P L D 1957 Dacca 148 (PLP)

CHOUDHURY, J.‑

This appeal is at the instance of defendant No.1, the Federation of Pakistan. It arises out of a suit filed on the 12th of November 1953, by the plaintiff a Public Prosecutor, Special Police Establishment, whose service was terminated with effect from the 9th of August 1953, for a declaration that the order terminating his service being contrary to the provisions of section 240 of the Government of India Act, 1935, read with Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, is ultra vires, void, in‑operative and without jurisdiction and also for Rs. 2,000 as arrears of pay from the 9th of August 1953, up to the date of institution of the suit, namely, the 12th of November 1953. The plaintiff's case, shortly stated, is as follows: He is an Advocate of this High Court. He was appointed a Public Prosecutor, Special Police Establishment, by the Ministry of Interior, Government of Pakistan, from the 1st of June 1951, and he was posted at Dacca, East Pakistan. Subsequently his service was terminated with effect from 9th August 19.53, by a notice dated the 7th July 1953, under the signature of Faizullah Khan, Officer on Special Duty, intimating him that, your service shall not be required by the Ministry of Interior with effect from 9th August 1953", and directing him to hand over the charge of the post to the Circle Officer, Special Police Establishment, Dacca. The notice was received by him on 9th July 1953. The termination of service, it is urged, was due to adverse reports of defendants Nos. 2 and 3, the Inspector‑General of Police and the Circle Officer respec tively, with whom he was not pulling on well for sometime past. Thereafter, he made a representation to the Ministry of Interior but without any effect. He was not informed as to what those reports are and what are the charges against him nor was he given any opportunity to meet those charges before he was removed from the service, as required under section 240 of the Government of India Act, 1935, read with Rule 55 of the Civil Services Rules, as adopted by the Government of Pakistan and, as such, the termination of his service or his removal from service is illegal, ultra vires, void, in‑operative and without jurisdiction. By amendment of the plaint, dated 5th November 1954, allowed by the Court on 7th November 1954, he also prayed for a decree for Rs. 2,000, being the arrears of his pay from 9th August 1953 up to the date of the suit. The suit was contested by defendants Nos.1 and 3 alone by filing a joint written statement. Their defence, in substance is as follows: The appointment of the plaintiff is temporary, terminable on one month's notice on either side. In pursuance of the said terms of appointment, the plaintiff was served with one month's notice and, as such, the provisions of section 240 of the Government of India Act, 1935, have no application and "the charge or charges for which the plaintiff was dismissed or discharged need not be at all mentioned nor do they arise". In paragraph 15 of the written statement filed by them, the contesting defendants submitted that since after the appointment of the plaintiff, the Inspector‑General, Special Police Establishment, and the other officers who were engaged to instruct him in the conduct of cases, found his work unsatisfactory and reported against him and, therefore, the plaintiff had to be removed and that those would be borne out by the letters addressed to the Inspector General of Police, Special Establishment Branch, Karachi, by the Superintendent of Police by his D. O. No. 309/S P. E/D, dated the 16th of January 1953. Besides these, they also pleaded defect in the notice under section 80 of the Code of Civil Procedure so far as it relates to the claim of the plaintiff for arrears of pay and as to the maintainability of the suit for arrears of pay against the Government. The trial Court decreed the suit holding that though the appointment of the plaintiff was temporary and terminable on one month's notice on either side, the provisions of section 240 of the Government of India Act, 1935, are applicable and he is entitled to protection under that section and that as no opportunity was given to him to defend himself against the termination of his service, the order of dismissal from service is void and inoperative and "he must be deemed to have remained what he was before the said illegal order". The trial Court in this view also decreed the claim of the plaintiff for his arrear pay of Rs. 2,000 holding that a suit for arrears of pay against the Government is maintainable and that, as the defendants did not raise any objection in their additional written statement about the notice under section 80 of the Code of Civil Procedure on the amendment of the plaint, it must have been taken to have been waived by them. The trial Court also held, relying on the case of Manindra Chandra Nandi v. Secretary of State for India (I L R 34 Cal. 257/259), that the notice was perfectly valid and sufficient in law. On appeal by defendant No. 1, the learned Subordinate Judge dismissed the appeal, holding that section 240 of the Government of India Act was applicable to the facts of the case and the notice of amendment of the plaint introducing a claim for arrears of pay was valid and sufficient in law but he modified the decree of the trial Court, in that the claim of the plaintiff for his arrears of pay was dismissed holding, relying on the case of Abbas Ahmad v. Punjab Province (P L D 1955 Lah. 160), that no action in tort lies against the Government. Hence this appeal by defendant No. 1 and the cross‑objection by the plaintiff. The appeal being valued at Rs. 2,000, it came before me sitting singly, but, as it involved interpretation of the Government of India Act, 1935, I referred it to the Chief Justice on 8th July 1956, under Rule

