P L D 1953 Lahore 163 (PLP)

KAYANI, J.‑

The appellant, Muhammad Shafi, was employed in the Municipal Committee of Murree as a taxation superinten dent. In 1949 he was charged by the committee with misconduct sand indiscipline and dismissed after an enquiry. His appeal to the Commissioner and a petition in revision to the Punjab Government having also been dismissed, he brought a suit for a declaration that the order of dismissal was invalid inasmuch as it had not been passed in due process of law, that he was still in service and that he was entitled to recover arrears of pay. The suit was dismissed by the learned Senior Subordinate Judge of Rawalpindi on the preliminary ground that such a suit against his dismissal by a municipal servant was not competent. He held further that even if it were competent, the committee had acted in compliance with the rules. The learned District Judge did not agree with the first finding, but, agreeing with the second, dismissed the appeal. The plaintiff has come in second appeal. The appointment and dismissal of municipal servants is govern ed by the following provisions of the Punjab Municipal Act, 1911, and the rules made thereunder:‑ "Section 38.‑(1) Every committee shall, from time to time, at a special meeting, appoint, subject to the approval of the Provincial Government one of its members, or any other person, to be its Secretary, and may, at a like meeting, suspend, remove, dismiss or otherwise punish any person so appointed. (2) The committee may, and shall when so required by the Provincial Government, appoint at a special meeting, a person or persons approved by the Provincial Government to be its Medical Officer of Health or Engineer, and may assign to him or them such remuneration as it may think fit, and may, at a special meeting, remove or dismiss any person so appointed. Section 39.‑Subject to the provisions of this Act and the rules and bye‑laws made thereunder, a committee may, * * * * * * * *, employ other officers and servants, and may assign to such officers and servants such remuneration as it may think fit, and may suspend, remove, dismiss, or otherwise punish any officer or servant so appointed. Section 45.‑(1) In the absence of a written contract to the contrary, every officer or servant employed by a committee shall be entitled to one month's notice before discharge or to one month's wages in lieu thereof, unless he is discharged during a period of probation or for misconduct or was engaged for a specified term and discharged at the end of it. Section 240.‑(1) The Provincial Government * * may make any rules consistent with this Act to carry out the purposes thereof and in particular and without prejudice to the generality of the foregoing power may make rules‑ (n) as to the procedure to be observed for the employment, punishment, suspension or removal of officers and servants of the committee and as to appeal from orders of punishment or removal. The following rules made under section 240 are relevant to the present case:‑ "

3. No order of reduction, removal or dismissal shall be passed against an officer of a servant of a committee unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

4. The grounds on which it is proposed to take action shall be reduced to the form of 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‑ (i) whether he admits the truth of all or any of the charges; (ii) what explanation or defence, if any, he has to offer; and (iii) whether he desires to be heard in person in respect of such charges which are not admitted.

5. If the person charged so desires, or if the authority empowered to dismiss, remove, or reduce him so directs, an oral enquiry shall be held in respect of such charges that are not admitted.

6. When an enquiry is held under the provisions of rule 5, the charge shall be explained to the person charged, the evidence in support of the charge, and any evidence that the person charged may adduce in his defence shall be recorded in his presence and his defence taken down in writing. Each of the charges framed shall be discussed and a finding recorded on each charge.

