GIK Institute of Engineering Science and Technology VS Professor Dr. Mansoor Ahmad

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT,

ISLAMABAD

R.F.A. NO.41 OF 2014

GHULAM ISHAQ KHAN (GIK) INSTITUTE OF ENGINEERING,

SCIENCE AND TECHNOLOGY & others Versus PROFESSOR DR. MANSOOR AHMAD & another

Appellants by : Mr. Azhar Naveed Shah, Advocate.

Ms. Shafaq Abid, Advocate.

Respondents by : Mr. Javaid Iqbal Banday, Advocate. (for Respondents No.1)

Date of Hearing : 10.03.2022.

SAMAN RAFAT IMTIAZ, J. :- Through this Regular First Appeal, the Appellants have challenged the Judgment and Decree dated 03.02.2014 (“Impugned Judgment & Decree”) passed by the Court of the learned Civil Judge 1st Class-West, Islamabad (“Trial Court”) whereby the Suit for Recovery filed by Respondent No.1 was partly decreed to the extent of Rs.5,252,500/-.

2.Succinctly, the facts of the case, as per the Memo of Appeal, are that Respondent No.1 (Professor Dr. Mansoor Ahmad) was appointed as Assistant Professor on contract basis vide agreement dated 30.10.2001 (“Employment Agreement”). The Appellant No.1 terminated the services of Respondent No.1 on 02.06.2004 by invoking Clause 9 of the Employment Agreement and was paid three months’ salary amounting to Rs.1,35,600/- and C.P. Fund amounting to Rs.4,24,314/- through cheques which were encashed by Respondent No.1 without any objection.

3.According to the Appellants, the Respondent No.1 left with his family, leaving behind some of his belongings which he could not arrange to take with him at that time with the intention to collect the same at a later point but did not inform the concerned authorities of the same. In this regard, the Respondent No.1 filed Writ Petition No.843/2004 along with C.M. No.305/2004 before the Honourable Peshawar High Court against

Ghulam Ishaq Khan (GIK) Institute, etc Vs. Professor Dr. Mansoor Ahmad 2 Appellant No.1 and its staff seeking a direction for being allowed to collect his remaining goods which were left behind by him which was withdrawn vide Order dated 24.06.2004. The Appellants alleged that on the same cause and facts, the Respondent No.1 filed Suit for Recovery and claimed a huge amount for the period he did not work in Appellant No.1’s institute as well as damages for mental torture and loss of reputation. The learned Trial Court vide Impugned Judgment & Decree decided the suit in favour of Respondent No.1 and against the Appellants, hence instant appeal.

4.Learned counsel for the Appellants, inter alia, contended that the Impugned Judgment & Decree is against the facts and the applicable law; that the Respondent No.1 was on contract employment and his services were terminated by invoking Clause 9 of the contract agreement, therefore, he could not be granted damages; that admittedly Respondent No.1 did not work after 02.06.2004 and allowing him full pay and allowances for the period he did not serve is illegal; that no evidence has been produced by Respondent No.1 on account of mental torture or any inconvenience faced by him; that Writ Petition No. 843/2004 filed by Respondent No.1 before the Honourable Peshawar High Court was on the same cause of action and on identical facts which was dismissed as withdrawn vide Order dated 24.06.2004 without any permission to file a fresh case against the same cause of action hence the suit was barred under Section 11 CPC; that the learned Trial Court has not considered the objection of res-judicata and Order II Rule 2 CPC; that the learned Trial Court dealt with the issues involved in a slipshod manner and failed to apply its mind resulting in gross miscarriage of justice. Learned counsel prayed on behalf of the Appellant for acceptance of the instant appeal and for the Impugned Judgment & Decree dated 03.02.2014 to be set aside and the suit of the Respondent No.1 to be dismissed with costs.

5.On the other hand, learned counsel for Respondent No.1, inter alia, contended that the termination of contract was illegal as the same was not approved by the competent authority; that as per Clause 10(4)c of the Ghulam Ishaq Khan Institute Act, 1994 (“GIKI Act”), the Executive Committee has the authority which is a statutory requirement and hence cannot be delegated; that as per Ex-P-2/2 there was no meeting of the

