P L D 1953 Lahore 424 (PLP)

SHABIR AHMAD, J.‑--Muhammad Ismail, who was confirmed as a Deputy Collector in the P. W. D. Punjab Irrigation Depart ment on the 16th March 1945 was served with a notice to show cause why he should not be retired from service for inefficiency and doubtful integrity under rule 5.32 of the Civil Services Rules (Punjab), Volume II, First Edition, which deals with the retirement of officials after completion of 25 years' service qualifying for pension, and was given ten days' time to reply. He put in his reply on the 17th of February 1952 and on the 10th of March an order was passed which was in the following terms:‑ "The Governor of the Punjab is pleased to order the compul sory retirement of Ch. Muhammad Ismail, Deputy Collector, Main Line Division, under rule 5,32 (Civil Services Rules (Punjab), Vol. II)". On 5th of April 1952, Muhammad Ismail sent a notice under section 80 of the Code of Civil Procedure to the Secretary to Government Punjab, P. W. D. Irrigation Branch, Lahore, saying that as the order passed against him attracted the provisions of sub section (3) of section 240 of the Government of India Act, 1935, as well as of the Public Servants (Inquiries) Act, 1850, but those pro visions of law had not been complied with, the order was bad in law and inoperative and if his status as a Deputy Collector was not recognised by Government, he will institute a suit to obtain appropriate relief. The Punjab Government did not accept his contention and Muhammad Ismail instituted the present suit on the 26th of June 1952. In the plaint it was said that no enquiry was instituted to investigate any charge against the plaintiff and as the order was one removing him from service the order was, in the absence of enquiry and sufficient opportunity being afforded to him to show cause against the proposed action, illegal ultra vires, mala fide and inoperative. The case was pending in the Court of Mr. Muhammad Siddique, Civil Judge First Class, Lahore, when an application was made on behalf of the Punjab Government that the suit be transferred to this Court and tried on the original side. After notice this application was accepted and the suit has been transferred to the file of this Court. In the written statement put in by the Punjab Government, it was pleaded inter alia that Civil Courts had no jurisdiction to grant any relief in the circumstances of the present case, that the order passed with regard to the plaintiff did not amount to his removal or dismissal from service, and that the plaintiff had been given ample opportunity to show cause against the action proposed to be taken against him and even if the impugned order amounted to an order of removal or dismissal from service, it contravened no provision of law. On the pleadings of the parties I framed the following issues:‑

1. Have not the Civil Courts jurisdiction to try the suit?

2. Does the order retiring the plaintiff from service compul sorily amount to an order of dismissal or removal from service, making section 240 of the Government of India Act, 1935 (as adapted in Pakistan) applicable?

3. What is the effect of rule 5.32 of the Punjab Civil Services Rules (Volume II) on the facts of the present case?

4. If issue No. 2 is decided in favour of the plaintiff, were the provisions of section 240 of the Government of India Act, 1935 (as adapted is Pakistan) compiled with before passing the orders?

