Date of hearing 2 7. 0 2. 2 0 0 7 .
Date of Judgment 0 3. 2 0 0 7 .
Plaintiff Major (Retd) Abdul Rauf Khan through Mr. Mohammad Iqbal Choudhry, Advocate.
Defendant
No.1: National Logistic Cell (NLC) through Ms. Sarwar Jehan, Advocate.
Defendant
No.2: Federation of Pakistan called absent.
MUNIB AHMED KHAN, J.- The dispute in this suit is in respect to claim by the plaintiff, raised towards his professional fee, as he being an Advocate has contested cases of Defendant No. 1, in courts / tribunal while Defendant No.1 has resisted the claim, on the ground that the plaintiff was full time salaried employee and was not entitled to anything over and above the service benefits, which have been paid to him and that if the plaintiff has contested some cases despite fats that salaried employee cannot appear as an advocate then the plaintiff was duty bound to intimate such legal position to Defendant No. 1.
The plaintiff has submitted that he is an advocate and was engaged by Defendant No. 1, as full time legal advisor by letter dated 30.07.1991 as Staff Officer Admn, but lateron, by letter dated 14.10.1993, he was appointed as legal advisor on adhoc basis on retainership, equivalent to Grade-17 Pay Scale plus allowances and was required to represent Defendant No. 1, as an advocate in Courts besides retainership duty. The plaintiff claims to have continued to work in such capacity. According to him, he was promised legal fee on the basis of schedule, on the basis of which, fee was paid to other Advocates, hence, the plaintiff filed Vakalatnamas on above undertaking of NLC in various cases, notwithstanding the facts, that it was not plaintiff’s duty to appear in courts, in terms of his appointment letter dated 22.11.1993. He submits that a clause in Vakalatnama mentions a promise on the part of the NLC that professional fee will be paid. The services of the plaintiff were appreciated by Defendant No. 1 through its letters, he has given detail of the cases, he contested for Defendant No. 1 in paragraph 10 of the plaintiff and has pointed out that to various Advocates handsome fee was paid but although the plaintiff represented Defendant No. 1 before the High Court as well as Hon’ble Supreme Court but no professional fee has been paid, therefore, he sent his professional fee claim but instead of payment, Defendant No. 1 issued a letter dated 01.04.2002 terminating thereby services of the plaintiff w.e.f. 01.10.2002 on the ground that as per directive of COS, the tenure of job of retired major has been fixed for seven years and since the plaintiff has completed that tenure, therefore, he was relieved from 01.10.2002. The plaintiff challenged his termination through his letter dated 09.08.2002 on the ground that it was issued due to malicious and thereafter has filed this suit for recovery of Rs.25,115,000/-.
The Defendant No.2 did not contest and declared exparte as it has no concern and only Defendant No. 1 filed written Statement, whereby it has taken preliminary objection towards maintainability of suit, on the ground that the plaintiff has no legal character or right to claim the relief and that the plaintiff was a full time employee, therefore, was not entitled to appear and plead as an advocate but as a representative and if he has acted as an Advocate then, it was his professional duty to intimate that in such capacity he could not appear. It has further been contested that because of his conduct and practice, he was estopped from making any claim in respect to professional fee which, too, is an after thought, as action has been initiated after issuance of termination letter dated 01.04.2002. It has further been stated that in addition to the above, the suit is time barred.
On merit, the Defendant No. 1 has stated that the plaintiff was an employee of Defendant No. 1 and was a full time legal advisor and not on adhoc basis or as retainer and that the plaintiff besides his monthly salary was also provided with house accommodation, transport facility, medical benefit for himself and his family and as such being an employee with all benefits, he cannot claim separate professional fee. It has further been contended that reference to the fee of other advocates is totally unwarranted as either they were working as a part time legal advisor or on retainership and that under the terms and conditions of his employment, the plaintiff was to render legal advises and even if the plaintiff has appeared in courts then he has not done so for separate fee as it was never agreed by Defendant No. 1. It has further been contended that during the employment, plaintiff never raised any claim and it was only after his termination that he raised claim in respect to his so called professional fee and that the plaintiff was entitled to, what was agreed in terms and conditions of his appointment. The above controversy led framing of following three issues:
1. Whether the plaintiff’s appointment as legal advisor to the Defendants was only to provide pretrial post trial advice on internal Military courts matter/court of inquiries only and not to attend any civil court of law?
