P L D 1956 (W (PLP)

ORTCHESON, J.‑

The facts giving rise to this regular second appeal are that‑ the plaintiff, Sayyed Athar Ali Indrabi, was first employed as Senior Clerk in the Rationing Department of the then Punjab Government, being appointed as such on the 13th of March 1944. On the 13th of February 1948, he was promoted to the status of Assistant Ward Rationing Officer and, on the 16th of January 1949, he executed the following document, which is described as a declaration:‑ "I understand that my employment under the Punjab Government as A. W. R. O. is temporary and that my service may be dispensed with at any time without notice and without any reasons being assigned. I agree further that if I wish to resign my employment, I should give notice in writing for a period of not less than thirty days of my intention to resign or in default forfeit to the Government such sum not exceeding my pay and allowances for one month as the appointing authority may fix. I am aware that employment in this office is governed by the rule requiring notice in the absence of which I am liable to be proceeded against under the law". A copy of the above document has been Exh. as D.

1. The Rationing Department ceased to exist with effect from the 31st of March 1950, but the plaintiff, instead of being discharged, was transferred to the Food Department, where he was posted as Assistant Food Controller. In December 1950, a complaint was lodged against the plaintiff and others for issuing bogus permits. An investi gation was conduced by the Special Police Establishment, but no action was taken against the plaintiff. A departmental inquiry was however, held and he was charge‑sheeted on the 21st of September 1951. Although the inquiry appears to have been completed, the plaintiff was not dismissed from service on the ground that any charges had been proved against him. Instead, he and three clerks, with whom we are not concerned, received a copy of an order dated the 6th of February 1952, over the signature of Mr. H. G. Sadiq, Director of Food Purchases, stating that his services were terminated with immediate effect without assigning any reasons. The plaintiff thereupon filed the present suit for a declaration that the above order was ultra vires, irregular, wrongful, illegal and void, that he continued to be in the service of the Food Department of the Punjab Government as Assistant Food Controller and that he was entitled to all allowances and pay etc, attached to that office from the date of the termination of his service till the date of his rein statement. The suit was contested by the Punjab Province, defen dant on the ground that as the plaintiff was a temporary employee his services could be terminated without assigning any reasons, reliance being placed in that connection on the declaration Exh. D. I, dated the 15th of January 1949. The nature of the remaining subsidiary pleas is apparent from the following issues framed by the trial Court:‑

