1. SYED HASAN AZHAR RIZVI, J. Application bearing C.M.A. No.14736/2021 was filed for withdrawal of the advocate and to plead his case by the plaintiff in person, same has been granted and plaintiff was allowed to argue the injunction application, bearing C.M.A. No.2586/2021 in person.
2. Exemption granted subject to all just exceptions.
3. Plaintiff has filed present suit for declaration, permanent injunction and damages against the defendants. Brief facts of the present suit are that the plaintiff was appointed as General Banking Officer in Grade-III. Photocopy of letter of employment is enclosed as annexure "A"; at page-23 with the plaint. In 2016 while the plaintiff was posted as Branch Operation Manager of MCB (Muslim Commercial Bank) Saira Centre, Karachi, an FIR bearing No.12/2016 under Sections 409/468/471/109/34, P.P.C. was lodged by the defendant against the plaintiff with the FIA, CBC, Karachi for misappropriation of bank funds as well as financial embezzlement. Criminal Case No.12/2016 against the plaintiff was proceeded in the Special Court (Offences in Banks) Sindh at Karachi wherein judgment was passed on 29.06.2017 against the plaintiff and other co-accused (copy of judgment is enclosed at page-73 with the plaint whereby the plaintiff was convicted as follows:- a) Accused Gajhdar alias Anand son of Jeevat Ram convicted under section 409, P.P.C. being banker and sentenced to suffer R.I for 15 years and fine of Rs.109.395 millions. In case of nonpayment of fine he shall suffer S.I for 03 years. b) He is convicted under section 468, P.P.C. and sentenced to suffer 07 years R.1 and fine of Rs.109.395 millions. In case of nonpayment of fine he shall suffer S.1 for 03 years. c) He is also convicted under section 471, P.P.C. and sentenced to suffer 07 years and fine of Rs.1 lac. In case of nonpayment of fine he shall suffer for 01 year. d) He shall be entitled to the benefit of Section 382(B), Cr.P.C. All the sentences shall run concurrently. e) The accused is present in custody and remanded back to J.C to serve the sentence in the light of conviction made above.
2. Plaintiff filed Criminal Appeal No.296 of 2017 before this Court and vide judgment dated 30.04.2018 passed by the Divisional Bench of this Court by consent of both counsel for the appellant as well as Assistant Attorney General for Pakistan the conviction and sentence awarded to appellant (plaintiff in the present suit), the impugned judgment was set-aside, appeal was partly allowed and the case was remanded back to the learned trial Court for trial afresh providing fair opportunity to the appellant (present plaintiff) for cross-examination upon certain documents referred to in the judgement thereafter, pronounce judgment within [90] Ninety days, in accordance with law.
3. Photocopy of certified copy of judgment is available at page-139 with the plaint. Against the fresh judgment of the learned Trial Court the plaintiff filed Criminal Jail Appeal No.99/2020 in this Court and by order dated 22.10.2020 by a short order plaintiff's appeal was allowed and the impugned judgment 18.01.2020 passed by the Special Court (Offences in Banks) Sindh at Karachi in Case No.12/2016 was set-aside and appellant was acquitted from the charge and was directed to be released forthwith. Photocopy of certified copy of that order is enclosed as annexure "H" at page- 201.
4. On 24.09.2020 a letter was issued by the defendant to the plaintiff for resuming his duty after his acquittal however, he was informed by the defendant that the departmental proceeding against him initiated earlier and later withheld due to the reason that he was arrested and later imprisoned after the fraud was unearthed. It is further stated in that letter that since the case is still under litigation therefore, the DA process will now be initiated as per Bank HR-Policy. Copy of that letter is enclosed as annexure "I-3" at page-209 with the plaint. Plaintiff joined' his duty on 28.12.2020.
