ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Suit No.247 of 2010

Plaintiff: MaulaBux Khatian

through KaziWali Muhammad Advocate.

Defendants: Sui Southern Gas Company Ltd & others

through Mr. AsimIqbal, Advocate.

Date of hearing: 10.09.2014.

Date of order : 24.09.2014

O R D E R:

SALAHUDDINPANHWAR-J Through this order I intend to decide the application, moved by advocate for defendant /SSGC, seeking rejection of the plaint of the plaintiff Under Order 7 R 11 CPC on grounds of its being time barred and falling within meaning of resjudicata :-

2. The case of the plaintiff has been that he was appointed in Sui Southern Gas Company as Trainee Officer in Executive Cadre in 1975 and reached to the rank of Senior Executive Grade-IV. Establishment Division, Cabinet Secretariat Government of Pakistan issued a notification on 03.6.1989 requiring plaintiff to serve the Government of Pakistan as a Private Secretary to Federal Minister for culture and Sports on deputation basis in his own pay and scale which he was drawing in SSGC. Defendant Company, in compliance of government orders, directed him to report to Government of Pakistan as Private Secretary to federal Minister, Culture & Sports vide their order No.DO/MBK/7^th June 1989. In very order of SSGC neither he was terminated nor his accounts i.e provident fund, Gratuity, Pension etc were settled with the plaintiff and he remained on active, strength of SSGC as its executive on deputation to Federal Government. Defendant Company put name of plaintiff in their establishment in the strength of their staff on deputations of Federal and Provincial government. While on deputation from SSGC to Federal Government in public interest on 10.01.1991 the Government of Pakistan Establishment Division, Cabinet Secretariat issued a Notification whereby the services of the plaintiff were placed at the disposal of Government of Sindh for further deputation basis with the specific directions that on reversion from Government of Sindh, plaintiff will report to SSGC being his parent Department. As per orders of the High Court passed in Constitution Petition No.D-2356 of 1993 filed by plaintiff he was permanently inducted in the service of Government of Sindh vide order dated 05.9.1995 with all consequential benefits. Defendant company, after the decision of Honourable High Court, terminated the lien of the plaintiff from the service of the company after keeping him on his active role for 12 years on deputation on 10.10.2001. After termination of lien of the plaintiff from defendant’s company duty was casted upon defendant to make payment to the plaintiff as his final settlement and clear other consequential and terminal benefit from 15.8.1975 to 10.10.2001 i.e for the period of 26 years, 1 month and 27 days) for which the plaintiff is entitled as agreed by the Senior General manager of the defendant company on 27.8.2004. From 2001, the plaintiff repeatedly requesting defendants to pay his retirement benefits i.e Pension, Gratuity, Provident Fund as per prescribed service rules of S.S.G.C.L but defendants company with their malafide intention have been avoiding to pay legal dues of the plaintiff alongwith consequential / final settlement i.e Provident Fund, Gratuity, Pension, Leave Fare Assistance, Medical allowance, 25 years long service Award, different of pay scale from 1989 to 2001 as done in the cases of Grade-IV at that time (1989) when plaintiff was sent on deputation to Federal Government. In response to the correspondence of the plaintiff, the SSGCL forwarded a stereo typed letter dated 10.8.2005 whereby certifying and confirming the service of the petitioner for 26 years, 1 month and 27 days but did not pay the final settlement to the plaintiff in accordance with their own Service Rules ( for this, the plaintiff requested Defendants to pay him these retirement dues as early as possible as per the service rules of the defendants). Defendant Company failed to even settle the terms of deputation with Government of Sindh, hence huge monetary loss accrued to the plaintiff from 1989 till 2001 as being deputation allowance at the rate of 10. Even plaintiff was not awarded NATIONAL elevation, which was given to his colleagues of Grade-IV in SSGCL from 1989 to 2001, who are enjoying status of General Manager and Senior General Managers in defendant company. Plaintiff filed Constitution petition No.D-993 of 2006 before the Division Bench of the High Court of Sindh at Karachi which was dismissed vide order dated 29.02.2008 with following observation:

“This Court cannot enter upon any inquiry to resolve the disputed questions of facts and therefore, this Const. Petition is not found maintainable and is hereby dismissed in limini alongwith the listed application, leaving the petitioner at liberty to avail the remedy which may be available to him in accordance with the relevant provisions of law”

3. The plaintiff filed Civil Petition for leave to Appeal No.184-K of 2009 before Honourable Supreme court of Pakistan, which uphold the observation of Honourable High Court and disposed off vide order dated 24.11.2009.

