as to the character and personality of the person who they have recently hired."
"10. That the contents of para 8 of your notice are denied. It is specifically denied that "redundancy compensation package' was payable by our client to your client. Your client resigned from the services of our client of his own volition after negotiating a better deal with a competing multinational pharmaceutical company. He fraudulently attempted to obtain, by false representations, an ex-gratia hardship allowance. By chance the true facts were made known to the senior management by the current employer of your client prior to such ex-gratia amount being even recommended for approval. On being informed of the true facts our client paid the legal dues of your client which were duly accepted by your client from our client."
From perusal of the evidence, it appears that the plaintiff in his affidavit in evidence, except making a general statement that due to defamatory allegations of fraud, misrepresentation and cheating against the plaintiff, leveled in reply to the plaintiff's legal notice, the plaintiff suffered losses, he has not stated a single word about it nor he produced any convincing evidence to prove as to what kind of mental agony, emotional stress and hurt was caused to him due to the act of defendant and what amount he spent on his treatment. Furthermore, there is nothing available on record which could suggest that the reply legal notice [Exh. 6] was circulated by the defendant amongst the public and business circle which lowered the reputation of the plaintiff in the estimation of general public. No doubt the defendant has failed to lead it's evidence and also failed to cross- examine the plaintiff but the plaintiff cannot take any benefit of any weakness of the defendant. It is well-settled principle of law that a party approaching to the Court for seeking some relief has to stand on his own legs for that purpose and no benefit of any weakness in the case of the opposite party could be extended to him. Reliance, in this regard can be made to the cases of M.D.
Anwarullah Mazumdar v. Tamina Bibi and others (1971 SCMR 94), Haji Muhammad Sarwar Khan v.
Hussain Nawab (1992 CLC 1915) and Mst. Zainab and another v. Majeed Ali and another (1993 SCMR 356).
In view of the above discussion, I am of the opinion that the plaintiff has failed to discharge his burden to prove his stance on the issue. Accordingly, this issue is answered in negative.
12. ISSUE NO.2: The burden to prove this issue was on the defendant. From perusal of the pleadings and records, it appears,that the plaintiff in the plaint as well as in his affidavit in evidence, in respect of his migration to U.S., has stated that during meeting with defendant's officials he discussed that in the given circumstances, he was considering to either emigrate to U.S. or start practicing as general medical practitioner or consider alternate employment opportunities.
Whereas in the written statement the defendant did not specifically deny the said statement of plaintiff. During the cross-examination of the plaintiff, learned counsel for the defendant put the question in this regard to which the plaintiff replied. For the sake of ready reference, the same is reproduced as under: "Q I put it to you that when you submitted your resignation to the defendant you had stated to Mr. Shahid Qureshi that you were migrating to USA and as such you wanted some additional compensation because you would be unemployed in USA?
R. It is incorrect."
Apart from the above no question was asked from the plaintiff on this subject. Whereas in this regard during the cross-examination of the defendant's witnesses, they replied as follows:-- DW.1 "It is correct to suggest that the plaintiff informed me that he is planning to migrate to USA."
DW . 2 "It is correct to suggest that the plaintiff informed me that he is planning to leave the company and to migrate to USA for higher studies. He also informed me that he would try to get job in USA and or join medical practice. It is not in my knowledge whether the plaintiff had immigration visa or not. It is correct to suggest that going to USA in the case of plaintiff is hardship."
From perusal of the above, it appears that though the plaintiff discussed with the officials of the defendant about his plan to immigrate to USA however, this was not the only option he discussed, therefore, it cannot be said that the contention of the plaintiff about his migration to USA was advanced only to make a financial gain. The defendant has failed to discharge his burden to prove this issue and hence, this issue is answered in negative.
