Syed YASIN SKAFF SHAH Versus SECRETARY, MINISTRY OF HEALTH, LABOUR AND SOCIAL WELFARE GOVERNMENT OF PAKISTAN, ISLAMABAD

1. This is a suit for recovery of Rs 51,955.

2. Case of the Plaintiff is that first he was employed as L.D.C. in Karachi Police where he had shown his date of birth as 20th July, 1916. After his discharge from the Karachi Police he was employed in Home Department as U.D.C. On this occasion his date of birth was wrongly entered in his service book as 20‑7‑1914. From there his services were transferred to the Ministry of Health and he was promoted as an Assistant. His date of birth in the service record continued to be recorded incorrectly. The plaintiff first filed a writ petition for correction of his date of birth which was dismissed. He then filed a petition for leave to appeal in Supreme Court which was also dismissed with observation that the date of birth could be corrected only by the institution of the suit. The Plaintiff thereafter filed Suit (194/84) before VIIIth Civil Judge Karachi on 21‑1‑1969) seeking the following reliefs:

(a) A decree may be passed in favour of the Plaintiff and against the defendant that the instructions contained in their letter dated 4‑6‑1969 retiring the plaintiff on 20‑7‑1979 are illegal and ultra vires of the service rules applicable because of the incorrect entry about the date of birth of the plaintiff in the service record wrongly constituted by the Department.

(b) That the plaintiff be deemed to be in service and be eligible for salary and allowance etc. permissible to him by virtue of his post till 20th July, 1971.

(c) Cost of the suit be also awarded to the Plaintiff, and

(d) Any other relief that this Hon'ble Court deems fit and proper under the circumstances be also granted to the plaintiff."

3. The suit was decreed on 16‑10‑1972. The defendant preferred an appeal to this Court (First Appeal No. 77/72) but it was dismissed on 16‑1‑1974. The defendant then preferred a civil petition for special leave to appeal (Petition No. K‑40/74) to the Supreme Court but the leave was refused on 5‑9‑1974. The Plaintiff filed Execution Application (No. 13/72) in the Court of District Judge but it was dismissed. He then filed an appeal to this Court which too was, dismissed. The defendant then made an application to the Services Tribunal' which was dismissed. His application to Supreme Court for special leave was also dismissed on 8‑3‑1977. The Deputy Attorney‑General on 19‑10‑1976 had made a statement in this Court in the event of failure of the defendant So succeed in leave petition to the Supreme Court defendant will pay the entire arrears of salary due to the plaintiff including the time‑barred arrears. On 30‑10‑19'77 this Court passed an order directing the plaintiff to prepare his statement of account of his dues arid supply a copy thereof to Deputy Attorney‑General. It was done. On 24 11‑1977 a statement of account was prepared by the Deputy Attorney‑General. The defendant calculated the salary of the plaintiff only upto 19‑10‑1971 and paid him Rs. 9,275 in pursuance of sanction for payment issued on 18‑12‑1977. The Plaintiff, contends that in consequence of his date of birth having been corrected from 20th July, 1914 to 20th July, 1916 by the competent Court and declaration for his entitlement to receive salary and allowance etc. permissible to him by virtue of his post till July 1971 he was to be paid the salary for that period as well as the salary and allowances for the period thereafter as the age of superannuation was extended from time to time and according to last extension he was entitled to continue in service upto July 1976. The defendant did not pay'‑' any amount beyond the amount shown above in spite of his repeated requests.

2. Hence this suit.

4. The suit was contested by the defendant who filed written statement in which it was contended that the suit was time barred as well as barred under section 79 and Order 1, Rule 3, Order VII, Rules 1 (f), 14 and 26 of C.P.C. On facts it was admitted that the plaintiff had filed suits which were decreed and the appeal filed by the defendant against the same was dismissed as alleged in the plaint. Knowledge of the statement made by Deputy Attorney‑General was denied but it was alleged that whatever was eligible and due to the plaintiff was paid to him by the defendant.

5. On the pleadings of the parties following issues were framed:

3. (1)Is the suit barred by limitation?

4. (2)Is the suit barred under Section 79 and Order 1, Rule 3, C.P.C.?

5. (3)Is the suit in contravention of Order VII, Rule 1 (f), 14 and 26 of the

6. C.P.C. and if so to what effect?

7. (4)Since when and upto what period the service of the plaintiff liable to be afcounted?

