THE HIGH COURT OF SINDH AT KARACHI
High Court Appeal No.147 of 2007
Present: Mr. Justice Muhammad Ali Mazhar
Mr. Justice Abdul Maalik Gaddi
Appellant : Irudiyanadan Francis
through Mr. Zahid Hamid, Advocate.
Respondent : DEUTSCHE BANK A.G.,
through M/s. Khalid Rehman & Adeel
Abid, Advocates.
Date of hearing : 21.01.2019
J U D G M E N T
Abdul Maalik Gaddi, J. – Through this appeal, the appellant has assailed the legality and propriety of the Judgment dated 06.04.2007 and Decree prepared on 20.04.2007, passed by the learned Single Judge of this Court in Civil Suit No.1205 of 1998 filed by the appellant for recovery of Rs.8.774306 against the respondent bank, whereby the learned Single Judge after hearing the parties and perusing the record, dismissed the said Suit with no order as to cost.
2. Briefly stated the facts of the case as stated by the appellant in the memo of appeal/plaint are that the appellant was appointed by the respondent bank on 07.12.1961 as Clerk on monthly salary of Rs.400/- with other allowances on temporary basis for six months, later with the passage of time, appellant became Manager Foreign Department with Managerial Powers controlling the affairs of the foreign business department of the respondent bank thereby served for a period of thirty (30) years, but malafidely retired on 31.12.1991. The appellant under the Rules and Regulations enforced was entitled to serve after attaining the age of fifty five (55) years. The appellant was not informed in writing about the unlawful retirement regarding any Rule, Regulation determining the age of retirement caused torture and agony. The appellant has sought decree for compensation/recovery of unpaid wages on account of unlawful, arbitrary retirement from service with the following prayers:-
“i) In view of the above, it is prayed respectfully that Hon’ble Court may be pleased to pass judgment and decree in favour of the plaintiff and against the defendant for compensation/recover of unpaid wages for the period shown in Appendix-I hereto in total of sum of Rs.8.774306 upto August, 1 998 and of future as shown in Appendix-I.
ii) Cost of the suit.
iii) Any other relief deemed fit in the circumstances and facts of the case.”
3. Mr. Muhammad Younus Khan, General Manager of respondent bank filed written statement and denied the case and claim of the appellant and submitted that the suit filed by the appellant was not maintainable under the law as well as time barred, inasmuch as, the appellant was stand retired from his service after receiving all retirement benefits on 31.12.1991 and the suit filed by him on 18.09.1998 after the lapse of about seven (7) years without explaining any plausible reason. According to the respondent bank, the appellant was retired as a matter of general policy, the age of retirement provided under Collective Bargaining Agreement with the employees union, as per practice, officers were retired up to December 1993 after completing thirty (30) years of service or attaining the age of fifty five (55) years. In the month of April 1994, the year of service was enhanced to thirty two (32) years and age limit of the retirement to fifty eight (58) years. The age of retirement of Government employees or any other department and organization was not applicable to the defendant which is a private rank having its no rule, scale and salary and in relation to benefits available to its officers and employees. The action of defendant was not discriminatory as such, the defendant has prayed for dismissal of the suit.
4. The learned Single Judge of this Court on the basis of pleadings of the parties framed the following issues:-
i) Whether the defendant bank is justified in applying the retirement rules meant for workers (covered under the definition of such term within the meaning Industrial Relations Ordinance, 1969 and the Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 to the managerial staff/plaintiff?
ii) Whether Mr. Younus Khan an officer of the defendant bank was allowed to continue in service even after attaining the age of 58 years on 08.09.1997, if so, what effect?
iii) Whether the settlement with the Collective Bargaining Agent of workers fixing date of retirement of the workers as 58 years or 30 years of service, whichever earlier could be made applicable to managerial staff/officers/non-workman/ or plaintiff, if so, under what law?
iv) Whether the plaintiff is entitled to unpaid remuneration and pecuniary benefits as claimed in total sum of Rs.87,74,306/- up to August, 1998 and of future as shown in Appendix-I or any part thereof?
v) Whether the suit is barred by time?
vi) Whether the plaintiff was lawfully retired after completing service of 30 years as per practice at time of his retirement?
vii) What should the decree be?
5. In order to prove his case, the appellant Irudianadan Francis had filed his affidavit-in-evidence at Ex.P and produced copies of appointment letter dated 07.12.1961, retirement letter dated 02.10.1991, appreciation letters dated 22.01.1987 and 01.01.1987, certificate dated 22.03.1980, letter dated 12.03.1998 and its reminder dated 06.04.1998, courier airway bills at Ex.P/1 to Ex.P/9 respectively. This witness had been cross examined by the Counsel for the respondent bank. As against this, the respondent bank had also filed affidavit-in-evidence of Shahzad Ajmery, Head of Human Resources of respondent bank, at Ex.D, who produced Union Agreement, letter dated 13.12.1971, telegram dated 05.11.1988, letters dated 24.05.1988 and October 1990 sent to Mr. Muhammad Younas Khan by respondent bank, agreement of employment dated 01.07.1988 at Ex.D/1 to Ex.D/6 respectively. This witness had also been cross examined by the Counsel for appellant.