5. Photocopy of joining report of the plaintiff is enclosed as annexure "I-4" at pages-211 with the plaint.
6. On 22.05.2017 defendant issued letter of charge to the plaintiff. Copy thereof is enclosed as annexure "J" at page-213 with the plaint. Defendant No..1 has challenged the acquittal order passed on 22.10.2020 by Divisional Bench of this Court before the Honourable Supreme Court of Pakistan by filing Criminal M.A. No.599/2021 in Criminal P.A No. Nil of 2021. Per learned counsel for the plaintiff on 29.01.2021 the defendant issued a letter of enquiry to the plaintiff stated therein that the plaintiff has failed to explain his case and impartial enquiry would be held as per details mentioned in that letter. Photocopy of that letter is enclosed as annexure "M" at page-249 with the plaint. After issuance of that enquiry on 11.02.2021 the plaintiff has filed this suit in, this Court and on the same date has obtained interim order while issuing notices to the defendants it was directed that pending enquiries against the plaintiff, if any are to be continued however no final order in those enquiries shall be passed and no coercive / adverse action against the plaintiff including dismissal / termination from service is to be taken, till the next date of hearing.
7. Defendants have filed counter affidavit of Sanam Jameel Qazi duly authorized representative of the defendant No.1 to the injunction application.
8. Heard plaintiff in, person and Mr. Mustafa Ali learned counsel for the defendants and perusal the material available on record as well as case law cited with their assistance.
9. Plaintiff argued that after his acquittal by the Divisional Bench of this Court and setting aside of judgment of the Special Court (Offences in Banks) Sindh at Karachi the defendants were legally required to withdraw all the impugned letters issued to the plaintiff but instead of following principle of justice, equity and fair play, the defendants have initiated impugned enquiry against the plaintiff in order to the defeat spirit of judgment passed by this Court in Criminal Appeal filed by him as referred to above. Plaintiff contended that when nothing was found against the plaintiff the defendants bent upon to satisfy their malicious intent by serving letter of charge dated 22.05.2017.
10. Plaintiff has placed reliance upon 1995 SCMR 650, 2005 SCMR 25, 1990 SCMR 999 and 2001 SCMR
256. Plaintiff further contended that the injunction application is liable to be allowed at this stage otherwise, he will suffer irreparable loss.
11. Conversely Mr. Mustafa Ali learned counsel for the defendants contended that the defendant No.1 is a private bank having non-statutory rules of service and the plaintiff is its employee. Per learned counsel, the relationship between the plaintiff and the defendant No.1/MCB Bank is purely of a contractual in nature as it is governed by the terms and conditions stated in the Letter of Employment already enclosed with the plaint at pages 23 and 25. He further submitted that the defendant No.1 / MCB Bank is a custodian of public money and it has to take all possible measures to ensure and enforce the highest standards of honesty, transparency and integrity of its operations so as to maintain the goodwill and trust of its customers. MCB / defendant No.1 does not wish to retain the services of the plaintiff as there is an insurmountable trust deficit and tremendous acrimony between the parties. MCB / defendant No.1 has already challenged the judgment passed by the Divisional Bench of this Court by filing Crl. M.A. No.599/2021 in Crl. P.A. No. Nil of 2021 against the judgment dated 22.10.2020 whereby the plaintiff has been acquitted of the charge of siphoning off Rs.173 million as Branch Operation Manager of MCB Bank, Saira Centre.
12. Karachi illegally and fraudulently. Plaintiff has already filed the instant suit and claimed Rs.50 million as damages against the defendant No.1 and the bank is vigorously contesting such claim of damages. Learned counsel for the defendants urged that it is settled principle of law that an unwanted employee cannot be forced upon an unwilling master. By opposing and contesting the instant suit, the defendant No. 1/MCB has unquestionably and unequivocally shown its unwillingness to continue with the employment of the plaintiff.
13. Learned counsel for the defendants further submitted that the direction contained in the interim order passed in this suit on 11.02.2021 by this Court has resulted in an anomalous situation whereby for the last nine months and counting, the defendant No.1 bank is obligated to continue paying the salary of the plaintiff when it simply does not wish to continue with his service. Per learned counsel, under Section 21(b) of the Specific Relief Act, 1877 it is not possible to specifically enforce a contract for personal service as it is dependant, for its performance, on the willingness / volition of the parties thereof.