7. In regard to penalties other than those mentioned in section 41 of the Punjab Municipal Act, 1911, a statement of the case shall be prepared and delivered to the Municipal Officer or servant against whom it is proposed to take action. His explanation will be taken within a reasonable period but it shall not be necessary to hold any detailed enquiry. The explanation offered shall be taken into consideration and final order passed by the competent authority." Rule 11 provides for appeal to the Commissioner and rule 13 for a petition of revision to the Government. Service is of three kinds: (1) during pleasure; (2) during good behaviour; and (3) under contract. In the present case, it is clearly not under contract. The committee claims that it is service during its pleasure, while the appellant claims that it is service during good behaviour and cannot be terminated unless there is an enquiry as contemplated by the rules. In Mir Allah Bakhsh v. District Board, Rawalpindi (P L D 1951 Lah. 52), where the District Board had dismissed a temporary employee, a Bench of this Court of which I was a member, held, following the Privy Council in R. Venkata Rao v. Secretary of State (I L R 1937 Mad. 532), that non-compliance with rules did not give an employee a right to lodge a suit. My brother Shabir Ahmad, who wrote the judgment, made only a brief reference to this aspect of the case, because the rules were not applicable to temporary servants and it was therefore unnecessary to decide whether an employee could seek relief under the rules in a Court of law. I must say, however, that when we granted to the appellant in that case a declaration that he was entitled to subsistence grant under the Civil Service Rules, though we thought the fixation of the amount was in the discretion of the chairman, our decision was inconsistent with the earlier finding that non‑compliance with the rules does not give the employee the right to lodge a suit: I have since studied the matter further in the light of the provisions of the Punjab Municipal Act and have come to the conclusion that municipal servants hold office during the pleasure of the committee. This conclusion is based, first and foremost, on the provisions of section 45 (1) which entitles a committee to discharge a servant at one month's notice. It might be argued that discharging is different from dismissal, but if the committee can discharge the appellant without holding an enquiry, the fact that he can be dismissed only after an inquiry does not improve his status. What we have to determine is whether the appellant held office during pleasure and, if under section 45 that is the only conclu sion at which we can arrived then the words "subject to the provisions of this Act" in section 39 cannot but mean that the terms of section 45 have also to be borne in mind. It is argued, however, perhaps with some force, that section 39 makes dismissal subject not only to the provisions of the Act but also of the rules made under the Act, and if a rifle provides that "no order of dismissal shall be passed against a servant unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him", then, where such reasonable opportunity has not given, it should be held that section 39 has been violated. There can, however, be several answers to this contention. In the first place, as already noticed, there is a provision in section 45 which would appear to militate against the rule and, if there is evident con flict between the provisions of the Act and the rules, the latter should be regarded as ultra vires to that extent. It is, however, conducive to sound interpretation to hold that such conflict should not be presumed where a reasonable explanation is available for the apparent conflict. The explanation is that, although service is during the pleasure of the committee, that pleasure has to be exercised in compliance with the rules. In the language of the Privy Council in Venkata Rao v. Secretary of State the words "subject to the rules", in such context should be regarded "as containing a statutory and solemn assurance that the tenure of office, though at pleasure, will not be subject to capricious or arbitrary action but will be regulated by rule". The provision for appeal and revision in the rules has been made pursuant to this principle. If the dismissal is arbitrary, the municipal servant can have access to the highest authority in the Province to make a redress available to him. It is for that authority to see not only as to whether the enquiry has been held in accordance with the rules but also whether the conclusions of fact at which the committee has arrived has occasioned a failure of justice. There are some distinguishing features in Venkata Rao's case which merit examination for the benefit of the appellant. Venkata Rao was a reader in the Government Press, Madras, and held office in the civil service of the Crown in India. He was dismissed by reason of a suspicion that he was concerned in a leakage of information in respect of certain examination papers and he filed a suit for a declaration that his dismissal was con trary to the statute inasmuch as it was not preceded by any such enquiry as is prescribed by Rule XIV of the Civil Service Classification Rules made under section 96‑B of the Government of India Act, 1919, which is as follows:‑ "(1) Subject to provisions of this Act and of rules made thereunder, every person in the civil service of the Crown in India holds office during His Majesty's pleasure, and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may be dismissed by any authority subordinate to that by which he was appointed * * * ' ". Subsection (2) empowered the Secretary of State in Council to make rules for regulating the classification of the civil services in India, the methods of their recruitment, their conditions of service, pay and allowances, and discipline and conduct. Rule XIII of the rules so framed provided for a dismissal by the Government for good and sufficient reasons. Rule XIV require) that an order of dismissal should be proceeded by a properly recorded enquiry based on definite charges. Their Lordships of the Privy Council, while holding that there had been no proper enquiry, nevertheless came to the conclusion that, since service was during pleasure, violation of tire rules did not constitute a cause of action which could be pursued in a Civil Court. They adopted the reasoning of too cases Shentan v. Smith (1895 A C 229) and Gould v. Stuart (1896 A C 575) often quoted on such occasions but not always correctly understood. I shall, therefore, reproduce these cases as they have been discussed in the judgment of the Privy Council. "In the first case, Dr. Smith held office in the Government medical service in Western Australia and relied upon certain rules and regulations of the service as an essential part of his contract of service, He was dismissed and brought an action for damages which failed. Upon appeal to Her Majesty in Council, Lord Hobhouse, in giving their Lordship's judgment, said: 'It appears to their Lordships that the proper grounds of decision in this case have been expressed by Stone, J. in the Full Court. They consider that unless in special cases where it is otherwise provided, servants of the Crown hold their offices during the pleasure of the Crown; not by virtue of any special prerogative of the Crown but because such are the terms of their engagement, as is well understood throughout the public service. If any public servant considers that he has been dis missed unjustly his remedy is not by a law‑suit, but by an appeal of an official or political kind As for the regulation:, their Lordships again agree with Stone, J. that they are merely directions given by the Crown to the Governments of Crown Colonies for general guidance, and that they do not constitute a contract between the Crown and its servants.' "A special case such as was contemplated in the above cited passage occurred in Gould's case where the Board, consisting of three members two of whom had sat in Shenton's case, held that the respondent Stuart held office in New South Wales under certain conditions expressly enacted in the body of the New South Wales Civil Service Act, 1884, and that these express provisions of the statute were 'inconsistent with import ing into the contract of service the term that the Crown may put an end to it at its pleasure." Their Lordships thought that the case of Venkata Rao stood somewhere between these two cases "inasmuch as here the rules are expressly and closely related to the employment by the statute itself". The reasons which led their Lordships to this conclusion were stated thus: "Section 96‑B In express terms states that office is held during pleasure. There is therefore no need for the implication of this term and no room for its exclusion. The argument for a limited and special kind of employment during pleasure but with an added contractual term that the rules are to be observed is at once too artificial and too far‑reaching to commend itself or acceptance. The rules are manifold in number and most minute in particularity and are all capable of change". The appellant, who argued his own case, and argued it very well, relied on an observation of their Lordships which was made with reference to section 32 of the Government of India Act, 1919, and pointed out that the word "during His Majesty's pleasure" made all the difference to the case of Venkata Rao. The observation in question is as follows: "If it had appeared that the plaintiff's service under the Act of 1919 was not terminable at pleasure their Lordships are not prepared to say that remedy by suit against the Secretary of State in Council for a breach of the contract of service would not have been available to the plaintiff. Breach of contract by the Crown can in England be raised by petition of right." Section 32 relates to the availability of remedies to the Secretary of State and against him by way of suits, and it is apparent that their Lordships were not merely referring to the language of section 96‑B that office was held during His Majesty's pleasure t they were contrasting such office with an office held under con tract. It is not necessary that the words 'during pleasure" should be expressly used in an enactment. Where they are used expressly, as in Venkata Rao's case, "there is no need for the implication of this term and no room for its exclusion". The reference was clearly to the judgment of Lord Hobhouse in. Shenton v. Smith, where it was said that servants of the Crown were understood to hold office during His Majesty's pleasure. But it is possible for an enactment to convey this meaning without the use of those words. This is evident from the decisions in Smyth v. Latham (Bingham's Reports Vol. IX p. 692) and Notely v. London County Council ((1915) 3 K B 580). In the first of these cases, the plaintiff was one of the three paymasters of exchequer appointed by the commissioners of the treasury in 1811 and replaced in 1824. The order of replacement said that the plaintiff had resigned, though, as a fact, this was found to be incorrect and the replacement amounted to removal. The appoint ment of the plaintiff was under 48 G. III Ch.

