Project Director, S.D.D.A & others VS Ghafoor khan

BEFORE ME HON'BLI: PESIIAWAR HIGH COURT,

MINGORA BENCH /DAR-UL-OAZA, SWAT.

c Ciail ReoisionlYo. /S1 -. M2015 LM 6c n)) (1) Project Director, S.D.D.A, Kanju Towns Tehsil Kabat, District Suat.

(2)Sartaj Khnn, DepuA Director, S.D.D.A, kruju Toutnship, Kanju, Tehsil Kabal, Disiict Swat.

(3)Account Offctr, S.D.D.A, Knnju Township, Kanju, Tehsil Khbal, District Suat ...... Petitioners

VERSUS

Ghafoor Khnn Son of Ghulum Nabi Resident oJ' Saidu Sharif, Tehsil Babozai, Distict Swat . Responilent.

REVTSTON PETTTTON A/5.t15 CpC RFtD W|TH PARA 10(8) OF STTARUTT NIZM-E-ADEL REGULATTON 2OOg AGATNST

THE TMPAGNED ORDER & IADGMENT DATED 12,/02/2015

OF THE LN4RNED ADDITIONAL DISTRICT IADGEIZLFI

ZILU' QAZI-W SWAT PASSED IN APPLICATION NO.

1/12(2) OF 2015 FILED BY THE PETTTTONERS AND l aPHELD THE TMPUGNED ORDER DATED 07/01/2014 VIDE

WHICH, THE APPEAL BEARING NO.28/13 OF 2011 WAS

WRONGLY & ILLEGALLY BEEN DISMISSED AS

WITHDRAWN BY CONSPIRACY AND FRAUD'OF THE

RESPONDENT. HENCE THE IMPUGNED ORDER, IUDGMENT

& DECREE DATED 31/(i1/2014 PASSED IN CIWL SttIT

NO.93/1 OF 2011 BY THE LEARNED CIWL IUDGE/ILLAQA

QAZI-V SWAT AREREMAINED INTACT

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JT]DGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MTNGORA BENCH (DAR-UI- l, (ludicial Departme C.R. No. 155- With CM No. 13 7 I !

JUDG

Dale of hearinp:- 23.02.2017.

Petitioners:- (Project Director, S.D.D.A & others) by Mr, Iftikhar Alrmad (Senior), Advocate' Respontlent: (Ghafoor Khan), Respondenl an Advocate in pet'son.

MOHAMMAD IBRAHIM KHAN l.- Under the appanage of retainer-ship'fee per month @ Rs' 3,5OO/-, the Fiespondent (herein before called as Plaintiff) was offered as Standing Counsel to look-after the routine business o{ S.D.D.A. He was to tender legal advice to the Project Director, S.D;D.A Kanju Township Kanju Swat (herein before called as Defendant). The r^ I J. services if nc more were required he may be relieved of l'ris duties subject to one month A1' TESf

notice. This contract uras given truthful color 11 Beoch q\\ Co at' . Svr ,b \,oilto eshi vide Endst: No. 2831-35/sDDA/o-1 dated 18.10.2003 by the lnk slinger being the Project

/l/5 Director S.D.D.A. Kanju Township Swat. This concordance ['erdure till cancellation of the deal by its c,rmmuniqu6 letter llearing No' I 527lSDDA dated 02.8.20:1L.

2 Ghafoor Khan an Advocate,

privilege-hold€rr seeking declaration on the basis of the office order of his c,fficiating a5 Standing Counsel has challenged the validity of the cancellation docunrent to be ineffective against his riglrts as it is not in accordance with rules and regulations. -ihe act of the Project Director S.D.D.A Kanju lownship Kanju Swat in collusion with his Deput.y Director S.D.D;A and Account Offic,:r S.D.D.A depriving him from his privileges is ir fact a step towards concealment ,rg)'

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of all their illegal actions besides taking over personal benefits.

ATTFSTE

3 Tlrere is iln added Prayer for Ix;rrni er Pes lt;r'.',:, rlriiir liourl M ir;g cr;r i), rr.i, i-().r:a S ilil obtaining qandatory injunction to restrain the authorities of S.D.D.A from takirtg any illegal

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3 tLtb action in discharge of the duties of the Resp ondent (herein before called as Plaintiff).

4 The claim I on the , basis of asservations vuas hotly resisted by raising vanous legal and factual objectiorrs, whereas !t

pleadings of the parties were then r'educed into following issues:-

Issues:

1.Whether plaintiff got cause of actioni'

2.Whether thts Court got jurisdict.ion to entertain the suit?

