This civil revision arises out of the judgment and decree, dated 19-6-1986, by which a learned Additional District Judge at Gujrat, dismissed the appeal of the petitioner against the judgment and decree, dated 19-11-1984, whereby the Senior Civil Judge, Gujrat, had decreed the suit of the plaintiff --respondent.
2. On 20.10.1971 Ch. Abdul Ghani respondent was appointed by the Khyber Insurance Company Limited as the Manager, Northern Zone, with headquarters at Rawalpindi. He was confirmed in service on 1-8-1972. Under the Life Insurance Nationalization Order, 1972 (President's Order No.10 of 1972), all the Insurance Companies carrying on life insurance business were taken over and merged in a new organization known as State Life Insurance Corporation of Pakistan., the petitioner herein. Life Department of Khyber Insurance Company Ltd., was also merged in it. The nationalisation of life insurance business took effect from 19-3-1972 and the petitioner-Corporation was established on 1-10-1973 wherein all the assets and liabilities of all the taken over Insurance Companies carrying -on life business were vested. The petitioner-Corporation terminated the service o!' the respondent by a letter, dated 19-3-1973, issued under paragraph No.13 of clause VIII, sub-clause (b) of letter bearing NO.ADV/4957/91 dated October 20/November 3, 1971, by an officer of the petitioner-Corporation (whose name and designation are not decipherable). Aggrieved by this order, the respondent filed a suit in the Court of Civil Judge, Rawalpindi, on 27-3-1973, the plaint of which was rejected by him on 11-5-1973 under Order 7, Rule 11, C.P.C. On account of lack of cause of action. Against that order, the respondent went up in appeal which was dismissed by the learned District Judge, Rawalpindi on 15-1-1974 for non-prosecution. He then instituted Writ Petition No.1878-S of 1974 in this Court, challenging his termination order but it was dismissed on 10-10-1974.
3. The respondent brought another suit against the petitioner on 18-3-1976 in the Court of Senior Civil Judge, Gujrat, challenging the validity of the same termination order. It was contested by the petitioner but later it was proceeded against ex parte. However, the learned trial Judge returned the plaint to the respondent under Order 7, Rule 10, C.P.C. For presentation to the proper Court, vide his order, dated 12-4-1979. Against this order, the respondent went up in appeal and the learned Additional District Judge, vide his judgment, dated 16-2-1981, remanded the case to the trial Court for fresh decision after, framing issues. The learned trial Judge, complying with the directions of the remand order, framed the following issues:--- Issues.
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the suit is barred under section 11, C.P.C.? OPD
(3) Whether the plaintiff has no locus standi? OPD
(4) Whether the plaintiff is estopped by his conduct to bring the present suit? OPD
(5) Whether the plaintiff has no cause of action? OPD
(6) Whether the orders of termination of the Services of the plaintiff are illegal and void for the reasons stated in para. No.5 of the plaint? OPP
(7) Relief.
After recording the evidence of the parties, he, vide his judgment and decree, dated 19-11-1984, decreed the suit. Aggrieved by this decision, the petitioner went up in appeal. During its pendency the petitioner adduced additional evidence with the permission of the Court. However, the appeal of the petitioner was dismissed, vide judgment, dated 19-6-1986, giving rise to this civil revision.
4. I have heard the learned counsel representing the parties at some length. The perusal of the record shows that the learned Civil Judge at Rawalpindi had, vide his order, dated 11-5-1973, while deciding the stay application of the respondent arising out of his suit challenging the termination order, also rejected the plaint of the suit under Order 7, Rule 11, C.P.C. On account of lack of cause of action. The relevant portion of the judgment is reproduced hereunder:--- "That apart, in my opinion, the plaintiff has absolutely no cause of action as the suit for a declaration and an injunction is not at all maintainable. Admittedly, the plaintiff was an employee of a limited company which in spite of having been taken over by the Government, according to the plaintiff, himself, carries the same terms and conditions. Obviously, therefore, the principle of Master and Servant is involved in this case. A contract for personal service as will appear from section 21(6) of the Specific Relief Act, 1877 cannot be specifically enforced. Hence declaratory suit in civil court is not competent. Furthermore, in view of the judgment of our own High Court reported as Irshad Muhammad Mirza v. Road Transport Corporation, West Pakistan PLD 1966 Lah. 623 and of the Supreme Court of Pakistan in Chairman, EPIDC v. Rustam A.I PLD 1966 SC 848, it is not possible for the plaintiff to maintain the present suit. In both these cases it was held that the safeguards provided for the benefits of the public servants in Art.178 of the Constitution were not available to the employees of statutory Corporation and that a writ was not a proper remedy to a dismissed employee either for his restoration to the post from which he had been dismissed or even for a declaration that the order of his dismissal was ultra vires. It was observed in both the precedent cases that the general law of Master and Servant applied to terminate the service of an employee found guilty of misconduct. If, however, the order of dismissal is mala fide or is otherwise in breach of any terms and conditions of the employment, the only possible remedy available to such an employee would be to sue for damages. Upon this view of the matter, therefore, the suit is plainly misconceived and without any cause of action. I would, therefore, reject the plaint under Order VII, rule 11 of the Code of Civil Procedure. The application under Order 39, Rr. 1 and 2 and other miscellaneous applications, in which defendants do not have even notice, stand automatically dismissed. In the peculiar circumstances of the case, however, I would leave the parties to bear their own costs."