2. Whether the case conducted by the plaintiff as an Advocate for the Defendant, Civil courts, having original / appellate jurisdiction entitles the plaintiff to claim professional fee?
3. What should the judgment/decree be?
The plaintiff examined himself and exhibited several letters from Ex.P/1-A to P-89. All these documents have been filed to show that the plaintiff has conducted the cases on behalf of Defendant No. 1 in various courts, including High Court and Hon’ble Supreme
Court and that he was performing duties for Defendant No.1 and that other advocates engaged by Defendant No. 1 were paid substantial amount while same benefit has been denied to the plaintiff.
To rebut the contentions of the plaintiff, Defendant No. 1 has examined a witness, who appeared with authority letter from Defendant No.1, who has exhibited documents from ExD-1 to Ex.D-5, to establish that plaintiff was paid his entire dues towards salary, service gratuity etc.
Since both the issues relate to nature of service under appointment letter and one and the same factual position is relevant, therefore, Issues Nos. 1 and 2 are taken together and discussed hereunder.
Learned counsel for the plaintiff has argued that there is no bar of limitation as there was no denial by Defendant No.1, at any stage and dispute only arose after termination by letter dated 01.04.2002, while the suit was filed in September 2002 and even otherwise this suit is for recovery of money by an attorney /Vakil, therefore, Article 84 of the Limitation Act, providing three years limitation, will be applied. He has further submitted
that Defendant No. 1 has not denied issuance of Vakalatnamas, which contain the terms of payment and since the plaintiff was performing court duty besides legal advising, therefore, he was entitled to professional fee, which was paid to other advocates in such type of cases. For reference, he has referred letters written to other advocates, containing schedule of professional fee etc. He has further submitted that even after so called termination, Defendant No. 1 did not discontinue engagement of the plaintiff as an advocate and he conducted various cases even during the pendency of this case, therefore, the plaintiff was entitled for professional fee as per prevalent schedule, in such type of cases.
Learned counsel for the plaintiff has placed much emphasize on the ground that written Statement of Defendant No. 1 has no evidentiary value nor there is evidence, as signatory to the written Statement has not been examined and in this respect, he has relied upon following cases:
1. P.L.D. 1972 S.C 25
2. P.L.D. 2004 S.C 465
3. P.L.D. 2000 KAR 364
4. P.L.D. 1993 KAR 775.
Through P.L.D. 1972 S.C 25, it has been held that the written Statement cannot be exhibited without signatory being examined and that the written Statement filed by deceased cannot be treated as an evidence. This authority has been followed.
In P.L.D. 2004 S.C 465, it was observed that written Statement cannot be treated as evidence but above authority was distinguished slightly with the observation that without confronting legal heir of deceased, the contents of written Statement cannot be treated as an admission on behalf of their predecessor-in-interest.
In P.L.D. 2000 S.C. 364 it was held that the plea raised in written Statement would have no legal effect in the absence of evidence in support thereof as averments and pleadings are to be proved through evidence.
Through P.L.D. 1993 S.C 775, order 8 rule 1 and Article 70 of Qanun-e-Shahadat has been discussed. According to that, written Statement is not a piece of substantive evidence and its contents cannot be said to have been legally proved until the signatory to that, submits himself for cross-examination.
The learned counsel for the plaintiff has also submitted that wages and remuneration includes all type of payment including gratuity, house rent, salary etc.
