P L D 1969 Dacca 930 (PLP)

A. S. CHOWDHURY, J. ‑This appeal is at the instance of the Respondent Government of Pakistan represented by the Secretary, Ministry of Finance anal is directed against the judgment and decree passed by Mr. S. R. Karmaker, Subordinate Judge, 3rd Court, Dacca in Title Suit No. 6 of 1962 on the 26th November 1966. Plaintiff's case, in so far as it is necessary for the disposal of this appeal, is that he was appointed as a Superintendent of Central Excise in the United Province of India before Indepen dence in November 1946, as a result of his having topped the list of successful candidates at an All‑India examination held for selection to the said post. After having remained in that post until April 1950, he resigned and migrated to Pakistan for obvious. reason. He was thereafter appointed a temporary Superintendent of the Central Excise of Land Customs on the 20th May 1950, and was posted to Feni by the Collector of Land Customs as. Superintendent and joined the post on the 25th May. Soon after the plaintiff joined that station he found that there was something wrong and that he could not compromise with what he considered to be wrong. He, therefore, found himself involved soon into troubles with the officers superior to him and was transferred to Dinajpur in November 1951. At Dinajpur also things were not smooth for him as he acted in the interest of the reputation and prestige of the department and in the faithful discharge of his duties. In doing so, it is claimed, he incurred displeasure of his superior officers for having obstructed the release of a smuggler who was sought to be prosecuted in a criminal case. Further case of the plaintiff is that his service was terminated on the 6th: November 1952, although apparently on the ground that Public Service Commission did not approve of his appointment. The plaintiff, it is alleged, did not take things without protest and he filed representations against his termination and continued in. service, but again on the 24th December 1952, he was served with a notice of termination of service. Thereafter, it is alleged, the plaintiff appealed to the Minister by his letter dated 8‑4‑53 and the order of termination was stayed. The stay order was with drawn by the department and he was informed on 2‑9‑53 that the government stuck to its decision and his services were again terminated. The Ministry of Finance again issued an order of stay and the plaintiff continued to be in service, it is alleged, until 30‑12‑57, when he was again served with an order terminating his service after two weeks from that date. The order dated 30‑12‑57 was called in question in a writ petition filed in the High Court of West Pakistan which was rejected. On appeal, the Supreme Court upheld the order of the High Court. The plaintiff's further case is that after the dismissal of his appeal by the Supreme Court, the Department concerned allowed him to continue in service for four months and ultimately on 14‑3‑59, it suddenly informed him that the notice dated 30‑12‑57, could not be withdrawn and that he was no longer in service. The plaintiff then filed the present title suit for a declaration that the Order No. 33(2)‑R/58, dated 14‑3‑59 which purported to terminate the plaintiff's service was illegal and not binding on the plaintiff and that notwithstanding the said order, the plaintiff, still continued in the service of the defendant as Superintendent, Land Customs, Dacca. The suit was contested by the defendant, Government of Pakistan by filing written‑statement verified by the Assistant Collector of Central Excise and Land Customs on 9‑6‑

62. In that written statement it was claimed that the suit was barred by what .is called principle of res judicata "inasmuch as the points involved in the suit have already been decided in writ jurisdiction by the High Court and the decision has been confirmed by the Supreme Court." It was then alleged that the plaint was vague ‑on material points. It was alleged that the allegations made therein were vague and intended to cover up "the indiscipline and misdeeds of the plaintiff. "It was further claimed that the so called sense of duty was nothing but a cunning device to keep control over the superiors with threats and intimidation to achieve his personal ends, the plaintiff is decidedly above the average in making cunning devices." It was further asserted that the department always acted in accordance with law and on the advice of the Federal Public Service Commission and that "the notice of termination of plaintiff's service due to disapproval of the Federal Public Service Commission in terms of appointment in November 1952, has been perfectly legal and valid yet the defendant had shown utmost leniency in dealing with the matter concerning termination of plaintiff's service." It was finally claimed that the plaintiff was appointed as a temporary Superin tendent, Central Excise and Land Customs on 20‑5‑50 on condition that his services could be terminated with a fortnight's notice or pay in lieu thereof. As the plaintiff was not recruited through the agency of the Federal Public Service Commission his case was referred to that body in January 1951, along with the cases of other officers for regularisation of the position as required under the rules. The Federal Public Service Commission did not approve the appointment of the plaintiff and hence notice was issued on the plaintiff terminating his service in terms of his letter of appointment." Then the written‑statement proceeds to say how and in what circumstances notice of termination dated 4‑11‑52 was extended from time to time and, finally, the notice terminating his service was made on 30‑12‑

