P L D 1967 Dacca 648 (PLP)

Md. Jane Alam, Senior Government Pleader, T. H. Khan, Assistant Government Pleader and S.M. Huq for Respondent No.

1. Dates of hearing: 8th, 11th April and 22nd June 1966. SALAHUDDIN AHMED, J.‑The petitioner obtained this Rule on the respondents to show-cause why the impugned order which has been annexed as Annexure 'G' to the petition, dated the 4th of October 1965 removing the petitioner from service, should not be declared to have been made without any lawful authority and of no legal effect. The petitioner was an employee in the Pakistan Eastern Railway and served there for about 24 years. While serving as Parcel Clerk he was penalised by respondent No. 3, the District Traffic Superintendent, Pakistan Eastern Railway Paksey, for under weighing some consignments and was reverted to a lower rank for three months without loss of seniority by an order dated the 21st of April 1964. The petitioner did not appeal from the order and served out the full period of punishment and was thereafter restored to his former post of Booking Clerk, Grade II, by an order dated the 22nd of August, 1964. About nine months from the date of restoration and one year from the date of the order of reduction in rank, the petitioner was served with a notice dated the 1st of April 1965 and issued by the respondent No. 2, Chief Traffic Manager, Pakistan Eastern Railway, Chittagong, to show cause why the previous inadequate punishment should not be enhanced to that of "removal from service". This is Annexure "E" to the petition. The notice was served upon the petitioner on the 6th of April 1965. In response to the notice, the petitioner submitted his explanation wherein he asked for permission to be heard in person. This explanation, however, was not found acceptable and the petitioner was removed from service with effect from the 20th of November 1965 by the impugned order dated the 4th of October 1965. The impugned order purports to have been issued under Rule 1725(a) of the Railway Code. The petitioner has challenged the legality of this order: On behalf of the Pakistan Eastern Railway, an affidavit sworn by Mr. Muhammad Serajul Huq, Junior Personnel Officer of the Railway, has been put in. It has been stated in this affidavit that due to under‑weighing by the petitioner the Railway incurred a heavy loss. The petitioner who had finally checked and weighed the consignments in question was not only guilty of gross and wilful negligence but his act also smacked of corruption and illegal gain. The original punishment given to the petitioner by the then District Traffic Superintendent was quite inadequate in view of the gravity of the offence. It has been asserted that the order of removal is quite legal and valid under rule 1725 of the Pakistan Railway Establishment Code. It is stated further that the matter of under‑weighing goods was referred to the Chief Traffic Manager (respondent No. 2) by the then Accounts Officer of the Railway by his memorandum dated the 9th of September 1963, as a consequence of which there was a discussion about this case between the Chairman, Railway Board, Member Finance and the Chief Traffic Manager, and it was agreed that the original punishment inflicted on the petitioner was inadequate and that action should be taken to enhance the punishment. It may be noted that no date has been disclosed as to when this decision was arrived at. On behalf of the petitioner, Mr. T. Ali has challenged the validity of the impugned order on two grounds. He has contended, in the first place, that the inordinate delay in taking the action of enhancement against the petitioner has robbed the impugned order of its lawful authority. It is true that no time limit has been mentioned in the said rule 1725 for taking action for enhancement of the punishment although in an indirect manner one month from the date of an order imposing penalty is prescribed for filing an appeal therefrom. This omission to mention the time limit, however, should not be construed to mean that the Authority can enhance the punish ment at any time it pleases during the tenure of service of the delinquent. To think that the Authority can keep the sword of Damocles provided by rule 1725 hanging on the head of the delinquent for several years and even up to the end of the tenure of service of the delinquent, seems to us highly unreasonable, if not absurd. According to the accepted principles of con struction of Statutes, no unreasonable or absurd result should be spelt out from legislation. In the absence, therefore, of any time limit for an action under rule 1725, it must be held that the action should be taken within a reasonable time. What is "reasonable time" must of course depend on the facts and circumstances of a particular case and what constitutes "unreason able time" in one cage may not be so in another. In the present case, as has been noticed already, the original order of punishment was passed on the 21st of April 1964, and the authority competent to enhance the punishment came to know about it round about that time. In fact, there is no assertion in the affidavit‑in‑opposition to the contrary. Mr. Jane Alam, the Senior Government Pleader, who appears on behalf of respondent No. 1, has endeavoured to show with reference to certain papers that the District Traffic Superintendent started moving in the direction of a possible action under rule 1725 on the 29th of October 1964 by informing the Chief Accounts Officer of the Railway about the punishment inflicted on the petitioner. From that date onwards, there have been a number of references from, the discussions between one officer and another until finally it was decided in August 1964 that the punishment imposed on the petitioner should be enhanced. Even if these references and discussions may be accepted as necessary. Mr. Jane Alan, has failed to give any explanation whatsoever as to why the matter was further delayed since August 1964 and the `show‑cause' notice which led to the enhancement of the punishment was issued only on the 1st of April 1965. In the facts and circumstances of the case, we have no doubt in our mind that the time taken in taking action under rule 1725, namely, about a year from the date of the original punishment, is unreasonable. Besides, we are of the view that the Authority had ample time to stay the original punishment while it con sidered whether the punishment should be enhanced or not. We, therefore, accept this contention on behalf of the petitioner, and on this ground alone we think we should give the declaration asked for. Mr. T. Ali has next assailed the validity of the impugned order on the ground that there has been contravention of the provisions of Article 177(1)(b) of the Constitution inasmuch as no reasonable opportunity had been provided to the petitioner to show cause against the order of removal from service proposed against him before the impugned order was passed. His con tention is that, although before passing the original order of punishment, namely, the one dated the 21st of April 1964 the requisite opportunity was given to him, such opportunity was not extended to him before passing the impugned order. He has argued that, in response to the `shoo‑cause' notice issued before the order of 21st of April 1964 was made, the petitioner showed cause which apparently satisfied the Authority and it did not pass any order of removal. Instead, the Authority passed an order reducing the petitioner in rank for a period of three months. The `show‑cause' notice of the 1st of April 1965, issued prior to the passing of the impugned order was in fact a fresh pro ceeding under rule 1725 to remove the petitioner from service. That being so, the petitioner should have again been afforded reasonable opportunity under Article 177 of the Constitution to show cause why he should not be removed from service. In response to this notice, the petitioner submitted an explanation and asked for personal hearing. This explanation was not accepted, and no personal hearing was granted to the petitioner. In these circumstances, it is claimed that there has been a contravention of the constitutional provision invalidating the impugned order. Mr. T. Ali has also in this connection challenged the vires of rule 1725 itself on the ground of its inconsistency with the provisions of Article 177 of the Constitu tion. In support of this contention, Mr. T. Ali has placed before us a Single Bench decision of the Calcutta High Court reported in A I R 1961 Cal.