Ghulam Ishaq Khan (GIK) Institute, etc Vs. Professor Dr. Mansoor Ahmad 3 Executive Committee and the same was confirmed by DW-1 during cross- examination, therefore, the order of termination is not tenable in the eyes of the law; that Respondent No.1 was terminated without issuing any show cause notice on serious allegations thus the same was malicious on the part of the Appellant No.1 and against the law. It was argued that the Respondent No.1 was fully entitled to claim damages for wrongful and illegal termination of the contract (ExP-54) as it provided for a term of at least five years. Further, that Clause (9) of the contract was subject to the Clause (1) and therefore, it could not be applied unilaterally. He submitted that the Respondent No.1’s termination was due to filing of suit for Specific Performance to exercise his legitimate right which annoyed the top officials who arbitrarily, illegally, whimsically and against the law of natural justice terminated him. That the Respondent No.1 was also entitled to damages on account of defamation, mental torture and agony. Learned counsel submitted that the Appellants failed to mention misreading, non-reading of any document or evidence and violation of any law or principle; that the learned Trial Court had jurisdiction as the Appellant Institute has its Head Office in Islamabad namely Society for the Promotion of Engineering Sciences and Technology which controls the overall activities of the institute as per Clause 14(1) of the GIKI Act; that learned Trial Court while disposing of two separate applications moved by the Appellants, one under Order X CPC and second, questioning the territorial jurisdiction, ordered that the Civil Suit in question was rightly instituted in Islamabad and such order was never challenged by the Appellants thus it attained finality. That the statement of PW-4, Dy. Director Budget & Audit of GIK Institute was recorded by the Trial Court in which it was established that the Respondent No.1 was humiliated by the Institute in a planned way by involving the institutional force to break into his accommodation in a late-night operation when he was away. Ex/D-2 contains list of items collected from the Respondent No.1 accommodation which were dumped in the store. Further, PW-5, Security Supervisor of the Appellant Institute in his Examination-in-Chief clearly stated that PW-2, Director Administration, categorically ordered him that he should not let Dr. Mansoor to enter into the Institute premises which he executed accordingly when the Respondent arrived at the Institute gate on 19th June 2004 along with his family. This was designed to humiliate the

Ghulam Ishaq Khan (GIK) Institute, etc Vs. Professor Dr. Mansoor Ahmad 4 Respondent No.1 publically who was treated like a worst form of an offender. In this regards Mark H, I, J, ExP-19, Ex/P-20 are the relevant documents to refer to which provided a documentary proof exhibiting the malafide of the Institute and its pre-designed scheme to disrespect and humiliate the Respondent. The Respondent as his own witness (PW-6) also supported PW-4 and PW-5, in his Examination-in-Chief and the same remained un-rebutted. He explained that the Writ Petition No. 843/2004 filed in the Honourable Peshawar High Court was for the restoration of service of the Respondent No.1 by setting aside the Office Order dated 02.06.2004 (ExP-60) of the Appellant Institute and not for damages. The same was withdrawn by the Respondent No.1 and in accordance with the Contract Act 1872, damages were claimed in Civil Suit for wrongful termination of the contract dated 30.10.2001 (ExP-54). Thus, both are distinct and not hit by Section 11, CPC. Further, attached annexures in the instant appeal was not exhibited in the Trail Court thus, cannot be discussed in the appeal. According to the learned counsel for the Respondent No. 1, the objection of Res Judicata and that of Order II, Rule 2 of CPC cannot be attracted in the present case because of the distinct nature of the two cases. Learned counsel relied on Pakistan International Airlines Corporation (PIAC) V.s Nasir Jamal Malik, 2001 SCMR 934, Federation of Pakistan Vs. Ali Ahmed Qureshi, 2001 SCMR 1733, Aurangzen Vs. Messrs Gool Bano, 2001 SCMR 909, Hazara (Hill Tract) Improvement Trust Vs. Mst. Qaisra Elahi, 2005 SCMR 678, Shahzad Bashir Memon Vs. Chairman WAPDA, 2008 PLC (C.S.) 1283, Dr. Prof. Syed Qasim Mehdi Vs. Registrar University of Karachi, 2009 PLC (C.S.) 245 (Karachi), Muhammad Aslam Vs. Vice Chairman, 2010 PLC (C.S.) 266, Naubahar Ali Vs. Vice Chancellor, 2010 PLC (C.S.) 783, Mst. Shazia Sarwar Vs. Chancellor, University of the Punjab, Samina Kanwal Vs. Director Punjab Forestry Research Institute, 2011 PLC (C.S.) 1553, Muhammad Ashraf Tiwana Vs. Pakistan, 2013 SCMR 1159, Federation of Pakistan Vs. Muhammad Azam Chattha, 2013 SCMR 120, Mst. Shazia Sarwar Vs. Chancellor, University of the Punjab, 2013 PLC (C.S.) 234, Tahir Riaz Chaudhary Vs. Chancellor, University of the Punjab, Lahore, 2013 PLD 476, Muhammad Tariq Malik Vs. Pakistan, PLD 2014 (Islamabad) 38, Azad Jammu and Kashmir Council Vs. Raja Gul Muhammad, 2018 PLC (C.S.) 435, Prof. Dr. Abdul Waheed