13. ISSUES 3 and 3-A: Since these issues are interconnected, therefore, the same are taken up together. From the perusal of the record it appears that the case of the plaintiff is that he was employed with the defendant and served with dedication until his departure from the defendant in October 1998. After the change in the defendant's senior management the plaintiff meted out unwarranted and unprofessional treatment which caused him severe agony and distress. Faced with such a situation, he met with Mr. Shahid Qureshi, Director Human Resources and Corporate Affairs [PW.1] and Syed Riaz Ahmed. Commercial Director [Exh.PW.2] of the defendant to resolve his quandary, and these officials suggested the plaintiff that he could be officially declared redundant.
It was clearly represented to the plaintiff that he would be compensated with two gross salaries for the number of years he has worked for the defendant, if he would resign. During said meetings with Mr. Qureshi and Mr. Ahmed, the plaintiff candidly discussed that in such circumstances he was considering to either migrate to USA or start practicing as a general medical practitioner or consider alternate employment opportunities. The plaintiff conceded to the proposal made by the said officials of the defendant. Accordingly, the plaintiff tendered his resignation[Exh.07] vide letter dated 27.10.1998, which was dictated to him by Mr. Qureshi. The plaintiff's resignation was accepted, vide acceptance letter dated 28.10.1998 [Exh. 03] issued by Mr. Qureshi. however, in the acceptance letter plaintiff's agreed compensation package was not mentioned. To satisfy the plaintiff's concern, Mr. Qureshi showed him the original resignation letter [Exh.07] containing the approval of the compensation package by Mr. Alan. Eldridge, Chairman and Managing Director of the defendant. The plaintiff was to receive the agreed compensation on 30.10.1998 but instead he was shocked to learn from Mr. Qureshi on 03.11.1998 of the defendant's intention to back out from its legal obligations to pay the agreed compensation package to the plaintiff on the flimsy ground that he had started a new job after resigning the defendant. Thereafter, plaintiff made repeated efforts for the recovery of the outstanding compensation package through letters dated 11.11.1998 [Exh. 08]. 12.11.1998, and 16.11.1998 but the defendant refused to pay agreed compensation package to the plaintiff. Consequently, the plaintiff sent legal notice dated 31.12.1998[Exh.05] to the defendant claiming his full compensation package amounting to Rs,23,42,748/- etc. The said legal notice was replied by the defendant counsel vide its letter dated 14.01.1999[Exh. 06] wherein the assertions of the plaintiff were denied. It is also the claim of the plaintiff that the resignation letter [Exh.07] clearly referred to a compensation package and requested a waiver of notice period. The defendant's Chairman and Managing Director approved the payment of two gross salaries per year worked on 27.10.1998, however, in order to wriggle out of commitment/obligation, the defendant through Mr. Qureshi has made interpolation in the note on the said resignation letter and altered so that the agreed compensation package could be denied.
14. Before going into any further discussion on the issues, it would be appropriate to reproduce the resignation letter [Exh.07 at page 37 of the evidence file] and letter of acceptance [Exh. 03 at Page 19 of evidence file] are as under:-- Resignation Letter (Exhibit 7)
"The Human Resource Director Glaxo Wellcome Pakistan Ltd., Karachi.
Resignation Dear Sir, As discussed, I hereby tender my resignation with effect from 1st of November 1998 (31st October being the last working day). Please note that Dr. Irum Afaq, Dy. Senior Manager in my department is working for the last 5 years and is fully capable of running the department independently, and, hence there is no need of my replacement.
I will appreciate if the cheque of my Compensation Package (as per our discussions) may please be issued to me on or before 30th October 1998. You are further requested to please wave off my notice period.
I thoroughly enjoyed my stay with the company, and am thankful to all my colleagues and my staff who have been very kind to me. My special thanks to my superiors for their continued guidance and support.
Many thanks and regards. Yours truly.
Sd/- Dr. M Raw Zaidi Director of Medical & Scientific In ormation Glaxo Wellcome Pakistan Ltd."
[emphasis supplied] Letter of Acceptance (Exhibit 03)
"HR/MSS/819 28th October, 1998 Dr. Raza Zaidi Director of Medical and Scientific information F-268.
