ASPI DOSSABHOY JAMULA Versus PAKISTAN
This is a suit against the Government by a civil servant for recovery of arrears of pay and allowances and the facts material to the controversy are not in dispute.
2. In the year 1945, the plaintiff was employed in the services of the then Government of India in the Customs Department. In 1951, he held the post of an Appraiser in that department. On 18‑6‑1951, he was placed under suspension, given a charge‑sheet and on 15‑3‑1952, dismissed from service with effect from 11‑8‑1951. On 13‑9‑1954, the plaintiff filed a declaratory suit challenging his dismissal which was decreed on 23‑8‑1958 and the relief sought and granted to him was that the orders of his suspension and dismissal were illegal, void and inoperative and that he continued to be and was entitled to lie treated in service and on duty from 11‑8‑1951. The Government filed an appeal which was dismissed on 22‑12‑1962 and their second appeal met the same fate on 3‑2‑1966. On 7th July 1966, the plaintiff was informed by the Collector of Customs that he was re‑instated in service with immediate effect, that he is considered to have been on duty from 11th August 1951, continuously and that orders regarding payment of arrears of his pay shall follow. On 4‑8‑1966, the plaintiff received a communication from the Assistant Collector of Customs whereby he was directed to give in writing as to what were his sources of income during the period "he remained away from active duty" i.e, from 11‑8‑1951, the date of his suspension, to 12‑7‑1966, the date on which. he was re‑instated in service. The plaintiff replied that he had not "remained away" from active duty, that he had already Suffered enough mental torture and loss and that he be informed of the law or the rule under which he was required to give this information. The plaintiff was then informed by letter dated 11‑8‑1966 that the information asked for was required in the light of the Government's order to settle his claim for arrears of pay etc. This request was repeated in the letter dated 27‑4‑1966 and the plaintiff advised to submit statement immediately to settle his claim for arrears of pay. In reply, the plaintiff reasserted that he had not "remained away" from active duty, that the Government cannot take advantage of its own wrong and that according to the order of the Government he was considered to be on duty from 11‑8‑1951 continuously and under clause (a) of Fundamental Rule 54 he was entitled to arrears of full pay and allowances. By office order dated 18‑10‑1957, the plaintiff was informed that the question of his arrears of pay and allowances before 7‑7‑1966 was under consideration of the Government and will not be paid until decision is communicated to this Custom House. On 23‑4‑1969, the plaintiff served upon the defendants statutory notice under section 80, C. P. C. and the last communication from the Government is dated 23‑12‑1969 in which it was stated that the matter relating to the payment of pay and allowances for the period plaintiff remained away from duty due to suspension/dismissal is under reference to the Ministry of Finance. The present suit was filed on 4‑8‑1969. The case of the plaintiff is that he is entitled to recover a total sum of Rs. 86,470.95 as arrears of pay and allowances which is inclusive of difference of the pay that he would have earned as Principal Appraiser if promoted on due date, less Rs. 20,000 being his income from other sources during the period of his involuntary absence, and in the alternative Rs. 69,124.65 less Rs. 20,000 as aforesaid, if it is not established that he was entitled to the higher pay as Principal Appraiser.
2. In defence, several legal objections have been raised including the right of the plaintiff to sue the Government for arrears of pay and bar under Order II, rule 2, C. P. C. and the statute of limitation. On merits it is stated that no decision could be taken on plaintiff's claim for arrears of pay as he did not furnish the information sought and the suit is premature as the matter was still pending with the Ministry of Finance.
3. The issues framed in this case and adopted by the Court read as follows :‑
(1) Whether the plaintiff is entitled to claim salary for the period of his suspension and re‑instatement? If so, to what amount?
(2) Whether the plaintiff is entitled to difference between pay and allowance from 12‑7‑1966 to 31‑7‑1969, and pendente lite, if so, to what amount?
(3) Whether the Memo No. Reg. IB‑26/51, dated 4th August 1966, is without authority and bad? If not, its effect?
(4) Whether defendants are estopped from contending that the plaintiff was not on active duty during the disputed period?
(5) Whether the withholding of the pay and allowance of the plaintiff by the defendants is contrary to law?