5. Should special costs be allowed to the successful party?

6. Relief. Evidence was led by both the parties and lengthy arguments have been addressed by their counsel. Issue No. 1.‑--It was contended by the learned counsel for the defendant that Civil Courts had no jurisdiction to entertain the suit, because of section 4 of the Pensions Act (XXIII of 1871) which reads as follows :‑ "Except as hereinafter provided, no Civil Court shall enter tain any suit relating to any pension or grant of money or land revenue conferred or made by the Central Government or any Provincial Government or any former Government, whatever may have been the consideration for any such pension or grant, and whatever may have been the nature of the payment, claim or right for which such pension or grant may have been substituted." The argument was that as no other provision of the Pensions Act gave the Civil Courts jurisdiction in the matter and any order passed in the suit must affect the question of pension, even though indirectly, the jurisdiction of the Civil Court to entertain a suit of the present kind did not exist. In this connection reference was made to a decision of their Lordships of the Privy Council in R. T. Rangachari v. Secretary of State (A I R 1937 P C 27). The facts of the case relied upon have no relevant resemblance to those of the present. In that case, Rangachari, the appellant before their Lordships, who was a Sub‑Inspector of Police in the Presidency of Madras was accused of irregularities and misconduct in the course of his duties as a police officer and an enquiry was conducted against him. Before, however, any final order could be passed in the enquiry, Rangachari applied for being invalided and was retired from service on pension for reasons of health. Some time later, the pension granted to Rangacbari was suspended and subse quently he was removed from service from the date on which he had been invalided and granted pension. Rangachari lodged a suit to have it declared that his pension was illegally disallowed, and their Lordships of the Privy Council came to the conclusion that the order removing Rangachari from service at the time when he had for some months duly and properly ceased to be in service was a mere nullity and could not be sustained. They held, how ever, that as the decision of the Courts on the point involved would affect the question of pension, Civil Courts had no jurisdiction because of section 4 of the Pensions Act, to entertain the suit and the remedy lay by petition or memorial to Government and not by a suit in Court. If in the present case the plaintiff had asked for an order that he was entitled to a pension at a higher rate than that granted to him, the case would have been hit by section 4 of the Pensions Act and the jurisdiction of the Courts would have been barred, but the present not being a suit relating to grant of pension, the suit is not barred by the provisions of the Pensions Act. In the present suit the plaintiff contends that the order to which he objects is in substance an order removing him from service and that as the provisions of section 240 of the Government of India Act, 1935, were not complied with before the impugned order was passed, the order was void and inoperative. In such suits there is no doubt that Civil Courts have jurisdiction. This has been laid down by a number of judicial decisions of un questionable authority, of which I need only mention the recent one given by their Lordships of the Privy Council in The High Commissioner for India and another v. I. M. Lall (A I R 1948 P C 121). If the contentions of the plaintiff be accepted, then he certainly suffered a wrong for which the Civil Courts have jurisdiction to grant him relief. 1, therefore, decide the first issue against the defendant. I will take up issues Nos. 2 and 3 together, because they are connected with each other. The contention of the learned counsel for the plaintiff was that as the plaintiff had not attained the age of 55 years, the order passed by the Punjab Government retiring him from service amounted to his removal from service. No statute has laid down the age of retirement of Deputy Collectors who are governed by Punjab P W D Irrigation Branch Deputy Collectors Rules, 1940 which were promulgated under Notification No. 3037/ Estb.‑S, dated the 12th February 1940. Rule 10 of these rules makes the general rules contained in Civil Services Rules (Punjab) which were made by the Punjab Government under section 241 of the Government of India Act., 1935, applicable to Deputy Collectors in matters not provided for by their specific rules. The question of retirement is not dealt with by the P W D Irrigation Branch Deputy Collectors Rules, 1940 and, therefore, the rules with regard to retirement contained in the Civil Services Rules (Punjab) will be applicable to retirement of Deputy Collec tors in the P W D Irrigation Branch, Punjab. The relevant part of rule 3‑26 of Volume I, Part I, of the Civil Services Rules (Punjab), reads as follows:‑ "3.26. (a) Except as otherwise provided in the other clauses of this rule the date of compulsory retirement of a Government servant, other than a ministerial servant, is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of compe tent authority on public grounds, which must be recorded in writing, but be must