Ms. Sarwat Jehan, learned counsel for the defendant No.1 has argued that the plaintiff was appointed in a subsidiary of Pakistan Army, controlled by Defence Ministry and since he was retired Major, therefore, under a policy he was adjusted, firstly, as Staff Officer-Admin by letter dated 30th July 1991 (Ex.P/1-A). She has further submitted that the plaintiff was paid gratuity, car maintenance, accommodation and even medical leave, which are peculiar to an employee and not to a retainer and that he was paid a fixed sum against his appointment irrespective of any assignment of cases and as the appearance of the plaintiff before the courts was not as an advocate of NLC but as a representative, law officer, therefore, he was not entitled to any fee nor it was agreed to, at any time. She has pointed out Annexures D-1 to D-5 and has stated that through D-1 service gratuity and leave salary in the sum of Rs.2,89,023/- has been paid to the plaintiff and that the plaintiff was granted 21 days casual leaves every year. She has further pointed out Ex.P-26, which is a handwritten letter, to show that the plaintiff has requested for payment of gratuity. She has also argued that under the terms of employment and termination letter dated 01.04.2002, the plaintiff was required to return all the cases but he illegally withheld, therefore, the Defendant No. 1 even could not trace out the dates of its cases.
Heard the learned counsel for the parties and perused the record of the case and also examined the evidence and find that the plaintiff, a retired Major, was appointed as SO-Admin by letter dated 30th July 1991, which is Ex.P/1-A, the opening paragraph of the said letter is as under:
“OIC, NLC is pleased to appoint you as SO Admn in 101 Tpt-Bn-NLC-Kci from the date of resumption of duties on the following terms and conditions”.
In the above letter, there are several terms and conditions, which includes pay and allowances in Grade 17 (2065-155-3925), House Rent, Indexation Pay, Conveyance Allowance etc. It has also clauses, in respect to termination, leave, medical, discipline, probation, gratuity etc. The appointment, through this letter, was for a period of one year which was repeated by another letter dated 22.11.1993 Ex.P/2, with same terms and conditions except the designation, which was changed from S.O-Admn to Legal Advisor. After the said letters, there is no other letter in respect to terms and conditions of service and then comes letter of Defendant dated 01.04.2002, whereby the services of the plaintiff was terminated.
The plaintiff during his employment, has taken up the matters of fee with Defendant No. 1 by his letter dated 23.11.1993 (Ex. P/17) and letter dated 26.11.1996 (Ex. P/18), but thereafter has not raised those demands and continued working on the same terms and conditions, as mentioned in letter dated 22.11.1993 Ex.P/2. He has again awaken in August 2002, when he sent a letter dated 10.08.2002 Ex.P-19, which was issued after termination of his engagement by Defendant No. 1 by its letter dated 01.04.2002 Ex. P/23. Although, the plaintiff has referred some documents in respect to payment to be made to retainers but has not submitted any letter, to show that these terms and conditions, over and above his appointment letter dated 22.11.1993 Ex.P/2 were applicable to him or similar type of letter was issued to him. The letter of plaintiff’s appointment provides all facilities, which are normal facilities in case of an employment, including availability of the house rent allowance, in terms of existing rules of Defendants. He has also been granted 21 days casual leaves in a year and in addition one month’s earned leave in a year has also been allowed to him, besides, medical for self and his family, he has been provided with gratuity, accommodation and was also subjected to rules and orders issued by Headquarters, NLC (GHQ Rawalpindi) from time to time. It appears that although plaintiff raised his claim in the past but did not raise thereafter and continued working. Last letter, in this respect, was Ex.P-18 dated 26.11.1996 and thereafter there is silence of about six years. The plaintiff was removed from service by letter dated 01.04.2002, which is as under:
“Maj (Retd) Abdul Rauf
Legal advisor HQ Fd Comd NLC
Karachi
Info: HQ Fd Comd NLC Kci
Sub: Terms of Svc
1. In view of the directive of COAS, emp of retired army pers in all commercial organizations being run under the control of Army is to be done for specified tenure to create job opportunities for other retd offrs/JCOs/Ors in waiting, Therefore, tenture of retd Majs, re-emp in LLC has been fixed as 7 years.
