MUHAMMAD FAISAL KAMAL ALAM, J. Plaintiff has filed the present Lis for rec very of his service dues and damages from Defendants, with the foil wing Prayer Clause-- "1. Decree the suit of the Plaintiff in the sum of Rs.95,70,214/- being legal dues of the Plaintiff and Damages/compensation suffered by him with upto date returns.
2. Any other relief(s), which this Hon'ble Court may deem fit and proper under circumstances of the case.
3. Cost of the suit."
2. Succinctly facts are that Plaintiff served the Defendants Nos.2 and 3 for about 37 years and lastly he was holding a Post of General Manager Technical, when Defendants lodged a Scheme of Voluntarily Separation from Service (VSS)/Voluntary Retirement Scheme (VRS) and Plaintiff applied or the same, which was accepted by the Management of the Defendant No. 3, vide a Communication dated 30.01.2006 (Exhibit-P/2) , subsequently Defendant No.3 vide a Letter dated 27.02.2006 (Exhibit-P/5) issued a cheque of Rs.2,789,683.98/- (rupees two million seven hundred eighty-nine thousand six hundred eighty-three and ninety eight paisa only) towards full and final settlement of Provident Fund, but did not pay the entire service dues at the relevant time, an amount of Rs.4,570,214/- (rupees four million five hundred seventy thousand two hundred fourteen only), towards other service benefits were unlawfully withheld by the Management of Defendant No.3. Plaintiff was informed that second cheque would be issued in due course of time but, that never happened and in the intervening period another Correspondence dated 27.02.2006, produced in the evidence as an undisputed document, being Exhibit P/6, was issued to Plaintiff, purportedly withdrawing/cancelling his retirement under the above Scheme, which was challenged by the Plaintiff.
A Service Appeal was also filed by the Plaintiff at the relevant time before the Federal Service Tribunal, which subsequently was abated in view of the pronouncement of Hon'ble Supreme Court in other such nature of cases, leaving the present Plaintiff to file a Constitutional Petition No.D-1432 of 2006 before this Court. Para-wise Comments were filed by Defendant No.3 in the said C.P. which was subsequently disposed of in view of another Judicial Pronouncement by the Hon'ble Supreme Court in the case of PIAC v. Tanvir-ur-Rehman and others [PLD 2010 SC 676], with an observation that Plaintiff would be at liberty to avail remedy in accordingly with law, hence the present Suit with the relief claimed (supra).
3. The present Suit is contested by Defendants Nos.1 and 3 (Federation of Pakistan and Javedan Cement Limited, respectively) by filing their respective Written Statement in which claim of Plaintiff is denied and the maintainability of this Suit is questioned while mentioning that factual aspect of the case relates to Defendant No.3, however, the employment status of Plaintiff has not been disputed. The contesting Defendant No.3 has raised the issue of maintainability of present Lis, inter alia, on account of earlier litigation, while disputing the monetary claim of Plaintiff. Defendant No.3 has categorically denied that an amount of Rs.4,570,214/- (rupees four million five hundred seventy thousand two hundred fourteen only) is payable by Defendant No.3 to Plaintiff. It is the stance of Defendant No.3 that the VSS Scheme to the extent of Plaintiff was subsequently cancelled by the Board and nothing is payable to Plaintiff after he has received a sum of Rs.2,789,683.98/- (rupees two million seven hundred eighty-nine thousand six hundred eighty-three and ninety eight paisa only).
4. Following Issues were settled/adopted by the Court, vide Order dated 16.04.2012-- "1. Whether the suit is maintainable?
2. Whether the suit is barred by time?
3. Whether the Defendant No.3 lodged a scheme of Voluntarily Separation from Service VSS/Voluntary Retirement Scheme (VRS) and the Plaintiff applied for the same?
4. Whether the Defendant No.3 accepted the VSS/VRS of the Plaintiff and conveyed him the same vide letter dated 30.01.2006?
5. Whether the Defendant No.3 vide letter dated 18.02.2006 in token implementation of order of retirement issued a cheque of Rs.27,89,683. 9 towards full and final settlement of provident fun
6. Whether the Defendant No.3 withheld a sum of Rs.45,70,214/- on account of other benefits payable to the Plaintiff and assured that the same will be paid in due course?
7. Whether the Plaintiff has violated the orders of superior Courts in pursuing his remedies?
8. Whether the Defendants have prepared a cheque for balance amount of Rs. 36,50,514/- towards second installment, which was not accepted by the Plaintiff?