Dear Sir, RESIGNATION We refer to your resignation dated 27th October, 1998 and are pleased to inform that the same has been accepted with effect from 31st October 1998.
As per terms of your employment, you were required to give one month's it notice. However. as a gesture of goodwill the notice period has been waived. Arrangement is being made for payment of your service dues at an early date but before that please arrange to hand over all the company's properties including Identity Card, etc., to your Unit Head.
We wish you all the best in future.
Yours faithfully GLAXI WELLCOME PAKISTAN LliVIITED Sd/Shahid M. Qureshi Human Resources and Corporate Affairs Director/ Company Secretary".
15. From the perusal of the aforesaid documents, it appears that the plaintiff in his resignation has very clearly mentioned about the compensation package as discussed with human resource director (Mr. Shahid Qureshi) and waiver of notice period. Whereas the defendant in its acceptance letter though waived the notice period as requested by the plaintiff, however, did not controvert the specific assertion in respect of compensation package. From the perusal of written statement it also reveals that the defendant initially denied that any discussion in respect of compensation package was held with the defendant's officials, however, the witnesses of the defendant have taken contradictory stand during their cross-examination. Relevant portions whereof are reproduced as follows:- The DW.1, in his cross-examination has stated: "It is correct to suggest that the compensation package offered to the plaintiff was conditional. The condition was that in case the company asked someone to leave the company, the company was supposed to compensate him under the agreement and if somebody voluntarily resigned and left the company he is not entitled to such compensation. Except this there was no other condition."
Whereas DW.2, in paras. Nos. 5 and 12 of his affidavit in evidence has stated: "5. That the reason I did not recommend the payment of any ex-gratia amount as a hardship case to the Plaintiff, was due to the fact that purely by accident I was informed of the true facts by the new employer of the Plaintiff. It transpired from a conversation with a person who had seen the plaintiff in the office of BMS that the Plaintiff had been fraudulently seeking to obtain an ex gratia amount from the defendant by representing that he was resigning due to personal reasons and was emigrating to USA where he would face financial hardship whereas, in fact he had already signed an agreement with BMS and in fact was joining their employment on 2.11.1998, when such true facts were revealed to the defendant the Defendant decided that Plaintiff should be paid only his legal dues and that no ex gratia payment should be made to him. As such, against the total entitlement of the plaintiff of leave encashment, gratuity and provident fund of Rs,1,159,084/- payment of Rs,603,682/- was made which was duly accepted by the Plaintiff. The deduction of Rs,555,402/- related to the discounted value of the car, jogging machine and generator owned by the Defendant which the Plaintiff desired to purchase and the income tax amount to be deducted from such payments."
"12When I received the resignation letter on 27th of October 1998 I had orally recommended to the then Chief Executive of the Defendant, Mr. Alan Eldrige, that the Defendant should pay him half a month's salary for each year of service. However, before I could take the original of the resignation letter to Mr. Alan Eldrige I was informed of true circumstances, in which the plaintiff was leaving the employment of the Defendant. I then decided not to recommend that any payment be made to the plaintiff. but as gesture of goodwill still recommended that the defendant should waive the one month's advance notice requirement."
[emphasis supplied] Though, the whole cross-examination of DW.2, has been reproduced above yet in order to have a quick glance at the same, relevant excerpts of the said cross-examination are being reproduced as under:- "I see Ex.7 and say that handwritten portion on the said exhibit is of mine. I have written the said note on the resignation letter at about 12.30 p.m. on the given date."
"It is incorrect to suggest that any compensation package was discussed with the plaintiff. It is correct to suggest that though we have not specifically denied the averments with regard to discussion as mentioned in Ex.7 yet we have replied and acknowledged receipt of this letter. I have stated that the plaintiff lied to me because he told me that he was migrating to USA and would be facing hardships."
