' After retirement from Government service, the plaintiff was appointed by means of a letter dated 28-4-1959 (Exh. P. 1) as a Chief Accountant in the Electricity Department of the Water and Power Development Authority (hereinafter called the WAPDA). It is conceded before me by the plaintiff- appellant, who is present in person that the appointment was on yearly basis and was extended from year to year until January 1966, when the extension was not made for another year but it was allowed to continue "till further orders." The plaintiff was relieved in terms of his contract of his duites on 30-6-1966. He was given four months' salary for accumulated earned leave. Not being satisfied with this, he filed a suit which has given rise to the present appeal in which his case was:-
(a) that he was eligible to have leave on average pay for a period of seven months and twenty- four days. Out of which salary for four months has only been granted to him and that he should be held to be eligible to have earned leave (and actual pay in lieu thereof) for the remaining three months and twenty-four days as well.
(b) That similarly he was eligible to get half average pay (and actual salary in lieu thereof) for seven months and two days. The Department had not granted any half-average pay to him either.
The suit was resisted by the defendant WAPDA and the learned Civil Judge, on the pleadings of the parties, framed the following issues:-
(1) Is the suit barred under section 19 (2) of the WAPDA Act, 1958?
(2) Is the suit maintainable in the present form?
(3) Is the suit barred under section 11, C. P. C. In view of the dismissal of the writ petition?
(4) Is the suit properly valued for the purposes of court-fee?
(5) Is the suit barred under Order II, rule 2 of the C. P. C. ?
(5-A) Whether the impugned rule effective from 2-2-1964 has no retrospective effect? If so with what effect?
(5-B) Whether the plaintiff is estopped from bringing this suit?
(6) Relief."
' On issue No, 1 the learned Civil Judge held the suit as barred in view of section 19 (2) of the WAPDA Act. Issue No, 2 was decided in the affirmative; issue No, 3 in the negative; issue No, 4 in the affirmative and issue No, 5 in the negative. On issue No, 5-A it was held that the rule was not retrospective but to give relief on the basis of that rule, was within the discretion of the Department and as such, the Court could not interfere with that discretion. Issue No, 5-B was answered in the negative. As a result of the findings on issues Nos. 1 and 5-A, the learned Civil Judge dismissed the suit with costs.
2. The plaintiff filed an appeal. The learned Additional Distrist Judge maintained the findings of the Court below and dismissed the appeal with costs. The plaintiff has come up in second appeal to this Court.
3. The first point argued by the learned counsel for the plaintiff was that section 19 (2) of the WAPDA Act has wrongly been considered as a bar to the institution of a suit of the present kind. The said subsection reads as follows :- "(2) No suit, prosecution or other legal proceedings shall lie against the Authority, the Chairman, Members or officers and servants of the Authority in respect of anything done cr intended to be done, in good faith under this Act."
' This section is to be read with section 3 (2) of the WAPDA Act which reads as follows:- "(2) The Authority shall be a body corporate, shall be entitled to acquire and hold property, shall have perpetual succession and a common seal and shall by the said name sue and be sued."
' Reading the aforesaid two provisions of law together, there will appear some inconsistency between subsection (2) of section 3 and subsection (2) of section 19, whereas the former authorises the institution of suits but the latter prohibits the same except in cases where the impugned orders have not been passed or impugned actions have not been taken in good faith. It is not necessary to extend the discussion any father because, in my opinion, subsection (2) of section 19 provides only a personal immunity to the authorities and the persons mentioned therein and it does not otherwise preclude filing of suits against WAPDA for which sanction exists in subsection (2) of section 3 of the Act. The finding of the Courts below that the suit was barred.
