P L D 1954 Sind 199 (PLP)

LARI, J.‑The plaintiff who was a Works Clerk in the service of the North Western Railway at Khanpur Station, Karachi Division and had been discharged by an order of the Divisional Engineer 3, North Western Railway, Karachi with effect from 4th October 1948, filed this suit for a declaration "that the order of the plaintiff's removal from service was void and inoperative and that the plaintiff remains in the service of the Government of Pakistan in the North Western Railway. The plaint alleged that on 24th September, 1948, the Divisional Personal Officer, North Western Railway, Karachi delivered to the plaintiff a charge sheet No. 711‑E/11/52, (Exh. 5/1) dated 20th September 1948; calling upon him to submit his explanation as to why penalty of removal " from service or a lesser penalty should not be imposed on him on account of being responsible for loss of Blank Cheque pass, pages Nos.:‑ Second Class. 37075 and 373086. Inter Class. 163751, 163755, 163764 and 163778. Third Class. 361645. and for remaining unauthorisedly absent from duty with effect from 21st August 1948; that the plaintiff submitted his explanation to the charge sheet on 28th September, 1948; that the plaintiff did not hear anything from the authorities concerned till 2nd October, 1948 when he received an order to the effect that he had been discharged from service with effect from 4th October, 1948; that the order of discharge was contrary to the mandatory provisions of section 240 sub- clause 3 of the Government of India Act, 1935 read with section 277 of the same Act and consequently the order of discharge was illegal, void and inoperative. The plaintiff further alleged in the plaint that he gave a notice of the suit dated 12th April, 1950 (Exh. 5/4), but no need was paid and hence this suit. The defendant filed a written statement in which it was pleaded that the suit for mere declaration was incompetent, there was no violation of section 240 sub‑clause 3 read with section 277 of the Government of India Act and orders of discharge from service were passed in accordance with rules in force. The following issues were framed : (1) Is the suit for mere declaration incompetent ? (2) What were the terms of the plaintiff's employment ?

3. Was Form 'D' served on the plaintiff calling upon him to show cause why the penalty of removal from service of any lesser penalty should not be imposed upon him ? (4) Whether or riot the enquiry into the removal of plaintiff from service was carried out in accordance with the Railway rules governing such enquiries. If not, what was the effect ?

5. Has the defendant committed any breach of sections 240 (3) and 277 of the Government of India Act as alleged by the plaintiff ? If so, what is the effect ?

6. Is the Court barred from questioning the correctness of the decision of the Railway Officials regarding the removal of plaintiff from service ?

7. Was the said order passed without just and sufficient cause and on false allegations ?

8. General. Decision with reasons. Issue No. 1.‑Is the suit for mere declaration incompe tent ? The contention of the learned counsel for the defendant is that the plaintiff has not sued for arrears of pay and has merely claimed a declaration to the effect that the order of plaintiff's removal from service was void, inoperative and that the plaintiff remains in the service of the Government of Pakistan in the North Western Railway and consequently the suit is bad on account of section 42 ‑of the Specific Relief Act. A similar suit was filed by Mr. I. M. Lall against the High Commissioner for India and was decided by the Lahore High Court. The Lahore High Court granted declaration to the effect that the removal of Mr. I. M. Lall was wrongful void, illegal and that the plaintiff was still a member of the Indian Civil Service. On appeal the matter came to the Federal Court which varied the decree of the High Court and remitted the suit to the High Court for amending the claim and assessing damages payable to the plaintiff by the defendant. The High‑ Commissioner for India filed an appeal to the Privy Council. Their Lordships of the Privy Council decided that no action in tort could lie against the Crown for arrears of pay or demages and granted a declaration that the order purporting to dismiss Mr. I. M. Lall was void and inoperative and that he remains a member of the Indian Civil Service. The case is reported in A I R 1948 Privy Council at page