Ghulam Ishaq Khan (GIK) Institute, etc Vs. Professor Dr. Mansoor Ahmad 5 Vs. Rector COMSATS Institute of Information Technology, 2019 PLC (C.S.) 672, Abdul Shakoor Sheikh Vs. Federation of Pakistan, 2019 PLC (C.S.) 25, Rukhsana Yahya Vs. Federation of Pakistan and PLD 2019 (Lahore) 178. Learned counsel for the Respondent prayed for dismissal of instant appeal with costs as well as special cost.

6.Arguments advanced by the learned counsel for the parties have been heard and record examined including the written synopsis of arguments submitted by both the legal counsel.

7.The controversy has arisen on account of the fact that on one hand clause 1 of the Employment Agreement executed by and between the parties provides for a fixed contractual term of five years and on the other hand clause 9 thereof allows both parties to terminate upon notice subject to certain conditions. A bare perusal of the Impugned Judgment reveals that the learned Trial Court has rendered its decision solely in reliance of clause 1 of the Employment Agreement and by ignoring clause 9 altogether.

8.The learned counsel for the Respondent No. 1 argued that the intention of the parties is reflected from the fixed term of five years provided under clause 1 of the Employment Agreement. However, clause 1 cannot be read in isolation. As noted in the case of Muhammad Usman Dar vs. Khawaja Muhammad Asif and others, PLD 2018 Islamabad 214 cited by the learned counsel for the Respondent No. 1, “intent has to be gathered from the document as a whole and all parts of the deed must be examined and read together”. Therefore, the provisions of clause 9 cannot be ignored and the learned Trial Court erred in solely relying upon clause 1 of the Employment Agreement while failing to consider the effect of clause 9.

9.Taking a holistic approach, I find that despite the provision of a term of five years under clause 1 of the Employment Agreement, clause 9 thereof allows the Appellant as well as the Respondent No. 1 to terminate the agreement on prior notice of three months or payment of basic pay in lieu thereof except that in the case of Respondent No. 1 he could not terminate during the academic year. Furthermore, under clause 6, in case Respondent No. 1 terminated before the expiry of five years he would be liable to refund to the Appellant the amount of Long-term Commitment Allowance he was

Ghulam Ishaq Khan (GIK) Institute, etc Vs. Professor Dr. Mansoor Ahmad 6 paid in consideration of his commitment to serve the appellant for five years. The said provision of Clause 6 of the Employment Agreement makes it crystal clear that the right to terminate the Employment Agreement in accordance with clause 9 before the expiry of the term of five years albeit subject to the stipulated conditions was intentional and deliberate thus can neither be ignored nor rejected.

10.In the case of House Building Finance Corporation vs. Shahinshah Humayun Cooperative House Building Society and others , 1992 SCMR 19, the Honorable Supreme Court of Pakistan quoted Chitty on contracts as follows:

“Where the different parts of an instrument are inconsistent, effect must be given to that part which is calculated to carry into effect the real intention of the parties as gathered from the instrument as a whole, and that part which would defeat it must be rejected The old rule was in such a case, that the earlier clause was to be received and the later rejected, but this rule was a mere rule of thumb, totally unscientific and out of keeping with the modern construction of documents. To be inconsistent a term must contradict another term or be in conflict with it, such that effect cannot fairly be given to both clauses. A term may also be rejected, if it is repugnant to the intention of the parties as it appears from the document. However, an effort would be made to give effect to every clause in the agreement and not to reject a clause unless it is manifestly inconsistent with or repugnant to the rest of the agreement." [Emphasis added]

11.Following such principles of interpretation (i.e. to give effect to every clause in the agreement) leads me to conclude that clause 1 of the Employment Agreement was subject to clauses 9 and 6 meaning thereby that the parties intended for the term of the Employment Agreement to be five years unless terminated earlier in accordance with clause 9 subject to the conditions contained in clause 6 thereof. Therefore, in my view the Appellant was entitled to terminate the Employment Agreement in accordance with clause 9 notwithstanding the term of five years provided vide clause 1. Since the Appellant terminated the Employment Agreement by making payment of basic pay in lieu of the notice period as required under clause 9, I see no violation of the contractual terms in this regard.

