P L D 1957 (W (PLP)

A. R. CHANGEZ, J.‑

The relevant facts for the purpose of the decision of this second appeal are, that the plaintiff appellant brought a suit for a declaration that his dismissal from the post of a Shunter in the North Western Railway was illegal and void and that he was still holding that post in the North Western Railway. The suit was contested by the defendant‑respondent on various grounds. On the pleadings of the parties, the following issues were framed by the trial Court:-- (1) Has a vaild notice under section 80, Civil P. C., been served by the plaintiff on the defendant ? (2) Is the suit within time ? (3) Is the order of dismissal of the plaintiff illegal, ultra vires or arbitrary, and what is the effect? Issues Nos. 1 and 3 were decided by the trial Court in favour of the plaintiff, but on issue No. 2 it was held that the suit was barred by limitation. Consequently, the suit was dismissed. On appeal by the plaintiff, the learned Senior Civil judge agreed with the finding of the trial Court on issue No. 2 and reversing its finding on issue No. 3 held that the dismissal was neither illegal nor ultra vires. He accord ingly dismissed the appeal. The plaintiff has now come up in second appeal before this Court. Learned counsel for the appellant argued that Article 14 of the First Schedule to the Limitation Act which had been applied by both the Courts below was inapplicable to the facts of the case. He also contended that the order of dismissal was illegal and void as the same had been passed without giving reasonable opportunity to the plaintiff to show cause against the proposed action as required by subsection 3 of section 240 of the Government of India Act, 1935. Before taking up the issue whether the plaintiff's suit was barred by limitation, it is desirable to determine the question whether the order of dismissal was illegal and void. In order to appreciate this point, it is necessary to state a few salient facts. In the year 1933, the plaintiff was appointed as a Cleaner in the East Indian Railway and was promoted to the post of a Shunter in the year 1946. He worked there till the year 1947 when he opted to serve in Pakistan. On the 18th of December 1947, he 'reported for duty before the North Western Railway authorities at Rawalpindi and was posted as a Shunter. Thereafter, in compliance with some instructions in the Partition scheme, the plaintiff filed a declaration form before the Railway authorities, in which he was required to give full particulars of his service in the East Indian Railway. In this declaration form which is Exh. P. 4 and is dated the 19th of November 1948, it was entered that the plaintiff had been confirmed as a Shunter in the East Indian Railway on the 1st of January 1946. Some time later, when his service record was received from the East Indian Railway, it trans pired that the plaintiff had not been confirmed as a Shunter and was holding the substantive post of a Fireman at the time of his migration to Pakistan. Accordingly on the 14th of May 1951, the plaintiff was served 'with the charge‑sheet Exh. P. W. 2/12 lay the Divisional Superintendent, North Western Railway, Rawalpindi, by which he was required to give his defence within seven days from the date of the receipt of the charge‑sheet. He was also asked to show cause why he should not be dismissed from service or punished with any of the lesser penalties specified in rule 1702‑R. He was further informed that, if he so desired, he could make a request to be heard in person and could also seek the assistance of another railway employee at such an interview. To this charge‑sheet the plaintiff sent his reply Exh. P. W. 2/13 in which he explained his position and requested to be granted a personal interview in order to lay before the officer concerned all his papers to clarify his position. It appears that no such interview was granted and no inquiry was ever held in the presence of the plaintiff. Then, without giving any show‑cause notice, as required by subsection (3) of section 240 of the Government of India Act. 1935, orders were passed on the 30th of June 1951, dismissing him from service with effect from the 12th of July 1951. He appealed but met with no success. He also made a representation, but in vain. He then filed the present suit on the 7th of January 1953. The question raised on behalf of the appellant that being an employee of the Federation of Pakistan, he could not have been dismissed from service unless reasonable opportunity had been given to him to show cause against the action proposed to be taken in regard to him, as required by subsection (3) of section 240 of the Government of India Act. was not challenged before me, as indeed it could not have been done in view of the very clear legal position in the matter. Mr. Badi‑uz‑Zaman, Advocate, who appeared on behalf of the respondent had nothing to urge against this well established proposition. In fact he conceded that section 340 of the Government of India Act was applicable to the case of the plaintiff and that a show‑cause notice was absolutely necessary. He, however, maintained that the general invitation included in the charge‑sheet served upon the plaintiff to show cause as to why he should not be dis missed from service or punished with any of the lesser penalties specified in Rule 1702‑R was a sufficient compliance of the provisions of subsection (3) of section 240 of the Government of India Act. After a careful consideration of the point involved, I find myself unable to agree with this contention. It is