P L D 1956 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑‑This is a certified appeal by the Federation of Pakistan from a judgment of the High Court of West Pakistan setting aside the decree of a Civil Judge, by which the respondent's suit for certain reliefs on the ground of her alleged wrongful dismissal from public service was dismissed. The respondent; Mrs. A. V. Isaacs, was appointed to the temp porary establishment of the North Western Railway in 1940, The terms on which she undertook to serf‑ were embo died in an agreement signed by her on 2nd May 1940. By this agreement she agreed to take the appointment on the following conditions: "I hereby accept the post of a Nurse Relieving on the temporary establishment of the North Western Railway in the Lahore Division on a pay of Rs. 140 per mensem/per diem. I fully understand the conditions of my service which are as follows :‑ (1) that I have been appointed in a purely temporary capacity and that I shall have no claim to any additional pay or increment during such appointment, except what may be granted to me by the Railway Administration at its own. discretion, nor shall I have any claim, by reason of the length of my service or otherwise to ultimate con firmation or absorption into permanent service. (2) that my service carries with it absolutely no claim for pension or gratuity. (3) that as regards leave and absentee allowance, I shall be governed by the State Railway Leave Rules applicable to temporary employees in force from time to time. (d) that as regards passes, I shall be governed by such rules as may be laid down by the Railway Administration from time to time for temporary employees. (5) that my service will be terminable by the Railway Administration on 24 hours/1 month's notice or on payment of a day's/month's pay in lieu of notice, except in the following cases when I shall not be entitled to any notice or pay in lieu of notice. (a) When my service is dispensed with for serious mis conduct or for unsatisfactory work of which the Railway Administration shall be the sole judge ; (b) On completion of the particular work on which I may be employed for the time being ; or (c) On expiry of the period for which I am engaged or which may for any reason be subsequently extended. (6) that if at any time, I am appointed to the permanent establishment with or without a break between such appointment and my service in the temporary establishment, I shall have no claim to my temporary service being counted for purposes of fixing my pay or towards gratuity, seniority, etc., except to such concession as the Railway Administration may at its own discretion grant me under the rules in consideration of my temporary service." She was serving as a Nurse in the Gairn's Hospital, Lahore, when on the 5th November 1947, she was served with a charge‑sheet under the" disciplinary rules of the Department. She was discharged but reinstated on appeal on the 30th July 1948. A fresh charge‑sheet was served on heron the .4th April 1948, but on her, appeal it was with drawn .on 27th July 1948. She was then transferred to Karachi but she refused to move, with the result that she received a third charge‑‑sheet on the 12th January, 1949, alleging misconduct inasmuch as shy had wilfully absented herself from duty. She made a representation against this, but it was turned down and she was discharged from service on the 18th March 1949. Her appeal from the order removing her from service was dismissed by the General Manager. After serving a notice on the General Manager of the North Western Railway under section 80 of the Code of Civil Procedure she brought a suit in the Court of a Civil Judge against the Federation of Pakistan. In the plaint of the suit she alleged her dismissal as her cause of action and claimed the following reliefs against the appellant: "(a) a declaration that the order of discharge of the petitioner from service as Nurse passed on 18th March 1949 by the Divisional Superintendent, North Western Railway, Karachi was not passed in. due course of law and was wrongful, void, illegal, inoperative and ultra vires and that notwithstanding the above order, the plaintiff still continues legally to be in the service of the North Western Railway, Lahore, as Nurse and is entitled to hold office as such and to enjoy all other rights and privileges attached to the post including residence in Railway Quarter No. 79 H‑3, Mayo Road, Lahore, provident fund, gratuity, bonus and other privileges. (b) recovery of arrears of pay and allowances from August 1948 to 15th November 1949 amounting to Rs. 3,135‑3‑6 at Rs. 202‑5‑0 per month. (c) average pay for the remaining period of 21 years of her service which amounted to Rs. 50,982‑12‑0 at Rs. 202‑6‑0 per month. (d) Rs. 5,000 as compensation for vexation, mental worry, loss of social status, economic distress and damage to her physical health caused by the illegal acts of the Railway Department, totalling Rs. 59,117-15‑6." The suit was opposed by the appellant on the merits as well as on certain legal grounds. The Civil Judge after con sidering the pleadings of