"Although the plaintiff has lied with me yet the maximum favour which I could extend to him was to waive one month notice for resignation. I produce confidential memo. dated 19th November, 1998 which I have mentioned in para 12 of my affidavit-in-evidence as Ex.13/1."
"It is correct to suggest that I have never informed plaintiff that compensation package was conditional. The question of informing the plaintiff that in case plaintiff joins service in Pakistan he would be not entitled compensation package would not arise."
16. It is pertinent to mention here that the discussion in respect of compensation package, ex gratia payment and or severance package between the plaintiff and defendant is also reflected from the confidential memo. [Exh. 13/1 at page 107 of the evidence file] produced by DW.2, during his evidence. The said memo was addressed to Mr. Ken Windle by Mr. Alan Eldrige, the then Chief Executive of defendant regarding resignation and claim of the plaintiff. Relevant portion of Exh.13/1, for the sake of ready reference is reproduced as under:- "Herewith a draft response to Raza Zaidi's letter of 16th November to Sir Richard Skyes.
The facts are that Raza himself initiated discussion concerning his departure indicating that he was planning to travel to U.S.A. to undertake further study. He asked for a severance package on the grounds that structural and management changes during the past 12 months had impacted adversely on both his relative standing plus, his overall morale. His request was under sympathetic consideration when we learned that he had actually agreed to join BMS Pakistan prior to handing in his resignation and on the same package as he was receiving at Glaxo Welcome Pakistan. Given the fact that he deliberately lied to us plus, suffered no personal loss, any thoughts of any form of severance payment on our part were immediately discarded."
[emphasis supplied] Perusal of Exh:13/1, transpires that there was some discussion in respect of severance package either in the name of compensation package and/or ex-gratia payment, held between the plaintiff and the defendant, wherein some of assurance of severance package has been given to the plaintiff whereupon the plaintiff resigned from the defendant company, however, subsequently, .the same was refused upon coming to know that the plaintiff joined the competitor company of the defendant. The said fact can also be ascertained from the note written by Mr. Qureshi on the resignation letter [Exh.07] which reads as under: "Kindly approve waiver don't think we pay him @2(two) weeks gross salaries per year worked.
[bold and underlining are added to emphasis] From bare reading of the above note, the words 'don't think' and weeks' are superfluous and appears to have been written afterwards with the intention to give different meaning to the sentence earlier written. Furthermore, reading of above sentence in conjunction with above words also does not appear to be logical sentence. The above sentence, if read without inclusion of the above bold and underlined worlds, would be as follows: "Kindly approve waiver, we pay him @2(two) gross salaries per year worked."
There is no cavil to the proposition that insertion of additional words into a document or an instrument in such manner as to alter its intended meaning is termed as interpolation. The act of the defendant clearly depicts that the aforesaid bold and underlined words have been added afterwards to give a different meaning to the sentence earlier written on the documents, hence the same falls with the ambit of interpolation.
It also seems that in the resignation letter [Exh.07] the plaintiff has mentioned about compensation package, however, no detail has been given about the said package but in the above said "note" on the said resignation, details of severance package have been mentioned, which fact also corroborates the stance of the plaintiff in respect of compensation package.
17. From the pleadings, it appears that it is also a claim of the plaintiff that the note written on his resignation letter[Exh.07]was shown to him, on the next day of his resignation, wherein the approval of the Managing Director of the defendant namely: Mr. Alan Eldridge in respect of his severance package of 2(two)gross salaries per year worked was clearly mentioned and the plaintiff has also deposed so in the evidence while the stance of the defendant is that the said note was never shown to the plaintiff. For the sake of argument, if we accept the stance of the defendant then how it was possible that plaintiff came to know about the said approval prior to filing of the case, whereas the resignation letter [Exh.07], containing note and approval thereof by the Managing Director, was first time came to surface after filing of the present case. In the circumstance, the existence of discussion, in respect of plaintiff's severance package is not only proved to have been held between the plaintiff and the defendant but also proved to have been approved subsequently approved by the then Managing Director of the defendant, which is even so probable that a man of ordinary prudence would function under the presumption of its existence.
