Initially ,this suit was field on 26-3-1978 for declaration and compensation valued at Rs,2,00,000 by the plaintiff as forma pauperis under Order XXXIII, Rule 1, C.P.C. and was numbered as J.M.6 of 1978.
However, on 2-9-1978, at the request of the plaintiff, it was converted into a suit upon payment of required Court fee. On 21-10-1978, plaintiff was permitted to amend his plaint for the purpose of reducing the amount of damages/compensation from Rs,2,00,000 to Rs,72,000 and was permitted to pay the court-fee on the reduced amount of valuation. As a consequence to this development, the first amended plaint was filed on 30-10-1978 alongwith the required Court fee. There is another amended plaint on record which was filed on 26-4-1978 and marked as Exh.2 but none of the parties is in a position to explain as to how this amended plaint was filed. No order of this Court is available on case file. During the pendency of this suit, according to the plaintiff, he stood retired upon attaining the age of superannuation. As such, application for amendment of plaint (C.M.A.
847 of 1993) was filed which was granted by this Court on 23-8-1993. As a result of that order, the plaintiff has filed amended plaint on 12-10-1993 and enhanced the amount of compensation/damages upto Rs,96,87,000. The required additional Court-fee was also paid. The defendant has filed its written statement to the amended plaint on 4-4-1995 which was brought on record as Exh.5. Such last amended plaint was allotted Exh.l. Following is the reliefs prayed for by the plaintiff vide Exh.1:--
(a) For declaration that the plaintiff remained in the service of the defendant till he reached the age of superannuation on 30-7-1990.
(b) For declaration that the plaintiff's service has been determined illegally by the defendant without any justification and lawful authority and the plaintiff is entitled to claim the monetary benefits of service till 30-7-1990.
(c) That the decree for recovery of Rs,96,87,000 from the defendant together with a Mark-up @ 15% per annum from 30-7-1990 till the realisation may kindly be granted.
(d) Any other relief that this Honourable Court may deem expedient.
(e) Cost of the suit.
2. The case of the plaintiff is that he joined the services of the defendant on 3-11-1949 as Grade-II Clerk and due to his hard work, he was promoted to Class I Officer on 23-10-1967 and was posted as Deputy Assistant Controller, Exchange Control at Lahore Office. It is claimed by the plaintiff that due to his initiative and hard work, the defendant was able to recover appreciable amount of foreign exchange of worth Rs,20,000,000 from abroad. Subsequently, in the year 1972, he was transferred to Karachi. It is further claimed in the plaint that the plaintiff, after his transfer to Karachi, continued with his efforts for repatriation of foreign exchange from abroad and as he was not happy with his colleagues, he brought certain facts to the knowledge of the then Federal Minister for Finance Government of Pakistan on 28-1-1974. During this period, certain facts pertaining to the working of the State Bank of Pakistan were highlighted in the national press which, as claimed by the plaintiff made the defendant and its employees more furious and revengeful against him. As a result of his hard working, certain senior employees of the State Bank started victimising him and as a result several adverse remarks were recorded in the service record of the plaintiff during the year 1972-73. However, on representation made by the plaintiff such remarks were expunged. Again the annual increment which was due on 1st September, 1972 was withheld without assigning any reason and till February, 1973 such increment was not awarded. The real controversy started when the plaintiff who, at the relevant time, was a Senior Class-I Officer was appointed Assistant Currency Officer in the year 1973. It is claimed in the plaint that during this period, plaintiff developed some chest disease but still was compelled to work in the currency notes department; that due to bad health, the plaintiff obtained one months' leave with effect from 2-10-1972 and continued to be on leave till 30-5-1973. It is admitted in para.20 of the plaint that during this period on 22-9-1973, the plaintiff was served with a show-cause notice to which he submitted his reply on 23-10-1972. He requested to the Governor of State Bank of Pakistan, through his written report, dated 5-2-1974, to hold an impartial and independent inquiry; that on 21-3-1974, a charge-sheet was framed; that there were some proceedings conducted against the plaintiff under orders of the defendant. It is claimed that such proceedings were not according to the regulations of State Bank .of Pakistan.
3. One of the controversies involved in this suit revolves around the question of resignation of the plaintiff. In the first instance, it is claimed by the plaintiff that such resignation was not voluntary and that subsequently it was withdrawn. Secondly, it is claimed by the plaintiff that his so-called resignation was not accepted by the competent authority and; therefore, it cannot be treated as a valid and lawful resignation and, therefore, he is deemed to be in service of State Bank of Pakistan.
