' Vide impugned order dated 30-1-2001, the petitioner/defendant's plea for the rejection of the plaint of the respondent in a suit for damages filed by him, was rejected. Hence this petition.
2. Briefly stated the facts of the oase are that through the letter dated 3-3-1996, the petitioner-Bank offered to the respondent a job as a "'Banking Assistant", on the basis of the terms and conditions mentioned therein; this was a temporary employment and upon satisfactory completion of the probationary period of three months by the respondent, the job could become permanent. One of the conditions of the employment was that the same could be terminated by one month's notice in writing by either side. This offer of the bank was duly accepted by the respondent and thus he was taken in the service. Subsequently by another letter dated 9-7-1996, the petitioner was conveyed that his probationary period have been evaluated and the bank has decided to take him as a permanent employee on the terms and conditions mentioned in the first letter dated 3-3-1996.
Anyhow, the respondent was terminated by the petitioner on 28-9-1999, without giving him one month notice and assigning any reasons, resulting into a suit for damages, brought by the respondent against the petitioner to the tune of Rs,4,35,00,000, for his wrongful termination. It is stated in Paragraph No,8 and 9 of the plaint that termination order dated 28-9-1999 was mala fide, illegal and unjustified and there exists no reasons, whatsoever, for such action, therefore, respondent claimed the aforesaid amount under the following heads:-- {{TABLE}} Loss of Salary and Other Service '
Benefits and incentives for 26 1/2 Yds. Rs,2,65,00,000 Loss of Reputation Rs,50,00,000 Mental Torture and Agony Rs,50,00,000 Gratuity and Provident Fund Rs,70,00,000 Total Rs,4,35,00,000 {{TABLE}}
3. The petitioner contested the aforesaid suit, by filing the written statement and thereafter moved as application under Order VII, rule 11 C.P.C., for the rejection of the plaint on account of non- disclosure of the cause of action. It is the case of the petitioner that the relationship between the parties was governed by a contract and thus it was in the nature of master and servant. The petitioner being master could terminate the services of the respondent for :whatever the reason by giving one month notice or the salary in lieu thereof thus the respondent cannot claim any damages. Anyhow, as mentioned earlier, the learned Court below dismissed this plea of the petitioner, therefore, this petition.
4. Learned counsel for the petitioner, has argued that the relationship between the parties, was contractual in nature and thus was governed by the rule of master and servant; it has been expressly agreed between them, that the services of the respondent could come to an end by service of one month's notice from either side; there was no obligation either under the terms and conditions of the employment or the law that the petitioner should assign reasons for dispensing with services of the respondent or the respondent to do so, while quitting the job. However, the respondent was only entitled to the salary for the period of one month in lieu of the notice, which has been paid to him. Without conceding, that there were no good reasons for the said termination, it is submitted that in case of the relationship of Master and Servant, the employer is not bound to assign any reasons and no mala fide or dishonesty of purpose for the termination of an employee can be attributed to the employer, rendering the termination as wrongful. Thus entitling the employee to claim damages. It has further been argued that the respondent had obtained Car and Social Loan facility from the petitioner and for the recovery of this amount, after adjusting the salary of one month and other dues of the respondent, the bank had filed a suit for recovery against him, which was decreed by the Banking Court, and the respondent through a settlement has satisfied the decree. Therefore, as the respondent lacked the cause of action, obviously, the plaint was liable to the rejected. In support of his various contentions, including the principles laid down by the superior Court, for the rejection of the plaint, the learned counsel for the petitioner has relied upon the following cases:-- ' Shafi Akmed Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338; Messrs Al-Riaz Agencies v. Chamber of Commerce and Industries Karachi). 2001 CLC 1966; Ghous Bux v. Muhammad Suleman and others 2001 MLD 1159; Hidayat Ullah v. Iqbal and others 1999 YLR 2001 Karachi; Messrs Standard Hotel (Pvt.)
Ltd,. v. M/s. Riocenter and others 1994 CLC 2413 Kar. Muhammad Yaqub and others v. The Province of the Punjab through Home Secretary and others 1993 MLD 2419; Jowan, and others v. Federation of Pakistan, through Secretary Home Affairs and others 1992 MLD 225 (Lah); Messrs Abdul Hamid v.
Board of Intermediate and Secondary Education) 1991 MLD 672 (Lah); Ghulam Ahmed and others v.
