P L D 1954 Lahore 800 (PLP)

B. Z. KAIKAUS, J.‑This is an appeal in forma pauperis by Mrs. A. V. Isaacs who was a nurse employed by the North Western Railway against the decree of Mr. Tufail Ahmad, Sub Judge First Class, Lahore, dismissing on preliminary issues her suit for a declaration that her dismissal was void and for some connected reliefs. The plaintiff alleged in the plaint that she had been appointed a nurse by the General Manager, N. W. R., on the 26th of April, 1940, and had been performing her duties dilig ently. Some forces (not specifically mentioned) began to work against her in 1947 with the result that she was served with a charge‑sheet on allegations which were altogether untrue, and without proper enquiry she was dismissed from service on the 5th of January, 1948. Her appeal against this order succeeded and she was reinstated. The official odium resulted in a second charge‑sheet but she was exonerated again. However, she was transferred from Lahore to Karachi in spite of the fact that her husband was posted at Lahore and it was the policy of the Railway Administration not to separate a husband and wife. She appealed against the order of transfer and also applied that the amount due to her on account of some allowances be paid so as to enable her to proceed to Karachi. While her appeal against the order of transfer was still pending, she received a charge‑sheet calling upon her to explain her absence from duty and without a proper enquiry she was discharged from service on 18th of March, 1949, by the order of the Divisional Superintendent, Karachi. It was alleged further that the plaintiff having been appointed by the General Manager could not have been removed from service by the Divisional Superintendent. On these allegations the order of dismissal was impeached as illegal, inoperative and void. The reliefs claimed were:‑ (1) a declaration that the plaintiff continued to be a nurse as the order of dismissal was inoperative and void, (3) arrears of salary and allowances at the rate of Rs. 202/5/‑ per mensem amounting to Rs. 3,195‑3‑6, (3) average pay for the future period of twenty‑one years for which she was to remain a nurse at the rate of Rs. 202/5/ per mensem amounting to Rs. 50,982‑12‑0 and (4) Rs. 5,000 as damages for vexation, mental worries, loss of status, etc. The Federation of Pakistan replied that the plaintiff had absented herself from duty and was legally and properly dismissed. The Divisional Superintendent, it was stated, had authority to dismiss the plaintiff. The Federation also raised preliminary objections which it will be convenient to quote verbatim :‑ (1) The suit does not lie against the Dominion of Pakistan under section 79 C. P. C. (2) The Civil Courts at Lahore have no jurisdiction to try the suit. (3) That no valid notice of suit under section 80 C. P. C. has been served and as such the suit is not tenable. With out prejudice to the above if it is proved that any notice is duly served its validity is denied. (4) That the suit for damages or arrear of pay is not competent in law and so far it does not lie. (5) That otherwise the plaint does not disclose any cause of action and the suit is liable to be dismissed as the Civil Courts have no jurisdiction to decide the validity of executive orders complained except in the limited sense under section 240, Government of India Act, 1935. The first of these objections was given effect to and in the cause title the Federation of Pakistan was substituted for the Dominion of Pakistan. With respect to the remaining preliminary objections the following preliminary issues were framed:‑ (1) Has this Court jurisdiction to hear this suit ? (2) Did the plaintiff give valid notice under section 80 C. P. C., to the defendant ? (3) Is the suit for damages and arrears of pay competent according to law ? (4) Has this Court no jurisdiction to entertain the question of validity of the orders, which are the subject matter of this suit ? The first issue was found in favour of the plaintiff. On issue No. 2 the notice was found to be invalid. On issue No. 3 a suit for damages and arrears of pay was found to be incompetent. On issue No. 4 the learned Sub judge found that the plaintiff was only a temporary employee and her services could be terminated at any time. There was, there fore, no right of suit under section 240 of the Government of India. Act which related only to permanent employees. With respect to the allegation that the conduct of the railway officials was vindictive or capricious, the learned Sub judge found that the plaintiff had not made any statement in