true that the charge‑sheet also required the plaintiff to show cause as to why he should not be dismissed from service or punished with any of the lesser penalties, but I am clear in my mind that the charge‑sheet was served upon the plaintiff with a view to give him‑an opportunity to show cause against the alleged misconduct. Undoubtedly the object was to hold a preliminary inquiry in respect of the charge levelled against him. The charge‑sheet did not contain any findings that the plaintiff had been found guilty of any misconduct or that it had been proposed to dismiss him from service. It contained only an accusation as regards his misconduct. In fact at that stage no finding as regards his misconduct could have been given nor any action could have been proposed against him. As such the service of such a charge‑sheet with a direction to show cause against a possible punishment could not legally have been a substitute for the show‑cause notice as required by the mandatory provisions of subsection (3) of section 240 of the Government of India Act. An authoritative exposition of the law on the subject is to be found in the classical case of the High Commissioner for India and another v. I. M. Lall (AIR 1948 PC 121: PLD 1948 PC 150), where their Lordships of the Privy Council were pleased to hold that "No action is proposed within the meaning of the subsection until a definite conclusion has been come to on the charges, and the actual punishment 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 oppor tunity for which subsection (3) makes provision. There is no difficulty in the statutory opportunity being reasonably afforded at more than one stage". In that case the charge‑sheets which were served upon Mr. I. M. Lall, had included a direction to the following effect :‑ "That he should show cause why he should not be dismiss ed, removed or reduced or subjected to such other dis ciplinary action as the competent authority may think fit to enforce for breach of Government rules and conduct unbecoming to a member of the Indian Civil Service." But in spite of this opportunity to show cause at that stage their Lordships held that the order of removal in those circumstances did not conform to the mandatory requirements of subsection (3) of section 240 of the Government of India Act and was, therefore, void and inoperative. In the present case also, a direction to show cause against the suggested punishment was included in the charge- sheet as was done in the case of Mr. I. M. Lall, but the actual punishment by then had not been even provisionally determined. It is perfectly clear that at that stage only an inquiry into the charge‑sheet was contemplated. It was only a preparatory stage for coming to a conclusion as regards the guilt of the plaintiff and for deciding whether it was a fit case for dismissal or for awarding any of the lesser penalties specified in the Rule. In this view of the matter, the principle laid down by their Lordships of the Privy Council in the above‑quoted ruling which has been consistently followed in innumerable cases by all the High Courts of India and Pakistan is fully applicable to the facts of the present case. I have, therefore, no hesitation in holding that no show‑cause notice was given to the plaintiff as required by subsection (3) of section 240 of the Government of India Act, and, therefore, the order of dismissal of the plaintiff was illegal and void and was a nullity .in the eye of law. But assuming without conceding that such a notice was in accordance with law, I have no doubt in my mind that no reasonable opportunity, as required by section 240 of the Government of India Act, was given to the plaintiff to show cause against the proposed action. He was not even granted an interview and was not afforded any opportunity to lay the papers before the authority concerned to clarify his position. I am sure the words "You are required to give your defence" in the charge‑sheet did not mean that he was required to produce his defence evidence. But even if he was so required, then a week's time was altogether insufficient to enable him to produce his defence. Perhaps he required some papers to be produced from the East Indian Railway which he could not have done in such a short interval. Can it be said that under the circumstances he was given a reasonable opportunity to show cause against the proposed action? The expression "reasonable opportunity to show cause" is not an idle and empty form. It contains a very salutary and substantial provision of law. The expression does not mean that only an opportunity is to be given for offering an explanation against the proposed action. In my opinion it clearly means that adequate opportunity, not only to offer an explanation against the proposed action but also to produce defence evidence, if any, should be given. In the present case admittedly no such opportunity was given to the plaintiff. For this reason as well, the order of dismissal was illegal and void. I shall now take up the question whether Article 14 to the First Schedule of the Limitation Act is applicable to the facts of this case. The plaintiff was dismissed from service on the 12th of July 1951. He filed this suit on the 7th of January 1953, that is to say, more than a year after he had been dismissed from service. If this suit is governed by Article 14, then obviously the suit is barred by limitation. It is, therefore, necessary to examine this Article in detail. It reads as follows :‑ "