Ghulam Mehdi and other 1989 MLD 4873 (Pesh); Nazar Ahmed and others v. Ghulam Mehdi and other 1989 SCMR 824; Muhammad Akhtar and others v. Abdul Hadi, 1981 SCMR 878; Burma Eastern Ltd v. Burma Eastern Employee's Union and others PLD 1967 Dacca 190; Mst. Iqbal Begum v. Farooq Inayat and others PLD 1993 Lah. 183; Elis D. Silva v. Salahuddin and others 1984 CLC 1120.
5. Conversely, learned counsel for the respondent has argued that even if the service relationship between the parties is in the nature of contract and is governed by the rule of Master and Servant, yet the Master has no absolute right to terminate the employment of his employee at his whims and caprices, therefore, when such termination is on account of mala fide, ulterior and oblique motives; the employee for such wrongful termination is entitled to claim damages. It is stated that in the plaint in clear and unequivocally terms, it has been averred that the termination was on account of mala fide action of the petitioner, therefore, as the dishonesty of the intention behind the termination is a question of fact, the same could only be resolved after framing of the issues, enabling the parties to lead evidence. In the circumstances, the plaint duly disclosed a cause of action because the respondent under a legitimate expectation that his employment shall be permanent and shall not be wrongfully terminated, gave up other opportunities available to him at the time of the offer of job made to him by the petitioner. Learned counsel for the respondent too has placed reliance upon extensive case-law, which are mentioned as under:-- ' Mst. Sharifan Begum and others v. Muhammad Shahbaz and others 2000 CLC 63, Sahib Sultan, and others v. Moula Muhammad Ramzan PLD 2000 Quetta 61, Gul Muhammad Mir Bahar v. National Logistic Cell, Ministry of Defence, 1999 CLC 2032; Naya Daur Motor (Pvt.) Limited v. Pakistan Banking Council, through Chairman Habib Bank Plaza, Karachi PLD 1.997 Kar. 208, Messrs Malik and Haq and others v. Muhammad Shamsul Islam Chaudhry, and others PLD 1961 SC 531; Habib Bank Ltd. v. Syed Zia Hassan Kazmi 1998 SCMR 60; (Mrs. Anisa Rehman v. P.I.A.C. 1994 SCMR 2232; Mrs. Anisa Rehman v. P.I.A.C. 1999 CLC 192 Miss. Irshad Jehan v. P.N.S. C. PLD 1978 Lahore 298; Dr. Iqtidar Hussain Zaidi v.
University of the Punjab, PLD 1978 Lahore 298, Gulf Steamship Co. Ltd. v. Dilwash Balooch PLD 1962 (W.P) 899, M/s. Malik and Haq v. Muhammad Shamsul Islam Chowdhury, PLD 1961 SC 531, Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore PLD 1996 SC 737, National Shipping Corporation PLD 1974 SC 146, J.J Miranda v. Fishermen's Cooperative Society, Ltd Karachi PLD 1978 Kar. 990 and United Bank Limited v. Ahsan Akhtar and others 1998 SCMR 68 Besides, learned counsel has also relied upon Halsbury's Laws of England, 4th Edition, Volume 16, page 439; C.
Kameshwara Rao's Treatise on Law of Damages & Compensation, 5th Edition, Vol.II, page 978 and Vol. III, at page 164; and McGredor on Damages 15th Edition, page 347.
6. Without prejudice to his case, it is also submitted by the learned counsel for the respondent, that at least to the extent of the one month's salary, the gratuity and the provident fund, to which the respondent is entitled, even under the contractual terms and conditions of employment and the rules of service, the plaint does disclose a cause of action and therefore, in view of the settled law, deprecating the partial rejection of the plaint, the plaint as a whole cannot be rejected. Lastly, it is argued that notwithstanding the above, the plaint under Order VII rule 11 C.P.C. Can only be rejected, if it does not disclose a cause of action and for the purposes of determining the above, it is only the contents of the plaint, which should be looked into and deemed correct, and no data or material provided in defence, shall be considered. Therefore, by considering the averments made in the plaint, and applying the above rule, the learned trial Court, has rightly rejected the plea of the petitioner for rejection of the plaint.
7. I have heard learned counsel for the parties. The admitted facts of the case are that that though the petitioner is a corporate body, but neither has any statutory status nor is the State owned or managed concerned. For all intents and purposes, it is a private person in the eye of law, likewise the respondent also has the same status; the terms and conditions of employment between the parties are not governed by any statutory rules; rather the parties out of their free consent and will have entered into a valid contract of employment, which settles down the terms and conditions of the employment, this contract inter ilia stipulates that the employment involved can be put to an end by one month notice in writing from either side.