3.Whether the suit is bad for mis-joinder and non-joinder of parties?

4.ll.hether plaintiff is estoPPed to sue?

5.Whether plctintiff is appointed as legal adviser/ slanding counsel f SDDA Inniaoo TownshiP vide order No. 28 i C dated 22. I 0.2003?

AYTf;.S ,# 6. Whether defendant No.2 has withour being authorized cancelled I: ,,r;r r ti i Peshirrv;r.i ., ,( , r;"t Bench appointment order of thd plaintiff rvr n g ci a 'U, j, . .. j. r- j..,2 .l SlvAt.

malafide in order to receive illegal gains? i i

7.Iilhether apPointment order of the ptaintiff has been cancelled in

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violation of prescribed law without shoi cause notice and opportunity of hearing?

8.l4/hether plaintiff has been terminated as lrer law standing counsels?

9.Whether plaintiff is entitled to the decree as prayedfor?

Relief.

5 Next off, parties were allowed to lead their evidence which was accordingly adduced on behalf of the learned Advocate/Plaintiff appearing as PW-1 and lnayat-ur-Rahman Senior Clerk was examined as PW-2. Whereas inversely the Petitioners (herein before called as Defendan'ts) examined Sartaj Khan, Deputy Director as DW-L and lnayat-ur-Rahman Senior Clerk again appeared f in the witness-box as ,DW-2 on behalf of the Defendants.

ATTEST

5 Tire learned Civil Judge/lllaqa Qazi- L-x 3l'1.! ler cnch Pcshllt l i I r(iti 'icuri S v. at- V Swat vide his decision dated 31.01.2014 l;irill': r':l i r.ti" iii Q,ll:1, accepted the prayer and decree was granted alongwith back benefits (back benefits were

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neither desired in the plaint nor have ever been shoot off in the statement).

7 The Petiticners therr filed an appeal bearing No. 28/'13 of the year 201.4 before the Court of learned Additional District f Judge/lzafi Zila Qazi Vl Swat which was dismissed as rvithdrawn vide the order dated 07.03.2074. On learning that the representative on behalf of the S.D.D.A without being authorized for withdrawal, the, Petitioners (herein before called as Appellants) before the Court of learned Additional District Judge/lzafi Zila Qazi-Vl :Swat pre{erred ancther appeal bearing No. 34/13 of the year 2014 which was also withdraw n by the crrder datecl 17 .IO-ZOLA.

)., By that time it was thought of that the earlier f appeal No. 28/13 of the year 201'4 was required to be resiored fol which an

A. TE$

l- ;..lr 111 iritlf application under section t2 (2) of the Civil Pesliar ,,: irr i,rril Bcnch li rli fi:,;a iwat.

ir'lirllili'L Procedure Ccde was preferred' This application was dismissed by the Court of learned

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t(tl Additional District Judgeilzafi Zila Ctazi-Vl, Swat for all the rea;ons mentioned in his judgment dated L2.02.2(115, hence this Revisicn Petition.

8 Having hearci argumenls of learned counsel for thr: Petitioners and the Respondent Ghafoor Khan an Advoi:ate in pe':son, record with their valuable assistance gone'through.

9 Learned counsel for the Petitioners placed relian,:e on 2008 CLC 960 orochi " Ghulqm Muhammad vs Provi,nce of Sindh throush Secrctqry ", 2009 cLc 751 (Hiah Court NAK) Neelum Valle v Develo ptnen t Boord th rouoh Chqirmq n and dnother vs Muh ommqd Saddi ue". 2008 SCMR 23 5 " Mrs. Anis Hqider ond others usS.A mir Haider on d <tthers",2073 MLD 7309 Peshqwq rl "Muh antmqd Kozim t'^ Khon Khatta lr: And A n ther vs Me ruo Kh on ond Ar"rEsr94 3ot hers" on d 2004 cLc ijss $.c:A i &n"ch.

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. Bencn Muhommq dYo unis A nd rcrs vs Sohoil ',,r\ Pcrh,t,r . ., i. S)..at.

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Boston and' 3 o thers" spi i prayed for acceptance of this Revision Petition' On other

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7 c lr,\ hand, the Respondent/an Advocate mainly relied up on PU 2077 Lqhore 64 " Zqhur Ahmad (deceas ed I throuoh LRs'ond others vs Pokiston Corao ServicCs Privote Limited",l 2077 SCMR 7298 Government of Pakislon throuoh

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Secretorv Cqbinet Division ond o iother vs Dr.