Contrary to this, it is claimed by the defendant that the plaintiff's resignation was voluntary and was acted upon and that no estoppel runs against him to claim that he was in service till attaining the age of superannuation. In its written statement, the defendant has raised several pleas on factual and legal ground challenging the claim of the plaintiff. It was on the basis of these allegations that in the final plaint the amount of damages/ compensation was enhanced from Rs,72,000 to Rs,96,87,000. Following paragraphs from the plaint (Exh.1) are relevant to determine this controversy which read as follows:-- "(26)That under the aforesaid circumstances and serious conditions and by giving mental torture in which the plaintiff has been placed by them with victimising attitude of the functionaries of the State Bank of Pakistan, the plaintiff made another representation to the Governor of State Bank as his last resort, enumerating his grievances and cried for justice and in that letter he also desired to resign from his post if he failed to get any protection from the Governor. The letter was addressed to the Governor as the head of the institution....
(28) That immediately after receiving his representation dated the 1st June, 1974 and without placing his representation before the Central Board of Directors, the plaintiff received a letter, dated 20th June, 1974 signed by Mr. I.H. Qarni, the Director of Administration in which inter alia, it was mentioned that various charges levelled by the plaintiff are denied and further intimating the plaintiff the Governor out of grace and indulgence against the plaintiff had accepted the ' voluntary resignation' from the services of the Bank on and from the 1st September,. 1974.
(29) That the plaintiff, however, mentioned that neither the Governor of State Bank was competent to accept the resignation of the Class I Officer of the State Bank of Pakistan nor the communication of the acceptance of the resignation by the Director of Administration was legal....
(32) That the plaintiff maintains that his resignation from service dated the 1st June, 1974 was conditional; it was not voluntary resignation as termed in letter of Mr. I.H. Qarni, Director of Administration, State Bank of Pakistan as the plaintiff as his last resort showed his desire to resign from the service in view of the agonies and mental torture under which he has been placed since 1972.
(33) That the plaintiff submitted a letter, dated the 1st June, 1974 was written by him under a great pressure and since his resignation has not been properly accepted and he was fully authorised to withdraw the same and he intimated his desire to withdraw his letter, dated the 1st June, 1974 before the letter was placed in the meeting of the Central Board of Directors. The plaintiff further claims that he is still in services of the State Bank of Pakistan and shall continue his services are properly determined under the (Staff) Regulation of the State Bank of Pakistan. ...
(37) That the plaintiff regrets to submit here that as further harassment of the plaintiff the authorities of the State Bank took no step to clear even otherwise the dues of the plaintiff though a full one year has been passed after the 1st September, 1974...."
4. As a result of the pleadings of both the parties, following issues were adopted by consent of the parties:-- "(1) Whether the suit is not maintainable?
(2) Whether the suit is barred under the Specific Relief Act?
(3) Whether the suit is barred under the Limitation Act?
(4) Whether the plaint does not disclose a cause of action?
(5) Whether the plaintiff is in the service of the defendant after acceptance of his resignation?
(6) Whether the plaintiff's services have been illegally determined by the defendant and in the alternative he is entitled for a compensation?
(7) What should the order be?"
5. In support of his claim, the plaintiff has examined himself while on behalf of the defendant one Deputy Director was examined. Both the parties have filed their written arguments which have been perused. I have heard their oral arguments as well. My findings on the above issues are as follows:-- Issues Nos.1 to 4.
6. No specific plea as to the maintainability of this suit was raised by the defendant in either written statement or written arguments. However, during the course of oral arguments, Mr. Abdul Sattar contended that the suit is not maintainable in view of the fact that no cause of action was available to the plaintiff to file the instant suit. This is a suit for declaration to the effect that the plaintiff's services were illegally, unjustly and without lawful authority dismissed by the defendant and, therefore, he is entitled to monetary compensation for the period for which he was entitled to serve the defendant. In respect of legality of his resignation, the plaintiff has cited a decision of a Division Bench of this Court in the case Muhammad Khan v. Pakistan PLD 1958 Kar.