6. Learned Single Judge after examining of evidence and documents on record and after hearing the parties, dismissed the suit filed by the appellant vide judgment dated 06.04.2007, which impugned through instant appeal.
7. It is contended by the learned counsel for the appellant that the impugned judgment and decree passed by the learned Single Judge in this matter are against law and facts as the same have been passed on the basis of incorrect facts liable to be set-aside. Per learned counsel, the learned Single Judge erred in not appreciating that suit filed by the appellant and the relief claimed therein was very much maintainable and within time in its true perspective. In this regard, he draws the attention of this Court towards Article 102 of the Limitation Act, 1908, which provides the period of three years when the wages accrue due. Per learned Counsel, the appellant during the period of his active service with the respondent bank with effect from 07.12.1961 by his sheer hard work and dedication, was promoted from time to time and at the relevant time of his unlawful retirement dated 31.12.1991, which he admittedly was holding a managerial position viz. Manager Foreign Department. Such qualities were duly acknowledged by the management on completion of twenty five (25) years of service. During the course of arguments, he has also drawn the attention of this Court towards annexure P/4 dated 22.01.1987 of Suit file and submits that despite of all his best efforts, the appellant has been retired from the service illegally on 31.12.1991. Per learned Counsel, from the beginning till the end of his unlawful/void retirement, the appellant was not notified in writing or otherwise about any Rules/Regulations governing/determining age of retirement and having the force of law behind them and to his misfortune, therefore, when the appellant in fact needed the job badly, he was all of a sudden and unceremoniously to his shock and surprise, mental torture and agony given the letter of retirement dated 02.10.1991, which was admittedly without any legal effect and a nullity in the eye of law. Per learned Counsel, the appellant after his illegal and void retirement in December, 1997, found to his dismay and surprise that one Mr. Younus Khan, General Manager of the respondent bank in Karachi even after attaining the age of fifty eight (58) years on 08.09.1997 was allowed to continue in his service with the respondent bank in Karachi, as such, the appellant has been discriminated. Per learned Counsel, being no terms and condition fixing the age of superannuation in the appointment letter and there being no rules and regulations governing the same or resolution of the Board of Directors the appellant was entitled to serve the respondent bank as long as he was medically fit to do so and as such, the appellant’s entire claim from the date of institution backward and beyond ought to have been decreed in his favour. Learned Counsel has also drawn the attention of this Court towards the legal notice sent by the appellant to the management of respondent bank apprising in it all the facts for redressal of his grievances, but the management did not reply the same malafidely, which given the appellant cause of action to file the Suit. In support of his case, he has relied upon the following case laws:-
i. Said Wali v. Ahmad Seed reported as 1970 SCMR 623;
ii. Muhammad Masihuzzaman v. Federation of Pakistan reported as PLD 1992 SC 825;
iii. Muhammad Sadiq v. Messrs American Express International Banking Corporation reported as 1981 PLC 766;
iv. Azam Baig v. Pakistan National Shipping Corporation reported as 1983 PLC 644;
v. Muhammad Ali and others v. M/s. Bawany Sugar Mills Limited and others reported as 2004 PLC 175;
vi. Mujeeb-ur-Rehman Siddiqui v. Messrs Independent Newspapers Corporation (Pvt.) Limited through Chief Secretary reported as 2001 PLC 34;
vii. M.U. Shaikh v. Messrs Glaxo Laboratories (Pakistan) Limited reported as 1981 PLC 771;
viii. Muhammad Akram and 2 others v. Karachi Transport Corporation, Karachi reported as 1981 PLC 522;
ix. Pakistan Cycle Industrial Co-operative Society Limited v. Punjab Labour Appellate Tribunal and others reported as 1983 PLC 1215;
8. Conversely, learned counsel for the respondent has supported the impugned judgment and decree passed by the learned Single Judge of this Court by arguing that the impugned judgment and decree have been passed after considering the pleadings of the parties, documents and evidence on record. He submits that the respondent bank is a private institution and the appellant was its employee. Their relationship was governed by the rule of Master and Servant and there were no statutory rules governing the service of the appellant in the bank establishment. The contract of service of the appellant with the respondent bank was governed by the letter dated 07.12.1961 (Ex.P/1). He further submits that the respondent bank for the retirement of its officers follows the age of retirement as matter of general practice provided under its agreement with the employees union available on record at Ex.D/1 of evidence file. The general practice and usage has attained the force of a rule as far as the age of retirement of officers is concerned. Accordingly, like the employee/member of union, the officers were used to be retired up to December, 1993 after completing thirty (30) years of service or attaining the age of