121. This case is a clear authority for the proposition that the declaration sought for can be granted. A similar view was taken by Mr. Justice Cornelious now judge Federal Court in the case Yusuf Ali Khan v. The Province of the Punjab (P L D 1949 Lah. 219). The learned counsel for the defendant contended that the decision of the Privy Council in else case of I. M. Lall in so far as it holds that no action in tort could lie against the Crown for arrears of pay, was unsustainable in law. The Privy Council did not consider the decision of the Federal Court in the case of The Punjab Province v. Tara Chand (AIR 1947 F C 23) and ignored the provisions of section 60 and Order 21 Rule 48 Schedule I of the Code of Civil Procedure. There is no doubt that the Privy Council did not take note of the reasoning of the Federal Court in the case mentioned above nor considered the implication of section 60 and Order 21 Rule 48 of the Code of Civil Procedure. The Supreme Court of India in the case of The State of Bihar v. Abdul Majid (AIR1954 S.C.245) has gone into the question whether a Government servant can sue the Crown for arrears of pay or not and adopted the reasoning of the Federal Court that in view of the provisions of section 60 and Order 21 Rule 48 of the Code of Civil Procedure the rule prevalent in England that the Crown cannot be sued for arrears of pay is not applicable to India. There is, therefore, great force in the contention of the learned counsel for the defendant that in Pakistan a Government servant can sue the Crown for arrears of pay. Their Lordships of the Privy Council too in a later case North‑West Frontier Province v. Suraj Narain Anand (PLD 1949 PC1) did not negative the possibility of suing the Crown for the recovery of arrears of pay as would be clear from the following observations :‑ "The respondent, as his counsel stated when the matter was last before the Board, does desire an opportunity of arguing that he shall now be awarded arrears of pay from the date of the institution of his suit on 17th June 1949. Their Lordships do not propose to deal further with this matter. If in accordance with their Lordship's 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 appropriate Court Their Lordships must not be understood, however, as expressing an opinion that the respondent was entitled as of right to recover the sum of Rs. 2,283, which was awarded to him, or that he has any claim to a further sum in respect of arrears of pay: But I as a subordinate Court cannot possibly question the validity of any observations made by a higher Court. It has been held by a Full Bench of the Lahore High Court to which our eminent Chief Justice Mr. Munir was a party, in the case of Qadir Bakhsh v. The Crown (P L D 1953 Lah. 588) that‑ "The obligation of a judge to follow the judgment of a superior Court does not disappear merely because his own view of the law is different or because the judgment of the superior Court was given per in-curiam, e.g., in ignorance c of a statutory provision." A similar view was expressed by the Federal Court of Pakistan in the case of Fazal Elahi v. The Crown (PLD 1953 FC 35). The observations of the Privy Council in the case of North‑.West Frontier Province v. Suraj Narain Anand (supra) already quoted above lend support to the contention that even if a claim for arrears of pay lies a suit for declaration in the form sought in this case can he filed and is competent. Section 42 of the Specific Relief Act runs thus:- "Any person entitled to any legal character, or to any right as to‑ any property, may institute a suit against any person denying or interested to deny, his title to, such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief Provided that .no Court shall make any such declaration and where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so." The Proviso to section 42 to my mind, forbids a suit for mere declaration where it is necessary for the plaintiff to claim further relief or in other words mere declaration. would not be allowed, where it would by itself be ineffectual. The substantive portion of section 42 allows the granting of a declaration without any further relief but its proviso prohibits granting of a mere declaration where further relief is possible. When the main clause and its proviso are read together, it can only mean that seeking of further relief is made compulsory only when declaration by itself would not give an effective remedy. In a suit like the present one granting of the declaration would confer a substantive relief on the plaintiff and relief for arrears of pay is not a further relief but a separate relief. This view finds support from the observation of the Privy Council in the case North‑lest Frontier Province v. Suraj Narain Anand (supra) mentioned above "If in accordance with their Lordship's 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 appropriate Court." There have been cases in which a declaration for proprie tory title was sought without a claim for arrears of rent and it was argued in those cases that a suit for mere declaration was incompetent as arrears of rent had not been claimed. This contention was repelled by Allahabad High Court and Calcutta High Court in the cases Somkali v. Bhairo (I L R All. at 55) and Fakir Chand Audhikari v Anunda Chunder Bhuttachariji (I L R 14 Cal. 586). In view of the Privy Council's decision as well as the interpretation that I put on the proviso of section 42, I am of opinion, that the suit for declaration without any relief in regard to arrears of pay is competent. The issue is decided accordingly. Issue No.