Therefore was not correct. Even otherwise, subsection (2) of section 19 leaves scope for suits where orders passed and actions taken are not in good faith. In the instant case, we have therefore, to see whether the orders of the defendants can be said to have been properly and lawfully passed. If not, they will be suffering from "malice in law" and would be subject to scrutiny by a civil Court. This will involve discussion of the question as to whether the plaintiff has any right for the accumulated earned leave to the extent and in the manner he claims. The subject-matter of leave is contained in rules 5, 6 and 7 of the "WAPDA Employees Leave Rules" which read as follows:- "5. Earned Leave.-(a) Leave on average pay shall be earned at the rate of 1/11th of the period spent on duty and the maximum that may be accumulated shall be 4 months. Any period earned in excess of 4 months shall he credited to a separate head in the leave account from which leave may be allowed on average pay:-
(1) on medical certificate,
(ii) for education or
(iii) rest and recreation outside Pakistant and India.
(b) Leave on half average pay shall be earned at the rate of one month for each year of duty and accumulation of such leave shall be without limit. It shall be permissible to convert leave so allowed into leave on average pay on production of a medical certificate upto a maximum of 12 months on average pay. This conversion will be allowed at the rate of one day of leave on average pay for two days of leave on half average pay.
(c) The earned leave may be availed of during or after the period of service, but in the case of leave after the period of service shall be limited to four months."
(This last sentence was added on 2-12-1964). The grant of leave after the period of service will be at the discretion of the Authority in cases in which service has been terminated for reasons other than the following :-
(1) Superannuation!
(2) Abolition of post; and
(3) Expiry of contract.
6. Amount of leave to be taken.-The amount of earned leave on average pay that may be taken at one time shall not exceed four months. This limit may be raised to-
(a) Six months when leave is taken-
(i) on medical certificate, or
(ii) for rest and recreation outside Pakistan or India, and
(b) 12 months for education outside Pakistan or India.
7. Leave salary.-Leave salary shall be calculated on the basis of average pay drawn during the 12 complete months immediately preceding the month in which an employee proceeds on leave, and shall be payable in arrears."
' A perusal of the above rules will show that if a person wanted to take earned leave on the expiry of his service then he could not be given leave more than four months. This is what the defendant In this case has done and its order, therefore, cannot he called illegal in any manner. When confronted with this situation, learned counsel submitted that the following sentence in sub-rule
(c) of rule 5 was added on 2-12-1964:- "but in the case of leave after the period of service shall be limited to four months."
' Learned counsel argued that this additional sentence cannot be given any retrospective effect and, therefore, the leave which had already been earned should have been calculated according to the original Rule 5 on the basis of which, the plaintiff was allegedly entitled to the leave as be claims. The contention has no force. In the contract of employment with the plaintiff, it was written that:- "Travelling allowance and leave at such rates as may be prescribed by Authority from time to time."
' Which means that provision with regard to leave was liable to be made from time to time. It is conceded that at the time when the plaintiff joined the service no rule on the subject existed and the WAPDA Employees Leave Rules were promulgated on 30-10.61 (to be effective from 1-4-1958).
The main rules, therefore, did not exist at the time the plaintiff joined service and any addition in them, during the period of service, would govern the plaintiff. Even apart from this, Rule 6, as reproduced above, was quite comprehensive and stated that if earned leave was to be taken at one time, then it could not exceed four months. It is conceded that the leave in question was being claimed at one time and in that view of the matter it could not exceed four months.
5. Another thing to be noticed is that in the grounds of appeal filed in this Court, the plaintiff has written as follows:- "The brief facts leading to the present appeal are that appellant was appointed by the respondent on 1-5-:959 initially as Chief Accountant, Electricity Department and thereafter as Chief Auditor, WAPDA on contractual basis."
In the "WAPDA Employees Leave Rules", it is written that these rules shall apply to alt employees except, "those engaged on special terms on contractual basis." From the statement of facts, as given in the above-mentioned memorandum of appeal, therefore, it is evident that on his own pleadings, the plaintiff was not entitled to the benefit of the rules which be is trying to invoke in his case. If the Department has shown any indulgence to him in this respect, he should be contented with the same and should not have extended his arms to claim more.
6. The result of the above discussion is that this appeal has no merits and is dismissed with costs.