P L D 1961 Dacca 29 (PLP)

AKBAR, J.‑The plaintiff, Muhammad Hedayetullah, was appointed a Tally Clerk in the E. B. Railway in 1943. In 1953, when he was working as a Transhipment Clerk at Bhairab Bazar, he received the following letter, dated 12th December 1953, from the Chief Traffic Manager, E. B. Railway: "As your services are not required by the Administration with effect from the forenoon of 21st December 1953, you are hereby removed from service by my order in terms of the conditions of your service with effect from that date, and you will be given one month's pay in lieu of notice as provided for therein. Your services will accordingly terminate from the forenoon of 21st December 1953."

2. He then appealed to the higher authority against the aforesaid order but failed to get any relief. He, therefore, served a notice on the General Manager of the Railway, and then filed this suit for a declaration that the order of dismissal was illegal, and that he was still in the service of the Railway.

3. The Railway Administration contested the suit by filing a written statement. Their main contention was that the plaintiff's work was considered as unsatisfactory, and hence his services were terminated by a competent authority.

4. The learned Munsif, who tried the suit, found that as no opportunity was given to the plaintiff to show cause, his dismissal was illegal. He, therefore, decreed the suit. The defendant Railway then appealed against the judg ment and decree of the learned Munsif. The learned Subordinate Judge, who heard the appeal, found: (1) That the plaintiff was a temporary employee; (2) That the plaintiff was appointed by the Deputy General Manager, and hence the Chief Traffic Manager was not compe tent to remove him from service; (3) That section 240 of the Government of India Act would be attracted even if a temporary servant was dismissed for misconduct, and hence the order terminating the service of the plaintiff was illegal; and (4) That the appeal was barred by one day and that appellant was not entitled to get an extension of time under section 5 of the Limitation Act.

6. In this view of the matter, he affirmed the judgment and decree of the learned Munsif, and dismissed the appeal with costs.

7. Mr. Syed Mahmud Hossain, the Government Pleader, has contended that the plaintiff was a temporary employee, and the Administration was, therefore, entitled to terminate his services on giving him a month's salary in lieu of notice. He has further contended that section 240 of the Government of India Act had no application to the present case. Mr. Islam, on the other hand; has contended that the plaintiff was served with a charge‑sheet, and his explanation was not accepted, and hence the provisions of section 240 would be attracted to this case. In support of his contention he has relied on the decision of the Supreme Court in The Federation of Pakistan v. Mrs. A. V. Issacs (P L D 1956 S C (Pak.) 431)‑

8. In the above case, Munir, C. J., observed (at page 437) "A regular charge‑sheet was served on her on the 12th Janu ary 1949, and, she having failed to defend herself at the enquiry, the order of discharge was passed on the 18th March 1949. In the written statement filed by the appellant it was admitted that by her conduct the respondent had rendered herself liable to disciplinary action, that her written defence, dated the 17th January 1949, was considered and rightly rejected by the Divisional Superintendent, Karachi, and that she was discharged from service under the powers vested in the Divisional Superin tendent by paragraph 1705 of the S. R. E. Code. This para graph specifies the officers who are competent to impose penalties after taking disciplinary proceedings against delinquent employees. If the order had‑ been one of termination of service in accordance with the respondent's conditions of service on the ground that she was a temporary servant, she could have had no right of appeal against that order. We find, however, that she not only appealed from the order, but the appellate authority entertained the appeal, and dismissed it on the merits describing the order of discharge as an order of removal from service. It is not the Federation's case that the proceedings started against her under the charge‑sheet served on her on the 12th January 1949, were dropped, and that the Department decided to adopt the alter native mode of dispensing with the respondent's services in accordance with the conditions of her service by giving her notice. We are, therefore, quite clear that the order of discharge was an order of dismissal within the meaning of section 240 of the Government of India Act and that, if the opportunity required by that section was not given to the respondent in the manner laid down by the Privy Council in Lall's case the 751 A 225‑‑‑P L D 1949 P C 150 order of dismissal would be void irrespective of whether the respondent was a permanent or a temporary employee." Now, in the present case, the plaintiff did not say a word about service of charge‑sheet on him in the plaint. His case in the plaint was that the order, dated 12th December 1953, dismissing him from service was illegal.

9. The Railway Administration, in their written statement, stated : " . . . . . . The work of the plaintiff was not considered satisfactory and his services were terminated by the competent in authority, exercise of the powers conferred on him, and hence the plaintiff has no cause of action."

10. Only the plaintiff gave evidence in this case. In examination‑in‑chief, he says "No charge‑sheet was drawn against me. No proceeding was drawn against me." In cross‑examination, when he was confronted with a charge‑sheet, he stated "I received a charge‑sheet order, and I submitted my expla nation." The said charge‑sheet, Exhibit A, was served in May 1953, on receipt of a complaint, Exhibit B, from one Abdur Rahman Munshi, and the plaintiff submitted his explanation. Mr. Nurul Islam has contended that as a charge‑sheet was served on the plaintiff the above observations of the Supreme Court are appli cable to this case. In Mrs. A. Y. Issac's case, not only a charge -sheet was served on her, but the Railway in the written statement admitted that her explanation was considered unsatisfactory, and that the Divisional Superintendent in discharging her from service acted within the power vested in him in paragraph 1705 of Discip line and Appeal Rules. Here, however, the facts are otherwise It was not the plaintiff's case that he was served with a charge -sheet, and that the order of discharge was not in accordance with Discipline and Appeal Rules. Nor has the Railway stated in their written statement that any action was taken against him under the Discipline and Appeal Rules.

