ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. No.180 of 2022

___________________________________________________________________ Date Order with signature of Judge

___________________________________________________________________

PRESENT:

Mr. Justice Aqeel Ahmed Abbasi

Mr. Justice Abdul Mobeen Lakho

FRESH CASE:

1. For order on CMA No.1629/2022 (Urgent).

2. For order on office objection a/w reply as at ‘A’.

3. For order on CMA No.1630/2022 (Exemption).

4. For hearing of main case.

5. For order on CMA No.1631/2022 (Stay).

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Dated; 1^st June 2022

Mr. Ali Asadullah Bullo, Advocate for Appellant.

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1. Urgency granted.

2. Learned counsel for the appellant undertakes to comply with office objection before next date of hearing.

3. Exemption granted subject to all just exceptions.

4&5. Instant High Court Appeal has been filed against impugned order dated 19.05.2022 passed by the learned Single Judge of this Court in Suit No.Nil (-596) of 2021 filed by the appellant, seeking declaration, permanent injunction and damages against issuance of show-cause notice dated 05.03.2020 and charge sheet dated 09.03.2020, whereby, according to learned counsel for the appellant, ad-interim order passed by the learned Single Judge on 09.03.2021, allowing the respondents to proceed with the enquiry against the plaintiff/appellant strictly in accordance with law, however, not to pass any final order in respect of the service of the plaintiff/appellant, till next date of hearing, has been recalled merely on the ground that request for adjournment was made on behalf of the counsel for the plaintiff/appellant, who was busy before another bench. It has been contended by the learned counsel for appellant that since an ad-interim order was operating in favour of the appellant, therefore, the same could not have been recalled without hearing the parties, whereas, according to learned counsel for the appellant, no reasons have been assigned nor any finding on merits has been recorded. Per learned counsel, pursuant to the said order, on the same date, respondents have malafidely dismissed the appellant from services through the Managing Director, who according to learned counsel, is not the competent authority in respect of the appellant, whereas, such order could have been passed only by the Chairman, Board of Directors as per Policy of the respondent No.2. It has been prayed that the operation of impugned order may be suspended so that the appellant may approach the learned Single Judge by filing appropriate application for suspension of the dismissal order passed by the Managing Director.

Conversely, Mr. Faisal Mahmood Ghani, Advocate has shown appearance pursuant to service of a notice under Order 43 Rule 3 CPC, files vakalatnama on behalf of the respondents No.2&3 alongwith reply to the notice under Order XLIII Rule 3 CPC together with annexures, claims copy of instant appeal alongwith annexures and requests for time to file reply/objection. However, learned counsel for the respondents No.2&3, at the very outset, submits that instant appeal, besides having no merits, otherwise has become infructuous for the reason that in view of recalling of an exparte ad-interim order, which was obtained through misrepresentation, the enquiry proceedings, which were already concluded and the finding/report was already placed on record before the learned Single Judge, have been acted upon, and the competent authority has dismissed the appellant from service in accordance with Rules and Policy. Per learned counsel, the appellant through instant High Court Appeal infact seeking reinstatement into service, which is not permissible in law, keeping in view various judgments by the Superior Courts, including the cases of (1) QAZI INAMUL HAQ v. HEAVY FOUNDRY AND FORGE ENGINEERING (PVT.) LIMITED AND ANOTHER [1989 SCMR 1855]; (2) UNITED BANK LIMITED AND OTHERS v. AHSAN AKHTAR AND OTHERS [1998 SCMR 68]; (3) ANWAR HUSSAIN v. AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN AND OTHERS [PLD 1984 SUPREME COURT 194]; AND (4) MUHAMMAD UMAR MALIK v. THE MUSLIM COMMERCIAL BANK LTD. AND OTHERS [1995 SCMR 453]. According to learned counsel, the appellant only has the remedy to file a suit for damages, if so warranted under the facts and circumstances of the case, therefore, no purpose will be served if impugned order is set-aside. It has been submitted that instant appeal is liable to be dismissed in limine along with listed application.

While confronted with hereinabove position and the case law as referred by the learned counsel, learned counsel for the appellant could not submit any explanation, however, submits that the appellant will seek appropriate remedy against the order of dismissal by filing appropriate proceedings before the competent forum/Court of law, however, submits that instant appeal was filed only seeking recalling of impugned order, which does not contain any reason, whereas, non-appearance of the counsel for the appellant who was busy before another bench of the Court on the fateful date, cannot be a valid ground for recalling the ad-interim order, particularly when brief was held on behalf of the counsel. Such contention of the learned counsel for appellant appears to be convincing and is a valid ground for challenging the impugned order passed by the learned Single Judge, however, keeping in view the peculiar facts and circumstances of the instant case and the nature of the suit filed by the appellant against the respondents, which is a public limited company, whereas, there is relationship of master and servant between the respondent and appellant, no useful purpose will be served if impugned order is set-aside, as fresh cause of action appears to has accrued to the appellant after his dismissal from service.

In view of hereinabove facts and circumstances of the case and the development as made in the case, we are not inclined to interfere with the impugned order passed by the learned Single Judge, therefore, instant High Court Appeal is dismissed in limine along with listed application. However, the appellant will be at liberty to seek further remedy for redressal of his grievance pursuant to dismissal order, as may be available to him in accordance with law.

Instant High Court Appeal stands dismissed in the above terms alongwith listed application.

J U D G E