57. It was further stated that `Mr. Aquil Ahmed managed to approach the Prime Minister and secured an order of stay and pass order for certain enquiries'. But ultimately it was decided that the services of the plaintiff should be terminated in accordance with the advice of the Service Commission, the Prime Minister also endorsed this decision and accordingly again a notice was issued on 30‑12‑57 terminating the plaintiff's service in terms of his appointment. 1t is then stated that the plaintiff's writ petition was rejected by the High Court and the Supreme Court also upheld the decision of the High Court of West Pakistan. It was finally urged therein that "the notice of termination of the plaintiff's service issued in December 1957, which has been found by the highest judiciary of the country to be valid, cannot be challenged by the plaintiff now." The plaintiff as it appears from the record in order to contract the apprehended order of the termination of his service and to cover up his own misdeeds had been minutely seeking lacuna in the activities of his superiors and created records to use them as threat to his superiors and thus to gain his own objectives". There is no reference in the written statement about the order dated 14‑3‑59 which has been called in question in the present suit, nor is it stated thereunder why and in what circumstances after having allowed the plaintiff to continue in service for four months after the judgment of the Supreme Court, he was again served with a notice which was in effect termination of his service once again. The learned Deputy Attorney‑General, who has appeared before us on behalf of the appellant, has attacked the judgment mainly on the ground that the present title suit is barred by the principle of res judicata embodied in section 11 of the Code of Civil Procedure. His contention is that on the 30th December 1957, the services of the respondent Mr. Aquil Ahmed were finally terminated and that the present suit is in effect a challenge to the said termination order and that order not having been set aside by the High Court of West Pakistan and the Supreme Court the present suit is barred. Mr. Aquil Ahmed, who has appeared in person and presented his case with thoroughness, points out that the present suit challenges the validity of the order by which he is affected namely, the order dated 14‑3‑

59. His contention is that the judgment of the Supreme Court was delivered on the 15th December 1958, and in pursuance thereof he would be without employment from that day but the department allowed him to continue in service and terminated it on 14‑3‑

59. According to him the present suit is directed against the said order on the ground of its being mala fide. He submits that points raised in the present suit were not directly and substantially in issue in the writ petition, nor can there be any question of constructive res judicata as he did not know that the malicious order would be passed a few months after the order of the Supreme Court. In reply to our query if the allegation of the plaintiff that he continued in service for four months after the judgment of the Supreme Court was correct, the learned Deputy Attorney -General informed us that this statement was correct. He, however, added that the plaintiff was allowed to continue for the purpose of scrutinising his case. The fact, however, remains that he continued in service for four months after the decision o f the Supreme Court. The plaintiff's appointment as a temporary Superintendent of Central Excise and Land Customs at a starting pay of Rs. 200‑14‑500 plus allowances admissible under the Rules was subject to the following condition as will appear from Exh. 1: "Your appointment as Superintendent of Central Excise and Land Customs will also be subject to termination on a fortnight's notice on either side." The appointment of the plaintiff could therefore be dispensed with on a fortnight's notice if it was termination simpliciter. The material part of notice Exh. 24 dated 30‑12‑57 is as follows: ‑. "A fortnight's notice is accordingly given to Mr. Aquil Ahmed and his services will be terminated with effect from the date of expiry of a fortnight from the date of this notice on him." On a consideration of the condition contained in his letter of ap pointment, the Supreme Court found that the notice dated 30‑12‑57, could not be challenged in law and that the appointment of the plaintiff was legally terminated by the notice dated 30‑12‑

57. The position therefore, is that on 15‑12‑58, when the Supreme Court upheld the termination of his service by the notice Exh. 24, the appointment would have come to an end on that date had he not been continued in service, the order of stay also having ceased to exist on that day. The continuation of Mr. Aquil Ahmed in service for a period of four months with effect from 16‑12‑58, indicates that he was still acting as Superintendent of Land Customs by virtue of his appointment given to him on 20‑5‑

50. The learned Deputy Attorney‑General, has, however, pointed out that the plaintiff was allowed to be in service only for the purpose of examining the case of the plaintiff afresh. But it is to be realised that the plaintiff could not continue in service as a stranger. In his capacity as Superintendent of Land Customs he was issuing orders and discharging functions of that office. He could only do so in view of his continuing as Superintendent whatever may be the reason: When he continued as Superinten dent for four months, we are of opinion, that even if it was a case of termination simpliciter, a fresh notice for a for night was required to be served on him. No such notice was served on him. We have mentioned that in his appointment letter (Exh. 1) there is a specific condition that his appointment can be terminated by giving him fortnight's Notice. The plaintiff was kept in service for an indefinite period after four months and suddenly on 14‑3‑59, a notice is given to him, the effect of which is that he found himself without employment with effect from that, very date, i.e., 14‑3‑

