P L D 1964 Supreme Court 68 (PLP)

CORNELIUS, C. J.‑This appeal by the Central Government of Pakistan is brought by special leave to call in question a decree awarded to the respondent Abdul Ghani to the effect that termination of his services as a General Mechanic Instructor in the Technical Training Centre at Karachi by a moth's notice issued on the 23rd December 1948, was void and inope rative. The decree was awarded by a Subordinate Judge at Karachi whose judgment contains the following findings, viz :‑ (1) in the absence of the letter of appointment, no reliance could be placed upon either a directive issued by the relevant department on the 16th April 1943, that appointments in the Technical Training Centre were temporary and terminable on one month's notice, or on a Training Circular of the 14th March 1947, based on the failure to inform new appointees under the Scheme that the posts held by them were "tempo rary and liable to be terminated on one month's notice on either side" ; but (2) in fact, the circular mentioned above was an indication that in order to make the condition of a month's notice effective, it was necessary that it should be expressly brought to the attention of each employee, and he should give a written undertaking (sic) to be bound by it. The trying Judge apparently overlooked a third piece of documentary evidence on the subject which had been placed before him by the Government, namely, a Training Manual of 1943, which contained a provision that "technical instructors appointed to the Central Government are in temporary posts and their services may be terminated on one month's notice". The trying Judge also placed reliance upon the written statement of the Government wherein, contending that the plaintiff was not entitled to any relief, it was asserted that his removal by notice had been the "most lenient action that could be taken against the plaintiff for his conduct and repeated misbehaviour". Basing upon this averment, the trying Judge held that the termination of services was for misconduct and misbehaviour and therefore the provisions of section 240 subsection (3) of the Government of India Act 1935, were attracted, viz., that the plaintiff should have been given a reasonable opportunity to show cause against the action proposed to be taken in regard to him. There was an appeal to the District Judge. Reference to the entry in the Training Manual, and that it had been overlooked by the trial Judge was made in the grounds, but the point finds no mention in the appellate judgment, which was one of dismissal of the Government's appeal, for reasons which were, in mate rial respects, a repetition of those which had found favour with the trial Judge. A second appeal was moved before the High Court, and was dismissed by a learned Single Judge. The learned Judge mentioned that "the main contest in the case was whether the respondent was governed by contract of which one term was that his service could be terminated by one month's notice", and observed that the finding of the two Courts below in respect of this question was a "finding of fact" which he, in the High Court had no jurisdiction to displace. Although the Training Manual of 1943, was again specially stressed in the grounds of appeal to the High Court, no mention of it was made in the judgment, which considers the treatment by the Courts below of the directive of 1943, and the circular of 1947, and proceeds to observe that the inference drawn by the Courts below "that the condition of affairs revealed as regards new appointments under the Postwar Resettlement Training Scheme may well have been the same in respect of appointments at the time (1944), when the respondent was appointed" was conceivably warranted by law. He went on to say that the judgments of the Courts below seem to proceed on the basis that "a contract is a matter of agreement, and that unless one party has special terms brought to his notice, those special terms cannot be deemed to be part of the agreement" and held that this was a correct prin ciple, and it was for the Government to establish that the contract of service provided for a month's notice, and this had not been done. Accordingly the appeal was dismissed and upon application by the Government leave was granted by this Court to consider whether the Courts below had acted rightly in refusing to give effect to the provisions in the Manual mentioned above which clearly laid down in respect of employees of the class to which Abdul Ghani belonged that they were temporary and subject to discharge on a month's notice. It had been urged before the Court that a person who had performed the whole of his service in that department could hardly be allowed to repudiate the conditions laid down in the Departmental Manual. The learned Attorney‑General had repeated this argument before us, and has attempted to show that the flaw in the judgments of the first two Courts was not one of fact but of law. There had been a basic error made which was common to all three judgments hitherto pronounced, namely, that each Court had thought in terms of there being a contract of service between the Central Government and Abdul Ghani. There is of course always a contract whether express or implied between a master and a servant, but it is well recognized, as a result of a series of judgments pronounced in cases of employees of Governments