14. To set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly pro vided for. One year. The date of the act or order. In view of section 3 of the Limitation Act, the period of limitation is, therefore, one year from the date of the act or order if the suit is for setting aside any act or order of an officer of Government in his official capacity not otherwise expressly provided for in the Limitation Act. But the present suit is only for a declaration that the dismissal of the plaintiff from service was illegal and void. It does not ask for setting aside any act or order of an officer of Government in his official capacity. In its terms, therefore, Article 14 is inapplicable. In Rashid Inayat v. The Federation of Pakistan (P L D 1957 Lah, 378) Akhlaque Husain, J. in a similar suit for a declaration also pointed out that Article 14 in its terms was inapplicable to such a suit. Learned counsel for the respondent, however, contended that for the application of Article 14 of the Limitation Act to a suit it is not necessary that the plaintiff should expressly ask for the setting aside of an order. Reliance was placed by him on a Full Bench decision of the Lahore High Court reported as Gangu and others v. Maharaj Chand and others (A I R 1934 Lah, 384). It was held on the facts of that case that the suit was, in reality and sub stance, one to set aside the order of the Collector and it made no difference that a prayer to that effect was not expressly made in the plaint. It was further held that it made no difference that the suit was one for a mere declaration and no relief to set aside the order of the Collector had been expressly asked in the plaint. Article 14 of the Limitation Act was field to be applicable to the facts of that case. The facts of that case were that the land in dispute belonged to the ancestors of the defendants under whom the plaintiffs held it as occupancy tenants. In 1903, the ancestors of the defendants had mortgaged their proprietary interest in the land to certain persons from whom the plaintiffs had acquired the mortgagee rights. In 1927, the defendants applied to the Collector under the Punjab Redemption of Mortgages Act XI of 1913 praying for redemption of the mortgage on payment of such sum as might be found due. The plaintiffs denied the defendants' right to redeem alleging that the defendants' predecessors had sold the equity of redemption to the predecessors‑in‑interest of the plaintiffs in 1905. The Collector held that such a sale was not proved and on the 16th of November 1927, ordered redemption on payment of Rs.

600. The sum was duly deposited and a mutation was sanctioned recording that the mortgage had been redeemed. On the 2nd of November 1929, i.e. about two years after the order had been passed by the Collector, the plaintiffs brought a suit for a declara tion that they were the proprietors in possession of the land in dispute. It was held by the Full Bench that this was in effect a suit for setting aside the order of the Collector and having been filed more than a year after the order was barred by Article 14 of the Limitation Act. In the order of reference Tek Chand, J. who also delivered the judgment of the Full Beach, while discussing this question had remarked‑- "In other words if it is necessary for a plaintiff to get rid of an order made by an officer of the Government which stands in his way before he can obtain a certain relief and in order to obtain that relief he does not expressly ask for the setting aside of the order but merely for a declaratory decree still the suit should be deemed to be one to set aside an order falling within the ambit of Article 14". With all respect I am in entire agreement with these observations and the principle laid down in this ruling. If the plaintiff is legally required to get the order of the officer of the Government set aside before asking for a declaration, then Article 14 of the Limitation Act would undoubtedly apply to such a suit even if the plaintiff does not expressly ask for setting aside such an order. The question, therefore, which falls for determination is whether it was necessary for the plaintiff to get rid .of the order of dismissal before asking for a declaration prayed for in the plaint. Learned counsel for the plaintiff main tained that it was not at all necessary to get the order of dismissal set aside before asking for a declaration that he was still in service. He argued that the order was illegal and Void and, therefore, it was a nullity in the eye of law and had no binding effect on the plaintiff. In support of this contention he placed reliance on Abdul Vakil v. Secretary of State and another (A I R 1943 Oudh 368). The facts of that case were similar to the facts of the present case. That was a suit by a Sub‑Inspector of Police for a declaration that the order of his dismissal was void and inoperative. It was held by a Division Bench of the Oudh Chief Court, consisting of Thomas, C. J. and Ghulam Hasan, J. that a suit by a public servant for a declaration that an order of his dismissal is void and inoperative is governed by Article 120 and not by Article 14 of the Limitation Act. While dealing with the question of application of Article 14 to such a suit, their Lordships observed :‑ "It seems clear to us that the plaintiff's position was that his dismissal was no dismissal in law and he wanted a declaration to that effect. He did not seek to set aside any act or order of the Inspector‑General, as according to him the order of the Disciplinary Board was a nullity and was beyond the jurisdiction of the Board. In support of this view, we may refer to 48 Bom.