59. The letter No. 33(2)‑R‑58, dated 14‑3‑59 (Exh. 33) reads as follows: ‑ "The undersigned is directed to state that the writ sought by Mr. Aquil Ahmed to quash the notice No. 33(30)‑ASE/L/50, dated 30th December 1957 and enable him to remain in service has been refused by the Supreme Court, confirming the refusal of the High Court. The Notice, therefore, stands and ran out over a year ago. The Government acting on the suggestion of the Supreme Court in its Judgment, afforded Mr. Aquil Ahmed an opportunity to produce before the Minister of Finance at Dacca on the 2nd March 1959, evidence of alleged victimisation by superior officers. After due consideration of the case Government has come to the conclusion that its earlier decision upheld both by the High Court and the Supreme Court, to terminate Mr. Aquil Ahmed's services cannot be withdrawn. As a result of the notice and the failure of the legal pro ceedings and representation to the Minister of Finance Mr. Aquil Ahmed is no longer in service." We have been in somewhat difficulty to understand this notice. It speaks about notice dated 30‑12‑57 that "the notice therefore stands and ran out over a year ago." When it ran out over a year) ago, a fresh notice was necessary to fulfill the condition of fortnight's notice. The purpose of notice is to enable a person to prepare himself for a charge. When the department allowed him to continue in service, he remained in uncertainty. The former notice cannot serve that purpose. A fresh order was issued on 14‑3‑59 which did not give a fortnight's time. The notice of 30‑12‑57 was challenged by the plaintiff in a Writ Petition in the High Court of West Pakistan and the decision of the Supreme Court was given in the year 1955 and the present notice emerges only on 14‑3‑

59. This notice of 14‑3‑59 is challenged on the ground that it does not give a fortnight's notice. 1 t brings about an abrupt termination of the service of the plaintiff. Therefore,, on this ground alone, we are of opinion, that the service of the plaintiff has not been legally terminated by this letter dated 14‑3‑