1. Section 10 thereof provided "that the commissioner of the treasury shall and may from time to time * * * constitute and appoint such person or persons as they shall think fit to be paymaster or paymasters * *". Section 11 provided that the said paymaster or paymasters shall be subject and liable to such control as the commissioners of the treasury shall think fit and section 12, provided such salaries for them as the said com missioners of the treasury "shall judge to be reasonable". Observing that under these provisions the commissioners could appoint as many paymasters as they deemed necessary for the time being and that conversely they could reduce the number, their Lordships came to the conclusion that it was upon the principle that the object of the Act could not be completely carried into effect if the commissioners have only power to appoint but not to remove, that they should hold that the appointment was during pleasure. They came to this conclusion notwithstanding that about eighty statue; were cited to them in which the power of removal at discretion had been expressly stated and it was, argued that in the absence of such recital service should be held to be during good behaviour. In Noteley v. London County Council, section 32, of the Metropolitan Building Act, 1855 provided that the Board of Works may in their discretion dismiss a district surveyor. The plaintiff, who was a district surveyor, was removed for his unsatisfactory work by a resolution passed by the London County Council which had succeeded the Metropolitan Board of Works. It was held that the office was during pleasure. It is true that dismissal in that case was "at the discretion of the Board", but the same sort of provision exists in the present case in section 45 where discharge is subject to one month's notice. Reverting to the language of section 39, of the Punjab Municipal Act, it is noticeable that while that section makes dismissal subject to the provisions of the Act and the rules, there is no such restriction in section 38, under which a secretary a medical officer of health or an engineer may be dismissed at a special meeting of the Committee. Now rule 3 says that no order of reduction, removal or dismissal shall be passed against an officer or a servant of a committee unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, so that by its very terms it applies also to the officers appointed under section

