P L D 1965 (W (PLP)

The plaintiff‑respondent was appointed in 1946, as Supervisor in the Food Department with‑the condition that he could resign his service by giving one month's notice. He was a temporary employee because the Department itself was temporary. He was promoted in due course as Inspector in 1947. A declaration was signed by him on the 28th of May 1954, to the effect that he had noted that his appointment in the Food Department of the Punjab Government was temporary and that his services might be terminated by the appointing authority or the Govern ment on one month's notice or on payment of one month's salary in lieu thereof without assigning any reason. The Director Food, by his order, dated the 26th of October 1955, terminated his services in terms of the notice with effect from the 1st of November 1955. The plaintiff instituted a suit .for a declaration that the impugned order was in fact an order of dismissal and since he had not been given an opportunity to show cause against the action proposed to be taken, it was illegal, void and ultra vires. He also alleged that no action could be taken against him based on the declaration he had signed on the 28th of May 1954, for the reason that the declaration had been obtained from him under coercion and undue influence. It was further alleged that the condition to terminate his service by one month's notice was not in his original appointment order and the same could not be done subsequently as it would be against the provisions contained is Punjab Partition (Civil Services) Order, 1947. The defendant‑appellant traversed the allegations in their written statement. They pleaded justification for their action and denied the allegation of coercion and undue influence. The learned Civil Judge; by his order, dated the 3rd of, February 1958, decreed the suit holding that the impugned order was in fact an order of dismissal of the plaintiff. The appeal of the Government was dismissed by the learned Senior Civil Judge, Lahore, on the 16th of February 1959. This is the second appeal by the Government.

2. The learned counsel for the appellant argued that the respondent was a temporary employee, and his services could be terminated on one month's notice in terms of his contract. "In support of his contention he relied on Abdul Karim v. West Pakistan Province (P L D 1956 S C.(Pak.) 298), and also on decision in Re. Nurul Hassan and others v. Federation of Pakistan (P L D 1956 S C (Pak.) 331), Muhammad Husain Malik v. The Punjab Province (P L D,1957 Lah. 979), Federation of Pakistan v. Shamsul Huda (P L D 1957 Dacca 148), Pakistan and another v. Hedayat Ullah (P L D 1961 Dacca 29), Malik Muhammad Khalil v. The Government of West Pakistan (P L D 1959. Lah. 229) and Abdul. Ahad Khan v. Federation of Pakistan (P L D 1957 hah. 641) and contended hat the impugned order was an order of termination simpliciter of the respondent and did not amount to an order of removal or dismissal. There can be no: quarrel with the preposition that when a person is a temporary employee and his services are terminated in accordance with the terms of his contract by giving him one month's notice the order is neither one of dismissal nor a removal. The question which arises in the present case is whether the respondent was a temporary employee whose services could be brought to an end by giving him one month's notice.

3. The learned counsel for the respondent contended that the declaration signed by the respondent on the 28th of May 1954, was illegal and cannot in law be deemed to be a term and condition of, his service. The petitioner was appointed as a temporary employee in 1946, but his appointment was not made subject' to the condition that his services could be termi nated by giving him any notice. He was subsequently promoted as an Inspector in.1947, and again no such condition was imposed on him. The plaintiff‑respondent was a temporary, employee whose conditions of service could be regulated and determined by rules framed in accordance with subsection (2) of section 241 of the Government of India Act, 1935. It was only in the case of a temporary employee whose services could be terminated on one month's notice that the framing of such rules was not necessary under proviso to sub section (2) of section

241. Doubtless the plaintiff‑respondent had not been employed on this condition. The proviso was certainly not applicable to his case at the time of his appointment as Supervisor or his promotion as Inspector. His terms and conditions, therefore, could be regulated only by the rules to be made by the Governor of the Province or by some person or persons authorised by the Governor to make rules for the purpose. The respondent while continuing to be in the service of the Food Department signed the declaration referred to above. On analysis this declaration comes to this that it became a condition of the service of the respondent that his employment could be terminated on one month's notice. A question arises whether such a condition could be laid by the declaration of the respondent himself. It is provided by clause (b) of subsection (2) that in the case of persons serving in connection with the affairs of the Province the conditions of their services could be prescribed by the rules made by the Governor of the Province. The fact that a certain method was provided by the Constitution, for laying down the terms and conditions of service of persons serving in a civil capacity, clearly implies that the same could e not be done in any other way. The other methods of deter mining the conditions of service of such persons were, in my opinion impliedly prohibited. It is, moreover, a well‑established principle that if by an enactment something is desired to be done in a particular way it has to be done in that way or not at all. If the Government, therefore, wanted to impose any such condition on the respondent that his services could be terminated in a particular manner, they should have done so only by making the rules in this behalf and not by obtaining a declaration from the respondent. The declaration laid down a condition of service of the respondent and since it was by a method other than the one prescribed in clause (b) of subsection (2) of section 241, it is invalid and is of no legal effect.