59. The suit cannot be barred by the principle of res judicata, in asmuch as the points directly and substantially in issue in this suit were not in existence at the time of filing the Writ Petition in the High Court of Lahore. Section 11 of the Code of Civil Procedure, broadly speaking, provides that a Court shall not try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. It cannot, therefore, be said that matter of malice relating to the letter dated 14‑3‑59 or want of fortnight's notice was "directly and substantially" in issue in the Writ Petition. Therefore, we are unable to accept the contention of the learned Deputy Attorney‑General that the suit itself is barred. In the letter dated 14‑3‑59 failure of plaintiff's representation to the Minister of Finance has been `mentioned. It is contended by Mr. Aquil Ahmed that the failure of his representation to the Minister is the result of the efforts made by the officers who had animus against him for long. He contends that the very statement that he was afforded adequate opportunity for representing his case to the Finance Minister was false and malicious. Learned Deputy Attorney‑General places his reliance on the case of Manahem S. Yeshoova v. Union of India and others (A I R 1960 Bom. 196), in support of his contention. In that case it was held by the High Court of Bombay that where a Judge of the High Court has finally decided on merits the contentions raised in a Writ Petition under Article 226, the High Court would not allow the same conten tions to be reagitated in a suit. In the case before us the Writ Petition challenged the order dated 30‑12‑57, and the present suit calls in question the order dated 14‑3‑59 on the ground of malice. The facts of this case as indicated are easily distinguishable from the case of Bombay High Court and the matters requiring con sideration in the suit were not directly and substantially in issue in the Writ Petition. In this case same contentions are not sought to be reagitated. The learned Attorney‑General has also placed his reliance on the case of Daryao and others v. State of U. P. and others (A I R1961 S C 1457). In that case it was held by the Supreme Court of India that if a Writ Petition is dismissed on merits by a High Court, a fresh petition under Article 32 of Constitution of India would not lie in the Supreme Court on points not urged before the High Court. We have already indicated that the plaintiff in this case asserts that a subsequent act was a mala fide one. So the question oil constructive res judicata does not arise in the ease before us. It E is the matter in issue and not the subject‑matter of the suit which forms the essential test of res judicata and we are of opinion that the matter in issue is different in the present suit. Learned Deputy Attorney‑General has also placed his reliance in the case of Moosa Goolam Ariff and others v. Ebrahim Goolam Ariff (16 C W N 937 (PC)). In that case their Lordships of the Privy Council observed: "All the facts on which the present suit is based were known to the plaintiff and are stated at length in the proceedings of the former suit. No further evidence would have been needed. Nothing was wanting but the addition of an issue on the point." In those circumstances their Lordships held that the suits with which their Lordships were concerned were barred by the principle of res judicata. But to apply the above observation we are to hold that at the time of filing the Writ Petition in 1957 it was known to the plaintiff that he would be served with the allegedly mala fide order on 14‑3‑59 and that no further material would be necessary in the writ petition. We are plainly unable to do so. This observation it appears to us lends support to the contention of Mr. Aquil Ahmed that the suit is not barred by the principle of res judicata. Mr. Aquil Ahmed has placed his reliance on the case of Commissioner of Income‑tax, East Pakistan, Dacca v. Wahiduzzaman (P L D 1965 S C 171). In that case their Lordships of the Supreme Court observed: "Under the circumstances the ends of justice will be served by confining the bar of res judicata in relation to decisions of income‑tax authorities to cases where the decision is not clearly open to some objection. It should be a decision which is reached after proper enquiry, which is such as could reason ably have been reached on the material before the authority. and which does not suffer from such a defect as would render it liable to be set aside under section 100, C. P. C. in second appeal if it was a decision of a civil Court. Also a matter can always be reopened on the ground that fresh evidence having a material bearing on the point decided is available." It is true their Lordships were considering an income‑tax matter and the decision referred to the determination of certain question by the Income‑tax Authority. But while discussing the question of the principle of res judicata the general observation made by their Lordships with regard to the principle of res judicata is to the effect that "a matter can always be reopened on the ground that fresh evidence having a material bearing on the point decided is available", and Mr. Ahmed submits that it lends support to his claim that the suit is not barred. To shut out al suit on the ground of res judicata it would be necessary to show that all the requirements of law as contemplated in section 11 of the Code of Civil Procedure are complied with. It should in this connection be considered in the ends of justice that disputed questions of facts cannot be resolved by means of affidavits in a writ petition and therefore the oral evidence that was adduced iii the suit cannot be said to have been available to the plaintiff at the time of filing of the writ petition. It is true that res judicata may be pleaded even when cause of action is different in certain circumstances, but such a plea would be of no avail unless such cause of action was directly in issue in the previous suit: In the case of Midnapore Zamindary Co. Ltd. v. Chandra Singha Dudhuria and others (A I R 1939 Col. 1,), a Division Bench consisting of Nasim Ali and Henderson, JJ., held that where a point was actually raised in pleadings but was not put into issue and was not argued before the Judge, raising of such a point in subsequent suit will not be barred by principle of constructive res judicata. This observation of the learned Judges clearly, applies to the facts of present case. It is stated in the judgment of the Supreme Court that far from malice having been established there was not even an alle gation that the authority that ordered the termination of service was actuated by malice. "The appellant has not produced the pleadings, namely, the petition and the affidavit‑in‑opposition and the affidavit‑in‑reply in the writ petition to enable us to find out if the matter involved was directly and substantially, in issue in the previous suit. This burden of proving that adjudication of a legal right is barred is on the party raising such an objection." In the judgment of the Supreme Court as stated it is clearly stated: "As regards the allegations of malice there is no evidence on record that the scope of enquiry held against the appellant covered the allegations in the confidential record on the basis of which the Service Commission based its advice. There is no allegation to this effect in the petition before the High Court, but an application was presented to us to call for certain records in this connection." Then their Lordships observed: "A fresh investigation of the case cannot be undertaken at this stage by this Court." We have nothing before us beyond this. It is, therefore, clear that we are not aware whether the materials produced in the trial Court in this Suit were available to the plaintiff at the stage of the writ petition in the High Court and it is also clear that the point now raised was not decided by the Supreme Court, because a fresh investigation in the said pro ceeding could not be undertaken at that belated stage. After having held that the suit is not barred by the principle of res judicata, we now proceed to examine if the findings of fact arrived at by the trial Court as to the malice can be sustained. The learned Subordinate Judge recorded his finding in this behalf in the following terms: "These facts coupled with many others that are brought on the record of this case would clearly show an animus against the plaintiff. This is further borne out when we have heard D. W. 1 Mr. Turab Ali's successor to say that Mr. Aslam directed him to report adversely against the plaintiff. What more is necessary to prove ill‑will passes ones comprehension. Adverse reports prepared under such hostile circumstances can hardly be relied on as free from any virus and as such these are of no effect against the plaintiff . . . ." The learned Deputy Attorney‑General made a pointed attack on the judgment of the trial Court on the foundation of the principle of res judicata but he has not attacked these findings of fact on the ground of absence of evidence or on any other ground. We have, however, ourselves, examined the materials placed in the suit and we find that from the very beginning of his service career, Mr. Aqil Ahmed had been raising objections on various matters to the annoyance of his superior officers. Reports in his character roll for the first two years were good as will appear from Exhs. LC/D and LC/E, but thereafter the trouble started with the T. A. Bill of Mr. Altafuddin, Deputy Superintendent under the plaintiff as will appear from Exhs. 60‑