18. It may relevant to mention here that the word "proved" under the law of evidence i,e, Qanun-e- Shahadat Order, 1984 means:- "A fact is said to be proved when after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists".
From the above definition of the terms "proved" it would appear that in the given circumstances one should not assume that the requisite evidence in relation to any fact is to be provided conclusively in a physical form. Obviously, the words so probable and the word that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists would mean something falling within the scope of positive probability far short than being conclusive. The degree of clarity of a fact is to bear proximity with probability or likelihood of its existence and that is all. The Hon'ble Supreme Court in the case of Said Wali v. Yaqoot Khan and another (PLD 1983 SC 440), has held that-- "The inferences drawn from the matters placed before the. Court could be drawn by a "prudent man" so as to hold that the transactions in question were in reality exchanges even if the Court was to give a decision on "probabilities", as contended; because, according to the definition of "proved" a fact is said to be proved "when after considering the matter before it the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists."
There is no cavil with the proposition that the rules of evidence for civil and criminal cases are, in general, identical but some provisions in the law are peculiar to the criminal cases and others are peculiar to the civil cases"; Prosecution, in criminal cases, is required to prove guilt to accused beyond reasonable doubt, whereas in civil cases, all that is necessary is to insist upon is that the proof adduced in support of a fact is such that should make a prudent man to act upon the supposition that it exists and that is all. Whether an alleged fact is a fact in issue or a relevant fact, the Court can draw no inference from its existence till it believes it to exist; and it is obvious that the belief of the Court in the existence of a given fact ought to proceed upon grounds altogether independent of the relation of the fact to the object and nature of the proceedings in which its existence is to be determined. Muhammad Monir in his treatise on the Evidence Act, 1872 (since repealed) has concluded that proof considered as the establishment of material facts in issue in each particular case by proper and legal means to the satisfaction of the Court is effected by-
(a) evidence or statements of witnesses, admissions or confessions or parties, and production of documents.
(b) presumption,
(c) judicial notice,
(d) inspection which has been defined as the substitution of the eye for the ear in the reception of evidence as in the case of observation of the demeanor of witnesses, local investigation or in the inspection of the instruments used for the commission of a crime.
The extent to which any individual material of evidence aids in the establishment of the general truth is called its probative force. This force must be sufficient to induce the Court either--
(i) to believe in the existence of the fact sought to be proved, or
(ii) to consider its existence so probable that a prudent man ought to act upon the supposition that it exists.
Reliance in this regard can be placed in the case of Sher Muhammad and another v. Abdul Hakim and another (PLD 1994 Peshawar 10) Keeping view of the above, it appears that there was discussion in respect of severance package of the plaintiff, held between the plaintiff and the defendant, on the basis of which the plaintiff resigned from the defendant company, however, when it came to the knowledge of the defendant that the plaintiff joined the competitor company of the defendant, it wriggled out from the said discussion. However, there is nothing available on record which could show that the severance package, offered to the plaintiff was conditional. Thus, applying the above principles to the facts of this case it is the last mentioned probative force which is relevant to judge the entire evidence adduced by the parties on the touchstone alluded to in the preceding paragraphs, I am of the considered opinion that the Plaintiff has established his case in respect of these issue. Accordingly, both these issues are decided in favour of the Plaintiff.
19. In the circumstances and in terms of the above findings on issues Nos.3 and 3A, I am of the considered view that in the instant matter the plaintiff has established his claim while the defendant has failed to substantiate its stance in the case. Accordingly, the suit of the plaintiff is decreed to the extent that the defendant is directed to pay Rs,23,42,748.00 at the rate of two gross salaries for eight years of the Plaintiff's service with the Defendant with mark up at the rate of 10% per annum from 30.10.1998 till the date of decree and further mark-up at the same rate from date of decree till its realization.