1. ' Brief facts of the suit are that the plaintiff was appointed in the service of defendant M/s. Sono Centra Trading Ltd., a multinational company, having its registered office at Hong Kong and doing business in number of countries viz Japan, Indonesia, Korea, Taiwan, Thailand, Philippines, Bangladesh, India, Mauritius and Pakistan, under Contract of Employment, dated 2-10-1989, as a Merchandiser on terms and conditions mentioned therein. After fulfilling the conditions and completing 3 months of probationary period, he was absorbed on the permanent strength of the defendant vide order, dated 2-1-1990. That on account of efficient hard work and devotion to the duty, the emoluments of the plaintiff were increased from time to time. That the plaintiff was the most senior employee in the Pakistan Office of the defendant company and holding top positions after the General Manager. During service the emoluments of the plaintiff were increased by the defendant due to his good performance. Thereafter, Mr. Marco Kalinna assumed charge of General Manager at the Pakistan Liaison Office of the defendant in December 1st, 1995 who developed ill- will and prejudice against the plaintiff on account of mala fide motives of replacing the plaintiff with the very junior employee Mr. M. Umer. M. Kalinna subjected the plaintiff to harassment, coercion, misbehavior and other unfair means with a view to compel the plaintiff to resign from service of the defendant company. He also tried to harass, coerce and pressurize the Plaintiff in various ways and even assigned manual work to the plaintiff. He often insulted the plaintiff in order to humiliate the plaintiff so that he may be able to achieve his ulterior motives. That after failing in his tactics aimed at compelling the plaintiff to resign from service, he issued an order, dated 23-7- 1996 captioned as 'Dismissal' mentioning therein "Please be informed that you are dismissed from work with Soon Central Ltd. with immediate effect". Subsequently the order was served upon the plaintiff on the same day. That according to the terms and conditions the service of the plaintiff could be terminated simplicitor upon notice of one month. However, in order to harm the cause and interest of the plaintiff and further to make him suffer the agony of unemployment coupled with non-payment of legal dues and subjecting the plaintiff to loss of reputation, defamation and mental torture and causing sufferings to the entire family of the plaintiff, the defendant company unlawfully and mala fidely issued the order of dismissal with immediate effect, without assigning any reason and without affording the plaintiff an opportunity of explanation/defence through show-cause notice, enquiry and/or personal hearing which was done in gross violation of the principles of natural justice and the terms of employment. In this background of the matter the plaintiff filed the suit for money decree for the sum of Rs,52,30,820 and costs. Defendant company was served who submitted written-statement wherein they denied and controverted the contention of the plaintiff and further submitted that the plaintiff was consuming alcohol in the office during working hours and was, therefore, dismissed. Several employees witnessed the plaintiff's drunkenness and one of them Mr. Munib Rashid was abused and slapped by the plaintiff on 21-8-1996. Similarly Mr. Zubair also saw the plaintiff consuming alcohol. That contract of employment filed by plaintiff was signed by the Managing Director of Sono Centra Trading Ltd., Hong Kong, the letter of termination had also to be issued from Hong Kong, and further that termination of employment for misconduct does not entitle the plaintiff to notice, pay and gratuity, and that in any case the plaintiff is not entitled to any of the relief claimed nor to any judgment and decree of Rs,52,30,820 with interest by way of damages or cost of the suit any other relief as alleged.
2. ' C.M.A. 2337 of 1997, Under Order XXXVIII Rules 1 and 2 read with section 151, C.P.C., filed by the plaintiff, with prayer, to issue a Warrant of arrest against Marco Kalinna, General Manager, Pakistan Liaison Office and further be pleased to direct the defendants to deposit in the Court an amount of money sufficient to the claim of the plaintiff against the defendants while the suit is pending and until satisfaction of any decree that may be passed. In support of the application affidavit of.
3. Joseph James Gonsalves has been filed in which he has stated that the defendants are about to leave the country and to close down their office and wind up their business operations in Pakistan.
4. Under the circumstances affording reasonable probability that the deponent will thereby be obstructed in the execution of the decree that may be passed against the defendants in the suit.
5. That the defendants have been carrying out their business operations from the office at Karachi as shown in the title of the suit, which is not owned by the defendants but has been obtained on rent.