in India, that a great number of Government servants in the various departments were constituted into services, and the con ditions of those services were not settled by the method of individual contracts, but were contained in sets of rules appli cable, some to all employees generally, and some according to their grades. There was no suggestion in this case that in the Postwar Resettlement Scheme of which the Technical Training Scheme formed a part, engagement of personnel had been on the basis of individual contracts. Abdul Ghani joined as a temporary artisan instructor at Rs. 60 a month on the 1st February 1944, and by the date of his removal on the 26th January 1949, he was earning a salary of Rs. 100 p. m. No letter of appointment was produced by him and none was produced by the Government, but that is wholly insufficient material for founding a conclusion that there was in fact a written contract of employment between him personally and the Government. Where a service is con stituted for a particular department, unless it is covenanted, there is ordinarily no document executed as between the Government and the employee. There is a selection, and the selected person is informed that he has been selected for the service and is required to join at a particular place, on or before a specified date, to assume his duty. From that time he is assumed to be governed by all the rules relating to the service which he had accepted, whether he is aware of them or not. So far as we are aware, service in the Railways of India (and now Pakistan) is unique in that although the employees are constituted in a service divided into a number of classes, yet each employee was also issued with a contract of employment, which contained provision for termination by notice. The fraction has been found to descend from the period when the railways were either owned or operated, or both, by public companies and the practice was then established of issuing an individual contract of service to all employees at the time of appointment. That is not the general practice with regard to entry into Government service in other departments. If there were such a rule or practice in respect of the Technical Training Service, a provision on the point would presumably be contained in the Manual aforesaid, and it appears to be most probable that there was no such pro vision. The directive upon which the Government relied was issued on the 16th April 1943, and was clearly to the effect that all appointments under the said Scheme were temporary and terminable on one month's notice. The Technical Training Manual was issued in the year 1943 and the date of its publication b is admitted in the concise statement of the respondent in ground No. 2 to be the 15th July 1943. Both these dates are so closely proximate and in advance of the date of the respondent's own appointment, viz., the 1st February 1944, that there can be clearly no question but that his entry into the service which was being constituted for providing technical training under the Postwar Resettlement Scheme was governed by the terms and conditions contained in the Manual, including the condition of being remov able on one month's notice. As for the circular issued on the 14th March 1947, all that it provided was that a precaution should be observed, namely, that new appointees under the Postwar Resettlement Scheme should without exception be made personally aware of the terms of their service. This has been construed by the Courts below as having the effect of making such an intimation necessary in order to make the terms themselves effective. Such a view can only be based upon a serious under valuation of the effect upon the conditions of service of persons appointed under the Scheme, of the provisions contained in the Manual of the department, as well as the directive. The circular issued in 1947 is to be construed as a precautionary measure to prevent the possibility of the employees in the department either individually or generally attempting to set up claims to be perma nent servants under the Government. On the view we take, it is clear that the finding of the first two Courts that the respondent's service was based upon a contract and that it had not been proved that one of the terms of that contract was that his service could be terminated by a month's notice, is based upon misconception regarding the nature of his service and the error in reaching that finding is not thus an error of fact, but quite clearly an error of mixed fact and law which the learned Judges of the High Court were competent to correct. There was no necessity for the Government to establish that there was a "special term" of a month's notice included in Abdul Ghani's "contract of service", because in fact there was no such contract, but only acceptance by Abdul Ghani of service in a department and in a grade with respect to which general instructions had been issued in a printed Manual that it was firstly temporary and secondly, that it was terminable on a month's notice. Because in Abdul Ghani's record of service it is entered throughout that his service was temporary, that has been accepted by him. The other term could not be expected to appear in any particular document relating to Abdul Ghani, for probably there was no individual contract executed between him and the Government, but on the contrary such a term