' This application under section 115, C.P.C. Is directed against the appellate order of the learned Additional District Judge, Malir, dated 17-9-1997, whereby the applicant's appeal against the judgment dated 13-12-1993 and the decree dated 20-1-1994 was dismissed. Since both the learned counsel agree that the main questions relevant for the disposal of this revision application is that of limitation, it may not be necessary to recapitulate facts in detail. It might suffice to mention that the respondent had submitted his resignation from the employment of the applicant Corporation vide letter dated 15-4-1976. However, he informed vide letter dated 4-5-1976 that there was shortage of flight engineers and his resignation would not be accepted. It seems that the respondent kept on corresponding with the applicant on the question of being relieved but without success. Thereafter, he obtained long leave and according to the applicant started working elsewhere without permission. However, he was charge-sheeted for remaining absence from duty without permission and eventually dismissed vide order dated 12-5-1977. He represented to the Chairman of the applicant-Corporation on 21-5-1977, who vide letter dated 3-6-1977 informed him that the action taken could not be withdrawn and it could cause unfavourable repercussion.
Nevertheless he kept on representing repeatedly praying that his dismissal be treated as resigantion. By letter dated 12-9-1979 he was informed that his case had been put up to the higher management with a favourable note and it was anticipated that it would be finalized in due course. However, on 30-9-1979, he was informed that the matter had been fully reconsidered, but the earlier decision could not be reviewed. He once again repeated representation and was finally informed by letter dated 20-12-1981 that his case had once again been considered by the management, but the decision taken earlier, was upheld. Thereafter, he caused a legal notice to be served on the applicant and upon receiving a negative reply filed Suit No,1296 of 1982 in the Court of Senior Civil Judge Malir.
2. A number of relief were originally sought but it appears that subsequently realizing that some of the reliefs had become barred by limitation and the pecuniary jurisdiction of the trial Court did not extend to all the reliefs claimed. The respondent eventually confined his prayer to the following extent:
(a) Declaration that the order dated 4-5-1976 declining acceptance of his resignation was illegal, mala fide and discriminatory.
(b) Declaration that all subsequent proceedings and orders were illegal and the plaintiff was entitled to pension and other benefits.
(c) A mandatory injunction to accept his resignation from 15-4-1976.
(d) A decree in the sum of Rs,46,000 towards Provident Fund.
(e) Costs and interests at the rate of 14% per annum.
3. The applicant contested the suit raising a number of legal issues and asserting on merits that the applicants had been exceptionally indulgent towards the respondent in the matter of grant of leave and extension of his secondment to a foreign .Airlines. However, when he was directed to rejoin employment keeping in view the need of Flight Engineers and the application of the Essential Services (Maintenance) Act, he defied such lawful orders and tendered his resignation which could not be considered without his reporting back for duty in terms of Admin Order 47/75 and his services were duly terminated on 12-5-1977 after proper inquiry. It was further contended that in any event the suit was barred by limitation.
4. The plaint was initially rejected by the trial Court, but was subsequently restored in appeal. It is also not necessary to discuss other legal proceedings that emanated from the above suit.
However, the trial Court vide judgment and decree dated 13-12-1993 decreed the respondent's suit as prayed and this finding was upheld by the learned Appellate Court.
5. Mr. Amir Malik learned counsel for the appellant argued that the learned Trial Court had held and rightly so that the services of the respondent with the applicant were not protected by any statutory rules and were governed by the contractual relations of master and servant. In the circumstances, the respondent could only claim compensation for breach of the terms of such contract of employment and the matter was, therefore, governed by Article 115 of the Schedule to the Limitation Act. As such a suit could have only been filed without 3 years of the alleged breach of contract and the respondent could not challenge the order refusing acceptance of his resignation dated 4-5-1976 or the subsequent order of his dismissal dated 12-5-1977 through a suit in which the plaint was presented on 12-3-1982. Alternatively learned counsel contended that provident fund could be treated as part of wages of employment but in that case too a suit in terms of Article 102 could have been filed within 3 years from the date when the payment was required to be made. These aspects of the matter were not considered by the learned Trial Court though it was his duty to do so under section 3 of the Limitation Act and the First Appellate Court also failed to notice the same.
6. On the other hand Mr. Mumtaz Ahmed Shaikh learned counsel for the respondent has urged that the respondent has not sought any compensation for breach of contract of employment. All that he has sought is a declaration to the effect that the orders dated 4-5-1976 and 12-5-1977 are illegal and mandatory injunction requiring the applicant to give effect to the resignation submitted by the respondent and allow consequences to flow therefrom. The matter is not, therefore, covered by Article 115 of the Limitation Act, but the residuary Article 120 would apply. Learned counsel relied upon the pronouncement of the Honourable Supreme Court in F.A. Khan v. Government of Pakistan (PLD 1964 SC 520) where their Lordships held that Article 120 of the Schedule to the Limitation Act was applicable to a suit for declaration by Government servant that his dismissal was illegal. I am, therefore, inclined to take the view that when the plaintiff has not sought compensation for breach of contract terms, but merely sought declaration with consequential reliefs of preventive and mandatory injunctions Article 120 and not Article 115 would apply.
7. As regards the contention of Mr. Amir Malik as to the applicability of Article 102 no case-law was cited by either of the learned counsel to indicate that provident fund dues also came within the scope of expression of "wages" in terms of Article 102. Nevertheless, assuming the proposition to be correct it may once again be pertinent to refer to the abovementioned case of F.A. Khan relied upon by Mr. Mumtaz Ahmad Shaikh. 'The appellant in the said case had preferred an departmental appeal against the order of his dismissal and their Lordships held that the starting point of Limitation for a suit in such circumstances would be the date of dismissal of the appeal and not that of the original order of dismissal. Mr. Mumtaz Ahmed Shaikh has pointed out that it is evident from the record that when the respondent had represented to the management against the orders, he was informed by letter dated 12-9-1979 that his case had been put up to a higher management with a favourable note and it was expected to be finalized in due course. It was only on 30-9-1979 that he was informed that the earlier decision could not be reconsidered. Applying the above principle the starting point of limitation should be treated as 30-9-1979 and the suit admittedly was filed before the expiry of three years from such date. The contention appears forceful and therefore, I am unable to persuade myself to take the view that the suit was barred by limitation.
8. Mr. Amir Malik then attempted to defend the orders of refusal to accept the respondent's resignation and the subsequent dismissal on merits. In this context it may be observed that the Courts below found that the respondent was not served with a notice of inquiry and the expiry inquiry held against him was mala fide. No material to show that such finding was perverse has been pointed out. With regard to non-acceptance of the respondent's resignation it may be stated that when employment is governed by the contracts of master and servant an employee like an employer is also entitled to terminate his services after giving reasonable notice to the employer who cannot enforce the contract of employment, but can only claim compensation for breach of contract terms. Indeed the Pakistan Essential Services, (Maintenance) Act casts a statutory duty upon an employee not to leave employment without reasonable excuse but also impose a corresponding duty on the employer not to terminate services of an employee without reasonable excuse. It appears a little strange that while the respondent's resignation was rejected the need to ensure the continued presence for the purpose of maintenance an essential services was not felt by the applicant and extensions of his secondment to abroad were liberally granted and his services were also eventually dispensed with. Nothing perverse in the concurrent findings of fact recorded by the two Courts below has been shown so as to warrant interference under the revision jurisdiction of this Court. This revision is, therefore, dismissed with costs.