P L D 1958 (W (PLP)

7. Such being the terms of engagement of the military personnel the question for determination only is whether then terms have, been altered by any statute, rule or regulation. And while we proceed to determine whether they have been altered let us keep in mind that these terms are based on very strong grounds of public policy. The plaintiff-respondents rely on section 16 of the Army Act (which admittedly applies to them) and on certain rules framed under that Act. I reproduce below all the relevant provisions:‑ "S. 13.‑(1) The Central Government may dismiss from the service any person subject to this Act. (2) The Commander‑in‑Chief in India may dismiss from the service any person subject to this Act other than an Indian Commissioned officer. "S. 14.‑An officer commanding an army, army corps, division or brigade, or any prescribed officer, may dismiss from the service any person serving under his command other than an officer. "S. 16‑The prescribed authority may, in conformity with any rules prescribed in this behalf, discharge from the service any person subject to this Act. "S. 113.‑(1) The Central Government may make rules for the purpose of carrying into effect the provisions of this(Act.. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for‑ (a) the removal, retirement or discharge from the service of persons subject to this Act; (b) the amount and incidence of fines to be imposed under section 21; (b) the specification of the punishments which may be awarded as field punishments under sections 20 and 45; (c) the assembly and procedure of Courts of inquiry, and the administration of oaths or affirmations by such Courts; (d) the convening and constituting of courts‑martial; (e) the adjournment, dissolution and sittings of courts?-martial; (f) the procedure to be observed in trials by courts‑martial; (g) the confirmation and revision of the findings and sentences of courts‑martial; (h) the carrying into effect sentences of courts‑martial; (i) the forms of orders to be made under the provisions of this Act relating to courts‑martial, transportation or imprison?ment; (ii) the constitution of authorities to decide for what persons, to what amounts and in what manner, provision should be made for dependants under section 52‑A and the due carrying out of such decisions; and (j) any matter in this Act directed to be prescribed. (3) All rules made under this Act shall be published in the Official Gazette and, on such publication, shall have effect as if enacted in this Act. "R. 13.‑Authorities empowered to authorise discharge‑ (a) The retirement of an Indian commissioned officer will be authorised by the Central Government and notified in the Official Gazette. (b) The causes of discharge of persons subject to the Act, other than Indian commissioned officers, the authorities empowered to authorise the discharge and special instructions to be observed in each case are contained in the following table. In this table `Commanding Officer' means the officer com?manding the corps pr department to which the person to be discharged belongs and in the case of Viceroy's commissioned officers and warrant officers of the Indian Medical Department or the Indian Army Veterinary Corps, the Director‑General of the Indian Medical Service or the Director, Veterinary Services in India, as the case may be. It also includes, as regards persons under their command, the officers specified in items (iii) to (xxvii) of rule

7. Any power conferred by this rule on any authority may be exercised by any higher authority". It will be observed that a discharge is to be ordered by the "prescribed authority. It will be observed too that while there is no limitation on the power of dismissal the provision with respect to discharge is that it is to be in accordance with the rules: The argument on behalf of the plaintiff-respondents is that the discharge is illegal because it is not by the prescribed authority for the prescribed authority in the case of Pakistan commissioned officers is the Central Government itself. Under section 113 (2) rules when framed have effect as if enacted in the Act and it is urged that the order of discharge being opposed to the provisions of the Army Act, 1911 is void.

8. On behalf of the petitioner it is urged that truly it is a question only of infringement of rules and such infringement, as held by their Lordships of the Privy Council In R. Venkata Rao v. Secretary of State (A I R 1937 P C 31), does not give rise to a cause of action. Learned Additional Advocate‑General also relies upon The King v. The Array Council ((1917) 2 K B 504) for the proposition that a violation of a regulation relating to the conduct of enquiry by a military Court does not furnish a ground for issuing mandmus. True, there is a strong similarity between the present case and that before their Lordships of the Privy Council. But I do not think it will be a correct approach to this case to decide it on the limited basis that infringement of rules is not actionable Even if the breach was of a statutory provision, learned counsel for petitioner is not prepared to accept that a suit would lie. Suppose an officer who could be dismissed only by the Central Government was dismissed by the Commander‑in‑Chief. Would a suit lie? Learned Additional Advocate‑General does not accept that it would lie and this seems also to be the inference from Tahmas v. The Central Government of Pakistan (P L D 1956 Lah. 871) wherein it has been held that questions relating to dismissal of members of defence services are not justiciable. Also according to section 113 (2) rules when enacted are to be read in the Act and then a question would arise whether, even if the rule laid down in 1937 P C 31 were otherwise applicable it would not be excluded on the ground that here the infringement was of something that is to be regarded as a statutory provision.