is to be read in relation to his employment, by virtue of his having accepted a post in a department in which the term was applicable to all employees. It does not appear that the Manual was published under section 241 of the Government of India Act, but that was not requisite, since all appointments to which it related were both temporary as well as, terminable on a month's notice vide the proviso to subsection (2) of section 241 aforesaid. But the Manual is an official publication, and the term in question is expressed with precision to be of universal application to all. appointments under the relevant Scheme. Consequently, there need be no hesitation in holding that this condition of service is not a mere "office instruction", but is of binding effect in relation to all those who accepted service in the Postwar Resettlement Department. See the case, of Pakistan v. Abdul Hamid (P L D 1961 S C 105). The point raised under section 240, Government of India Act, was founded on a statement made only by the Government in the capacity of a defendant. It was not part of the, plaint, and was never adopted by the plaintiff formally as a ground of attack upon the order of dismissal. The discussion of this point contained in the judgments of the Courts below, in so far as it favours the claim of the plaintiff, is therefore outside the case set up by the plaintiff himself, and cannot be allowed. Mr. G. Safdar Shah for the respondent attempted to argue that the provisions contained in the Manual and the directive were not statutory rules, and therefore they should have been brought to the notice of the employees individually in order to be effective as against their interest. We do not consider that there is any force in this argument. It appears the whole department was constituted of officers and staff in temporary employment, and the rules governing that employment were consolidated into a Manual of general application from the provisions of which it is not possible for any employee in that department to escape by such a contention. Mr. G. Safdar Shah also referred us to the judgment of the trial Court, where reliance was placed on a short passage from a judgment of the Chief Justice in the case, Federation of Pakistan v. Fayyaz Ahmad (P L D 1958 Lah. 500), reading as under :‑ "The position would be the same if instead of a contract, the terms of service contain such a clause and these terms are accepted by the appointee on his first appointment." The trial Judge bad based on this passage the conclusion that it was the duty of the Government to prove that this condition was accepted by the appointee at the time of appoint ment. In fact, the case before the High Court at Lahore was one affecting a railway servant, whose service was governed by a contract executed between himself and the Secretary of State, and the observation reproduced above would seem therefore to be obiter and consequently not to lay down any binding rule of law. At the same time, there can be no question but that where the terms and conditions of an employment in a particular service are set out in a Manual governing such matters in respect of the entire department, the person accepting employment in that department must be deemed to do so on the terms and conditions so appearing. Indeed, it is inconceivable that every single term and condition affecting the service of a person whose employment is governed by e.g., the Civil Service Rules as well as the Funda mental Rules and finally the Special rules of his own department, should be brought expressly to the notice of each person employed in that department. But nevertheless each rule in these multifarious rules is binding upon every entrant. Therefore the passage from the judgment of the learned Chief Justice cited above, cannot be construed to require that entry into a newly constituted service governed by the general rules of service as well as by its own special rules duly promulgated, should be accompanied by a direct and express intimation to the entrant regarding every single condition that is to be applicable to him, in order to make such application effective. Some reference was made to the case of Ghulam Sarwar v. Pakistan (P L D 1962 S C 142), but between that case and the present case, a major difference is that Abdul Ghani's appointment was to a temporary post, in a temporary service, which had been set up to facilitate the re‑absorption and rehabilitation in civil life of the great numbers of military personnel who were demobilised at the end of the Second Great War. Ghulam Sarwar held a permanent post in a permanent service, and it was held that his removal by notice under his personal contract amounted to removal, requiring compliance with the provisions of section 240 (3) of the Government of India Act. The case is quite different here. Mr. G. Safdar Shah attempted to support the conclusion of the learned Single Judge in the High Court that the case was concluded by a finding of fact reached by the Courts below, but in our view, there can be no doubt whatsoever of the error in the case being one of law or at the least one of mixed fact and law. We accordingly allow this appeal and setting aside the declaration awarded to the respondent direct that the suit be dismissed, but in view of the circumstances of the case, we direct that the parties will bear their own costs. A. H. Appeal allowed.