64. On the 6th August 1951, the plaintiff informed the Assistant Collector, Central Excise, Sylhet, that Mr. Altafuddin had gone to play football in India without obtaining plaintiff's permission. Again this officer was sent to Dacca in connection with a variety performance. Mr. Aslam stated when examined on commission "I have no recollection when I issued instructions to the plaintiff to treat Mr. Altafuddin Ahmed, the Deputy Superintendent mentioned in Exh. LC/G as on official duty and pay his traveling allowances". Mr. Aslam does not deny that he issued instructions. He merely says that he had no recollection LC/G referred to above is an office copy of the letter addressed to the Station Director of Radio Pakistan by Mr. Aslam. This letter reads as follows: "My dear Ahasanul Haque, I am organising a variety show in aid of Punjab Flood Relief at Chittagong tentatively on the 25th and 26th instant. There is a great dearth of artists here and I shall very much appreciate if you influence some of the artists of Dacca Radio Station to participate in this show. I am, however, sending: Mr. Altafuddin Ahmed, Deputy Superintendent of Central Excise to contact you in this connection." We have found in the file which has been marked as Exh. 59 in this case that there is a letter dated 9‑4‑51 from the Chief Accounts Officer, Chittagong, asking the plaintiff who was then Superintendent of Central Excise. Feni, to make the payment of the T. A. Bill of Mr. Altafuddin Ahmed. In his letter dated 5‑4‑51, addressed to the plaintiff, the said Deputy Superintendent Altafuddin has himself prayed for the payment of the T. A. Bill in connection with the said variety show. In this state of evidence it is clear that the plaintiff was asked to make payment of the T. A. Bill of Altafuddin Ahmed and the matter came to notice of Special Police as will appear from Exh. LC/H. This is a letter addressed to the Collector of Central Excise, Chittagong. Mr. Aslam, on 10‑5‑52, by the Deputy Superintendent of Police (Special Police) Establishment, Chittagong. It is stated therein: "In connection with the enquiry into an allegation that Mr. Altafuddin Ahmed, Deputy Superintendent, Central Excise, Feni, had submitted his T. A. Bill by falsely, claiming to have performed his journey from Chittagong to Dacca by rail, in Second Class on 4‑11‑50 and from Dacca to Chittagong by rail in Second Class on 9‑11‑50 which I discussed with you today at about 1 p. m. in your office, I beg to request you to kindly let me know if the Deputy Superintendent had at all been ordered by you to perform the journey from Chittagong to Dacca as it has been certified in T. A. Bill by the Assistant Collector, Sylhet, under his signature dated 30‑4‑51, that the journeys were performed under your orders. I may mention here as I already did verbally by way of helping you to recollect the matter that our information is that the Deputy Superintendent had performed the journey to Dacca to arrange a dancing party (Bulbul Chowdhury's party) in connection with some function in the Customs Club, Chittagong." To this Mr. Aslam, Collector of Customs replied in the following terms in his letter dated 17‑5‑52 Exh. LC/H‑L:‑ "Please refer to your letter No. 788/C‑2/52, dated 10‑5‑