61. In that case also, the plaintiff was suing not to set aside the Collector's order but on the relief for a declaration on the footing that the order was ultra vires and it was held that Article 14, Limitation Act, did not apply. The cases in 27 I A 215 and 15 Lah. 389 referred to by the learned Government Advocate are distinguishable on the ground that the orders which were questioned in those cases were orders which were not ultra vires but were within the jurisdiction of the authorities passing those orders". He also relied on Lady Dinbai Dinshaw Petit and others v. The Dominion of India and another (A I R 1951 Bom. 72) where a Division Bench of the Bombay High Court while considering the application of Article 14 of the Limitation Act held that "The Article applies only to those acts or orders which are valid until they are set aside. Therefore, if an order is bad from its inception, Article 14 would not apply to such an order because it would be unnecessary for the plaintiff to get the order set aside". This contention finds further support from the obser vations of their Lordships of the Federal Court of Pakistan in The Punjab Province v. The Federation of Pakistan (PLD1956FC72). This was a suit instituted by the Punjab Province against the Federation of Pakistan for a declaration that the plaintiff was not liable to be taxed under the Income‑tax Act, 1922 and that the imposition of the tax by the Income‑tax Officer was without jurisdiction. One of the objections raised on behalf of the Federation of Pakistan was that the suit was barred by time under Article 14 of the Limitation Act. Dealing with this question the learned Chief Justice of Pakistan, who delivered the judgment of the Court, observed as follows :‑ "As regards the objection that the suit is barred by time, all that is necessary to say is that the assessment being void and the tax not having been paid, no question of limitation arises". Learned counsel for the respondent was not able to cite a single authority to the contrary. From the above discussion, the position that emerges is that if the order passed by an officer of Government is illegal and void then the person affected is not under any obligation to get it set aside. It is not binding on him and he can justifiably ignore it and treat it as a nullity. In the present case I have already held that the order of dismissal of the plaintiff from service was illegal and void. He was not, therefore, legally required to get it set aside before asking for a declaration that he was still employed as a Shunter in the North Western Railway. I am, therefore, of the considered opinion that Article 14 of the Limitation Act H is inapplicable to a case of this nature and both the Courts below erred in holding that the plaintiff's suit was barred by limitation. In fact the only Article of the Limitation Act which is applicable to such a suit is Article 120 which prescribes a period of six years for the institution of a suit. For the aforesaid reasons, I accept this appeal, set aside the judgments and decrees of the Courts below and decree the plaintiff's suit in terms of the relief prayed for in the plaint with costs throughout. In the end I would like to observe that it is a matter of regret that the Railway officials do not usually comply with the mandatory provisions of law and feel contended by complying only with the Railway rules made under the provisions of section 241 of the Government of India Act. These rules, whatever legal force they may have, are after all rules and do not override the statutory provisions of law. Somehow, the Railway officials while dismissing an employee or reducing him in rank overlook the mandatory provisions of law in this respect. It may here be pointed out that the constitutional safeguard for the benefit of the services is now embodied in Article 181 of our Constitution. It is the sacred duty of all the citizens of Pakistan including the officers of the State that they should not only preserve, protect and defend the Constitution but should also act strictly in accordance with it. It is to be 'hoped that in future the authorities concerned would take note of this Article of the Constitution and would strictly comply with it. They are of course required to comply with the statutory rules as well, but in no case the mandatory provisions of Article 181 of the Constitution should be violated. Even if in a preliminary inquiry every opportunity is given to the employee to defend himself yet, when as a result of such an inquiry he is found guilty of any misconduct and a punishment is proposed, then at that stage reasonable opportunity should be given again for showing cause against the action proposed in regard to him as required by Article 181 of the Constitution. It goes without saying that non‑compliance with this provision of the Constitution makes the order of dismissal, removal or reduc tion in rank a nullity in the eye of law and consequently has pot no legal effect. Such a course not only involves the State into unnecessary litigation and considerable monetary loss, but also causes resentment and ill‑wU1 amongst the employees of the department concerned, which in the interest of the State should be avoided at all costs. Let a copy of this judgment be sent to the General Manager, North Western Railway, for taking such action in the matter as he may deem fit in the light of the observations made above. A. H. Appeal accepted.