fifty eight (58) years, which was enhanced from thirty (30) to thirty two (32) years from 01.04.1994, whereas, the age limit for retirement was remained same. He added that the appellant was lawfully retired after completing his thirty years of service on 31.12.1991 as per rules and practice applicable at that time and in this connection, the appellant was given due Notice dated 02.10.1991 that he will stand retired on 31.12.1991 and the appellant after receiving all retirement benefits and without any objection stood retired on the said date, but he filed present Suit on 15.09.1998 malafidely just to extract money from the respondent bank on the pretext that the respondent bank has allowed one Younus Khan as General Manager to continue his service on contract basis after his retirement on attaining the age of fifty eight (58) years. He further added that the Suit as framed and filed by the appellant was not maintainable under the law, barred by limitation and having no cause of action, which is liable to be dismissed. In support of his arguments, he has relied upon the following case laws:-
i. Pakistan Steel Mills Corporation Karachi v. Messrs Mustafa Sons (Pvt.) Limited, Karachi reported as PLD 2003 SC 301;
ii. Aurangzeb v. Messrs Gul Bano Dr. Burjor Ankalseria reported as 2001 SCMR 909;
iii. Anwar Hussain v. Agricultural Development Bank of Pakistan and others reported as PLD 1984 SC 194;
iv. Muhammad Yousuf Shah v. Pakistan International Airline Corporation reported as PLD 1981 SC 224;
v. General Investment Limited v. Karachi Municipal Corporation and 3 others reported as 1993 MLD 1550;
vi. A. George v. Pakistan International Airlines Corporation reported as PLD 1971 Lah 748.
9. We have heard the learned Counsel for the parties as well as gone through their respective written synopsis alongwith case laws relied by them and perused the entire record carefully. However, in the light of record so made available before us, the point for determination to decide this appeal is as under:-
i. Whether the appellant was lawfully retired after due notice by the respondent bank on completion of thirty (30) years of his service on 31.12.1991 and in consequence thereof, got all his legal dues including retirement benefits without any objection? If so, whether the suit filed by the appellant on 15.09.1998 for redressal of his grievances was within time and appellant had a cause of action against the respondent bank?
10. In the light of record so made available before us, our findings on the above point with reasons are as under:-
Point No.i. Admittedly, there were no statutory rules governing service of plaintiff/appellant in the bank establishment and by now law is well settled that where the condition of the services of employees of an organization/establishment are not regulated by the rules and regulations framed under the statute, in such like cases, the relationship between the employer and the employee would govern by the principle of Master and Servant.
It goes without saying that under general law, a private contract of service been a Master and Servant is not capable of specific enforcement under Section 21(a) and (b) of the Specific Relief Act, 1877, and the aggrieved servant at best sue for damages only for the breach of contract. It is also established by the Courts of law that even though an employee may establish that he has been wrongly dismissed/retired from service, still he is not entitled to the remedy of an injunction or of specific performance in that contract involving his personal service cannot be specifically enforced in view of Sections of Specific Relief Act, 1877.
It appears from the record that the respondent bank is a private institution and the appellant was its employee, who after completing thirty (30) years of service, was retired on 31.12.1991 vide respondent bank’s letter dated 02.10.1991 addressed to appellant. For the sake of convenience, it would be advantageous to reproduce the contents of said letter, which reads as under:-
“Mr. I.N. Francis
Deutsche Bank AG
Karachi Branch
---------- Date 02/10/91
Dear Sir,
Re: RETIREMENT
As per bank’s rules and policies, each staff member is to retire on the completion of 30 years of service with the Bank, or, on reaching the age of 58, whichever take place earlier. As your 30 years of service will be completed on 31.12.1991, therefore, please be advised that you will stand retired on this date.
Your hard and dedication have contributed to the Bank’s growth, and the Management would like to take this opportunity to thank you for all your efforts.
We wish you the best of luck in your future endeavors.
Yours faithfully,
-sd/-
DEUTSCHE BANK A.G.
KARACHI BRANCH”
Nothing on record that the appellant has challenged the aforesaid letter to the respondent bank in writing, though, after receiving the said letter, the appellant had ample time to challenge it, but he did not do so, however, it reveals from the record that the appellant accepted his retirement with remuneration and without any objection. This fact has been admitted by him in his cross examination. For ready reference, the relevant portion of the cross examination of appellant is reproduced as under:-
“It is correct that I have not lodged any complaint to the management after receiving letter dated 02.12.1991. Voluntarily says that I have collected the unlawful dues. I have received the dues without protest and without prejudice.”