52. On a reference to official records, I find that that Mr. Altaf uddin Ahmad had been deputed by the Department to proceed to Dacca and was, therefore, in order in claiming T. A. for the journey. (Sd.) Illegible 17‑5 (M. Aslam) Collector of Central Excise, Chittagong." The letter from the Special Police and its reply read together indicate that Mr. Aslam refused to advert to the point of the dancing party of Bulbul Chowdhury at all although a categorical answer was requested. The Collector of Customs remained absolutely silent about, it and he discharged his duties by merely saying that the tour was undertaken as he was deputed by the department. He did not deny or admit as to the allegations relating to dancing party when asked about a matter like this. Mr. Aslam stated that he had no recollection about it. The matter is such that it is difficult to believe that he had really no recollection. The matter was pursued by the Superintendent of Police in his D. O. letter No. 2806/R/SBE, dated 7‑7‑52, (Exh. LC/1) Special Police Establishment, Government of Pakistan Eastern Circle in which it was stated: "You will appreciate that arranging for dances cannot be claimed a legitimate duty by the Deputy Superintendent of Central Excise." The objection by the plaintiff and subsequent pursuing of the matter by the police, it is urged caused annoyance in the mind of the Collector of Customs about the plaintiff. Another instance of plaintiff's incurring displeasure of the Collector of Customs is the T. A. Bill of Mr. Habibuddin Ahmed as will appear from Exh. 69‑

70. Although these records were called for and produced at the trial and were marked as Exhibits, the appellant did not print them in the Paper‑Book. We have, however, looked into the original exhibits in the interest of justice. The learned Deputy Attorney‑General, however did not object to our considering these exhibits although not printed in the paper‑book. P. W. 1 the plaintiff stated "I detected the case of a false drawal of T. A. by Assistant Collector, Rangpur Mr. Habibuddin Ahmed but the Collector, Central Excise did not take any action and that I handed over the case to Special Police Inspector Mr. Amanat Hossain Khan. This antogonized my superior officer." We have no hesitation to accept this statement of the plaintiff as correct, for, it appears from Exh. 69 that a case was started against Mr. Habibuddin for submitting. T. A, Bills for which he could not claim any T. A. Exh. 70 is also a Government file produced by the department in which Mr. Habibuddin Ahmed admitted that he had to undertake journey in question for arranging a variety show on the direction of the Collector of Customs and Mr. Aslam was holding that office during the relevant period. Before we leave this matter we would, however, say that Mr. Habibuddin was ultimately warned about it. These materials clearly establish the plaintiff's claim that as a result of his objection to these matters he antogonized his superior officers, specially Mr. Aslam. The extent of irritation may be appreciated when a reference is made to the letter dated 31‑10‑52 which is found in Exh.