1. Chapter 11, Part I of the High Court Appellate Side Rules, as amended by Notification No. 41156, dated the 4th May 1940, to place it before a Division Bench for disposal. The amended Rule stands thus: --‑ "Where at any stage of the hearing of an appeal, application or other matter, it appears to the Judge that it involves a substantial question of law as to the interpretation of the Government of India Act, 1935, or any Order in Council made thereunder, he shall send the appeal, application or other matter to the Division Bench, hearing appeals from the Group to which it belongs, to be disposed of by two Judges." The learned Chief Justice constituted this Bench for the purpose and sent the appeal here for disposal. The contention of Mr. M. H. Khondkar, the learned Advocate for the defendant‑appellant, is that section 240 (3) of the Government of India Act, 1935, speaks of dismissal or reduction in rank and does not speak of termination of service, terminable on notice on either side, and, therefore, termination of service of a temporary employee of the Government whose service is terminable with notice on either side does not come within the provisions of section 240 of the Act and such a termination is not a penalty or punishment and it is a discharge of a person engaged in accordance with the terms of the contract and does not amount to removal or dismissal under section 240 (3) of the Act as well as under clause (c) of Rule 49 of the Civil Services (Classification, Control and Appeal) Rules framed under the Act. On the other hand, Mr. Asrarul Hussain, the learned Advocate for the plaintiff respondent, contends that section 240 of the Government of India Act, 1935, is equally applicable to temporary civil servants and permanent civil servants of the Government and that the termination of the plaintiff's service, in the circumstances of this case, tantamount to dismissal and is not a termination under the Service Contract simpliciter which is only possible in two cases, namely, (1) where the service is for a fixed period and the period has expired and (2) where the post is temporary and it is abolished. According to him, in all other cases of temporary service, the termination of service will be, in effect, dismissal or removal from service attracting the provisions of section 240 of the Government of India Act and of rule 3 of Civil Services Rules, making rule 55 of that Rule applicable. As to the cross‑objection, the learned Advocate for the cross‑objector contends that that suit for arrears of pay against the Government is maintainable and the Court of Appeal below is absolutely wrong in holding that such a suit is not maintainable. His further contention is that the amendment of the plaint by including a prayer for arrears of pay after notice under section 80 of the Code of Civil Procedure is perfectly valid in law. It is contended on behalf of the Government, relying on the case of High Commissioners for India & Pakistan v. I. M. Lall (P L D 1948 P C 150), that the plaintiff's suit for arrears of pay against the Government is not maintainable. His further contention is that in view of the provisions of section 80 of the Code of Civil Procedure that "no suit shall be instituted against Government, or against a public officer in respect of any act purported to be done by such public officer in his official capacity until the expiration of two months next after the notice etc.", there cannot be any service of notice after the institution of the suit, even if it is in respect of amendment of the plaint because the suit has already been filed. Before I take up the points raised in the appeal and in the cross‑objection, I feel it necessary to quote here the service contract, Exh.1, and the notice, Exh. 2, by which the plaintiff's service was terminated which runs as follows: --‑ (I) "Ext. I‑No. 14/10/48‑Police (II) BY AIR MAIL Government of Pakistan, Ministry of the Interior, Home, Division From Major G. Rasheed, Under‑Secretary to the Government of Pakistan. To Moulvi Shamsul Huda, Advocate, 30, Shah Saheb Lane, Narinda, Dacca. Karachi, the 22nd May 1951. Sir, With reference to your letter, dated the 17th May 1951, I am directed to say that you have been selected for appoint ment to the post of Public Prosecutor, Dacca. Briefly the terms of appointment are as follows :‑ (1) Your starting salary will be Rs. 750 in the scale of Rs. 750‑25‑1,

000. You will be entitled to allowances as sanctioned by Government from time to time. The scales of pay and allowances are subject to revision on the recommendation of the Pakistan Pay Commission ; (2) The appointment is temporary and terminable on one month's notice on either side ; (3) You will be attached in the first instance to the Dacca Circle of S. P. E., but are liable for service anywhere in Pakistan. You are, therefore, to report to the Circle Officer, Dacca Circle of the Pakistan Special Police Establishment, on the 1st June 1951, and send to this Ministry the report of your taking over charge in due course. I have the honour to be Sir, Your most obedient servant G. Rasheed. Under‑Secretary to the "Masud" Government of Pakistan" Ext.