6. That the defendants have no other property in anywhere in Pakistan which may be attached in satisfaction of the decree that may be passed agaiast the defendants in the above matter. That there is strong apprehension that the defendants shall leave Pakistan and the plaintiff will be obstructed in the execution of any decree that may be passed. Counter-affidavit to this application of Marco Kalinna s/o. Ingo Kalinna, General Manager of Sono Centra Trading Ltd. has been filed, in which it is averred that the application is not maintainable being mala fide and designed to pressurize the defendants to make payment of Rs,52,30,820 as his total monthly emoluments on the date of termination was only Rs,16,200. He denied that the defendants are going to close-down business operations. He further stated that the defendants has been operating since 1985 and in the past 18 months turnover has been more than double and the various averments made in the application and in the plaint are incorrect and without any valid basis and no prima facie case exists for grant of issue of warrant of arrest against him to deposit any sum in Court. That the plaintiff was dismissed from service due to misconduct and he was consuming alcohol in the office during working hours.
7. ' Mr. Ashraf Hussain Rizvi, learned counsel for the plaintiff, has contended that plaintiff after getting service with the defendants, was working satisfactorily, efficiently and to the best of his ability, therefore, after completion of the probationary period his salary was revised and he was permanently employed as staff member of the company. In support of this contention learned counsel has filed contract of employment and necessary certificate to this effect as Annexures 'A' and 'B' with the plaint and Annexure 'C' showing emoluments drawn by the, plaintiff. That services of the plaintiff were terminated by the defendants without holding any inquiry or issuing show-cause notice; even opportunity of personal hearing has not been afforded to the plaintiff which is in violation of the natural justice as it has been rightly held by the Supreme Court that nobody should be condemned unheard. Learned counsel further submitted Annexure 'H/1' filed with the plaint, showing grand total of the amount to be paid by the defendants, in case the suit of the plaintiff is decreed. In support of his contention he has referred 1994 SCM R 2232 (Mrs. Anisa Rehman v. PIAC and another).
8. ' Mr. Abid T, Japanwala, learned counsel for the defendants, has contended that due to misconduct of the plaintiff he was dismissed from service and principle of misconduct is applicable in this case.
9. That the defendants are carrying on their business and operations from their Karachi Office since 1985 and their business is being increased and there is no possibility that the defendants will leave the country and will not be in position to pay the decretal amount if the suit is decreed. Learned counsel has cited a Privy Council decision Clouston & Co. Ltd. v. Corry, (sic) wherein it has been held:-- "Certainly when the alleged misconduct consists of drunkenness there must be considerable difficulty in determining the extent or conditions of intoxication which will establish a justification for dismissal. The intoxication may be habitual and gross, and directly interfere with the business of the employer or with the ability of the servant to render the service."
10. ' Learned counsel further cited AIR 1926 Madras 584 (Seth Chand Mull Dudha v. Purushothamdoss), wherein Hon'ble Chief Justice of Madras High Court has observed as follows:- "Plaintiff's cause of action is prima facie an unimpeachable one subject to his proving the allegations made in the plaint. The second is that the Court should have reason to believe on adequate materials that unless the jurisdiction is exercised there is a real danger that the defendants will remove himself from the ambit of the powers of the Court."
11. ' Learned counsel also cited 1991 CLC 2071 (Messrs Balagamwala Oil Mills v. Messrs Shakarchi Trading A.G. and others).
12. ' The brief facts of this case are that, by indent/agreement, dated 8-10-1988 executed at Karachi, the plaintiff agreed to purchase from the defendant No,1, which is a company registered outside Pakistan, 1,000 Metric tons of Chick Peas 29-30 (New Crop 1988) at the rate of US. $.395 per metric ton C and F Karachi. The defendant No,2 is the agent of the defendant No,1 in Pakistan, ' The shipment of the goods could not be made by the defendant No,1 within the aforesaid period but the date at the request of the defendant No,1 was extended up to, 30-11-1988. The port of shipment of the goods was also altered at the request of the defendant No,1 making it permissible for them to ship the goods from any Mediterranean port.
13. ' The case of the plaintiff, in short was that, the defendant No,1 has failed to perform it's part of the contract as the price of the chicks Peas has increased in the international as well as local markets.