the parties framed the following preliminary issues in the case. "(1) Has this Court jurisdiction to hear this suit ? (2) Did the plaintiff give valid notice under section 80 of the Civil 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 ?" He found the first Issue in favour of and the remaining issues against the respondent and dismissed the Suit. The respondent appealed to the High Court where arguments were confined to the questions whether the notice under section 80 was according to law, whether the respondent was a permanent or a temporary employee and whether some of the reliefs prayed in the suit could be granted. The learned Judges held that the notice satisfied the requirements of the law, that the respondent was in the permanent employ of the North Western Railway, that the contention raised by the State that if the respondent was a permanent employee her services could lawfully be terminated after the period of notice stipulated in the agreement of service was untenable, and that the claim for Rs. 5,000 as damages and the claim for future salary were not maintainable in law. They; therefore, remanded the suit for trial on the merits, with the further direction that the question whether the respondent was entitled to arrears of salary should be determined on the law applicable to the agreement between the parties. The present appeal is by the Federation of Pakistan on the strength of a certificate granted by the High Court. Mr. Mahmud who represented the appellant before us has addressed himself to two main questions in the case. In the first place, he contends that the finding of the High Court that the notice under section 80 of the Civil P. C. was a valid notice is incorrect. Next he has urged that on the evidence the correct finding should have been that the respondent was not a permanent but a temporary employee and that whether she was permanent or temporary there being a stipulation in her service agreement that her services could be terminated on notice, she has no cause of action to come to a Court of law. As regards the point relating to the sufficiency or in sufficiency of the notice under section 80 is concerned Mr. Mahmud, relying on certain observations in reported cases, has argued that the reliefs asked for by the respondent in the notice being different from those she claimed in the suit, the notice was bad and the suit should have been dismissed on that ground. In the notice, the respondent had claimed Rs. 25,360 as future salary for 21 years, a sum of Rs. 5,000 as compensation for vexation, mental worry, loss of social status, etc., and another sum of Rs. 1,080 as arrears of salary from August 1948 to 14th July, 1949, namely, Rs. 31,420 in all. If this amount was not paid, the notice stated, the. respondent would be constrained to file a suit for the costs of which the Department would be responsible. The reliefs actually asked for in the suit have already been stated, and Mr. Mahmud's argument is that because a larger amount of money and a declaration as to the invalidity of the order of discharge is prayed for, the claim is not in accordance with the notice and that it cannot for that reason be entertained by the Court. We have no hesitation in repelling this contention. It may be that where a Specific amount of money is claimed in a notice under section 80 of A the Civil P. C., a decree for a larger amount on the same cause of action cannot be asked for, but we are unable to accept the general proposition that should a particular relief asked for in the notice ate found by the Court not to be competent or appropriate in law, no relief in substitution can be granted by the Court in the absence of a fresh notice formally claiming that relief. What has to be seen in such cases is whether the party suing is the party who sent the notice, whether these cause of action on which the suit is founded is the same as vas disclosed in the notice and whether the plaintiff indicated in the notice the relief which he thought he was entitled to on the strength of that cause of action. If the notice contains these three matters it complies with the law even though at the trial of the suit the Court might come to the conclusion that the relief that was asked for in the notice is not the proper relief to be granted and that the plaintiff , is entitled to some other relief which was not claimed in the notice. In the present case it is not contended by Mr. Mahmud that the cause of action alleged in the suit is different from that stated in the notice. And that being so, the High Court was right in holding that because under the law the claim' for damages nor future salary is. not competent and the true relief to which the plaintiff is entitled I in such cases is that of a declaration that the order of dismissal is void, the suit could ‑not fail merely because the relief for a declaration was not demanded by the notice. We find, therefore, that no 'exception can be taken to this finding of the High Court. The next point raised by Mr. Mahmud is that the respondent was a temporary and not, a permanent employee and that the action