38. The position would be inconsistent if we held that, although both a medical officer of health and a taxation-superintendent were governed by the rules, in the event of their dismissal by the committee without any proper enquiry under the rules, the former could not while the latter could seek relief in a Court of law. The words "subject to the provisions of this Act and the rules", may have, consequ ently, in contemplation something more than the rules relating to punishment, and possibly the draftsman was thinking merely of rules relating to employment, as, for example, whether a person employed as a clerk should or should not possess a matriculation certificate. For it is possible to interpret section 39 so as to make the opening words thereof applicable only to the first part of the section which relates to employment and `no the second part which relates to punishment. Next when we copse to section 240, we find, as we do in all case, that the rules must be consistent with the Act and must carry out the purposes of the Act. If the Act makes the tenure of service subject to pleasure, the rules cannot alter it. It should, therefore, be interpreted as the Privy Council interpreted it in Venkata Rao's case. There are two case, so definitely in favour of the appellant that I ought to examine them closely before making up my mind. One is Abraham Reuben v. The Karachi Municipality (A I R 1929 Sind 69) where Lobo A. J. C. held that a surveyor appointed under the Bombay Municipal Act of 1901 could not be dismissed without a reasonable opportunity being given to him to be heard in defence as provided by Rule 90 of the rules made under section

46. Section 184 of the Act gave power to the Chief officer to appoint, with the committee's sanction, and to dismiss subject to the provisions of the rules and subject to appeal. It was held that the rule had a statutory force. For this conclusion the learned Additional Judicial commissioner relied on Satish Chandra Das v. Secretary of State (A I R 1927 Cal. 311) where it was held that notwithstanding that section 96‑B of the Government of India Act, 1919, provided that office was held during His Majesty's pleasure, the provisions of rule 14 made under the Act by the Secretary of State were inconsistent with importing into the contract of service the term that "the Crown may put an end to it at pleasure". But that case itself relied for its decision on Gould v. Stuart and the decision in Gould v. Stuart we have already noticed, rested on the fact that part 3 of the Civil Service Act (New South Wales) itself, not any statutory rule, prescribed the procedure to be followed before a civil servant could be dismissed. It was with reference to this case that I observed earlier that Gould v. Stuart was sometimes misunderstood. This will be clear if we go back to Venkata Rao's case. The second case in the appellant's favour is Gokak Munici pality v. Rajaram Shridhar Kulkarni (A I R 1940 Bom. 386). In this case a school Teacher had been appointed in 1920 for a year only but bad continued in service. In 1934, he was served with a notice of removal as be could not teach Kanarese and was removed after a month's notice. He brought a suit for damages for wrongful dismissal, alleging that the municipality was under an obliga tion to keep him until the age of