10. The correct approach is to ask the question: Were the terms of engagement of the military servant, which existed in English Common Law and which are presumed to be applicable to the servants of the Crown in pre-partition India, intended to be altered by anything in the Army Act of 1911? Before that Act was enacted the servant could be dismissed at pleasure and had no right of recourse to the Civil Court if his services were terminated arbitrarily. Was it the intention of the Army Act in enacting sections 13, 14, 16 or 113 to alter the terms of that engagement and to provide that henceforward the power of dismissal shall be subject to restrictions. An employer, who has a large number of servants, must give some directions as to how his employees are to be dealt with even though his agreement with his employees be that they can be dismissed at pleasure. The Government must give directions relating to salaries, allowances, leave, promotion, reduction, dismissal, discharge, retirement etc. of its servants. The fact that Government gives such directions certainly cannot imply that the Government enters into a contract with the employee that those directions shall be observed and that henceforth its power to terminate their services shall be subject to the rules. The proposition is well established that in the absence of a statute or contract a servant of the Crown has no right to his salary. Yet the Government must give directions to its Accountant General to pay its officers. It has to state the amounts to be paid to different classes of officers. But it cannot be argued, simply on the strength of rules relating to payment of salary, that the Government has entered into a contract h for payment of salary or has created an obligation in favour of the servant. Similarly the Government may prescribe the pro?cedure to be observed in cases of removal, discharge, etc., or the authority that should pass the order. But the fact that procedure is not followed or order is passed by one not authorised (but the Government does not repudiate the action but confirms it) ca not give the employee any cause of action. His terms remain unchanged and he cannot sue the employer on the ground that rules had not been complied with.

11. If the fact that directions are given by the Government as to the procedure to be observed will not alter the conditions of services will it make any difference if the directions are contained not in the rules framed by the Government under a statute but in a statute itself? The answer is that whether terms of engagement are altered depends on the intention of the particular enactment. Just as the Government when it frames rules need not have any intention of altering the terms, the legislature too may not have any such intention. The mere fact that directions are by the legislature itself cannot be a sure criterion for inferring an intention to create a right in the employee. In this connection let us consider the effect of the Army Act in the light of the Government of India Acts of 1919 and 1935. With respect to civil servants it had been expressly provided in section 96‑B of the Act of 1919 that no civil servant could be dismissed by an authority subordinate to that which appointed him. There was no similar provision in that Act with respect to military servants and it is reasonable to presume that the military servants were not protected even against a dismissal by one incompetent to dismiss, so far as the Civil Courts are concerned (though he could of course have appealed to the superior officers or to the Government), in spite of the Army Act which provided for dismissal and discharge by particular authorities. In the Government of India Act of 1935 two protections were provided for the civil servants. If the intention were that the engagement of military employees be placed at any footing higher than service at pleasure there does not appear any reason why that should not have been expressly mentioned. If it were intended, as is contended by learned counsel for the respondents, that the dismissal or discharge could not take place except by the order of a competent authority as provided in the Army Act or that rules framed with respect to their retirement, removal, or discharge under section 113, were to become a part of their contract of service this should have been made clear. As the Government of India Act of 1935 was stating the tenure of servants of the Crown 1 will presume that the statement was exhaustive, that the omission of any reference to military employees was deliberate, and that it was not intended that they should have any higher rights than they possessed under the English Common Law. The omission of this mention in the Government of India Act of 1935 is an argument against the contention that the Army Act of 1911 or the rules framed thereunder which have effect as a statute were intended for the benefit of the employee and were intended to alter the terms of his engagement. This inference is easier in view of the extreme improbability of the British Government agreeing that the question whether a military employee should continue in service should be determined by a Civil Court. It seems clear that while the British Government agreed to place some restrictions on its power to dismiss civil servants it did not agree to place any restriction on its power to dismiss military servants. In this connection I would also draw support from Article 180 of the Constitution of Pakistan. It runs:‑ "Except as expressly provided by the Constitution‑ (a) every person who is a member of a defence service, or of a civil service of the Federation or of an All‑Pakistan Service, or holds any post connected with defence, or a civil post in connection with the affairs of the Federation, shall hold office during the pleasure of the President, and (b) every person who is a member of a civil service of a Province or holds any civil post in connection with the affairs of a Province, other than a person mentioned in paragraph (a) of this Article, shall hold office during the pleasure of the Governor". It will be observed that according to this Article a member of a defence service has no protection except as may be prescribed in the Constitution itself and this is in spite of the fact that what was contained in sections 13, 14, 16 and 113 of the Army Act of 1911 has been re‑enacted in the Pakistan Army Act of 1952 (vide sections 16, 17, 18 and 178 of that Act) with this addition that the words "release and retirement" also appear now in the provision relating to discharge so that release and retirement have also to be by the prescribed authority and in accordance with rules. Was Article 180 of the Constitution intended to do away with a protection that had been granted by the provisions of the Pakistan Army Act or was it just recognizing that in fact no such protection existed. There is no ground for inferring that it was included to destroy a protection already granted or to effect a change in the policy of the State as regards its military servants.