9. Whether the Plaintiff has approached the Defendant No.3 for settlement of his account as per para-15 of the Written Statement file by Defendant No.3?
10. Whether the Plaintiff is entitled for a sum of Rs.95,70,214/- being legal heirs including damages and compensation suffered by him?
11. Whether the Plaintiff is entitled for reliefs sought in the suit?
12. Whether the Defendant No.3 has shown in their record the second installment of Rs.36,50,514/- as paid in favour of the Plaintiff?
13. What should the Decree be?"
5. Plaintiff examined himself only and from the side of Defendants their sole witness-Mr. Sabpio Soomro, has testified.
6. Findings on the Issues are as follows: Affirmative.Affirmative.
ISSUE NO.2Negative ISSUE NO.3Affirmative.
ISSUE NO.4Affirmative.
ISSUE NO.5Affirmative.
ISSUE NO.6Accordingly.
ISSUE NO.7Negative ISSUE NO.8Affirmative.
ISSUE NO.9Negative ISSUE NO.10As under.
ISSUE NO.11As under.
ISSUE NO.12Affirmative.
ISSUE NO.13As under.
7. Arguments heard and record considered.
8. During proceeding vide Order dated 08.12.2021, Plaintiff was paid a sum of Rs. 1,622,485/- (rupees one million six hundred twenty-two thousand four hundred eighty-five only) and Rs.713,426/- (rupees seven hundred thirteen thousand four hundred twenty-six only) by the Defendants No.3 and 1, respectively. Out of the total claim of Rs.4,570,214/- (rupees four million five hundred seventy thousand two hundred fourteen only); whereas, the latter has claimed Rupees Five Million towards damages and compensation.
9. In the Order dated 20.04.2022, it was observed that claim as mentioned in Paragraph-6 of the Constitutional Petition No.D-1432 of 2006, earlier filed by the present Plaintiff as Petitioner, the claim was not disputed as such by the present Defendant No.3 in their Para-wise Comments.
ISSUES.NOS.1, 2 AND 7.
10. Since these are legal Issues relating to the maintainability of this Suit, therefore, they are decided first.
11. In view of the above undisputed fact that part payment was made by Defendant No.3 to Plaintiff during proceeding and those Orders were not appealed against, show that claim of Plaintiff at least to the extent of above paid/settled amount has been accepted by Defendants. Although for the entire claim of Plaintiff, the discussion will be done in the following Paragraphs after evaluation of the evidence, but at the same time it shows that at least the above amount earlier payable to Plaintiff was withheld by the Defendant No.3, thus the grievance of Plaintiff was a continuous one, therefore, the present Lis is neither barred by any law or time barred. No Decisions of the Courts have been violated by the Plaintiff in pursuing his remedy. Accordingly Issue No.1 is decided in Affirmative and Issues Nos.2 and 7 are decided in Negative, consequently, the present Suit is held to be maintainable.
12. In his Affidavit-in-evidence/Examination-in-Chief, Plaintiff, who examined himself as the sole witness, reiterated his stance. He has produced documents relating to his service, including Acceptance Letter dated 30.01.2006-Exhibit P/2 by Defendant No.3 (Javedan Cement Limited) for premature Retirement under the Voluntarily Separation from Service-VSS/Voluntary Retirement Scheme-VRS, handing/taking over of charge by Plaintiff vide a Correspondence dated 30.01.2006- Exhibit-P/4 and most importantly, Letter dated 18.02.2006-Exhibit-P/5 with a captioned "FULL AND FINAL SETTLEMENT OF PROVIDENT FUND", wherein it is mentioned that an amount of Rs.2,789,683.98/- (rupees two million seven hundred eighty-nine thousand six hundred eighty-three and ninety eight paisa only) has been paid being full and final settlement of Provident Fund; documents relating to earlier litigation including afore -mentioned Constitutional Petition and Para-wise Comments. It is also necessary to mention that these documents have not been disputed by the defense's sole witness-Mr. Sabpio Soomro, who testified on behalf of Defendant No.3. The evidence of both witnesses, Plaintiff and Defendant No.3, leads to the conclusion that Plaintiff was retired before the privatization of Defendant No.3.