14. He further contended that the plaintiff in the memo. of plaint as well as during arguments portraying that he has a contractual right to render his personal services to the defendant No.1 whereas the fact of the matter is that this is not plaintiffs right but it is actually his contractual obligation towards MCB therefore, the plaintiff has no legal right to claim a violation of or to seek the enforcement regarding his continuing in the employment of the bank. Plaintiff lacks any legal character as required under Section 42 of the Specific Relief Act, 1877 to obtain declaration in respect of continuing indefinitely with the performance of his professional duties in MCB / defendant No. 1. Defendant No.1 contractual right to claim, if at all, that the plaintiff is to perform his professional duties in its service. However, this right may be dispensed with as and when MCB Bank chooses to do so by simply invoking Clause 8 of the Letter of Employment and terminating the relationship in terms of clause 8 of the contract available at page 25 with the plaint.
15. Learned counsel for the defendants further submitted that the plaintiff is not entitled to permanent / mandatory injunction so as to restrain MCB from terminating the service contract. Service Contract in question cannot be specifically enforced by the plaintiff against the defendant No.1 hence, pursuant to Section 56(0 of the Specific Relief Act, 1877 the plaintiff is not entitled for permanent injunction.
16. Learned counsel for the defendant No.1 further contended that nowhere in the plaint or injunction application the plaintiff has pleaded that he has made a prima facie case for grant of injunction in his favour and irreparable loss will be caused to him if injunction application is dismissed whereas the defendant No. 1 will be gravely prejudiced in case the same is allowed. Learned counsel for the defendant No. 1 urged that balance of inconvenience also lies with the defendant No.1 for having continue to employ the plaintiff, whom it no longer trusts. Counsel for the defendants hence prayed for dismissal of injunction application. He has placed reliance upon the cases reported in 2019 PLC (C. S.) 1028, 2019 PLC (C.S.) 999, 2020 PLC (C.S.) 80, 2002 CLC 857, 2019 PLC (C.S.) 940, 2015 YLR 2141, 2002 CLD 77, 1996 MLD 865, PLD 1998 Karachi 1 and 1995 MLD 384.
17. Plaintiff pleaded and argued his case that as he has been acquitted by the Divisional Bench of this Court in Criminal Jail Appeal No.99/2020 by order dated 22.10.2020 and the impugned judgment 18.01.2020 passed by the Special Court (Offences in Banks) Sindh at Karachi in Case No.12/2016 was set-aside therefore, the plaintiff is exonerated from the charges as were alleged against him by the defendant No.1 in FIR as well as at the time of framing of the charge by the learned Trial Court. Per plaintiff, initiating enquiry against the plaintiff again on the basis of three charges alleged upon him is an attempt to cause humiliation and harassment to the plaintiff and initiation of enquiry after his acquittal from the allegations is against HR Policy of the defendant No. 1. Plaintiff has referred to HR. Policy Manual 2021 and as per that Policy the bank can terminate or dismiss an employee from service as a result of departmental proceedings if result of the departmental proceeding comes against an employee of the bank, the bank can terminate or dismiss such employee. Plaintiff has relied upon the case of Pakistan Defence Officers Housing Authority v.
18. Mrs. Itrat Sajjad Khan and others reported in 2017 SCMR 2010 relating to termination of an employee without any reason, which is quite distinguishable from the case of the plaintiff. He further relied upon the case of Muhammad Ashraf Tiwana and others v. Pakistan and others reported in 2013 SCMR 1159 wherein power to terminate service of an employee without cause was questioned, which too is not applicable in the present case.
19. So far as the private bank is concerned it is settled proposition of law that a servant of private bank cannot be forced upon his master. The master is always entitled to say that he is prepared to pay damages for breach of contract of service but will not accept the services of the _servant. As per section 21(b) of the Specific Relief Act, 1877 a contract of personal service cannot be enforced whereas a breach of contract can give rise to only two reliefs i.e. damages or specific performance.