75. In that case, it was held, inter alia, that the resignation in respect of a service matter is the act of giving up; it is the act of an officer by which he declines his office and renounces his further right to use it. It was further held, "to constitute a resignation, it must be unconditional, addressed to the prescribed officer and there must be intention to relinquish the remaining portion of the term of his office ... The words "under protest" only show that he was resigning on account of the objectionable treatment of his superiors, but that does not mean that he was not renouncing his further rights to remain in office. Petitioner's intention to no longer remain in service is very clear and this intention is further made clear in requesting the authorities to deduct two months' salary in lieu of notice". In that case, the petitioner who filed a writ petition was sub-Inspector of police at the relevant time when he tendered his resignation under protest which was accepted by another authority instead of Inspector-General of Police. In such circumstances, it was held as follows:-- ".... This procedure was not followed in the present case and, therefore, the resignation of the petitioner was not accepted by a competent authority. It seems to us that under these circumstances the petitioner was entitled to withdraw his resignation and by his subsequent conduct had sufficiently indicated his intention to withdraw the same. In these circumstances the resignation did not become effectual and in law the petitioner is entitled to be treated as a member of the Karachi Police Force."
7. In the case District Board, Lahore v. Agha Muhammad Khan PLD 1957 Lah. 78, it was held by a learned Single Judge of Lahore High Court, B.Z. Kaikaus, J. (as his Lordship then was) that the office which a person holds, his rank as well as grade of pay to which he is entitled are all parts of his legal character within the meaning of section 42 of the Specific Relief Act, 1877. In the case Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531 at 535, it was held, inter alia, by a Full Bench of Honourable Supreme Court that a breach of contract in a service matter gives rise to only two reliefs, one for damages and another for specific relief. It was further held that if the specific performance is barred, the only relief available is damages. In the cases of master and servant, it was further clarified that the servant was entitled to the right to damages only. However, this view is now to be read in the matters of Government servants and statutory employees in the light of provisions of Civil Servants Act and Service Tribunals Act, 1973.
8. The above-mentioned cases of Malik and Haq (ibid) and District Board (supra) were considered by a learned Single Judge of this Court, Saleem Akhtar, J. (as his Lordship then was) in the case of Rana Usman Ali and others v. National Bank of Pakistan and another 1982 CLC 1234 and it was held, inter alia, that the position, office, rank, grade of pay and the benefits arising from such office are treated foundation of an employee's right and if there is any change in the condition of service or rank and grade and such variation is to the detriment of such employee then his legal character is affected and he is entitled to maintain a suit for declaration and damages. In such circumstances, the suit of the plaintiff was decreed against a scheduled bank on the ground that his removal from service was in violation of the principle of natural justice. In the instant case, it is an admitted position that the plaintiff would have retired in the year 1993 upon attaining the age of superannuation and, therefore, the relief of declaration that he is still in service and the relief of mandatory injunction against the defendant to take the plaintiff on duty have become infructuous.
This being the position, there is no need of discussing the question of newly introduced section 4-A of the Services Tribunals Act, 1973 through which an employee of a statutory corporation has been given the limited status of a civil servant for the purpose of maintaining an appeal before the Services Tribunal. The only question remains is that of damages if awarded for which the plaintiff is required to prove that his removal from service was illegal, unjustified and without lawful authority.
9. Since the defendant was not able to cite any provisions of Specific Relief Act or any Article of the Limitation Act, 1908 to challenge the maintainability of the suit and in view of the above discussion, I am inclined to hold that the suit is maintainable to the extent of damages and monetary compensation.
Issues Nos.5 and 6.
10. It was strenuously argued by Mr. Abdul Sattar, learned counsel for the defendant that the resignation tendered by the plaintiff was voluntary which was acted upon. It was further argued that he has acquiesced in the act of the defendant-in accepting his resignation. He has placed reliance on the proceedings of Suit No,57 of 1977 State Bank of Pakistan v. Fakhr-e-Alam Farooqui which was a suit for recovery of money and sale of mortgaged property of the plaintiff filed on the original civil jurisdiction of this Court. This fact was stated by the defendant's witness in paras. 11 and 12 of his affidavit in evidence (Exh.9) who was not cross-examined on this aspect by the counsel of the plaintiff which amounts to admission on his part. Following are the contents of paras. 11 and 12 of Exh.9:--
(11) After acceptance of plaintiff's resignation and in order to release the dues, the plaintiff was asked to arrange payment of his liabilities, fallen due to the Bank but he did not pay any heed to it.
The Bank had to file a Suit No,57 of 1977 in the High Court of Sindh for recovery of its dues outstanding against him. The said Suit No,57 of 1977 was later on decreed and the appeals etc. filed by the plaintiff were also dismissed.