not be retained after the age of 60 years, except in very special circumstances." It is common ground that the plaintiff was not a ministerial servant as defined in rule 2.40 of Civil Services Rules, Volume I, Part I and it is, therefore, clear that the ordinary date of the retirement of the plaintiff would be when he attains the age of 55 years. If this rule stood alone, it could perhaps have been successfully urged on behalf of the plaintiff, who was required to retire four or five years before he attained the age of 55, that the impugned order was one removing him from service, but there are other rules which it is necessary in this connection to consider. Chapter V of the Civil Services Rules (Punjab), Volume II, gives the various classes of pensions Gs (1) Compensation Pensions, (2) Invalid Pensions, (3) Superannuation Pensions, (4) Retiring Pen sions, of which we are not concerned with the first two classes. Superannuation pensions are default with in section IV of Chapter V in rules 5.27 to 5.31, and retiring pensions in rules 5.32 to 5,

35. The relevant part of rules 5.32 under clause. (b) of which the Punjab Government acted in the present case reads as follows:‑‑ "5.32 (a) A retiring pension is granted to a Government servant who is permitted by Government to retire after completing qualifying superior service for twenty‑five years or such less time as may for any special class of Government servants be prescribed. (b) A retiring pension is also granted to a Government servant who is required by Government to retire after completing twenty‑five years' qualifying service or more." In the face of rule 5.32 it cannot be reasonably urged that al Government servant governed by it is to retire at the age of 55 and not earlier. This rule read with the other relevant ones makes it clear that is one of the conditions of service of every person C governed by the Civil Services Rules (Punjab), First Edition, that he may be required by Government to retire after he has completed service for 25 years which qualifies him for pension though the ordinary age of retirement is 55 years. I will now consider if the conditions of service mentioned in rule 5'32 were validly prescribed. If the rule runs counter to the provisions of Government of India Act, 1935, it will have no binding force, ay the decision of Their Lordships of the Privy Council in North‑West Frontier v. Suraj Narain Anand (P L D 194 9 P C) will have no application. In the Privy Council case a Sub‑Ins pector of Police who had been dismissed by an authority lower than the one which had made the appointment brought a suit for declaration that his dismissal was against law. On behalf of Government, section 243 of the Government of India Act, 1935, which is in the following terms:‑ "Special Provisions as to Police.‑‑Notwithstanding anything in the foregoing provisions of this chapter, the conditions of service of the subordinate ranks of the various police forces in Pakistan shall be such as may be determined by or under the Act relating to those forces respectively," was relied upon for the contention that a servant of the Govern ment in the police department could be dismissed by an authority lower than the one that appointed him provided such an authority was competent under Police Rules to pass the order of dismissal. This contention was not accepted by the Federal Court in Suraj Narain Anand v. The North‑West Frontier Pro vince (A I R 1942 F C 3), their Lordships of the Privy Council remarked that they were unable to regard the provisions which prescribed the circumstances under which the employer is to be entitled to terminate the service as otherwise than conditions of the service, whether those provisions were contractual or statutory. The present case would be governed by section 241 of the Govern ment of India Act which authorizes the Central and the Provincial Governments to make rules prescribing conditions of service of their servants. Subsection (2) of section 241 which authorizes the Government (Central or Provincial) to prescribe conditions of service of their servants, opens with the words "Except as expressly provided by this Act. . . ". These words are entirely different from the words used in the beginning of section 243 of the Government of India Act and make it clear that the statutory provisions about the tenure of office of Government servants and the manner in which it can be terminated by dismissal or removal could not be altered by rules framed section 241 of the Act. If, therefore, an order passed under Rule 5.32 of the Civil Services Rules (Punjab), Volume II, First Edition, is an order of dismissal, compliance with the pro visions of section 240 of the Government of India Act is necessary before such an order can be validly passed. What I have said about an order of dismissal would apply equally if the order is to be deemed to be one of removal from service, as, because of section 277 of the Government of India Act, 1935, references to dismissal in Part X of the Act, in which part section 240 occurs, include reference to removal from service. It may be mentioned that termination of service under Rule 5.32 discussed above is not shown in Rule 14.10 of the Civil Services Rules (Punjab), Volume I, Part I, as one of the penalties which may be imposed on a Government servant for misconduct and