In his cross examination, the appellant has further stated as under:-
“It is correct that after receiving the letter dated 02.10.1991, I did not protest and raised any objection in writing. Vol. says, I have spoken to the management number of time and then they issued letter dated 02.12.1991. It is correct that I have not lodged any complaint to the management after receiving letter dated 02.12.1991. Vol. says, I have collected the unlawful dues. I have received the dues without protest and without prejudice.”
“It is incorrect to suggest that I have been unlawfully retired from my service, therefore, not entitled for any damages.”
In view of the above evidence, it is established that the appellant accepted his retirement on 31.12.1991, but filed the Suit for redressal of his grievances on 18.09.1998, after the delay of about seven years. During the course of argument, we have specifically asked the question from the learned Counsel for the appellant to explain the causes of delay in filing of the suit as principle of waiver, acquiesces and estoppel, are on the part of the appellant; he has no plausible answer with him.
The other aspect of the case is that the appellant in presence of documentary evidence cannot rely upon oral evidence. There are only words of the appellant that after receiving the letter dated 02.10.1991, he spoken to the management number of time, then they issued a letter dated 02.12.1991 for his retirement. No colleague employee has been examined in this case to corroborate the version of the appellant. The conduct of the appellant in receiving the retirement benefits without any objection and reservation and remained silent for more than seven (7) years is sufficient to conclude that the appellant has been lawfully retired as per policies of the management without any undue pressure, as such, plaintiff/appellant had no cause of action to file the present Suit.
Adverting to the question of limitation, learned Counsel for the appellant has contended that firstly cause of action accrued to the appellant on 31.12.1991, when he was illegally retired from the service by respondent bank and remained continue until 08.09.1997, when he came to know that one of the employee Younus Khan, who after attained fifty eight (58) years of age was allowed to continue in service of the respondent bank. He further contended that the suit of the appellant falls under Article 102 of the Limitation Act, 1908, which provides three years period for filing suit for recovery of unpaid wages and as such, the suit filed by the appellant was within time. This contention is untenable. As we stated above, the only remedy which was available to appellant was suit for compensation/damages for the loss suffered by him on account of breach of contract, if any, committed by respondent bank. In this regard, Article 115 of the Limitation Act is relevant, which is reproduced as under:-
|
115. For compensation of the breach of any contract, express or implied, not in writing registered and not herein specially provided for. |
[Three years] |
When the contract is broken, or (where there are successive breaches). When the break in respect of which the suit is instituted occurs, or (where the breach is continuing) when it ceases. |
In the case in hand, the alleged cause of action was accrued to the appellant on 31.12.1991, when he was allegedly illegally retired from the respondent bank, whereas, the appellant had filed suit on 18.09.1998, after the lapse of about seven (7) years and in that sense, the suit filed by the appellant was hopelessly time barred.
Needless to mention here that law helps those who are vigilant and careful enough to look after his/their interests and does not help those who sleep over their rights and are indolent to seek redressal of their grievances.
It has vehemently been argued by the learned Counsel for the appellant that one Younus Khan was also retired from service after having attained the age of fifty eight (58) years on 08.09.1997, but subsequently, the respondent bank was allowed him to continue as General Manager in the bank and thereby the appellant was discriminated. We have, however, not felt persuaded to agree with the learned Counsel for the appellant in this regard and we find that the assertion of the appellant is misconceived. The fact that one or more employees who were earlier employed by the bank has been allowed to continue does not establish discrimination. The right and discretion of the employer regarding the quality and quantity of the employees that it wishes to retain or rehire/continue to allow cannot be lightly interfered within the absence of clear proof of malafides. By merely saying that one of the employee Younus Khan, who was retired from service as per practice of the bank and, thereafter, he has been re-allowed to continue his service on contract basis, neither points towards discrimination nor shows any malafides. Perusal of plaint, evidence and document exhibited, it is quite evident that appellant has failed to prove his case and claim. Merely on the basis of plaintiff/appellant’s ipsi dixit and routine assertions cannot be accepted. The appellant has not placed any convincing material or record to substantiate his claim of discrimination and we are not on the basis of available material able to record a finding favorable to the appellant. Thus, in view of the above discussion, we have come to the conclusion that the appellant has been retired from the service of respondent bank as per policies of the bank.
The case laws cited by the learned Counsel for the appellant have been perused and considered by us, but did not find applicable to the facts of the present case.
11. In view of the above facts and circumstances of the case, no perversity, illegality and incorrectness have been found/pointed out in the impugned judgment and decree. Learned Single Judge while passing the impugned judgment and decree has appreciated all the facts involved in the case. No illegality has been pointed out. We, therefore, under the facts and circumstances of the case, could not find any merits in this appeal, which is dismissed with no orders as to costs.
JUDGE
JUDGE
Karachi.
Dated: 15.02.2019
Faizan A. Rathore/PA*