2. No. 6/12/53‑Police (II) Registered A. D. Immediate. From Khan Faizullah Khan, Officer on Special Duty, Government of Pakistan. To Shamsul Huda, Esquire, Public Prosecutor, S. P. E., 19 / I A, Dhakeswari Road, Lalbagh, Dacca. Karachi, the 7th July 1953. Sir, I am directed to say that your services shall not be required by the Ministry of Interior with effect from the 9th August 1953. You may please hand over the charge of the post of Public Prosecutor to the Circle Officer, S. P. E., Dacca, on the afternoon of the 8th August 1953. Your obedient servant, Faizullah Khan, Officer on Special Duty." During the pendency of this appeal, our Constitution creating the Islamic Republic of Pakistan came into force. The appeal was filed before the Constitution, describing the appellant as "Federation of Pakistan." A question of substitution of the present `Republic' in place of the `Federation of Pakistan' arose. Article 136 of the Constitution provides :‑ "The Federal Government may sue and be sued by the name of Pakistan, and the Government of a Province may sue and be sued by the name of the Province." Article 228 (1) of the Constitution provides :‑ "Subject to clause (2), if any legal proceedings in which the Federation of Pakistan is a party were pending in any Court, immediately before the Constitution Day, then, in those proceedings, for "the Federation of Pakistan", "Pakistan" shall, as from that day, be deemed to be substituted." So formal substitution is not necessary ; it shall be deemed to be substituted. Now coming to the point raised in this appeal and the cross‑objection, section 240 (1) and (3) is material for our purpose. Subsection (1) of section 240 of the Government of India Act, 1935, provides :‑ "Tenure of office of persons employed in civil capacities in Pakistan.‑(1) Except as expressly provided by this Act, every person who is a member of a Civil Service of the Crown in Pakistan or holds any civil post under the Crown in Pakistan, holds office during His Majesty's pleasure." Relevant portion of subsection (3) of section 240 of the Act provides :‑ "No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." It is contended on behalf of the Government that the provisions of section 240 of the Government of India Act, 1935, are applicable only in cases of permanent service and are not applicable to temporary service terminable with notice. In support of this contention, the learned Advocate for the appellant refers to proviso to subsection (2) of section 241 of the Act which provides: "that it shall not be necessary to make rules regulating the conditions of service of persons employed temporarily on the terms that their employment may be terminated on one month's notice or less . . . . . . ." and contends that the provisions in subsection (2) of section 241 marks 'the temporary service‑holders out of the provisions of section 240 (3) of the Government of India Act. The expression "person as aforesaid" in subsection (3) 01' section 240 refers to "every person who holds any civil posi under the Crown in Pakistan" in subsection (1) of section 240 of the Act. The last expression is so widely‑worded that on a plain construction it includes all holders of civil service, whether permanent or temporary. Subsection (2) of section 241 is relevant on the question of applicability of Civil Service Regulations. The proviso to that subsection A simply says that it will not be necessary to make rules, regulating the conditions of service of persons employed temporarily on terms that their services may be terminated on a month's notice or less. It does not mark out the holders of the temporary service as not covered by section 240 of the Act. In this connection, reference may be made to the cases of Yusuf Ali Khan v. The Province of Punjab (P L D 1949 Lah. 219), Ramesh Chandra Das v. Province of Bengal (57 C W N 767), (where various authoritative decisions including those of the Privy Council have been considered on this point), Province of East Bengal v. Zahirul Huq and another (5 P L R Dacca 22 (27)) and Balai Chandra Basak v. N. Roy Chaudhuri (58 C W N 239), where it has been held that section 240 does not make any difference whether the employment is temporary or permanent and it applies to all holders of civil service. Then it is contended on behalf of the appellant that the plaintiff was neither dismissed nor removed from service to attract the operation of section 240 of the Act and his service was simply terminated by notice in accordance with the Service Contract. Though subsection (3) of section 240 of the Government of India Act, 1935, speaks of dismissal or reduction in rank, at does not speak of removal, though rule 55 of Civil Service,; (Classification, Control and Appeal) Rules contains the word `removal'. It has been held by their Lordships of the Privy Council in the case of High Commissioners for India & Pakistan v. I. M. Lall that removal was within section 240 (3) of the Government of India Act which conclusion implies that removal is comprised within dismissal. The position therefore, is that both under the rules (see rule 49 of the Civil Services Rules) and the Privy Council decision, there is no difference between dismissal and removal except that the former disqualifies a person from future employment while the latter does not. In this connection, reference may be made to the case of Shyam Lal v. The State of Uttar Pradesh and another (1954 S C A 476). Indeed it has been held in the case of Satish Chandra Anand v. The Union of India (1953 S C A 293) that these terms have been used in the same sense as in Article 311 of the Constitution of the Union of India which corresponds to section 240 of the Government of India Act, 1935, except