P L D 1977 Karachi 261 (PLP)

2. The appellant, Muhammad Ayub son of Muhammad Yakoob, was employed as a Relieving Booking Clerk on the Karachi Division of the Pakistan Western Railway and, on the relevant date, he was serving at Karachi. On 9‑8‑1967, the appellant was prosecuted in a case for gambling in a public place under section 6 of the West Pakistan Prevention of Gambling Ordinance, 1961 and was convicted and sentenced by the Magistrate to pay fine of Rs. 50 and in default to undergo R. 1. for two weeks After his conviction, he received a letter dated 16‑4‑1969 informing him that the Divisional Commercial Officer, P. W. R., Karachi, had ordered his removal from service as he had been convicted and fined Ra. 50 by the Additional City Magistrate, Karachi. He preferred an appeal to the Divisional Superintendent, P. W. R., Karachi, but his appeal was rejected without a hearing. Therefore, on 3‑7‑1969, he filed a civil suit against the respondent praying for a declaration that his removal from service was illegal, void and inoperative on the ground that no reasonable opportunity of showing cause against his removal was afforded to him, which is guaranteed under Article 177(1)(6) of the Constitution of Pakistan (1962) (as preserved by the Provisional Constitution Order, 1969) and that he continued to remain in service of the respondent.

3. The respondent filed a written statement resisting the suit of the appellant in which it pleaded that his removal from service without issuing show‑cause notice was legal and valid ;that his removal from service was in conformity with rule 8(2) of the Railway Servants (Efficiency and Discipline) Rules, 1961 on the ground of his misconduct, which had led to his conviction on a criminal charge and accordingly prayed for dismissal of the suit.

4. The suit came up for hearing before the IV Additional District Judge, Karachi on transfer. He framed the relevant issue, namely, whether the appellant's removal from service by the respondent was in contravention of the provisions of Article 177 of the Constitution of Pakistan (1962) and, after recording the evidence of the appellant and the evidence of a railway clerk on behalf of the respondent, to decided the issue against the appellant. He held that as the appellant stood convicted of the offence under section 6 of the West Pakistan Prevention of Gambling Ordinance, 1961, which "entailed" imprisonment, the appellant was not entitled to the protection of a show‑cause notice, in view of clause (2)(a) of Article 177 of the said Constitution. In this regard, he had applied the decision of the High Court of Sind & Baluchistan reported in Province of West Pakistan v. Malik Aman (P L D 1971 Quetta 117). Accordingly, he dismissed the appellant's suit by the impugned judgment.

5. Before considering the submissions of counsel, it would be convenient to reproduce the relevant portion of Article 177 of the Constitution. It reads as follows :‑ "177.‑(1) Subject to this Constitution, a person who is a member of an All‑Pakistan Service or of a civil service of the Centre or of a Province, or who holds a civil post in connection with the affairs of the Centre or of a Province‑ (a) . . . . . . . .; (b) subject to clause (2) of this Article, shall not be dismissed or removed from service, or be reduced in rank, unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken with respect to him. (2) Paragraph (b) of clause (1) of this Article shall not apply‑ (a) where a person is dismissed or removed from service, or reduced in rank, on the ground of conduct which has led to his conviction, entailing imprisonment, on a criminal charge."

6. The contention of Mr. Syed Anwar Ali, learned counsel for the appellant, is that a person will be deprived of the constitutional protection of a show‑cause notice under clause (2)(a) of Article 177 only when his conviction on the criminal charge has actually led or ended in imprisonment. This he submitted is not the case with the appellant whose conviction led to a sentence of fine. The sentence of imprisonment was to operate only if he had failed to pay the fine. Therefore, according to him, it cannot be said that it was a case of conviction "entailing imprisonment". The interpretation of the phrase "entailing imprisonment" appearing in Article 177 (2)(b) came up for consideration before my brother Mir Khuda Bux Marri, J. in the case above‑mentioned. The facts of that case were that the respondent who was employed as a coolie in the Railway at Quetta was tried and convicted of theft of coal by the Special Railway Magistrate under section 379, P. P. C. and was sentenced to a fine of Rs. 20 and in default to undergo 10 days R.

1. He was removed from service without issuing any show‑cause notice. His declaratory suit was decreed by the trial Court and the decree was maintained by the District Judge on appeal. But on second appeal to the High Court, my brother Mir Kbuda Bux Marri, J. allowed the appeal of the Railway holding that the offence under section 379, P. P. C. which was punishable with imprisonment and/or fine or both, "entailed" imprisonment notwithstanding that the Railway employee was sentenced to pay fine of Rs. 20 in the first instance and was to suffer imprisonment only in case of default. My learned brother referred to the meaning of the word "entail" as defined in English Dictionaries, namely," to bring on as an inevitable consequence" or "impose (expense, labour, on person), necessitate." To this may be usefully added the meaning of the word "entail" as defined in Wehster's New International Dictionary of the English language, Second Edition, 1958, Vol. 1, p. 852, namely: "to impose or involve as a necessary accompaniment or result". The facts of the present case are identical with those of the precedent case. The appellant before me, on his conviction of the offence with which he was charged, was sentenced to two weeks' rigorous imprisonment in case of non‑payment of the fine of Rs.

50. His conviction therefore, imposed or involved imprisonment as a necessary accompaniment and, in my opinion, it "entailed imprisonment". I respectfully agree with the opinion of my learned brother and find no reason to disagree with the same.

7. Mr. Syed Anwar Ali next challenged the validity of rule 8(2) of the Railway Servants (Efficiency and Discipline) Rules, 1961 under which the action is said to have been taken, as being contrary to clause (2)(a) of Article 117 of the Constitution, in so far as the said rule deprives a civil servant of his constitutional protection of show‑cause notice in case he was sentenced to a fine by a Court, as was the appellant. The rule 8 (2) provided that a Railway servant may be removed from service on the ground of misconduct which has led to a sentence of fine or of imprisonment by a Court. However, it is not necessary for the purposes of this appeal, to rule on that question. It is sufficient to say that the removal of the appellant from service without issuing show‑cause notice did not contravene clause (2)(a)!_ of Article 177 of the Constitution, 1962 and such removal therefore, cannot be challenged on this ground.

8. For the foregoing reasons, I see no force in this Appeal. It is accordingly, dismissed. As the employee has been out of service, there shall be no order as to costs. S. A. H. appeal dismissed.