8. (5)Has the plaintiff any cause of action as alleged?

9. (6)Has the plaintiff suffered damages if so to what amount of compensation?

10. (7)Is the 'suit vague, misconceived and the defendant entitled for special costs.?

11. (8)What.should the decree be?

12. My findings on these issues are as under:

(1) No.

(2) No.

(3) No.

(4) As. follows.

(5) Yes.

(6) No.

(7) No.

(8) As follows.

13. The plaintiff has examined himself and has produced the order of the Supreme Court Exh. 5/1, judgment of Civil Court Ex.5/2, judgment dated 16‑1 1974 Ex. 5/3, copy of order of Supreme Court dated 5‑9‑1974 Ex.5/4, copy of order dated 3‑6‑1976 Ex.5/5, copy of order of Supreme Court dated 8‑3‑1971 Ex.5/6, copies of orders dated 31‑3‑1976 and 19‑10‑1976 Exs.5/7 and 5/8, copy of decree passed in Suit No. 194/72 Ex. 5/9, copy of the letter dated 30‑4‑1973 EX‑5/10, letter dated 29‑11‑1977 Ex.5/11, covering letter dated 11‑1‑1978 Ex. 5/12, and its reply as Ex.5/13 and has closed his side. The defendant has not led any evidence whatsoever.

6. REASONS ISSUE N0.1

14. It is contended by Mr. Muzaffar Hassan, the Advocate for the defendant No.1 that the suit was filed on 17‑2‑1980 whereas the first execution application which was moved by the plaintiff for enforcement of the decree in Suit N0.194/72 was dismissed on 29‑5‑1975. According to Article 14 of the Limitation Act a suit to set aside any act or order of an officer of Government in his official capacity not herein otherwise expressly provided is to be filed within one year from the date of the act or order. He therefore submitted that the suit having been filed after more than one year was timebarred. In the alternative he contended that under Article 102 of the Limitation Act a suit for wages not otherwise expressly provided for by that schedule was to be filed within three years from the date when wages accrue due. The contention of Mr. Muzaffar Hassan does not hold any water. The cause of action to file a suit for his salary accrued to the plaintiff only when the defendant refused to pay him the salary. It appears that the defendant had finally refused to pay his remaining salary after sanction for payment was issued by him on 18‑12‑1977 only for a sum of Rs.9,275. Hence the suit for the remaining wages could have been filed within three years of that date. Hence it is quite clear that this suit is not barred by limitation.

15. ISSUES NOs. 2 AND 3

16. Mr.Muzaffar submitted that according to Section 79, C.P.C. in a suit against the Government, the authority to be named as defendant shall be in the case of a suit against the Federal Government, Pakistan. Whereas in the present suit Secretary Ministry of Health, Labour and Social Welfare Government of Pakistan has been made a party. He has pointed out that Secretary Ministry of Health, Labour and Social Welfare was not even a juristic person and in that connection relied upon P L D 1971 625 Secretary B & R Government of Sind v. Fazal Ali Khan. This contention also is devoid of any force as the stamp papers which contain the title of the suit show that Government of Pakistan was defendant. Similarly no doubt the name of the Secretary of Ministry of Health, Labour and Social Welfare is there but the word Government of Pakistan also appears in the title in the plaint. It is therefore not proper to dismiss the suit of the plaintiff on this account.

17. Mr. Muzaffar Hassan also contended that it was not shown anywhere in the plaint that this Court had jurisdiction to entertain the same and therefore the plaint was hit by clause (f) of Rule 1 of Order VII, C.P.C. Even the documents on which the plaintiff had sued were neither filed nor relied upon and therefore the suit was barred under Rule 14 of Order VII, C.P.C. This contention is also devoid of any force because in the heading of documents relied upon by the plaintiff, the plaintiff has written, the record of cases mentioned in the plaint". The plaintiff has produced the true copies of judgments and public documents in his evidence and none of these documents were or could be denied by the defendant.