(6) Whether the plaintiff is entitled to seniority and promotion to the post of Principal Appraiser and remuneration of the post?
(7) Whether the suit is maintainable?
(8) Whether the claim is barred by limitation?
(9) To what reliefs is the plaintiff entitled?"
At the hearing, the learned counsel dropped issues Nos. 3, 4, 5 and 6 as redundant and did not press the same.
4. Issue No. 1.‑The first part of issue No. 1 was not pressed at the trial and rightly so for the theory that the remuneration of a Government servant was a bounty from the Government and cannot become subject matter of a claim in a suit stands exploded by the Supreme Court decision reported in Pakistan v. Mrs. A. V. Issacs (PLD1970SC415). As to the quantum of salary for the period between the plaintiff's suspension and re‑instatement, the learned counsel for the parties agreed that it came to Rs. 91,230 less Rs. 18,478.05 already received. According to the plaintiff, he was during the period of his involuntary absence alternatively employed in October 1955, when after considerable difficulty he managed to obtain a part‑time ,job from one Mr. Salik Popatia at a monthly remuneration of Rs. 150 which job he continued to hold until February 1963. He again remained unemployed until December 1964, when he took up a full‑time job with M/s. International Inspection Co. Ltd., which company he continued to serve until June 1966, until the company ceased to do business. For the period between 1951 to 1954, the plaintiff deposed that he could not seek any employment as the departmental enquiry was in progress and his presence was continuously required for this purpose. Thus, the plaintiff claims that during the period of his involuntary unemployment he earned a total sum of Rs. 20,000 which amount be offset against his claim for arrears of salary. Thus the plaintiff's claim for arrears of salary for the period of his suspension and re‑instatement comes to Rs. 52,751.95 (Rupees fifty‑two thousand, seven hundred fifty‑one and ninety‑five paisas). Mr. K. A. Ghani, the learned counsel for the defendant contended that the evidence of earning was inadequate inasmuch as the two masters with whom the plaintiff was employed have not been examined nor the actual salary received by him proved through them. It may, however, be mentioned that it was not put to the witness that he was alternatively employed for a period longer than he alleged or that he had in fact received salary more than he has disclosed. In the circumstances, I am satisfied that the plaintiff during the period of his involuntary absence did not earn in his alternative employment more than the amount claimed by him. As aforesaid, therefore, the plaintiff's claim for salary for the period between suspension and re‑instatement comes to Rs. 52,751.95 (Rupees fifty‑two thousand seven hundred fifty‑one and ninety‑five paisas). The plaintiff claims additionally the difference in his pay of an Appraiser and Principal Appraiser with effect from 2‑6‑1962 which claim the defendants resist. The contention was that in terms of the decree and order of re‑instatement the plaintiff continued to be and/or was entitled to be treated in service and on duty from 11‑8‑1951 and that he had been during the period of his involuntary absence superseded by as many as 9 Junior Appraisers who bad been promoted as Principal Appraisers, the first being Mr. A. A. Patel, who had been promoted on 2‑6‑1962. Mr. Rahimtoola the learned counsel for the plaintiff, conceded that promotion was based not on automatic seniority but on seniority‑cum‑fitness. In other words, promotion was by selection. He, however, urged, by reference to service record of the plaintiff which was highly favourable, the plaintiff having received the remarks "very good"‑"excellent", that he would have been promoted to the post of Principal Appraiser in place of A. A. Patel, if the plaintiff had not been kept out of service on an unfounded charge. The plaintiff's case was apparently considered for promotion to the post of Principal Appraiser in the years 1969, 1970, twice in the year 1971 but the Departmental Promotion Committee had not promoted him for lack of requisite experience. In two of these reports, the Committee took into account the fact that the plaintiff was out of service from 15‑3‑1951. to 11‑6‑1966, of which Mr. Rahimtoola took serious exception for according to him the department was taking advantage of its own wrong in putting the plaintiff out of employment during this period. The fact, however, remains that the plaintiff's promotion depended upon his fitness and in determining his fitness the Committee was entitled to see whether or not he was possessed of sufficient experience and the fact that he had actually not worked for a long period, irrespective of its cause, was certainly a relevant consideration. Moreover, promotion to a selective