M. Akbar Rqiput", 2006 SCMR 531 " Wdrriqch oro, Co oration vs F.M.C United Pvt TD" PU 2074 Quetto 753 (Dil"Roohullah&2 others vs Qubot & 8 others", PLD 2074 Lahore 529 " Sqbir Ali vs Additional District ludoe etc" and PLJ 2006 Lohore 687 (Milltqn Bench Multon) " Mst. Bhaaqri vs Khio CIn d2o thers" and prayed for dismissal of the Revision Petition with cost.

10.Whether an application under

f section LZ {21 of the Civil Procedure Code filed before the learned apprellate Court could be

.A}TFSTE

decided wherr there was serious allegation [: :,1,, r

ncr Pes h..,^,, ', li - :;ri ench ilirrr;o';,ir.';.,.;..,j,i. Swat levelled of fraud which could be established by way of recording of evidence. The record

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before the Court would speak up that there lr \ t

was requirement of framing of issites:-

(i)Whetherr the representative:on behalf of the .Project Director S.D.D.A anil his officers was induced as per averments taken in the application under section lZ (Z| of the Civil Procedure Ccde to have actecl under the command of Shafoor Khan who is an Advocate who has force'd him to rarithdraw ttre appeal?

(ii)Whether the said representative of the Project Direcl:or and his officers recorded his statement as being not instructed to file an appeal whiclr has been filed without any authority at the beh,:st of Ghafoor Khan Advocate being an interested party let the decree in his favour to remain stagnant?

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11.As per leitnrotif of 'lhis Petition ArrEsrflpl1 followed by the argunlents, this; hassle has /t F-x;'rr'(1r11,;.n.n been spruced away by Ghafoor Kh,rn Advocate, Festt:''t:'r'.l ' , .'::, S+-it !,/rrl.].1,',r'ltr!]

the Respondent appearing in pers:n under his clearr breast admission that the aSrplicatiorr for

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withdrawal of the appeaiwas drafti:d by him in his own handvrriting which was then presented to the learned appellate Court. ln his presence the appeal rlrras withdrawn without proper consultation o,'the officers of the S D.D.A. After this admission has come irp before this Court there is no need left to.further exaggerate and put the prop,:unded issues for recording of evidence. There is no cavil in acceptance of the prayer of setting aside the imprigned order dated 72.O2.'.lOtS paslsea by ifre learned Additional Dis{rict Judge/lzafi Zila Qazi-Vl, Swat.

t2.

,i A look over the office ordei vide i .t .l

Endst: No. 2831-35/SDDAIA/o-t dated 18.10.2003, it is clear in its' terms that the contract is fo' specific period to continue as r rl- long as the will of the Project Director 5.D.D'A Kanju Swat wish for. There is a specific A TE olgt provision at Serial No. 5 (lf the services of the f,x:r , /,,*,, Advocate are no longerl required, he maY be Ps5ir3';,';1 liL ;r , :lrrl Sench lJing:r,rIl;;,, ,il ij,:rii. 5wat. relieved of h's duties subject to one month

l0 S] notice). This office letter tenders'the contract involving personal service. The relationship between the parties in every contract remained in subsistencr: as long as it wasi required to have been continued then the,principle of master and servant is applicable: The master has the right to terminate the services of his servant if found guilty of misconduct or even without such misconduct it is the sweet will of the master in entirety to terminate the services of his servant.

13.Suffice it to say that if this retainer-ship order was not accepted to the Respondent (lrerein before called as Plaintiff), there was no compulsion on his part to have accepted this contract. lt continued from the J^ year 2003 till 2011 enjoying his remuneration @ Rs. 3500/- only.

,\"1IESTP1

r',.,,''/u The earlier office order dated

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p".f.,",.^,, . I i: i '"t' .. rl [il lL:I '11i1',1(, ,, t ,' r't""'-'' : ' 18.10.2003 for the appointment as Standing counsel of Ghafoor Khan was isstted with the

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approval of the Zila Nazim. For latter cancellation order dated 02.g.2011 the Government of Khyber pakhtunkhwa Local Government, Elections and Rural Development Department under the subject ,,AFFAIRS OF

LOCAL AREA AIJTHORITIES, DISBANDMENT OF

GOVERNMENI' OF GOVERNING BOARDS" hAS duly authorize d the project Director, whereby at Serial No. (ix) SDA Swat has ber_,n given the authority for i:;suance of any appropriate order.