the witness‑box to that effect. On these findings he dismissed the suit. I will take up first the question of the validity of the notice under section 80 C. P. C. The learned Sub judge has found the notice to be invalid on two grounds. The first is that it does not refer to a suit against the Federation of Pakistan but to a suit against the North Western Railway. This ground has not been relied upon before us by the respondent and, therefore, need not be gone into. The second ground is that the reliefs claimed in the plaint go beyond those claimed in the notice. It will be convenient to refer here the last three paragraphs of the notice which run as under :‑ "(11) That without considering my client's application for `Leave Preparatory to Retirement she was discharged from her service by the Divisional Superintendent, Karachi on 18th March, 1949, even without having any jurisdiction in this respect. (12) That my client appealed against this arbitrary order of discharge by the Divisional Superintendent, Karachi, but her appeal was dismissed by the General Manager on 9th July, 1949 (received on 14th July 1949), thus giving rise to the legal notice in hand. (13) That from August, 1948, up to 14th July, 1949, when her appeal was dismissed my client has not been paid her salary which amounts to Rs. 1,080/‑. I have therefore been further instructed by my client to give you notice under section 80, C. P. C., to the effect that unless you pay her average pay for the remaining period of 21 years of her service which amounts to Rs. 23,360/‑ plus Rs. 5,000 as compensation for vexation, mental worry, loss of social status and economic distress caused by the illegal acts of the Railway Department in respect of my client and Rs. 1,080/‑ for the period, August, 1948, to 14th July, 1949, all of which sums amounts to Rs. 31,420 within two months of the receipt of this notice my client shall be constrained to file a suit against the North Western Railway, for the costs of which suit the Railway Department shall be entirely responsible. Of this please take notice." The objection taken on behalf of the defendant‑respondent is that the relief of declaration as to the order of dismissal being void and the plaintiff still being in the service of the N. W. R. is not mentioned in the notice and the amounts now claimed for arrears of pay and future salary are larger than those mentioned in the notice. There is no doubt that the relief of declaration is not referred to in the notice. The order of discharge is, however, described as without jurisdiction in para. 11 and the other reliefs claimed arise out of illegality of the order of discharge. The notice does make it clear that the order is being impeached as illegal and without jurisdiction, although it does not say that a declaration to this effect would be claimed. So far as the amounts of past and future salaries are concerned, learned counsel for the plaintiff‑appellant explains that the mistake in the notice as to the amount is due to a slip. I would accept the explanation because no other hypothesis has been put forward by the respondent which may explain the figures mentioned in the notice, and because the plaintiff's salary apart from the allowances at the time of discharge was Rs. 160/‑ even according to the written statement. The plaintiff had made it clear in the notice that she was claiming her pay for 21 years. On no calculation can this amount be Rs. 25,360/‑. Considering that the salary was admittedly Rs. 160/‑ and that the defendant has not thought fit to state the amount of allowances which according to the plaintiff were Rs. 42‑5‑0 per mensem it would appear that Rs. 50,982‑12‑0 is the correct amount which could by arithmetic calculation have been determined by the defendant. Similar is the case with respect to arrears of salary and allowances. I have already explained in Federation of Pakistan v. Muhammad Iqbal (P L D 1953 Lah. 460.) with reference to the judgment of their Lordships of the Privy Council in Union Steamship Co. of New Zealand v. Melbourne Harbour Trust Commission (1884 A C 365,) and other authorities that notices of action are not to be strictly construed like pleadings. The question always is whether the notice informed the defendant of the substance of the plaintiff's claim. No mere slips and errors which do not mislead or prejudice the defendant can invalidate the notice. I have already discussed the matter in the case mentioned above and do not feel the need of further discussion here. I would hold that the notice was under the circumstances valid. I will next take up issue No.