post is entirely a matter for the satisfaction of the promoting authority in which exercise numerous matters may come up for consideration and it is not open to this Court to substitute its opinion for suitability of the plaintiff, for that of the Department. Mr. Rahimtoola invited my attention to three cases reported in Ghulam Haider v. The Province of West Pakistan and 15 others (P L D 1971 Quetta 57), Syed Muhammad Ashraf Shah v. The Province of West Pakistan (Services and General Administration Department), Lahore (P L D 1973 Lah. 42); and Syed Mazhar Hussain Rizvi and 3 others v. Government of West Pakistan (P L D 1973 Lah. 56). In the Quetta case, the Court was not called upon to decree a claim for arrears of salary on the basis of an assumed date of promotion. The grievance of the civil servant there, was that notwithstanding his promotion to the post of Deputy Superintendent of Police, he was denied the seniority due to him and the relief granted for a permanent injunction directing the respondents to fix the appellant's seniority in accordance with the judgment. In the two Lahore cases, the petitioners had been granted pro forma promotion by the Department and the Court held that they cannot be denied salary from the date of assumed promotion on the ground that they did not actually perform the duties of the respective posts from the assumed date of promotion. In none of these cases the Court substituted its finding on suitability for promotion for that of the Department. It will, therefore, follow that the plaintiff's claim will be confined to salary of an Appraiser for the period of his suspension and re‑instatement and this amount, the learned counsel agree, comes to Rs. 91,230 less Rs. 18,478.05 received b the plaintiff.
5. Issue No. 2..‑The difference in pay and allowances claimed by the plaintiff for the period 12‑7‑1966 to 31‑12‑1969 and pendente lite is based on assumed date of his promotion. I have already held while deciding issue No. 1 that the post of Principal Appraiser was a selection post and the plaintiff not having been promoted to the post and, having not been found by the Departmental Promotion Committee as being fit for promotion to that post will not be entitled to salary of that of the Principal Appraiser. This issue is, therefore, decided against the plaintiff,
6. Issues Nos. 7 and 8.‑This issue of maintainability was apparently raised on the basis of the theory that the remuneration of a Government servant was a bounty for the recovery of which no action lay. The Supreme Court has in the case of Mrs. A. V. lssacs sounded death knell of the bounty theory and the maintainability was, therefore, questioned on another ground, namely, that the suit was barred. under Order II, rule 2, C. P. C. The contention was that in the previously instituted suit for declaration challenging the plaintiff's suspension and dismissal the plaintiff omitted to sue for the consequentia` relief of arrears of salary being the relief that he was entitled to in respect. for the same cause of action. In reply, it was not disputed that the relief of arrears of salary was a claim arising out of the cause of action in the previously instituted suit but as the plaintiff was not entitled to make such a claim on the date of the previously instituted suit, the present suit was not barred under Order II, rule 2, C. P. C. In support, the learned counsel referred to Lall's case (P L D 1948 P C 150) of the Privy Council in which it was held that a public servant had no right to his remuneration which can be enforced in a civil Court of Justice and that his only remedy under his contract lies in an appeal of an official or political kind and that this was the law affirmed firstly by the Federal Court in the case of Federation of Pakistan v. Ali Ahmed Hussain Shah (P L D 1955 F C 523) and later by the Supreme Court of Pakistan in State of Pakistan v. Menrajuddin (P L D 1959 S C (Pak.) 147) and this view continued to be the law until revised in the case of Idrs. A. P. Issacs reported in P L D 1970 S C 415. With respect to the learned counsel he has not correctly understood this case for it did not review the earlier view because of some new constitutional provisions but on the contrary in the words of my Lord the Chief Justice Hamoodur Rehman:‑
"A civil servant has and always had the right to recover from the Crown salary already accrued due to him, in spite of the fact that he held service during the pleasure of the Crown. The theory of the bounty of the State never applied either in England or in pre‑Independence India as regards arrears of pay."
The plaintiff, was, therefore, always entitled to the relief of arrears of salary and by his omission to seek the relief in the previous suit, he cannot ressurect this relief in the present suit, unless of course he can press into service a subsequent new cause of action.