(12) That while the said suit for recovery of Bank's dues was pending with the High Court, the plaintiff filed the above suit against the defendant Bank in the High Court of Sindh, alleging harassm ent, victimisation and termination of his services from the defendant Bank against the facts, the conduct of the plaintiff which were in his personal file and Confidential Report/Service."
11. There is a clear admission on the part of the plaintiff in his affidavit in evidence (Exh.8) vide paras.27 and 29 that he tendered resignation on 1-6-1974 but he stated that "I also desired to resign from my post if I failed to get any protection from the Government".. Subsequently, he pleaded that it was a conditional and not a voluntary resignation; that it was withdrawn and that it was accepted by an authority not competent to accept his resignation. According to him the Governor of the State Bank was not legally competent to accept his resignation. This resignation was produced as Exh.8/22. It is now a proved fact that after resigning ,on 1-6-1974; the plaintiff withdrew his resignation on 23-10-1974 after nearly four months when his resignation was accepted and acted upon. Plaintiff has not denied that he received letter of acceptance of his resignation on 20-6-1974 which was to be made effective from 1-9-1974. No protest was made by him at that time. This letter of the State Bank was produced as Exh.8/23. I have gone through the contents of the letter of resignation Exh.8/22 and in no manner it could be termed either as conditional or not voluntary. The last paragraph of the plaintiff's letter, dated 1-6-1974 (Exh.8/22) clearly says that "In view of the above circumstances, I cannot tolerate such inhuman treatment, repeated denial of justice, constant mental torture, financial distress and coercion any more, and hereby tender my resignation from Bank Service with effect from 1-9-1974 and request that this letter be treated as notice. Meanwhile, for the reasons advanced above, I would continue on leave as before..." The notice period of 90 days expired on 1-9-1974 whereafter plaintiff stood retired but no attempt for withdrawal of resignation was made during that 90 days period. At the time, when the resignation was tendered (1-6-1974), the plaintiff was already on leave. He opted for further leave till 1-9-1974 but thereafter, he was not on leave till 23-10-1974 when he withdrew his resignation. This subsequent letter was not produced by the plaintiff. It was produced by the defendant's witness as Exh.9/3. Again, this letter in no manner amounts to withdrawal of plaintiff's resignation.
12. Since I am of the considered view that the act of resignation was voluntary and unconditional and since it was acted upon by the defendants due to inaction on the part of plaintiff for a period of nearly five months, the rule laid down by a Division Bench of this Court is of no help to the plaintiff. The background under which the instant suit was filed cannot be ignored. The resignation was tendered on 1-6-1974 while this suit was filed on 26-3-1978 nearly 46 months after tendering resignation. During this period, another suit was filed by the defendant for recovery of house loan arising out of mortgage which was disposed of on the admission made by the present plaintiff who was defendant in that suit. Thus, it has substance when the defendant said that the instant suit was a counter-blast of that suit filed by the defendant. It will not be out of place to reproduce the order of the Division Bench of this Court in H.C.A. No,59 of 1979 which was filed by the plaintiff against the judgment/decree of this Court in Suit No,57 of 1977 which reads as follows:-- "On the admission of Asad Ali Bilgrami, Advocate for the appellant-defendant that the statement of account of defendant showing a sum of Rs,36,993.29 was outstanding against him (defendant) a preliminary decree was passed by the learned Single Judge on 18th April, 1979. Twelve days thereafter, on 31st May, 1979, Mr. Bilgrami made an application to the learned Single Judge under sections 151 and 152, Cr.P.C. that he had not admitted the correctness of the statement of account showing the amount outstanding against the defendant. The learned Single Judge had dictated the order in open Court in presence of Mr. Bilgrami on 18th April, 1979, to which no exception was taken by Mr. Bilgrami. The learned Single Judge found the application to be an afterthought and dismissed it. We do not find this order wrong and/or illegal. Since decree was passed by consent of parties, no appeal lies under subsection (3) of section 96 of the Code of Civil Procedure, 1908.- Appeal is, therefore, dismissed in limine."
20. In view of the above noted facts, it cannot be termed that the plaintiff was in the service of the State Bank of Pakistan after 1-9-1974. His services were not illegally determined and, therefore, he is not entitled for any monetary compensation. No wrong was done by the defendants for which the plaintiff may have suffered any damages. Both these issues are to be answered in negative.
Issue. No,7.
21. As a result of the above discussion, this suit is dismissed with no order as to costs,