20. If specific performance be barred under the law the only relief available is damages. When a master, in breach of his contract, refused to employ the servant the only right that survives to the employee is the right to A damages and nothing else. No relief or decree can be passed against unwilling master. The Plaintiff has only one remedy i.e. to sue for damages / money. Reliance is placed upon the case of Messrs Malik and Hag and another v. Muhammad Shamsul Islam Chowdhury and 2 others reported in PLD 1961 SC 531. Similar view has been expressed by the Honourable Supreme Court of Pakistan in the case of Marghub Siddiqi v. Hamid Ahmad Khan and 2 others reported in 1974 SCMR 519 wherein it was observed that:- "Secondly it appears to us that none of the Courts have noticed that although ad interim injunctions are granted under Order XXIX, Rule 1 of the Code of Civil Procedure the principles, which govern the grant of injunctions, contained in the Specific Relief Act have also to be kept in view.
21. Under section 56, clause (f), one of the principles is that an injunction cannot be granted to prevent the breach of a contract the performance of which cannot specifically be enforced. Now it is well settled that contracts for personal service are not contracts which can be specifically enforced.
22. The granting of an injunction, therefore, in a service matter, like the present one, is opposed to the principles governing the grant of such injunctions, for by such an injunction the Courts really foist an employee upon an unwilling employer. Such an order for injunction made in disregard of these not only sound judicial principles but even statutory prohibitions cannot, in our view, be regarded as having been made in the proper exercise of the discretion of the Court."
23. In another case of Irrudiyanadan Francis v. Deutsche Bank A.G. reported in 2019 PLC (C.S.) 1028 it was observed that :- "10. In the light of record so made available before us, our findings on the above point with reasons are as under:- Point No. i. Admittedly, there were no statutory rules governing service of plaintiff/appellant in the bank establishment and by now law is well settled that where the condition of the services of employees of an organization/establishment are not regulated by the rules and regulations framed under the statute, in such like cases, the relationship between the employer and the employee would govern by the principle of Master and Servant.
24. It goes without saying that under general law, a private contract of service been a Master and Servant is not capable of specific enforcement under Section 21(a) and (b) of the Specific Relief Act, 1877, and the aggrieved servant at best sue for damages only for the breach of contract. It is also established by the Courts of law that even though an employee may establish that he has been wrongly dismissed/retired from service, still he is not entitled to the remedy of an injunction or of specific performance in that contract involving his personal service cannot be specifically enforced in view of Sections of Specific Relief Act, 1877."
25. In the case of Allah Dino Khaskheli v. Zakir Mehmood and 3 others reported in 2019 PLC (C.S.) 999 wherein it was observed that:- ".........................since no statutory rules governing terms and conditions of service had been framed, therefore, the relationship between the Appellant the Respondent-Bank was governed by the relationship of "Master and Servant" and in such a situation the relief of reinstatement in service was not envisaged for such relationship nor the same could be granted under the Code of Civil Procedure by the learned Single Judge sitting on the Original Side."
26. In the case of ANB-Amro Bank v. Wasim Dar reported in 2004 PLC 69 wherein it has been observed that "...........................it seems a settled proposition, that there are no fetters or checks upon the rights of a master to terminate the services of his servant according to his own evaluation, decision and wisdom. Even if the termination is in violation of the contract, such action shall not be annulled by the Court, thus compelling the master to keep intact the serve of his employee. Likewise, a servant cannot be forced to serve his master when he is not willing to do so. However, in the cases where the employer terminates the services of his employee, in violation of the contract, the only remedy available to the aggrieved servant shall be to sue his master for damages on account of wrongful termination.
27. Resultantly in view of above stated legal position, the key question calling for determination in this case is whether the termination is wrongful or not."
28. For the foregoing reasons I am of the humble view that no prima facie case has been made out by the plaintiff and no irreparable loss would be caused to him if injunction application is dismissed, so also the balance of convenience does not lie in favour of the plaintiff.
29. In view of above facts, circumstances and case laws discussed herein-above. injunction application filed by the plaintiff is hereby dismissed and interim order passed on 11.02.2021 in this suit is hereby recalled. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.