of terminating her services was taken in accordance with the conditions of her service. The learned Judges of the High Court have rightly remarked that al temporary employee has no cause of action if his services are terminated in conformity with the terms of his agreement. Bet they have also proceeded to hold that if a servant is ‑in fact a permanent servant, the Government cannot obtain from him a stipulation in the service agreement that his services may without lawful cause be dispensed with at any time or on notice, because any such stipulation would be contrary to the constitutional provision in section 240 of the Government of India Act, 1935. We think that this question does not arise in this case nor the question whether the respondent was a permanent or a temporary employee because, if a public servant has been removed or dismissed from service, it is wholly immaterial for the purposes of section 240 whether he was a permanent or a temporary employee. We have discussed this point at length in Noor‑ul‑Hassan and others v. The Federation of Pakistan (P L D 1956 S C (Pak.) 331), to which reference will undoubtedly be made by the Civil Judge when he comes to decide this case. The short issue to be determined in this case is whether the provisions of section. 240 were or were riot complied with. We have mentioned that the respondent received notice of enquiry with a formal charge‑sheet on the 12th January, 1949, that against this charge she made a representation and that she was discharged from service on the 18th March 1949. It is true that the word used in the ‑order dispensing with her services is `discharged' and. tot `dismissed' or `removed' but that, in the circumstances. of the case, the order did amount to an order of dismissal cannot be disputed. A regular charge sheet was served on her on the .12th January 1949, and she having failed a defend herself at the enquiry, the order of discharge was passed on the 18th March, 1949. 1n the written statement filed by the appellant it was admitted that by her conduct the respondent had rendered herself liable to disciplinary action, that her written defence dated the 17th January, 1949, was considered and rightly rejected by the Divisional Superintendent, Karachi, and that she was discharged from service under the powers vested in the. Divisional Superintendent by paragraph 1705 of the S. R. E. Code. This paragraph specifies the officers who are com petent to impose penalties after taking disciplinary proceedings against delinquent employees. If the order had been one of termination of services in accordance with the respondent's conditions of service on the ground that she was a temporary servant, she could have had no right of appeal against that order. We find, however, that she not only appealed from the order but the appellate authority entertained the appeal and dismissed it on the merits describing the order o f discharge as an, order of removal from service. It is not the Federation's case that the proceedings started against her under the charge‑sheet served on her on the 12th January; 1949, were dropped and that the department decided to adopt the alternative mode of dispensing with the respondent's services in accordance with the conditions of her service by giving her notice. We are, therefore, quite clear that the order of discharge was an order of dismissal within the mean ing of section 240 of the Government of India Act and that if the opportunity required by that section was not given to the respondent in the manner laid down by the Privy Council in Lall's case. (75 I A 225=P L D 1948 P C 150) the order of dismissal, would be void, irrespective of whether the respondent was a permanent or a temporary employee. Accordingly, we dismiss the appeal with costs and maintain the order of the High Court remand ing the case for decision of the question whether the provisions of section 240 of the Government of India, Act were or were not complied with, and for determining the respondent's claim for arrears of salary from August 1948 to 15th November 1949. This is a 1949 case, and there should be. no more delay in its disposal. The issues involved to it ,now are perfectly simple and should be determined as early as possible. On the issue of section 240 the learned Civil Judge should require the appellant to produce the file relating to the enquiry in pursuance of the charge‑sheet served on the respondent on the 12th January, 1949, and see whether according to that record the respondent was given an opportunity ‑ under section 240 of the Government of India ‑Act. If the record is not produced or if the recor6 does not show that the required opportunity was given to the respondent, he should, in view of our observations, place the onus of the issue on the appellant. In case he comes to the conclusion that no such opportunity was given to the respondent he should grant relief to the plaintiff on the lines of the relief granted by this Court in Noor‑ul‑Hassan and others v. The Federation of Pakistan (P L D 1956 S C (Pak.) 331). The appeal is dismissed with costs. A.H. Appeal dismissed.