that the word `removal' which is not in section 240 of the Government‑of India Act, 1935, has been incorporated in Article 311 of the Constitution. Removal like dismissal and discharge no doubt brings, about a termination of service but every termination of service does not amount to dismissal to attract the operation' of section 240 of the Act. The explanation to rule 49 of the; Civil Services (Classification, Control and Appeal) Rules shows that. Then the question is whether the termination of service of the plaintiff brought about by one month's notice tantamount to dismissal or removal from service so as to attract the provisions of section 240 of the Act. The answer to the question depends on the nature and extent of the action resulting in the termination of the service. It is contended on behalf of the plaintiff‑respondent that his removal from service is not termination simpliciter under the Service Contract, as it appears from what has been stated in paragraph 15 of the written statement of the defendant, namely, that I. G., Special Police Establishment, and other officers who instructed him in his work found his work un satisfactory and reported against him and, therefore, he had to be removed from service. There can be no doubt that removal and dismissal generally imply that the officer is regarded in some manner blame‑worthy or deficient, that is, he has been guilty of some misconduct or is lacking in ability or capacity. The action of removal taken against him, in such circumstances, involves the leveling of some imputation or charge against the officer removed which may be controverted or explained by the officer concerned. In the present case, there is no such element of charge and no inquiry under rule 55 of the Civil Services Rules. The termination of service of the plaintiff by notice has no stigma or implication of mis-behaviour or incapacity. It is abundantly clear from the notice, Exh. 2, quoted above that imputation or charge is not in terms made a condition of the termination of the service. No doubt, there is a report about unsatisfactory nature of the plaintiff's work as stated in paragraph 15 of the written statement. Govern ment cannot work arbitrarily even under the Service Contract. So, to make up its mind as to whether it was, in the public interest, to dispense with the service of the plaintiff, it had to depend upon the report; and it is in the nature of some thing to help the Government to make up its mind as to the retention of service of the officer but that alone is not sufficient when there is no imputation or any charge or implication of misbehaviour or incapacity nor is there any evidence of any such imputation or implication. It follows, therefore, that one of the tests of determining whether termi nation of the service of the plaintiff amounts to removal or dismissal is absent in this case. Finally, rule 49 of the Civil Services Rules shows that) dismissal or removal is a punishment and is imposed on an officer as penalty. No doubt it involves loss of benefit. It is argued that termination of the service of the plaintiff deprives him of the chance of serving the Government further and of getting his pay in terms of the Service Contract and that is certainly a punishment. In the wider sense, it is true the plaintiff may consider himself punished but there is a distinction between the loss of benefit already earned and the loss of prospect of earning something more. The loss of future prospect is too uncertain in that he may not earn due to death or otherwise be incapacitated from serving. Further, when there is no charge, stigma or imputation against the plaintiff, he is not barred from further employment under the Government. Therefore, it cannot be said that termination of the service of the plaintiff is an imposition of penalty or punishment. It follows, therefore, that the termination of the plaintiff' service is a termination simpliciter under the terms of the Service Contract and it does not tantamount to dismissal or removal from service to attract the provisions of section 240 of the Government of India Act, 1935. In support of this view, reference may be made to the case of Satish Chandra Anand v. The Union of India. That was a case of a contract for temporary service, being terminated by notice under one of the clauses of the contract and fell, like the present case, within clause (c) of the explanation to rule 49 of Civil Services Rules, and it was held that Article 311 of the Constitution of the Indian Union would not have any appli cation. That case has been followed by the same Court in Shyam Lal's case, which is a case of compulsory retirement of a Civil Engineer on ground of misconduct. Yet has been held that the termination of service does not amount to dismissal or removal and, therefore, does not attract the pro visions of Article 311 of the Constitution. In this connection, reference may also be made to the case of Jayanti Prasad v. The State ‑of Uttar Pradesh (A I R 1951 All. 793). That was a case of termi nation of temporary service with notice under the Service Contract due to misconduct and bad reputation. It was decided to retrench him and he was retrenched. It was held that it was not a dismissal but termination of service under the Service Contract. In the case of Balai Chand Basak v. N. Roy Choudhoury, it was held that where contract of service contains provision for terminating service by notice and such notice was served no question of penalty or punishment is involved and the provisions of Article 311 of the Constitution are not attracted; but if the Government does not choose to proceed in terms of the Service Contract but elects to punish or penalise the employee by dismissal, the