' On the basis of above admitted position, it is thus clear that the employment of the respondent with the petitioner was governed by the principles of Master and Servant. From the extensive case- law, cited by both the sides, it seems a settled proposition, that there are no fetters or checks upon the rights of a master to terminate the services of his servant according to his own evaluation, decision and wisdom. Even if the termination is in violation of the contract, such action shall not be annulled by the Court, thus compelling the master to keep intact the serve of his employee.
Likewise, a servant cannot be forced to serve his master when he is not willing to do so. However, in the cases, where the employer terminates the services of his employee, in violation of the contract, the only remedy available to the aggrieved servant shall be to sue his master for damages on account of wrongful termination.
' Resultantly in view of above stated legal position, the key question calling for determination in this case is whether the termination is wrongful or not. Because wrongful termination is sine qua non for maintaining the right of the servant to claim the damages, otherwise he would have no cause of action.
8. In order to answer the above question, obviously the contents of the plaint coupled with the documents attached thereto are the most important material to be considered by the Court. The respondent in his plaint has admitted that the employment was contractual in nature and E has filed the letters dated 3-3-1996 and 9-7-1996, stating the terms and condition of service. One of the clause of the contract, clearly stipulates "upon confirmation, employment can be terminated by one month notice in writing from either side." Thus on account of the above, the parties enjoyed the absolute, unbridled and unfetter right to put an end to the employment, but upon services of requisite notice. The object of notice seems to be that if the employee is giving up the job the employer should be enabled to make some alternate arrangement and if the services of the F employee are being terminated, he must explore some other job during that period. However, in the absence of notice the termination in view of the clear stipulation of the contract, cannot be said to be in breach thereof and thus wrongful. The only entitlement of the employee would be to claim the salary for the month he is terminated without notice and also the other dues which he has earned as a right.
9. The argument of learned counsel for the respondent, that under the contract, as the employment of the respondent was permanent in nature, therefore, he was entitled to serve the petitioner till the time of attaining the age of superannuation and because of the premature termination, his contractual right has been infringed and therefore, the petitioner can claim damages for the unfair and premature termination. I am afraid, this is not the correct interpretation of the contract between the parties, because even if the respondent was inducted as a permanent employee of the petitioner, yet according to clause in the contract, that the services can be put to an end by one month notice would mean that the permanent employment of the respondent was subject to this fundamental condition. The contract, as stated above, was entered into between the parties, out of their own free-will and at the relevant time, while accepting the terms and conditions, respondent was fully conscious that though he has been made permanent, yet his employment can be severed by the requisite notice to him. Therefore, from this clear condition, the argument has no force, and is hereby repelled. The other submission of respondent's counsel that in the termination letter, the petitioner has not assigned good reason for the termination of respondent's service, suffice it to say that according to the ratio of the extensive case-law and the books by various authors, cited by both the sides, it is clear that the employer in case where there is a provision in the contract for the termination of the services of employee is not required to assign any reason and can simply dispense with the service of his servant as per his own decision and wisdom. For non-mentioning of the reason or other being is no reason at all, the respondent would have no cause of action to claim damages from the petitioner on account of his premature or earlier termination. At the most, the respondent was entitled to one month salary in lieu of notice, which admittedly, was not served upon him. However, it has not been denied in the Court by counsel for the respondent the such amount of the salary as other dues of the respondent, have adjusted in the suit for recovery filed by the petitioner, against the respondent before the Banking Court, which was decreed to the tune of Rs,78500 and the matter in execution stands settled to this extent.
10. The learned counsel for the respondent has reiterated that such material being not part of the suit/plaint of the respondent therefore, cannot be considered by the Court, while rejecting the plaint, suffice it to say that this is not an absolute rule. Because when in defence, some judicial record of the order has been produced, which is not rebutable by the plaintiff or facts are admitted in the Court, such facts can always be taken into consideration, while determining the question whether the plaint discloses a cause of action or not.
' In the light of what has been stated above, the termination cannot be imputed as wrongful in any manner whatsoever, enabling the respondent to sue the petitioner for damages.
11. These aspects of the matter have not been considered by the learned Court below and the learned Judge has fallen in error that the controversy between the parties needs recording of the evidence and therefore, plaint cannot be rejected. Rather on the basis of the contents of the plaint, read with contract documents, placed by the respondent with the same, it was clear that the petitioner had exercised its right of termination within four corner of the contract. These admitted facts never required evidence and thus petitioner could sever the employment of the respondent, without assigning any reason. This revision petition, therefore, is allowed, the impugned order of learned trial Court is set aside. With the result that the plaint of the respondent is rejected under the provisions of Order VII rule 11 C.P.C.