12. I would rely also, in support of the proposition that the existence of a provision relating to termination of service in a statute is not by itself a sufficient argument in favour of the provision being intended to alter the terms of engagement, on Gould v. Stuart (1896 A C 575). It will be remembered that in 1937 P C 31 their Lordships had referred to two earlier cases Shenton v. Smith (1895 A C 229) and Gould v. Stuart as representing two categories. 1937 P C 31 may give an impression on a superficial reading that the distinction between the two categories was whether the provision was contained in a statute or a rule. But their Lordships did not at all say so and an examination of Gould v. Stuart itself will support the proposition that the mere evidence of a statutory provision was insufficient to constitute a contract between the State and the servant. In that case all provisions relating to employment, suspension, dismissal etc. were contained in a statute that is, the Civil Services Act of new South Wales. The dismissal was not in accordance with those provisions. Their Lordships did not say that as the provisions were contained in statute they must have altered the terms of the tenure held by the servant of the Crown. On the other hand, their Lordships examined all the material provisions of the statute and then reached a conclusion that there was an intention to grant a protection to the servants. If their Lordships were accepting the proposition that a statutory provision must effect a change in the terms of engagement it would have been sufficient to say so without examining the Civil Services Act in detail.

14. It is contended on behalf of the plaintiff-respondents that an act which is not authorised by or is in violation of a statute is void and of no effect and as the orders of discharge, having been passed by officer not entitled to pass them, are of no legal effect, the plaintiffs are entitled to declaration that the orders are void and the plaintiffs are still holding the ranks they held when those orders were passed. The reply is that whether the orders are of no effect is not material. The suit has been filed against the State, the employer, and the claim in the suit is that the plaintiff is entitled to continue in service. The service being liable to termination at the pleasure of the State, the suit does not lie for the employer contests the suit even though the order of dismissal was by one not empowered to dismiss, and says it is not prepared to keep the employee. The employer cannot in accordance with the terms of engagement be forced to keep the employee in service. If the servant was dismissed by an officer not empowered to do so the remedy of the servant was to approach the employer. There could be no recourse to a Court of law for there was no right which could be infringed and no cause of action.

15. Let us assume that the terms of engagement instead of being only implied were expressly recorded in agreement. If the Army Act was then passed, could it be said that it necessarily changed the terms recorded in the agreement? If it would not, it does not make any difference that the terms are only implied.

16. There is no English case dealing with the question whether if a military employee be dismissed in disregard of a statutory provision he will have a cause of action. But let it be stated that there is no case in which a military servant has ever been granted a right to approach the Civil Court as against an illegal dismissal. There is an Indian case, however, that is directly in point. The case is Union of India v. Ram Chand Beli Ram (A I R 1955 Ph. 166) wherein it was held after a review of authorities that even though the discharge of military servant was not in accordance with law, there could be no recourse to the Civil Courts.

17. Reliance has been placed on behalf of the plaintiff?-respondents on Heddon v. Evans (35 T L R 642) for the proposition that even the act of a military officer, if opposed to law can furnish ground for a civil suit. That was an action for damages for false imprisonment and slander, and it was held that an action for a common law wrong did lie if the act of the officer was in excess of jurisdiction. The head‑note of the case runs:‑ "A military officer is liable to an action for damages if in excess of his jurisdiction he commits an act which amounts to false imprisonment or other common law wrong, even though he purports to act in the course of military discipline; but if his act is within his jurisdiction and is done in the course of military discipline no action will lie on the ground only that the act has been done maliciously and without reasonable and probable cause". That case has no bearing on the question involved in the present cases. I am not holding that an army officer cannot commit a tort if his action which would otherwise be a tort is in fact in excess of jurisdiction, though the officer purports to act in exercise of that jurisdiction.