provisions of Article 311 are instantly attracted. Last of all, in the case of Subodh Ranjan Ghose v. Major N. A. O. Callaghan and another (1), it has been held that since the termination of service was in terms of the Service Contract, the fact that there was an inquiry and that the plaintiff was found guilty did not make it less termination in accordance with the contract though the fact of inquiry and the finding of guilty was mentioned in the notice termi nating the service. In my opinion the simple test is whether the termination is under the Service Contract or by way of punishment. In the present case, there is no doubt that the termination of the plaintiff's service is under the Service Contract simpliciter and not a dismissal or removal and, as such, section 240 of the Government of India Act is not attracted. I am unable to accept the contention of the learned Advocate for the plaintiff‑respondent that termination of temporary service under the Service Contract simpliciter is possible only in two cases mentioned by him namely, (60 C W N 917 at 925) where the service is for a fixed period and the period has expired and (2) in cases of abolition of the post. As to the application of rule 3 of Civil Services /Rules and that of rule 55 of that Rule, it is conceded by the learned Advocate for the respondent that those rules are applicable if the termination of service tantamounts to dismissal or removal and not otherwise. Further, rule 3 provides for certain exceptions and clause (c) of those exceptions applies to the present case, so also the explanation (c) of rule 49 of the Civil Services Rules. As to the claim for arrears of pay, in view of my decision that the termination of the plaintiff's service is not a dismissal or removal to attract the provisions of section 240 of the Government of India Act to make it void and inopera tive, there cannot be any arrears of pay from the date of the termination of the service and, therefore, no question of arrears of pay can arise. But when the question is raised, we are to determine it for completeness. It is argued that the suit for arrears of pay against the Government is not maintainable. In this connection, I may simply point out that though their Lordships of the Privy Council in the case of High Commissioners for India and Pakistan v. I. M. Lall, held that such a suit was not maintain able, it has been decided by the Federal Court of India in the case of The Punjab Province v. Pandit Tara Chand (52 C W N (F R) 2) that such a case was maintainable and their Lordships of the Privy, Council in the subsequent decision in the case of North‑West Frontier Province v. Suraj Narair; Anand (A I R, 1949 P C 112=P L D 1949 P C 1), held that such a suit was maintainable and observed at page ! 17 as follows:

"If in accordance with their Lordships humble advice the declaratory judgment of the Federal Court is restored, it will be open to the respondent to pursue any remedy which flows from that declaratory judgment in the appro priate Court." The relief which formed the basis of the observation of their Lordships was the claim for arrears of pay. So, in view of this latest pronouncement of the Privy Council, it is not correct to contend that the suit for arrears of pay against the Government is not maintainable. Then Mr. Khondkar contends that the suit is not maintainable for want of proper notice before the main suit was filed in view of the provisions of section 80 of the Code of Civil Procedure that no suit shall be filed until after the expiry of two months of the service of notice which, according to him, contemplates a notice before the suit is filed and not after it. It is not contended that the amendment of the plaint introducing new relief based on new and different cause of action was illegal or bad nor is it contended that notice under section 80 of the Code of Civil Procedure served before the proposed amendment was otherwise defective or insufficient in law. If we accept the contention of the learned Advocate for the appellant, it would automatically follow that no amendment of the plaint in a suit against the Government is permissible, though O. VI, rule 17 of the Code of Civil Procedure clearly contemplates amendment of the plaint at any stage of the suit. If the amendment does not change the character of the suit and the nature of the relief claimed, no L notice under section 80 of the Code of Civil Procedure is necessary. It is only necessary when new relief is introduced by way of amendment based on different cause of action and notice under section 80 has, in fact, been served and it is sufficient in law. So, there is no substance in the contention) of the learned Advocate. But, in view of my decision that termination of the plaintiff's service under the Service Contract on a month's notice is not a dismissal or removal from service within the meaning of section 240 of the Government of India Act, 1935, and is not void and inoperative, the plaintiff's suit is liable to be dismissed. The result therefore, is that this appeal is allowed and the cross‑objection is dismissed, the judgments and decrees of the Courts below are set aside and the plaintiff's suit is dismissed ; but, in the circumstances of the case, we do not like to saddle the plaintiff with costs, either in this Court or in any of the Courts below. Mr. Jan‑i‑Alam, the learned Advocate for the plaintiff respondent, asks for a certificate for appeal under section 205 of the Government of India Act which now corresponds to Article 157 of the present Constitution. We accordingly certify that this case involves a substantial question of law as to the interpretation of the Constitution. HASSAN, J.‑

I agree. K. B. A. Appeal allowed.