70. That letter is as follows:‑ "Will you kindly refer to the correspondences resting with your confidential D. O. C. No. CI/Et. 102/52/3139, dated the 13th September 1952, on the subject noted above‑ and expedite the submission of Mr. Habibuddin Ahmed's explanation together with your comments thereon. The departmental enquiry should not have been started simultaneously with the police investigations. It is, however, presumed that the enquiry which is conducted by you is yet of informal nature. Tour diaries and office copies of T. A. bills‑may please be kept in safe custody. Yours sincerely (S. Ikramullah). M. Aslam Esq., Collector of Central Excise and Land Customs, Chittagong." It appears that over this matter Mr. Aslam did not give any help to the police for making investigation, although pressed by the said department. In fact, there was an obstruction on the part of Mr. Aslam in the matter of the police investigation, as will appear from the letter dated 5‑8‑52 of Special Police Depart ment which reads as follows: "The Assistant Collector, Land Custom, Dinajpur, was approached for handing over to us the diaries of Mr. Habibuddin Ahmed, now Assistant Collector, Rangpur for the period 1950‑51 which were left in his custody by Inspector Syed Amanat Hussain vide his note dated 23‑5‑52 (Copy attached). It is regretted that the Assistant Collector, Dinajpur has refused to hand over the same to us on the plea that your previous permission was necessary in the matter." This letter clearly indicates department's non‑co‑operation with the police in investigating the matter in which the government ultimately had to warn the officer concerned. We have referred to these materials only to indicate the animosity that was created between Mr. Aslam and the plaintiff: Exh. 51, is a letter written by Mr. Aslam dated 10‑11‑51, which clearly indicates that Mr. Aslam entertained malice against the plaintiff, for he had, in fact, asked the Assistant Collector Mr. Torab Ali to give adverse report against the plaintiff‑respondent. D. W. 1 M. S. Zaman also stated "There was one order from the Collector Mr. Aslam asking me to submit a special report against you." We have checked up the original deposition. In the paper‑book printed by the appellant word "no" has been misprinted for `one'. Mr. Torab Ali appears to have consented to act according to the direction of his Collector. We have gone into records produced by the appellant at the trial Court and we are satisfied that his superior officers had malice against the plaintiff for bringing up embrassing matters, and it is unnecessary to burden our judgment with large number of such instances found in the official record. It is stated by Mr. Aquil Ahmed and not denied that Mr. Adam was member of the Board of Revenue when notice dated 30‑12‑57 and letter dated 14‑3‑59 were issued. P. W. 1 the plaintiff also stated: "There was some trouble at Parbatipur where I arrested one smuggler Salauddin alias Noor but the Assistant Collector Mr. Torab Ali wanted me to with draw that case from the Court but I did not agree." This statement of the plaintiff is also clearly borne out by the record and we accept the same as true. It is supported by the records of that case, as will appear from Exh. 71, printed at page 91 of part 11 of the paper‑took of this appeal. The material part of the order passed by the Sub‑Divisional Magistrate, Dinalpur in (Case No. 265‑C/52, State v. Salauddin) is as follows: "The Superintendent of Land Customs (preventive) should now submit prosecution report on this with list of witness so that trial can be taken up early. Also seen telegram of Assistant Collector of Land Customs, Dinajpur, dated 14‑2‑52 to S. D. O., Bogra, stating that it has been departmentally decided not to prosecute the accused in this case but to have the case adjudicated departmentally. I find that Assistant Collector by virtue of superior position has moved the Court for permission of withdrawal of this case and has not stated any reasons for such action. As this is a case of cognizable nature and as the crime is also of serious type, I do not feel inclined to permit withdrawal." This order of the Sub‑Divisional Magistrate clearly indicates that the plaintiff is right in saying that the Assistant Collector wanted withdrawal of the case. It is not denied by the learned Deputy Attorney‑General that the Assistant Collector referred to herein was Mr. Torab Ali during the relevant period. Exh. 78, will clearly show how this action of the Assistant Collector was resented by Mr. S. A. Bashir, Superintendent of Police, District Anti‑Corruption Branch, Dinajpur. In his said letter addressed to the Sub‑Divisional Magistrate he says .."The Assistant Collector of Land Customs or the Collector of Land Customs is not the proper person to request for the with drawal of the case as it is of Cognizable nature." A copy of this letter was sent to the Collector of Customs, Mr. Aslam. This letter clearly reveals the attempt made by the department to protect one Salauddin who was arrested by Mr. Aquil Ahmed, while on duty at Hilly Railway Station in detecting the unlicensed articles. This matter, clearly establishes that the plaintiff created enemies among his superior officers. The plaintiff appears to be a person who protests against corruption which comes to his notice by whatever means. The result is obvious. Plaintiff stated in his deposition: "I had filed some photostat copy of a letter dated 2‑10‑56, from Mr. Syed Ahmad, Assistant Secretary of the department written to my predecessor Mr. Nurul Alam Chowdhury, Superintendent, Dacca. I was not present at the time of writing of that letter. I know his writings and I have got his writings in my possession. I am not a Handwriting Expert. The letter was lying on my table and then I took the photostat copy for my purposes." It is claimed by the plaintiff that he forwarded the letter to the Prime Minister and this created bitterness about him in the mind of Mr. Syed Ahmed. The letter is addressed to Mr. Nurul Alam Chowdhury, Superintendent of Land Customs, 46 Subhas Bose Avenue, Lakhsmi Bazar. In that letter it is stated as follows: Karachi, 21‑1‑65. "My dear Chowdhury Saheb, Thank for your letter. I am afraid you shortly have to hunt out the letter from the Collector's Office. Do get two bottles (big) of Jabakusum for me and I shall have them when I return from France which will be in March. And also some Croton plants." It is submitted by Mr. Aquil Ahmed that to his misfortune Mr. Syed Ahmed was the Under‑Secretary, Central Board of Revenue when his representations were being considered by the Board. It would further appear from Exhs. LC/E and LC/D that before these incidents occurred, the plaintiff obtained good reports in the first two years of service career from Mr. Aslant and Mr. Syed Ahmed who were then Collector and Assistant Collector respectively. When the notice dated 14‑3‑59 challenged in this suit was issued Mr. Aslam was still a Member of the Board of Revenue and on the documents and records now produced by the Appellant it is available to the plaintiff that the order dated 14‑3‑59 was malicious. Mr. Aslam himself admitted in his deposition printed at page 73, PA of the paper‑book "it is correct that I as a member C. B. R. handled the case of the plaintiff after the judgment and 15‑12‑5t; of the Supreme Court". No wonder that the order dated 14‑3‑59 which emanated after his handling of the case has been actuated by malice. Before we part with this case we must also make a reference to the fact that a charge was framed against Mr. Aquil Ahmed at the behest of these officers. An enquiry was held by a senior Civil servant and he was exonerated of all the charges framed against him. That enquiry report was accepted by the Govern ment but it was never forwarded to the Public Service Commis sion, it is urged that the Government did not supply the same to the Public Service Commission when these reports were called for by the Public Service Commission. The plaintiff in his deposition stated "the defendant withheld my papers from the F. P. S. C." The appellant could not produce anything to show that tire Public Service Commission was supplied with the said report. We accept the statement of the plaintiff this behalf as well. It will also appear from Exh. 75 that the Provincial Govern ment of East Pakistan appreciated the services of the plaintiff Mr. Aquil Ahmed as Superintendent of Customs at Akhaura when he was transferred from that station. We asked learned Deputy Attorney‑General if the Superin tendent of the Land Customs referred to in the said letter was the plaintiff and the learned Deputy Attorney‑General admitted that it was so. Mr.