55. Under Rule 156 of the rules made under section 46 of the Bombay District Municipal Act every servant was liable to discharge at a month's notice with the concurrence of the president and the sanction of the committee. The question was whether a teacher could rely on that rule in a Court of law. Broomfield and Divatia, JJ, holding that as a statutory rule it could be enforced by Courts, observed; "In the case of Crown servants the prerogative of the Crown comes into play. It is quite reasonable to say in such a case that the general rule is that Crown servants can be dismissed at pleasure without giving a cause of action, and if any one alleges an exception to that rule, he must show that there is an exception in a statute which is binding on the Crown. But if there is no general overriding principle of liability to dismissal at pleasure, if you have to look to the special law to ascertain what the conditions of service are, it is difficult to see why a distinction should be made bet seen a statutory provision and a provision made by a statutory rule. Of course, if there had merely been a rule dealing with matters of formal or procedure, it is reasonable to hold that the breach gave no cause of action against a local body. That was the case in I L R 1937 Bom. 867, but in the case of a rule like rule 156, with which we are concerned, which clearly affects the condi tions of service of municipal employees, on what principle can one say that it is immaterial whether the Municipality observes the rule or not?" The answer is that service, when it is not under contract, is either during pleasure or during good behaviour. If it is during pleasure, behaviour is of no consequence to the Courts. It was realised, however, in the aforesaid case that you have to look "to the special law to ascertain what the conditions service are". In Chellam Aiyar v. Corporation of Madras (42 I C 513), where section 58 of the Madras City Municipal Act 1904, empowered the president to appoint and dismiss municipal servants, "subject to such control as may be prescribed by Government" and the Government had not prescribed any control, it was held that the Court could not go into the question of wrongful dismissal. This finding is not so important as the observation that "it was well settled that when there is power to appoint and dismiss, the officers and servants hold office at pleasure". For the finding, reliance was placed on Smyth Latham and Notely v. London County Council which I have examined earlier. I am of the opinion that since a municipal servant holds office during pleasure, a suit for wrongful dismissal by him is not competent and his remedy lies in appeal to the Commissioner and a petition in revision to the Government. On the facts, however, I have no doubt that the committee has not complied with the rules. Charges were framed and the appel lant was given an opportunity to defend himself, but when the president, who had been empowered by the committee to hold the enquiry, made a report to the committee, a copy of that report was not given to the appellant nor was he asked at this stage whether he could show cause against dismissal. This is in violation not only of rule 3 but also of rule 7, which requires that a statement of the case shall be prepared and delivered to the municipal officer or servant, that his explanation will be taken within a reasonable time though it shall not be necessary to hold a "detailed enquiry", which apparently means further enquiry, and that finally the explanation shall be taken into consideration and final order passed by the competent authority, As regards rule 3, the meaning of the phrase "reasonable opportunity of showing cause against the action proposed to be taken in regard to him" was brought out by the Privy Council in the High Commissioner for India and Pakistan v. I. M. Lall (A I R 1948 P C 121 = P L D 1948 P C 150) in the following observation "in the opinion of their Lordships no action is proposed within tae meaning of the subsection" (the reference was to subsection t3) of section 240, of the Government of India Act, 1935, which contains a similar provision in respect of the servant of the Crown), "until a definite conclusion has been come to on the charges, and the actual punishments to follow is provisionally determined on. Prior to that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which subsection (3) makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage". The learned District Judge relied on the fact that, as the words "the action proposed" occur both in rule 3 and rule 4, it was enough that the appellant had been asked at the beginning of the enquiry whether he could show cause why he should not be dismissed. Apart from the fact that the learned District Judge failed to take into considera tion rule 7, there is this distinction between rules 3 and 4 that rule 3 requires that "a reasonable opportunity of showing cause against the action proposed to be taken "should be given and that has reference to the entire course of the enquiry from beginning to end, while rule 4 relates to the first stage of the enquiry where "the grounds on which it is proposed to take action shall be reduced to the form of a definite charge". This distinction has been brought out in the Privy Council case also, though in a different context. I dismiss the appeal, but, in view of the possibility that the appellant might have been misled by the finding of the learned District Judge on the question of jurisdiction, I leave the parties to bear their own costs. A. H. Appeal dismissed.