18. Although it was not so argued by Mr. Muzaffar Hassan but Mr. Z.U. Ahmed anticipated objection of Mr. Muzaffar Hassan and submitted that this suit was also not barred under Order II Rule II, C.P.C. for the reason that in his previous suit before the Civil Court he had prayed only for a declaration of his correct date of birth and also simultaneously prayed that on the basis of such declaration he should be deemed to be in service and eligible for salary and other allowances permissible to him by virtue of his post till 20‑4‑1971. The defendant had refused to pay him his salary etc. on the ground that his previous wrong date of birth i.e., 20th July, 1914 was the one which was to be taken into account, The plaintiff could not have filed a suit for recovery of salary until and unless the defendant refused to pay the salary to him even after he got a declaration that the said date of birth was incorrect and the correct date of birth was 20th July, 1916. Now that he had been given such a declaration and even consequent to that declaration, that defendant has paid him only a portion of his salary and has refused to pay the remaining portion cause of action has accrued to the plaintiff to file this suit. Order II, Rule 2, C.P.C. makes it perfectly clear that only and omission to sue in respect of such cause of action will come within the scope thereof for which he was entitled to sue when he filed the previous suit. Since in this case he was not entitled to sue for the salary until and unless even after correction of his date of birth the defendant refused to pay the same to him, and that refusal was not there when the previous suit was filed therefore Order II rule 2, C.P.C. would not be applicable to this case.

19. ISSUES NO. 4, 5 and 7.

20. The plaintiff had filed Suit No. 184/72 before V111th Civil Judge, Karachi which was decreed by Mr.Qaiser Ahmed Hamidi IVth Additional District Judge Karachi. The true copy of his judgment is Exh. 5/2 and decree is Exh. 5/9. In his judgment the learned Judge has held that the correct date of birth of the plaintiff is 20‑7‑1916 and that it is binding on the defendant. He has further held that the retirement of plaintiff by defendant was premature and therefore illegal and ultra vires. Consequently he decreed the plaintiff's suit and granted him a declaration that his retirement on 20‑7‑1969 was illegal and ultra vires and he was deemed to be in service and eligible for salary and allowances etc. permissible to him by virtue of his post till July 1971. It need not be repeated that this order was challenged by the defendant in this Court as well as in Supreme Court and again in Service Tribunal and second time in Supreme Court but without any success. It may however, be pointed out that the execution application filed by the plaintiff for enforcement of this decree could not yield any fruit to him because of the reasons shown in the orders of this Court Exh. 5/7 and 5/8 except that a promise was extended by the Deputy Attorney‑General to make payment which resulted in payment of a sum of Rs. 9,275.

21. The plaintiff has filed comparative statement of pay and allowances due and paid to him from the defendant. From this statement it appears that a sum of Rs.33,518.48 is due to the plaintiff being the arrears of his salary, additional relief, special dearness allowance, house rent allowance and local compensatory allowance. I therefore hold that the plaintiff is entitled to a decree for this amount of Rs.33,518.48 which has not been paid to him by the defendant. In addition to this amount the plaintiff has claimed salary in lieu of L.P:R. The reply of the defendant to this claim was that no application was made by the plaintiff for E L.P.R. But this contention of the defendant is falsified by his own document Exh. 5/10 the last line of which shows that on 10th July, 1971 the plaintiff did apply for L.P.R. with effect from 20th July, 1971 and that original application was on record. I therefore further hold that the plaintiff is entitled to salary in lieu of L.P.R.

22. So far as the claim of pension is concerned, in view of specific ouster under Section 4 of Pensions Act the plaintiff cannot file a suit for the same without getting a certificate from the Collector of the District. However, it may be pointed out that there is nothing in the provisions of Sections 4 and 5 of Pensions Act to debar the defendant from allowing pension to the plaintiff suo motu. In view of the fact that plaintiff has been granted the relief of correction of his date of birth by the competent Court and also the decree of payment of his salary by this Court, the defendant can consider the question of granting pension to hum, in accordance with that last pay, which he will drawn in pursuance of that decree.

23. ISSUE N0.6

24. Issue No.6 relates to damages. It may be pointed out that the refusal of the defendant had emanated from a wrong entry in the record of the plaintiff in this department about his date of birth and was therefore bona fide refused. If the plaintiff suffered agony or inconvenience due to the refusal of the defendant to pay the amount he cannot be allowed any compensation or damages on that account. I think that ends of justice will be met by payment of the arrears of~ salary etc. as already ordered.

25. The suit of the plaintiff is therefore decreed for a sum of Rs.33,518.48 as well as full salary for six months and 1/2 salary for six months in lieu of L.P.R. The costs of the suit shall be borne by defendant.

26. AA./Y‑18/K. Suit decreed.