18. Learned counsel for the plaintiff respondents also relied upon Syed Muhammad Ayub v. The Government of West Pakistan (P L D 1957 Lah. 487) wherein one of the learned Judges was of the opinion that rules framed with respect to civil servants could be enforced by the Court. That was a writ petition and the other learned Judge (my Lord the Chief Justice) had observed that in a writ petition the Court could enforce the rules. That a rule will always give a cause of action is negatived by what their Lordships of the Privy Council said in Venkata Rao's case (1937 P C 31) and I am not, with all respect, prepared to agree that every rule can be enforced in al Civil Court. Can rules relating to leave, allowances etc. be so enforced? An employer with a large number of employees will have to frame some rules and to give directions as to how the employees are to be dealt with or paid. To say that every rule framed by the employer will become a term of the contract between him and the employer is tantamount to depriving the employer of the power of regulating his administration by rules for the moment he frames a rule, it becomes, according to the interpretation contended for, a term of the contract of the employee.

19. Learned counsel for the respondents also cites Vishnukrishnan Namboodiri and others v. Brigadier K. N. Kripal and others (A I R 1952 Trav. Cochine 7). In that case some army officers applied for writs against order of their release. It was held that the petitions were maintainable in so far as they were based on the fundamental right to equality before the law. The grievance of the petitioners was that there was improper discrimination. The plea was rejected and the petitions were dismissed. The case is not of any assistance for there can be no bar to the protection of a fundamental right. No such right is involved in the case before one.

20. P L D 1956 Lah. 871, the Full Bench case of this Court wherein it was held that the dismissal of a military employee was not justiciable, supports the position I have taken up because as a result of what was held in that judgment a dismissal even though it was not by a competent officer, and, therefore, in violation of the Army Act itself, would not be liable to be impeached in a Court of law. There is a passage; however, in that judgment on which the respondents rely. In that passage the learned Judges referred in support of the proposition that there was no limitation of the power of dismissal to the difference in language of section 16 which requires a discharge to be in accordance with rules framed under the Act. The learned Judges were not, however, concerned with a case of discharge and I do not regard that passage as a final pronouncement of their opinion that a discharge is justi?ciable.

21. It is also a matter for consideration that the power of dismissal is a power greater than that of discharge. In fact dismissal, in its ordinary sense, includes discharge. If the greater power is not subject to any limitation it is not reasonable to assume that the lesser power would be so subject.

22. My conclusion is that the Army Act did not make any alteration in the terms of. engagement of the military, servants who continued to hold office at the pleasure of the Crown.

23. There is .a matter which requires explanation. It is stated in some judgments that the Civil Courts have no jurisdiction in the matter. I do not think that is the correct way to put the matter. The Civil Court decides against the military servant because of the terms of his engagement. The decision of the Court is that he has, on account of these terms, no right to continue in service. When a Court decides that a person does not possess a particular right, which right is of a civil nature, i is not holding that it has no jurisdiction. Jurisdiction, it is well-established, only means a jurisdiction to decide. When the Court gives a finding as to the term of engagement and determines that the civil right claimed by the plaintiff does not vest in him, the Court has exercised jurisdiction and has given a decision on the merits against the plaintiff. The correct proposition is that there is no cause of action, that no right has been infringed. Whenever the Court finds that a person does not possess the civil right that he claims, the Court has exercised its jurisdiction and the case is not one of lack of jurisdiction. It is only when the Court says to the plaintiff "you may have the tight that you claim but this Court is not the proper forum to determine that question", that the Court refuses to exercise jurisdiction. For instance if a dispute relating to election in the Provincial Assembly were brought to Court this will be the answer that the Court will give and that will be a true case of lack of jurisdiction.

24. Let us take the example of a private employer who has servants whom he can according to the terms of their contract dismiss at pleasure. If the employees come to Court against dismissal, the Court will have jurisdiction to decide the dispute though it will find that the right claimed does not exist.

25. This confusion between absence of jurisdiction and absence of cause of action is due probably to, the fact that the dismissal being in disregard of statute or rules can be said to be illegal, so that the Court can be deemed to be saying to the servant who files a suit "whether the order is legal or illegal is no concern of ours" in which case it would mean as if the Court is refusing jurisdiction. The correct position is that the order though, it is not in accord with a statute or rules does not infringe is a legal right of the plaintiff. Another reason for saying that Court has no jurisdiction appears to be that the servant can have recourse to the higher officers pr the Government so that it looks as if there is another forum for decision of a dispute. But that is not a forum for the decision of any civil right.

26. In view of my finding both these revision petitions are accepted and the suits are dismissed without any order as to costs. A.H.???????????????????????????????????????????????????????????????????????????? Petitions accepted: Suits dismissed.