P L D 1963 Dacca 175 (PLP)

11. In para. 29 of the written statement, it has been stated that the matter relating to .the truth of application for earned leave for one month was dealt with by the Commissioner of Income‑tax by his Order No. 249 (Confidential) dated 26‑4‑

49. But Exh. C, which deals with the matter is dated 26‑7‑49 and it bears Order No. 277 (Confidential). In the explanation Exh. A (1) submitted by the plaintiff, the number of the relevant con fidential order is stated to be 169 dated 27‑5‑

59. Appellant argued that these in discrepancies also indicate that the charge was not true. It was also contended that as the number of the confidential order dated 26‑4‑49 was 249, the number of the confidential order in May 1949, as referred to in plaintiff's explanation Exh. A (1) could not be

169. These are irregularities relating to numbers and cannot affect the merits of the case. In this connection, appellant also referred to the case of Adalat and another v. The Crown (P L D 1956 F C 171). That was an appeal to the Federal Court against the sentence of death passed against the appellant in that case. In that case while discussing the evidence of a witness who made two wholly irreconcilable statements, it was held by their Lordships that both the statements could not be accepted together and one of the statements was to be rejected. The Commissioner of Income‑tax has not deposed in this case, and that case has no bearing upon the facts of the present case.

12. In this case, the question whether the charge is true or not need not be entered into by us, as it has been admitted by plaintiff in his deposition that a proceeding was drawn against him for indiscipline and misdemeanor. It also admitted by him in his evidence that written explanation was called from him after the start of the proceeding and that he submitted the written explanation Exh. A (1) on 18‑6‑

49. This explanation was submitted from Karachi and it was stated that because of financial difficulty he was not in a position to appear personally before the Commissioner to submit facts and adduce evidence in defence. He prayed that his case might be considered with justice, equity and good conscience. In view of the state ment made in his explanation, it cannot be held that he did not desire oral enquiry as provided by rule 55 of the Civil Services (Classification, Control and Appeal) Rules. The procedure as prescribed by rule 55 of the Civil Services (Classification, Control and Appeal) Rules should have been strictly followed. Mr. Mesbahuddin, the learned Advocate for the respondent contended that oral enquiry was not necessary under rule 55 of the Civil Services (Classification, Control and Appeal) Rules, as the appellant in his explanation Exh. A (1) made the prayer to be released from the department. This contention would have substance if his resignation had been accepted. There is difference between dismissal and resignation. Appellant contended that he would have come to Court if his resignation had been accepted. He contended that if the final order would be that he resigned, there would be no bar to getting service somewhere else. As the resignation letter was not accepted, the proceeding should have been conducted strictly according to the provisions of rule 55 of the Civil Services Rules. As this has not been done, it is to be held that there has not been any valid inquiry. Appellant was entitled to proper inquiry under rule 55, though he was a temporary employee.

13. Appellant also contended that the order of dismissal is illegal, and void as he was not given the opportunity as provided under subsection (3) of section 240 of the Government of India Act to show cause before the final order of dismissal. Section 240, Government of India Act, 1935, provides as follows: --‑ "240 (1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure. (2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. (3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him Provided that this subsection shall not apply (a) where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge ; or (b) where an authority empowered to dismiss a person or reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause. (4) Notwithstanding that a person holding a civil post under the Crown in India holds office during His Majesty's pleasure, any contract under which a person, not being a member of a civil service of the Crown in India, is appointed under this Act to hold such a post may, if the Governor‑General, or, as the case may be, the Governor deems it necessary in order to secure the services of a person having special qualifications, provided for the payment to him of compensation if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post." Provision of section 240 (3) of the Government of India Act to give reasonable opportunity to show cause before the final order of dismissal is mandatory. This view is supported by the case of the High Commissioner for India and another v.

