P L D 1954 Lahore 299 (PLP)

KAIKAUS, J.‑This appeal has been filed by one Muhammad Munir whose suit, for a declaration that his dismissal from service is void and inoperative, has been dismissed. Muhammad Munir was an Agricultural Assistant who entered service on the 1st of January 1922 and was confirmed in 1927. On the 5th of November 1940 be was served with the following charge- sheet:--‑ "You are hereby charged with habitual inefficiency and unsatisfactory conduct throughout your service as set out in the statement of allegations enclosed and are called upon to show cause why you should not be removed from service under rules 3(f) and 6 of the Punjab Sub‑Service Punishment and Appeal Rules, 1930, and in terms of the provisions of Article 353 of the C. S R. Your reply should be submitted through the Deputy Director of Agriculture, Gurdaspur, within one month of the receipt of this charge‑sheet. You should also state whether you wish to be heard in person and if so, submit a list of your witnesses, if any, giving their full addresses and stating the point or points on which each of them is required to give evidence." The details of the allegations against him were contained in an enclosure to the charge‑sheet. An enquiry was conducted against him and on the 2nd of June 1941 Mr. Stewarts, the Director of Agriculture, passed an order of dismissal. An appeal was filed by Muhammad Munir to the Financial Commissioner but was rejected. On the 2nd of August 1944, the present suit was filed. The order of dismissal was attacked on two main grounds ;‑ (i) that there was no proper notice to show cause as is required under section 240 of the Government of India Act, 1935, and (ii) that there was no proper opportunity to defend. The learned Senior Subordinate Judge who tried the suit held that section 240 had been complied with. The second point is not referred to in his judgment and has not been pressed before us. That leaves us only with the first ground. The contention on behalf of the defendant which has found favour with the learned Senior Subordinate judge is that the charge‑sheet itself required the plaintiff to show cause against removal from service so that the only question to be decided is whether the charge‑sheet that was served on the plaintiff con stitutes a sufficient compliance with section 240 (3). Argument for the plaintiff is that for a proper compliance with section 240 (3) it is necessary that a notice for showing cause be served after the enquiry in respect of the charges has concluded and the Government has definitely, although provisionally, decided to impose the penalty of dismissal. Reliance is placed in this connection on The High Commissioner for India and another v. I. M. Lall (A I R (35) 1948 P C 121=(P L D 1949 P C 150).). In that case, I. M. Lall had been served with a charge‑sheet which enumerated eight charges of favouritism and nepotism, and at the end of the Charge‑sheet he was required to show cause against dismissal, reduction in rank or some other penalty that may be imposed. Section 240 of the Government of India Act runs :‑ "240‑(1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in Pakistan or holds any civil post under the Crown in Pakistan, 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 givers 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 Pakistan 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 Pakistan 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 qualifica tions, provide 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.' It was argued on behalf of Mr. I. M. Lall before the High Court that the action proposed to be taken which is referred to in section 240 (3) does not mean the penalty which is indicated in the charge‑sheet as a possible result of the enquiry. This conten tion of Mr. I. M. Lall Was rejected by the High Court in the following words :‑ "The plaintiffs contention is that this opportunity should have been afforded to him after the finding of the enquiring officer had been considered and the punishment decided upon. With this contention we are unable to agree. Eight charges were served on the plaintiff and at the end he was asked to show cause why he should not be dismissed, removed or reduced or subjected to such disciplinary action as the competent authority may think fit to enforce for breach of Government Rules and conduct unbecoming to the Indian Civil Service. He was aware from the very start of the enquiry against him that removal from service was one of the various actions that could have been taken against him in the event of some or all the charges being established, and in this sense he was showing cause during the course of the enquiry against the action proposed. The plaintiff's contention that there should be two enquiries, the first to establish that he had been guilty and the second to determine what should be the appropriate punishment, and that in each stage he should have reasonable and independent opportunities to defend and show cause does not appear to he correct or intended by the Legislature." The Federal Court, however. did not agree with the opinion expressed by the learned judges of the High Court. It said ;‑ "It does however seem to us that the subsection requires that as and when an authority is definitely proposing to dismiss or reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity, it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken and that the person concerned must then be given a reasonable time to make his representations against the pro ' posed action and the grounds on which it is proposed to be taken. It is suggested that in some cases it will be sufficient to indicate the charges, the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced if all or any of the charges are proved, dismissal or reduction in rank will follow. This may indeed be sufficient in some cases. In our judgment each case will have to turn on its own facts, but the real point of the subsection is in our judgment that the person who is to be dismissed or reduced must know that that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed." Their Lordships of the Privy Council agreed with the views taken by the Federal Court on the point and at the same time made their own observations which do not leave the interpretation of section 240 in doubt. They said:- "Their Lordships agree with the view taken by the majority of the Federal Court. 