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‑‑ S. 115‑P. I. A. Administration Manual, R. 15.04.13‑Dismissal from service of employee whose employment governed by principle of master and servant‑Such employee, although not entitled to claim re‑instatement in service, was entitled to claim damages from employer by way of salary on account of alleged illegal dismissal from service if he succeeds in showing that his dismissal was against Service Rules governing him‑Procedure prescribed in Service Rules to be followed strictly where service of an employee was terminated on ground of misconduct‑Courts below while dismissing suit of petitioner for re‑instatement, failing to examine such important aspect of case ‑ Judgments and decrees of Courts below set aside, case remanded back to Trial Court with direction to examine petitioner's claim of salary for his alleged wrongful dismissal from service.

Shahid Khalil v. P. I. A. P L D 1972 Kar. 477 ; Malik and Haq v. Muhammad Shamsul Islam P L D 1961 S C 531 ; Muhammad Afzal v. H. B. F. C. P L D 1976 Kar. 1.121 ; Khurshid Hassan Siddiqui v. N. B. P. 1980 P L C (C. S.) 93 and J. J. Miranda v. Fishermen's Corporation SocietY Ltd. P L D 1978 Kar. 990 ref.

Petitioner in person.

Muhammad Akhtar for Respondent.

Date of hearing : 29th September, 1986.

This revision application under section 1I5, C. P. C. is filed by the applicant/petitioner against the two concurrent judgments of the Courts below dismissing his suit for declaration and recovery of damages.

It is an admitted position that the applicant who was an employee of respondent was dismissed from service on the ground of misconduct after holding enquiry. The petitioner challenged his dismissal from service in Suit No. 3026/1978 as illegal, mala fide and contrary to law and also claimed a sum of Rs. 24,900 as salary on account of illegal dismissal from service. The relief. claimed by the petitioner in the above suit are as follows :‑

"1. Grant permission to sue in forma pauperis.

(a) For declaration that the dismissal of the applicant/plaintiff is illegal, mala fide and, contrary to law.

(b) For the judgment and decree of the salary of the applicant/plaintiff for illegal dismissal from 23‑2‑1971 to 30‑10‑1972 comes to Rs. 24,900.

(c) The costs of the suit.

(d) For any other relief which the Hon'ble Court deems proper."

Both the Courts below relying on the cases of Shahid Khalil v. P. I. A. (P L D 1972 Kar. 477) Malik and Haq v. Muhammad Shamsul Islam (P L D 1961 S C 531), Muhammad Afzal v. H. B. F. C. (P L D 1976 Kar. 1121), and Khurshid Hassan Siddiqui v. N. B. P. (1980 P L C (C. S.) 93) reached the conclusion that as the employment of applicant with respondent was governed by the principle of master and servant, the prayer with regard to re‑instatement of applicant could not be granted and accordingly dismissed the suit. There can be no cavil with the above conclusion arrived at by the two Courts below. However, the learned Courts below completely over looked another very important aspect of the case which related to the claim of petitioner for salary on account of his illegal dismissal from service. In the Case of J. J. Miranda v. Fishermen's Corporation Society Ltd. (P L D 1978 Kar, 999) a learned Single Judge of this Court after an exhaustive review of case‑law on the subject recorded the following conclusions in the above case which appear at page 1018 of report :‑---

"The ratio decidendi of the above cases particularly of the Supreme Court of Pakistan is that an employee of a society/corporation cannot maintain writ petition for violation of service rules which the society/corporation might have adopted through a resolution and not through an enactment and that the employee of the society/corpora tion cannot claim same opportunity to defend himself against the charges which a civil servant is entitled to. In the instant case under the terms of the appointment, it was provided that the plaintiff shall be governed by the service rules of the society an. that these services rules provided a procedure of holding inquiry and dismissal of employees. The question which require consideration is, as to whether the society can act in violation of these rules. In my view as the above rules have become part of the terms of the employment, any breach of the same will amount to breach of the contract entitling the aggrieved employee to maintain an action for damages, but he shall not be entitled to claim re‑instatement, through any legal action. I accordingly hold that in the above case defendant No. 1 by not following the procedure provided for in sub‑para. (2) of para. 3 of Appendix 1I to the service rules has committed the breach of the terms of the employment and that the plaintiff is entitled to maintain an action for damages for wrongful dismissal."

I am in respectful agreement with the above conclusions and of the view that in the present case also in spite of the findings by the Courts below that the petitioner was not entitled to claim re‑instatement in service, he was nevertheless entitled to claim damages from the respondent by way of, salary on account of alleged illegal dismissal from service if he succeeded in showing that his dismissal was against the service rules of respondent. The petitioner who personally argued his case invited my attention to rule 15.03.13 contained in the P. I. A. Administrative Manual and contended that in accordance with the above rules he was entitled to a second show‑cause notice after he was found guilty by the enquiry officer before he could be dismissed from service. The rule relied by the petitioner reads as follows :‑