4. In said back ground the plaintiff filed the instant suit with following prayers:-

1. To direct the defendant to pay the amount of Rs.2,02,64,048/- which is the legal right of the plaintiff, on account of his retirement dues in accordance with law;

2. Any other relief or relieves, which this Honourable Court deem fit and proper in the circumstances of the case.

3. Cost of the suit may also be awarded.

5. Defendant company also filed the Written statement denying the claim of the plaintiff with a stand that it was an out-right appointment of plaintiff as private secretary to the Minister for Culture and Sport and Not at all on deputation basis as alleged; there was no lien and plaintiff was even issued last pay certificate .

6. Learned counsel for defendant argued that it is an established position that services of the plaintiff was terminated by relieving him of his duties in defendant /SSGC with effect from 07.6.1989. Plaintiff was not on deputation under the service rules of SSGC and there was no lien and commitment to reappoint the plaintiff if and when he was relieved by the requisitioning Authority. It is also a fact that plaintiff was absorbed in the Government service which he had accepted of his own volition. It is also a matter of record that rights and entitlements of plaintiff were decided in his own CP No.D-2356 of 1993 (PLJ 1996 Karachi 68) and plaintiff did not take any further proceedings in this behalf as such the same became final and past and closed matter. Accordingly plaintiff is not entitled for any relief. Services of plaintiff were terminated w.e.f 07.6.1989 and suit has been filed in month of February 2010 and as such is hopelessly barred.

7. The plaintiff, in person, argued that instant suit has been filed in compliance of the orders of Honourable Supreme Court where question of limitation was never raised nor of resjudicata . He denied existence of any of ingredients of Res-judicata. He emphatically argued that no limitation runs against pay and pension matters (2014 PLC CS 247 and PLJ 2003 Tr.C, 1000 CLC 633. Recovery of pay and other pensionary benefits do not fall in ambit of bounty of state, delay of payment of salary and pensionary benefits is continued cause of action recurring day by day (1999 SCMR 2455, PLD 1992 SC 825, 2002 PLC (C.S) 1388. In matter of petition (reported as PLJ 1996 68 question of pay and pension was not decided. Having argued so, he prayed for dismissal of the application.

8. I have heard the arguments of respective sides and have gone through the available record.

9. It is not a disputed position that the present plaintiff did file the C.P.No.D-2356 of 1993 (reported as PLJ 1996 Karachi 68(DB) wherein he had challenged the Notification dated 16.8.1993 whereby he (plaintiff) was transferred and ordered to report to his parent department (SSGC). It would be advantageous to refer to some of the operative portion (s) of the said judgment which are:-

“It is an admitted position that no terms and conditions of the deputation / requisition of the petitioner’s services were ever provided to him as was confirmed during the arguments by the AAG. Now, coming to the merits of the case, the services rules of the parent company applicable to the petitioner’s service did not provide any deputation and as such when the petitioner’s service was requisitioned by the Federal Government, he was issued a last pay certificate which is dated 07.8.1989. The letter dated 07.6.1989 issued by the respondent No.3 (SSGC), relieving the petitioner’s service and forwarding the last pay certificate is worded as under:

“In compliance with Government of Pakistan, Cabinet secretariat, Establishment Division, Rawalpindi’s Notification No.12/10/88-OMG-1 dated 3.6.1989, this is to advise that you are relieved of your duties in Suit Southern Gas Company Limited—Unit “C”, with effect from 7^th June, 1989, to enable you to take up your new assignment as Private Secretary to the Minister for Culture and Sports.

A Last Pay Certificate is enclosed’

‘This letter clearly states that in compliance with the Government of Pakistan, Cabinet Secretariat, Establishment Division, Rawalpindi’s Notification dated 03.6.1989, the petitioner is being relieved of his duties in Sui southern Gas Company Limited. There is no mention of deputation or any indication that his lien is kept with the respondent No.3 and if the petitioner is relieved by the requisitioning authority, he will be taken back on his original post. But the Notification dated 4.1.1990 clearly indicates that the petitioner is transferred and posted as Director, Prime Minister’s Inspection commission on deputation.” On 8.9.1990 a Notification was issued transferring the services of the petitioner at the disposal of the respondent No.3(SSGC) but this was never acted upon and a letter dated 19.9.1990 issued by the Government of Pakistan. Office of the Minister for Culture, Sports, Tourism & Youth Affairs, was issued requesting that the petitioner’s service may be made available in the Ministry of Culture, Sports and Tourism and that the earlier Notification may be withdrawn. There was further note on this letter, which is as under:-

“As already advised that Mr. Khatian should continue to work as Deputy Secretary in this Ministry and no transfer / posting be made without my prior approval’

In the same judgment the summary dated 07.8.1991 was reproduced as:

‘The Chief Minister Sindh while requisitioning his services, approved his induction and posting against the permanent establishment of Sindh Government as an Officer of BPS-19 and as a part of routine Sindh Government can determine the seniority of the officer from the day he joined the Sindh Government (i.e 12.1.1991). Therefore, the case of Mr. Khatian is recommended for the fixation of seniority in Sindh Government from 12.1.1991 as Chief Minister Sindh has already approved the case of his induction / absorption in Sindh Government.’