though not conclusive, it is at least some indication of the intention of the Government which framed the rule. If termina tion of the service of a Government servant under any circum stances were to be deemed to be either removal or dismissal from service it will be necessary to comply with the relevant provisions of section 240 of the Government of India Act, even when the Government servant is made to retire from service on reaching the age of superannuation: but this has never been contended. On behalf of the plaintiff, reference was made to letter No. 543‑52/712‑Gazette, dated 8th of February 1952, sent by Mr. H. A. Majid, Chief Secretary to Government Punjab, to All Heads of Departments in the Province, a copy of which is Ex. P. 1 on the record. In this letter it was said that compulsory retirement before the age of 55 is a punishment being necessitated by a fault in the officer and amounts to removal at the least. Opinion was expressed in this letter that imposition of this penalty attracted the requirements of section 240 (3) of the Govern ment of India Act, 1935. It appears to me, however, that the interpretation placed on the rule by Government was not correct. If rule 3.26 of Volume 1, Part I of the Civil Services Rules (Punjab) were the only rule on the subject an order compulsorily retiring a servant before the age of 55 would amount, at the least, to an order of removal from service, but as the relevant rules in Civil Services Rules (Punjab), First Edition, read together lead to the conclusion that a Government servant may be required to retire after he has put in 25 years' qualifying service, termina tion of service under Rule 5.32, Civil Services Rules (Punjab), does not, in my opinion, amount to removal from service, in spite of the fact that Rule 5.32 would not ordinarily be invoked unless the officer was inefficient or of doubtful integrity. The learned counsel for the plaintiff contended that even if the Government had wrongly interpreted rule 5.32 in their letter referred to above, they were bound by this interpretation and could not plead to the contrary. In my opinion, this argument has no force. Even if the letter be treated as an admission (which it was not), it being an admission on a point of law would not be binding. No ques tion of estoppel arises because the plaintiff does not even contend, much less prove, that, because of the representation made by Government in the letter under consideration, he had in any manner changed his position or done something which he would not otherwise have done. It being one of the conditions of service of every person governed by Civil Services Rules (Punjab), First Edition, that he, can be required by Government to retire after he has completed 25 years' qualifying service, the provision of section 240 of the Government of India Act applicable to cases of dismissal and removal can have no application if the service of such a person is terminated under rule 5.32 (b) of Civil Services Rules (Punjab), Volume II. My decision on issue No. 2, therefore, is against the plaintiff and the decision on issue No. 3 is that the effect of rule 5.32 of the Civil Services Rules (Punjab), Volume II, on the facts of the present case is that before requiring the plaintiff to retire it was not necessary for Government to give an oppor tunity to the plaintiff to show cause against the action proposed to be taken against him. In view of my findings on issues Nos. 2 and 3, it does not appear necessary to decide issue No. 4, but in order to avoid the possibility of remand in case my decision on the above two issues is reversed in appeal, I will deal with this issue also. The con tention of the learned counsel for the plaintiff was that the impugned order being one of removal from service it was neces sary to hold a departmental enquiry before the order could be passed. In this connection reliance was placed on subsection (3) of section 240 of the Government of India Act, 1935 the relevant part of which reads as follows:‑ "(3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable oppor tunity of showing cause against the action proposed to be taken in regard to him." It will be noticed that the subsection does not require the hold ing of an enquiry. Provision about enquiries is, however, made in Rule 14.13 of the Civil Services Rules (Punjab), Volume T. Sub‑rule (2) of this rule is in the following terms:‑ "(2) The grounds on which it is proposed to take such action shall be reduced to the form of a definite charge or charges which shall be communicated in writing to the person charged, and he shall be required within a reasonable time to state in writing whether he admits the truth of all or any of the charges; what explanation or defence, if any, he has to offer and whether he desires to be heard in person. If he so desires or if the authori ty. empowered to dismiss, remove or reduce him so directs, an oral enquiry shall be held at which all evidence shall be heard as to such of the charges as are not admitted. The person charg ed shall, subject to the conditions described in clause (3), be entitled to cross‑examine the witnesses, to give evidence 'in person and to have such witnesses called, as he may wish, pro vided that the officer conducting the enquiry may, for reasons to be recorded in writing, refuse to call any witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof." According to this sub‑rule, an enquiry is necessary only if the public servant sought to be dismissed, removed or reduced in rank desires an enquiry or the authority competent to pass any of the above three orders so desires. The parties' counsel were not agreed as to whether in the reply sent on the 17th of Febru ary 1952, the plaintiff had claimed an enquiry and I am inclined to agree with the contention of Mr. S. A. Mahmood, learned Assistant Advocate‑General, who appeared for the defendant. But even if I accept the contention of the learned counsel for the plaintiff on this question of fact, the result as I will presently show, will not be any different. Reliance was placed by the learned counsel for the plaintiff on the decision of their Lordships of the Privy Council in The Nigh Commissioner for India and another v. I. M. Lall (supra), but, in my view, that decision has no application to the facts of the present case. In that case, subsection (3) of section 240 of the Government of India Act had not been complied with because the public servant (I. M. Lall) had not been given a reasonable opportunity to show cause against the action proposed to be taken in regard to him. At one stage of the enquiry into his conduct, I. M. Lall was asked to show why he should not be dismissed, removed or reduced or subjected to such other dis ciplinary action as the competent authority may think fit to en force for breach of Government rules, but at no stage was he told that it was proposed to dismiss him. In these circumstances, it was obvious that he had not been informed that it was pro posed to dismiss him from service. In the present case, on the other hand, the notice which was sent to the plaintiff mentioned clearly that it was intended to terminate his service under rule 5.32 (of the Civil Service Rules (Punjab), Volume II). This, in my view, was in the circumstances of the case, adequate compliance with subsection (3) of section 240 of the Government of India Act. I have already indicated that the holding of an enquiry before passing an order of removal, dismissal or reduction in rank is not enjoined by the statute and is only provided for by the rules. Assuming that the impugned order amounted to an order removing the plaintiff from service, I do not think that the mere fact that no enquiry was held would entitle the plaintiff to the grant of any relief by Court, whatever remedy may be open to him by means of a departmental appeal. In this con nection I need only refer to the decision of their Lordships of the Privy Council in R. Venkata Rao v. Secretary of State (A I R 1937 P C 31). That was a case under section 96B of the Government of India Act, the opening words of which were "Subject to the provisions of this Act and of rules made thereunder, ", and no enquiry was held though prescribed by the rule in force. Their Lordships of the Privy Council remarked that a most definite and salutary rule was disregarded in most essential respects, but held that the breach of rules as distinguished from a breach of a statutory provision could not give a Government servant the right to get relief in the matter from a Court of law. It is for Courts to determine in a case of dismissal, removal or reduction in rank whether or not the opportunity given to the public servant to show cause against the order was reasonable, but I am not prepared to accept the contention of the learned counsel for the plaintiff that in all cases an enquiry must be held before an order of the kind mentioned above is passed. Whether or not an enquiry is necessary would depend on the facts of each case. In the present case, the services of the plaintiff were termi nated because in the opinion of Government he had ceased to be efficient and his integrity had also been doubtful. Opinion of Government about the efficiency and integrity of the plaintiff was based on his annual reports starting from the year 1943 and a copy of all such reports was sent to the plaintiff. In his reply the plaintiff tried to show that all the adverse reports had been actuated by bias. I have no doubt that before passing orders, Government fully considered the explanation of the plaintiff, but as action was intended to be taken on the basis of the annual reports of the plaintiff, I fail to see what oral enquiry could be held. I hold, therefore, that even if the impugned order amoun ted to one of removal from service, there was no disregard of the provisions of subsection (3) of section 240 of the Government of India Act, 1935. Issue No. 4 is decided in favour of the defendant. In view of the above findings I dismiss the suit of the plaintiff. Issue No. 5 relates to grant of special costs to the successful party. Special costs under section 35‑A of the Code of Civil Procedure are to be granted only if the Court comes to the conclusion that the claim or defence was false or vexatious. In the present case, each party had an arguable case and I do not think that the case of either can fall under section 35‑A of the Code of Civil Proce dure. The suit of the plaintiff appears to have been instituted mainly because the contents of the letter Exh. P. 1 made him believe that the order against him was not proper, and I, there fore, leave the parties to bear their own costs. A. H. Suit dismissed.