Secondly, the Plaintiff could not be contradicted on his specific assertion that he was paid only a sum of P.S.2,789,683.98 (rupees two million seven hundred eighty-nine thousand six hundred eighty-three and ninety eight paisa only) towards Provident Fund only and his further service dues was not pat although a Cheque of Rs.3,650,514/- (rupees three million six hundred fifty thousand five hundred fourteen only) dated 15.02.2006 was prepared and the same was also shown in the Account Book of Defendant No.3.
13. On the other hand, in his Evidence, the sole witness of Defendant No.3 has admitted that a above sum of Rs.2,789,683.98 (rupees two million seven hundred eighty-nine thousand six hundred eih- three and ninety eight paisa only) was paid 30.02.200 6 to Plaintiff as G.P. Fund in pre-privatization period of Defendant No.3. The said witness could not substantiate the pleadings of Defendant No.3 that Voluntary Retirement Scheme-VRS was subject to approval of the Board of Directors. To a specific question, he admitted the contents of Para 5 of the Para-wise Comments, filed by the Defendant No.3 in the Constitutional Petition No .1432 of 2016 (ibid), produced in the evidence by Plaintiff as Exhibit P/12. To a specific question, he has answered in affirmative that none of the documents exhibited by the Plaintiff are disputed. He did not deny the suggestion that balance amount of VRS was less and it was objected to by Plaintiff and resultantly VRS of Plaintiff was cancelled.
14. The aforementioned Exhibit-P/12 is Para-wise Comments (at page-55 of the Evidence File) to the earlier Constitutional Petition filed by the Petitioner. It is necessary to reproduce the Paragraph- 5 of the Parawise Comments and the Correspondence Paragraph-6 of the Constitution Petition (of present Plaintiff), respectively.
"5. As regards Para-6 of the Petition it is evident that Petitioner unreasonably avoided to receive the said Cheque, for reasons not known to the Respondent No.3."
"6. That as against payable balance amount of Rs.45,70,214/-, the Respondents as learnt, have prepared a second cheque in the sum of Rs.36,50,514/- only which is not acceptable being much less to the entitlement of the petitioner."
15. In the above Paragraph-6 of the earlier C.P. although it is mentioned that payable balance is Rs.4,570,214/- (rupees four million five hundred seventy thousand two hundred fourteen only), but a second cheque in the sum of Rs.36,50,514/- (rupees three million six hundred fifty thousand five hundred fourteen only) was prepared by the Petitioner, which fact is not denied by the Defendant No.3 in their corresponding Para-5 (supra). Secondly, one of the important document is the Exhibit- P/5 (ibid) dated 18.02.2006, which is an admitted document, where under, an amount of Rs.27,89,653.89 was paid towards only Provident Fund. Had this been the full and final settlement under the Voluntarily Separation from Service-VSS, the said undisputed correspondence should have been mentioned that fact; hence, stance of Plaintiff for non-payment of dues is further substantiated by the above pleadings of Constitutional Petition and the testimony of Defendant's witness in which he has not denied the suggestion that balance amount of Voluntarily Retirement Scheme-VRS was less.
But at the same time, the Plaintiff in his pleadings and evidence has failed to justify that the total balance amount payable towards VSS is Rs.4,570,214/- (rupees four million five hundred seventy thousand two hundred fourteen only) and not Rs.3,650,514/- (rupees three million six hundred fifty thousand five hundred fourteen only). Onus is on Plaintiff to prove this higher figure of Rs.4,570,214/-, which he could not successfully discharge, therefore, in my considered view the balance amount towards VSS was Rs.3,650,514/- (rupees three million six hundred fifty thousand five hundred fourteen only) only.
16. Consequently, from the above amount of Rs.3,650,514/- (rupees three million six hundred fifty thousand five hundred fourteen only), the Plaintiff during present proceeding has already received a sum of Rs.16,22,485/- (rupees sixteen lacs, twenty two thousand, four hundred and eighty five only) and Rs.713,426/- (rupees seven lacs, thirteen thousand, four hundred twenty six only), leaving the balance payment of rupees thirteen lacs, fourteen thousand, six hundred and three [Rs.1,314,603/-] towards the service dues under the VSS/VRS.