4. The learned Sub Judge found this issue against the plaintiff on the ground that she was a temporary employee. In so doing the learned Sub judge made out a case for the defendant which was not contained in the written statement. Issue No. 4 was obviously framed in order to cover the preliminary objection contained in paragraph 5 of the preliminary objections which I have already quoted. The paragraph contains no assertion that the plaintiff was a temporary employee and contains only a general objection that Civil Courts cannot go into the validity of executive orders except in accordance with section 240 of the Government of India Act. If it was the position of the defendant that the plaintiff was a temporary employee the defendant should have taken a specific plea on this ground and if this fact was found in favour of the defendant the proceedings may have been cut short. It is urged on behalf of the respondent that the plaintiff had herself relied upon the order of the 26th April, 1940, as the order by which she was appointed, and that as that order only grants her a temporary appointment there was no need to make an express allegation as to the plaintiff being a temporary employee. It is urged further that the defendant had sufficiently alleged this fact in para. 3 of the written statement which said "she took charge on 29th of April, 1940, as a temporary nurse". Both these contentions are without force. As for the position of the plaintiff herself it should be clear on a reading of the plaint that she was not putting forward any case of temporary appointment. She had claimed future salary for 21 years which means she regarded herself entitled to put in 30 years' service, she having completed about nine years when she was discharged. She had in paragraph 18 of the plaint alleged that on account of the attitude of the officers she was forced to apply for premature retirement which can only happen in the case of a permanent employee. She had claimed rights with respect to gratuity and provident fund, etc. It is evident on reading the plaint and the reliefs for which the plaintiff prays that she is claiming to be a permanent employee. Yet the defendant never objected that she was not a permanent employee at all and, therefore, had no right of suit. In reply to paragraph 18 wherein she had referred to premature retirement, the defendant never pleaded that the question of premature retirement would not arise, for she was not one of those employees who retire. No evidence was led by the defendant to show that she was a temporary employee. On the other hand, with respect to the personal file of the plaintiff: which she had summoned the defendant claimed privilege. It is the plaintiff's case that the personal file would make it clear that she was a permanent employee and it was being suppressed for this purpose. Before us two ration cards of the plaintiff issued by the defendant have been produced which say she is a permanent employee. We gave the learned Advocate‑General who appeared for the respondent an opportunity to explain these ration cards. The only explanation given is that the plaintiff might have got such ration cards with these words issued. The plaintiff is admittedly a contributor to the provident fund. Really it is not proper at all for the defendant to put forward this plea, for nobody has on behalf of the defendant made either a verified statement or a statement on oath in the witness‑box that the plaintiff is a temporary employee. The defendant cannot be allowed to take a plea of fact for which nobody on its behalf is prepared to take the responsibility of making a verified statement or a statement on oath. I would, therefore, not allow this plea to be raised without a proper pleading. I would not, however, debar the defendant) from applying for an additional plea to this effect and it would be open to the Trial Court to allow an amendment of the written statement should it consider such a course proper and desirable. The defendant‑respondent has urged, however, that even if the plaintiff was not a temporary employee the issue as to jurisdiction should be decided against her because the services of even permanent railway employees (subject to some exceptions with which we are not concerned) are liable to be terminated on a notice for a period of one or six months. In the agreement, which is signed by a permanent employee on his entering service, there is a clause to the effect that service is liable to be terminated on either side on giving notice for a particular period. This applies even to the General Manager of the Railway. The result of this clause, according to the learned Advocate‑General, would be that the termination of the service of the railway employee would not amount to a dismissal or removal within the meaning of section 240 of the Government of India Act and no suit would lie. Removal, it may be mentioned, is, as provided in section 277 of the Government of India Act, included in the dismissal to which section 240 refers. I will at once concede that so far as temporary employees are concerned a termination of their service at the expiry of~ the period for employment or by means of notice served in accordance with the terms of the agreement would not amount to dismissal or removal. To hold otherwise would mean that the Government is not authorised to have temporary employees at all. This would be unreasonable and would also be opposed to section 241 which expressly enables the Government to employ persons temporarily without even framing rules as to their conditions of service. But I am not prepared to agree that with respect to persons who are admittedly permanent employees the Government can either by rule or by a term in the contract of service make provision so as to terminate their services by means of a notice without complying with section