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." It is clear from the above quotations that action proposed to be taken means action which has been provisionally decided upon after conclusions of facts have been reached against the public servant concerned. Before that stage, as their Lordships of the Privy Council have said, the punishment, which is indicated in the charge, is only hypothetical. The result of tile interpretation put by their Lordships of the Privy Council on this subsection is that there must first be an enquiry, whatever its nature, against the public servant concerned and some conclusions must be reached. On the basis of those conclusions a provisional punish ment should be decided upon and then a notice issued to the public servant to show cause. It had been contended before their Lordships on behalf of the Government that this might in some cases necessitate two enquiries. Their Lordships were of opinion that it might be so, but that would not affect the inter pretation of the section. The public servant had a statutory right of showing cause against proposed action and therefore it was essential even though a second enquiry was necessitated that he should be given notice after the Government had decided to take particular action against him. Applying the principles mentioned above, what should be our decision in this case? Ordinarily, the service of a charge sheet upon a public servant, which charge‑sheet not only mentions the particulars of the charge but at the same time suggests the punishment that may follow, would not imply that conclusions as to facts had already been reached against him and that there was a definite proposal to impose the penalty mentioned. The normal way of reaching conclusions against a public servant is only after an enquiry has been made against him at which enquiry he is allowed an opportunity to defend himself. That is provided in the rules framed by the Government under the Government of India. Act, 1935. As a matter of fact the rules, as amended in 1950, provide that there should first be an enquiry and after enquiry if the public servant concerned is considered guilty, a punishment should be decided upon and the public servant again required to show cause why he should not be subjected to that punishment. This would be found in Civil Services Rules Punjab, 1950, Vol. I, page 218, para. 1413. The provision about a second notice to show cause against punishment did not exist in previous rules and seems to have been added in view of Privy Council judgment in I. M. Lall's case. Had it been an ordinary case of a charge‑sheet being served, we would hold that by the service of the charge‑sheet section 240 (3) had not been complied with. The circumstances of this case, however, are altogether exceptional. When we look into what are termed 'allegations' in the charge, and which are appended as a schedule to the charge‑sheet, we find that most of them refer to previous conduct of the plaintiff‑appellant about which he had already been called upon to explain and about which findings had been reached and in some cases punishments inflicted. The total number of allegations is seventeen Out of them in seven cases punishment bad already been imposed, while the remaining ten relate to cases which are either based on admitted facts, such as, not passing an examination, or being held up at the efficiency bar, or in respect of the facts of which already the plaintiff has been called upon to explain and the matter decided against him. To give an idea of the nature of allegations we quote below allegations Nos. 4, 8. 9 and 11:

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4. In March, 1932, you were transferred to Abohar, and while working there a Departmental enquiry was held against you and you were found guilty of :‑ (1) not carrying out the orders of your superior officers in the matter of discharging a beldar and appointing another man ; (2) owning and plying for hire a motor lorry in contravention of the Government Servants Conduct Rules ; and (3) preparing a wrong bill and claiming travelling allowance which was not due to you, Your pay was accordingly reduced by one increment of Rs. 4 from Rs. 110 to Rs. 106 for a period of one year, with effect from the 15th May, 1933. You were also ordered on the 19th May, 1933, to severe your connection with the lorry within one month and the false travelling allowance bill submitted by you was disallowed. On the 19th October, 1933 you produced proof showing that you had severed connection with the lorry. On the 17th March, 1937, however, you instituted a suit against a Firm under section 406 Indian Penal Code for alleged breach of trust, in respect of the same lorry, in the Court of Tahsildar, Ferozepore. On being called upon to explain you admitted in the Court that you had resumed the ownership of the lorry. Such an act directly and deliberately contravened this office order of May, 1933.

