P L D 1961 Dacca 543 (PLP)

M. R KHAN, J.

‑This appeal by Pakistan is against a dec laratory decree passed on appeal by the District Judge, Rangpur, after reversing the judgment and decree of the Subordinate Judge, Rangpur in O. C. Suit No. 36 of 1954, for declaration , that the order of the Deputy. General Manager, E. B. Railway, dated the 22nd. October, 1953, removing the plaintiff from service was illegal and ultra vires and that the plaintiff's service in the Railway remained unaffected by that order.

2. The plaintiff joined the East Indian Railway service for the first time on the 29th November, 1925, as Head Watchman. He executed a service agreement (Exh. B) wherein the terms and conditions of his employment were incorporated. Clauses 1, 2 and 11 of the said agreement which are material for the purpose of this case were as follows :‑ "(1) The said Railway servant shall serve the Railway Administration as Head Watchman or in any other capacity to which he may from time to time be appointed whether on pro motion, reduction or otherwise, in any place situate on the East Indian Railway within or beyond the limits of British India, in accordance with each and all of the terms and condi tions hereinafter specified. (2) The said Railway servant shall serve subject to the follow ing conditions of service, namely, that such service is permanent and not pensionable and terminable at any time by the Railway Administration on one month's notice or without notice on payment of one month's pay, and by the Railway servant on giving one month's notice only ; that under no circumstances shall he be entitled to gratuity or pension, though the will be eligible for a gratuity for good, efficient, faithful and continuous service at the discretion of the Railway Board ; the authority which appoints him has full power and authority at any time for any reason that may to him appear sufficient, to suspend or dismiss the said Railway servant, or otherwise punish him according to the rules of service in which he is for the time being employed. (11). The said Railway servant shall continue to be subject to this Agreement in whatever capacity he may hereafter be, employed on the said East Indian Railway."

3. In course of time, the plaintiff was promoted to the post of Sub‑Inspector, Watch and Ward, which post was held by him up to the time of the Independence. On the eve of the Inde pendence, he opted for service in Pakistan, whereupon he was allotted to the East Bengal Railway. On the 10th October, 1947, he joined at Dacca as Sub‑Inspector, Watch and Ward, East Bengal Railway. He served at Khulna for some time in that capacity. In 1952 he was transferred to Bonarpara from Khulna where he served up to the 31st October, 1953. On the 22nd Octo ber, 1953, the Deputy General Manager, East Bengal Railway made an order, namely, Order No. 148E/124 (Q) (Exh. 3) removing. the plaintiff from service in terms of the Agreement executed by him. The said order was duly communicated to the plaintiff and read as follow :‑ "As your services are no longer required by the Administra tion you are hereby removed from service by my order in terms of your agreement and conditions of service and you are hereby given one, months's pay in lieu of notice as provided for therein. Your services will accordingly terminate on the afternoon of 31‑3L53" (sic). The above facts are either admitted or undisputed.

4. Being aggrieved by the aforesaid order, the plaintiff brought O. C. Suit No. 36 of 1954 in the Court of the Subordi nate Judge, Rangpur, for a declaration that the order was illegal and ultra vires for non‑compliance with the provision of section 240 (3) of the Government of India Act, 1935 and that the plaintiff's service in the Railway remained unaffected by it.

5. The trial Court held that the services of the plaintiff were duly terminated by notice in terms of his contract of employment and that the provision of section 240 (3) of the Government of India Act, 1935, was not attracted to that case. The suit was therefore, dismissed by the trial Court. On appeal by the plain tiff, the learned District Judge came to the conclusion that the impugned order removed the plaintiff from service, and as such, the provision of section 240 (3) of the Government of India Act, 1935 was attracted to that case. He was of the view that the order was illegal and inoperative for not affording the plaintiff a reasonable opportunity of showing cause against the removal as required by the mandatory provision of the said section 240 (3). On such view of the matter, the learned District Judge allowed the appeal, reversed the judgment and decree of the trial Court and passed the decree declaring that the impugned order No. 148E/124(Q), dated the 22nd October 1953 was illegal and inoperative and that the plaintiff's service in the Railway Adminis tration was unaffected by that order. It is against that declara tory decree that the appellant has preferred the present appeal before this Court:

6. The point for determination in this appeal is whether the order No. 148E/124(1), dated the 22nd October 1953 complained of is void and inoperative for non‑compliance with the provision of section 240 (3) of the Government of India Act, 1935, or whether by that order the plaintiff's services were duly terminated in accordance with the terms and conditions of his employment.