4. There is another aspect of the case. The respondent was taken in service before Independence of 1947. He was a temporary employee but without a condition that his services would be terminated by one month's notice He, therefore, under the provisions of sections 240 and 241, had more protection and security of service than such a temporary employee. It was laid down in section 3 of the Punjab Partition (Civil Services) Order, 1947, that any person, who immediately before the appointed day was serving the Punjab Province as an official, shall, with effect from the appointed day (i.e., the 14th day of August 1947), be entitled to receive from the Government of new Provinces the same conditions of services as regards rights and disciplinary matters or as the case may be in respect of the tenure of his office, or rights as similar thereto as changed circumstances may permit, as that person was entitled to immediately before the appointed day. That being the case, the respondent could not be subjected to a condition that his services could be terminated on one month's notice. The declaration obtained from him, therefore, tantamounts to violating the safeguards provided to him in the Punjab Partition (Civil Services) Order, 1947. I am, therefore, of the opinion that the condition imposed on the respondent was not valid in law and the same is without lawful authority and of no legal effect.

5. It was also argued by the learned counsel for the respondent that a declaration was obtained from the respondent on the 25th of May 1954, under coercion. Muhammad Ismail Clerk (P. W. 4) and the plaintiff respondent himself appeared as witnesses to prove this allegation. Major Muhammad Sharif stated that he was Rationing. Controller, Rawalpindi, in 1954, and these declarations were taken under orders which had been received from the higher 'authorities. He also stated that the plaintiff refused to 'sign the order in the beginning: As against this, the defendant‑appellant produced Muhammad Zahoor‑ud -Din as D. W. that .no pressure was put on any person to sign these declarations. As between the parties there was undoubtedly a relationship of master and servant. The appellant, therefore, had a real authority over the respondent and by virtue of sub section (2) of section 16 of the Contract Act, the appellant was deemed to be in a position to dominate the will of the respondent. In such a case, according to clause (3) of section 16, where a person, who is in a position to dominate the will of others, enters into a contract with him and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. The declaration signed by the respondent is in the nature of a contract. By this contract, the respondent subjected himself to a liability. There can be no denying the fact that the tenure and security of service is a very important aspect for a public servant. He would not like to impair it unless under compelling circumstances. The position of the respondent under the Government of India Act, 1935, before signing of the declaration was that he could not be removed from service unless in due compliance with the provisions of section 240 (3). After the declaration, his services would be terminated by one month's notice. It was, undoubtedly, a substantial change in the conditions or tenure of his service. Since the appellant was in a position to dominate the will of the respondent, the presumption was against them and it was for them to have proved that it was not induced by undue influence. The appellant, however, have failed to do so. I can, nonethe less, visualise certain situation where, in similar circumstances a superior authority could dictate a person to sign a declaration indicating that on his failure to do so, he being temporary employee, his services may be dispensed with. If the respondent and the persons, in similar circumstances, had signed the declaration in ignorance of their rights as temporary employees, it would not be surprising for the reason that the question as to the rights of temporary employees had been a vexed question and had not been crystalized beyond doubt until the decision in Re. Nurul Hasan v. Federation of Pakistan. The declaration signed by the respondent presumably seems to be under the undue influence of the Government or its agents and is, therefore, bad in law. .

6. The declaration signed by the appellant is invalid for the above reasons. The position of the respondent, therefore, was that he was holding a temporary post in Food Department at the time the impugned order was passed against him. Admittedly, his services were dispensed with on account of an alleged misconduct. The appellant, in paragraphs 4 and 5 of the written statement, has admitted that there were allegations against the honesty, integrity and efficiency of the plaintiff -respondent and so his continuance in the Department was considered undesirable. What happened in this case was that there was an allegation against the plaintiff‑respondent that had received a than of cloth from some shop‑keeper. On the suggestion of the Directorate of Food (Exh. P. W. 1/3), the District Magistrate, Rawalpindi, ordered an enquiry against III respondent. The Ward Rationing Officer after an enquiry submitted his report and recommended that an adverse entry be made in the respondent's personal file. The Rationing Controller, however, proposed that increment of the respondent for one year be stopped. The District Magistrate in forwarding the file to the Director, Food and Purchases recommended that the services of the respondent be terminated with immediate effect. On these recommendations, the Director Food passed an order (Exh. P. W. 1/2), dated 21st of October 1955, which became the basis for the impugned order, dated the 26th of October 1955. The reason for dispensing with the services of the respon dent was, obviously, a misconduct. The order was thus an order of dismissal. The respondent had not been afforded an opportunity to defend himself. He was not given any notice to show cause against the action which was proposed to be taken against him. The provisions of section 240, clause (3) had thus been contravened in the case of the respondent. It was held in Yusuf Ali Khan v. The Province of Punjab (P L D 1949 Lah. 219), Noor‑ul‑Hassan v. Federation of Pakistan (P L D 1955 Sind 200), Noor‑ul‑Hassan and others v. Federa tion of Pakistan, Punjab Province v. Syed Athar Ali (P L D 1956 Lah. 886) and Muhammad Moslemul Haque v. Commissioner of Income‑tax East Pakistan (P L D 1963 Dacca 175), that the provisions of section 240 of the Government of India Act were applicable to temporary employees also, The impugned order, since it tantamounts to an order of dismissal and has been passed in violation of section 240, clause (3), is illegal and wrongful.

7. In the result, I find no merit in this appeal which is dismissed with costs. Appeal dismissed.