7. This brings me to issue No. 8. Mr. K., A. Ghani, the learned counsel for the defendants, relied on Article 102 of he First Schedule to the Limitation Act which provides a period of limitation of three years from the date when the wages accrued due and rightly argued that the plaintiff's monthly wages became payable to him on the expiry of each month and the present suit filed on 4‑8‑1969 for claim for arrears of salary for the period prior to 12‑7‑1966 is clearly barred and"‑r this Article., Mr. Rahimtoola, the learned counsel for the plaintiff, conceded that in the absence of anything more this certainly would be the position. He, however, contended firstly that the prescribed period of limitation will not begin to run if the wages accrued due was not legally recoverable and this remedy became available to the plaintiff for the first time on 10th July 1970, when the Supreme Court of Pakistan decided the cacti of Mrs, A. V. Issacs, This decision of the Supreme Court for reasons sated earlier does rot warrant this conclusion. Moreover, it may be noted that the plaintiff did not withhold the filing of the present action until the said decision. Mr. Rahimtoola next contended that development subsequent to the dismissal of Government's Second Appeal No. 171 of 1963 and confirmation by the High Court of the trial Court's decision that the plaintiff "continued to be and was entitled to be treated in service and on duty from 11‑8‑1961, cannot be ignored". He went on to argue that in implementation of the decree obtained by the plaintiff he was admittedly re‑instated in service by the defendant on 7‑7‑1966, expressly on the basis that the plaintiff was considered to have been on duty from 11‑8‑1961, continuously and that the orders regarding payment of arrears of pay shall follow and that until the filing of this suit the defendant had, far from denying his claim for arrears of salary, kept it pending under consideration. This set of circumstances coupled with the old facts, namely, his dismissal, which itself constituted a completed cause of action, gave rise to, according to the counsel, a second and fresh cause of action determining a new starting point of limitation and so considered period of limitation, commenced at the earliest on 7‑7‑1966, when plaintiff was re‑instated in terms aforesaid and the prescribed period of three years expired on 6‑7‑1.969 when the Court was in vacation and the present suit was filed on the re. opening day is, therefore, within time.
8. The principle that a fresh circumstance or set of circumstances combined with the old facts which in themselves constitute a completed cause of action may in a certain given case, give rise to a second and fresh cause of action has been approved by our superior Courts in more than one case. The principle has been discussed at length by Akhlaq Hussain, J., as he then was, in the case of Abdul Ghafoor v. Thai Development Authority (P L D 1958 Lah. 169). This decision was described as lucid exposition of the true legal positions by a Division Bench of the then High Court of West Pakistan in the case of Province of West Pakistan v. Muhammad Sharif (P L D 1965 Lah. 513). In this decision, if I may with respect state, the principle has been expounded in detail with admirable clarity. In yet another case reported in Haji Adam v. Levant Line (P L D 1959 Kar. 364), Waheeduddin Ahmad, J., expressed this principle in the following terms:‑
"There is another class of cases in which cause of action is satisfied and discharged and limitation stops running in regard to such cause of action, but if they are nullified by subsequent events, the plaintiff is entitled to a fresh cause of action."
In the circumstances, I am in agreement with Mr. Rahimtoola. that subsequent developments in this case detailed above cannot be ignored and, that these developments and in particular the defendant's letter dated 7‑7‑1966 and the defendant's continued assertion that the plaintiff's claim for arrears of salary is still pending consideration in the Ministry of Finance gave rise to a second and a fresh cause of action and the present suit is, therefore, not barred by limitation.
9. The result is the plaintiff is entitled to his salary as an Appraiser from the date of his suspension until re‑instatement which comes to Rs. 91,230 less Rs. 18,478.05 received by him from the Department and less further sum of Rs. 20,000 being his income from alternative sources. Accordingly, the suit is decreed for Rs. 52,751.95 (Rupees fifty‑two thousand seven hundred fifty‑one and ninety‑five paisas) with interest thereon at 9% per annum from the date of the suit until payment. The plaintiff will also be entitled to proportionate cost.
K. B. A. Suit decreed