It shall be vrithout recourse to any office whether that be of the District Nazim or even the Deputy Commissioner of ' the Swat. Thereby the order dated 02.08.20j 1 in respect of termination of the Responderrt has been passed in utter authority and is legarl.

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15.Whether the contra<:t involving personal service can be specifically enforced

BTTESTET

/tA,/ I and for contractual employment the remedy L;;rr{itrerl ; ,, 1 aurt 3er''n i:

'z'l' 5'rYi:i' would be available for. a suit of declaration i.4rrr,ic ,' '; '"'ri'(

under section 42 of the lipecific Relief Act 1877

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particularly when the services are to be rendered by an employee being tn private capacity? lf so whether , the const:quences of terminating of such services it is ;rrovided for such dismisserl person the right to seek his reinstatement to continue his services as Standing Counsel. Theseiqueries ar.e answered in the light of wisdom contained in pLD 1977 Ldhore 597 L'zhore M Roshid Ahmqd vs Nqtional & Grindlo ys tlsnk Ltd." 2000 cLc 7796 (Korqchi) Gool Bqno and another vs

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Auron eb", :looo clc 7807 (Lqhord "Mst.

Razio Bibi vs qttar A li", .1, PLD 7966 Supreme

Court 848 The trmon Eo.st Pokistqn lndustrial Dev,zlopment, DACCA and oth er' vs Rustom Ali and one onol'her"-Where there is a 9.^ relationship r:f master and sbrvant the employment being contractual. There is A"ITEsp?

E r* . termination of the contract therr such like "(i,,"1 p0Stra,,r..: ri :.,rrri Acnch (,r,rg.- ,: , , ):,1 , 5t at.

office order or de-notification 'cannot be

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challenged b'1 way of filing of suit for declaration, as such like suits are not

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maintainable. Whether if at all to qstablish the legal character'' has been held to be out of the scope of Section 42 of the Specific Relief Act

15.The legislation under the Civil Procedure Code in order to curb the menace of vexatious and crucifying claims by presentation of the plaint, it is duty of the Courts before when such like suits are instituted'even before issuance of sui'nmons are required to examine the plaint so as to determine the cause of action. lf does not accrue the plaint is liable to be returned urrder Order Vll Rule 10 of the Civil Procedure Code or it may be rejgcted under this rule, The legislation'has given such ample powers for rejection of the plaint which does not disclose cause of action not only to the Court of first instance primarily the learned A1"rE STE Civil Court, rather the learned appellate Court i e( !' xr'lrt ,.1, ' (,il,li Scnch u 6<l1lr." Suat- possess such $owers equally. The plaint can be rejected even at the stage when the Court

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exercising its revisional, powers. Guidance IS sought from 2:006 MLD 72 Mst. Sarwar Jan ond 8 others vs District tu eBodh and others" an d 1.989 CLC 7.5 " M iqn Muhommod Akrom qnd others vs Muhqmmod llqfi" L7. Although thr: prayer as set under this Revision Petition reads for aCceptance of the Revision l)etition, the impugrred order & judgment dated 12.02.20L5 passed by the learned Additional District Judge/lzafi Zila eazi- Vl Swat, may graciously be set aside by allowing

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application No. U12 (2) of 2015 fr>r a remand to the learnr:d appellate Court for hearing appeaf bearir.g No. 28113 of 20!4 and its decision of merits. Yet in the wake of plaint ,4 presented by Worthy Ghafoor Khan Advocate, is not in conscnance with its legal character, as AYTEST he maintainecl the relat'ionship ofi master and [i r;r r iire servant with the Projecl: Director S.D.D.A. The PeSlt: t,,,: ii:,1 COUn ench llif llI r.r,ll,: iii r)itzu, Srvlt contract in his favour manifests that if his servtces are 110 longer required he may be

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relieved from lris duties subject toione month notice and ac(:eptance of the office order on behalf of him. The officelorcler No. 5ZTlSDDAl Dated Kanju C2.08.2011, under the captioned ll subject NO:-ICE FOR TERMtNAI'toN FROM SERVICE" is irr utter authority of the project Director S.D.D.A Kanju Surat.

18.Ha'ring no cause of ;lctiori it is absolutely hekj, let the plaint stands rejected under Order Vll Rule 11,of the Civil procedure Code. This har; been wrought so ,as to avoid further bootless exercise of proceedings and wastage of time endlessly.

19.ln the above terms this Civil Revision Petition is accepted leavinl; the parties to bear their o'run costs.

Announced gn Dt: 23. ,2.2017 .IUDGE '1ie !:''riie c.opy $ertif icll ''-' r

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