7. Section 240 (3) of the Government of India Act, 1935 came up for consideration in many a case. Also Article 181 (2) of the 1956 Constitution of Pakistan and Article 311 (2) of the Constitution of India which correspond to the said section 240 (3) were considered in a number of cases by the Courts in Pakistan and India. It is not necessary to name and discuss all those cases ; namely:‑I. M. Lall's case (P L D 1948 P C 150); Abdul Karim v. West Pakis tan Province (P L D 1956 S C (Pak.) 298) Noorul Hassan and others v. The Federation of Pakistan‑(P L D 1956 S C (Pak.) 331.); The Federation of Pakistan v. Mrs. A. V. Issacs (P L D 1956 S C (Pak.) 431); The Federation of Pakistan v. Sirajul Islam and High Court of West Pakistan (P L D 1957 S C (Pak.) 77); Federation of Pakistan v. Shamsul Huda (P L D 1957 Dacca 144); Pakistan and another v. 1lohammad Hedayatullah (P L D 1961 Dacca 29); Satish Chandra Anand v. Union of India (AIR 1953 S C 250); Gopal Krishna Potnay v. Union of India and another (AIR 1954 SC 632); Fakir Chandra Chiki v. S. Chakra vorty and another (58 C W N 336); Subodh Ranjan Ghose v. Major N. A. O. Collaghan and another (60 C W N 917); and Porshotam Lal Dhingra v. Union of India (PLD 1958 SC(Ind.)217).

8. It is well settled by the decision in those cases that the provision of section 240 (3) of the Government of India Act, 1935, Article. 181 (2) of the 1956 Constitution of Pakistan and Article 311 (2) of the Constitution of India are attracted only in the case of dismissal, removal or reduction of a civil servant by way of penalty and that termination of the services of such servant by notice in accordance with the terms and conditions of his employment does not attract those provisions.

9. The service agreement (Exh. B) clearly provided that the service of the plaintiff, were terminable at any time by `the Rail way Administration on one month's notice or on payment of one month's pay in lieu of notice, and by the plaintiff himself on giving one month's notice to the Railway Administration. It was in pursuance of such provision in service agreement that the Deputy General Manager, E. B. Railway, issued the order No. 141E/124(Q) (Exh. 3) terminating the plaintiff's services.. In fact; Exh. 3 is a letter, dated the 22nd October 1953 from the Deputy General Manager, E. B.. Railway to the plaintiff in which one month's pay was offered to him in lieu of one month's notice as the pre‑requisite for the termination of his services from the after noon of the 31st October 1953 on the ground that his services ‑were no longer required by the Railway Administration. The termination of the plaintiff's services for the above reason and in the above manner was also permitted by sub‑rules (3) and (4) of rule 148 of the Railway Establishment Code.

10. The learned District Judge has construed the letter Exh. 3 as an order removing the plaintiff from service. In his view, the said letter is not a notice simpliciter terminating the plaintiff's services in accordance with the condition of his service as embo died, his service agreement (Exh. B). It appears from his judg ment that the above view of the learned District Judge was greatly influenced by the word "removed" occurring in Exh.

3. Also the learned Advocate for the plaintiff‑respondent has laid emphasis on the word "removed" and contended that Exh. 3 having removed the plaintiff from service is prima facie an order of removal. The ordinary rule of construction of a document is that the document should be read as a whole and that no particular word or expres sion occurring therein can be picked up and given a meaning to it, ignoring the context in which it has been used. It is true, the word "removed" occurs in Exh.

3. But this does not necessarily t imply that the plaintiff was removed from service by way of penalty. Exh. 3, read as a whole clearly means that the plaintiff's services were terminated by the offer of one month's pay in lieu of one month's notice in accordance with the terms and conditions of his employment as contained in the service agreement admit tedly executed by him. It is not the plaintiff's case in the plaint that he was removed from service by way of penalty. The plain tiff as P. W. 1, stated that he did not know the reason for the termination of his service. On the contrary, it is the definite case of the appellant that the services of the plaintiff were terminated by the offer of one month's pay in lieu of one month's notice in terms of his service agreement. In the case of removal of Gov ernment servant by way of penalty, no salary for any period, other than the period fair which he has already served, is paid to him. In the instant case, one month's pay for the month subsequent to the date up to which the plaintiff served was offered to him. Such payment was in lieu of one month's notice. Again, in the case of removal by way of penalty, the order usually takes effect forthwith and not from a future date. Here, the impugned order was issued on the 22nd October 1953, and it was given effect to from a future date, that is from the afternoon of the 31st Octo ber, 1953. For all these reasons, Exh. 3 cannot be construed as an order of removal of the plaintiff from service by way of penalty merely because of the presence of the word "removed" in that document.

11. On proper construction of the impugned order we are of the view that the Railway Administration duly terminated the plaintiff's services in accordance with the terms and condition of his employment as embodied in the service agreement Exh. B which has the support of rule 148 (3) and (4) of the Railway Establishment Code, and that the termination of his service was not by way of penalty with result that the provision of section 240 (3) of the Government of India Act, 1935 was not attracted to the case of the plaintiff. Therefore, the order terminating the plaintiff's service is not void or inoperative for non‑compliance with the requirement of that section.