2. Since you have already completed the above tenure, therefore you are given final notice of 6 months for making alternative arrangements. You will be disch on 20 Sep 2002. Please ack and submit clearance cert and other docus by due date.
3. Hope this ltrs will be taken in right spirit.
Sd/-
Brig
D NLC
(Badar Ul Islam Lodhi) ”
After above letter, the plaintiff has agitated his claim vide his letter dated 10.08.2002, Ex.P/19, but it appears that during some meeting between plaintiff and Defendant’s officials, some claim was signed by the plaintiff and by Ex.P/26 dated 25.09.2003, the plaintiff has requested for payment of gratuity claim and has also mentioned that some claim was signed on 29.09.2002. It has also been noticed from Ex.D-2 to D-5 that service benefits in the shape of service gratuity and leave salary in the sum of Rs.2,89,023/- has been paid, which has been accepted by the plaintiff without any objection or protest and a cheque in this respect was received by him, somewhere in January 2004.
In respect to contentions of learned counsel for the plaintiff, regarding inadmissibility of written Statement, as its executant has not been examined, it is worth mentioning that it is well defined legal position, keeping in view the above authorities, that contents of written Statement are of no evidentiary value until its signatory is subjected to cross-examination. This rule is applicable in the matters, which have been contested in private and personal capacity and can be used against that private party, if signatory to the Plaint or written Statement is not cross-examined in evidence but this rule cannot be applied in the matters where the Plaint or written Statement has been filed by the signatory on the basis of record of business concern, or a legal entity and the signatory has stated factual position which has come to his knowledge during the course of his employment, for the reason that the matter comes to court and remains pending for years before evidence, while signatory to their pleadings either transferred or retired or may be subjected to other disciplinary action, therefore, their position changes. In such type of cases, record of body / organization is material and that is to be brought on record through any authorized officer or attorney, provided he has been appointed specifically under the proper authority. In the instant case, although signatory to the written Statement has not been appeared but one of the official of Defendant No. 1 has appeared and has submitted his authority as Ex.D-1. The Defendant No. 1 is an organization, under the control of Ministry of defence and the authority letter has been signed on behalf of Commander of NLC, who seems to be a authority in the case, as the plaintiff himself has relied upon certain letters issued by Commander of the relevant time.
Likewise, the contention in respect to the definition of wages or remuneration is not material, as the plaintiff has not been treated as a workman nor any payment in either head can change the nature of his duty, which he was performing as legal advisor.
It is necessary to look upon Ex.P/10 dated 10th July 2002, filed by the plaintiff himself, which is a document issued after termination of services by letter Ex.P/10 shows that there were some negotiation and proposal in respect to new terms of contract, in which certain fees was also proposed but it remained only to the extent of recommendations and were never accepted or acted upon. The said document belied the contentions of the plaintiff that at any time, in the past, Defendant No.1 accepted or agreed to pay the plaintiff any legal fee in the cases over and above the salary and service benefits etc.
From the above terms and conditions of service, it seems that plaintiff was full time employee of Defendant No. 1 and at the most, representing as official of Defendant No. 1 and not as an advocate, as in some case, he has also appeared before Hon’ble Supreme Court of Pakistan whereas he has been not enrolled in such capacity but since he was an official of Defendant No. 1, therefore, he represented it. It is also worth noting that he has been paid gratuity from 01.01.1992 till 23.12.2001 i.e. for full qualifying service years. He was residing in a accommodation, provided by Defendant No. 1 and enjoying all benefits akin to Defendant No. 1’s employees, therefore, it is not difficult to adjudge the plaintiff as an employee of Defendant No.1, as legal advisor on full time basis, for which he was paid salary and service benefits hence he was not entitled to claim any fee as an advocate.
In these circumstances, the suit is not maintainable and is dismissed accordingly.
J U D G E
Samie