240. If I were to accept this argument the Government can nullify the provisions of section 240 of the Government of India Act by just getting signed from all permanent employees (holding pension-able posts with specified ages or periods of superannuation) a contract with a clause that the services of employees can be terminated on giving notice for a particular period or even that it could be terminated without notice, The Government may make provision in the rule: relating to the Central and Provincial services that the members of the services could be discharged on a specified notice and in that case section 240 would be a dead letter for the argument is that the discharge of such persons is not a dismissal at all. Such a result could not have been intended and section 240 cannot be set at naught in this manner. The section was intended to afford security to the Government servants and that security cannot be taken away either by rule or by contract. I have made it clear that is only with respect to admittedly permanent employees that I am making these observations. Of course, it is possible for a Government to have only temporary employees in a department which is itself temporary and it was open to the Government to regard the railway as a temporary department and to have only temporary employees in it. No persons whose services were in that case terminated in accordance with the conditions of the contract would have any grievance. But this is not the position of the Government. It is admitted that the persons with whom I am now dealing are permanent employees. The argument put forward is that the termination of service of permanent employees does not amount to dismissal if the termination be in accordance with the terms of their contract. Apart from the admission by the respondent, the rules too make it quite clear that the servants whose case I am now considering and about whom a provision as to termination of service on notice exists are in fact permanent employees. The very agreement on the terms of which reliance is placed by the respondent before us (page 322 of the Railway Establish ment Code, Vol. I) is called "Service agreement for permanent subordinate employees". The memorandum annexed to this agreement is described as "Memorandum to be annexed to service agreement of permanent staff." Rule 148 of the Railway Establishment Code, Vol. I, which relates to termina tion of services and period of notices divides employees into (1) temporary, servants, (2) Apprentices, (3) Other (Non- pensionable railway servants). (3) is sub‑divided into classes which include "permanent gazetted officers" and "permanent non‑gazettes officers". The remaining officers in (3) are probationers. For these permanent employees age of superannuation is provided and they are entitled to the provident fund, gratuity, etc. The learned Advocate‑General has not cited any authority in favour of the contention he is putting forward and on a consideration of the object of section 240 the matter seems to me to be beg‑and any doubt. I would hold that the services of the permanent employees of the Government are not liable, to be terminated except in accordance with section 240 of the Government of India Act in spite of any provision that may exist in the contract signed by the employee. There is another reason why this contention of the respondent should be repelled. From a study of the relevant provisions of the Railway Establishment Code which contains rules framed by the Government under the Government of India Act or the Advance Chapter No. 5 which contains disciplinary rules framed by the General Manager with respect to the non‑gazetted officers, it becomes amply clear that under the rules a termination of service of a person who is not a temporary employee is a "removal". I quote below rule 1702 which describes penalties which may be awarded :‑ "1702. Penalties.‑The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed upon railway servants :‑ (1) Censure. (2) Withdrawal or forfeiture of privileges, e.g., free passes, etc. (3) Fines, including forfeiture or reduction of running allowances in the case of train and running staff. (4) Withholding of increments or promotion, including stoppage at an efficiency bar. (5) Reduction to a lower post or time scale or to a lower stage in a time scale. (6) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. (7) Suspension. (8) Removal from the service. (9) Dismissal from the service. (10) Withholding of the whole or part of Provident Fund Contribution or Gratuity in accordance with the provisions of the State Railway Provident Fund and Gratuity Rules (Chapters XIII and XV). (11) Reducing or withholding the maximum pension admissible in accordance with the provisions of the rules governing the grant of pensions. Note l.