14. ' The case of the defendant No,1, on the other hand, according to the counter-affidavit filed on its behalf, was that, there was no concluded contract between the parties and if at all there was any contract between them, then the acceptance of the proposal having taken place at Switzerland, the contract was concluded there and in that case, this Court has no jurisdiction to try the present suit.
15. ' His Lordship Mamoon Kazi, J. (as he then was) has observed as follows:-- ' These documents at this stage of the case do suggest that there was a concluded contract between the plaintiff and the defendant No,1 as alleged by the plaintiff. However, the claim of the plaintiff relates to damages and loss allegedly suffered by the plaintiff owing to the alleged breach of contract committed by the defendant No, 1 . Such claim of the plaintiff can only be established by evidence, which is yet to be recorded in the case, and his Lordship did not grant the injunction application.
16. ' Learned counsel also cited Suit No,199 of 1995 (Khawaja Mukhtar Ahmed and others v. Air Fiance Cargo and others), wherein a learned Single Judge of this Court has observed that the plaintiffs have prayed that the defendant No,1 may be directed to furnish security in the sum of Rs,94,02,778 as it is foreign company and is likely to close down its operation in Pakistan. In the counter-affidavit it is stated by defendant No,1 that they have closed down their flight operations or passengers from Pakistan with effect from November, 1994, which is the date prior to filing of the date of the suit.
17. They have denied that they are in no manner closing their flight operation in Pakistan and that they are in the process of increasing the same. In this background of the matter learned Judge was pleased to observe that mere allegation or apprehension that the defendant company is likely to close down its business is not sufficient to grant of relief. Under the circumstances the office was directed to fix the suit for regular hearing within one year. Mr. Abid T. Japanwala also cited Article 81 of Master and Servant Rules which reads as under-- "A master may dismiss without notice a servant who is guilty of misconduct, whether in the course of his duties or not, inconsistent with the fulfillment of the express or implied conditions of service."
18. I have gone through the arguments advanced by the learned counsel for the parties. I have also gone through the material placed with the case. It is an admitted position that services of the plaintiff were terminated by the defendant without issuing show-cause notice or without holding proper inquiry with regard to the allegations leveled against the plaintiff or without providing an opportunity of personal hearing to the plaintiff which is against the natural justice. In my humble opinion the authority 1994 SCMR 2223 cited by the learned counsel for the plaintiff is very authoritative one in which their Lordships of humble Supreme Court have considered the aspect of master and servant and terms and conditions of the service of the employees and autonomous bodies working in this country and have referred and inasmuch as they have discussed the above referred case and finally their Lordships concluded as follows:-- ' From the above stated cases, it is evident that there is judicial consensus that the maxim audi alteram partem is applicable to judicial as well as to non-judicial proceedings. The above maxim will be read into as a part of every statute if the right of hearing has not been expressly provided therein.
19. ' The effect of the application of the master and servant rule is that an employee of a Corporation in the absence of violation of law or any statutory rule cannot press into service Constitutional jurisdiction or Civil Jurisdiction for seeking relief of reinstatement in service, his remedy for wrongful dismissal is to claim damages."
20. Here in this case the plaintiff have filed this suit for declaration, compensation, recovery of dues and damages for illegal and mala tide dismissal from service. The case-law cited by Mr. Abid T.
21. Japanwala, learned counsel for the defendants, on the face of it is different, distinguishable and is not relevant and helpful to the case of the defendant. The date of birth of the plaintiff is 17-10-1951 as such he 'will be attaining age of 60 years on 17-10-2011 which is the normal age of retirement in Pakistan and the plaintiff would be entitled to compensation amounting to Rs,41,94,100 in lieu of salary and other emoluments, benefits and dues which he would have received from the defendants at the age of retirement. In support of this application plaintiff has filed statement of claim which is Annexure H/1.
22. ' The case-law referred by Mr. Ashraf Hussain Rizvi is relevant and authoritative which I respectfully follow.
23. Keeping in view the principle of equity, fairplay and justice I am of the firm opinion that it would be entirely in the interest of justice to allow the application. The application is granted. The defendants are directed to deposit an amount of Rs,52,30,820 as per Annexure H/1 to the plaint filed by the plaintiff, within a period of 2 months with the Nazir of this Court. After deposit of the amount the Nazir shall invest the amount in some profit earning scheme till the final decision of the suit.
24. ' The party ultimately successful in the suit, will be entitled for the I entire amount. .