1. M. Lall (P L D 1948 P C 150). In that case I. M. Lall, an Indian civil servant was dismissed from service without being given an opportunity to show cause against the action proposed to be taken against him. He instituted the suit against the Secretary of State for India in Council for a declaration that the order of dismissal was void and he continued to be a member of the Indian Civil Service. In that case, their Lordships made the following observation :‑ "In their opinion, subsection (3) of section 240 was not intended to be, and was not, a reproduction of rule 55 which was left unaffected as an administrative rule Rule 55 is concerned that the civil servant shall be informed of the grounds on which it is proposed to take action, and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing: this is in marked contrast to the statutory provision of a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. In the opinion of their Lordships, no action is proposed within the meaning of the subsection until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Prior to that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which subsection (3) makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under rule 55, it would not be reasonable that he should ask for a repetition of that stage. If duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the enquiry. On this view of the proper construction of subsection (3) of section 240, it is not disputed that the respondent has not been given the opportunity to which he is entitled there under, and the purported removal of the respondent on 10th August 1940, did not conform to the mandatory requirements of subsection (3) of section 240 and was void and inoperative. ., . . . It is admitted in this case that opportunity to show cause under section 240 (3) of the Government of India Act was not given to g the plaintiff before the final order of dismissal. So the order of dismissal is void, illegal and inoperative.

14. Mr. Mesbahuddin contended that plaintiff was not entitled to any opportunity to show cause under section 240 (3) of the Government of India Act, as he was a temporary employee. In the case of Noorul Hassan and others v. The Federation of Pakistan (P L D 1956 S C (Pak.) 331), and in the case of The Federation of Pakistan v. Mrs. A. Y. Isaccs (P L D 1956 S C (Pak.) 431), it has been laid down by their Lordships of the Supreme Court that subsection (3) of section 240 of the Government of India Act is as much applicable to temporary servants as it is to the members of the permanent service. In the case of Noorul Hassan and others, an Inspector of Police and 6 Sub‑Inspectors of Police brought the suit for a declaration that the order of the Inspector‑General of Police, Karachi, dispensing with their services was illegal, void and inoperative. At the time of termination of their services they all held temporary posts. The following observation was made by his Lordship Muhammad Munir, C. J., as he then was: "It may therefore be conceded at once that subsection (3) of section 240 is as much applicable to temporary servants is to members of permanent services." In the case in P L D 1956 S C (Pak.) 431, the suit was brought by Mrs. A. V. Issacs who was a temporary nurse in the Cairns Hospital, Lahore, for declaration that the order of her discharge from service was wrongful, void, illegal, inoperative and ultra vires. Objection was taken that as she was a temporary employee, she was not entitled to the benefit of subsection (3) of section 240 of the Government of India Act. Their Lordships of the Supreme Court rejected the plea and observed that if opportunity as required by subsection (3) of section 240 of the Government of India Act was not given, the order of dismissal would be void irrespective of whether the respondent was a permanent or tem porary employee. The learned Subordinate Judge was wrong in holding that plaintiff was not entitled to the benefit of sub section (3) of section 240 of the Government of India Act, as he was a temporary employee.

15. Appellant also contended that the order of dismissal was without jurisdiction, as the Commissioner of Income‑tax passed the order of dismissal without consultation with the Provincial Public Service Commission. His contention is that as on the result of the Provincial Service Commission he was selected for appointment under the Provincial Government before his appoint ment in the Income‑tax Department, it is to be held that his services were lent by the Provincial Government to the Central Government and that as such under section 266 (3) (c) of the Government of India Act read with rule 6 (iii) (a) (b) of Cabinet Secretariat Circular No. 13/7/51 S. E. I., dated Karachi 15‑9‑51, Government of Pakistan, Establishment Department, the Com missioner of Income‑tax should have consulted the Provincial Public Service Commission before the order of dismissal. This contention has no substance, as there is no evidence that the appellant received any letter of appointment from the Provincial Government and that his services were lent to the Central Government. Appellant did not say a single word in his deposi tion about any such appointment.