93. In the case under report, in a similar case under the said rule 1725 it was held that not only the order of removal from service passed in the case was illegal because no reasonable opportunity by way of giving personal hearing to the delinquent was given as required under Article 311 of the Indian Constitution which is mere or less in terms similar to Article 177 of our Constitution) but that the rule itself was invalid to the extent it violated the provisions of the said Article

311. With great respect the learned Judge of the Calcutta High Court, we find ourselves unable to agree with the last proposition. The mere fact that the rule has not provided for an opportunity in the manner prescribed in Article 177 of the Constitution is not simply enough in our opinion, to invalidate the rule. The true position appears to be that, whether the rule provides for such an opportunity or not, such an opportunity must be afforded as contemplated by Article 177 of the Constitution. In the present case, previous to order of the 21st of April 1964, a `show‑cause' notice was issued to the petitioner to which he responded, but the punishment proposed in the `show‑cause' notice, viz. removal from service was never inflicted. This can only be interpreted to mean that the Authority accepted the explanation of the petitioner to some extent, namely, to the extent that they were satisfied that the proposed action, namely, removal from service, should not be passed against the petitioner and the matter was closed there. If subsequently, how ever, the Authority once again thought that the petitioner should be removed from service, we think the petitioner should have again been provided with a reasonable opportunity to show cause as contemplated under Article 177 of the Constitution before the authority finally passed the impugned order removing the petitioner from service. It is an admitted fact that although the petitioner in his explanation‑ to the `show‑cause' notice which preceded the passing of the impugned order had asked for a personal hearing, he was not given such a hearing. In these circumstances, we think that the petitioner was entitled to a reasonable opportunity as contemplated under Article 177 of the Constitution and this was denied to him resulting in contravention of the provisions of that Article. This view finds support from a decision of the Supreme Court reported in 1963 P L D S C

460. Accordingly, for the reasons stated above, we make the Rule absolute and declare that the impugned order has been passed without lawful authority and is of no legal effect. We, however, make no order as to costs. A. M. SAYEM, J.‑I agree. R. B. A. Rule made absolute.