It was also held in the said Judgment as:

‘In the present case also, the Chief Minister who is the Chief Executive , had passed orders of absorption of the petitioner in BPS-19 of Government of Sindh and had directed for issuance of Notification to this effect which order was communicated to the petitioner and this created rights in his favour. This principle is laid down in the case of Pakistan through the Secretary, Ministry of Finance Vs. Muhammad Himayatullah Farukhi (PLD 1969 SC 407).

It was further argued that the services of the petitioner were requisitioned firstly by the Federal Government and then by the Government of Sindh, this offer was accepted by the petitioner and thus it constituted valid contract capable of being enforced.

In the last, the said judgment held the Notification of transfer of petitioner with direction to report to his parent department as:

‘In view of the above discussion, we hold that the impugned notification dated 16.8.1993, transferring / directing the petitioner to report to the parent department was without lawful authority and of no legal effect’

From the above it becomes quite clear that the present plaintiff himself challenged order of his reporting to his parent department i.e SSGC and even the plaintiff admits in his pleading (plaint) that:

“As per orders of the High Court passed in Constitution Petition No.D-2356 of 1993 filed by plaintiff he was permanently inducted in the service of Government of Sindh vide order dated 05.9.1995 with all consequential benefits”.

(underlining has been supplied for emphasis)

10. Perusal of above to above shows that issue of ‘permanent induction of plaintiff in the services of Government of Sindh’ is no more disputed. This was done at the very move of the present plaintiff therefore; the present plaintiff appears to be not legally justified to claim service benefit(s) from his parent department (SSGC) from 1989 to 2001. Hence, from record it is quite obvious rather undisputed that:

i) there was no provision in service rules of SSGC for deputation;

ii) plaintiff himself resisted to order of his reporting to his parent department;

iii) stood permanently inducted in the service of Sindh Government with all consequential benefits vide order dated 05.9.1995;

11. In view of said proposition, it would be conducive to examine application of Res Judicata in the case in hand for which a reference to Section 11 of the Code, being relevant, is as under:

‘S. 11. Res Judicata.---No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court’

At this juncture, it would be also pertinent to refer the case laws, relied by the plaintiff towards application of the Res Judicata, in the case of Muhammad Mazhar Iqbal and others v/s. VIth Additional District Judge and others (2011 S.L.J 746 (Karachi)), wherein it is held that:

(1) Principle of res judicata cannot be pressed into service unless the matter has been finally decided

--S.11…Application…’ Finally decided’ words of—meaning--. The words ‘ finally decided’ mean to deliberate on an issue either accepting or rejecting it after conducting full inquiry—The word ‘decide’ cannot be interpreted to mean only passing of dismissal order and not an order of admitting or accepting application.—To decide means to settle or to conclude in either way of accepting contention or rejecting the plaint.

12. Thus, the issue / question of ‘permanent induction of the present plaintiff in service of Sindh Government’ by High Court cannot be said to be incompetent. Not only this issue was decided by High Court in said petition on very move of the present plaintiff but in result of decision of High Court the plaintiff was permanently inducted in service of Sindh government with all consequential benefits and he continued till his retirement. Therefore, such decision shall qualify the meaning of ‘finally decided’.

13. Besides, the plaintiff has been seeking service benefit (s) from SSGC while claiming ‘retirement’ as is evident from the prayer clause which is:

‘To direct the defendant to pay the amount of Rs.2,02,64,048/- which is the legal right of the plaintiff, on account of his retirement dues in accordance with law’

albeit, admittedly the plaintiff was never retired from SSGC but his services were requisitioned on demand of Federal Government with Last Pay Certificate as there is no rule of deputation in services rules of the SSGC, as stood held in the petition of the present plaintiff, therefore, the plaintiff would not be entitled for ‘retirement dues’ for simple reason that his retirement happened from service of Sindh Government with all his legal entitlement. This was result of the issue / question decided in the petition whereby the requisition of the plaintiff in Federal government department and then Sindh Government stood as ‘permanent induction’.