‑The discharge :‑ (a) of a person appointed on probation, during the period of probation ; (b) of a person engaged under contract for a specific period, on the expiration of such period in accordance with the terms of his contract; (c) of a person appointed in a temporary capacity other wise than under a contract, in accordance with the general conditions of service applicable to temporary employment; (d) of a person for inefficiency due to failure to conform to the requisite standard of physical fitness ; (e) of a person on reduction of establishment ; or (f) of a person who is liable to discharge for failure to qualify in certain duties or subjects under the conditions of his service ; does not amount to removal or dismissal within the meaning of this rule. It will be observed that (c) of Note I excludes from removal only the termination of service of temporary employees' in accordance with "the conditions of service appli cable to temporary employment". The termination of service of a permanent employee in accordance with the conditions of the contract has been obviously deliberatly not excluded. Rule 2 of the Advance Chapter V is a reproduction of Rule 1702 but there is "subsidiary" attached to it which contains the following explanation :‑ "(viii) All appointments, whether in permanent or temporary vacancies will be regarded as made on probation for 12 months or, if, as in the case of temporary vacancies generally, they are made for a shorter period, for such shorter period. The effect of these orders will be that the discharge of a person, before completion of 12 months' service (and therefore still on probation) will not amount to removal within the meaning of Rule

2. Where, however, an employee has completed 12 months' service, and the probationary period is therefore over, the normal procedure prescribed in these rules shall be followed! if it is desired to discharged him as a disciplinary measure. In any case, the discharge of a temporary employee (whatever the length of his service) at the end of the period of his temporary‑ appointment or on the termination of the work for which he may have been employed is not regarded as disciplinary action". The discharge of a permanent employee after 12 months' service will in accordance with his explanation be regarded as disciplinary action and will amount to removal. When we turn to Rule 1708 of the Pakistan Railway Establishment Code the matter is further clarified. The rule runs :‑ "1708. Removal from Service.‑A railway servant shall be liable to be removed from the service in the following circumstances, viz. (i) inefficiency, (ii) committing any offence for which he may be dismissed under rule 1706, (iii) repeated minor offences, (iv) absenting himself or overstaying sanctioned leave, without sufficient cause, (v) incivility to the public. Provided that nothing in these rules shall abrogate the right of a General Manager, in exceptional circumstances, to remove n non‑pensionable non‑gazetted railway servant from service in terms of his agreement without application of the procedure described in the rules in this section and without assigning any reasons if he considers it desirable to do so. The General M:3nager may delegate this power only to (i) a Head of a Department, or (ii) a Deputy Head of a Department, or (iii) a Divisional Superintendent." The rule relates to the `removal' and the word 'remove' has been expressly used with respect to termination of service after notice. Rule 8 of the Advance Chapter No. 5 is a reproduction of rule 1708 and need not be quoted. I hold that in accordance with the rules too the termina tion of service of a permanent employee would be removal and would give rise so a cause of action if the provisions off section 240 were not complied with. Under issue No. 3 the learned Sub judge had come to the conclusion that a suit for damages did not lie at all and that so far as arrears of pay are concerned, there is nothing in the agreement Exh. D. 1 to show that the plaintiff was entitled to sue for her salary. The decision is correct in so far as the claim for damages is concerned. Their Lordships of the Privy Council had pointed out in The High Commissioner for India v. I. M. Lal (AIR 1948 PC 121 = PLD 1948 PC 150.) that no action would lie against the Crown in tort and that any claim for money by a servant whose dismissal was illegal and void must be based either on contract or on statute. The claim for Rs. 5,000 as damages, therefore, is obviously untenable. The claim for future salary must also fail, for if the order of removal be void the plaintiff still remains an employee and no question of future salary arises. So far as the salary for the period before the suit is concerned, the decision depends upon the terms of the contract between the parties. The letter of appointment Exh. P. 3 does mention Rs. 140 as salary but that agreement applies to temporary servants and the plaintiff now claim to be a permanent employee. On the present record it is not possible to come to a definite finding as to the existence of an agreement as to salary. The parties will be entitled when the case goes back to the trial Court to lead evidence in proof and rebuttal of such an agreement. The bearing that the letter Exh. P. 3 may have on such agreement is not necessary to decide. The learned Sub judge while discussing issues Nos. 3 and 4 also held that the plaintiff had failed to prove the mala fide nature of the order passed. I am of opinion that the proof of malice was not included in the issues which were merely preliminary issues and the matter remains open. As a result I would accept this appeal and remand the case for a trial on merits except with respect to the claim for Rs. 5,000 and future salary. As the success is partial I would leave the parties to bear their own costs of this appeal. Costs in the Lower Court will be costs in the cause. AKHLAQLIE HUSAIN, J.‑I agree. A. H. Case remanded.