Waheed ur Rehman VS M/s Schlumberger Oilfield Services

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

R.F.A.No.17 of 2015 Waheed ur Rehman Versus M/s Schlumberger Oilfield Services and another S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 07.12.2021 Ms. Hadiya Aziz, Advocate for the appellant, M/s Azid Nafees and Syed Mudassar Ali Rizvi, Advocates for the respondents.

Through the instant regular first appeal, the appellant, Waheed ur Rehman, impugns the judgment and decree dated 27.11.2014 passed by the Court of the learned Civil Judge, Islamabad, whereby his suit for recovery of damages amounting to Rs.7,785,356/-, was dismissed.

2.Learned counsel for the appellant submitted that the appellant, after his retirement from the Pakistan Army, was offered employment as Security Manager by respondent No.1 on contract basis; that the appellant”s letter of employment dated 04.05.2001 provided that his seniority would be reckoned from 28.09.1998; that the said letter of appointment also provided that the appellant”s employment would be governed by respondent No.1”s “Pakistan Employee Manual” dated 01.03.2000; that the appellant”s employment contract was prematurely terminated vide letter dated 18.08.2008; that the termination of the appellant”s employment contract was without just cause and in violation of respondent No.1”s “Pakistan Employee Manual” which provided inter alia that under the Pakistan Labour Laws, the normal retirement age is sixty years, and that where respondent No.1 cannot provide further employment to its employee, every effort will be made to find suitable employment for the

employee within the company; that the premature termination of the appellant”s employment contact caused grave mental stress, pain and suffering to the appellant for which he was entitled to be paid general damages; and that for the period between 18.08.2008 when the appellant”s employment contract was terminated and the date on which he attained the age of sixty, he was entitled to be paid special damages which were equivalent to his salary for the said period. Learned counsel for the appellant prayed for the appeal to be allowed and for the impugned judgment and decree to be set- aside.

3.On the other hand, learned counsel for respondent No.1 submitted that the appellant”s employment contract dated 04.05.2001 contained a termination clause which entitled either party to terminate the contract with a 30 days” notice period except in cases where the employee is found to be in breach of contract or in breach of respondent No.1”s regulations; that the appellant accepted the termination of his employment contract by signing the termination letter and also accepting his severance benefits as well as three months” gross salary; that after the termination of the appellant”s employment contract, a consultancy agreement was executed between the appellant and respondent No.1 on 01.09.2008; that it is after the said consultancy agreement was terminated; that the appellant filed a suit for recovery against respondent No.1; that in view of the law laid down by the Hon'ble Lahore High Court in the case reported as 2004 PLC 69, the suit for recovery of damages filed by the appellant was not maintainable; and that the impugned judgment and decree does not suffer from any

legal infirmity. Learned counsel for respondent No.1 prayed for the appeal to be dismissed.

4.We have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.

5.The record shows that vide letter dated 04.05.2001, the appellant was appointed as Security Manager by respondent No.1 on contract basis. The terms and conditions on which the appellant was employed are set out in the said letter. Paragraph 5 of the said letter is reproduced herein below:- “5. The Company or yourself may terminate your employment at any time without notice during the probationary period.

After the probationary period, the Company may terminate your employment with a 30-day notice period except in cases where you are found to be in breach of contract and in breach of Company QHSE regulations, in which case termination is immediate.

You may terminate your employment by advising the Company in writing. As a certain length of time is required to replace you, the Company must be advised of your decision at least one month prior to the date at which you wish to leave the Company.

The Company reserves the right to keep you on the payroll for the stipulated time or shorten this period at its convenience. In both cases, your remuneration ceases the day you stop working and you will be entitled to any outstanding dues.

*In all cases of termination of the employment agreement, no ESB will be payable as these have been paid on a monthly basis to the employee during his employment with company.”

