SARMAD JALAL OSMANY, J.--- The brief facts of the matter are that the respondent/plaintiff was employed by the applicant No. 1 school as a teacher through an appointment letter dated 14.9.1992 and thereafter continued in that capacity until served with a letter of termination dated 19.3.1999 whereby her services were dispensed with effect from 4.6.1999 on the ground of misconduct.
According to the respondent such termination was ma/a tide and not sustainable on any ground whatsoever as she had a spotless record and the same was the result of enmity on the part of applicant No. 2, the Headmistress of the School. Accordingly, the respondent had filed Suit No. 291/2001 against the applicants before the learned Vlth Sr. Civil Judge, Karachi Central, for Declaration and Injunction etc., praying that the termination of the respondent from the appellants' school was unlawful and that she be reinstated alongwith upto date arrears of salary and benefits amounting to Rs. 2,10,792/-. So also damages in the amount of Rs. 2,10.792/- was claimed on account of mental torture, shock, and agony suffered by the respondent. The said suit was dismissed by the learned Senior Civil Judge under Order VII Rule 11, CPC on the basis that it was not maintainable since per the law of Master and Servant, -a dismissed servant cannot ask for reinstatement in the employment of the Master. The respondent filed an appeal before the learned District Judge, Karachi, Central being Civil Appeal No. 67/2002, who vide order dated 27.2.2002 allowed the same on the basis that though part of the claim relating to the declaration and injunction is not maintainable, however, the rest of the claim pertaining to damages was not barred under any law and hence required to be adjudicated by the learned Senior Civil Judge.
Consequently, the matter was remanded back to the said Judge for disposal according to law, Being aggrieved by said judgment the applicants have filed the present Revision Application.
2. Mr. Shahid Anwar Bajwan, learned counsel for the applicants, has submitted that in the facts and circumstances of the case where admittedly the parties are governed by the law of Master and Servant there cannot be any question of reinstatement of the respondent. Secondly, there also cannot be any question of recovery of damages on account of such dismissal due to mental distress, shock etc., as in such a situation, all that the respondent was entitled to was notice pay or wages in lieu thereof per the contractual arrangements between the parties and per settled law. In support of his contentions, learned counsel has relied upon: Lindsay v. Queen's Hotel Company Ltd.
(1919(1) KB 212), Law of Damages by Frank Gahan (1936 Edition page 522 para. 608), Mayne and McGrogor on Damages 12th Edition Page 522 para. 608, Contract of Employment by M.R. Freedland, Gulf Steamship Co. v. Dilwash Baloch (PLD 1962 Karachi 899), Addis v. Gramaphone Co. Ltd. (1909 A.C. 488) and ABN-AMRO Bank v. Wasim Dar (KLR 2004 CC (Lah) 123). Learned counsel has therefore prayed that the impugned judgment be set aside and that of the learned Senior Civil.
Judge be upheld.
3. On the other hand, Mr. Khaleeq Ahmed for the respondent has submitted that although the suit for Declaration and Injunction may not be maintainable, however damages could certainly be claimed for wrongful dismissal. In support of this proposition he has relied upon Divisional Engineer Phones v. Muhammad Shahid (1999 SCMR 1526), Anisa Rehman v. PIAC (1994 SCMR 2232), Malik and Haq V. Muhammad Shamsul Islam (PLD 1961 SC 531), Gulf Steamship Co. v. Dilwash Balouch (PLD 1962 W.P. Kar. 899), Muhammad Aslam v. PNSC (PLD 1979 Karachi 246) and Irshad Jehan V. PNSC (1999 CLC 192).
4. I have heard both the learned counsel and my conclusions are as follows:--
5. It would be seen that the law with regard to the Matter and Servant relationship is very well- settled viz. In case of a dismissal from service by the Master, the servant can only claim what is due to him by way of wages etc., and if such dismissal be held to be unfair, damages could also be awarded by a Court of law. Consequently, in such a relationship there cannot be any question of reinstatement of a servant in the employment of the Master. For this proposition reference may be made to M/s. Malik and Haq v. Muhammad Shamsul Islam Choudhry (PLD 1961 SC 53) wherein it has been held that the Servant cannot be foisted upon an unwilling Master and hence a suit for damages was the only remedy left open for the servant. In the instant case it was also held that since no period of service was provided in the agreement between the parties therefore the termination of service on payment of one month's salary was proper and accordingly the matter was not remanded for a decision as to the servant's claim for damages. Similarly, in the case of Gulf Steamship Co. v. Dilwash Baluch (PLD 1962 Kar. 899) it was held that where the agreement between the parties provided for one month's notice or pay in lieu thereof and the servant had been dismissed in violation thereof, all he was entitled to was one month's pay plus damages for the period which might reasonably elapse before he could obtain other .Employment. In coming to this conclusion Waheeduddin Ahmed, J., as (his Lordship then was) relied upon the case of Addis v.
Gramaphone Co. Ltd. (1909 AC 488) and Beckham v. Drake (1849 11 HLC 579). Consequently, I am of the opinion , that in any event the suit filed by the respondent to the extent of reinstatement in service is not maintainable.