1. Whether the plaintiff did not hold "a civil post under the Crown" as contemplated under section 240 of the Government of India Act 1935? (1‑A). In case section 240 of the Government of India Act is not applicable, whether the suit is maintainable? (2) Whether the plaintiff was removed from service in contravention of the provisions contained in section 240 of the Government of India Act? (3) Whether the plaintiff continues to be in the service of the defendant, and is still an Assistant Food Controller? (4) What is the effect, of the declaration (copy Exh. D. 1) on the suit? (4‑A). Whether the plaintiff was removed from service in compliance with the terms of the aforesaid declaration? What is its effect? (5) Whether the plaintiffs services were terminated in pursuance of official instructions? What is its effect? (6) Whether the suit is not properly valued for purposes of Court‑fee and jurisdiction? (7) Relief. The trial Court upheld the contentions of the plaintiff and granted him a declaration to the effect that the order in dispute was void and inoperative and that the plaintiff remained an Assistant Food Controller on the date of the institution of the suit, namely, the 6th of October 1953. The prayer of the plaintiff that he was entitled to all arrears of pay etc from the date of the termination of his services to that of his reinstatement was refused. Against the above order the defendant appealed to the Court of the Additional District Judge, Lahore. The plaintiff also filed cross‑objections relating to the portion of the relief claimed which had been denied by the trial Court, but by order dated the 8th of November 1954, both the appeal and the cross‑objections were dismissed. The Punjab Province then lodged a second appeal in this Court. The first question for decision in this case is whether the plaintiff was employed temporarily on the terms that his employment might be terminated on one month's notice or less, as contemplated by the proviso to subsection (2) of section 241 of the Government of India Act, 1935 ; The only documentary evidence relied upon by the Punjab Province, appellant, in support of its case on this point is the declaration Exh. D.1, but the above document was executed at a time when the plaintiff was serving in the Rationing Department and related specifically to his employ ment as Assistant Ward Rationing Officer. Had the services of the plaintiff been dispensed with while he held that post, he would have had no just cause of grievance, but advantage, was not taken of the declaration at that time, nor were his services dispensed with when the Rationing Department was abolished. Instead the appellant was transferred to another department, and I agree with the Courts below that the operation of the declaration was thereby cancelled. The appellant‑defendant has failed to produce any other evidence that the plaintiff was employed in the Food Department on the terms that his employment might be terminated on one month's notice or less, and it follows that he cannot be considered as having subjected himself to any such condition. Mr. Mahmood attempted to argue that in spite of absence of any such condition in the plaintiff's terms of service, his services could be terminated on one month's notice or less merely by virtue of the fact that he was a temporary and not a. permanent Government servant, but it is much too late in the day to advance any such argument. In an unreported decision of this Court (Civil Miscellaneous No. 574 of 1955, decided on the 3rd of January 1956) a Division Bench, one of the members of which was the learned Chief Justice, remarked:‑-- "There is a volume of authority for the proposition that) section 240 of the Constitution Act makes no distinction between permanent and temporary servants of the Crown. Reference in this connection may be made, inter alia to l Ali Khan v. Province of the Punjab (AIR 1950 Lah. 59(SB): PLD 1949 Lah 219) and Muhammad Mukhtar Ahmad v. Mir Muhammad Hussain (PLD 1955 Sind 70(DB)). The correctness of this view seems to have been implicity accepted in Mrs. A. V. Issacs v. Federation of Pakistan (P L D 1954 Lah. 800 (D B)). Several cases have been decided in the Indian Dominion, which support this view, but it is unnecessary to consider those authorities". Since the above case was decided, there has been a most important pronouncement of the Supreme Court of Pakistan in, Civil Appeals Nos. 7, 8, 9, 10, 11, 12 and 13 of 1956, decided on the 1st June 1956 (4), in which the same principle has been re‑affirmed. At page 64 of the judgment, (P L D 1956 S C (Pak.) 331 at p. 373) Cornelius, J. remarked: "It seems to me that on the basis of the proviso to subsection (PLD 1955 Sind 70(DB)) and the provisions of subsection (P L D 1954 Lah. 800 (D B)) of section 241 (Government of India Act), it can be concluded beyond any doubt, that temporary servants whose appoint ments were of undefined duration are within the class whose conditions of service need to be prescribed by rule, and who must be provided with at least one appeal against any order of punishment censure, termination of appointment otherwise than by superannuation, and altera tion or interpretation to their disadvantage of any condition of service applicable to them". It is thus clear that the plaintiff‑respondent is entitled to the protection afforded by sections 240 and 241 of the Government of India Act, 1935. Mr. Mahmood attempted to argue that since the term "removal" used in section 277 of the Government of India Act and rule 14.10 of the Civil Services Rules, Punjab, Volume 1, Part 1, appears clearly to have been used ‑to signify removal for misconduct, the termination of the services of the plaintiff in the present case does not constitute removal, since action was not taken against him on the ground of misconduct. This contention purports to be based on such authorities as Chaudhary Muhammad Ismail v. Punjab Province (P L D 1956 Lah. 129) and an unreported decision of this Court in Regular First Appeal No. 65 of 1955, decided on the 16th of January 1956, but in drawing such a conclusion from the authorities in question, Mr. Mahmood is misinterpreting them. In Muhammad Ismail's case the question at issue was riot whether by using the expression "termination of service" instead of "dismissal" or "removal" a Government servant can be deprived of the protection afforded by section 240 of the Government of India Act, but whether the provision in rules 5.33 and 5.36 of Volume II of the Civil Services Rules, Punjab, enabling the Government compulsorily to retire a Government servant, who has completed 25 years qualifying service, amounts to removal. In the present case the plaintiff was not compulsorily retired on completing the said term of qualifying service, and the ruling in Muhammad Ismail's case is not in point. Similarly, in Regular First Appeal No. 65 of 1955, what was held by the learned Judges was that in section 241 of the Government of India Act the word "dismissal" has been used either as a formal punish ment by the employer or as a cause of just grievance given to the employee, and that in order to be a punishment or to furnish cause for just grievance only that termination of service can amount to dismissal within the contemplation of the act which is either unexpected or unforeseen, or curtails the period of service to which an employee is entitled as of right. Adopting the above criterion, the plaintiff‑respondent has a just cause of grievance. Since he had not bound himself by any condition that his services could be terminated on one month's notice or less, he was entitled as of right to continue in the post of Assistant Food Controller either until that post ceased to exist or until his service had been terminated in accordance with law. By removing him from service without assigning any reason for such a cause, the defendant deprived him of the right conferred by sections 240 and 241 of the Government of India Act, it being abundantly clear that the protection afforded to Government servants by the above constitutional provisions cannot be set at naught by substituting for the term "dismissal" or "removal" the neutral phrase "termination of service". Reference may again be made in this connection to the passage from Cornelius, J's. judgment already cited, in which it was specifically laid down that a try servant whose appointment was of undefined duration must be provided with at least one appeal against any order of termination of appointment otherwise than by superannuation. It may be added that in the present case, although the Punjab Province assigned no reason for dispensing with the plaintiff's services, the fact that a departmental inquiry was conducted against him shows that his work had not been considered satisfactory. Mr. Mahmood cited a number of other rulings, but they do not help him and it is unnecessary to discuss them in detail. I accordingly hold, agreeing with the Courts below, that the order in dispute offended against the statutory provisions A of the Government of India Act, 1935, and was illegal and void. Only one other point remains for decision, namely, the nature of the relief that should be granted. I am in full agreement with the Courts below in not giving the plaintiff a declaration to the effect that he is entitled to the emoluments of his post from the date of termination of his service to the date of his reinstatement, but I am further of the opinion that it is inadvisable to grant him a declaration that he remained an Assistant Food Controller on the date of the F institution of the suit. The question of the relief appropriate to such cases was considered by Cornelius, J. In the Supreme Court case above referred to and he remarked:‑ "As regards the other six appellants, Mr. Manzur Qadir was prepared to accept a slightly modified declaration of the kind which was awarded in the cases of L. M. Lall (PLD1948PC150) and Suraj Narain Anand (PLD1949PC1) and which, in my view, is better adapted for giving effect to conditions, affecting the possibility of termination of the services of the appellants, which may have arisen on a date subsequent to the 31st December 1951, viz., a declaration that the order of the 30th December 1952, dispensing with their services, was illegal, void and inoperative". Following the above observations, I modify the declara tion granted by the trial Court by deleting the reference to the continuation of his service. He is accordingly granted a declaration to the effect that the order in dispute was illegal, void and inoperative. The appeal is accepted to the above extent only and in the circumstances I leave the parties to bear their own costs in this Court. A. H. Order accordingly.