12. Exhibit 3 appears to be a cyclostyled copy of a model notice for the purpose of terminating the services of servants of the E. B. Railway to accordance with the conditions of their employ ment. As, however, the word "removed" occurring in the model notice may give rise to controversy in future on the ground that the said world itself implies a penalty, the question of replacing it by some other suitable word deserves to be considered by the appro priate authorities.

13. The learned Advocate for the plaintiff‑respondent has drawn our attention to the unreported decision of a Division Bench of this Court in S. A. 159 of 1958 and also to the case of Prasadi and another v. Works Manager, Lilloah and others (61 C W N 1) in support of his contention that the plaintiff was removed from service by way of penalty and that the order of his removal was bad in law for not giving the plaintiff any opportunity of showing cause against the order of removal. In both the biases, an order like the impugned order in the present case was served on the Government servants concerned, and it was held that the order in each case was bad in law. The decisions in the said two cases, in our opinion, are not applicable to the present case inasmuch as the facts of those cases are quite different from the facts of the present one. In those cases, disciplinary action was taken against Government servants concerned, charge‑sheets we're drawn up against them, the accused officials having been called upon to show cause submitted their explanations, and the expla nations so submitted were found to be unsatisfactory. It was only after that stage that the services of the accused officials were terminated by notice in terms of their agreement and conditions of service. It was, therefore, held in those cases that the accused officials were removed from service by way of penalty. In the present case, however; no disciplinary action against the plaintiff was taken before the termination of his services by the impugned order. Therefore, the said two cases relied on by the learned Advocate for the plaintiff‑respondent do not support his con tention.

14. The last argument advanced on behalf of the plaintiff respondent is that the plaintiff being a permanent official, his services cannot be terminated by notice like those of a temporary or non‑permanent Government servant. According to the service agreement Exh. B, the plaintiff's service as Head Watchman was permanent and non‑pensionable., The plaintiff (P. W. 1) deposed that he was appointed Head Watchman on a permanent basis. This evidence remained unchallenged. Therefore, it may be taken that the plaintiff substantively held the permanent but non‑pen sionable post of Head Watchman. There is, however, nothing to show if the plaintiff was promoted to the post of Sub‑Inspector, Wa0ch and Ward, substantively. However, let us examine if the services of the substantive holder of a permanent post can be terminated by notice in terms of the service agreement executed by him. The substantive holder' of a permanent post holds a "lien" on that post as defined in rule 9 (13) of the Fundamental Rules, and as such, he can, as of right, continue to hold that post until his services come to an end or are terminated in accordance with the conditions of his service. Some conditions of service are provided in the Constitution Act itself according to which no civil servant can be dismissed or removed from service, or reduced in rank by an authority subordinate to that by which he was appointed, and no such action can be taken against a civil servant until he has been given a reasonable opportunity of showing cause against the action proposed to be taken. These are to be found in section 240 (2) and (3) of the Government of India Act; 1935 and Article 181 (1) and (2) of the 1956 Constitution of Pakistan. Other conditions of service are prescribed by rules made under section 241 (2) of the Government of India Act, 1935, and Article 182 (2) of the 1956 Constitution. Neither the Govern ment of India Act, 1935 and the 1956 Constitution, nor the service rules made there under contain any provision prohibiting the settle ment of any conditions of service of any person in the service of Pakistan by a special agreement. In the absence of such a pro hibition, conditions of service may be laid down also by special agreements between the Government and the Government servants, provided the conditions so laid down do not offend against any law or are not against public policy. The service agreement executed by the plaintiff was not in vitiation of any law, nor was it against public policy. The question of title of a Government servant to hold substantively a permanent post was considered by the Supreme Court of India m Porshotam Lal Dhingra v. Union of India. After an elaborate discussion on the subject of service rights, it was observed in that case as follows "In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service of the post is abo lished, and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. If Government, has by contract, express or implied or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules, is prima facie per se, not a punishment and does not attract the provisions of Article 311." It follows from the above observations that the services of a Government servant holding substantively a permanent post ca be terminated also in accordance with the terms and conditions of a special agreement entered into by him. The termination of the plaintiff's services in the instant case in terms of his service agreement was, therefore, quite in order, even if he was a permanent Government servant. Apart from the service agreement, the termination of his services by the offer of one month's pay in lieu of notice was authorised by rule 148 (3) and (4) of the Railway Establishment Code as the plaintiff held a permanent but non? pensionable non‑gazetted post.

15. In the result, the appeal succeeds. The decree of the lower Appellate Court is set aside and that of the trial Court. is restored. In the circumstances of the case, we make no order as to costs.

16. The plaintiff put in as many as 28 year's service. His services were terminated not by way of penalty, but on the ground that his services were no longer required by the Railway Adminis tration. The authorities concerned would, therefore, appreciate that the ends of justice demand that the plaintiff should be paid whatever gratuity became admissible to him under the rules. Let a copy of this judgment be sent to tote Central Govern ment for information. HASAN, J.

‑I agree with the result. A. H. Appeal allowed.