12.Next this Court shall consider the argument raised by the Respondent No.1 that the termination of the Employment Agreement was wrongful on

Ghulam Ishaq Khan (GIK) Institute, etc Vs. Professor Dr. Mansoor Ahmad 7 account of the fact that it was not with the approval of the competent authority. The learned counsel for the Respondent No.1 submitted that termination of employment can be carried out solely by the authority that is empowered to appoint. He relied upon Sections 10(4)(c) and 21 of the GIK Act to argue that since the Rector is empowered to appoint teachers and officers with the approval of the Executive Committee, termination of their employment can also only be with the approval of the Executive Committee whereas admittedly there was no meeting of the Executive Committee rather it was admitted on cross-examination that the termination of the Respondent No. 1’s Employment Agreement was carried out with the approval of the President.

13.A similar argument was raised before the Honorable Peshawar High Court in the case of Saeed Akhtar Chughtai vs. Government of Khyber Pakhtunkhwa, 2019 PLC (C.S.) 1095. A learned Division Bench of the Honorable Peshawar High Court dispelled the argument raised by the petitioner in such case that the CEO was not vested with the power to terminate the contract as the appointment had been made with the approval of the Board of Directors. The Court held that the petitioner was hired on contract basis subject to the terms and conditions mentioned in the appointment letter, which were accepted by the petitioner and which vested the authority to terminate the contract in the CEO.

14.Similarly in the case at hand, the Employment Agreement was entered into by the Appellant through the Rector therefore all the powers of the Appellant under the terms thereof including the power to terminate under clause 9 were to be exercised through the Rector. As such, the termination notice issued by the Rector was within his scope of authority.

15.The learned counsel for the Respondent No. 1 drew our attention to Section 16(g) of the GIK Act which provides that the Executive Committee shall, inter alia, approve appointment to the posts of Professors on the recommendation of a duly constituted selection committee. Respondent No.1 has not objected to or denied that his appointment vide the Employment Agreement was with the approval of the competent authority. That, therefore, means that the terms and conditions of the Employment

Ghulam Ishaq Khan (GIK) Institute, etc Vs. Professor Dr. Mansoor Ahmad 8 Agreement were approved by the competent authority including clause 9 thereof whereby the Appellant was empowered to terminate on notice of three months or payment of basic pay in lieu thereof. I have already concluded above that since the Employment Agreement was entered into by the Appellant through the Rector all the powers thereunder were also exercisable by the Rector on behalf of the Appellant. As such, the termination carried out by the Rector on behalf of the Appellant was in exercise of powers vested in the Rector by the competent authority.

16.In short, I do not find the termination of the Employment Agreement by the Appellant to be in violation of the agreed terms of contract or the applicable law. As such, the Respondent No. 1 was not entitled to the salary or any other privileges for the unexpired term of the Employment Agreement including the Long-term Commitment Allowance and salary as per revised pay scale and the learned Trial Court erred in decreeing the Respondent No. 1’s suit to the extent of recovery of salary/ Long-term Commitment Allowance/ revised pay scale for the unexpired term of the Employment Agreement.

17.Even otherwise, the Respondent No. 1’s suit to the extent of claiming damages for termination of his employment was debarred under Section 11, C.P.C., and Order II, Rule 2, C.P.C., given that the Respondent No. 1 had challenged the termination letter dated June 2, 2004 before the Honorable Peshawar High Court in a Writ Petition No. 843 of 2004 wherein he was seeking reinstatement. Even if the provisions of C.P.C., do not strictly apply in constitutional jurisdiction, it is now a settled proposition that the general principles of res judicata nevertheless are attracted as no man can be vexed twice for the same cause of action. Reliance in this regard is placed on Muhammad Akhtar vs. Abdul Hadi, 1981 SCMR 878 and Abdul Ghafoor vs. Province of the Punjab, 2022 CLC 608.

18.This, however, in my opinion does not apply to the Respondent No. 1’s suit as far as the claim of damages on account of mental torture and loss of reputation is concerned. The Respondent No. 1 claimed in the suit that the management forcibly vacated the Respondent No. 1’s official accommodation in the most humiliating manner. The documents attached

Ghulam Ishaq Khan (GIK) Institute, etc Vs. Professor Dr. Mansoor Ahmad 9 by the Appellant with the present appeal reflect that in the Writ Petition No.843 of 2004 the Respondent No. 1 had filed C.M. No. 305 of 2004 alleging that the Appellant No.4 was harassing him to vacate the official accommodation. The Respondent No. 1 therefore prayed in the said C.M that he may be allowed to retain his official accommodation. The Honorable Peshawar High Court allowed the Respondent No. 1 to retain the official accommodation till 24-06-2004.