1. A. Khan, C. S. P. the then Deputy Secretary of the Government of East Pakistan addressed the following strongly worded letter dated 12th September (Exh. 75) to the Collector of Customs Mr. Aslam: "It is understood that the Superintendent of Land Customs and Central Excise, Akhaura, is being ordered to be relieved 'of his post. This sudden change will adversely affect the situation at Akhaura. As you know his predecessor had made a mess of things at Akhaura and had to be removed from there due to serious charges of corruption against him. Since the present incumbent has been posted the situation has greatly improved. In the recent conference which the representatives of this Government had with the representatives of Tripura at Agartala, the Superintendent of Land Customs, Akhaura, rendered useful assistance. It was found that he had succeeded in sorting out the difficulties, which our people were facing and that particu larly in regard to valuation of goods he had taken a firm stand. His removal, therefore, at this juncture apart from causing administrative difficulties would also affect the prestige of the administration and would seem to suggest victory for dishonest elements. Under the circumstances, it is considered desirable that he should be allowed to work at Akhaura" This documentary evidence was not available to the plaintiff at the time of writ petition. To apply the principle of res judicata in this case would, it appears to us, tantamount to the denial of justice in the facts and circumstances of this case. The plaintiff stated in his deposition that: "an order dated 14‑3‑59, Exh. 33 in which it was falsely stated that I was afforded opportunity to prove victimization before the Minister prior to the termination. No notice or show‑cause notice was given to me . . . . ." The appellant has not been able to show any material to substantiate the claim made in Exh. 33 that he was afforded an opportunity to prove victimization. It is nowhere in the records produced in this case. We, therefore, accept this statement of the plaintiff as well. In the case of Noorul Hassan and others v. The Federation of Pakistan (P L D 1956 S C (Pak.) 331), it was held by their Lordships of the Supreme Court that requirement of a show‑cause notice shall have to be satisfied even in the case of termination of temporary Government servant when he was holding the post for an indefinite period and when his termination was the result of some punishment. g Although the order in question does not say so, the facts as revealed in the case, clearly indicate that he was being punished for certain allegations made against him. Apart from the question of malice, he was entitled to an opportunity to show cause against the proposed action. This contention of the plaintiff is also of substance. In the case of Abdul Majid Sheikh v. Mushaffe Ahmed and another (P L D 1965 S C 208), it was held that a temporary Government servant was entitled to an opportunity to show cause against such an action if he was holding the post for an indefinite period as in the case before us. The learned Deputy Attorney‑General has argued that the learned Subordinate Judge has not discussed the written statement in details. This contention is of no substance. Next point made by learned Deputy Attorney‑General is that learned Subordinate Judge has expressed some emotion in some parts of the judgment. We have read the judgment carefully and, we would only ask learned Deputy Attorney‑General to remember that the expression of judicial indignation is not unknown to the forensic literature. Last point urged by the learned Deputy Attorney‑General is that the plaintiff is not entitled to a declaration for he was for sometime in the employment of EPWAPDA. This contention of learned Deputy Attorney‑General is also of no substance for the learned Subordinate Judge has not declared that he is still in service. Learned Subordinate Judge has rightly stated "I do not find any substance in the contention raised, for whatever decla ration that I can give is that the plaintiff remained in service of the defendant on the date of institution of the suit." No other point having been pressed before us, we are of opinion that the judgment and decree of the learned Subordinate Judge call for no interference and in the result, the appeal is dismissed and the judgment and decree of the trial Court are affirmed. Since the plaintiff appeared in person, we make no order as to costs. A. H. KHAN, J.‑I agree. S. A. H. Appeal dismissed.