2. What were the terms of the plaintiffs employment ? It was conceded by the parties that the issue is redundant and need not be gone into. Issue No. 3.‑Was form `D' served on the plaintiff calling upon him to show cause why the penalty of removal from service or any lesser penalty should not be imposed upon him ? Both the parties agree that notice form `D' (Exh. 5/1) was served on the plaintiff. The issue is decided accordingly. Issues Nos. 4 & 5.‑(4) Whether or not the enquiry into the removal' of plaintiff from service was carried out in accordance with the Railway rules governing such enquiries. If not, what was the effect ? (5) Has defendant committed any' breach of sections 240 (3) and 277 of the Government of India Act as alleged by the plaintiff. If so, what is the effect ? The procedure prior to removal from service according to the contention of both the parties is laid down in Rule 1709 read with rule 1712 of the Pakistan Railway Establishment Code. Rule 1709 (b) runs thus:- "Where the railway servant whom it is proposed to remove from service had not completed seven year's service, the procedure prescribed in Rule 1712 shall be applied." Rule 1712 runs thus:- "Before an order imposing a penalty specified in items (2) to (6) of Rule 1702 or in Rule 1709 (c) is passed against a railway servant, he shall be informed of the definite offence or failures on account of which it is proposed to impose the penalty and called upon to show cause why that or any lesser penalty should not be imposed. He should also be given three day's time in which to submit his explanation and be allowed reasonable facilities for the preparation of his defence." It is admitted that the plaintiff was called upon to submit an explanation but it is also agreed on all hands that the plaintiff was not afforded any opportunity to substantiate his explanation or to adduce any evidence in support of his denial of the charge. It may be noted that admittedly no enquiry whatsoever had taken place in regard to the charges alleged prior to the service of the notice Exh. 5/1. Rule 1772 not only requires that the party concerned should be asked to submit his explanation but that he should be allowed reasonable facilities for the preparation of his defence. Any way the departmental rules are subject to section 240 sub‑clause 3 of the Government of India Act which is to the effect that no employee shall be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The learned counsel for the defendant argued that calling for explanation by itself in the Form 'D' was sufficient compliance with the provisions of section 243 of the Government of India Act. The learned counsel for the plaintiff, however, contested this view point. The parties cited before me the wording of section 240 (2) but did not place any authorities pertaining to interpretation of this section. The words "showing cause however have been subject of discussion in at least three cases of the Allahabad High Court. Section 8 (2) of the U. P. Court of Wards Act lays down that before a declaration contemplated by the act is made by the Government, the proprietor affected should be given an adequate opportunity of showing cause why such a declaration should not be made. A Bench of the Allahabad High Court in the case Avadhesh Pratap Singh v. State of Utter Pradesh (A I R 1952 All. 63) took the view that: "Enabling a mere representation to be made is not the same thing as giving an opportunity of showing cause. The expression "showing cause" connotes an opportunity of leading evidence in support of one's allegations and in controverting such allegations as are made against one." Similar view was taken by another Bench of the same Court in the case Ravi Pratab Narain Singh v. The State of Uttar Pradesh (A I R 1952 All. 99). Section 240 of the Government of India Act has been replaced by Article 311 of the Constitution of India and Article was subject of interpretation by a bench of Allahabad High Court in the case Shyam Lal v. State of U. P. (A I R 1954 All. 235). Their Lordships observed: "The expression "showing cause" as used in Article 311 does not imply that a mere opportunity of submitting an explanation is enough. It implies that adequate opportunity of leading evidence in support of the contention of the person concerned and controverting the contentions raised against him must be given; and where necessary opportunity of cross‑examining witnesses of the other side and of addressing arguments should also be afforded." There is an observation of the Privy Council in the case The High Commissioner for India v. I. M. Lall (AIR 1948 P Cat p.121=(PLD1948PC150)), which re‑in-forces the view that a reasonable opportunity of showing cause necessarily includes opportunity of leading such evidence as necessary to substantiate the contention of the person concerned and meeting the charges levelled against him:- "In the opinion of their Lordships, 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 hypothical. It is on that stage being reached that the statute gives that 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. If the civil servant has been through an enquiry under Rule 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the enquiry." These observations definitely means that in cases where calling for explanation against a proposed action has not been preceded by a detailed inquiry in which the person concerned had an opportunity of leading evidence, the Government servant could be entitled to lead evidence, cross‑examine witnesses and argue in support of his own stand. The case Muhammad Munir Khan v. The Province of Punjab (P L D 1954 Lah. 299.) is distinguishable. The charge sheet in that case added: "You should also state whether you wish to be heard in person and if so, submit a list of your witnesses, if any, giving their full addresses and stating the point or points on which each of them is required to give evidence." Obviously there was a compliance with the provisions of section 240 (3) of the Government of India Act. Section 240 (3) confers a substantial right on a civil servant and mere illusory compliance cannot meet the requirements of this section. The Court has to see in the light of the facts of each case whether a reasonable opportunity for showing cause had been afforded to the servant concerned or not. In a case where calling for explanation has not been preceded by a proper enquiry in the presence of the Civil servant mere affording of opportunity to submit an explanation cannot be considered a reasonable opportunity for showing cause. The authority concerned should not only allow an opportunity to the civil servant to meet the charges in writing but should give adequate opportunity to produce evidence to support his contentions and refute the charges levelled against him in the usual way by examining and cross‑examining witnesses and by addressing arguments before the authority concerned. In this case the plaintiff was only asked to submit his explanation within three days. The plaintiff submitted explanation and thereafter heard nothing till the receipt of the notice of discharge. Obviously the plaintiff had not a reasonable opportunity to show cause against the action proposed. In view of this I have no option but to hold that the defendant committed the breach of section 240 sub‑clause 3 of the Government of India Act. Issue Nos. 6 & 7.=(6) Is the Court barred from ques tioning the correctness of the decision of the Railway Officials regarding the removal of plaintiff from service ? (7) Was the said order passed without just and sufficient cause and on false allegations ? Both the parties submitted that these issues need not be gone into and did not require any decision. Issue No. 8.‑General. In view of my finding that provisions of section 240 sub -clause 3 of the Government of India Act were not complied with, the order of discharges is inoperative and illegal and the plaintiff is entitled to the declaration that he seeks. The suit, therefore, succeeds and is decreed with costs. A. H. Suit decreed.