16. As to the notice under section 80 of the Code of Civil Procedure, plaintiff contended that Government was not a necessary party to the suit and that there was no question of service of notice on the Central Government. Answer No. 38 in page 93 of the Paper‑Book, Part I to Question No. 38 of the interrogatories filed by plaintiff on 14‑6‑58 shows that Commis sioner of Income‑tax is the appointing, discharging and re‑instating authority for non‑gazette officers in the Income‑tax and Sales tax Department. Plaintiff contended that as Commissioner of Income‑tax was his appointing authority and as he was dismissed by the Commissioner of Income‑tax, it was not necessary for him to make the Government of Pakistan a party to the suit. In support of this contention, reference has been made to the cases reported in A I R 1943 Oudh 368 and A I R 1951 Allahabad,

205. In the case of Abdul Vakil v. Secretary of State and another (A I R 1943 Oudh 368), a Police Sub‑Inspector who was appointed by the Inspector‑General of Police, United Provinces, was dismissed by the Disciplinary Board created by the U.P. Government with full powers to inflict any punishment including dismissal of officers of the subordinate Police of 'the rank of Sergeant, Sub‑Inspector or Inspector. The Police Sub‑Inspector brought the suit for damages for wrongful dismissal, and for re‑instatement in the post held by him as a Sub‑Inspector of Police. Both the Secretary of State for India in Council and the Provincial Govern ment were made defendants in that suit. It was held that the Secretary of State for India in Council was not a necessary party to that suit. But the facts of the present case are distinguish able from the facts of the above‑mentioned case, as in that case the Sub‑Inspector of Police was an employee of the Provincial Government, and Provincial Government was made a defendant, while in the present case plaintiff was an employee under the Central Government, and so Central Government is a necessary party to the suit. Appellant also conceded that the Commissioner of Income‑tax appointed him as an examiner of accounts on the basis of authority delegated by the Central Government. So the principle laid down in the above‑mentioned case will not apply to the present case. In the case of Shri Om Prakash Gupta v. The United Provinces (A I R 1951 Allah. 205), a member of the Provincial Service of the United Provinces instituted a suit for a declaration that the order of his dismissal was illegal and inoperative, and he also claimed arrear of pay. The suit was brought against the Govern ment of United Provinces. Central Government was not a neces sary party to that suit because plaintiff was not an employee under the Central, Government. But that is not the position of the plaintiff in the present case. We are of opinion that Government G of Pakistan is a necessary party to this suit.

17. Plaintiff referred to Order XXVII, rule 8 of the Code of Civil Procedure and contended that summons was served upon the defendants through Government Pleader. Order No. 25 dated 15‑2‑58 in the suit contains the order of trial Court for service of summons on the defendant through Government Pleader. Order No. 26 dated 3‑3‑58 shows that Government Pleader appeared and prayed for time to file written statement. Ultimately written statement was filed by the Commissioner of Income‑tax on 5‑5‑

58. The appearance of Government Pleader in the suit cannot exonerate the plaintiff from service of notice upon the Central Government under section 80 of the Civil Procedure Code.

18. The question that Government of Pakistan is not a necessary party to the suit is not of importance at present, as according to the learned Subordinate Judge, Federation of Pakistan that is Government of Pakistan has been made a defen dant. Appellant did not contend that this finding of the learned Subordinate Judge was wrong. Mr. Mesbahuddin, the learned Advocate for respondent, contended that the Central Government was not made a party to the suit and that the suit should have been dismissed on the ground of non‑joinder. Appellant referred to Order I, rule 9 of the Code of Civil Procedure and contended that a suit cannot be dismissed for non joinder. He also referred to the case of Muhammad Amin v. Khamisa and another (P L D 1956 Lah. 242), in support of this contention. In that case, it was held that the dismissal of an appeal for non joinder of a person who was not a necessary party was wrongful. The question of dismissal of the suit for non‑joinder of the Central Government cannot arise, as the learned Subordinate Judge has found that the Central Government has been made a party and respondent has not filed any cross‑objection against that finding.