(Emphasis added)

6.Perusal of paragraph 5 of the appellant”s employment letter dated 04.05.2001 shows that respondent No.1 could terminate the appellant”s employment on thirty days” notice. Respondent No.1”s letter dated 18.08.2008 whereby the appellant”s employment contract was terminated does not in any manner stigmatize him. Perusal of

the said letter shows that the appellant was paid severance benefits amounting to Rs.2,126,633/- as well as three months” gross salary amounting to Rs.477,675/- as ex-gratia payment. The appellant signed the said letter dated 18.08.2008. There is no protest or demur recorded by the appellant on the said letter dated 18.08.2008 which was tendered in evidence as Exh.D/5.

7.It appears that the appellant did not take any issue with the said termination letter because the consultancy agreement had been entered into between him and respondent No.1 on 01.09.2008. It was only after the said consultancy agreement was terminated that the appellant filed a suit for recovery of damages against respondent No.1.

8.Respondent No.1”s “Pakistan Employee Manual” on which the learned counsel for the appellant heavily relied upon was not tendered in evidence before the learned Trial Court. Therefore, the appellant”s reliance on its clauses is not warranted. Even otherwise, the said manual provides that an employment contract can be terminated in a situation where respondent No.1 can no longer continue the contract of an employee. It also provides that in such a situation, a notice period will be as long as possible with a minimum of one month. In the case at hand, three months” salary had been given to the appellant on the termination of his employment contract. Therefore, the termination of the appellant contract does not violate the “contract termination” clause in the said manual.

9.The termination clause in the appellant”s appointment letter dated 04.05.2001 has been referred to herein above. We find the termination of the appellant”s employment to be in accordance with the terms and conditions set out in the

appellant”s said appointment letter. Hence, it cannot be held that the appellant was “wrongfully terminated”. Admittedly, respondent No.1 does not have any statutory status, and is not owned or managed by the State. Therefore, it is our view that there was no need for respondent No.1 to have conducted disciplinary proceedings against the appellant. In holding so, we derive support from the law laid down by the Hon'ble Lahore High Court in the case of “ABN-AMRO Bank Vs. Wasim Dar” (2004 PLC 69). Paragraph-7 of the said report is reproduced herein below:- “7. ... The admitted facts of the case are that that though the petitioner is a corporate body, but neither has any statutory status nor is the State owned or managed concerned. For all intents and purposes, it is a private person in the eye of law, likewise the respondent also has the same status; the terms and conditions of employment between the parties are not governed by any statutory rules; rather the parties out of their free consent and will have entered into a valid contract of employment, which settles down the terms and conditions of the employment, this contract inter alia stipulates that the employment involved can be put to an end by one month notice in writing from either side.

On the basis of above admitted position, it is thus clear that the employment of the respondent with the petitioner was governed by the principles of Master and Servant. From the extensive case-law, cited by both the sides, it seems a settled proposition, that there are no fetters or checks upon the rights of a master to terminate the services of his servant according to his own evaluation, decision and wisdom. Even if the termination is in violation of the contract, such action shall not be annulled by the Court, thus compelling the master to keep intact the serve of his employee. Likewise, a servant cannot be forced to serve his master when he is not willing to do so. However, in the cases where the employer terminates the services of his employee, in violation of the contract, the only remedy available to the aggrieved servant shall be to sue his master for damages on account of wrongful termination. Resultantly in view of above stated legal position, the key question calling for determination in this case is whether the termination is wrongful or not. Because wrongful termination is sine qua non for

maintaining the right of the servant to claim the damages, otherwise he would have no cause of action.”

10.In the said case, the Hon'ble Lahore High Court allowed the revision petition against the order of the trial Court dismissing the application for the rejection of the plaint. Furthermore, the Hon'ble High Court rejected the plaint under Order VII, Rule 11 C.P.C. Since the learned author Judge of the said judgment rose to grace the Hon'ble Supreme Court of Pakistan, the said judgment deserves respect and reverence.

11.In view of the above, we do not find any merit in this appeal which is accordingly dismissed with no order as to costs.

(TARIQ MEHMOOD JAHANGIRI) (MIANGUL HASSAN AURANGZEB)

JUDGE JUDGE

Sultan*