17. Adverting to the claim of damages of rupees five million. The pleadings of the Plaintiff and contesting Defendant No.3 as well as evidence is considered in order to appreciate this particular claim. In the Written Statement, interestingly the stance of Defendant No.3 is that the earlier litigation consumed considerable time. In Paragraph-15, it is mentioned that request of Plaintiff may be considered by the Accounts Office of Defendant No.3 without specifically stating the actual amount due and payable [if any]. Defendant No.3 has not adduced any convincing evidence, that why the remaining dues of the Plaintiff was not paid within time, rather, stance of Defendant No.3 in its Written Statement is belied during present proceeding, as, it is mentioned in the Order dated 08.12.2021, that the official of the Defendant No.3 through a Statement has shown an amount of Rs.1,622,485/- (rupees one million six hundred twenty-two thousand four hundred eighty-five only) was payable together with other amount to Rs.713,426/- (rupees seven hundred thirteen thousand four hundred twenty-six only), which was paid out by the Privatization Commission. Even if this amount was payable as per the calculation of Defendant No.3, then it should have been paid back long time, to show a fair and reasonable treatment by the Defendant No.3 of its former employee [Plaintiff], who has admittedly given prime time of his life in the service of Defendant No.3; but, this was not done. During evidence, what has been proved by Plaintiff is that, an amount of Rs.3,650,514/- (rupees three million six hundred fifty thousand five hundred fourteen only) was/is due and payable, out of which above amounts were paid during present proceeding, as discussed in the foregoing paragraphs.
18. The above conduct of Defendant No.3 is deplorable and justifies that Plaintiff should be compensated by awarding damages; however, damages as claimed fat s within the category of special damages for which Plaintiff is required to lead a positive evidence to discharge burden of proof, which in the present case has not been done. But, at the same time, by applying the rule of thumb, general damages can be granted. In this regard, the two Judgments of Hon'ble Supreme Court, handed down in the Cases of (i) Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore [PLD 1996 Suprem e Court 737] and (ii) Abdul Majeed Khan v. Tawseen Abdul Haleem and others [2012 CLD (Supreme Court of Pakistan) page-6) are relevant, and rule laid down is applicable to the facts of present case, inter alia, as it is logical to conclude that non- payment of service dues has not only caused monitory losses to Plaintiff but it is coupled with mental agony, as is evident from the present record, that Plaintiff in order to get his legitimate service dues, had to undergo a protracted litigation. More so, specific assertion of Plaintiff about suffering mental agony was not challenged in the cross-examination, meaning, it is accepted. In Sufi's case [ibid] the scope of damages vis--vis mental agony has been discussed and the conclusion is that there can be no yardstick or definite principle for assessing damages in such cases, which are meant to compensate a party who suffers an injury. The determination criteria should be such that it satisfies the conscience of the Court, depending on the facts and circumstances of the case.
Consequently, in view of the above a sum of rupees one million as damages is a fair compensation to address the grievance of the Plaintiff. This amount is payable by Defendant No.3.
ISSUES NOS. 3, 4 AND 5.
19. In view of the above discussion, both Issues are answered in Affirmative that Defendant No.3 lodged a Scheme of Voluntary Separation from Service (VSS)/Voluntary Retirement Scheme (VRS) and vide an Acceptance Letter of 30.01.2006 (Exhibit-P/2), it was communicated to Plaintiff, subsequently, it was acted upon by Defendant No.3 while paying Provident Fund of Rs.2,789,683.98 (rupees two million seven hundred eighty-nine thousand six hundred eighty-three and ninety eight paisa only) but not the entire service dues.
ISSUE NO. 6.
20. The Defendant No.3 has withheld a sum of Rs.3,650,514/- (rupees three million six hundred fifty thousand five hundred fourteen only) and not Rs.4,570,214/- (rupees four million five hundred seventy thousand two hundred fourteen only) considering the discussion in the foregoing Paragraphs, out of which above amounts have been paid during present proceeding and a sum of Rs.1,314,603/- (rupees thirteen lacs, fourteen thousand, six hundred and three only) is still due and payable. Accordingly this Issue is answered accordingly.
ISSUES NOS. 8, 9 AND 12.
21. These Issues ate interlinked. The evidence brought on record and the conclusion drawn in the preceding Paragraph is that a Cheque for Rs.3,650,514/- (rupees three million six hundred fifty thousand five hundred fourteen only) was prepared but it was not handed over to Plaintiff. Hence, these Issues are answered in affirmative, negative and affirmative, respectively.
ISSUES NOS. 10, 11 and 13.
22. Plaintiff is entitled for a money Decree of rupees thirteen lacs, fourteen thousand, six hundred and three [Rs.1,314,603/-] in addition to the damages of rupees one million [Rs.1,000,000/-].
23. Plaintiff is also entitled for the costs.