19. Appellant next contended that there was due service of notice upon the Central Government. It appears that on 9‑11‑57 plaintiff sent two copies of the notice under section 80, Civil Procedure Code to the Commissioner of Income‑tax and requested the Commissioner to forward these to the highest official‑in‑charge of the Finance Department in the Centre. Copy of that letter is at page 10 of the Appendix to the Paper‑Book. By question No. 39 of the interrogatories filed on 14‑6‑58, it was enquired of the Commissioner of Income‑tax whether the case of the plaintiff was referred to the Central Government during the disciplinary proceeding. Answer No. 39 in page 93 of the Paper Book Part I shows that the case of the appellant was not referred to the Central Government. Appellant contended that as the Commissioner of Income‑tax had not sent the copies of the notice to the Secretary, Central Government and had not referred his case to the Central Government, although he had sent copies of the notice to the Commissioner of the Income‑tax, it is to be held from that letter that notice was served upon the Central Government. This contention cannot be accepted, as it was not for the Commissioner of Income‑tax to serve the notice upon the Central Government. There is also no evidence to show that the Commissioner of Income‑tax had sent copies of these notices to the Central Government. Moreover, the letter does not show that there was any specific request for sending these notices to the Central Government. Appellant merely asked for forward ing these to the highest authority if the Commissioner deemed it essential. Question No. 39 of the interrogatories does not relate to any notice under section 80 of the Code of Civil Procedure. By this question, it was enquired whether the case of the appellant was referred to the Central Government during the pendency of the disciplinary proceeding. In the circumstances, the conten tion that there has been service of notice under section 80 of the Code of Civil Procedure on the Central Government cannot be accepted. The provisions of section 80 of the Code of Civil Procedure are imperative and it debars a Court from entertain ing any suit instituted without compliance with its provisions. This view is supported by the case of the Government of the Province of Bombay v. Pestonji Ardeshir Wadia and others (P L D 1949 P C 31). The following observation was made by their Lordships in that case: "The provisions of section 80 of the Code are imperative and should be strictly complied with before it can be said that a notice valid in law has been served on the Government."

20. When a suit is instituted without complying with the provisions of section 80 of the Code of Civil Procedure, the plaint. is liable to be rejected under Order VII, rule 11 (d) of the Civil (Procedure Code (See I L R 25 Allah. 187 and 1 L R 58 Call 850).

21. Mr. Mesbahuddin, the learned Advocate for respondent, referred to the case of Bhagchand (I L R 51 Dom. 725), in support of the conten tion that the suit was not maintainable in the absence of service of notice on the Central Government under section 80 of the Code of Civil Procedure. That suit was instituted against the Secretary of State for India in Council and others for a declaration that certain official notices and orders were ultra vires and invalid and for injunction permanently restraining all executive actions there under. The suit was instituted before the expiry of two months after the service of notice as provided under section 80 of the Code of Civil Procedure. Their Lordships of the Privy Council held that the suit was unsustainable in limine. The following observation was made by their Lordships:‑ "Section 80 is express, explicit and mandatory and it admits of ‑no implications or exceptions. A suit in Which inter cilia an injunction is prayed is still "a suit" within the words of the section, and to read any qualification into is an encroachment on the function of legislation." As notice has 'not been served on the. Central Government under section 80 of the Code of Civil Procedure, it is to be held that the suit is not maintain able.

22. Appellant filed a petition for acceptance of some docu ments. No useful purpose will be served by accepting the documents. So this prayer for additional evidence is rejected. In the result, the appeal is dismissed. The plaint be treated as rejected and the judgment and decree passed by the learned Subordinate Judge are modified accordingly. In the particular circumstances of the case, we order that parties should bear their respective costs all through. HASAN, J.‑‑I agree. S. B./A. H. Appeal dismissed.