11. The charge‑sheet filed in this case merely shows that on ‑receipt of a complaint from one Abdur Rahman Munshi the plaintiff was charge‑sheeted in May 1953. There is, however nothing to connect the impugned order, dated 12th December 1953, with the charge‑sheet, Exhibit A. The plaintiff, as a matter of, fact, at first denied receipt of any charge‑sheet and hence it was not his case that this order w as made under the Discipline and Appeal Rules. On the other hand, the order dated 12th December 1953, shows that the action had been taken against the plaintiff in terms of the condition of service. The letter, Exhibit C, by which the plaintiff was given a temporary post, says "You will not be entitled to any notice of termination of service if such termination is due to the return of the permanent incumbent from leave, or to the expiry of the sanction to the post which you will hold, or to your mental and physical incapa city or to your removal or dismissal from service for serious misconduct. If the termination of your service is due to some other cause, you will be entitled to a notice of 24 hours or pay in lieu thereof." In these circumstances, we are unable to accept the contention of Mr. Islam that the order against the plaintiff was passed under the Discipline and Appeal Rules, and, therefore, section 240 of the Government of India Act, would be attracted to this case. On the other hand, on the pleadings and evidence, we are inclined to think that the proceeding, which was started in May 1953, was dropped, and the Department decided to adopt the alternative mode of dispensing with the plaintiff's service in accordance with the con dition of his service.

12. For the reasons stated above, we are of opinion that the order terminating the plaintiff's service was legal and proper.

13. The next question is whether the Chief Traffic Manager was competent to terminate the services of the plaintiff. The Government Pleader has drawn our attention to Appendix XX of Pakistan Railway Establishment Code, Vol. I, to show that the Chief Traffic Manager occupies a senior administrative post in the Railway, whereas the Deputy General Manager occupies a junior administrative post in the said Railway. He has, therefore, contended that the Chief Traffic Manager was quite competent to terminate the services of the plaintiff.

14. Rules 135 (c) of the Railway Establishment Code, Vol. I, shows that the General Manager or a lower authority to whom he may delegate power is competent to make first appointment in Pakistan Railway. Now, the plaintiff did not make out a case specifically in the plaint that the Chief Traffic Manager was not competent to discharge him from service. Hence, no issue was raised on this point, and the trial Court, therefore, did not decide that question. The first Appellate Court, however, found that the Chief Traffic Manager was not competent to terminate the service of the plaintiff. If this question of competency of the Chief Traffic Manager to issue the order of removal was raised before the trial Court, the defendant could have adduced evidence to show that the Chief Traffic Manager was competent to pass the aforesaid order. We shall, therefore, remit the case to the learned Munsif for a decision on this point.

15. We have already found that the Railway Administration was competent to terminate the service of the plaintiff after giving one month's pay in lieu of notice. If the learned Munsif finds that the Chief Traffic Manager was not competent to issue the order terminating the service of the plaintiff, he will decree the suit. If, however, his finding is otherwise, he will dismiss the suit. The parties will be at liberty to adduce fresh evidence on the question of competency of the Chief Traffic Manager to dismiss the plaintiff.

16. In the result, the appeal is allowed, and the judgments and decree of the Courts below are set aside, and the case is remitted to the trial Court for disposal in accordance with law, and in the light of the observations contained in the judgment. Each party will bear its own costs up to this Court.

17. Before leaving this case, we may observe that the first Appellate Court found that the appeal was presented in that Court one day out of time. In view of the decision in Nazir Ahmed v. Province of East Bengal ((1953) 5 D L R 265), the Court was unable to condone this delay of one day.

18. In the above case, Shahabuddin, C. J., approved the following rule laid down in Highton v. Treherne (L J 48 K B 167): "In cases where a suitor has suffered from the negligence or ignorance or gross want of legal skill of his legal adviser, he has his remedy against that legal adviser, and in the meantime the suitor must suffer. But where there has been a bona fide mistake not through misconduct nor through negligence nor through want of reasonable skill, but such a skilled person might make. I very much dislike the idea that the rights of the client should be thereby forfeited. It seems to be obvious that the Court has jurisdiction to enlarge the time under some circumstances. Therefore, why not on present occasion? It has been said that when the time for appealing is past the person who would be respondent has a vested right to retain his judgment. But obvi ously it is not an absolute right, and I am perfectly confident that the practice of all the Courts has been to treat it not as an absolute right, though the Courts are chary of enlarging the time when the time allowed by the rule has run out." On the facts of the case, the learned Chief Justice came to the conclusion that the lawyer was guilty of negligence, and hence he did not condone the delay of 30 days.

19. In Highton v. Treherne, the Court, however, clearly pointed out: "But where there has been a bona fide mistake not through negligence nor through misconduct nor through want of reason able skill, but such as a skilled person might make, I would very much dislike the idea that the rights of the client should be thereby forfeited." In the instant case, there was a delay of one day in filing the appeal. It was due to the lawyer's bona fide mistake in calculating the last date of filing the appeal. Hence, in our opinion, the learned Judge was not justified in rejecting the prayer for condo nation of delay of one day in filing the appeal. CHAKRABORTI, J.‑I agree. K. B. A.