6. Coming now to the issue of damages, it would firstly be seen that per the contract of employment between the parties dated 14.9.1992, the respondent was employed with:effect from 16.9.1992 as a teacher in the appellant's school for an indefinite period, however the same could be determined by either side on one month's notice in writing without assigning any reason whatsoever. Additionally, the applicant could also terminate the respondent's employment by giving one month's pay in lieu of notice to her. It was also agreed between the parties that where termination of the respondent's services was due to misconduct no notice/notice pay would be given to her. According to the termination notice served upon her on 19.3.1999 the respondent was to hand over her charge on 4.6.1999. Hence, in my opinion, such termination was in accordance with the terms and conditions of the agreement between the parties since the necessary notice was given to the respondent. Now the only question to determine is whether the respondent can claim damages for shock and mental torture due to the wrongful nature of the termination since it is the respondent's case all along that the allegations of misconduct against her are false and frivolous and have only been levelled due to the ma/a fides of applicant No. 2 who is the Principal of the school.
7. In this connection it would be 'seen that as per the rule laid down by the House of Lords in Addis v.
Gramaphone Co. (supra), where a servant is wrongfully dismissed from his employment, damages for dismissal cannot include compensation for the manner of the dismissal, for his injured feelings, or for the loss he may sustain from the fact that the dismissal of itself makes it more difficult for him to obt* 'fresh employment.
The aforementioned case was relied, upon in Gulf Steamship Co. Ltd. v. Dllwash Balouch (supra) and it was held that in a Master and Servant relationship there could not be any question of reinstatement of a servant upon his dismissal. All that could be granted to him would be in the nature of unpaid wages etc. Similarly, in the case of Malik and Hague v. M. Shamsul Islam (supra) again the Hon'ble Supreme Court has reiterated the principle that the servant can only sue the master for damages following his dismissal which would be confined to unpaid wages or as in that case one month's wages in lieu of termination. However, it may be observed that in both the aforementioned cases from our jurisdiction no claim was made on account of damages suffered due to mental shock/agony/loss of reputation etc., upon termination of the servant's employment.
The servant/plaintiff had only sued for reinstatement as well as the dues of his salary and other benefits.
8. As far as the case of Addis v. Gramaphone Co. (supra) is concerned, in my view, much water has flown down the bridge since that case was decided in 1908. In fact even in the English Jurisdiction there is a recognition of the principle that depending upon the particular trade/profession of the servant a summary dismissal would entitle him/her to some measure of damages. Hence, in Marbe v. George Edwards (1928) One K.B. 269 (CA), it was held that where the servant was in the employee of a Master (in this case the owner of a theatre) which obliged the former to appear in public as an actor, then the dismissal of the servant would entitle him to some damages for the loss of opportunity to maintain his reputation. This principle was also recognized by the House of Lords in Clayton v. Oliver (1930 A.C. 209) and in Withers v. General Theatre Corporation (1938) 2 K.B.
536 (C.A.). Similarly, such measure of damages has been extended to authors as well as held in To/nay v. Criterion Films '1936 2 AER 1625). In this case it was held that all persons who have to make a living by attracting the public to their works, be they painters or literary men or pianists and musicians, must live by getting known to the public. Hence loss of publicity would give rise to a claim for damages. In my opinion, a teacher alongwith other professionals viz. a lawyer; doctor, architect, accountant and engineer etc. All interact intimately with the public at large and depend for their livelihood upon the reputation which they earn in their respective professions. Hence summary dismissal of such professionals' employment without reason or where the reason cannot be justified certainly entitle them to claim damages for loss of reputation, mental agony as a result thereof and personal humiliation etc. As observed above, in the cases of Gulf Steamship Co. Ltd. v. Dilwash Baluch and Malik and Haque v. M. Shamsul Islam (supra), the claims of the servants/plaintiffs were only limited to their reinstatement in service as well as pay and allowances etc. Both of these were disallowed on the basis that reinstatement was not possible as a matter of law and as regards the other claim, sufficient notice pay had been given to the servants. In the present case, it would be seen that the respondent has been terminated on the ground of misconduct for which she has claimed reinstatement in service as well as damages suffered due to mental agony etc. As observed above, their cannot be any question of reinstatement per settled law. However, she could certainly claim for mental agony, loss of reputation and personal humiliation etc., if the termination was unjustified. In the recent case of Irshad Jehan v. PNSC (1999 CLC 192) a learned Single Judge also came to the same conclusion vis-a-vis such claim and the suit was accordingly decreed in favOur of the dismissed servant. Similarly, in the case of Sufi Muhammad lshaque v. The Metropolitan Corporation, Lahore (PLD 1996 SC 737) the Hon'ble Supreme Court was also of the view that an action can be brought in Tort for mental torture and nervous shock suffered due to the wrongful act of the defendant. In so far as the case of ABN-AMRO Bank v. Wasim Dar (supra) is concerned, with respect, for the foregoing reasons, I cannot persuade myself to agree with a learned Single Judge of the Lahore High Court, who came to the conclusion that under any circumstances, in a master and servant situation, damages could never be awarded for loss of reputation, mental torture and agony, the only legitimate claim would be for salary and other benefits accumulated by the servant in his tenure of service upon dismissal.
9. The upshot of the above discussion is that this Revision is dismissed. The order passed by the learned Appellate Court is upheld. The matter is remanded back to the learned Civil Court to be adjudicated on merits insofar as the respondent's claim for mental shock etc. Is concerned. The plaint shall accordingly be amended to reflect only such claim.
10. Revision Application stands disposed of. .