14. Therefore, core issue in the matter is that the plaintiff, through instant suit, has sought service benefits from SSGC for a period of 26 years i.e 1989 to 2001. As regard the case of Muhammad Ahmed v/s. Government of Sindh [1999 SCMR 255], referred by the plaintiff to justify question of limitation, it is germane to state that it is not the case of the plaintiff but also in particularly in view of the ration of the said judgment whereby it was held that :

‘the services of the petitioner were requisitioned firstly by the Federal Government and then by the Government of Sindh, this offer was accepted by the petitioner and thus it constituted valid contract capable of being enforced’

15. Since it is a matter of record that in view of above binding effect of the ‘contract’ the Sindh Government was made to permanently induct the plaintiff which the plaintiff availed hence the plaintiff after lapse of more than 10 years (he filed suit in the year 2010 when admittedly he was permanently inducted in the service of Sindh Government in the year 1995) is not legally justified to come and say that his service(s) remained continue with SSGC when he, on his own moves, resisted such order and got himself permanently inducted with reference to his requisition by Federal Government and then by Sindh Government with all consequential benefits. Worth to add here that one cannot be a chooser nor can be allowed to blow hot and cold in a single breath. The plaintiff insisted binding effect for Sindh Government through his said petition but at same time seeking exemption of legal application of same contract. It is a matter of record that the plaintiff continued receiving the benefit / fruits of his service (s) in the Sindh Government after his permanent induction.

16. Hence, said issues stood decided, cannot be opened by the plaintiff again particularly when he (plaintiff) himself remained taking fruits of said position. Thus issue(s) appear to be the in view of above said undisputed facts the present plaintiff does not appear to be entitled to the relief of:

‘' To direct the defendant to pay the amount of Rs.2,02,64,048/- which is the legal right of the plaintiff, on account of his retirement dues in accordance with law’

particularly in view of the ration of the said judgment whereby it was held that :

17. Moreover, the plaintiff while challenging his order of reporting to his parent department never claimed any dues against the SSGC but preferred his permanent induction in Sindh Government with reference to summary (ies) of the Chief Minister hence under the law he is not justified to claim such relief after such long period.

18. Now, reverting to the question of limitation, I would like to take advantage from the very case laws, relied by the plaintiff himself which are:-

MUHAMMAD AHMED versus GOVERNMENT OF SINDH [1999 SCMR 255]

In this case the honourable Supreme Court held that:

“Admittedly the appellant put in more than ten years’ temporary service before his serves were terminated he was, therefore, entitled to pensionary benefits under Regulation 371-A(i) of Civil Service Regulations;

…..

Resultantly, the appellant and similarly placed other employees of the Afghan Refugees Organization, being Government civil servants, are held entitled to pensionary benefits if their cases are covered by Regulation No.371-A of Civil Service Regulations. “

The above case law is of no help for the plaintiff because in said case there was termination of services but in instant case there is no such issue rather services of the plaintiff were permanently inducted in Sindh Government at his own move and from such service (s) he was retired with all benefits. Further, even in said judgment the entitlement was made with reference to service rules and admittedly service rules of SSGC not legalizing the claim of plaintiff regarding his requisition as on deputation.

In the case of Muhammad Masihuzaman Versus Federation of Pakistan [PLD 1992 SC 825] it was held that :

‘… no bar of limitation was attracted nor did any question of laches arise. This would arise only if his plea that the order directing his retirement w.e.f 15.2.1973 was unconstitutional, inoperative and void was not well founded.

19. The facts of said case and issue, involved therein, are not same because in the instant case it is not the question of retirement of plaintiff from SSGC nor the plaintiff has ever claimed his permanent induction in Sindh Government after being relieved from SSGC to be unlawful.

Whereas, Case of Qamaruddin Soomro Versus Administrator, Municipal Committee, Ratodero [2000 CLC 633] relates to the releasing of pensionary benefit by the department hence this case law is also of no help to advance the case of the plaintiff.

In the case of PLJ 2003 Tr.C (Services) 61 it was held that:

‘5. The fact there was no proper transfer notification / order in favour of the appellant to look after the additional charge of Head Clerk and the order, issued by the Superintendent, Pakistan Railways Police, Karachi was without competence as in terms of delegation order dated 09.2.1992 and, as such, the appellant cannot be allowed the claimed benefit.

In the said case claim was refused which was for additional charge and in the instant case the plaintiff is claiming benefit of services with SSGC while admittedly his requisition was converted into permanent induction with all consequential benefits, therefore, this case law appears to be against the plea of the plaintiff.

RAKHSHINDA HABIB versus FEDERATION OF PAKISTAN

(2014 P L C (C.S) 247)

In this judgment the pensionary benefits were held to be recurring on yearly basis but in the instant case there is no such issue, involved, because petitioner would be entitled to pensionary benefits from the department he was retired.

20. As discussed above, it is patent that right of the plaintiff, if any, to claim his dues from SSGC for period of his services is not revolving round ‘retirement’ nor ‘termination of service or even pensionary one’ hence the plaintiff cannot seek exception from law of limitation rather laches which debars the plaintiff from filing the instant suit.

20. In view of what has been discussed above, patently the plaint of the plaintiff is barred under the law, hence the same is rejected as such.

JUDGE

SAJID