19.The Respondent No. 1 then filed Cr.M. No. 47 of 2004 alleging contempt of such order and that he was publicly humiliated as he was denied entry despite court orders. In any event, the matter was disposed vide Order dated 24-06-2004 whereby it was decided that the Respondent No. 1 would collect his luggage on 3-07-2004. On the same date, the Respondent No. 1 withdrew the Writ Petition No. 843 of 2004.

20.It would appear that the Respondent No. 1 was claiming damages on account of actions taken by the Appellants after instituting Writ Petition No. 843 of 2004, which also led to the initiation of contempt proceedings. I do not think that the Respondent No 1 was restrained from claiming damages from a civil court on account of the actions taken by the Appellants which were allegedly in contempt of Court despite the fact that such writ petition was withdrawn and the contempt proceedings disposed of.

21.However, it is noted that in respect of such claim, the learned Trial Court relied upon marked documents to conclude that on termination of employment of any employee the Appellant gives such employees 4 to 6 months of time to vacate the residence. The Respondent No. 1 was allowed damages for mental torture and agony and loss of reputation by the learned Trial Court in view of the fact that the Appellant was unable to show through evidence that the Respondent No. 1 was given due opportunity to vacate.

22.Time and time again this Court as well as the Honorable Supreme Court has held in various judgments including in the cases of State Life Insurance Corporation of Pakistan Vs. Javaid Iqbal, 2011 SCMR 1013; Chaudhary Wajid Ayub Vs. Malik Rizwan Ahmed, PLD 2020 Islamabad 250; Asif Ali Hashmi Vs. Muhammad Arif Mian, PLD 2015 Islamabad 191; and

Ghulam Ishaq Khan (GIK) Institute, etc Vs. Professor Dr. Mansoor Ahmad 10 Pakistan Engineering Consultants Vs. Pakistan International Airlines Corporation, PLD 2006 Karachi 511 that documents not produced but only marked cannot be considered by Courts as legal evidence of fact.

23.The learned counsel for the Respondent No. 1 conceded that marked documents do not have any sanctity in the eyes of the law. However, he argued that the testimony of PW 4 established that in his case, he was given sufficient notice for vacation of premises by the Appellant despite termination of employment. Perusal of the examination-in-chief of the PW-4 who served as Accounts Officer (Budget & Audit) with the Appellant No. 1 from 1998 to 2004 shows that he indeed stated that he retained the official residence for 5 months after resigning which statement was not challenged on cross-examination. Even otherwise, it is settled law that prior notice is a requirement of natural justice.

24.On the other hand, the learned counsel for the Appellant was unable to show from the record any prior notices that were issued by the Appellant for the vacation of the official premises to the Respondent No. 1. Moreover, evidence presented shows that the learned Trial Court was correct in its conclusion that the Respondent No. 1 was treated in an undignified manner. Perusal of the record shows that the Respondent No. 1’s averments supported by witnesses in this regard went unchallenged and un-rebutted.

25.The learned counsel for the Appellant argued that the learned Trial Court was not justified in granting damages on account of mental torture and or loss of injury in the absence of any direct of specific evidence to support such a claim and as such the Impugned Judgment and Decree is arbitrary and capricious.

26.Damages are of two types: General and Special Damages. Whilst special damages are to be specifically proved and can only be awarded when a party successfully proves actual losses suffered, general damages like mental torture and loss of reputation are awarded by invoking rule of thumb which falls within the discretionary jurisdiction of the Court. Therefore, I see no reason to interfere with the findings of the learned Trial Court to the extent of the grant of damages to the Respondent No. 1 on account of mental

Ghulam Ishaq Khan (GIK) Institute, etc Vs. Professor Dr. Mansoor Ahmad 11 torture and loss of reputation due to the manner in which Respondent No 1 was forced to vacate the official accommodation.

27.Accordingly for the reasons afore-stated, the instant appeal is PARTLY ALLOWED and the Impugned Judgment & Decree dated 03.02.2014 is set aside to the extent of payment of consolidated salary, long term commitment allowance and damages on account of non-payment of revised pay scale amounting to Rs. 3,752,500/- whereas to the extent of remaining claim the instant appeal is DISMISSED, resultantly the decretal amount is modified/reduced to Rs. 1,500,000/-. Decree sheet be prepared accordingly.

(SAMAN RAFAT IMTIAZ)

JUDGE

Announced in open Court on 10th of May, 2022.

JUDGE

Junaid