8. After conducting lengthy correspondence a charge‑sheet was framed against you in January, 1936, regarding your (1) having temporarily misappropriated for the period from the 20th October, 1951 to July 1933, a sum of Rs. 18 due to a Mukaddam as arrears of house rent, and (2) having maintained your Cash Book in a careless and incorrect manner, as was shown by nine concrete instances. You were found guilty of extreme carelessness which resulted in the sum in question (regarding charge 1) remaining in your possession for so long and of gross inefficiency or carelessness in the maintenance of your accounts (Charge No. 2). The annual increment which fell due to you on the 14th May, 1934, was withheld for a period of one year and you were held up at the efficiency bar at Rs. 110 in your time scale of pay of Rs. 70‑4‑110/1204‑180, for a further period of two years, with effect from the 15th May, 1936. You preferred an appeal to the Financial Commissioner, Development, against this order but it was rejected.

9. On the occasion of his visit to Gurdaspur Farm on the 13th February, 1938, the Director of Agriculture called you before him and told you clearly that of all the Agricultural Assistants in the whole Department you had been certainly the most troublesome in recent years, that you broke rules and regulations and as far as he could see, did not work, but spent your time in writing representations, memorials, etc. On going round the area of the Farm of which you were incharge, the Director found that you knew absolutely nothing of the previous history of the various experiments or of the results obtained in previous years. He, therefore, told you quite plainly that if there were any further complaints about either your work or your conduct, he would take the very next opportunity to have you removed from service.

11. On the occasion of the Fruit Show held at Multan from the 25th to 28th October, 1937, you took ten packets of date fruit with you. On the 7th November, 1937, you reported that you had used all the packets in giving the fruit free to visitors for tasting and testing. The Fruit Specialist objected to this procedure and as a special case, allowed the use of four packets for this purpose and demanded payment for the remaining six packets, i.e. Rs. 3 from you. A great deal of correspondence took place between the Fruit Specialist, Lyallpur and the Deputy Director of Agriculture, Gurdaspur, as you had then been transferred to Gurdaspur, and in spite of repeated reminders from the latter you remained silent for a long time and took no action regarding the payment of the amount. The matter was then brought to the Director of Agriculture's notice. When called upon to explain the circum. stances under which you bad not settled the account and to show cause why the amount should not be recovered from your salary, you obtained from the Deputy Director of Agriculture, Multan, on the 19th December, 1938, after a period of about one year, a certificate to the effect that the packets were used as samples under his orders. You submitted these certificates for the first time in the middle of May 1939. It will thus be observed that you were responsible for delaying the disposal of the case from November, 1937 to September, 1939, for not securing the certificate in the first instance and then for de liberately withholding all mention of your possessing it in order to delay and obstruct the disposal of the case and to give your higher officers the maximum amount of work and trouble. When called upon to explain as to why disciplinary action should not be taken against you, you could not render a satisfactory explana tion." As pointed out by the Federal Court in the passage quoted above, it may be sufficient in. some cases to indicate that dismissal or reduction in rank will follow if the charges are proved, and each case will have to be decided on its own facts. With this observa tion their Lordships of the Privy Council had agreed and had added that no action could be proposed within the meaning of section 240 (3) unless a conclusion bad been come to on the charges and actual punishment provisionally determined upon. Even if we were to ignore the passage from the judgment of the Federal Court and to confine ourselves to what their Lordships of the Privy Council themselves stated, the provisions of section 240 (3) would be complied with in this case. A considera tion of the circumstances leads us to the conclusion that the present charge against the plaintiff was framed because on account of a persistent course of unsatisfactory conduct, repeated proofs of inefficiency, and absence of improvement in spite of warnings, the Government considered that they should get rid of him. Thrice he had been held up at some efficiency bar. Twice be bad been warned that if be did not improve he would be dismissed from service. There were a large number of adverse entries in his character roll, one of them being that "he had no rivals for the unenviable position of being the most unsatisfactory Agricultural Assistant in the whole department." The charge framed against him was of habitual of inefficiency and unsatisfactory conduct. On the various