The respondent had gone in appeal against that order but did not persue it and it was dismissed in default, thereby conferring finality on the order of the learned Civil Judge, dated 11-5-1973. It is still in the field. He then filed Writ Petition No-1878/S/1974 which was dismissed in limine, vide order dated 10-10-1974, with the following observations:--- "The petitioner had an adequate remedy by way of suit which he had duly availed of and if the decision of the Civil Court was incorrect or against law he should have pursued his remedy before the proper forum. He appears to have accepted the said order of the civil Court and after a period of nearly 15 months of the dismissal of the said suit has come to this Court. The condition on which jurisdiction under Article 199 can be exercised namely that no other adequate remedy is available, does not appear to be satisfied in this case. The petitioner relied upon Muhammad Nazir Khan v. Dr. Mubashar Hasan and another (PLD 1.974 Lah. 49), in support of his argument that this writ petition was competent. The circumstances of that case were quite exceptional and the said precedent is not apt to the circumstances of this case."
5. The petitioner on the same subject-matter subsequently brought another suit in a Civil Court at Gujrat and it culminated into this civil revision.
7. The perusal of the appellate judgment, dated 19-6-1986, indicates that before him only Issue No.6 was agitated and it decided only this issue by affirming the finding of the trial Court. Learned counsel for the petitioner seriously disputes the observations of the appellate Court that before it only Issue No. 6 was agitated. He contended that the questions of maintainability of the suit, bar of res judicata, non-existence of locus and lack of cause of action as embodied in Issues Nos. 1, 2, 3 and 5, were seriously involved in this case and were duly agitated before the appellate Court but they were skipped over purposely. According to him, these issues were not attentively attended to even by the learned trial Judge, rather, his discussion on the issue of res judicata was irrelevant.
8. The learned Trial Judge in the impugned judgment, dated 19-11-1984, while discussing Issue No. 2 concerning res judicata, with reference to the judgment, dated 12-4-1979, passed by his predecessor-in-office and remand order, dated 16-2-1981, passed by the learned Additional District Judge, Gujrat on the appeal filed against that judgment, remarked that the issue of res judicata had already been decided. The perusal of the order, dated 12-4-1979, shows that while returning the plaint. To the plaintiff-respondent under Order 7, Rule 10, C.P.C. For presentation to the proper Court on account of lack of territorial jurisdiction, also referred to the preliminary issue of res judicata and its decision by him against the defendant-petitioner, vide earlier order, dated 27-9- 1978. Copy of this order, if any, is not available on the record and its tenor is not ascertainable. The judgment, dated 12-4-1979, of the trial Court was challenged and the learned Additional District Judge, Gujrat, vide his judgment, dated 16-2-1981, after setting aside that judgment, remanded the case for redecision after framing issues arising out of the pleadings of the parties and recording their evidence. While doing so, if he had applied his mind to the outcome of earlier round of litigation between the parties at Rawalpindi and had carefully gone through the order, dated 11-5- 1973, passed by the learned Civil Judge Rawalpindi, rejecting the plaint of respondent's earlier suit for want of cause of action, which order, on the dismissal of his appeal in default, had attained finality, he would have cut the matter short, instead of remanding the case and involving the parties in another round of litigation. But if he, for any reason best known to him, had chosen that wrongful course, then the learned Senior Civil Judge, Gujrat, who, after the remand, had handled the case, framed the issues and recorded the evidence of the parties, could record proper findings on Issues Nos.1, 2, 3 and 5 but he too conveniently ignored the outcome of previous litigation of the parties at Rawalpindi and proceeded to decree the suit vide his judgment, dated 19-11-1984, only after discussing Issue No.6 and deciding it in favour of the plaintiff respondent. Merits of the cases, as embodied in this issue, could only be gone into, if the suit was maintainable and the plaintiff- respondent had a cause of action and locus standi. This aspect of the matter was not examined by him in the light of evidence available on the record and he resorted to non-reading of material evidence.
9. Similarly, when the matter again came up in appeal before the learned Additional District Judge, Gujrat (Mr. Zulfiqar A.I Khan), he too dealt with it casually, despite the fact that during the pendency of appeal the order of the High Court in Writ Petition No. 1878/S/1974 had come on the appellate record byway of additional evidence produced by the petitioner-defendant and on the basis of this order alone the appeal could be thrown out, but this order too was conveniently overlooked by him and not even mentioned it in the appellate judgment, dated 19-6-1986, now under challenge.
In order to avoid the consideration and application of first round of litigation between the parties at Rawalpindi and its outcome and the decisive observations of the High Court in the abovementioned Judgment the relevant portions whereof have been reproduced above, Issue Nos.1, 2, 3 and 5 were never discussed on the plea that they never pressed by the learned counsel for the appellant (now petitioner). How he could omit to press these issues into service the findings of the learned Civil Judge. Rawalpindi, and decision of the High Court in the writ petition, which were his mainstay for the defence of his client?
10. The learned Civil Judge, Rawalpindi, in his judgment, dated 11-5-1973 had clinched the whole issue in an exhaustive manner by referring to the appropriate case-law on the subject and had come to a correct conclusion that plaintiff's suit was not maintainable and he had no cause of action. His judgment had attained finality due to dismissal of plaintiff-respondent's appeal for non- prosecution. This judgment was taken note of and approved even by the High 'Court in the writ petition. Therefore, there was no justification for the plaintiff-respondent to re-open the matter by instituting a fresh suit at Gujrat on the same cause of action and to drag it on for such a long time.
11. In view of the above, the civil revision is accepted, both the impugned orders of both the Courts are set aside and the suit of plaintiff respondent is dismissed with no order as to costs as he has already lost the job.