allegations on which the charge is based con clusions had already been reached and now there was a definite proposal to remove him. The opening sentence of the order by which he was dismissed runs :‑‑ "In view of his extremely unsatisfactory record of service and of the fact that there was no prospect of improvement in him, M. Muhammad Munir Khan, Agricultural Assistant, B Class, was charged with habitual inefficiency and unsatisfactory conduct throughout his service as set out in a statement of allega tions." While dealing with the defence of the plaintiff as to consideration of charges, the Director of Agriculture says "Charge and the allegations on which it is based are found on facts individually proved." The most important circumstance in favour of the view that punishment had in fact been proposed is the reference in the charge to rule 3 (f) of the Punjab Civil Services Rules. Turning to rule 3 (f) we find that it relates to a removal from service which does not imply any disqualification for future service. Had it not been that a provisional punishment had been decided upon, there was no reason why a particular reference should have been made to rule 3 (f). If a maximum punishment be referred to in a charge, there may possibly be room for argument that the punishment has been referred to because it is the maximum that can be awarded and that such reference does not imply that the punishment mentioned has already been decided upon. But rule 3 (f) does not relate to the maximum punishment. No reason has been suggested by learned counsel for the plaintiff‑appellant as to why a reference should have been made to this particular rule if the person who issued the charge‑sheet had not already applied his mind and reached a conclusion as to the appropriate punishment for the plaintiff‑appellant. It seems that the Provincial Government were sick of the plaintiff' and wanted to get rid of him. But as his main fault was incompetency and he had put in a number of years of service, they did not want to inflict any great harm. They decided upon a punishment that would not disqualify him for future service. That the plaintiff knew very well that there was a definite proposal to remove him and that he was in fact showing cause against it would be clear from the order of dismissal itself. Dealing with the defence of the plaintiff the order says :‑ " He has stated .that his removal from service, as contemplated is in reality a disguised dismissal and that the allegations contained in the statement attached to the charged sheet are either not true or should not be taken into account now, as he has already been punished in those cases." Further on the order states :‑ "His length of service, advanced age and inability to find other employment if now removed from service, which he urges for consideration, will be taken into account when passing judgment," His length of service was in fact taken into account and his objections to the particular punishment were considered and he was granted a compassionate allowance as pension under rule 2'5 of the Civil Services Rules (Punjab) Volume II. Our conclusions on this point are :‑ (i) the Government had already reached a conclusion as to the inefficiency of the plaintiff before the charge‑ was framed ; (ii) a definite punishment had been provisionally decided upon ; and (iii) the plaintiff knew that his removal was proposed and showed cause against it. Under the circumstances section 240 (3) has been complied with. Learned counsel for the appellant raised a new point before us as to the legality of the order of dismissal. The order was passed on the 2nd of June 1941, but it was provided in the order that it was to take effect from the first of July 1941. Learned counsel relies on The Province of Punjab v. Khan Khaliq Dad Khan (P L R 1953 Lah. 859=P L D 1953 Lah. 295.) (a case to which one of us was a party) for the proposition that while the Government has power to dismiss a public servant, it has not the power to say that the dismissal was to take effect from a particular date. That was a case where the Government wanted to give retrospective effect to an order. The words used in the judgment are :‑ The Government have only power to dismiss and a power to dismiss does not imply. a power to say ' a dismissal shall be deemed to have taken place on such and such a date.' " Obviously the principle of that case does not apply to the present case. Learned counsel argues that if Government has no power to order dismissal from a date that has already expired, it should have no power also to say that dismissal shall take effect from a future date. But here the order is substantially one of present dismissal. The provision as to its taking effect about a month afterwards is due to some technical consideration. Had the order said " This public servant shall stand dismissed after three years ", there might have been some force in the objection. It is not really the intention of this order to say that the public servant shall stand dismissed at a future date. In any case the order would become valid on the 1st of July 1941. There is no force in this appeal which is dismissed with costs. A. H. Appeal dismissed.